Fair and reasonable criticism of public institutions, including the judiciary, is a normal part of democratic process when people’s liberties are assured by the constitution. People have the right discuss conduct of all public functionaries. However, willful disobedience of the court in any manner that lowers the authority of the court or interferes with or obstructs administration of justice must be checked. It is expected that the laws would ensure this. But you have to be careful if you live inIndia, particularly if you are talking about conduct of judges. Reason: They have put themselves above all.
You give an interview to media and allege some judge of corruption; soon you and the media channel will get slapped with “contempt of court” charges. Yes, Tarun Tejpal, Managing Editor of Tehelka and Prashant Bhushan, Supreme Court lawyer can testify for the ground reality. The “Learned” and “Honorable” at the top of Indian judiciary expect the lesser mortals to stay within the sacred boundary of submissiveness and take their dictates like divine messages. Some years ago, Booker Prize Winner Arundhati Roy was sent to jail and fined for criticizing court’s verdict.
The Contempt Law
The Contempt of Courts Act, 1971 codifies the law that many feel often stifles free and honest expression. No one has any objection to provisions that recognize disobeying court orders, interfering with judicial proceedings, or obstructing the administration of justice as contempt of court and they are easy to understand. The problem originates from the additional provision – scandalizing or lowering the authority of the court – that leaves considerable room for discretion. The Act of 1971 does not clarify what is meant by scandalizing the court.
There are two types of contempt of court: Civil and Criminal.It can be direct (if performed in front of the judge) or indirect. Contempt of court in any form is taken very seriously in India.
1. Civil Contempt of Court
This refers to an individual’s failure to obey a court order. The lawbreaker may purge it by adhering to the order. Suppose you show disrespect court rules and proceedings by speaking out rudely or irreverently during a trial proceeding. The judge may find that person in contempt of court if the latter does not sit down and be silent.
2. Criminal Contempt of Court
This is thwarting the activities of a court of law from being carried on smoothly. When a person does not provide proof when subpoenaed, or yells at the judge or threats member/s of jury or lawyer during a trial, the said person may be accused of contempt of court.
Courts certainly need power to ensure proper functioning and fair trial and see that no one tries to influence the witnesses and court officials. This is the objective of the contempt law. But the manner in which the law is generally practiced implies that this objective is lost and is replaced by the “grand idea” of protecting, sustaining, and enhancing the royal-ness of the courts and top legal hierarchy.
Why not “Contempt of Citizens!!”
An Activist in Gujrat raised this question: “The Indian judiciary enjoys absolute power because of the provision of contempt of court. But given the enormous delay in delivery of justice, why not provide a law that makes delays “contempt of citizens.”
Certainly a good question for the Indian government and the judiciary to think about.
“Truth” as Defense
But the law as it has emerged from judicial decisions doe not allow even truth to be a valid defense against the charge of contempt. Moreover, the courts have sought to make a distinction between criticism made by a former judge and law minister which may be permissible and criticism by other citizens which must be “checked.” This is anti-democratic and violates the freedom of expression, right to equality, and non-discrimination clauses.
In 2002, the National Commission to Review the Working of the Constitution (NCRWC) recommended that ‘truth’ be allowed as defense in matters of Contempt of Court. It certainly made sense in the Indian context, particularly because the emblems in High Courts prominently display the motto “Satyameva Jayate” and in the Supreme Court “Yatho dharma statho jaya.”
There is nothing earth-shaking in this recommendation because in countries like UK and Australia truth as defense against the charge of contempt by scandalizing had been available for several decades. In fact, other countries have advanced to far more tolerant regime. In UK, Courts rarely use this power; in the US, contempt is initiated only when there is ‘clear and present danger’ to the administration of justice.
The contempt law today
The recommendation, however, eventually resulted in an amendment in the contempt law in 2006. The government added a rider though, by putting the clause: “The Court may permit, in any proceedings for contempt of court, justification by truth as a valid defense if it is satisfied that it is in public interest and the request for invoking the said defense is bona fide.” Presence of the words “in public interest” put an additional burden on the person accused of contempt and virtually defeats the objective of the proposed legislation.
In the law as it now stands, while a person accused of contempt can seek his defense in “truth”, he must get the permission of court for this defense after satisfying it that this truth will be in public interest and that he is acting bona fide (ie, with reasonable care and caution).
Summary: Rather than counting on the phrases of the contempt law clauses, the interest of the general public and also judiciary will be better served if it develops tolerance for criticism of its actions and conduct. That will also connect it with the common man and strengthen democracy.
Read Our Detailed PDF Report: Judicial_Accountability_in_India