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  • Bitthal Sharma & Shivali Shah

Validity of the Offence of Scandalising the Court

Introduction

In laymen’s terms, Contempt of Court is an offence which tends to lower the authority of the judicial institution, emanating from any derogatory or pejorative statement made by a person. The rationale behind the offence is the propensity of such a statement to cause damage to the authority and dignity of the judicial bodies, coupled with the reputation of the judges, compromising which holds the potential of denigrating their image in the eyes of the public.


The contempt law in India has its origin in the monarchical legal system of England, wherein the judicial system was a mere controlling tool in the hands of the monarch.[i] The king used to delegate his judicial powers on the judges who acted as his representatives. Any attack on the authority of the judiciary tantamounted to an aspersion on the king’s wisdom. This principle was legitimised in the landmark case of R. v. Almon[ii] which reiterated that any slanderous act aimed towards the judicial institutions will be equivalent to challenging the king’s honour and authority.[iii] Over time, any act which contradicted the orders and directives of the judges and impeded their enforcement came to be considered as punishable.[iv]


The Constitution of India vests the Supreme Court and the High Court to punish for contempt in Articles 129 and 215 respectively. These articles are supplemented by the Contempt of Courts Act, 1971, which came into existence as a result of the report submitted by the Sanyal Committee and is the primary legal framework regulating the contempt of courts in the Indian landscape.[v] Section 2  of the statute divides contempt into two kinds, namely Civil and Criminal contempt, with S.2(b) dealing with civil contempt and S.2(c) with criminal contempt. Civil contempt refers to the wilful disobedience to any judgement, decree, or order of a court.[vi] Whereas, Criminal Contempt deals with any act which scandalises the court or prejudices any judicial proceeding or interferes with the administration of justice.[vii]


Joseph Moscovitz describes the excessive and wide nature of contempt of court as a “Proteus of the legal world”, that assumes infinite forms.[viii] The term ‘scandalises the court’ has been the subject-matter of numerous litigations due to its ambiguous nature. This vague and uncertain tendency has seen a plethora of cases  including E.M Sankaran Namboodripad v. T. Narayanan Nambiar[ix] and Re: Arundhati Roy vs Unknown[x] in which the judges have used their judicial discretion to punish an individual despite the alleged act not fulfilling the necessary prerequisites for it to be considered an act of contempt under the Act . This not only causes unrestrained and arbitrary restriction on the right to freedom of speech and expression under Article19(1) of the Indian Constitution, but also tarnishes the image of the judiciary in the minds of the common man which was not necessarily the case at the first instance when the court took cognisance of the matter.


Comparative Analysis with English Law

The framework of contempt of court in United Kingdom (“UK”) is similar to that of India, with the being the principal statute codifying acts pertaining to contempt. The Act recognises and divides contempt into Civil and Criminal Contempt.[xi] The ambit of the contempt law in UK and the one in India is almost similar as both recognise Civil and Criminal Contempt   The  one thing which differentiates the two laws is the absence of the term ‘scandalising the court’ when it comes to the Contempt of Courts Act, 1981 in UK. Even though the term was inherited in the Indian context from UK, the same was excluded by Section 33 of the Crime and Courts Act, 2013  on the recommendation of the Law Commission[xii] which abolished scandalising the judiciary as a form of contempt under the common law of England and Wales.[xiii]This radical step taken by the UK Parliament legitimised and validated the numerous judgements given by the courts in UK. In Defence Secretary v. Guardian Newspapers, it was pronounced by the court that the act of scandalising the court is obsolescent and may be ignored.[xiv] A similar ratio was given by the court in King v. Nicholls.[xv]


The Law Commission came up with a number of reasons behind abolishing ‘scandalising the judiciary’ from the UK contempt law. One of the grounds being the notion that the offence of scandalising the court infringed the freedom of expression. The same reasoning can be given behind amending the act of ‘scandalising’ in the Indian context due to an abundance of instances wherein the judges have overreached their judicial prowess to give effect to Section 2(c) of the Act in order to subdue the voices of individuals, thereby leading to violation of their freedom of speech and expression under Article 19(1) of the Constitution. Some other rationale given by the Law Commission behind the abolition of the offence include the uncertain and ambiguous nature of the offence and it being self-serving from the side of the judges. The contempt of court framework in India suffers from similar shortcomings. The scopious nature of S.2(c) often enables the judiciary to punish and prosecute individuals even when the requirements amounting to contempt of court are not fulfilled properly. Similarly, there have been occasions wherein the Judges have taken cognisance of a contempt case under the garb of ‘protecting the authority of court’ to protect their own honour, without a just and reasonable cause.


The Prashant Bhushan Case

The question of criminal contempt came into the limelight again in the wake of suo motu proceedings instituted by the Supreme Court against advocate Prashant Bhushan for two tweets made by him making comments on CJI S.A Bobde and other CJIs. The Court is also currently hearing a separate matter from 2009 against Mr. Bhushan for allegations made by him against the then CJI S.H. Kapadia in an interview with Tehelka magazine. He further made allegations that half of the last 16 CJIs were corrupt. [xvi]


In the hearing for the Tehelka magazine case, Mr. Bhushan stated that his comments were not intended to lower the prestige of the judiciary and expressed his regret if his statements had been misconstrued. [xvii] In the case regarding his tweets Mr. Bhushan defended the same by stating it was an expression of his opinion and that it could not be construed as contempt of court. The SC stated in reference to the tweet stated that it prima facie undermined the dignity of the Court in the eyes of the public. [xviii]


In a judgement on the 14th of August, 2020, the SC has held Mr. Bhushan guilty of contempt of court for the tweets made by him.[xix] The apex court may have set a dangerous precedent by penalising Mr. Bhushan for his tweets in which he expressed his grievances against some members of the judiciary. The question of distinction between opinion of an individual and scandalising the court has been raised. This case has made the subjective nature of “fair” criticism increasingly obvious. Further, it also raises a serious question of what the court prioritises in the time of a pandemic. With limited cases being heard by the Courts during this time, should the matter of two tweets that would inevitably be lost in the dynamic trending cycle of twitter take precedence over other high priority matters  like the abrogation of Article 370 and the constitutionality of the Citizenship Amendment Act, 2019?


The Concept of “Scandalising the Court”

As per Section 2(c)(i) of the Contempt of Courts Act, 1971 the publication or doing of any act that “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court” will amount to the offence of criminal contempt.[xx] While there is no standard definition of the term “scandalising the court” it is broadly interpreted to be any act that lowers the authority of the Court or of any judge of the court. A remark would not be considered to be contempt when it is considered to be fair criticism of any judicial act.[xxi] However, the problem here is that there can be no objective understanding of what amounts to “fair” criticism. The distinction between fair criticism and scandalising the court is ultimately up to the discretion of the judges and what they consider fair and unfair. Courts have also been inconsistent when adjudicating matters of scandalising the court, due to the wide scope for interpretation. Varying thresholds on what counts as fair criticism of the judiciary result in extremely blurred lines between ‘fair’ criticism and contempt.[xxii]


The primary rationale behind the offence of scandalising the court is the maintenance of rule of law in the country. [xxiii] In the case of Vishram Singh Raghubanshi v. The State of Uttar Pradesh[xxiv], the Supreme Court characterised the offence of scandalising the court as one that would shake the confidence of the public in the judicial system. In 2018, the Law Commission published a report on the Review of the Contempt of Courts Act, 1971.  When discussing the offence of scandalising the court it stated that it was undesirable to do away with the provision as it “could potentially lessen the respect for or fear of the courts”.[xxv]


An interpretation of all the above is that the offence of scandalising the court is based on the idea that judicial integrity is based primarily on public perception, and that rule of law in the country is maintained when there is respect for judicial authority. While this is a fair assessment, the fundamental question that needs to be addressed here is whether such respect for judicial authority comes from the precedent of moral judgements, or by discouraging dissenting opinion. The concept of scandalising the court stems from the idea that the common man respects the judiciary due to the absence of criticism against it. Such an assumption, greatly disregards the ability of individuals to form an opinion based on the merits of a judgement and possibly overestimates the impact individual criticisms have on swaying public opinion to the extremities it envisions. Further, it encourages a system wherein dissenting and critical opinions are discouraged in fear of contempt proceedings. The integrity and authority of the Courts must be based solely on the righteousness of the judgements and not because of a sense of infallibility that comes with the absence of critical comments.


It cannot be denied that acts which go against the order of any court or those which cause obstruction in the administration of justice must be deterred, and in doing so the contempt law in India is valid. However, it needs to be reevaluated if acts and comments that scandalise or tend to scandalise the court cause any such obstruction. If yes, the standard for what counts as “scandalous” must be clearly laid down.


Further, it must also be questioned if contempt proceedings do more to harm the reputation of the court than the contemptuous act itself. Several high-profile contempt cases like the Arundhati Roy case[xxvi] and the Prashant Bhushan case have invited significant criticism against the institution of such proceedings. In the Prashant Bhushan case, 16 activists filed an impleadment application stating that the institution of such proceedings has a “chilling effect” on the right to freedom of speech and expression provided in Article 19(1)(a) of the Constitution. [xxvii] Some jurists even tend to believe that when a Court institutes contempt proceedings for scandalising the Court, it often has something to hide.[xxviii]


Conclusion

The offence of scandalising the court in India needs revisiting and the Prashant Bhushan case provides a fitting argument for it. The fact that tweets and social media comments are being pulled up as contempt of court pose the risk of fear of voicing criticism in the fear of criminal proceedings. In light of such proceedings, scandalising the court must be reevaluated in terms of its rationale. The fact that it considers public criticism to have a greater impact on judicial integrity than the quality of judgements and conduct of judges is questionable.


In the current scenario when the line between fair criticism and scandalous comments is practically non-existent, accountability of the judiciary is under threat. In a time when allegations of sexual harassment against judges are dealt with in a questionable manner[xxix] , judicial accountability is of paramount importance. The ability to criticise and ask questions is one of the most fundamental aspects in any democracy, and such an ability must not be curbed or deterred due to apprehension of an extreme and unlikely reaction.


It can be argued that in its current form, the offence of scandalising the court places and unreasonable restriction on the freedom of speech of individuals. While maintenance of judicial integrity in vital, it cannot be done by covering up any form of opposing views. The English approach must be considered by our Courts not only in terms of having “broad shoulders” but also in understanding that judicial integrity is direct result of the conduct of the judiciary and not individual opinion.

 

[i] M. S. Dutta & A. U. Kak, Contempt of Court: Finding the Limit, 2 NUJS Law Review 55, (2009) available at http://nujslawreview.org/wp-content/uploads/2016/12/mriganka-shekhar-dutta-and-amba-uttara-kak.pdf.

[ii] R. v. Almon, (1765) Will. 243.

[iii] D. Hay, Contempt by Scandalizing the Court: A Political History on the First Hundred Years, 25 Osgoode Hall Law Journal 431, (1987), available at https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1836&context=ohlj.

[iv]K. Venkataramanan, What is Contempt of Court, The Hindu (2/08/2020), available at https://www.thehindu.com/news/national/the-hindu-explains-what-is-contempt-of-court/article32249810.ece.

[vi] S. 2(c), The Contempt of Courts Act, 1971.

[vii] Ibid.

[viii] P. Raghavan, Scandalizing the Court: Who will be the custodian of the custodians, Bar and Bench (30/05/2020), available at https://www.barandbench.com/apprentice-lawyer/scandalizing-the-court-who-will-be-the-custodian-of-the-custodians.

[ix] E.M. Sankaran Namboodripad v. T. Narayan Nambiar AIR 1970 SC 2015..

[x] Re. Arundhati Roy v. Unknown AIR 2002 SC 1375.

[xi] F. Simpson, It’s only a court order, who cares? – Contempt of court, Kingsley Napley (14/12/2017), available at https://www.kingsleynapley.co.uk/insights/blogs/dispute-resolution-law-blog/its-only-a-court-order-who-cares-contempt-of-court.

[xii] 335th Law Commission of United Kingdom Report, Contempt of Court: Scandalising the Court, (2012), available at https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/06/lc335_scandalising_the_court.pdf.

[xiii]  S. 33 Crime and Courts Act, 2013 (United Kingdom).

[xiv] Supra 1, at 62.

[xv] King v. Nicholls, 12 CLR 280, (1911, High Court of Australia).

[xvi] B. Sinha, SC to begin hearing decade-old contempt case against Prashant Bhushan from 4 August, The Print, (24/07/2020), available at https://theprint.in/judiciary/sc-to-begin-hearing-decade-old-contempt-case-against-prashant-bhushan-from-4-august/467328/.

[xvii] V. Venkatesan, In SC’s Dealings With Prashant Bhushan Over Contempt, Shades of Arundhati Roy’s Case, The Wire, (05/08/2020), available at https://thewire.in/law/supreme-court-contempt-prashant-bhushan-arundhati-roy.

[xviii] PTI , Supreme Court to pronounce verdict on contempt case against Prashant Bhushan tomorrow, The Print, (13/08/2020), available at https://theprint.in/judiciary/supreme-court-to-pronounce-verdict-on-contempt-case-against-prashant-bhushan-tomorrow/481222/.

[xix] Re. Prashant Bhushan & Anr., SMC (CRL.) No. 1/2020 (Supreme Court,  14/08/2020).

[xx] S. 2(c)(i), Contempt of Courts Act, 1971.

[xxi] S. 5, Contempt of Courts Act, 1971.

[xxii] M. Sebastian, Contempt By “Scandalising the Court” : A Battle Of Perceptions On An Uneven Field, Live Law, (23/07/2020), available at https://www.livelaw.in/columns/contempt-by-scandalizing-the-court-a-battle-of-perceptions-on-an-uneven-field-160380.

[xxiii] D. Snyder & Dr. J. Narayan, Report on the Offence of Scandalising the Court in India, Loksatta, available at https://www.loksatta.org/documents/Internreports/scandal.pdf.

[xxiv] Vishram Singh Raghubanshi v. The State of Uttar Pradesh, (2011) 7 SCC 776.

[xxv]274th Law Commission of India Report, Review of Contempt of Courts Act, 1971, (2018), available at http://lawcommissionofindia.nic.in/reports/Report274.pdf.

[xxvi] Supra 9.

[xxvii] Prashant Bhushan case: Registry rejects impleadment of 16 prominent personalities, The Hindu, (04/08/2020), available at https://www.thehindu.com/news/national/bhushan-case-registry-rejects-impleadment-of-16-prominent-personalities/article32271235.ece.

[xxviii]Scandalising as contempt: On proceedings against Prashant Bhushan, The Hindu, (27/07/2020), available at https://www.thehindu.com/opinion/editorial/scandalising-as-contempt-the-hindu-editorial-on-proceedings-against-prashant-bhushan/article32198126.ece.

[xxix] G. Bhatia, Spectacle fit for a kangaroo court, Mumbai Mirror, (21/04/2019), available at https://mumbaimirror.indiatimes.com/mumbai/cover-story/spectacle-fit-for-a-kangaroo-court/articleshow/68972786.cms.


Authored by Bitthal Sharma, Compilation Editor and Shivali Shah, Associate Editor, RSRR.

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