The Judicial Power of Contempt: Upholding authority or restricting speech?
Part III Samvidhaan Series Volume: 1
Contempt of court is commonly understood as disobeying court orders or the disruption of legal proceedings. The power to punish for contempt of court is a penal power that is vested in the judiciary and is believed to be necessary for the working of a judicial system. In India, as per the Contempt of Court Act, 1971, contempt can be civil or criminal.
Criminal Contempt is an effort to protect the Court from “contemptuous” feelings against it to maintain the authority of the Court, so it is able to wield the power required for the administration of justice. It is rooted in an understanding that if the image of the Judiciary is sullied by allegations or corruption or bias, people will have less faith in the Judiciary, leading to a breakdown of the rule of law. Enforcing criminal contempt necessarily requires a restriction on the freedom of speech and expression. The Fundamental Right to Freedom of Speech and Expression guaranteed to every citizen under Article 19 of the Constitution of India creates an exception for speech that is in Contempt of Court. In practice this power intended only to ensure Judicial authority, can have the effect of restricting legitimate public debate and discussion as well as subverting efforts towards judicial accountability.
This Report titled “The Judicial Power of Contempt: Upholding authority or restricting speech?” looks at Criminal Contempt and particularly the way it affects freedom of speech and expression, and efforts to ensure judicial accountability. By laying out the law and procedure on criminal contempt in India and judicial interpretation, this report attempts to explore the scope of criminal contempt, parameters devised by courts for determining a speech as contemptuous and the application of the law by the judiciary.
Part A of the Report explains the law on criminal contempt; which forms of speech or actions are prohibited as criminal contempt and which are permissible; and lays out alternative legal frameworks including the Indian Penal Code (IPC) which address acts that interfere with the administration of justice.
Part B of the Report goes on to examine the jurisprudence on contempt. It lays out the broad principles against which criminal contempt is determined, explains through judgments what it means to “scandalise the court” or “lower the authority of the Court”. It also culls out what has been held “not to be contemptuous”. The chapter analyses a range of jurisprudence on criminal contempt to ask whether there is uniformity or consistency in the exercise of contempt powers by the Supreme Court. It also looks at instances where criminal contempt powers have been invoked, irrespective of whether the same has resulted in a conviction or not. This analysis has been conducted using the constitutional principles of freedom of speech and expression, to assess whether criminal contempt is a reasonable restriction.
Part C of the report, through examples of past cases and ongoing instances where contempt powers have been invoked, examines whether the practice of criminal contempt in India meets the basic requirements of a good law, i.e one that is not vague, arbitrary, uncertain, inconsistent or overbroad. This part identifies underlying assumptions, like that of the “majesty of the judiciary” and asks whether these are consistent with democracy and fundamental rights, or whether it places the Judiciary above the law.
Annexure 1 of the report traces the history of criminal contempt in India back to thirteenth century England and the preservation of the authority of the King. The concept of “disrespect”, which underlies contempt law even today, evolved from efforts to punish disrespect of the King and judges who acted for the King. Delving into the history and evolution of contempt law this part of the report throws light on governmental practices, historically based in institutions of monarchy, that have found their way into Indian law and jurisprudence.
The discussion on the use of criminal contempt shows that Courts have consistently held that people have the right to criticise the Judiciary, that courts should not be over-sensitive and that contempt powers should be exercised sparingly. At the same time, we see criminal contempt proceedings being initiated against tweets and comic strips, as well as legitimate public critique of the Judiciary. To this end, the Report helps readers understand the ways in which contempt powers are inherently vague and overbroad in their definition and designed for selective application. It also demonstrates how the procedural framework is designed to allow for excessive executive discretion, thus reinforcing the power of selective application. In doing so, it urges readers to think about the particular kinds of speech that are being restricted or regulated through contempt powers.