Vague definition
A walk through various contempt cases, looking for what the contempt law portends for free speech.
IN THE CORRIDORS OF THE SUPREME Court, a judicial humorist once mused, “What is the difference between a judge of the Supreme Court of India and God?” The answer was, “God doesn’t think he is a Justice of the Indian Supreme Court.” If the logic of the recent Supreme Court judgment where Prashant Bhushan is the alleged contemnor were to be extended to this unnamed gentleman, it is quite possible that he might be held guilty of criminal contempt.
Section 2(c) (i) of the Contempt of Courts Act defines criminal contempt as words or action that “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court”. The words are of vast import, and on August 14 this year, the court convicted advocate Prashant Bhushan for two tweets that were in its judgment an “attempt to shake the very foundation of constitutional democracy” which “has to be dealt with an iron hand”.
The first tweet adjudged as contemptuous reads as follows: “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!”
The second tweet reads: “When historians in the future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIS.”
The first tweet, which referred to the Chief Justice sitting on an expensive motorcycle, was not held to be contemptuous. The court notes in para 62 that “This part of the tweet could be said to be a criticism made against the CJI as an individual and not against the CJI as CJI.”
Despite making this distinction, the overall impact seemed to have been taken into account when the court ruled: “The said tweet is capable of giving an impression to a layman that the CJI is enjoying his ride on a motorbike worth Rs.50 lakh belonging to a BJP leader, at a time when he has kept the Supreme Court in lockdown mode denying citizens their fundamental right to access justice.”
As far as the second tweet is concerned, the court says in para 67: “The impression which the said tweet tends to give to an ordinary citizen is, that when the historians in future look back, the impression they will get is, that in the last six years the democracy has been destroyed in India without even a formal emergency and that the Supreme Court had a particular role in the said destruction and the last four Chief Justices of India had more particular role in the said destruction.”
It further holds: “It is clear, that the criticism is against the entire Supreme Court and the last four CJIS. The criticism is not against a particular judge but the institution of the Supreme Court and the institution of the Chief Justice of India. The impression that the said tweet tends to convey is that the judges who have presided in the Supreme Court in the period of last six years have particular role in the destruction of Indian democracy and the last four CJIS had a more particular role in it.”
The court says: “We do not want to go into the truthfulness or otherwise of the first part of the tweet, inasmuch as we do not want to convert this proceeding into a platform for political debate. We are only concerned with the damage that is sought to be done to the institution of administration of justice. In our considered view, the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law.”
In the light of the court’s ruling that Prashant Bhushan’s tweets were an “attempt to shake the very foundation of constitutional democracy” which “has to be dealt with an iron hand”, it may be safe to define the offence of criminal contempt under Section 2(c) (i) of the Contempt of Courts Act as anything that angers or infuriates an Indian judge just sufficiently enough for the judge to rule that it “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court”. Prashant Bhushan now joins E.M.S. Namboodripad and Arundhati Roy in a list of public personalities whose speeches, writings and tweets have so scandalised the nation’s highest courts that the courts have felt compelled to restore their authority by writing judgments of conviction. How exactly is a court scandalised? Conversely, how is a citizen to know that he has not scandalised a court? Let us start from the beginnings of the laws of Criminal Contempt of Court.
THE ORIGIN OF CONTEMPT JURISDICTION
The power to punish for contempt has its origins in English common law. Contempt jurisdiction in England was originally limited to “contempt in the face of the court”. This is concerned with such behaviour in the courtroom, or in its vicinity, which interfered with the proper administration of justice. Contempt power was also exercised to punish parties who were guilty of disobeying court orders.
The phrase “scandalising the court” is incapable of precise definition. However, precedent shows that the offence is committed when “free comment, becomes too free in the opinion of a judge”. The phrase was first used in the 1742 case of Roach vs Garvan. In Roach, Lord Hardwicke convicted an editor for impugning the characters of witnesses. An argument that such a matter was best left to a libel suit was rejected. Hardwicke stated that courts must punish publications that result in “prejudicing mankind against persons before the case is heard” and that they must do so to “keep the streams of justice clear and pure”.
The law on scandalising the court as it currently exists has its origins in the 1765 case of Rex vs Almon. A judgment was never delivered in the case itself. Justice Wilmot’s opinion in the case was published many years later by his son in 1802. It forms the foundation of the modern doctrine of contempt for scandalising the court.
Wilmot argued that the purpose of contempt law was “to keep a blaze of glory around judges”. He observed: “The arraignment of the justice of the judges is arraigning the King’s justice.” It “excites in the minds of the people a general dissatisfaction with all judicial determinations… and whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice”. He stated that contempt law was necessary “not for the sake of the judges as private individuals, but because they are the channels by which the King’s justice is conveyed to the people”.
For more than 100 years thereafter, contempt power was almost never resorted to in England. Despite it being rarely invoked in England/united Kingdom itself, prosecutions for contempt continued in the colonies. In India, Devdas Gandhi, the youngest son of Mahatma Gandhi and the editor of Hindustan Times, was imprisoned for contempt in view of certain articles that had been published in the paper. He was fined Rs.1,000 or in default ordered to undergo a month's imprisonment. He refused to pay a fine. The Appellate Court refused a stay pending an appeal, and Gandhi had already served his prison sentence by the time his appeal was allowed.
Editors in some other colonies were luckier. In Ambard vs Attorney-general for Trinidad and Tobago, the court was concerned with an article in The Port of Spain Gazette. The article criticised the discrepancy between the sentences given in two apparently similar cases. It suggested that the discrepancy was due to human differences between the judges with regard to sentencing. Allowing the editor’s appeal to the Privy Council, Lord Atkin observed: “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
ABOLITION OF CONTEMPT BY SCANDALISING THE COURT IN ENGLAND
In 1968, after a gap of many years, English courts invoked their contempt jurisdiction. Quintin Hogg, a Member of Parliament (he would go on to become Lord Chancellor Hailsham) wrote an article in the magazine Punch, criticising a judgment of the Queen’s Bench Divisional Court. In his opinion for the Court of Appeal, Lord Denning
declared that contempt jurisdiction would not be used to uphold the dignity of the courts. “That must rest on surer foundations,” wrote Denning. He went on to write that critics of judges must be mindful of the fact that the judges could not respond to their criticism and could vindicate themselves only through their conduct.
In 1974, the Phillimore Committee recommended reforms that significantly watered down the existing law on contempt in England. Eventually, the Law Commission of the United Kingdom recommended that the offence of scandalising the court be abolished. The offence was therefore abolished in 2013.
In India, however, the Constitution contains a provision listing laws relating to contempt of court as a reasonable restriction on the fundamental right of free speech and expression. The offence of “scandalising the court” had been given statutory basis through the Contempt of Courts Act of 1971.
The framers of our Constitution did not originally envisage contempt as a restriction on free speech. The interim report on fundamental rights (1947) contained no reference to contempt. The Draft Constitution of 1948 did not mention contempt either. An amendment introducing contempt as a restriction on free speech was introduced on October 17, 1949. It is relevant to note that the amendment was introduced during the 15th month of discussions in the Assembly, a month before the Constitution would eventually be adopted and a year after the free speech clause of the Constitution had been discussed, and to the minds of some members, finalised.
Introducing the amendment, T.T. Krishnamachari argued that the rationale of the amendment “….was to cover one category of what might be called lapses in the exercise of freedom of speech and expression, namely, a person might be speaking on a matter which is sub judice and thereby interfere with the administration of justice”. He further argued that it was never the intention of the drafting committee “to allow contempt of court to take place without any let or hindrance”. Krishnamachari added that the amendment did not extend the scope of limitations on free speech. It was only remedying a lacuna. He also argued that the power to punish for contempt was “a very necessary protection”.
Most members who entered the debate argued against the introduction of contempt as a restriction to free speech. The most trenchant opposition came from R.K. Sidhva, who argued that High Court judges were not infallible and that comment against judges was necessary in the interest of public life. He also pointed out the procedural anomaly in contempt trials stating that “the
High Court judge is the prosecutor and he himself sits and decides cases in which he himself has felt that contempt of court has been committed”. Sidhva also questioned whether any other Constitution in the world provided for a provision on contempt. He argued that such a provision would put the “judge above everybody” and “make him a Super God”.
B. Dass protested against the last-minute change to fundamental rights and characterised it as “the tyranny of the drafting committee”. He also wondered if fundamental rights, which were passed by the house with “real solemnity” and “after great consideration”, could be changed overnight. Arguing against the provision itself, Dass stated that the power to punish for contempt would be used by “penniless lawyers who became judges to regulate and control affairs”.
The debates in the Constituent Assembly reveal that contempt as a restriction on free speech was originally envisaged for cases where speech was intended to unfairly influence the outcome of a sub-judice matter. However, early contempt jurisprudence shows that Indian courts regularly invoked contempt powers in cases concerning “scandalising the court”. The doctrine was given statutory basis through the Contempt of Courts Act, 1971, which holds that speech that “scandalises or tends to scandalise a court” amounts to contempt.
CONTEMPT AND THE COURTS OF INDIA
Over the years, various types of conduct and speech have been deemed to be contemptuous. This piece can only give a flavour of some of the cases. Perhaps the earliest instance of the Supreme Court taking action against what it perceived to be a contemptuous publication happened in 1952. The Times of India had published an article titled “A Disturbing Decision”. The piece criticised the Supreme Court for having ended the “dual system” of practice at the Bombay and Calcutta High Courts. It stated: “Politics and policies have no place in the pure region of the law” and implied that the court may have acted out of “extraneous considerations”. The court held that the imputation of improper motives to a judge had a “clear tendency to affect the dignity and prestige of the court” and found the editors to be guilty of contempt.
Another notable instance of contempt arose in November 1967. In a speech, E.M.S. Namboodiripad, the former Chief Minister of Kerala, accused Indian judges of being guided by class interests and prejudice. He also argued that they decided cases in favour of the “welldressed”, “pot-bellied, rich man” and that the law and the judiciary served the exploiting classes. The Kerala High
Court found Namdoodiripad guilty of contempt and imposed a fine of Rs.1,000 on him. In appeal, the Supreme Court reduced the fine to Rs.50 but held that Namboodiripad was “guilty of a great calumny”. The court also held that contempt could be committed not only in respect of a particular judge, but also in respect of the entire judicial system.
In October 1969, the Supreme Court decided a service dispute in favour of the State of Uttar Pradesh and against one O.P. Gupta. Following the judgment, Gupta published a pamphlet inter alia stating that the judges had passed “a demonstrably dishonest judgment which cannot fail to show to any discerning person that he did so only to feed fat his prejudice and bias”. Some members of the Bar found him distributing these pamphlets in the court library and made a complaint of the same to the court. In March 1971, the Constitution Bench of the court found Gupta guilty of contempt, holding that an attack such as the one made would undermine the confidence of the public in the judiciary. The court held that the law of contempt was a reasonable restriction on the right of free speech. Later that year, Parliament enacted the Contempt of Courts Act, 1971, which includes Section 2 (c) (i) which has already been quoted.
Not all contempt proceedings have ended with a finding of guilt. P.N Dua vs P. Shiv Shankar concerned a case where Union Law Minister P. Shiv Shankar had made a speech stating that the Supreme Court was “composed of the elements from the elite class” and “had their unconcealed sympathy for the haves i.e. the Zamindars”. He also referred to the judges as “antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries”. The court held that Shiv Shankar was not guilty of contempt, though his speech was a “little intemperate”.
In Hari Singh Nagra vs Kapil Sibal, the court was seized of a publication, where Sibal had written that judges were corrupt and received “monetary benefits for judicial pronouncements”. He stated that they were guilty of “rendering blatantly dishonest judgments, kow-towing with political personalities and obviously favouring the government and thereby losing all sense of objectivity”. A petition seeking initiation of contempt proceedings was filed before the Supreme Court by some advocates of the Punjab and Haryana High Court. The court held that Sibal was not guilty of contempt. It observed that Sibal’s “message is nothing but concerns of a senior advocate who has practised long in this court who noticed that the public image of the legal community was its nadir”. The court went on to hold that “the article is an expression of opinion about an institutional pattern. The article by itself does not affect the administration of justice.”
In finding Sibal not guilty of contempt, the bench took into his account his standing at the Bar and the fact that he had articulated his concern about the institution. The same indulgence has not been shown to Prashant Bhushan. On August 20, the court insisted on granting him time to file an unqualified apology if he so desired.
At the time of going to press, Prashant Bhushan has not filed an apology. He has asserted: “I have made the statements bona fide and pleaded truths with full details, which have not been dealt with by the court. If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem.”
Whether Prashant Bhushan suffers a sentence of imprisonment or not after these proceedings is irrelevant. His case has told the country how limited its freedom of speech and expression is when speaking or writing about the highest judiciary in this country. It may be well argued that the definition of criminal contempt by scandalising a court is vague, overboard and likely to be struck down as unconstitutional, as was the case in Shreya Singhal, in which the Supreme Court struck down Section 66A of the Information Technology Act. However, this Section 2 (c) (i) has continued to be in the statute books for almost five decades and has been invoked by courts on multiple occasions. Power is delightful and absolute power is absolutely delightful.
In the 1964 case of Jacobellis vs Ohio, while defining hard-core pornography in the context of a film, Justice Potter-stewart of the United States Supreme Court wrote: “I know it, when I see it and the motion picture involved in this case is not that.” Ever since, judicial humorists seized upon the phrase, “I know it when I see it” to define pornography as anything that sexually aroused a judge. In 1981, Justice Stewart commented, “In a way I regret having said what I said about obscenity—that’s going to be on my tombstone. When I remember all of the other solid words I’ve written, I regret a little bit that if I’ll be remembered at all I’ll be remembered for that particular phrase.”
The Prashant Bhushan judgment is, similarly, a case of “I know it when I see it”. Let history be the final judge of which side of the court, Bar or bench has increased or lowered its authority. m Sanjay Hegde is a Senior Advocate in the Supreme Court of India. He acknowledges research assistance for this article from Advocate Pranjal Kishore.