Contempt of court against lawyer Prashant Bhushan shows intolerance against criticism

Context:

Last week, the Supreme Court of India suo motu registered a case of contempt against lawyer Prashant Bhushan.

He stands accused of the Criminal contempt. 

What was the case?

The court registered the proceedings after a petition was moved citing two tweets Bhushan had published over the last two months.

In the tweets, the lawyer had commented on Chief Justice of India SA Bobde and about the general functioning of the court under the last four chief justices.

The court said it found the tweets prima facie contempt.

What is Contempt?

The contempt of court law is one of the most controversial elements in the Indian legal context.

While the basic idea of a contempt law is to punish those who do not respect the orders of the courts, in the Indian context, contempt is also used to punish speech that lowers the dignity of the court and interferes with the administration of justice.

Contempt of court can be of two kinds:

Civil, that is the willful disobedience of a court order or judgment or willful breach of an undertaking given to a court.

Criminal, that is written or spoken words or any act that scandalises the court or lowers its authority or prejudices or interferes with the due course of a judicial proceeding or interferes/obstructs the administration of justice.

Relevant provisions:

Article 129 and 215 of the Constitution of India empowers the Supreme Court and High Court respectively to punish people for their respective contempt.

Section 10 of The Contempt of Courts Act of 1971 defines the power of the High Court to punish contempts of its subordinate courts.

The Constitution also includes contempt of court as a reasonable restriction to the freedom of speech and expression under Article 19along with elements like public order and defamation.

Why courts need contempt powers?

To ensure their orders are implemented.

To sustain the independent nature of the judiciary itself.

While the judiciary issues orders, they are implemented by the government or private parties. If the courts are unable to enforce their orders, then the rule of law itself will come to grinding halt.

Issues with Contempt Law:

Article 19(1)(a) of the Constitution gives the right to freedom of speech and expression to all citizens, while “contempt provisions” curb people’s freedom to speak against the court’s functioning.

The law is very subjective which might be used by the judiciary arbitrarily to suppress their criticism by the public.

Analysis of Bhushan’s case:

The suo motu contempt proceedings initiated by a bench of the Supreme Court against Mr. Bhushan constitutes an abuse of the court’s contempt jurisdiction, which—for good reason—is to be exercised sparingly and with circumspection.

It is because, according to some experts, there is nothing in Mr. Bhushan’s tweets that qualify as contempt of Court.

  • His tweets are an exercise of his fundamental right under Article 19 (1) (a) to freely express himself by way of comment and criticism on the conduct of the CJI as a private citizen.
  • Also, these tweets in question appear to be in the realm of perception and comment and don’t seem to have transgressed into contempt. The general principle on contempt is that one can criticise a judgment but you can’t attribute motives to the judge.

Conclusion:

A law for criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right.

An excessively loose use of the test of ‘loss of public confidence’, combined with a liberal exercise of suo motu powers, can be dangerous, for it can amount to the Court signalling that it will not suffer any kind of critical commentary about the institution at all, regardless of how evidently problematic its actions may be.

In this manner, the judiciary could find itself at an uncanny parallel with the executive, in using laws for chilling effect.

What needs to be done?

Besides needing to revisit the need for a law on criminal contempt, even the test for contempt needs to be evaluated.

  • If such a test ought to exist at all, it should be whether the contemptuous remarks in question actually obstruct the Court from functioning.
  • It should not be allowed to be used as a means to prevent any and all criticism of an institution.

Contempt laws in other countries:

Already, contempt has practically become obsolete in foreign democracies, with jurisdictions recognising that it is an archaic law, designed for use in a bygone era, whose utility and necessity has long vanished.

  1. Canada ties its test for contempt to real, substantial and immediate dangers to the administration.
  2. American courts no longer use the law of contempt in response to comments on judges or legal matters.
  3. In England, the legal position has evolved.

Prelims Link:

Powers of SC vs HCs wrt Contempt cases.

Constitutional provisions in this regard.

Changes brought about by Contempt of Courts (Amendment) Act, 2006.

Civil vs Criminal contempt.

Rights under Article 19.

Section 10 of The Contempt of Courts Act of 1971 is related to?