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Insights into Editorial: A motorcycle and the art of court management

 

ED_29-7

 

Context:

Supreme Court chose to take umbrage to the tweets “brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution and the office of the Chief Justice of India in particular”.

Its response to these tweets was to initiate suo motu proceedings for criminal contempt against the author of those tweets, the lawyer and social activist, Prashant Bhushan.

SC initiated the proceedings for criminal contempt of court against lawyer-activist Prashant Bhushan for his tweet criticising the current Chief Justice of India and the role of some Chief Justices of India in the last six years.

What does contempt of court means:

The Contempt of Courts Act of 1971 is one of the most powerful statutes in the country.

It gives the constitutional courts wide powers to restrict an individual’s fundamental right to personal liberty for “scandalising the court” or for “wilful disobedience” of any judgment, writ, direction or order.

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 wilful disobedience of a court order or judgment or wilful 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.

Definition of criminal contempt in India is extremely wide:

The objective for contempt is stated to be to safeguard the interests of the public, if the authority of the Court is denigrated and public confidence in the administration of justice is weakened or eroded.

But the definition of criminal contempt in India is extremely wide, and can be easily invoked.

Suo motu powers of the Court to initiate such proceedings only serve to complicate matters.

And truth and good faith were not recognised as valid defences until 2006, when the Contempt of Courts Act was amended.

Nevertheless, the Delhi High Court, despite truth and good faith raised as defences, proceeded to sentence the employees of Mid-Day for contempt of court for portraying a retired Chief Justice of India in an unfavourable light.

Punishment for Contempt of Court:

The Supreme Court and High Courts have the power to punish for contempt of court, either with simple imprisonment for a term up to six months or with fine up to Rs. 2,000 or with both.

In 1991, the Supreme Court ruled that it has the power to punish for contempt not only of itself but also of high courts, subordinate courts and tribunals functioning in the entire country.

On the other hand, High Courts have been given special powers to punish contempt of subordinate courts, as per Section 10 of the Contempt of Courts Act of 1971.

Constitutional Provisions:

Article 129: Grants Supreme Court the power to punish for contempt of itself. Article 215: Grants every High Court the power to punish for contempt of itself.

Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.

However, the expression ‘contempt of court’ has not been defined by the Constitution.

Contempt Law conflicting with Constitution provided 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.

Conclusion:

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

Unfortunately, in a system in which judges are not expected to disclose the reason for recusing themselves, and even charges of sexual harassment are not credibly investigated, it is only the fear of scandalising the judiciary that restrains much of the media and the public from a more rigorous examination of the functioning of the judiciary.

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.

In contemporary times, it is more important that courts are seen to be concerned about accountability, that allegations are scotched by impartial probes rather than threats of contempt action, and processes are transparent.