“No one can change you unless you are ready to be changed.”
With the recent verdict pronounced on the eve of 74th Independence Day in the case of In Re: Prashant Bhushan & Anr, upholding the alleged contemnor Mr. Prashant Bhushan guilty of having committed criminal contempt of Supreme Court of India, the law of contempt of courts once again assumed immense social and political significance. The most significant part of this case was the drama played at the later stage. Supreme Court gave time to think over so that Prashant Bhushan can extend an unconditional apology. But Prashant Bhushan refused and recalled Mahatma Gandhi ji without comparing himself to Gandhi ji. Today, the Supreme Court again queried as to what is the harm in apologising and the counsel of Bhushan, learned Mr. Rajeev Dhavan tried to convince the court that it should not make Bhushan a Martyr and show the gesture of ‘statesmanship’. Now the court has reserved the judgment.
Against this backdrop, an attempt has been made through the write up to remove the grey areas of Criminal Contempt of Court. The arbitrary and whimsical use of constitutional power has always created a crisis. Everyone is apprehended with the authoritarian use of power by the most important institution of democracy. The informed citizenry is wondering that ‘Yesterday, it was Arundhati, today, it is Prashant Bhushan, and tomorrow it may be any xyz’. Simultaneously it is worth noticing that the same court considered P.N.Duda’s sweeping allegations against the Supreme Court as his personal feelings and did not held him guilty.
Once again the opinion expressed by Rajeev dhavan in 2002 has become relevant in 2020. “The judiciary’s power to punish those who malign it is a moody jurisdiction which is often, indifferently and indiscriminately applied. The procedure is arbitrary. The results uneven. Judges throughout the ages have used this power as they have felt some with statesmanship, others waywardly” (Dhavan, 2002).
The law of contempt of court, as developed and interpreted by the judiciary, has taken a very pejorative approach and has almost become dysfunctional in view of its onslaught on the fundamental right of freedom of speech and expression in all its extended and expanded form enshrined under the Constitution of India. The law of Criminal Contempt of Court has focused on its history specific totalitarian design which cuts at the very root of an accountable judiciary and democratic governance.
Once again a question is being murmured by many that up to when the Supreme Court will keep relying on the judgment delivered in the case of R. V. Almon in the year 1765. When will the court understand that it is neither a case of men’s allegiance to the law which is shaken nor a case of dangerous obstruction of justice rather an expression of opinion under the guaranteed fundamental rights of the Indian Constitution? On the issue of punishment, it can be noticed that the judges are quite satisfied with condemners’ unconditional apology.
If they have to inflict punishment, they can impose any punishment as per their satisfaction. Right from symbolic punishment of one-day imprisonment to any other period of punishment prescribed in the statute. However, it is submitted that if the court really want to impose symbolic punishment it can order for imprisonment till the court rises.
Here it is also pertinent to note that the countries wherein the idea of contempt of court originated have witnessed considerable dilution and amendments in the law due to the rise of democratic aspirations and expectations, the establishment of various democratic institutions, and reinforcement of human rights with emphasis on human autonomy and dignity.
In the United Kingdom, an attempt has been made to bring the English Law in tune with the European Convention on Human Rights through the Contempt of Court Act, 1981. In both, civil and common law systems, judges have observed that criticism of the judiciary should be dealt as an occupational hazard. It has been a shared judicial and statutory conviction of other democratic legal institutions that contempt jurisdiction should never be used as a means to uphold the dignity of judges. The authority and reputation of courts are not so frail that their judgments need to be shielded from criticism.
In India also several attempts have been made by the Parliament to make judges accountable for their unwarranted indulgence and sometimes undue interest taken in particular subject matters. The Law Commission and the Constitutional review committee grappled with the problem.
Now the time is ripe to realize that the present law of contempt is of a colonial vintage and so are our courts. Like American Courts, the Indian courts also will have to adjust themselves according to the democratic ethos of the Constitution and the values of free speech and expression and other fundamental rights.
A certain suggestion based on research by the author in her Ph.D on Contempt of Court, Democracy and Judicial Accountability, later published in a book entitled Contempt of Court and Freedom of Speech Exploring Gender Biases can be put forward to be accepted, adopted and implemented if we really don’t want to stifle Democracy Sans Emergency.
Cases of contempt of court should be tried by a larger bench to minimize subjectivism. It may be submitted here that the French system may be seriously considered where juries are mixed one. They have nine lay members and three professional, that is, judges. A conviction requires the support of at least eight out of 12 members.
As a group of people, legally vested with the power to deprive a person of liberty, judges need to set an example of great restraint. If abuse of authority comes from the executive branch or anywhere else, people can turn to the judiciary to correct it. However, if the abuse emanates from the hands of the judge, people have nowhere else to turn. Consequently, judges must exercise such awesome power with the highest possible degree of civility.
The basic principle of natural justice, nemo debet esse judex in propia causa i.e. no one should be the judge in his own cause, must be applied to contempt proceedings as well. A particular bench of the court that accuses a person of acting in contempt should not hear the contempt case and pronounce a verdict. The contempt cases should be dealt with by other judges.
At last, it is submitted that the following amendments must be done in the Constitution of India and the Contempt of Court Act, 1971 respectively. Under Article 19(2) an explanation should be added regarding contempt in the following manner; explanation: “Contempt of Court” means civil contempt or criminal contempt. “Civil Contempt” means willful disobedience of court order. “Criminal Contempt” means obstruction of justice. Provided that in a matter of contempt anything done based on truth shall not be treated to be contempt of court.
In the Contempt of Court Act, 1971 section 2 ‘c’ may run as; “Criminal Contempt” means obstruction of justice which includes; i) any act which is done knowingly to interfere with the course of justice in a particular legal proceeding, or ii) misbehavior of any person in the presence of the court or so near thereto as to obstruct the administration of justice.
It can be concluded with the words of Justice V.R.Krishna Iyer that the legal transformation in our value system on the inauguration of the Constitution, and the dogmas of the quiet past must change with the challenges of stormy presents.