Constitutionality of Contempt Laws in light of Article 19(1)(a)
By Anuli Mandlik
Since the contempt case against senior counsel Prashant Bhushan, there has been a heated debate regarding the constitutionality of contempt laws in India. In this article the author briefly discusses the origins of contempt laws and the current legislation governing contempt in detail. Further, the author assesses the co-existence of the current contempt laws with Article 19(1)(a) of the Constitution of India while discussing the Prashant Bhushan case at length.
Keywords: Contempt, Contempt of Courts Act, Article 19(1)(a), Prashant Bhushan
Most contempt laws that exist today have colonial roots. While some had racial undertones, most were blatantly oppressive. The lawmakers of the colonial era had a bigoted view of the native subjects, considering them to be highly impressionable and unstable imbeciles who were incapable of reacting to criticism towards the oppressors without being aggressive and violent. Hence, they believed that there was a dire need to tame them by enforcing punishments for contempt.[i] The current contempt laws are nothing but colonial continuity.
The phrase “Contempt of court” dates back to the 12th century (English law),[ii] however it has still not been defined in a palpable and comprehensive manner owing to the nature of it. The literal meaning of contempt is disdain or disrespect and contempt of court by corelation would mean disrespect or disobedience towards the court thereby obstructing and interfering with the raison d’être of the Court i.e. the administration of justice.
Current Legislation Governing Contempt of Court
I. Contempt of Courts Act.[iii]
In India, the law pertaining to contempt has been largely covered by the Contempt of Courts Act, 1971 (“Act”). Although, it does not provide a definition for contempt of court, it does mention two types of contempt, civil and criminal contempt. Civil contempt refers to the wilful disobedience of the court while criminal contempt refers to any act or publication which: (i) ‘scandalises’ the court, or (ii) prejudices any judicial proceeding, or (iii) interferes with the administration of justice.
The first sub-point under the criminal contempt definition, scandalisation of the court, has been highly criticized and the law commission has even been asked to do away with that part of the definition by the Department of Justice.[iv] Despite this law being a remnant of British colonialism, the irony is that it has already been abolished in the UK[v] in 2012 and several other commonwealth countries as well. The Indian Judiciary, however, continues to entertain several criminal contempt cases (568 pending in High Courts as per the Supreme Court report),[vi] while the last criminal contempt case in the UK was in the year 1931,[vii] almost a century ago.
The punishment prescribed for contempt of court is simple imprisonment up to six months or a fine of up to two thousand rupees or both. In some cases, even an apology has sufficed.
Defence against contempt
There are several defences that can be taken against civil and criminal contempt like fair criticism, innocent publication, fair and accurate report, vague orders, substantial compliance of the order and so on. A new defence against criminal contempt was added to the Act after the 2006 amendment which is the truthfulness, veracity and factual correctness of the statements.
II. Constitutional Provisions
The contempt powers of the higher courts are drawn directly from the Constitution itself. These are:
- Articles 19(1)(a)[viii] and 19(2)[ix] – These Articles relate to the freedom of speech and the restrictions imposed there upon, respectively.
- Article 129[x] – This Article declares the Supreme Court as a Court of Record and further confers upon it all the powers that a court as such must have, including the power to punish for its own contempt.
- Article 215[xi] – This Article states that the High Court is a Court of Record. Furthermore, just as Article 129 bequeaths on the Supreme Court, the power to punish, Article 215 bestows the same power on the High Court.
- Article 227[xii] – This Article provides for the superintendence of the High Courts over all subordinate courts. Although, the Article does not explicitly posit the High Court’s right to initiate contempt proceedings on behalf of the lower courts/tribunals, it is an established postulate to do so.
- Article 142[xiii] – This Article sets forth that the powers of the Supreme Court are inherent and complementary to any statute, these powers exist independent of the statutes.
Contempt of Court and Article 19(1)(a)
“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.” – George Washington
Article 19(1)(a) of the Constitution envisages the right to freedom of speech and expression, however, this right is not absolute. The very next Article, 19(2) places “reasonable restrictions” on the former. A person should have the right to express their true aspirations and beliefs, even criticisms against any institution including the Judiciary.[xiv] Regrettably, people do not feel at liberty to freely speak out their minds while expressing contentious opinions due to the fear and apprehension of being penalized under contempt of court,[xv] better known as the “chilling effect doctrine”.[xvi] This doctrine wherein an individual self-censors fair criticism, mainly stems from the vague provisions of the Act and the inconsistent and mercurial judgments of the Courts. For instance, on January 2018, the four senior-most Judges of the Supreme Court held an unprecedented conference warning people about the endangerment to democracy while openly criticizing the erstwhile Chief Justice of India (“CJI”). This was astonishingly not termed as contempt. However, in 2019, a lawyer’s comments, during arguments, on the prevalence of nepotism in designation of Senior Advocates, was termed as contempt of court, and the lawyer was debarred from practicing in the Supreme Court for one year and handed with a suspended sentence of three months in jail.[xvii]
Owing to the recent events that have taken place regarding Senior Advocate, Prashant Bhushan, the constitutionality of contempt laws and their co-existence with Article 19(1)(a) is yet again under heavy scrutiny. In August 2020, in the suo moto contempt proceedings initiated by the Supreme Court against Mr. Bhushan,[xviii] the Court held Mr. Bhushan guilty in regard to two tweets made by him in June, 2020. The first tweet was criticizing the current Chief Justice, Justice Sharad Arvind Bobde for ‘riding’ a high-end motorcycle, during the lock down, without a mask or a helmet. In his second tweet, he makes some bold statements about the last four CJIs, stating that they along with the Supreme Court had a particular role to play in the destruction of democracy in India in the past 6 years.
Mr. Bhushan submitted an exhaustive and detailed reply addressing all the facets of the issue, setting out the facts which had led him to have those opinions. He posits that his statements might have been outspoken and unpopular but could never constitute contempt. The remarks were his honest and bona fide expressions.[xix]
It was very disheartening that in its 108-page judgement, the Court, instead of categorically examining each constituent of Mr. Bhushan’s reply, held:
“An attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand. The tweet has the effect of destabilising the very foundation of this important pillar of the Indian democracy.”[xx]
Lawrence Liang has said that the ‘democracy argument’ used by Courts has been reduced to almost a “normative cliché”.[xxi] The irony is that if the Court is incapable of accepting fair criticism, as apparent from this case then that in itself is the destruction of democracy.
Subsequently, the Supreme Court imposed a fine of one rupee failing which Mr. Bhushan would be imprisoned for a term of 3 months and debarred from practice for three years.
Mr. Bhushan, at a webinar,[xxii] made some astute observations:
“In this the judge acts as accuser, prosecutor and as a judge”
This power to punish for contempt has been abolished in most countries because it is archaic and prima facie a violation of the principle of natural justice, “nemo debet esse judex in propria causa” (No man should be a judge in his own cause).
As far as the constitutionality of contempt laws is concerned there cannot be a straight answer. It is undisputed that the existence of civil contempt is crucial but the same cannot be said about criminal contempt. Judges have misused contempt laws in their personal favour to revive self-esteem and satisfy their egos, however, contempt laws cannot conclusively be termed as redundant. As we know, the judiciary is the strongest pillar of democracy. Hence, for democracy to exist, trust and faith of the people in the judiciary is imperative.
Contempt laws are a requisite in the smooth functioning of any democracy however it is a weapon that must be used sparingly. While most countries have toned down this bygone law, the Supreme Court of India is trying to expand its scope. There is a dire need for India to lax its contempt laws before the freedom of speech is but only a relic of the past.
[I] Sujit Choudhry & Madhav Khosla & Pratap Bhanu Mehta, The Oxford Handbook Of The Indian Constitution 845 (2016).
[ii] M.Karnikka, Law Regarding Contempt of Court, Lexlife India (June 6, 2020, 9:22 AM), https://lexlife.in/2020/06/06/law-regarding-contempt-of-court/.
[iii] The Contempt of Courts Act, 1971, No. 70, Acts of Parliament, 1971 (India)
[iv] Krishnadas Rajagopal, Reviewing the Contempt of Courts Act, The Hindu (Apr. 20, 2018, 12:15 AM), https://www.thehindu.com/opinion/op-ed/reviewing-the-contempt-of-courts-act/article23606610.ece
[v] Crime and Courts Act, § 33 (2013)
[vi] Law Commission of India, Report No. 274, 56 (Apr. 2018), http://lawcommissionofindia.nic.in/reports/Report274.pdf
[vii] R. v. Colsey, Ex parte Director of Public Prosecutions, The Times, May 9, 1931
[viii] INDIA CONST. art. 19, cl. 1
[ix] INDIA CONST. art. 19, cl. 2
[x] INDIA CONST. art. 129
[xi] INDIA CONST. art. 215
[xii] INDIA CONST. art. 227
[xiii] INDIA CONST. art. 142
[xiv] S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCR 204 (India)
[xv] “I have the right to criticize any judgment of any court that I believe to be unjust … I hope that each time I exercise these rights I will not be dragged to court on false charges and forced to explain my action.” Arundhati Roy in her reply affidavit to the Supreme Court of India”, In Re: Arundhati Roy (2002) 3 SCC 343
[xvi] Gautam Bhatia, The Chilling Effect in India, Indian Constitutional Law and Philosophy (Dec. 5, 2013, 11:30 AM), https://indconlawphil.wordpress.com/2013/12/05/the-chilling-effect-in-india/
[xvii] In Re: Mr. Mathews Nedumpara (2019) SCC OnLine SC 824
[xviii] In Re: Prakash Bhushan (2020) SCC OnLine SC 588
[xix] Mr. Prashant Bhushan’s affidavit in reply, accessible at (https://www.livelaw.in/pdf_upload/pdf_upload-379389.pdf)
[xx] Id. at 16.
[xxi] Sujit Choudhry & Madhav Khosla & Pratap Bhanu Mehta, The Oxford Handbook Of The Indian Constitution 844 (2016).
[xxii] “Freedom of Speech and The Indian Judiciary” organised by the Foreign Correspondents’ Club of South Asia.
(The author is a student at Rizvi Law College, Mumbai. All views are personal.)