By: Tanishk Goyal
The insulation of India’s higher judiciary from democratic accountability has been one of the fundamental failures of contempt law in India. It is this immunity which has paved the way for arbitrariness to step in, which in turn has led the individual judges to believe in their own infallibility, while stifling any criticism which comes their way, in the name of criminal contempt. The curbing of such dissent has primarily threatened the counter-majoritarian character of the institution. Furthermore, the immunity has undermined the integrity of the seat of justice, the criminal contempt of which is condoned, if it is done by a judge of the higher judiciary, thus, compromising the indivisible concept of Justice envisaged by our Constitution makers. While contempt laws have already been looked through a free speech perspective, I seek to analyse them through a perspective, where such immunity and undefined powers have made the judiciary usurp the role of the executive and arbitrarily exceed authority, without being held accountable for it. I suggest a framework, which harmoniously construes the Contempt of Courts Act, 1971 with the contempt provisions in the Constitution of India, thus placing the seat of justice of the lower and higher judiciary, at an equal pedestal when it comes to matters of criminal contempt.
The lack of concrete jurisprudence regulating the relationship between criminal contempt of the seat of justice and the contempt of the sagacity of individual judges who adorn that seat has created a lacuna in the social and legal ethos of this country. It has created a wave of uncertainty amongst the bar and the masses alike, who, ever so often, knowingly or unknowingly succumb to the narrative, that upholding the integrity of the seat of justice follows from the inherent immunisation of individual judges from public scrutiny or criticism and anything which vitiates their individual dignity necessarily qualifies as contempt of court. Another aspect of this uncertainty is that the Judges of the Courts of Record, as opposed to Judges of the lower judiciary, cannot be held to be in contempt of their own courts. This was amply illustrated in the case of C.S. Karnan, where the Supreme Court had to suo moto initiate the contempt proceedings against a High Court judge, under Article 129, because he could not be held to be in contempt of his own court. It is due to this ambiguity, that the Judges of the Courts of Record are exempted from the purview of the Contempt of Courts Act, 1971, ( hereinafter ‘the Act’) which ostensibly purports to protect the administration of justice, while conveniently disregarding the fact that Justice is an indivisible concept. Whereas, the Act of 1971, and the Supreme Court through its various opinions have helped curb this uncertainty, the ambiguity regarding, inter-alia, what constitutes criminal contempt of court, who exercises immunity from it, and the extent till which the undefined powers of contempt in Courts of Record can be stretched, or curbed, may not be easy to circumvent.
In order to address this ambiguity, the author apprises the reader of the arbitrary nature in which the Act has been invariably used by individual judges to curb criticism and dissent, and how this arbitrariness is antithetical to the character of the Supreme Court which was established as a counter-majoritarian institution. The author later stresses upon the fact, that exempting the judges of Courts of Record form the purview of the Act, essentially insulates them from judicial accountability, an immunity which is not granted to the judges of the lower judiciary. The author concludes by suggesting a framework that ensures that the Judges of the High Courts and the Supreme Court are brought within the purview of the Act, and which prevents such usurpation of the role of the executive by the judiciary.
THE ARBITRARY USE OF THE CONTEMPT OF COURTS ACT, 1971
The Act of 1971, was brought in to uphold the majesty of the courts, and to command respect for the judiciary. However, it is observed that these contempt powers are invariably used by judges in a manner that protects them rather than protecting the seat of justice. This arbitrariness is illustrated on two levels.
Stifling Dissent in the Name of Criminal Contempt
In the case of The Registrar General v. Smti. Patricia Mukhim, a judge of the Meghalaya High Court, initiated contempt proceedings against a journalist because she had allegedly used social media to suggest that the Judge, who was on the verge of retirement, was passing orders which were self-serving in nature. The threshold for establishing criminal contempt was disregarded by the Judge, inasmuch as his judgment did not even mention why the content posted by the journalist was derogatory in nature. Similarly, in the Mid Day Newspapers Case, the court went on to deny truth as a defense, without any reason whatsoever, despite the fact that the Act had been amended to admit the same.
In the case of Kamini Jaiswal v. UOI, the court said that objecting to the Chief Justice exercising his administrative power to list a case in which he was potentially implicated, or asking a judge to recuse himself from hearing a matter in which he was potentially implicated, amounted to criminal contempt. In Re Arundhati Roy, the Supreme Court initiated contempt proceedings against the author, merely because she termed some of its actions as hasty and said that the petitioners were using the good offices of the Supreme Court to stifle dissent. It is interesting to note that the contempt proceedings stemmed from Roy’s stance against the majority judgment in the Narmada Dam case. This decision threatened the character of the Supreme Court as a counter-majoritarian institution, inasmuch as, it held to be contemptuous, the very essence of dissent, which was the cornerstone of its counter-majoritarian character.
The Vagueness in Determining What Scandalises the Court
The arbitrariness is also amply illustrated by the fact, that Indian jurisprudence has still not incorporated a concrete definition of ‘scandalising the court’. After the case of Hari Singh Nagra v. Kapil Sibbal, it has been taken to mean, “a scurrilous attack on the judiciary as a whole which is calculated to undermine the authority of the courts and public confidence in the administration of justice,” a definition which is unreasonable, and creates no intelligible differentia whatsoever. Thus, the absence of a concrete definition of ‘scandalising the court’ further makes its use arbitrary, inasmuch as, it suffers from the vice of vagueness as laid down in the case of Shreya Singhal v. UOI, which laid down the jurisprudence that if it is not clear that in which side of a clearly drawn line, the conduct of a particular party would fall, it would be covered by the vice of vagueness.
JUSTICE AS AN INDIVISIBLE CONCEPT: EXEMPTING JUDGES OF COURTS OF RECORD FROM THE PURVIEW OF §16 OF THE CONTEMPT OF COURTS ACT?
It is pertinent to note that while we speak of the seat of justice to be an indivisible concept, section 16 of the Act, embodies this principle, inasmuch as it holds that even a judge can be accused of the contempt of his own court. However, this position was fundamentally altered when the Supreme Court in the case of State of Rajasthan v. Prakash Chand & Ors, negated this concept for the Courts of Record, thus condoning the contempt of the seat of justice on the mere basis of hierarchy, which in turn is morally and legally indefensible. It held that no action could lie against a Judge of a Court of Record, for a judicial act done by him. This position was reiterated in the case of Shri Harish Chandra Mishra and Ors v. Hon’ble Mr. Justice S. Ali Ahmed, and also in the recent case of Chhitij Kishore Sharma v Mr. Justice Lok Pal Singh. The mere justification given by the courts in doing so was that such immunity is “essential for maintaining the independence of the judiciary and for the strength of the administration of justice.”
This essentially translates to the fact that while the judges of the lower judiciary may be held in contempt of the seat of justice, the judges of the Courts of Record are immune from such contempt, thus implying that the seat of justice of the Courts of Record are at a higher threshold, a narrative which is completely opposite to the indivisible concept of Justice envisaged by our constitution-makers. While doing so, the Supreme Court departs from both the fundamental cornerstones of the concept of justice, i.e. its indivisibility and its independence. The Court compromises on the indivisibility as it creates a difference between the thresholds of accountability of Judges to the seat of justice in the lower judiciary, as opposed to their higher judiciary counterparts. It compromises on the independence, inasmuch as, it insulates the judges from democratic accountability, thus making them assume the role of the executive, in punishing for their own contempt. The misuse of these powers is amply illustrated when judges necessarily usurp executive authority and ban newspapers, curb dissent which has a tendency to scandalise the court, impose disproportionate heavy costs, or suspend the licenses of practicing advocates. These undefined and wide powers of the Judges of the Courts of Record, in the absence of democratic accountability, can bring in anything under the umbrella of “obstruction of administration of justice” as a reasonable restriction, in order to curb dissent, thus undermining the indefeasible right to free speech of the people.
The powers to punish for its contempt vested in the Courts of Record leave too much to the discretion of the Judges in the interpretation of what constitutes criminal contempt. Moreover, by immunising these judges from committing contempt of their own courts, this power necessarily puts them at a higher pedestal than the rule of law. Therefore, we require certain statutory inroads into the Act which bring the Judges of the High Court and Supreme Court under the purview of the Act. While this ensures that their contempt powers are brought in consonance with the rule of law and that the powers of the Judges of the High Courts are kept under a check by the Supreme Court, I also suggest that the Constitution should incorporate a provision under Article 129 which makes for a five-member judicial commission to be appointed by the President which shall decide on matters pertaining to contempt allegations against sitting Supreme Court Judges. The Parliament is fully competent to frame rules of the procedure for filing contempt petitions against sitting Supreme Court Judges, including the CJI before the President, under Article 70 of the Constitution. The President would then be the final decision-making authority since there is no higher authority to do the same. The recommendation of the commission would not be binding on the President and he shall have the discretion of requiring the commission to reconsider their decision. However, if the recommendation is reiterated for the second time, the President is bound to follow it. This is essentially to keep a check on the unfettered discretion of judges of Courts of Record in contempt matters. The provision could also mandate the purely judicial composition of the said commission so that there is no scope for executive interference or arbitrariness in its constitution. While the framework could, consequently, assist in establishing a more concrete jurisprudence, the regulation of the powers of contempt, the constitutional permissibility of bringing the Courts of Record under the purview of a statute by the Parliament, and its subsequent tryst with the basic structure doctrine remain a matter of greater debate.
(Tanishk is currently an undergraduate at West Bengal National University of Juridical Sciences, Kolkata. He may be contacted at firstname.lastname@example.org.)
Cite as: Tanishk Goyal, ‘Initiation of Proceedings for Criminal Contempt of Court: Where to Draw the Line?’ (The RMLNLU Law Review Blog, 16 October 2019) <http://atomic-temporary-94482995.wpcomstaging.com/2019/10/16/initiation-of-proceedings-for-criminal-contempt-of-court-where-to-draw-the-line > date of access.