Posted on: August 27, 2014

Press Council of India chairman Markandey Katju has set the cat among the pigeons by calling for an amendment to India’s Contempt of Courts Act, 1971. “There is an urgent need to amend the law because the judiciary should not be above suspicion,” Katju, a retired Supreme Court judge, says.

He argues that times have changed and today, every state functionary should be questioned. “In the olden days, the King was the master and people were the subjects. Since judges used to be delegates of the King, they had authority and dignity. But in a democracy, this relationship has been reversed. It’s the people who are the masters now and the state authorities, including judges, are their servants,” he says.

Katju’s comments came in the wake of the Supreme Court’s observation last month that the truth, if it is said in good faith and in public interest, is a valid defence against charges of contempt of court. The apex court dropped the 24-year-old contempt proceedings against journalist Arun Shourie for writing against its then sitting judge in an editorial.

Many legal experts feel that the contempt of court law should, in fact, be amended. They point out that contempt goes against the very spirit of freedom of expression. “Contempt is nothing but censorship and there is no place for censorship in the Constitution,” Upendra Baxi, professor of law at the University of Warwik, says.

Baxi had questioned Supreme Court judges in 1979 in an open letter after the court acquitted two policemen of custodial rape in the famous Mathura case. The questions — and the outrage that the acquittal triggered — led to amendments in the rape law.

Experts say that Article 19(1)(a) of the Constitution, which guarantees freedom of speech, should have primacy and that Articles 129 and 215, which relate to powers of judges, are only secondary to it.

Yet there are also those in the legal fraternity who believe that amending the contempt law would not be a good idea. Attorney-general Mukul Rohatgi, for example, is not in favour of amending the law. “This law is important to maintain the decorum of the court,” he says.

Others say that it is time to do away with the offence related to “scandalising” the court in the law. The act says, “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any act which scandalises or lowers the authority of any court. The maximum punishment for contempt of court is six months of imprisonment.

The contempt law is actually enforced quite often in India. Recently, the Supreme Court upheld the conviction of Uttar Pradesh lawyer Bal Kishan Giri for contempt of court for his “wild and scandalous” accusations against judges of the Allahabad High Court and several other judicial officers in the case, Bal Kishan Giri vs State of UP. The Allahabad High Court had convicted the lawyer for contempt of court and sentenced him to one month’s simple imprisonment and a fine of Rs 20,000.

Again, in 2007, three journalists and the publisher of an English tabloid were sentenced to four months in jail by the Delhi High Court for accusing a former chief justice of India of corruption. Earlier, in 2002, the apex court issued a suo motu contempt notice to writer Arundhati Roy for her comments against the judiciary, sentencing her to a one-day “symbolic imprisonment” and a fine of Rs 2,000.

Indeed, some of the finest legal minds in India are against the indiscriminate use of the contempt law. Says senior advocate Fali S. Nariman, “There is urgent need to proclaim — and only the highest court can so proclaim — that contempt jurisdiction for scandalising the court, like the death penalty jurisdiction, ought to be invoked only in the rarest of rare cases, and not left to be exercised by benches of two-three judges. And it must only be exercised under rules framed by the court — by a bench of at least five justices: this will help everyone accept that the Supreme Court of India (like its counterpart, the US Supreme Court) has come of age, that it can take sharp blows on its chin, that our judges are human and apt to err like the rest of us, and that to point out their errors (even occasionally in colourful language) is no sin.”

Baxi feels that the contempt of court law should be used only in certain specific circumstances. “For example, if there is any comment that interferes with the working of the court, it should be called contempt,” he says.

Katju adds that if someone disrupts the proceedings of the court, he or she could be subjected to contempt too. “For example, if someone calls the judge a ‘fool’, it should not be contempt. But if he keeps on shouting, ‘fool, fool’ for a long time, disrupting the proceedings, it could be contempt,” he says.

“Also, one could be charged with contempt if a court’s order is not obeyed,” Baxi adds.

For example, in May this year, the Rajasthan High Court issued a contempt notice to state chief secretary Rajeev Mehrishi for failing to provide a retired government employee the benefits promised to him in an affidavit.

Experts also object to the fact that though the law states that “fair criticism of a judicial act” is not contempt, it lets the courts decide what is fair criticism. “The court should not decide what is fair or unfair. It should be specified in the law,” Baxi says.

But Rohatgi feels that a personal attack on a judge is a complete no-no. “The judge speaks through his judgment. So attacking the judge in the name of attacking the judgment is not permissible,” he says.

Many lawyers too are strongly in favour of maintaining the status quo as far as contempt is concerned. For example, in 2011, lawyer Manish Kaushik filed a petition in the Delhi High Court seeking the initiation of criminal contempt proceedings against advocate Ashok Arora. Arora had written an article on his website criticising a high court judge for acquitting four accused in the Shivani Bhatnagar murder case.

“I did it because Arora called the judge corrupt,” says Kaushik.

“Contempt is a constitutional power given to the courts. If it is taken away, it is not left with any powers at all. Its existence becomes meaningless without it,” he adds.

Of course, the Contempt of Courts Act has been amended in the past. For example, an amendment to the law in 2006 stipulated that a person accused of contempt could seek his defence in “truth” and that he must get the permission of the court for this defence after satisfying it that this truth was in the public interest and that he was acting in good faith.

It remains to be seen if the law will be amended yet again to render judges somewhat less immune to criticism.


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