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Scandalising the Courts: A Ground for Contempt

  • 13 Jan 2021
  • 7 min read

Why in News

The Karnataka High Court has issued notice to the Union government on a PIL petition, challenging the constitutional validity of a provision of the Contempt of Courts Act, 1971, that makes “scandalising or tends to scandalising courts” as a ground for contempt.

  • Public Interest Litigation (PIL) stands for a legal action taken by a public spirited person in order to protect public interest (any act for the benefit of the public).

Key Points

  • Grounds for Contempt:
    • Contempt is the power of the court to protect its own majesty and respect. The power is regulated but not restricted in the Contempt of Courts Act, 1971.
      • The expression ‘contempt of court’ has not been defined by the Constitution.
      • However, Article 129 of the Constitution conferred on the Supreme Court the power to punish contempt of itself. Article 215 conferred a corresponding power on the High Courts.
    • The Contempt of Courts Act, 1971 defines both civil and criminal contempt.
      • Civil contempt [Section 2(b)] refers to wilful disobedience to any judgment of the court.
      • Criminal contempt can be invoked if an act:
        • Tends to scandalise or lower the authority of the court [Section 2 (c)(i)]; or
        • Tends to interfere with the due course of any judicial proceeding [Section 2 (c)(ii)]; or
        • Obstruct the administration of justice [Section 2 (c)(iii)].
      • Section 5 of the Act provides that “fair criticism” or “fair comment” on the merits of a finally decided case would not amount to contempt. But the determination of what is “fair” is left to the interpretation of judges.
      • The Act was amended in 2006 to include the defence of truth under Section 13 of the original legislation. Implying that the court must permit justification by truth as a valid defence if it is satisfied that it is in the public interest.
  • Arguments of the Petitioners:
    • Section 2(c)(i) of the Act violates the right to free speech and expression guaranteed under Article 19(1)(a) and does not amount to a reasonable restriction under Article 19(2).
    • Though the petitioners have not challenged the constitutional validity of Section 2(c) (ii) and Section 2(c)(iii) of the Act, they have contended that rules and guidelines must be framed defining the process that superior courts must employ while taking criminal contempt action, keeping in mind principles of natural justice and fairness.
    • In the contempt jurisdiction, the petitioners have contended, the judges may often be seen to be acting in their own cause, thus violating the principles of natural justice and adversely affecting the public confidence they seek to preserve through the proceeding.
  • Issues that Get Highlighted:
    • Subjectivity:
      • The word ‘scandalising’ is subjective and depends on the perception of the concerned person. As long as the words ‘scandalising the court’ are present (in the statute book), it will be susceptible to arbitrary exercise of power.
      • One of the disturbing trends is the propensity of the court to treat personal attacks on their character as contempt.
        • It is often forgotten that the law of contempt is not meant for protecting the judges, but it is for the protection of the institution of the judiciary.
    • Violation of Freedom of Expression:
      • A strong judiciary in a democratic republic is the bulwark of masses of this country. It must work towards fulfilling the goals set out in the constitution - to secure social economic and political justice for the masses and to uphold their fundamental rights.
      • If the judiciary is not functioning keeping in mind these objectives, an individual should have the freedom to point out the same and it cannot be said to be criminal contempt. Freedom of expression is a fundamental right.
    • United Kingdom’s Decision to abolish ‘scandalising the judiciary’ as a form of contempt of court:
      • India’s contempt of court law is derived from British law, but in 2013, the United Kingdom abolished ‘scandalising the judiciary’ as a form of contempt of court on the grounds that this went against freedom of expression while retaining other forms of contempt like behaviour causing disruption or interference with court proceedings.
      • One of the reasons why the UK repealed scandalising judiciary as a ground for contempt is to allow constructive criticism.
    • Does not recognise one of the basic principles of natural justice, i.e., no man shall be a judge in his own cause.
      • Thus, in contempt proceedings, the court arrogates to itself the powers of a judge, jury and executioner which often leads to perverse outcomes.

Way Forward

  • Freedom of speech is the most fundamental of the fundamental rights and the restrictions thereupon have to be minimal. The law of contempt of court can impose only such restrictions as are needed to sustain the legitimacy of the judicial institutions. The law need not protect the judges. It has to protect only the judiciary.
  • A contempt notice issued without proper scrutiny could cause great hardship to people who are engaged in public life. Freedom must be the rule and the restriction must be an exception.
  • 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.

Source: TH

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