Contempt of court provision vague: Former Supreme Court, High Court judges

Scandalising the court as grounds for criminal contempt is found in Section 2( c)(i) of the 1971 Act and states that a publication or act will amount to such contempt if it “scandalises or lowers the authority of any court”.

A provision in the Contempt of Courts Act of 1971 that criminalises statements on grounds of “scandalizing” the court is vague and susceptible to a dubious interpretation, former Supreme Court and high court judges said.

Prashant Bhushan’s case is not an isolated example and there have been many instances in the past when cases were initiated for criticism of the judiciary.(Amal KS/HT PHOTO)

Scandalising the court as grounds for criminal contempt is found in Section 2( c)(i) of the 1971 Act and states that a publication or act will amount to such contempt if it “scandalises or lowers the authority of any court”.

“The definition of criminal contempt on the ground of scandalising the court is very vague. The word ‘scandalising’ must be clarified by giving a precise definition of what ‘scandalising the court’ means. That is essential because the provision entails serious criminal consequences,” said retired Supreme Court judge V Gopala Gowda.

Section 2( c)(i) has come under the scanner recently after proceedings were initiated against lawyer Prashant Bhushan under that provision for his tweets critical of the Supreme Court and the current Chief Justice of India (CJI) SA Bobde.

“The word ‘scandalising’ is subjective and will depend on the perception of the concerned person. The provision is not clear as to whether it has to be looked at from the perception of the court, the individual judge or public. As long as the words ‘scandalising the court’ are present (in the statute book), it will be susceptible to arbitrary exercise of power,” retired Madras high court judge K Chandru said.

Prashant Bhushan’s case is not an isolated example and there have been many instances in the past when cases were initiated for criticism of the judiciary.

“In Tamil Nadu, a person who used to run a magazine, wrote a letter to the high court after the high court had acquitted a murder accused. The letter stated that since the high court has acquitted the accused, it should tell public as to who is the actual culprit. The high court punished him for criminal contempt of court. What is ‘scandalising’ in that letter? He was not attributing any motives to the judges. It was only an immature statement and also showed the person’s lack of understanding of criminal law. Such instances go unnoticed because the people punished are not famous persons,” retired justice Chandru said.

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 England, in 2013, repealed scandalising judiciary as a ground for contempt is to allow constructive criticism. 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, be it a lawyer, law student or a layman, 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,” retired justice Gowda said.

Is this fundamental right being curtailed by courts using contempt of court provisions?

“Judges are using this as a weapon to silence critics. The word ‘scandalises’ is susceptible to dubious interpretation. Therefore, it has to go. It violates Article 14 and 21 of the constitution,” said retired justice Chandru.

Contempt of court law is intended to protect the institution and not individual judges and the law should not be used to stifle healthy criticism, retired justice Gowda said.

“Majesty of the court is built on its functioning and its judgments. There are thousands of cases in which directions of Supreme Court and high courts are not being implemented. If courts decide to initiate civil contempt in all those cases, then the entire institution will have to function only for hearing contempt proceedings,” he added.