‘Contempt’ Has a Hierarchical and Monarchical History Which Now Has Implications for Citizen X

Democracies need to rethink the whole concept and adopt a more flexible approach.

The courts of India often invoke in their arguments the figure of a “Mr X” who stands for ‘the common man’. The fascinating case of the recent contempt of court ruling by the Supreme Court of India against Prashant Bhushan brings this figure into focus, not only because the judges have said that the allegations made by the lawyer will erode the trust of the general public in the judiciary but because a Mr X from this public might have some quite basic queries that he wants answered first, such as: What exactly does the word ‘contempt’ mean?

For Indians, just translating the English word ‘contempt’ into our many languages is problematic. Of the 20 odd-emotion words studied in our own research at IIT Delhi, we found that contemporary Indians struggled hardest with the interpretation of ‘contempt’, as opposed to words like ‘happiness’, say. In Hindi, they attempted to equate it with ninda, tiraskar, upeksha but remained dissatisfied. How then, are “we, the people” supposed to ‘get’ this concept, given that most of us are not native speakers of English?

Like any other word, ‘contempt’ has a psychology, a grammar and a history. As a “Mrs X” who has spent a large part of my life studying language and emotion, my feeling is that some supplementary insights from the reservoir of our ordinary knowledge could be germane to present case. In particular, I want to suggest that it is as much public morality as impartial justice; as much intention as truth; as much language and custom as the law that are at issue here.

To begin with, contempt is today widely considered a moral emotion by psychologists. In contrast to emotions like surprise or fear, contempt more closely resembles shame and guilt. These latter emotions require of us a deep, implicit knowledge of the cultural norms of our society.

Judgments about who can say or do what to whom in which context vary, that is, according to moral codes that differ from age to age, region to region, group to group, and person to person. A ‘Mrs X’ of a bygone era in India had, for example, no recourse to the law in the case of dowry abuse. Today, the law, at least in theory, protects her against such abuse.

Senior advocate Prashant Bhushan during a press conference. Photo: PTI/Shahbaz Khan

Morality and law

Why is this point at the intersection of social psychology and law at all important? Well, because, as Lord Denning once succinctly stated: “Without morality there is no law”. Moral sentiment is the foundation of notions of justice. However, as noted, moral beliefs can never be entirely universal or shared since they appeal to personal and/or cultural beliefs. So, if Bhushan was merely expressing his own moral opinion, however wrong or right-headed, can he really be arraigned for this? After all, saying that one would like to kill someone, is not the same as committing an act of murder. Both may cause moral offence but the first is, arguably, protected by free speech rights and the second is a crime. So, why is Bhushan in criminal trouble?

From the ordinary language perspective of “Mrs X”, the answer is simple. It is that the intention behind my words, anyone’s words is always opaque, since we do not come equipped with transparent screens on our chests that reveal our motivations. Thus, Bhushan can maintain that it was his intention to speak his conscience, not express contempt; yet, the learned judges of the Supreme Court can still conclude that his intentions were not bona fide. And this, indeed, is what they have done, finding Bhushan’s claims ill-founded since they were in fact hearing cases through the period of the lockdown; further, his allegations of corruption did not convince them. Their reasoning, therefore, is that Bhushan’s intentions cannot be anything but mala fide – which definitely makes his tweets a case of “contempt of court”.

Also Read: Prashant Bhushan 2020 Contempt: SC Reserves Judgment, Asks ‘What Is Wrong in Seeking Apology?’

This leads us to the small but significant linguistic puzzle about the preposition in the unusual phrase “contempt of court” and the one in common English, which is “contempt for X”. Mrs X explains it like this: supposing you or I feel contempt for a man who cheats poor people in order to himself lead a life of luxury, no one can question our feelings since we have firsthand access to our own intentionality. We know what we feel. In the case of contempt of court, on the other hand, it is the judges who decide, on the basis of contextual evidence and inferential reasoning, what we are feeling, what our intentions are. At first glance, this asymmetrical situation appears at odds with commonsense.

To figure out the confusion, we have to go back to past history and the entry of a word like ‘contempt’ into legal discourse, where we find an absolute treasure trove of evidence.

‘Contempt’ came into the English, via the French, around the late 14th century, as did the word ‘scandal’ which entered the language even earlier. Throughout the 16th, 17th and 18th centuries both words became part of the fabric of the language. And English society gradually readied itself for the semantic marriage of “scandal” with “contempt” that currently inform our Indian law.

Some examples: In late 16th century, we find Shakespeare, a true barometer of the language of his age, freely uses the word ‘contempt’ as in Richard III, where Richard protests to Queen Elizabeth I: “Myself [am] disgraced, and the Nobility held in contempt”; while the issue of a surface “defaced by some…. contemptuous, wicked persons” appears in legal annals. Shakespeare’s plays also use the word ‘scandal’, which by the mid 18th century was firmly associated, in addition to its social and sexual connotations, with the law, as in “an irrelevancy or indecency introduced into a pleading to the derogation of the court” or the “false and malicious reports of a person’s conduct.” Which of course reveals how “scandalising the court” came to be identified with “malicious” affronts in court, and finally “contempt of court.”

William Shakespeare. Credit: Wikimedia Commons

Relevance today

Still, one might ask: how is all this relevant today? Well, these verbal histories call attention to two basic points. One, the evolution of ordinary language and everyday moral codes are the natural foundation of our courts’ high legal authority. Two, we see how terms such as ‘contempt’ and ‘scandal’ in relation to the law emerged from a very hierarchical society, where the monarch and the “majesty” of his “court” were the true centre of power.

Today, we live in a democracy but the transference of such royal terminology directly to institutions like the judiciary may have had lasting psychological consequences. Perhaps both “we, the people” and our august judiciary need to self-consciously correct these authoritarian stances so deeply influenced by the buried past of our inherited colonial tongue, English.

By the time we come to Victorian England, India is the uncontested “jewel in the crown” of the British Empire. All seems placid but, in England, a huge intellectual ferment is manifesting itself. Here’s an arc of just 30-odd years from 1848, when Marx and Engels publish the Communist Manifesto, through 1859, a magnificent year when John Stuart Mill (who of course worked for the East India Company for most of his career) publishes On Liberty, Charles Darwin publishes On the Origin of Species and Charles Dickens A Tale of Two Cities, through 1865, when Lewis Carroll produces Alice in Wonderland, to 1872 when Darwin again puts out his little known but phenomenally ambitious work, The Expression of the Emotions in Man and Animals.         

If we look at only the last two of these word-famous books, Carroll’s Alice and Darwin’s Expression, we can immediately see how deeply colonial and top-down are the roots of the semantics of ‘contempt’.

Lewis Carroll’s views are particularly striking here because they show that anxiety about what we would today call “judicial overreach” had worked its way even into a Victorian children’s book:

Fury said to a mouse, that he met in the house,
‘Let us both go to law: I will prosecute you –
Come, I’ll take no denial; We must have a trial:
For really this morning I’ve nothing to do.’
Said the mouse to the cur, ‘Such a trial, dear Sir,
With no jury or judge, would be wasting our breath.’
‘I’ll be judge, I’ll be jury,’ Said cunning old Fury:
‘I’ll try the whole cause, and condemn you to death.

It does not require a genius to gauge the cautionary import of Carroll’s verses for a contemporary Alice (or Mrs X) seeking justice from Indian courts today, especially during lockdown (“For really this morning, I’ve nothing to do”).

Also Read: Why Prashant Bhushan’s Trial for Contempt Should Be Declared a Mistrial

Then, take Darwin, who believed that ‘contempt’ was a universal emotion. He, therefore, asked interlocutors in more than 30 countries the same question about the body language associated with contempt: “Is contempt expressed by a slight protrusion of the lip and by turning up the nose with a slight expiration?” From the replies he received, Darwin inferred that there were a bunch of interrelated emotions (contempt, disgust, scorn and disdain) that were to be found among those who considered themselves morally or socially ‘superior’ in all cultures. Although these emotions could be “expressed in many different ways” (Europeans by “snorting”, Malayans by the “drawing in of breath” and Indians by “spitting”!), Darwin concluded that “They all consist of actions representing the rejection or exclusion of some real object which we dislike or abhor.” He records:

Mr. Scott has sent me a graphic description of the face of a young Hindoo at the sight of castor-oil, which he was compelled occasionally to take. Mr. Scott has also seen the same expression on the faces of high-caste natives who have approached close to some defiling object. 

Charles Darwin. Credit: Wikimedia Commons

Charles Darwin. Credit: Wikimedia Commons

In psychological terms, then, can it be that Bhushan’s tweets are regarded “defiling objects” the offence caused by which can only be eliminated through ritual penance: an apology, a fine or some such? At the moment, Bhushan has maintained that he will “cheerfully” accept his punishment, while the court has demanded an “unconditional apology.” So, how does a Mrs X regard this stand-off? Well, with bewilderment.

The truth is that a decolonised world has given us a whole new vocabulary of “truth and reconciliation” unavailable when the idea of contempt first entered judicial discourse centuries ago. In this world, a “magnanimous” rapprochement between the stances of our Supreme Court and Bhushan is not inconceivable. In the eyes of the ordinary Mr and Mrs Xs of our country, it may even be highly desirable.

Rukmini Bhaya Nair is a linguist. She teaches at IIT Delhi and was the principal investigator of the DST-IITD ‘Language, Emotion, Culture’ project.