Raja bola raat hai
Mantri bola raathai
Court bola raathai
Ye subah subah ki baat hai
[The King said it is night/The Minister said it is night/
The Court said it is night/They say this every morning]
(Paraphrasing ‘people’s poet’ Gorakh Pandey)
The Supreme Court of India has, in its wisdom, initiated suo moto criminal contempt proceedings against Prashant Bhushan for two tweets. One expressed the view that when historians look back at the destruction of democracy in India in the last six years without the declaration of a formal emergency, they would mark the role of the Supreme Court and in particular the role of the last four CJIs. The second shows a photo of Justice S.A. Bobde, chief justice of India (CJI), perched atop a Harley Davidson motorcycle. In the accompanying text, Bhushan drew attention to the anomaly of the CJI not wearing a mask when he has closed the court down – thereby denying ordinary citizens access to justice – citing the need for social distancing due to the pandemic.
Simultaneously, the same bench decided to list and hear a 10-year-old contempt case against Bhushan for an interview in Tehelka magazine in September 2009, wherein he alleged that the last eight of the 15 CJIs were corrupt. The contempt case with regard to the Tehelka interview was first heard in January 2010 and the last hearing was on May 2, 2012. The listing of a case which had been languishing for eight years, on the heels of the current suo moto proceedings by the same bench, speaks for itself.
Powers of superior courts to punish
The power of superior courts to punish for contempt involves two invaluable rights. As the court can and does sentence persons to imprisonment, the fundamental right to life and liberty enshrined under Article 21 of the constitution gets directly affected. Similarly, the fundamental right to speech and expression integral to democracy and encoded in Article 19(1) (a) comes into play as far as public speech and publications are concerned.
At present the apex court seems to be in a thin-skinned ultra-sensitive mode, perhaps stemming from unconscious doubts about the role being played by the judiciary. Psychologically, a thing hits us hard when we may have a lurking, unarticulated suspicion that there might be some truth in a comment. This can at times lead to strong feelings, which may be somewhat disproportionate to the facts and circumstances of the situation. Given the tendency of the court to take umbrage as manifested in Bhushan’s case, resort to quotations from earlier judicial pronouncements, which by no stretch of logic can be held to amount to contempt, seems to be the safest recourse.
Indian courts followed the Common English Law base till the enactment of statutory enactments in 1926, 1952 and the current avatar, the Contempt of Courts Act, 1971. As English Common Law evolved through precedents and continues to be the bedrock of the exercise of contempt powers in India, it is worth taking a closer look at them.
Criminal contempt jurisprudence
More than a century ago, Lord Morris while delivering the judgment of the judicial committee in Mac Leod vs St. Aubin, 1899 observed, “Committals for contempt by scandalizing the court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them.”
In a similar vein, Lord Denning in 1968 in Regina versus Commissioner of Police, (1968) observed, “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”
Nearer home, Chief Justice Gajendragadkar following in the rich liberal tradition, while heading a seven-judge bench of the apex court in a 1964 case cautioned against frequent or indiscriminate use of the power of contempt and observed, “Wise Judges never forget that that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach and by the restraint, dignity and decorum which they observe in their judicial conduct.”
The exercise of contempt power by courts in recent times needs to be placed in the framework sketched out by Morris, Denning and Gajendragadkar.
Leave aside more complex matters, examining from first principles the manner of exercise of contempt power, even in the apparently clear case of the sentencing to imprisonment of Nand Lal Balwani, who purportedly hurled a shoe towards the court, raises doubts. The incident occurred on the morning of February 26, 1999 in the apex court. By afternoon, the same bench convicted Balwani for contempt and sentenced him to four months imprisonment.
Requirements of natural justice
The right to an independent tribunal, protection against self-incrimination, the requirement of intention or mens rea in criminal law and the right to a legal practitioner are some of the principles that need to be borne in mind in the exercise of criminal contempt jurisdiction. In Balwani’s case, rather than referring the contempt matter to some other bench, the same bench at which the shoe was allegedly thrown took cognizance without even a “cooling-off” period, violating the right to an independent tribunal. The right of protection against self-incrimination and the right to a legal practitioner appear to have been violated, and the issue of the intention or mens rea was not gone into by the court.
Lord Goff in Regina versus Gough observed that in the exercise of contempt jurisdiction, “It is vitally important to avoid giving the impression that the judge is biased or that the decision has been prompted by personal animus.” Viewed from the standpoint of safeguards, incorporated in Article 6 of the European Convention on Human Rights, the trend is to refer the matter to a bench other than the one before whom the contempt was committed.
This is a recognition that it is possible that the judge will not have seen the entire incident of which the complaint is made, particularly if the act of contempt is a fleeting and single one, as appears to be the case in the shoe-throwing matter. Thus, before truth can be sufficiently established it may be necessary to have a good deal of evidence from eye-witnesses, some of whom may have had a different impression from that of the judge.
Even where the same bench hears the matter, the desirability of a “cooling off” period between the incident and the contempt hearing has been stressed. The Phillimore Committee, Report of the Committee on Contempt of Court emphasized that the “very extensive” contempt powers should only be exercised, “without …being influenced by the heat or exasperation of the moment”.
Right against self-incrimination
Article 20(3) of the constitution embodies the universal principle of privilege against self-incrimination and declares that a person cannot be compelled to be a witness against himself. In cases of contempt in the “face of the court” as in the Balwani case, the judges directly question the accused. The right against self-incrimination demands that a person accused of contempt should be alerted to the fact that he/she is at risk of losing his liberty and is not obliged to answer questions and in particular ones that may be incriminating. The right to legal counsel requires that the accused be given time to prepare a defence, an opportunity of taking informed legal advice and of being represented by counsel.
In Civil Liberties and Human Rights in England and Wales, D. Feldman argues that the summary nature of the proceedings for contempt are in breach of Article 6 of the European Convention on Human Rights which guarantees that an accused be informed of the nature and cause of the allegation against him; the right to an independent and impartial tribunal; a proper opportunity and facilities for the preparation of a defence and a right to legal assistance.
Actus reus and mens rea
In addition to the actus reus, i.e. act committed, the guilty state of the mind or intention called mens rea is a crucial component to be established before a person can be punished for an offence. The present trend in Europe is that the requirement of mens rea in criminal law should also operate in the sphere of criminal contempt. Thus, a positive intention to interfere in the course of justice must be established before a person can be punished for contempt.
Distinctions between an intention to interfere with the course of justice as opposed to intending to do the act in question need to be established. Similarly, recognition in contempt law of an intention merely to insult the judge, but not to interfere with the course of justice as such is also being sought. In fact, there have been instances in our courts where an undertrial has hurled things at the judge in frustration at the delay in the case. The intention behind the act is a plea for expediting the course of justice. However, presently courts in India treat this as criminal contempt.
Contempt power and protection of judges
The power to punish for contempt is not for the protection of the individual judicial officers from insult or injury. In the words of Lord Morris in Attorney General v. Times Newspapers Ltd: Thalidomide case, “The power summarily to commit for contempt is considered necessary for the proper administration of justice. It is not to be used for the vindication of a judge as a person. He must resort to action for libel or criminal information”. Justice
While formulating principles for exercise of contempt power by courts, Justice V.R. Krishna Iyer in the In re S. Mulgaokar (1978) case, which arose out of the publication of an article in the Indian Express in December 1977, lays down, “The third principle is to avoid confusion between personal protection of a libeled Judge and prevention of obstruction of public justice and the community’s confidence in the great process. The former is not contempt, the latter is, although overlapping spaces abound.”
Basis of contempt power
The raison d’être of the power to punish for contempt is the essential right of the ordinary citizen to get effective justice. The power is to be used for the implementation of the court’s judgments to ensure justice for the litigants.
The chief judicial magistrate (CJM) N.L. Patel of Nadiad town in Gujarat was handcuffed, tied with ropes, forced to consume liquor and was sought to be framed in a false case of consuming alcohol in a dry state by the local police. There was outrage in the country as the police had also got the CJM photographed and major newspapers splashed the picture of the CJM – bound with ropes and handcuffed – on the front pages. A petition was filed by the Delhi Judicial Service Association Tis Hazari and the Supreme Court appointed a senior judge of the Allahabad high court as commissioner on behalf of the court. The Supreme Court on the basis of the commissioners’ report, convicted the police officers of contempt and sentenced Nadiad inspector S.R. Sharma to six months imprisonment, sub-inspector Sadia to five months, head constable, constable and mamlatdar to five months and district superintendent of police to one month imprisonment for their role in the incident.
There are innumerable instances of the police handcuffing, beating up and foisting false cases on innocent citizens. It would add tremendously to the credibility of the judiciary if the superior courts would invoke the contempt petition in the case of ordinary citizens subjected to brutal treatment by the police and convict the uniformed perpetrators for gross interference in the administration of justice.
Social norms with regard to acceptable restrictions on liberty, the value of free speech in a democracy change over time and have to be taken into cognizance. In 1972, E.M.S. Namboodripad, then chief minister of Kerala, was hauled up for contempt for stating that judges are prey to the biases of their class and are weighted against the exploited peasants and working classes. The defence that the comments constituted fair and reasonable criticism of the judicial system and were protected by the right to free speech was rejected by the Supreme Court.
In 1987, the law minister P. Shiv Shankar referred to the elite background of the judges in a speech at the Bar Council of Hyderabad and declared, “Mahadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic chord nowhere in the whole country except the Supreme Court of India. And the bank magnates, the representatives of the elitist culture of this country, ably supported by industrialists, the beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in Cooper case. Anti-social elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their haven in the Supreme Court”.
The apex court in P.N. Duda versus P.Shiv Shankar, took the view that Shiv Shankar had examined the class composition of the Supreme Court. His view that the class composition of any instrument indicates its predisposition, its prejudices did not amount to contempt. Referring to the EMS case, the Court observed that, “times and climes have changed in the last two decades”.
The view taken by the apex court in the Arundhati Roy case in 2002 is in stark contrast to the liberal perspective reflected in the P.N. Duda case. After the judgment in the Narmada Bachao Andolan case in 2000, there was a dharna protesting the majority judgment outside the Supreme Court on 30-12-2000.
This led to petition being filed by J.R. Parashar and four other advocates against Advocate Prashant Bhushan, Narmada Bachao leader Medha Patkar and writer Arundhati Roy for contempt of court. Notices were issued on a rather shabbily drafted petition which in contravention of the Supreme Court Rules neither specified the addresses of the petitioners nor the respondents and was without requisite consent from either the Attorney-General or Solicitor-General.
The Supreme Court issued notices to Bhushan, Patkar and Roy. The petition was eventually dismissed by the Court.
However, the court initiated suo moto contempt proceedings against Arundhati Roy for three paragraphs in the affidavit filed in the Parashar case. The objectionable paragraphs are ironical in the context of the exoneration of Shiv Shankar in the Duda case and the shift in attitude of the Supreme Court. The one paragraph which can be deemed the most “offensive” in the Roy affidavit is reproduced below for comparison with the hard hitting Shiv Shankar speech.
“It indicates a disquieting inclination on the part of the Court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it. By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm.”
The Supreme Court distinguished the P.N. Duda case on the specious reasoning that the criticism of the judicial system was made by P. Shiv Shankar, a person who himself had been a judge of the high court, was a minister and had made studies about the system and expressed his opinion, while Arundhati Roy did not claim to be possessing any special knowledge of law and the working of the judiciary and only claimed to be a writer of repute. The judgment held that the benefit which was available to P. Shiv Shankar was not available to Arundhati Roy and convicted her for contempt of court, imposing a sentence of one day imprisonment and a fine of Rs. 2000.
The present definition of criminal contempt in India under Section 2(c) of the Contempt of Courts Act, 1971 uses phrases like ‘scandalizes or tends to scandalize or lowers or tends to lower the authority of any court’ and ‘interferes or tends to interfere with the administration of justice’. These expressions are inherently vague and leave a lot of scope for arbitrariness, dependent on the opinions, predilections and the emotions evoked in the individual judge and can lead to unreasonable restrictions on freedom of speech.
In the context of the need to strictly define laws which take away the important right to liberty, the Phillimore Committee in the U.K. recommended that the crime of scandalising the court should be replaced by a new and strictly defined criminal offence. The offence should be so constituted to include the component of intention to impair confidence in the administration of justice and defence should be available, if the defender could prove not only that what he said was true but also that that the publication as such was for the public benefit.
Perhaps the paradigm of an all powerful judiciary sending down bolts of righteous wrath on a cowering populace needs to be set aside and the emerging complex issues involving free speech, restriction on liberty, truth as defence and inclusion of mens rea, need to be debated in the arena of criminal contempt jurisprudence in India.
Rakesh Shukla is an advocate