Contempt of courts Act, 1971

Context:

● The Karnataka High Court ordered the issue of 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.

● The petitioners have contended in the petition that 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).

Probable Question:

1. “Scandalising or tends to      scandalising courts provision under the Contempt of Courts Act, 1971, a      ground for contempt violates the fundamental right of free speech and      expression.” Critically examine.

Background:

● Contempt is the power of the court to protect its own majesty and respect. This power is inherent and the power is recognised in the constitution of the high court and the Supreme Court. The power is regulated but not restricted in the Contempt of Courts Act 1971.

● Article 129, 142(2) and 215 of the Constitution of India empowers the Supreme Court and High Court to punish people for their contempt.

● The Contempt of Courts Act, 1971 defines both civil and criminal contempt. Civil contempt refers to willful disobedience to any judgment of the court, while criminal contempt can be invoked if an act tends to scandalise or lower the authority of the court or tends to interfere with or obstruct the administration of justice.

● 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 argument against “scandalising or tends to scandalising courts” as a ground for contempt:

● The expression “scandalising the court” has not been defined. In Shiv Shankar (1988), the Supreme Court held that criticism of the court that does not impair and hamper the administration of justice cannot be punished as contempt.

● The definition of criminal contempt on the ground of scandalising the court is very vague.

➢ The word ‘scandalising’ is subjective and will depend on the perception of the concerned person. So, The word ‘scandalises’ is susceptible to dubious interpretation.

● 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.

● Violation of Freedom of Expression: An individual has the right to point outif the judiciary is not following its constitutional duty and it cannot be said to be criminal contempt. The law should not be used to stifle healthy criticism.

● The institution’s image is always made by how it acts instead of what people say about it. The recent Prashant Bhusan case highlights how courts can initiate suo-moto proceedings of contempt where the court had to save face by imposing a minuscule penalty.

● Judiciary remains one of the least accountable public institutions in India. Public debate is necessary for its improvement which can be hindered by the fear of contempt of court.

The argument for keeping “scandalising or tends to scandalising courts” as a ground for contempt:

●  There were a high number of civil and criminal contempt cases pending in various High Courts and the Supreme Court. The high number of cases justify the continuing relevance of the Act.

● India continues to have a high number of criminal contempt cases and the offence of Scandalising the Court continues to be punishable in the other countries like the UK under other laws. Abolishing the offence in India would leave a legislative gap.

● It is argued that if the definition of contempt is narrowed, subordinate courts will suffer as there will be no remedy to address cases of their contempt.

● The Law Commission has also made similar recommendations and the law has withstood judicial scrutiny over time.

● The contempt of the Court is used as an enforcement mechanism for individuals and institutions acting with impunity.

Way forward:

The word ‘scandalising’ must be clarified by giving a precise definition of what ‘scandalising the court’ means. When malicious and deliberate attempts are made to erode that trust between the public and the judiciary, contempt of court can be used. Fair criticism of the judiciary should be taken as freedom of expression which is one of the fundamental rights given by the constitution of India.