7 PM Editorial |Need to Reform Contempt Jurisdiction of Judiciary|29th July 2020

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Need to Reform Contempt Jurisdiction of Judiciary

Introduction:

SC(Supreme court) has initiated suo moto criminal contempt proceedings against Prashant Bhushan, an advocate and an activist. His tweets on Chief Justice of India(CJI) are cited as evidence of intention to scandalize the court and CJI’s office.

Critics point out that this action by SC is being oversensitive to criticism and hence this is against freedom of speech. Let us examine the contempt powers of the judiciary and their critique.

Contempt powers of judiciary:

SC and HCs(High courts) are courts of record as per Articles 129 and 215 respectively. This provides them the powers of contempt. For subordinate courts, respective HCs will take up contempt proceedings. Courts can suo moto initiate contempt proceedings.

Contempt of court act, provides for:

• Civil contempt: When judicial orders are not followed wilfully or violation of undertaking given to court
• Criminal contempt: When there is obstruction to justice or scandalization of court or intention of scandalization of court.
• Truth and good faith is valid defense in contempt proceedings. This was added in 2006.

These contempt powers are given with the objective of safeguarding public confidence in administration of justice and thereby public interest.

Critique of criminal contempt in India:

Experts point out following problems in criminal contempt in India:

• Extremely wide jurisdictionwith broad definition. Terms like scandalizing the court can be interpreted very loosely to prevent valid criticism of conduct of judges and judiciary
• Against civil libertiesof freedom of speech and expression which is a fundamental right. While Article 19 provides contempt as a restriction on freedom of speech, a democracy does not prevent valid criticism. Reasonableness must be maintained even in restrictions. Oversensitiveness of courts to criticism will lead to loss of this right.
• While truth and good faith are added as valid defenses, in practice this is not being upheld.
• In times of social media, where unregulated commentary is seen, courts pursuing all comments will waste precious time.

Hence, suo moto powers in initiation of proceedings combined with broad definition of criminal contempt leads to chilling effect on free press and valid criticism of judicial functioning. Considering this there is a need to reform contempt jurisdiction in India.

In other countries, criminal contempt for scandalizing the court is being read down or discontinued:

• UK has abolished it in 2013
• Canada evolved contempt test as real, substantial and immediate threat to administration of justice
• US courts do not use contempt for comments on judges or legal matters

Conclusion:

Judiciary must not be oversensitive in invoking contempt and should give broad scope for criticism of its functioning. Silencing criticism will not result in respect but rather in resentment and suspicion. Hence judiciary should move towards accountability and impartiality in receiving criticism.

Contempt powers are needed in genuine cases like civil contempt or real obstruction of justice(threats to the lives of judges etc). But criminal contempt for scandalizing the court has no relevance in contemporary democracies. It was evolved in monarchical times when royalty used to deliver judgments. In current times, principles of accountability and impartiality are important for institutions. Hence criminal contempt for scandalizing the court has to be removed and contempt laws must be reformed.

Source: https://www.thehindu.com

Mains Question:

1. Critically comment on the need for contempt powers of the judiciary? [15 marks, 250 words]