Can criticizing the judiciary be considered as contempt of court?

This post is written by Amritesh Panda, a student of Symbiosis Law School Pune.

In a recent Supreme court judgment, the apex court found three persons guilty of contempt of court for making a scandalous allegation against the judges, the Supreme Court made certain observations on the boundaries that should be kept for criticizing a judgment.

The Court said that a citizen must have some standing or knowledge before questioning the capability or integrity of a judge of the highest court.

“No doubt, any citizen can comment or criticise the judgment of this Court. However, that citizen must have some standing or knowledge before challenging the ability, capability, knowledge, honesty, integrity, and impartiality of a Judge of the highest court of the land”, observed the two-judge bench composed of Justice Deepak Gupta and Aniruddha Bose.

With this, a curious question arises when does criticism become contempt of court?

The apex court views adverse remarks from non-legal quarters with lower tolerance but accepts the same from its fraternity. It believes that criticism from non-legal sources do not hold weight because they are not adequately knowledgeable about judicial matters.

In 2002, the Supreme court pulled up eminent writer Arundhati Roy for her remarks over the Narmada dam judgment.

The section 5 of the Contempt of court Act, 1971 provides that a person shall not be guilty of criminal contempt for publishing any fair comment on the merits of any case which has been finally decided. A defense can be taken that the statement complained of (in respect of the publication of which criminal contempt has been initiated) must be in respect of a case which has been finally decided and not in respect of pending proceedings. Moreover, the statement should come from the mouth of a knowledgeable person in the field of law and not from a litigating party which has lost the case. In short, fair criticism means that criticism which while criticizing the act of a Judge does not impute any ulterior motive to him. In the case of Arundhati Roy, the Supreme Court has held that judicial criticism cannot be invoked under the garb of Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India.

“In another case of P.N. Duda v. P. Shiv Shanker (1988) the court observed that Judges have their accountability to the society and their accountability must be judged by the conscience and oath to their office, i.e, to defend and uphold the Constitution and the laws without fear and favour. Thus the judges must do, in the light given to them to determine, what is right. Any criticism about the judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the judges and brings the administration of justice to ridicule must be prevented.

Faith in the administration of justice is one of the pillars on which democratic institution functions and sustains. In the free market-place of ideas criticism about the judicial system or judges should be welcome so long as such criticism does not impair or hamper the administration of justice.

What does the law say?

During colonial rule, the British imported the concept into India. The offense of scandalizing the court, at that time, was defined in common law as “any act done or writing published calculated to bring the court into contempt, or to lower its authority”. As can be seen, this framing is rather broad and leaves much to the discretion of individual judges.

During the time of the framing of the Constitution, it was decided that “contempt of court” be included as an express restriction upon the freedom of speech and expression, as part of Article 19(2) of the original Constitution.

When this proposal was first made, it elicited a fierce debate. This is because the term “contempt of court” in itself carries three possible meanings.

• One is active and open disobedience of court orders, failure to appear when summoned, and so on. It is quite uncontroversial that the courts need to be clothed with the power to punish infractions of this sort.
• The second type of contempt is to say or do things that might prejudice a fair trial, or negatively affect justice (for instance, sensationalized media reporting of an ongoing trial).
• The third is our familiar concept of “scandalizing the court”. The framers of the Constitution strongly disagreed with each other about which versions of contempt were covered by Article 19(2) of the Constitution. Many of them voiced concern that if “scandalizing the court” was to be treated as an offense, then it would unduly stifle the freedom of speech and expression.

Soon after Independence, the Supreme Court in the case of Aswini Kumar Ghose And Ors vs Arabinda Bose And Ors (1952)  observed that “if an impression is created in the minds of the public that judges in the highest court in the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined”.

The Indian parliament in the following years enacted the Contempt of Courts Act in 1971, making it an offense to scandalize, or tend to scandalize, or lower, or tend to lower, the authority of any court.

In 2006, Parliament amended the Contempt of Courts Act, limiting its application to situations where there was substantial interference with the course of justice. It is unclear, however, whether this has changed anything.

The problem, of course, is that the contempt jurisdiction is a classic case of judges being judges in their own cause. While this is inevitable in the nature of things, it also calls for a very high degree of circumspection, a degree that has not yet been achieved.

Purpose of contempt power not to stifle fair criticism.

Freedom of thought and expression have been given the pride of place in our constitutional scheme as in all free societies. Its importance and sanctity in a democratic polity cannot be over-emphasized. Public criticism is essential to the working of a democracy and this includes criticism of every institution and organ of the state. This freedom certainly takes within it the right to comment upon and criticise judgments.

Justice Singhvi once gave remark in a judgment: “In the land of Gautam Buddha, Mahavir and Mahatma Gandhi, the freedom of speech and expression and freedom to speak one’s mind have always been respected. After Independence, the Courts have zealously guarded this most precious freedom of every human being. Fair criticism of the system of administration of justice or functioning of institutions or authorities entrusted with the task of deciding rights of the parties gives an opportunity to the operators of the system/institution to remedy the wrong and also bring about improvements.”

But such criticism could not be castigated as an attempt to scandalize or lower the authority of the court or other judicial institutions or as an attempt to interfere with the administration of justice — except when the criticism was ill-motivated or was construed as a deliberate attempt to run down the institution.

References

1. In Re: Arundhati Roy…. … vs — on, 2002 AIR (SCW) 1210
2. P.N. Duda vs V. P. Shiv Shankar & Others, 1988 AIR 1208, 1988 SCR (3) 547
3. Contempt of court Act, 1971
4. In Re Vijay Kurle and others (Suo Moto Contempt Petition)