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EYE TO EYE WITH CONTEMPT LAWS (in light of Shri Prashant Bhushan’s conviction)

~ Rishav Rastogi & Chelsea Das

BACKGROUND

Shri Prashant Bhushan’s conviction for the contempt of the Apex Court has garnered voices from all quarters demanding the repealing of the Contempt of Courts Act 1971 (‘the Act’). This blog will examine how the aforementioned act stands well on its legs and how the judgement needs to be scrutinized in isolation without implicating the aforementioned statute.


The source of the Act is the Constitution of India itself; specifically, articles 129 and 215. These articles establish the High Courts and the Supreme Court as ‘courts of record’, thereby empowering them to incriminate parties for their contempt. So, to cast aspersions on the Act as a token legislation is misplaced and requires a rather limpid understanding of the bare act. Section 2(c) under which Bhushan was convicted has in particular been heavily censured. Critics of the judgement state that section 2(c)[i] (defining ‘criminal contempt’), curtails free speech and expression and is hence regressive. A simple counter-argument to that is that the law of contempt is one of the recognized exceptions under article 19(2) to the freedom of speech and expression guaranteed under article 19(1) of the Constitution of India.

Moreover, it is established that the liberty of free expression cannot be equated or confused with a license to make unfounded and irresponsible allegations against the judiciary[ii].

RELEVANCE OF CONTEMPT LAW IN INDIA

The rationale of contempt jurisdiction is sound, in that it safeguards the interests of the public which would be adversely affected, if the authority of the court is disparaged and public confidence in the administration of justice is debilitated[iii]. In its absence, there remains no mechanism to ensure that the courts of the land are not subjected to unreasonable slander and that its orders/decrees are complied with. Although procedurally indispensable, the role of the Act is limited to define what constitutes contempt of the court and the rules and procedures thereof. It is the evolving jurisprudence in contempt law that the courts predominantly rely on to determine conviction.

Notably, certain judgements of the Supreme Court; Perspective Publications vs State of Maharashtra[iv] and Dr. D.C. Saxena v. Hon'ble the Chief Justice of India[v] have gained immense precedential value and stood the test of time. In the former, the Apex court pronounced that a distinction must be made between a mere libel or defamation of a judge and what would amount to a contempt of the court. The test would be whether the impugned publication is designed to interfere with the due course of justice or the administration of law by his court or whether it is a mere defamatory attack on the judge. Only the former would be punishable as contempt. In the latter case, the Supreme Court delineated the scope of the term ‘scandalizing’ as envisaged in section 2(c) of the Act. It held that it is an expression of scurrilous attack on the majesty of justice which is calculated to undermine the authority of the courts and public confidence in the administration of justice.

PRASHANT BHUSHAN’S CONVICTION

One simply cannot side with Bhushan’s conviction to the extent that there were several anomalies that culminated in the conviction[vi]. The petition was dealt with rather expeditiously despite not involving larger questions of law, Bhushan’s written request to the CJI to place the petition to a Bench not involving Justice Arun Mishra given their controversial history, was overlooked without good reason and the contemnor’s affidavit in reply was disregarded at large. That being said, cases like Bhushan’s are far and few in between. Diluting the Act or repealing it on the basis of one questionable criminal contempt conviction would only stand to benefit vested interests of the executive and consequently weaken the independence of the judiciary.

CONCLUSION

It is our humble submission that the law is not antithetical to justice, but simply designed to uphold the majesty of the law and prevent denigration of the courts of the land vis-s-vis delivery of justice. The law of contempt itself encompasses exceptions as incorporated in Sections 3 to 7 of the Act. Section 13(b) provides for justification in public interest and invocation of truth as a defense. That said, there needs to be greater uniformity in the Courts’ interpretation of Contempt law because if Shiv Shanker[vii] was exonerated for his scathing remarks on the judges of the Supreme Court, why wasn’t the same courtesy extended to Bhushan for his relatively benign tweets? There ought to be more consistency in deciding what amounts to ‘scandalizing the court’ and what doesn’t.

Picture: kailashafoundation.org

[i] Section 2 (c), The Contempt of Courts Act, 1971 [ii] Radha Mohan Lal v. Rajasthan High Court (2003) 3 SCC 427 [iii] Brahma Prakash Sharma v. State of U.P AIR 1954 SC 10 [iv] Perspective Publications vs State of Maharashtra (1971) AIR 221 [v] Dr. D.C. Saxena vs Hon'ble The Chief Justice Of India (1996) SCC (7) 216 [vi] Prashant Bhushan, re, (2020) SCC Online SC 698 [vii] P. N. Duda v. Shiv Shanker - AIR 1988 SC 1208.

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