Scandalizing the Court
Article 129 and Article 215 of the Indian Constitution basically deals with the contempt powers of the Supreme Court and High Courts respectively which means that they can hold anyone for contempt for not obliging with their order (civil contempt) and they can also hold guilty anyone who scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court. In this article we will delve into the meaning of scandalising the court and how our judiciary have dealt with this phrase which can trace its origin to England when high level of respect was necessary for public order and maintaining public trust in the judiciary.
Though the Supreme Court and High Courts derive their power to punish the contempner from the constitution, however, an act was passed in 1971 called The Contempt of Courts Act. This act deals with the exceptions to contempt like innocent publications and the 2006 amendment added another defence: “truth”. The Supreme Court has held that though Parliament can make procedural aspects of contempt but the power of the Supreme Court and the High Courts cannot be denuded, limited and restricted by the act of 1971. This means the Courts have given themselves unbridled powers to hold anyone guilty of contempt whoever they think fit the vague and overarching definition of the phrase ‘scandalising the court’.
The Supreme Court in the case of In re, Arundhati Roy held that “ The expressions ‘scandalize’, ‘lowering the authority of the court’, ‘interference’, ‘obstruction’ and ‘administration of justice’ have all gone into the legal currency of our sub-continent and have to be understood in the sense in which they have been so far understood by our courts with the aid of English law, where necessary. Sub-clause (i) of the definition was held to embody the concept of scandalising, as discussed by Halsbury's Laws of England, 3rd Edn. in Vol. 8, p. 7 at para 9. Action of scandalising the authority of the court has been regarded as an “obstruction” of public justice whereby the authority of the court is undermined. All the three clauses of the definition were held to justify the contempt in terms of obstruction of or interference with the administration of justice.”
However, in the case of In re Mulgaokar Hon'ble Justice V.R. Krishna Iyer cited down six facets or guidelines for the courts dealing with contempt proceedings and they are:
● The judges should deal with severity when there is an unfounded and/or gross attack and the attack is calculated to obstruct or destroy the judicial process otherwise it should be ignored
● A happy balance must be struck between the freedom of speech and contempt power of courts. But how it is to be done is not mentioned in the judgment.
● The power of contempt should not be used as a personal protection for a judge but only for protection of the judicial process from obstruction. However what would amount to a personal attack on the judge and what will amount to obstruction or scandalising the court is not cleared.
● The freedom of speech of the fourth estate should be given free play with reasonable restriction even when it is about the highest court
● The judges should not be hypersensitive with handling criticism, vulgar or condescending remarks and exercise judicial rectitute
● When the court comes into conclusion after evaluation all the facts in toto that the attack was indeed scurrilous, unwarranted and it undermined the judiciary and hampers its process then the courts strike a blow on the contemptner who undermines rule of law.
The Courts’ attitude towards Contempt proceedings
There are many instances where the courts have taken a very strict response against the contemptner. In the case of the High Court of Delhi on its own motion vs Asian Age , the court held that “An important social interest lies in the fair and impartial administration of justice. This social interest is sought to be protected by inclusion of, what is called, ‘Contempt of Court’. This power exists to maintain the continuity of the crystal clear flow of the stream of justice by sustaining the confidence of the public at large in the free administration of justice”. Again the Court held in the case of Brahma Prakash Sharma vs State of UP that an contemptuous statement is any comment “on the judge or judiciary as a whole with or reference to particular cases, causing unwarranted and defamatory aspersions upon the character and ability of the judge” and the contempt proceedings cannot be commenced otherwise.
All the tests applied by the court in contempt proceedings are very subjective in nature and it heavily depends on the discretion of the judges. For example in the case of In re Arundhati Roy the petitioner stated dharma in front of Supreme Court and in affidavit she stated that “ 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.” She was punished for contempt and the Supreme Court held that the punishment for contempt depends upon the “publicity of the statement” and as she wrote the above statement in her affidavit when asked by the court which was not in public circulation, it is not ‘contempt’. However it proves my point that the courts have wide discretion in this matter. It is a universal fact that when this level of discretion is vested in some authority it is presumed that it will be used wisely and with self constraint. However when we see the cases like in Meghalaya where the State High Court held the Shillong Times Editor for contempt when an article was published on the perks and facilities of retired judges and imposed a 2 lakh fine and ordered them to sit on the corner of the court show a different picture altogether.
However many times it has taken a high road like in the case of In re Arundhati Roy. In the case of Rajesh Kumar Singh v. High Court of Judicature of M.P., the court said, “ the power to punish for contempt is not intended to be invoked or exercised routinely or mechanically, but with circumspection and restraint. Courts should not readily infer an intention to scandalise courts or lowering the authority of court unless such intention is clearly established. Nor should they exercise power to punish for contempt where mere question of propriety is involved.” In the case of P.N.Duda vs P.Shiv Shankar where the law minister had delivered a speech stating that the Supreme Court is composed of elite class and have unconcealed sympathy towards zamindars however the court did not find anything in that speech which can be said to be scandalizing or lowering the authority of court and it held that “ The speech of the Minister read in its proper perspective, did not bring the administration of justice into disrepute or impair administration of justice.” Though the court did show concern on the language used by the Minister.
Hence analysing the above decisions and judgments it is quite evident that there is no consistent line of thought when it comes to criminal contempt proceedings mostly it depends upon the publicity of the statement or comment and the public stature of the contemptner and as a result talking about perks if retired judge can lead to sitting in a corner and calling the whole Supreme Court biased towards zamindars can be held as healthy criticism.
The Courts have many times defended the power of contempt, saying that courts can not defend itself through ordinary methods like filing a suit for defamation. As Lord Denning expressed himself :
“All we would ask is that those who criticize us will remember that from the nature of our office, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication.” .
But on the other hand this power is traced back to ancient times when it was necessary to maintain public order through fear but now times have changed. We are living in a free democracy where everybody is entitled to their beliefs, views and convictions. The judiciary is heavily guarded from executive action through separation of powers and the Supreme Court has also immuned the judges (Supreme court and High Courts) from any criminal proceedings without consulting Chief Justice of India. We inherited this law from the English who have also moved on from it since 2012. In the US there is no such offence as scandalising the court. However the Hon’ble Supreme Court has held that contempt power of court is within the reasonable restriction given in Article 19(2) of India Constitution so unless it is revisited by court it is the law of the land. In the meantime efforts can be made to regulate the power vested in courts so that it is not used arbitrarily and have a chilling effect upon freedom of speech and expression as dissent and criticism is what makes a stagnant society dynamic and mature. The Supreme Court and the High Courts being the protector of fundamental rights should themselves evolve a consistent line of thought in contempt proceedings to bring certainty into the law.
This Article is written by Aakarsh Singh, 5th Year Student of Dr. Ram Manohar Lohia National Law University, Lucknow
● SCC Online https://www.scconline.com/Members/Search.aspx
● Indian Kanoon https://indiankanoon.org/
● Other Sources:
1. Parliament Publications UK, (July, 28. 2020 11:45 pm) https://publications.parliament.uk/pa/ld201213/ldhansrd/text/121210-0001.htm#1212107000682