The Contempt of Court Act is the relic of British-India

Venturesome vilification of the majesty of law arising from the comments on Twitter by Prashant Bhushan “have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution… and the office of the Chief Justice of India” constrained the Supreme Court to initiate suo motu contempt proceedings against the champion of Public interest litigation.

The Contempt of Court Act is the relic of British-India being enacted firstly in 1926, amended in 1952, and further amended in 1971. Before 2006 the truth was no defense but the legislature of independent India thought in its wisdom to contain the misuse of this law section 13, of 1971, was replaced.

Whereby, in section 13(2), the contemnor was given the right to justify the act of contempt by pleading truth. Earlier the truth was no defense in the proceeding of contempt. Although the truth is a defense indeed and in all sum and reality it is no defense.

The Supreme Court in the case of Subrata Roy Sahara vs Union of India and Ors expressed its deep anguish towards the stalwarts of the Bar vide para 8, 43, 44, 59 and 94-97 of the judgment. The head note B of the journal (supra) is being quoted in the larger interest of brevity and the same reads thus:

“Advocates – Senior Counsel – Duties of – Duty to make submissions that reflect the true factual position known to them – making of baseless allegations/insinuations of violation of principles of natural justice and fundamental rights by Senior Counsel against Court – Attempts to overawe the court with psychological offensives and mind games, with ferocity and grandiloquence, without any factual basis – Strongly repulsed and stringently deprecated – Submissions of Senior Counsel for petitioner that Supreme Court had directed detention of petitioner herein for non-compliance with court orders without any notice or opportunity to explain himself or show cause – Held, the Senior Counsel who represented the petitioner were surely insincere to the cause of justice when they drummed their assertions without blinking an eye: since they were aware that the factual position was otherwise – For the Senior Counsel for the petitioner to advance such submissions, to state the least, was unimaginable – They surely ought to have known better because they had appeared in the contempt proceedings in defense of the contemnors and were aware of all the facts – Advocates Act, 1961, Ss. 16 and 36”.

The anguish (supra) is very disturbing, despite so, the then judges took a liberal view of the matter and the law of contempt was given a go-by.

The noted Constitutional expert and renowned jurist, namely, late H.M. Seervai said regarding the credibility of the Supreme Court in relation to the interpretation of law and Constitution, the same reads thus:

“In the preface to the Supplement to the Third Edition of this book I said that with notable exceptions, the decline in the standard of Supreme Court judgments had become pronounced. I said that in Vasant Kumar’s Case (’85) A.SC. 1495, the Supreme Court reached its lowest point. However, after the Supplement had been nearly printed, in a judgment delivered on 2 November 1987, in P.N. Kumar v. Municipal Corpn., Delhi, the Supreme Court reached an even lower point. I realize that in a time of falling standards it is unwise to submit in which judgment the Supreme Court has reached its lowest point.”

In the laudable Spycatcher judgment by the House of Lords in 1987, British newspaper Daily Mirror published an upside-down picture of three law Lords with the caption ‘you old fools‘. Lord Templeman despite being explicitly and unambiguously conscious to vilification declined to put in motion the law of contempt against the editor and the publisher of the newspaper.

When the judges were confronted with the story (supra) as to why the contempt was not initiated. The most appreciable and commendable answer was that the judges while delivering the judgment do not take notice of personal insult unless it is accompanied by malice.

It is being made clear without mincing words that the author is in no way supporting the act of the contemnors but wants to highlight that the frequent use of the tool of contempt dehors the malice will not raise the stature of Courts.

The scheme of Justice as enshrined in chapter IV of part III, chapter V and VI of part IV of the Constitution of India has to be preserved irrespective of deliberate or non-deliberate odds. The Chariot of Justice cannot move without the effective support of both the wheels of Bar and Bench. Therefore, it is imperative for every member of Bar that nothing should be done at their instance or instigation which brings disrepute to the courts of law.

For illustration, it is stated that the right-thinking person(s) are too afraid of the arbitrary working of the police. Police are condemned generally for their various improper act(s). We should not forget that at the same time, without the existence of the Police force, the orderly society cannot exist.

We have recently seen in the time of National Disaster, herein, Covid-19, the kind of valorous services were rendered by the Police despite the great risk to their life. In the same way, the orderly society cannot exist without the strong system of dispensation of justice.

Lord Atkin in a celebrated case of Ambard vs. Attorney General for Trinidad and Tobago (1936), rightly said that “the path of Criticism is a public way, the wrongheaded are permitted to err therein; provided the members of the public abstain from imputing improper motives. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

Another globally acknowledged, British judge Lord Denning, in Metropolitan Police Commissioner (1969), rightly observed that “contempt jurisdiction undoubtedly belongs to us, but which we will most sparingly exercise; more particularly as we have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us.”

In one of the cases of contempt before the English Division Bench of the Patna High Court, wherein, the notice of Contempt was issued to a Marwari trader. The trader was represented by Sir Tej Bahadur Sapru who in the history of British India and, thereafter, occupied a very special name in the Bar.

Before Mr. Sapru could open the case, the Bench said, we are inclined to discharge the notice if your client is ready to tender unconditional apology. Mr. Sapru pounced upon the utterance of judges like a wounded tigress and said in a high pitch that my Lord, I have accepted this brief only on the condition that my client will not tender any apology let alone an unconditional apology.

The Judges in their upright judicial wisdom said alright argue on merits. The case was argued and the judges were pleased to discharge the notice of contempt.

In the present day, it can hardly be seen despite legislative command, the truth as a defense. With all humbleness, the judges are requested to introspect and do best at their end to maintain the delicate balance between the Bar and the Bench.

The law of contempt in the juristic perception of the great British Jurist, Bentham, is equivalent to the irritating behavior of a dog. In his tersely described illustration “when a dog does something nasty you beat it. Similarly, the law of Contempt of court is known only when someone is punished, and thus it is a standing threat to freedom of speech”, herein, Article 19 (a) of the Constitution of India.

If we want to keep the clock of Justice tick-tock, it is inalienably essential that the law should remain as it is. The fountain of Justice is not permitted to be sullied by the person(s) who wants to overawe the Judges for their nefarious ends and means. I don’t want to comment on the merits of the case under adjudication; the same being sub judice.

It would be much better if the Constitutional Courts adhere to the rule of self-restraint and unless the utterances uttered by the contemnor(s) are found to be dominated by malice and that too beyond any shred of doubt; the contempt be not put in motion.

Taking cognizance of the tidbits of criticism as a personal insult to the individual Judge or Judge’s merits to be ignored. As those who are holding the rein of the scheme of Justice, should not waiver while delivering judgment; this principle has to be followed religiously. The precise quoted phrase is “so the hands not waiver while delivering judgments“.

What was said by late H.M. Serwai and what has been said by Prashant and the other stalwarts in the judgment (supra); if weighed religiously in terms of the law, the view expressed by others would out-weigh the view of Prashant Bhushan.

This goes to show beyond any cavil that the Judges of that era were more sensitive to the right of freedom of expression as per Article 19(3) of the Constitution of India and refrained to back the wrong horse.

Before parting with this write-up, I have no hesitation to say that every member(s) of Bar, litigant(s) or the Judge(s) irrespective of their stature who with the intent of malice lower the dignity of Courts should be dealt sternly lest the message percolates that the Goddess of Justice does not see who the person is before it and acts only in accordance with the law.