Arundhati Roy. File photo.
Courts have routinely invoked contempt to punish expressions of
dissent, when such expressions often posed no threat to the
administration of justice.
Through a most pernicious act of judicial fiat, in a judgment delivered on December 23, 2015,
Justice A.B. Chaudhari, sitting on the Nagpur Bench of the Bombay High
Court, issued notice to the Booker Prize-winning writer Arundhati Roy
for committing what he believed constituted a clear case of criminal
contempt of court. The decision was rendered on an application for bail
by the Delhi University professor, G.N. Saibaba. Not only did the court
reject Dr. Saibaba’s plea, in spite of his substantial disabilities, it
also hauled Ms. Roy up for writing in support of the professor, and in
criticism of the Indian state, including the country’s judiciary. In
initiating contempt proceedings, Justice Chaudhari’s judgment has
exemplified the state of the right to free speech in India — a liberty
fractured by colonial vestiges such as the law on contempt, which we
have embarrassingly embraced as a supposed necessity to uphold the
majesty of our courts.
The conventional defences adopted in favour of the judiciary retaining
powers to punish acts of contempt invariably point to the Constitution.
Article 19(1)(a) no doubt grants to the country’s citizens a right to
freedom of speech and expression. But the ensuing clause, Article 19(2),
limits this freedom, and accords the state the express authority to
make laws that establish reasonable restrictions on speech, on various
grounds, including contempt of court. When in 1971, Parliament enacted
the Contempt of Courts Act, with a purported view of defining and
limiting the powers of courts in punishing acts of contempt, it was the
inherent constraint in Article 19 that it took refuge under. But this
statute is neither reasonable nor in keeping with the fundamental
mandates of a legitimate government.
Contempt’s broad contours
Broadly, the 1971 law recognises two common forms of contempt. First, it
defines civil contempt to include, among other things, a wilful
disobedience of a court’s judgment, order or direction. And second, it
defines criminal contempt to include publications that do one or more of
the following: (a) scandalise or lower the authority of any court; (b)
prejudice or interfere with the due course of any judicial proceeding;
or (c) interfere with or obstruct the administration of justice in any
other manner.
As is evident, there are clear divisions between different types of
contempt. Some of these categories are more obviously justifiable as
offences. For instance, the court’s power to punish acts that tantamount
to disobedience of its orders, or indeed a court’s inherent authority
to ensure that its hearings are conducted in a fair and undisturbed
manner, is required to ensure that we subscribe to a basic rule of law.
But the idea that the judiciary can also punish acts that have very
little to do with the actual administration of justice and all to do
with the impact of speech on the institution’s supposed reputation in
the eyes of the public is substantially more problematic. Notably, the
power to punish acts which ostensibly scandalise or lower the authority
of the court speaks not to the majesty of the institution, but to an
ingrained sense of insecurity, coupled with an almost despotic view of
its own infallibility, that the judiciary seems to possess. In a
democracy, properly understood, it’s difficult to locate any
justification for thwarting speech at the face of the judiciary,
notwithstanding the fact that contempt of court is one of the explicitly
spelled out restrictions to the guaranteed right to freedom of speech
under the Constitution.
During the course of drafting the Constitution, there was, writes the lawyer Gautam Bhatia in his new book, Offend, Shock, or Disturb: Free Speech under the Indian Constitution,
“a marked uncertainty among the framers about the understanding of
contempt they were inserting into the Constitution”. When T.T.
Krishnamachari suggested the inclusion of contempt of court as one of
the permissible limitations to free speech, he was met by members who
were passionate in their opposition to the category’s inclusion. One of
these challengers, Pandit Thakur Das Bhargava, believed that contempt of
court was simply not germane to a discussion on freedom of speech and
expression. In his understanding, powers to reprimand contempt concerned
only actions such as the disobedience of an order or direction of a
court, which were already punishable infractions. Speech in criticism of
the courts, he argued, ought not to be considered as contumacious, for
it would simply open up the possibility of gross judicial abuse of such
powers. Almost none of the responses to Bhargava in the Constituent
Assembly met his core argument: that the guarantee of free speech in a
democracy ought to serve as a value unto itself.
Courts and criticism
Bhargava’s warnings have since proved prophetic. India’s courts have
routinely invoked the long arm of its contempt powers to often punish
expressions of dissent on purported grounds of such speech undermining
or scandalising the judiciary’s authority. But, while doing so, the
court has rarely conducted a strict analysis on whether those acts posed
any actual threat to — or interfered in any direct manner with — the
administration of justice.
For example, in 1970, the Supreme Court famously upheld a conviction of
contempt of court against the former Chief Minister of Kerala, E.M.S.
Namboodiripad. During his tenure as Chief Minister, Namboodiripad had
apparently delivered a speech arguing that judges were guided and
dominated by class interests. “To charge the judiciary as an instrument
of oppression, the judges as guided and dominated by class hatred, class
interests and class prejudices, instinctively favouring the rich
against the poor,” wrote Justice M. Hidayatullah, “is to draw a very
distorted and poor picture of the judiciary. It is clear that it is an
attack upon judges, which is calculated to raise in the minds of the
people a general dissatisfaction with, and distrust of all judicial
decisions. It weakens the authority of law and law courts.”
The judgment made no effort at showing any actual link between
Namboodiripad’s statements and the supposed weakening of the courts’
authority. In so doing, a disturbing trend was set in motion, which
culminated in a 1996 decision in which the Supreme Court ruled that “all
acts which bring the court into disrepute or disrespect or which offend
its dignity or its majesty or challenge its authority” amount to
punishable contempt. The ultimate consequence of this ruling is typical
of Indian free speech jurisprudence: a complete eschewal by the courts
of any regard for individual choice and liberty, coupled with a belief
that some forms of speech are to be muzzled purely by virtue of their
content as opposed to any actual anti-democratic harm stemming through
their expression.
In 2006, with a view to reducing the breadth of the judiciary’s powers,
Parliament amended the Contempt of Courts Act of 1971. The law now
provides two additional safeguards in favour of a dissenter. One, it
establishes that a sentence for contempt of court can be imposed only
when the court is satisfied that the contempt is of such a nature that
it substantially interferes, or tends to substantially interfere with
the due course of justice. Two, the truth in speech now constitutes a
valid defence against proceedings of contempt, if the court is satisfied
that the larger public interest is served through the publication of
such content. In spite of these amendments, though, courts have
continued to routinely equate the supposed scandalising of the
judiciary’s authority to an act of contempt.
Constitutional lawyers have proposed many different justifications for
the right to free speech. As legal philosopher Ronald Dworkin argued,
these justifications usually fall into one or the other of two larger
categories. The first involves an instrumental understanding of free
speech: that to allow people to speak freely and openly promotes good
rather than bad policies. The second justification is premised on a
larger platform of a commitment to individual autonomy, of treating
people with equal concern, and of therefore respecting their right to
speak freely. Punishing speech for supposedly scandalising or lowering
the authority of the court falls afoul of whichever rationale we might
wish to adopt in our theorising of the abstract right to free expression
in India.
Interestingly, in England, whose laws of contempt we’ve so
indiscriminately adopted, there hasn’t been a single conviction for
scandalising the court in more than eight decades. What’s more, in 2013,
after a recommendation by its Law Commission, the country altogether
abolished as a form of contempt the offence of scandalising the
judiciary. In so doing, it gave credence to Lord Denning’s
characteristically precise opinion in a case where contempt charges had
been pressed against Queen’s Counsel Quintin Hogg for what was an
excoriating attack on the courts in Punch magazine. “Let me say
at once that we will never use this jurisdiction as a means to uphold
our own dignity,” Denning wrote. “That must rest on surer foundations…
We do not fear criticism, nor do we resent it. For there is something
far more important at stake. It is no less than freedom of speech
itself.”
(Suhrith Parthasarathy is an advocate practising in the Madras High Court.)
Source: The Hindu
