Kerala HC admits petition seeking to declare contempt of court jurisdiction as unconstitutional [Read Petition]

The Division Bench of High Court of Kerala, comprising of Acting Chief Justice Thottathil B Radhakrishnan and Justice P.V Asha has admitted a writ petition seeking to declare the exercise of contempt of court jurisdiction as unconstitutional.

The public interest litigation has been filed by Advocate Mathews J Nedumpara contending that contempt jurisdiction amounted to negation of powers of free speech of the general citizen and had its origin to dark ages.It was also said that the exercise of such jurisdiction has ceased to exist in civil countries. The petition stated :-“The Petitioner submits that the jurisdiction of contempt of Court has been so widely abused, the Petitioner begs to submit, not for securing the very primary object for which the said jurisdiction has relevance, namely, to secure a free, impartial and independent administration of justice, but to silence dissent and criticism, trammeling the very foundation of a constitutional democracy, namely, the right to dissent”. 

The petitioner further relying on legal maxim contended that a citizen’s right to seek recusal of a biased judge is now dealt by turning him to face the heat of contempt . It has been contended in the Writ Petition as follows:-“ Nemo debet esse judex in propria causa – no one can be judge in his own cause – is a fundamental principle of law. If a Judge is biased, he is a coram non judice. It is well settled that a litigant has a right to seek recusal by a particular Judge, but of late a litigant is convicted for contempt of Court for seeking such recusal. Without meaning any disrespect to the Hon'ble Judges, we do not have a single instance where a Judge has convicted himself of committing contempt of his own Court.”

According to the Petitioner "The contempt of Court law, as it stands today, therefore, ought to be completely repealed; heavens are not going to fall; in the civil law countries, justice is administered in no less an efficacious manner as ours without there being a Contempt of Court law.  In the United States also, the concept of contempt by “scandalizing the Court” is non-existent; so too in most of the common law countries.  Whether the contempt of Court law should be completely repealed is for the Parliament to decide.  The Petitioner is not asking for that.  The relief which the Petitioner seeks in the instant petition is far narrower in scope.  He only seeks a declaration that the words “scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any Court” appearing in Section 2(c)(i) of the Contempt of Courts Act be declared as void because it completely abrogates the freedom of speech. "

The Petitioner has sought the following reliefs

(a)          declare that the Contempt of Courts Act, 1971 is unconstitutional and void, or at least Sections 2(c)(i), 14, 16 and 17(5) thereof, since the said Sections render the freedom of speech nugatory, empower the Court to be a Judge of his own cause, make a distinction between Judges of the subordinate Courts and those of the superior Courts and permit self-incrimination/shifting the burden of proof, at least in part, on the accused/contemnor, respectively;

(b)          without prejudice to prayer (a) above and in supplemental thereof, declare that Section 16 of the Contempt of Courts Act, 1971 does not contemplate any distinction between Judges of the subordinate Courts and those of the superior Courts, namely, of the Supreme Court and High Courts, and the concept of a Judge committing contempt of his own Court and the liability to be prosecuted and punished where a Judge commits contempt of his own Court is equally applicable to Judges of the superior Courts as in the case of the Judges of the subordinate Courts;

(c)           without prejudice to prayers (a) and (b) above, declare that sub-Section (5) of Section 17 of the Contempt of Courts Act, 1971 has to be read in consonance with Article 20(3) of the Constitution of India, which provides that “no person accused of any offence shall be compelled to be a witness against himself”; that the common law principles, namely, accusare nemo se debet nisi coram deo, namely, nobody is bound to incriminate himself or nemo tenetur seipsum accusare – no one shall be compelled to bear witness against himself – have to be read into the said Section; that the guilt of a person accused of an offence ought not to be wrung out of him, but has to be proved against him by other men and means; that he is entitled to maintain absolute silence and the burden of proof is entirely on the prosecution/accuser even if the accuser is the Court itself and that the said Section has to be construed accordingly to protect it from challenge to its constitutionality;

(d)          declare that for the Contempt of Courts Act, 1971 to pass the test of Article 13 of the Constitution, namely, that it does not violate the fundamental rights and even where violation of the fundamental right is limited, such violation does not result in the destruction of the basic structure of the Constitution of which the foundational pillar is the concept of rule of law, the Parliament is duty bound to bring into existence a credible mechanism by appropriate amendments to the said Act so as to ensure that not only contempt at the hands of lawyers and litigants, nay, the public at large, are prosecuted and punished, but also contempt at the hands of Judges of all Courts irrespective of their stature, keeping particularly in mind that a contempt of Court proceeding, as any other prosecution, none  could be a Prosecutor and Judge, both at once;

Read the petition here.