"Is Criminal Contempt a Power Past it's Time? Summary of Panel Discussion

The key speakers for the panel discussion held on February 25th, 2023 were Mr. Prashant Bhushan, public interest lawyer, Supreme Court of India; Mr. Sanjoy Ghose, Senior Advocate, Delhi High Court & Ms. Arti Raghavan, advocate and legal counsel for Kunal Kamra in contempt proceedings before the Supreme Court. Ms. Ratna Appnender provided a brief summary of the report "The judicial power of Contempt: Upholding authority or restricting speech" and the panel discussion was moderated by Ms. Mangla Verma, co-founder Part III.

A summary of the panel discussion is provided below:

Mangla- What has been your experience in engaging with the law and the concept of criminal contempt in the law.?

Mr. Prashant Bhushan emphasized on the significance of the issue, with him being subjected to criminal contempt while also challenging the constitutional validity of the same. Criminal contempt as per him is divided into two parts; one dealing with the administration of justice like lawyers not allowing the courts to function. That is actionable in the eyes of the Supreme Court. Similarly, threats to judges and witnesses is also criminal contempt. Problem lies with the second part that tends to ‘scandalize the court’. This finds its origin in the colonial British era where courts were considered to be representative of the Crown, hence an offence. Unless the actions and judgment of the judiciary instill public confidence, it does not matter whether what an individual thinks or says about the same.

He mentioned one of the instances where he had expressed his perception on corruption and the judges without naming any particular judge. To quote Lord Denning, he said that the functioning of the courts must rest on surer foundations. Mr Bhushan while recalling his controversial tweets, that led to initiation of criminal contempt proceedings against him, made observations on how there was an inherent conflict of interest where judges often became judge in their own cause.

Mangla - one of the perceptions is that Judiciary operates behind closed doors and the fear that litigants might have is that even though different judges might be hearing the proceeding but the judges are in close association with each other. How does the law reflect on the credibility of the judiciary when they are sitting as judges on their own causes and this law aims to protect the dignity of the judiciary.

Mr. Sanjoy Ghose - Mr. Ghose talked about two instances, one when the people of the US got to know about RBG’s death, that is Ruth Bader Ginsburg, the judge of the US Supreme Court. She was an iconic figure because of his famous dissents. The day she died, people gathered spontaneously with candle lights, her pictures, and flowers. It was like a spontaneous tribute to her. And the another instance is when the US Supreme Court overruled Roe vs. Wade, and said that women do not have the right to moral integrity and privacy in the matters of abortions. The entire country demonstrated and ripped apart the judges/supreme court through demonstrations, comedy shows, and journal writings. And this was in fact instrumental in the Democrats being able to save an absolute wash out in the house of representatives/congress. Mr. Ghose emphasized that the credibility cannot be ensured by sending someone to jail or by imposing fines. The credibility comes from the way one delivers justice and the way one shows courage in being impartial, compassionate and fair.

He adds further that one of the criticisms of the Contempt of Court’s Act is that it is extremely judge centric, very subjective and it goes to the root of the personality of the judge and it also goes to the personality of the litigant. He also said that Mr. Bhushan was imposed with a fine of Rs. 1 in a contempt proceeding but one must not forget that Mr. Bhushan has a stature so it must not embolden others that they would get away with one rupee fine. There is no uniformity when it comes to the Act. It is time that we rethink the Act because it has become archaic and needs to be done away with. Contempt and Defamation go hand in hand and it is time that we make our law on defamation more effective so that there is a kind of check on reckless tendency to get on judges and judgements.

On the specific question of social media and whether the judiciary should really be concerned with what is said, Ms Arti Raghavan expressed a lack of understanding and analysis of the nature of social media, the virality of content and the attention economy. On one hand there are extremely problematic and irresponsible statements made often under the cloak of anonymity, there is also discernment on the part of the public consuming it. The judiciary have often grappled with this contention and have expressed their concerns regarding social media. Today as we see, a lot of constitutional courts are having access to rather prominent public platforms where their speeches are widely reported in the form of public engagements. They are able to address and engage with criticisms, also countering them, both on social media and other platforms. So this antiquated notion that judges must be confined only to their judgements is not strictly correct.

On clarity in terms of the text and the arbitrariness in the law, she raised an important point on how constitutional courts derive their power to punish for contempt comes under them being court of records as well. Why must a court have such a power and the scope of it, remains vague. This therefore, is not only in the act but also embedded in the constitutional structure. The question arises as to why a court of record must hold such power of punishment for criminal contempt.

Mr. Prashant Bhushan reflected that social media is a more democratic medium as opposed to other forms of media. This makes it easier to puncture the bogus and unfair criticisms and allegations. Highlighting the role of mainstream media in spreading hate and falsehood, he held the view that countering allegations on social media is relatively easier. In his opinion, threatening a witness is clearly an obstruction in the administration of justice and should be made actionable while the contentious clause of ‘scandalizing and lowering of the authority of the court’ must be done away with.

Mangla - When somebody makes an allegation of corruption against a judge, he is starting out with very limited and unverified information. Then, how does one ask for accountability and take the defense of truth in such situations?

Mr. Sanjoy Ghose - It is a major issue that we are dealing with. It is difficult to think of accountability when we start off with a system of extreme opacity. We do not know why certain people are appointed as judges and the rationale behind the imposition of certain memorandum of procedures. But, in spite of these procedures, the rules are forgotten when it comes to certain people and their sons or relatives. He says that accountability and independence are very relative. Further, independence of the Bar is very critical for the judiciary to be independent. If the judiciary and Bar continue to deal in secrecy and continue to function with adjustments and accommodation while making appointments then there is not hope. Mr. Ghose says that he does not have a clear answer to the question but he wants the participants to think about the instance that the allegations of Mr. Bhushan on the judiciary have been discussed in the judicial corridors since long, the only difference is that Mr. Bhushan had courage to voice those allegations. And, for such allegations that were played out in secrecy, it is impossible to have evidence to prove the truth of the allegation beyond doubt. The judicial system has been raising alarm for a long time but sadly, the people incharge of the system are putting it inside the carpet. And, because as the people handling it are not ready to deal with the mess in their own system, this also gives opportunity to the executive to meddle with the independence of the judicial system.

Mangla - When it comes to independence and accountability, we count a lot on artists, journalists and other media persons who put forth criticisms in a manner that people can understand. How do you think, in contempt cases where you try to shut up a person, often leading to self-censorship, these proceedings play out?

Ms. Arti Raghavan concurred with the fact that contempt proceedings have significant cost and time implications along with professional implications as well. They act as a deterrent against speaking out as we have seen in instances before. It is problematic in the sense that they also pose a huge threat to a successful continuation of one’s career. She remarked on how there was a general inability of the institution to take it on the chin when there is criticism which is not necessarily in a palatable and dry and boring form. There is a distinction between criticizing judgements on one hand and the motive behind those judgements on the other. The question then arises is how should one use truth as a defence in these situations when truth is not a handy set of documents that one can furnish. Clearly, it has a chilling effect on freedom of expression but holds true for cases of criminal defamation and a host of other provisions in the penal code.

Sadly, our laws are power agnostic that don't recognise relative positions of power which they ought to.

Mangla - Do you think that there is any possibility of reform when it comes to the opaque terms such as scandalizing the court and lowering its authority? Or the way forward is to completely do away with the aspect of the criminal contempt of court from the law?

Mr. Sanjoy Ghose - There can’t be any kind of upgrade because the concept is very vague. The general law of the land deals with insurrection, violence, defamation; so all the aspects of contempt of court’s act such as overthrowing the authority of the court or scandalizing the court, have already been dealt with by the general law. The Indian Constitution has an inbuilt mechanism for contempt, therefore, even with the legislation of contempt of court’s act, the inherent power of the court to take action on contempt is there. And, we need to accept that even courts don’t know how to use the power of contempt, they always assume that after initiating contempt proceedings the person will apologize. He adds that the act is very subjective and unless there is a real threat to the authority that people have forbidden the system and they do not follow the rulings of the court, we do not need this legislation. Stable democracies like the US and UK have survived without this part of the legislation, so for sure we can survive as well. And if the US supreme court has survived with such a great threshold for freedom of speech then we are not in any danger even if we do away with the contempt of court’s act.

Ms. Arti Raghavan - Courts of law are not like a religion that requires faith in order for people to turn to it. We turn to the courts because those are the only legitimate recourse to redressal, not for any loftier reasons whatsoever. Faith is not a precondition to turn to courts. The fact is that regardless of the opinion of the court, as a citizen, one has the right to seek recourse to it. In her opinion, in a democracy there is no place for a law like criminal contempt.