Contempt of Court: A Dinosaur in the Legal Landscape

Courtrooms are usually of Kafkaesque features resembling The Trial, a novel written by Franz Kafka that tells the story of Josef K., a man arrested and prosecuted by a remote, inaccessible authority, with the nature of his crime revealed neither to him nor to the reader. But once-in-a-blue-moon mode, there comes some hilarious tit-for-tat in courtrooms. In one such anecdote, Justice Kuldip Singh of the Supreme Court and G. Ramaswamy, the then-Attorney General of India, are the protagonists. Once Justice Kuldip Singh turned to the then Attorney General Ramaswamy and said: "Mr Ramaswamy, do you think we are fools sitting up here?" In private life, Ramaswamy had a good relationship with Justice Singh, so he could afford to smile at him and say: "Your Lordship has put me in a difficult position. If I say yes, it will be in contempt, if I say no, it will be perjury!"

The anecdote has some relevance today. The Supreme Court has convicted Prashant Bhushan for the offence of contempt by scandalizing the court in a suo motu petition against his tweet dated 29th June 2020. The fateful tweet runs as follows: "CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without mask or helmet, at a time when he keeps the SC in lockdown mode denying citizens their fundamental right to access justice!". Bhushan's second tweet was published on July 22, based on which the Supreme Court issued a contempt notice to Bhushan. The application of impleadment filed on behalf of Aruna Roy and other 15 eminent persons in the matter was rejected by the apex court's registry. The petitioners claimed violation of the rights under Article 19(1)(a) of the constitution, in so far as it causes a chilling effect on their exercise of the right to freedom of speech and expression. Just like in Ramaswamy's case, the honourable court put Prashant Bhushan, and Indian commoners, in a difficult position. Sometimes, they have to make a difficult choice - contempt or perjury!

Contempt of court, by scandalising court, is a dinosaur roaming in India's legal landscape. The enactment of the Indian constitution bound for [social, economic and political] Justice, was a K-T extinction in the nation's legal history. A wide range of colonial species in legal biosphere perished in the K–T extinction. But some anachronisms escaped the extinction. Contempt of court, by scandalising court, is such a Tyrannosaurus rex that survived the K-T extinction. As long as this dinosaur camouflages in our legal ecology, our liberties are in danger.

Contempt of court was imported to India by the British. In 1899 itself, the Privy Council remarkably observed in McLeod v. St Aubyn that scandalizing the court had become obsolete in England. This spirit has been upheld by the British courts when the Daily Mirror published upside-down images of three law lords under the caption 'You Fools' related to the Spycatcher case in1980s; no action was taken against the newspaper for contempt of court. Finally, under the Crime and Court Act 2013, the offence of scandalising the court, as a form of contempt of court, was abolished under the common law of England and Wales. Still, in India, scandalising the court is hanging like a Damocles' sword over the head of free speech. The Privy Council held, in 1899, that scandalizing the court, as an offence, might be useful only in small colonies consisting principally of coloured populations. Do the Indian judges still conceive India in this colonial mindset?

Abhinav Chandrachud, in his Republic of Rhetoric (2017) argues that Indian courts today have excessive powers to punish contempts that scandalize the court, and presents the argument that the contempt jurisdiction should be limited to only those powers to punish contempts which take place in the face of the court, contempts which obviously undermine the dignity and decorum of the day-to-day functioning of the court. He points out that in England, the offence of scandalizing the court has been very sparingly used. Statements made in good faith, even untrue, were outside the ambit of scandalizing the court.

The offence of scandalising the court was first conceived by Sir John Wilmot in Rex v. Almon in 1765. Wilmot stated that the entire aim of the law of contempt was 'to keep a blaze of Glory around judges', to prevent people from making judges 'contemptible in the eyes of the Public'. But Lord Justice Bowen of the Privy Council rightly held that the 'essence of the offence' of contempt was that it is 'against the public, not the judge, an obstruction to public justice'. Lord Denning famously said: "Let me say at once that we will never use this jurisdiction [scandalizing the Court] to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us''. Indian judges have an axiom to learn from Justice William Murphy of the United States who said: "silence and steady devotion to duty are the best answers to irresponsible criticism".

As per an apocryphal anecdote, during a frustrating argument with a Roman Catholic cardinal, Napoleon Bonaparte supposedly burst out: "Your eminence, are you not aware that I have the power to destroy the Catholic Church?" The cardinal, the anecdote goes, responded ruefully: "Your majesty, we, the Catholic clergy, have done our best to destroy the church for the last 1,800 years. We have not succeeded, and neither will you." The same is the story with Indian judiciary.