Rubin Carter, the famous black American boxer, was wrongfully convicted of triple murder in the 1960s. The trial proceedings were criticised for being racially prejudiced. The wrongful conviction became the feature of the song ‘Hurricane’ written by Bob Dylan and Jacques Levy, part of which runs as follows: “The trial was a pig-circus, he never had a chance / The judge made Rubin’s witnesses drunkards from the slums.” The writers were not charged with contempt of court.
Later, in the 1980s, Carter was released from jail based on the finding that his conviction was vitiated by racial bias. Acknowledgement of error is a great judicial virtue. But for pointing out the error, there has to be tolerance on the Bench. The Supreme Court has found lawyer Prashant Bhushan guilty of contempt. The fact remains that both the tweets by Bhushan were critical of a public institution, the Supreme Court.
The judgment can adversely impact judicial reforms in India. Reforms can happen only in a climate of outspoken criticism and unlimited deliberation. Only a continuous process of thesis, antithesis and synthesis can create an organic judiciary that is sensitive to people’s concerns. A pre-censorship on institutional criticism not only curtails freedom of expression, it also ultimately causes damage to the very institution of judiciary.
The judgment by the Bench led by Justice Arun Mishra could happen because contempt power is vested with the court by virtue of the Contempt of Courts Act, 1971, and the provision in the Constitution (Article 129). No one can dispute the need to have such a general power. Violation of a court order should result in an action for contempt or else the order may not be enforced. But the question of criminal contempt stands on a different footing altogether. Section 2(c) (i) of the 1971 Act defined criminal contempt as something that “scandalises or tends to scandalise or lowers or tends to lower the authority of any court”.
The text of the law is so wide and elastic that anything critical could be brought within the ambit of this definition. The provision is vitiated by vagueness, whereas precision is the hallmark of law. The very existence of the law on criminal contempt has a chilling effect on critics at large. The law, therefore, is antithetical to the idea of deliberative democracy. The theme of this piece is simple and straightforward: Law of criminal contempt imperils the judiciary itself by perpetuating the evils within the system. Corruption, misbehaviour, incompetence and inefficiency are the vices affecting the judicial systems across the world and India is no exception.
This is a fact acknowledged even in judicial pronouncements. We have an opaque system of appointment that is not capable of tracing out the best in terms of ethical, intellectual and professional parameters. Like several other countries, we also lack a mechanism that ensures judicial accountability. This could lead to the erosion of juridical values and institutional probity. This is the judicial ecosystem that calls for vigilance from the informal yet strong guardians of the Constitution—members of the bar and the media. This is the point where the law on criminal contempt commits its mischief.
In 2013, the UK built up a twin tower of reforms. On the one hand, it amended the Constitutional Reform Act by democratising the process of appointment of judges to the higher courts with an independent commission and more transparent means for consultations. It also passed the Crime and Courts Act in the same year. Section 33 of the Act talks about “abolition of scandalising the judiciary as a form of contempt of Court”.
The statute clarifies that scandalising the court or judges will not be treated as “a form of contempt of court under the common law of England and Wales”. After a span of about seven years, there is no empirical evidence to show that the judiciary in the UK was put to disrepute due to the change in law. The indications are quite the opposite. In India, the top court by and large has taken a liberal approach that did not favour “the frequent or indiscriminate use” of the contempt power as it will not help “to sustain the dignity or status” of the court (In the matter of: Under Article 143 of the Constitution, 1964).
In Re: S Mulgaokar (1978) and in Shiv Shankar (1988), the court invoked its jurisdictional liberalism. Justice Krishna Iyer in Mulgaokar wrote in his characteristic style: “Every commission of contempt need not erupt in indignant committal or demand punishment, because judges are judicious, their valour non-violent and their wisdom goes into action when played upon by a volley of values, the least of which is personal protection...” Unlike the other limbs of the state, the judiciary is not exposed to the sunlight, ‘the best disinfectant’, as termed by Justice Brandeis.
This, in turn, makes the need for reforms crucial and fundamental. Robert H Bork, who was a great American jurist, said: “Our courts are behaving badly and the public, to the degree it can be brought to understand that, will exert force for reform, a reform that must be structural as well as intellectual and moral.” The sword of criminal contempt annihilates judicial democracy, ultimately rendering the court less and less accountable.
KALEESWARAM RAJ
Lawyer, Supreme Court of India (kaleeswaramraj@gmail.com)