Define ‘Contempt’ more reasonably
The right to free speech and expression in India is a qualified one at best. Among the many fetters upon the right is Damocles’ sword of criminal contempt. Criminal contempt of court has been the basis of much discussion in recent years, with prominent personalities including Prashant Bhushan and Kapil Sibal being caught in its net alongside comedians and, more recently, a YouTuber and whistleblower known as Savukku Shankar in Tamil Nadu.
According to the Contempt of Courts Act of 1971, criminal contempt refers to any expression that interferes with the due course of judicial proceedings or the administration of justice. It also refers to any expression that “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court”. This last provision is particularly insidious, being open to subjective and arbitrary interpretations that effectively have a chilling effect on the means of any individual to criticise the higher judiciary.
While Shankar’s speech may be viewed by many as intemperate, the question arises as to how mere comments on social media can undermine a pillar of the world’s largest democracy. Indeed, the judiciary is judged by the people for how it administers justice through its judgments and acts of commission and omission. Surely, a few tweets or videos cannot obscure or diminish the institution to which even the poorest and most marginalised continue to turn.
Yet, by forcing a face-off, the Madras High Court cast itself as Goliath to Shankar’s David, turning what many would consider a minnow into a martyr. These confrontations, seemingly more common, do no favours to the higher judiciary, especially as by invoking the most subjective of reasons (“scandalise”), power is accrued and exercised in a manner most opaque. The criminal contempt through “scandalising” the judiciary is a colonial relic that has been abandoned even by the former coloniser. Although the Law Commission, when last asked to examine the provision in 2013, argued in favour of retaining it, the time has come to revisit the question. Ultimately, the power to strengthen and protect the judiciary or weaken and shatter the institution remains entirely in the hands of the judiciary itself.