Contempt of court is a common law principle that aims to protect the integrity of the judicial institutions from unwarranted attacks, vilification, and demeaning criticism. It acts as a watchdog against those who intend to attack the court’s dignity thereby bringing into disrepute the idea of courts in the minds of the right-minded people. The legislative intent understood contempt, as a safeguarding tool to protect and strengthen the dignity of the court and its interest in the administration of justice.
The concept of contempt is wide which makes it difficult to lay down one specific definition expounding the offense. The Indian Contempt of Court’s Act, 1971 codifies contempt in two major categories, i.e. civil and criminal. While civil contempt deals with willful disobedience of a court’s order, the ambit of criminal contempt on the other hand is still obscure and is regarded as a subjective interpretation that majorly resides in any written or spoken, signs and actions that “scandalize” or “tend to scandalize” or “lower” or “tends to lower” the authority of any court or prejudices or interferes with any judicial proceeding or interferes with or obstructs the administration of justice.
Over years, the scope of freedom of speech and expression has widened. With the advent of new and modern avenues, there is an increase in the opportunities for people to speak up their mind while exercising their freedom empowered by the constitution. Therefore, any allegation thereof against the judiciary or any judge, aiming to criticize the intention behind a judgment or its judicial functions, may be considered to be a part of the offense. Even any scurrilous attack on the conduct of the judges may be considered to be scandalizing against the judiciary as a whole, but the primary underlying principle of contempt intends to protect the authenticity and dignity of the courts from the provocative attacks and not the individual judges.
The importance of contempt is unassailable, it and seeks to preserve the faith of people in the judicial system, but what remains abstruse is its ambit and fair adjudication. The non-objective shade in criminal contempt is open to the subjective determination of the judges when they are expected to decide whether an act is contemptuous or not. It is necessary to avoid any form of influence while making a decision on contempt. This raises serious points of deliberations and opens up scope for amends. It is also notable that, there should be a free and fair determination of the case at hand, but the judges should not have a say in the decision making.
BIAS OF THE DAIS
The principle of Nemo judex in causa sua, that is, “no person should be a judge in his/her own cause” finds its place in the debate on criminal contempt as the judges are empowered to decide the cases of contempt involving the interests of the judicial system which they are a part of and at times against themselves. Contentions arise with the subjective and discretionary power in the analysis of an act/expression as contemptuous. Such determination is dicey, as substantial interests are involved and it can be presumed that, the decisions may be influenced by their personal and professional bias.
The various provisions of this law, which warrant the court to take Suo moto cognizance against the cases make it more proactive and scandalous. When the judges/court start a Suo moto proceeding of contempt, it acts as, the prosecutor, the witness, and the judge, which makes it equivocal and solely at the discretion of the judges themselves, to decide whether the act or words were scandalous or fair criticism. This provision to exercise discretionary and subjective analysis of an act as contempt creates suspicion and agitation. This leads to clash and cause distrust among the people, lowering the reputation and image of the judiciary in front of the people, ironically which the act aimed to protect.
In the words of Justice V.R. Krishna Iyer, the law of contempt as having a vague and wandering jurisdiction, with uncertain boundaries; may because of the law itself providing for a scope to exercise power biasedly will lead to an unwitting trample upon civil liberties.
England, basing its decision on the said maxim abolished the law of contempt, as, they believed that, the judiciary should be open to fair and healthy criticism, and judges aren’t the competent authority to deice the case of contempt. Lord Denning in the case of Metropolitan Police Commissioner (1969), suggested that, in spite of the fact, that courts have the jurisdiction for contempt they should not use it, as in the case of contempt, the judges can have a certain level of personal interest and prejudices which is against the legal principle that one cannot be a judge in their own case. Not only England but, various other foreign nations like America, Canada, and Australia, also scrapped out the concept of contempt law, anticipating the same concept and reasoning.
On many occasions, an overzealous attitude of the court to protect its dignity has led to an expanded interpretation over the ambit of contempt. As such it has been unfortunate that the powers to proceed against contempt as provided have been exercised in a significantly asymmetrical manner. The over and ill-implication of this power upon the discretion of the judges, caused an uncanny effect, by trembling and weakening the confidence as well as faith of people in the judicial system.
Recently the Supreme Court umbrage the case of contempt against Prashant Bhushan, alleging that the impugned tweets brought disrepute and are flavourful enough to undermine the dignity of the court, especially the chief justice in particular. Suo Motu proceedings were initiated against him, later in which the bench found him guilty of criminal contempt. This decision which was aimed at protecting the dignity of the system earned even greater criticism and disrepute to the court as it was believed that the judges work with a pro-judiciary mindset and thus will themselves never decide a case of contempt, against their own interests. Another concern was when the court accused Arundhati Roy of imputing motives to the court by terming some of its actions as hasty. However, the court chose to react otherwise, and although it acted with no evil intention, it certainly did more harm to its repute and credibility by acting thus. A similar case of contempt was also filled against Kunal Kamra for his alleged denigrating tweets against the CJI.
The association of the judges with the judicial institution is inseparable, which makes it very unlikely for them to have separate standing from it. It is very probable to presume that, the decision made might be motivated and predisposed by the post they hold and their professional affiliation and attachment towards the institution they aim to abide and protect. This official bias should not be disregarded, as it can have certain influence and impact over their decision they take, by the virtue of being a part of the institution against which the impugned contempt or vindication is made.
The official bias acts so integrally, that any expression alleged to be scandalous will affect all the people coupled with it collectively, as having a reflection upon their professional entity thereby leading to a predisposed decision.
Another aspect to look upon is when similarly allied people with the judiciary i.e. judges have contrasting opinions regarding its contempt or vilification. An expression to be contemptuous in the true sense should be perceived as contemptuous by all the judges similarly as every judge in its capacity as a guardian of the court will be equally motivated/affected by the expression if it is contemptuous.
But when there is a difference in the opinions of the judges, what exactly is to be regarded as correct? Contempt for one is not contempt for another, such discrepancies should not arise, when the judges are just abiding with the law, with no personal bias and prejudice. It is imperative to understand that the law of contempt aims to protect the judicial system and its dignity, not the individual dignity of the judges. There should be a reasonable distinction between the contempt of the court as an authority to administer justice and the vindication of the judges in their individual capacity as the latter contravenes with the basic principle of the contempt law. (Baradanath Mishra v. the Registrar of Orissa High Court) The vindication of the judges in their individual capacity shouldn’t be a motivating factor in cases of contempt, as judges rely on their conduct itself to be its own vindication.
THE THOUGHT
The intention is not to disregard the competency of the judges to decide a matter impartially. But it is humane and undeniable to have certain prejudices owing to the personal and professional tendencies of bias when such subjective and discretionary power is vested upon them. It becomes inexorable to avoid these influences when your roots are deeply connected and interlinked. Therefore, we suggest a better way out to avoid any subconscious influence upon the adjudication of a case of contempt. Protecting the supreme authority from any scurrilous attack should be of foremost importance, but the question here is whether the judges themselves are the appropriate authority to decide the same.
Here, we do not suggest that the contempt law altogether should also be brought down, as we understand its relevance and importance, in the contemporary situation, but there is a need to revisit the scales of adjudication of contempt by the courts, where the decision is open to be motivated by interests and discretion.
We understand that the concept of contempt will always be incapable to incorporate the endless form of expression people have, therefore the element of direction and subjectivity is inseparable from the concept of contempt. Such arrangements appear to be an archaic power of the courts, failing the true spirit and motive of the contempt law. It, therefore, becomes ineludible to make necessary amends to preserve its relevance in society. Hence, the best we can do is to keep this discretionary power free from any sort of bias and personal interest. Therefore, the law of contempt should be revisited to make a clear demarcation, over its ambit and fair administration of justice by an appropriate authority.
THE MERCIFUL GLANCE
The executive’s (President/Governor) power of mercy to pardon, remit, respite, or commute (hereinafter as “pardon”) the sentences or punishments decided and confirmed by the judiciary has a problematic and mismatched power: authority setup. The power as devised is in derogation of the law and hence the aspect of why it should also be vested with the judiciary and not only with the executive has to be looked into.
One of the ideas behind pardon is that of providing justice in situation of a judicial malfunction. However, which essentially is a function of the judiciary, the reasons behind this indulgence of the executive in the domain of the judiciary has always been looked at as beneficial but from a lopsided lens of view diluting it as an exception to the doctrine of separation of powers.
Therefore, the anomaly in such vesting of power to the executive is immense and significant in trying to fit a square peg in a round hole.
CONTEXTUALISING RIGOURS
While it is argued that pardons exist as a relief from the undue mistake in the operation of judicial functions and inconsiderate view of circumstances, even then the power to correct or make good such mistakes if any in the judicial decision, cannot be given to an unrelated and disjunctive set of minds of the executive having little or no legal acumen to determine or review the sentence as granted.
Even though the principles of natural justice are applied at each stage of the trial and sentencing, the executive while deciding a case of pardon can go into the merits and examine the evidence. Even the Supreme Court regards pardoning to have elements of judicial determination and has therefore held that the mercy petitions are subject to the discipline of Article 21 and the principles of natural justice should therefore be grafted to it. Therefore, the decision of pardoning being a judicial determination should not be exercised by a non-judicial body alone.
Furthermore, the fact that decisions of the executive taken in pursuance of their power to pardon are subject to judicial review, it is therefore even more absurd to ultimately allow an interjection which the rationale behind pardoning power aimed at restricting.
The literature on this power suggests, that though pardoning does not amend the judicial record on the point of guilt, the fact that it takes place after a case has been judicially concluded and a sentence has been given consideration by the court, has a practical effect of a overriding decision of the executive on the point of sentence. That is to say, any change in the sentence by means of mercy would act as a modification, superseding the judicial determination of the court which it has arrived after rigorous trials and processes undertaken by the best in business judicial minds.
As per one view, vesting investigative and adjudicative powers in the executive threatens the rule of law, particularly the act of exercising these functions by the President/Governor and the Council of Ministers. It would therefore be improper to have this judicial determination in regard to the sentence imposed changed to a conclusion different from that recorded by the Court by a non-judicial authority.
They argue that it is not possible for the judiciary to take into account factors that occur after the sentence has begun, such as the post-conviction behaviour and contributions made by the convict. However, the same factors are considered by the courts while dealing with cases on probation of offenders act. Therefore, this seems an absurd argument to make on the viability of the courts.
It is also argued that in matters of mercy, extra-judicial matters are taken into consideration on grounds of public good and welfare, but even then, the judicial determination of modifying the sentence cannot be devoid of a judicial mind being applied to it.
Lastly, though the condition is not so critical at present, an issue that needs to be looked at is self-pardons. Since the executive is empowered to grant pardons, there might arise a case that calls for a minister or an executive member to be put on trial. In such a situation, if a pardon is sought it will be loaded with bias and suffering from lack of objectivity if the executive is allowed to exercise its power.
Least to say, if pardon is granted in an indiscriminate manner, then it undermines the precedential value of judicial decisions and upset the equilibrium that should ideally exist between executive and judicial action.
The use of this power exclusively by the executive to make a decision having judicial determinants could potentially destabilize the authoritativeness of decisions made by the judiciary and have a negative impact on the deterrent effect sought through such judgments.
REVISITING THE SCALES OF ADJUDICATION
This misapplication of the power principle of contempt and pardon, such that disharmony is created between two constitutional provisions where such disharmony does not exist in the first place is all the more frustrating.
We, therefore, recommended that there should be a constitutional amendment that still rests the power to pardon in the President/Governor but makes it exercisable on the aid and advice of the Supreme Court (excluding the quorum of judges sitting in that case). Though such advice may not be made obligatory for them to abide by.
To argue that provision of involvement of the judiciary in the determination of pardon again after the finality of the courts is achieved, will act as a mere appeal and in turn, would nullify the effect of providing for a scope of pardon is misconstrued. The judges are not inconsiderate ironed minds who would be in all probabilities unwilling to accept a request of mercy. If the situation allows and the amended authority deems fit, they can and will perhaps allow the said request.
With regards to the aspect of contempt, we submit that the solution to the problem described above may be found by way of allowing the executive to exercise his/her discretion in a self-determined manner as contempt is a predominantly objective determination.
That is, the President/Governor should be allowed to use his/her discretion to distinguish between situations where there is contempt. We find that such a view is more unbiased and satisfactory to the pallets of the citizens of this country.