[Reader-list] DEMOCRATISING THE LAW OF CONTEMPT

[Promod]

Dear All,   My name is Promod Nair and I am a lawyer practising in 
Bangalore, Karnataka. I am working on a paper entitled "Freedom Of 
Expression And The Limits Of The Law Of Contempt". Let me introduce 
the topic and some of the areas that I am working on as part of this 
endeavour.

It is trite to say that democracy in India has always grappled with 
the means and methods of extracting accountability from public 
institutions and individuals holding public office. The traditional 
endeavour has been limited to focusing on extracting accountability 
from elected representatives and the executive.

However, judicial accountability has not received the attention it 
deserves. The judiciary in independent India has broken out of the 
conventional mould of adjudication simpliciter and has sought to 
fashion new and bold initiatives in dispensing justice. While the 
early phases of 'judicial activism' in the form of Public Interest 
Litigation in the eighties was devoted largely to redressing human 
rights abuses; environmental matters and civil rights of indigent and 
disadvantaged groups, by the mid nineties, the Supreme Court ventured 
deep into unexplored territory. It issued highly publicized orders 
that caught the fascination of the Indian middle class. The Court 
acting on 'public interest' petitions, ordered investigations into 
the nexus between leading politicians and businessmen; gave 
directions to New Delhi's executive to collect unattended garbage; 
called upon the Government to supply lead free fuel; struck down 
instances of nepotism by Union Ministers and ordered them to pay vast 
sums of damages and called for an overhaul of the national blood 
donation system to ensure that AIDS and other diseases are checked. 
Recent years have seen courts virtually conducting admissions to 
engineering and medical schools as a fall-out of its seminal decision 
banning these schools from charging exorbitant 'capitation' fees from 
students. Courts and judges have also exhorted governments to take 
steps to implement inter-linking of rivers and have imposed a blanket 
ban on strikes, processions and bandhs.

While the scope of the role of courts and judges has expanded, it is 
but inevitable that their 'margin of error' has correspondingly 
increased. Public criticism of judicial conduct is possibly the only 
check on judicial functioning. Impeachment of deviant judges, as 
provided for under the Indian Constitution has proved to be a check 
and balance which exists only on paper and does not inspire much 
confidence. In this context, the contempt power as exercised by 
courts tends to have a chilling effect on legitimate criticism which 
could focus on highlighting judicial inaccuracies and shortcomings. 
This has had the effect of throttling the voice of a free press. 
Recent orders under the law of contempt of court against writers and 
journalists who have criticized judges or their judgments has brought 
into focus the reasonableness or otherwise of the Indian law of 
contempt.

Is the offence of scandalizing the court consistent with the values 
of a democratic and open society in which every organ of the State 
including the judiciary is accountable for its actions- this is a 
question that is being posed with increasing frequency today.

The exercise of contempt power by courts is laced with not a little 
bit of danger for more than one reason:

á        It seems to conflict with the fundamental principle of 
jurisprudence that no person shall be put in peril on an ambiguity. 
The offence of criminal contempt of court by "scandalizing the court" 
is notoriously vague. It is regarded as obsolete in Britain, the 
country of its origin. Yet, in India, the scope and ambit of the 
offence seems to be increasingly widened.

á        Second, it makes the judge a judge in his own cause which 
has the potential to offend one of the most fundamental principles of 
natural justice. In an action for contempt, judges are perceived to 
sit in judgment over their own cause and punish the contemnors in a 
summary way without the usual procedures and safeguards of a criminal 
trial.

á        In effect, a presumption of guilt is the starting point of a 
contempt proceeding and the burden of proving innocence is on the 
alleged contemnor thereby giving a go- by to the principle of 
presumption of innocence which is a defining feature of any other 
criminal trial.

á        There is very little scope for correction of error unlike in 
other cases where there is a well- defined appellate mechanism which 
can correct judicial errors.

á        Further, not recognizing even the truth of the statements of 
the alleged contemnor does seem to place an unreasonable restriction 
on the freedom of speech and expression. It would indeed be ironical 
that in spite of the emblems hanging prominently in court halls 
manifesting the motto of Satyameva Jayate (let truth prevail) and 
Yatho Dharma Statho Jaya (where there is righteousness, there is 
victory), Indian courts have ruled out the defence of justification 
by truth.

  It is in this context that I intend to offer a succinct analysis of 
the law of contempt of court in India and the constitutional tension 
that this principle exerts on the freedom of speech and expression, 
which includes the right of the media to freely air its views. I 
intend to analyse the major judicial decisions which have defined the 
contours of the contempt jurisdiction in India and comparative 
jurisdictions. It is hoped that the project will culminate in the 
publication of a comprehensive report/ book which, when made 
available in the public domain can, to some extent inform and 
hopefully stimulate, public debate on this important issue which has 
affected the credibility of a crucial pillar of India's democratic 
system.

Please do share your views and insights on this topic with me. If 
there is someone who has worked on issues of free speech and the law 
of contempt/ has resources on the same, please do get in touch with 
me.



Thanks,

Promod.