THE Supreme Court’s decision holding activist-lawyer Prashant Bhushan guilty of contempt of court for his ‘scandalous’ tweets has again highlighted the problem of the contempt law’s incompatibility — actual or perceived — with a democratic society in which every institution and individuals manning public offices must be subjected to public criticism. Coming on the eve of Independence Day, it was difficult to appreciate the verdict. There can’t be any quarrel with the power of the contempt law per se as it’s aimed at maintaining public confidence in the judiciary so as to safeguard the common man’s interests, which would be adversely affected if the court’s authority is undermined. But the provisions of the contempt law and the manner in which the jurisdiction is exercised by courts have immense scope for improvement. The definition of criminal contempt under Section 2(c)(i) of the Contempt of Courts Act is vague and expansive, making it an offence to publish anything — in any manner whatsoever — which ‘scandalises or tends to scandalise or lowers or tends to lower the authority of, any court.’ The expression ‘tends to’ can potentially bring anything within the ambit of criminal contempt. No wonder the UK did away with this form of contempt of court in 2013.
It’s one of the rare category of cases in which principles of natural justice don’t apply. Judges hear cases despite being aggrieved persons — either individually or as members of the institution. There is no visible tool to rule out possible bias, except their own sense of fairness, justice and good conscience. It calls for greater self-restraint; unless there is direct interference with the due course of judicial proceedings or obstruction in the administration of justice, courts should avoid invoking contempt jurisdiction.
While upholding the law in letter, the court appears to have missed its spirit. It could have followed the House of Lords, which in the Spycatcher case spared Daily Mirror that had published an upside-down picture of three law lords with the caption, ‘You Old Fools’, saying whether one was a fool or not was a matter of perception. Showing magnanimity would have enhanced the court’s credibility. Barring a few exceptions, courts in India have zealously protected individual freedom from legislative and executive excesses. They should be circumspect while using the contempt law so that it does not have a chilling effect on free speech.
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