Valiant freedom fighters, top political figures, exalted legal stalwarts, and acclaimed authors: What’s the commonality between all of them? All have been accused of scandalizing a Court of law — or in legal parlance Criminal Contempt of Court. Yes, the beginning of the article alludes to the notorious cases of Mahatma Gandhi[i], Namboodiripad[ii], Kapil Sibal[iii], and Arundhati Roy[iv]. A recent entry to this rather ‘coveted’ list is Prashant Bhushan’s case[v] indicting him for contempt of court, which indeed is not his first taste of contempt proceedings.[vi]
The relationship between the bar and the bench has always been topsy-turvy with its fair share of fratricidal bumps — and even the internecine aspect of the strife cannot be denied. But the sword of contempt looms not only over the heads of legal fraternity — it is, meanwhile, sharper and always unsheathed when it comes to the non-legal citizenry[vii].
No less a man than PM Nehru had to defer to the supremacy of Court (or, of Justice Vivian Bose) by tendering apologies.[viii] The law vis-à-vis the contempt of court is redolent of the colonial hangover, which seems to be lasting forever, to date, in independent India.[ix] And it, now, has to pass constitutional scrutiny.
A groundswell of public opinion, rather a public outcry, has roused in the wake of Prashant Bhushan’s recent contempt matter. There have been letters of solidarity issued by various organizations. One such letter was endorsed by a former Supreme Court Justice, among 130 other personages exclaiming that the right to freedom of speech and expression is incongruous with the criminal contempt law.
And the international trend buttresses these claims.
Criminal contempt has been scotched in U.K.[x] — the place where the contempt law and tradition found its genesis. U.S. courts, another common law jurisdiction, have snubbed the doctrine of scandalizing the court as an example of English ‘foolishness’.[xi]
The purpose of this article is not to dwell upon the history, the contemporary standing, or any prescient observations that one might make on the contempt law in India.
For that, there are a host of authorities, much more scholarly and encyclopedic, on the subject.[xii] This article, instead, puts forth a two-pronged line of argument against the top court’s cat-among-pigeons approach, while taking the law as it stands today.
The first being the feverish hyperactivism that the top Court displays while initiating criminal contempt proceedings, while the judgment-flouting (a matter of civil contempt) attitude of the executive is rendered substantial leeway.
The second argument is grounded in the lethargy that the Court subscribes in matters of constitutional importance.
The contempt law (in India, Contempt of Courts Act, 1971) is bifurcated into criminal contempt and civil contempt. While the former proscribes scandalizing the court and media-trials, the latter accords a remedy in case of non compliance of court orders.
The need for civil contempt in India remains uncontested.[xiv] It is the criminal contempt law that is a bone of contention.
If it be said that the number of criminal contempt cases pending in the Supreme Court is more than civil contempt; facts will emphatically discredit this statement. But there is no denying that the alacrity of the apex court in initiating criminal contempt is sky-high as opposed to its civil counterpart.
Today, the apex court can easily be termed as ‘the court of Public Interest Litigation (PIL)’, in the noblest of meanings. PIL, a strategic arm of the legal aid movement, was forged to further the vision of participative justice and concomitantly make the courts accessible even for the most disadvantaged strata of the society.[xv] Judicial activism, again, in the noblest sense, has grown from strength to strength. There is a raft of lawyers, popularly called ‘PIL lawyers’ (Mr. Bhushan, a most prominent one) who have confined there practice to PILs. And incidentally, the legal profession has veered towards a noble cause. But are these altruistic efforts fructifying? Are the most disadvantaged able to enforce their fundamental rights?
From time immemorial, the executive has been laggard in complying with court orders. The fundamental rights of people have been relegated to mere words lost in judgments which are not enforced for many years[xvi]. Activist lawyers may endeavor, which they most frequently do, to ameliorate the condition of hapless indigents by filing contempt when the executive makes the necessitous beings cool their heels. The enforcement of rights in most cases, however, hangs in a limbo.
The article now quickly samples a few judgments to substantiate what is spelled out in the foregoing argument:
Bandhua Mukti Morcha Case[xvii]: A most acclaimed case which finds place in curriculum of each law school without a miss; a case which exorcised the ghost of bonded labor in India! But is this judgment worth the praise it heaps? It has reduced to nothing more than an ornate footnote in law texts with its florid and grandiloquent rhetoric.
Was this internationally-hailed judgment ever enforced? Were the fundamental rights of the most destitute secured by the apex court? A record seventy eight adjournments was the fate of this matter when contempt proceedings against non-compliance were instituted.[xviii]
During the contempt proceedings four Chief Justices ascended, but it was always too early for a matter of this magnitude to be dealt with[xix].
Chhattisgarh Vigilantism[xx]: Another case that gravitated media attention. It was a matter vis-à-vis towering menace of vigilantism swamping the state of Chhattisgarh. On 5 July 2011, the Supreme Court gave a path-breaking judgment ordering the state to forsake Special Police Officers (SPOs) and other forms of state sponsored vigilantism. But the state government skirted the Supreme Court order by simply renaming the state sponsored vigilante group as Armed Auxiliary Forces which came in effect from the date of the judgment.
The ambling civil contempt proceedings in the matter turned out to be brutum fulmen, yet again!
Narmada Bachao Andolan: The Supreme Court, by its judgment dated 8 February 2017, ordered for proper rehabilitation of the projected-affected families.[xxi] But the villagers displaced by the Sardar Sarovar Dam still wait in tin sheds for new life while the Narmada Control Authority website reads that the balance remaining to be rehabilitated is nil.
The 2017 order mandated the state to provide habitable resettlement options with drinking water, primary medical facilities, and schools, among other things. But the order was to no avail. And the state rode roughshod over the basic rights of the affected families.
A conspectus of the foregoing cases lends credence to Executive’s eerily resemblance to the American President Andrew Jackson’s ideology. ‘John Marshall has made his decision; now let him enforce it!’ he retorted to a judgment rendered by Justice John Marshall.
It is, however, the duty of a court to vouchsafe justice and not mere incantation on paper. And as Lord Denning chimed, ‘Silence is not an option when things are ill done’.
What prompted the illustrious Constituent assembly to accord the Supreme Court with such plenipotentiary powers that make it the most powerful judicial body in the world?
It is the pledge in the Preamble — the pledge of Justice, social, economic and political.[xxii] It is this assurance that makes the Indian High bench a lofty emblem. But has the court lived up to these enormous expectations?
Karan Thapar, a prominent journalist, very recently, bemoaned that of the 19,000 odd cases that await hearing to date, there are several matters that are of ‘fundamental critical constitutional importance’ such as the Citizenship Amendment Act (CAA) Cases, the habeas corpus petitions dealing with detentions in the Jammu and Kashmir.
And when contempt cases of Prashant Bhushan are given priority, then it is a signpost that the Supreme Court considers its own criticism more urgent than the rights and liberties of Indian citizens.
Mahua Moitra, a Member of Parliament, poignantly remarked that in the past months, ‘government has held our liberties and constitutional values to ransom, while the court appears to have abandoned us.’ The court has delayed, dithered and in some cases refused to take a stand on the matters of fundamental importance.
Training guns against the High bench is anything but novel.
A few decades ago, Arundhati Roy, while making her stand in a contempt proceeding, raged that while the Supreme Court couldn't spare a single judge to enquire into the Tehelka scandal— a matter of public importance — it had the time to issue a notice of contempt proceedings on flimsy grounds[xxiii].
Yet another matter that readily comes to mind is Mehbooba Mufti’s detention under the Public Safety Act[xxiv], which is extended by another three months, and the habeas corpus petition last heard on February 26 this year is halted by the pandemic.
But somehow, even COVID could not deter the court from initiating suo-motu contempt proceedings, while fundamental matters wait in queue.
The reluctance of the Court to deal with matters of cardinal constitutional importance has raised many eyebrows and has been a matter of constant debate. It is only logical to draw the analogy between the Court’s readiness to initiate criminal contempt and its laxity in matters involving fundamental rights.
The more you delve in the issue, the less scrutable it becomes. No reason, decidedly, can ever be ascribed to the Courts playing second fiddle to the state in matters of immense salience that involve life and death.
It would suffice to say: Justice delayed is Justice denied!
To sum, Prashant Bhushan’s contempt matter not only impels the cynic inside us to have his share of misgivings about the current standing of the contempt law, it also poses questions on the apex court’s fairness and justness.
Securing justice for the people is at least equally, if not more, important than hauling up people in the dock on reading polemics and casting aspersions against the Court. But can a Court paint a portrait of Justice with a filbert of contempt? ‘We will never use this jurisdiction’ thundered Lord Denning[xxv], ‘to uphold our dignity’. ‘That must rest on surer foundations’.
(The authors are students at the Faculty of Law, University of Delhi)