India’s antiquated law on contempt

Apr 27, 2019 Editorial

After having raised the issue of whether the clubby and secretive collegiums system actually preserves the independence of the judiciary former Supreme Court judge, Justice Markandey Katju, has now trained his guns on India’s antiquated contempt of court law.
He has made the valid point, in this newspaper, that judicial supremacy cannot be based on the law of kings in a democracy. Is interference or disruption of the due course of judicial proceedings or the administration of justice contempt of court?
Or, does criticism of a judgment or a judge constitute sufficient ground for invocation of the dreaded law?
While it ought to be the former in India it’s often understood as the latter, as the contempt law has been employed when judges were made targets of personal attacks or to silence criticism of judgments. But criticising a judge or a judgment perceived to be flawed cannot be seen to be an illegitimate act that scandalises the court or seriously undermines public confidence in the administration of justice.
In the UK and US, where both civil and criminal contempt laws are in operation, substantial amendments have constrained the powers of judges who might otherwise have acted to vindicate their authority, pomp and majesty which are anathema to a democratic institution.
The Indian contempt Act of 1971 has evolved over time to incorporate amendments that delineated what does not constitute contempt and framed rules to regulate contempt proceedings, yet inconsistencies remain.
In 2006, an important amendment to the 1971 Act provided for truth as a valid defence in contempt proceedings, especially because the law was considered a threat to the fundamental rights to personal liberty and freedom of expression.
Not just the doctrine of truth but public interest must be the cornerstones on which the law must be based. The judiciary, executive and legislature must ensure there are enough safeguards against arbitrary exercise of the power for contempt of court.
Guyana is no different. The judiciary still basks in the security that it cannot be criticized. The result is that judges have been known to hand down some perverse decisions.
Pity the hapless critic who believes that contempt must be made in the presence of the court. That could be construed as being within the confines of the court or in the hearing of a judge.
The truth is that there have been cases of judges using subterfuge to get a contemnor before the court, then proceeding to charge him. One newspaper criticized a judge for granting an ex parte injunction against an individual who happened to be in the confines of the court.
The judge had so much power over the contemnor because the latter had no power of appeal regardless of the sentence. Such is the law of contempt. It places absolute power in the hands of the judge.
But for all this power there are judges who are afraid or reluctant to use the power in their hands. In Guyana, one judge granted an order against a commissioner of police who refused to carry out the order.
Rather than move to arrest the commissioner, the judge vacillated. No judge was prepared to execute that order. This antiquated law therefore places in the minds of the ordinary person in society, the fact that there are two distinct applications of the law.
In the same way there is a push by the media for the removal of the antiquated libel laws there must be the removal of the antique contempt laws.

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