THE CURIOUS CASE OF CONTEMPTS IN INDIA

Two recent developments in the contempt jurisprudence of India compels a write-up on law of contempt in India. The first case is of Mr. Yatain Oza, a senior member of the bar and current President of the Gujarat High Court Advocates’ Association, who was stripped off his senior-ship by a full court reference on 18.07.2020, as a consequence of a suo-moto contempt proceedings initiated against him by the Gujarat High Court and the second one pertains to Mr. Prashant Bhushan, one of the most recognisable lawyers in India and an Advocate on Record, who has been found guilty of contempt in a suo-moto contempt proceedings by the Supreme Court on 14.08.2020. India, apparently is still living in the shackles of its colonial past while most of the leading democracies have substantially taken very liberal view on the law of contempt as it is seen as an anti-thesis to one of the most fundamental rights a person enjoys in a democratic set-up, i.e. right to freedom of speech and expression.

Without going into the merits of the two cases mentioned above, let us examine the problems that lie in this particular form of law. The first and foremost of them is the procedure adopted by the courts while dealing with a contempt case. The procedure is summary in nature and thus, does away with any form of evidence to be produced by the alleged contemnor, examination of witnesses and thus, a full-fledged trial is not allowed. The same is has been dealt and denounced in extreme details by Sir John Fox, through a series of articles published in Law Quarterly Journal, staring in 1908 and going well into 1920s. The summary procedure, adopted by the courts is justified on the ground that one of the ingredients of the contempt can be ‘obstruction of justice’ and any obstruction is to be removed as soon as possible. However, the said legal principle is obviously not applicable to other acts that may constitute contempt and thus, the apparent necessity of summary procedure is inapplicable. Questioning a judge, howsoever serious, can be dealt in ordinary course of law. The same is also substantiated by the fact that Mr. Bhushan (who has been subjected to a guilty verdict in a suo-moto contempt proceeding recently) has also another contempt proceeding pending against him since 2009, the case which had been shelved for the last 8 years, and has been suddenly revived by the Supreme Court in 2020 and to be heard now on 17.08.2020. Thus, it is apparent that this summary procedure, and its justification is something which is non-existent in these cases. If one is to trace its origins, the same finds its legality derived from the then Wilmot J. (afterwards Chief Justice), in his “Notes of Opinions and Judgments” published in 1802, which were basically recorded during arguments in a case titled ‘Rex v. Almon’. But the said judgment was never delivered (which will have an interesting yet misplaced take on the legality derived through it by many judges, including India), and now has atleast two different versions for why it never was. The two versions, though giving out varied versions, in fact give more authority to the fact that the judgment was never delivered. Sir John Fox, through a series of highly academic and resourceful articles, traced it back to the 13th century and opined,

“it is clear that, however desirable it may be to prevent libels on Courts, no argument in favour of punishing them by summary procedure can be derived from analogy to the case of a process server, who must be immediately protected to prevent obstruction to the course of the proceedings.”

The background to his conclusion is that while a process server (and his Sheriff), delivering a King’s writ/ command, was given power to arrest a person who disobeys it, the same analogy did not extend to the courts, thus holding how Wilmot J.’s work, taken as the authority by almost all common law judges, was in-fact misplaced. Further, this “authority” of Wilmot J. actually is never part of a judgment. It is interesting to note that the 3-judges bench in In Re: Prashant Bhushan & Anr. [ Suo Motu Contempt Petition (Crl.) No.1 Of 2020] also relies on “the opinion of Wilmot C.J. in the case of Rex v. Almon” at para. 30, pg. 60, while citing a constitution-bench judgment of Baradakanta Mishra vs The Registrar of Orissa High Court & Anr. [(1974) 1 SCC 374] but as stated above, there is no judgment delivered in the case of Rex v. Almon.

The second problem that lie in contempt case is the fact that a court becomes a party, prosecutor as well as the judge of whether an act alleged is actually in contempt of court. This completely goes against one of the basic principles of law that no one can be a judge in its own motion. Justice Hugo Black, of the US-Supreme Court had dissented in United States V. Barnett [376 U.S. 681 (1964)] by emphasising on this exact principle by stating,

“It is high time, in my judgment, to wipe out root and branch the judge-invented and judge-maintained notion that judges can try criminal contempt cases without a jury.”

Thus, the judge would be the complainant to bring out the contempt as a prima-facie case, then take up the role of prosecutor, followed by the main prosecuting witness by relying on what is seen/ heard by him, and ends with the role of judge to decide the case on factual and legal basis. He even decides the sentence once he holds a person guilty of contempt. All this while, basic principles of natural justice are denied to the alleged contemnor. The law of contempt is further marred by lack of preciseness of what amounts to contempt, and the way it is worded in statutes, it is left to the discretion of the judge to decide the question. The definition is devoid of any certainty and may take many forms, as per the subjective understanding of the judge deciding it.

The third problem is something which is probably inherent in Indian judicial system as of now and that is to take law of contempt on a more severe and literal view in spite of the fact that the same has been substantially given liberal by the courts in leading democracies, especially English courts and few Indian judgements as well. The courts of the UK as well as the US are filled with examples where the courts have not issued contempt, more specifically in cases with an object to “uphold the majesty of law” or “dignity of court”. The judges have consistently held how the authority of a court comes from public confidence in their work rather than from fear from contempt. Lord Atkin in Andre Paul v. Attorney-General of Trinidad (A.I.R. 1936 P.C. 141) said

“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men”.

Justice Douglas while quoting Craig v. Hecht, 263 U. S. 255, states in the judgment of Craig v. Harney, 331 U.S. 367 (1947), “But a judge may not hold in contempt one "who ventures to publish anything that tends to make him unpopular or to belittle him. . . .". Examples of Spycatcher judgment of 1987 in UK and then again after Brexit judgment, not issuing contempt and restraint shown by English judges is something every judicial system of a democracy must strive for. The same views and warnings were echoed by the then Chief Justice Gajendragadkar, in Special Reference No. 1 of 1964 who states

“Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”

But despite this, it still remains a curious case of contempt law in India where fear of contempt is being used instead of following the wise words of Chief Justice Gajendragadkar in order to bring about dignity for these ‘temple of justice’ and Prashant Bhushan and Yatain Oza have become its latest ceremonial sacrifice offering to this ‘temple’ instead.

About the Author:

Altamish Ilyas Siddiki is an advocate practicing before the Supreme Court of India and Delhi High Court, Twitter handle - @AltamishSiddiki; LinkedIn Profile- @Altamish Siddiki