If men, including judges and journalists, were angels, there would be no problems of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them,’ said Justice Frankfurter of the US Supreme Court in Pennekamp versus Florida (1946). Seventy-four years on, the prophetic words are more relevant in India, where judges often invoke the power of contempt to deal with those ‘scandalising’ the judiciary. The Supreme Court’s decision to initiate contempt proceedings against activist-lawyer Prashant Bhushan only highlights the problem.
The rationale behind the power of contempt is to safeguard the interests of the common man, who would be adversely affected if the court’s authority is undermined and public confidence in the judiciary is eroded. It is nobody’s case that the power of contempt vested in the Supreme Court and high courts under Articles 129 and 215 of the Constitution, respectively, and the Contempt of Courts Act, 1971, should be done away with. Those interfering with the due course of judicial proceedings or obstructing the administration of justice must be taken to task. The real problem is about Section 2(c)(i) of the Act: publication of anything — in any manner whatsoever — which ‘scandalises or tends to scandalise or lowers or tends to lower the authority of, any court’. It is this provision which has been challenged by noted journalists N Ram and Arun Shourie, and Bhushan before the Supreme Court for being vague, manifestly arbitrary and violative of the right to free speech under Article 19(1)(a).
The power of contempt is not meant to protect judges or the judiciary from criticism in a democracy, where every individual and institution vested with public function can be subjected to public scrutiny. To quote Justice Frankfurter again, ‘The power to punish for contempt is a safeguard not for judges as persons, but for the function which they exercise.’ Unless the act in question is such that it erodes public faith in the judiciary, it shouldn’t be categorised as criminal contempt. It’s time to have a relook at the definition of ‘criminal contempt’ to make it compatible with democratic norms.