A contemptible law
September 22, 2007 by Abhishek
Three Mid Day journalists are sentenced to four months imprisonment for contempt of court.
It seems that Mid Day published articles alleging that
orders passed by Justice Sabharwal in the high-profile Delhi sealing case benefited the companies of his sons,
thus angering the honourable judges.
Contempt of court is a perfect example of a bad law. It is vague, sweeping, unnecessary and against all notions of equality and free-speech. Court directives can be enforced through weaker and more exclusive means, while there already exist laws against defamation. Letting a court pronounce a sentence of contempt is akin to letting the accuser adjudicate the case. Indeed, I cannot think of any other widespread law that is so fundamentally flawed. The fact that the judiciary is the cornerstone of a democracy is no argument; in fact that makes it all the more important that it be possible to criticise and question it without fear.
In the present case, the defendents state that they will appeal the decision on grounds of truth. I wish them luck, and if their allegations are true they should be freed and adequately compensated (and the honorable judge prosecuted). But even if they made it all up, is there any good reason why they should be prosecuted under the Contempt law and not existing laws against defamation?
Just like letting the parliament make laws about how much power it should have?
Who will watch the watchdog is an old question and the present systems run on the assumption that the highest authorities will not abuse their powers.
I quite don’t get that. How would being charged for the defamation of the supreme court be at all any different? That is still the accuser judging the accused, right?
Let me clarify my position on the Contempt of Court law again, since I may not have made it very clear in the post.
I think that the Contempt law should be restricted to ensuring that the court proceeds smoothly and that no one disrupts (in a strong explicit sense) the administration of justice. Thus, statements or publications that criticise a ruling or a Judge won’t be under its purview, neither will more series allegations of corruption against the court, as long as these allegations do not actually disrupt the trial in some manner. Of course such allegations, slanders or criticisms if completely unfounded and harmful to the reputation of the judge or judges, then they deserve compensation and justice, but that’s a separate matter and should be settled through a private libel suit filed by the aggrieved person(s).
Anshul: Law-making and adjudication are rather different things. Parliament can make laws but they cannot pass sentence. Besides there are controls over the parliament . Indeed one of the reasons the judiciary exists is to ensure that the parliament does not overstep its bounds. Thus, the Supreme court can overturn a law if it conflicts with the constitution. When the parliament makes a law, they do not judge anyone, nor do they have the power to punish anyone in a manner that bypasses the judiciary or the constitution. If it makes laws giving itself power that punishes free-speech or violates the constituion in some manner, it can certainly be invalidated by the Supreme Court .
But my point is somewhat different. Of course the legislature ought to pass laws, that is why they exist. On the other hand, contempt of court serves no discernible purpose. The job of the court is not to decide how much it ought to get offended! Their job is to adjudicate, to resolve conflicts. And by the very nature of adjudication, the court should be neither the presecution nor the defence.
That brings me to your second point. Defamation is fundamentally different from contempt. The first point of difference is that in defamation, the accused will have to made an explicit and provably false statement that causes grave harm to the reputation of the defendant. Mere opinions or suggestive statements will almost never result in a conviction. Moreover truth is always a defence, thus there will be a investigation about whether the statement was in fact false.
Secondly: defamation is always against a person, not an institution. If a Supreme Court judge is defamed, he will file a suit as a private citizen and other judges will adjudicate on the case, and they will have to make sure that the defamatory statement is in fact provably false. Unlike contempt, it would be just another case, and without the self-important grandiose features of a contempt ruling. The judges who will pass sentence will not be a party to the cases; the accuser won’t be judging the accused.
Thirdly: defamation is a less grave crime than contempt and is usually less severely punished (almost always it is a fine).
Fourthly: defamation is a very precise law, unlike the rather sweeping contempt law, which is extremely arbitrary and subjective and has been occasionally used to stifle free speech.
Who will watch the watchdog is an old question indeed, but my main argument is that deciding on contempt shouldn’t be one of the jobs of the watchdog! The watch dog should confine itself to its duty and act on others only if they come in the way of that duty.
On a related note, Anshul, things do change. For instance, the European court of Human rights found in 1981 that the British contempt law violated the article on free speech. As a result the old British law on contempt was overturned and a new law framed to replace it. Under the new law, only acts which directly disrupt court proceedings, or which knowingly create an atmosphere under which administration of justice can no longer take place, count as contempt. And furthermore, it is usually only applied when a jury (who, being a group of common people, are more likely to be affected by such slander) is involved, almost never does the criticism of a judge result in a contempt conviction. That is a much more fair law, in my opinion.
First of all, you have got a few facts wrong.
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The Parliament in 1971 passed the 24th amendment empowering itself to make laws that can punish free speech. There was a confrontation with the Supreme court and now the supreme court may only declare a law unconstitutional if it tries to change the basic structure of the constitution. An interesting read. Welcome to India. It’s a bit messed up.
I believe there is such legislation/case law regarding contempt. I think this is what the accused here meant by appealing on the grounds of truth.
Wrong. Wikipedia: In law, defamation is the communication of a statement that makes a false claim, expressly stated or implied to be factual, that may harm the reputation of an individual, business, product, group, government or nation.
How so? Contempt of Courts Act, 1971. Read it for yourself.
I agree that contempt is a bit too broad and unsatisfactory but arguably there is a need in India to safeguard the authority of the courts. Wrongly challenging the Supreme court’s authority will not be political suicide in India unlike the US and UK.
On the other hand, lets wait and see how this one works out in the appeal. It still might all end well and good. Has the present bench correctly applied the contempt law? IANAL. If some real lawyer is reading this, it would be nice to hear an opinion.
Oh and criticism of the judge and the rulings etc are covered by the contempt of court act. In particular, they may not be considered as contempt.
The case at hand is that the Supreme court thinks that it’s authority is being challenged here.
I agree that I got a few facts wrong. I was basically writing in a global context, with some recent American examples in mind and didnt bother to check the precise statement of the relevant acts. Yes, truth is indeed a defence under the current contempt law in India.
But having said that, those do not substantially change my main argument. Indeed, the fact that the High Court passed judgement in this case without investigating whether the allegations were true strengthens my case that the courts do not need to have the power to condemn people for ‘challenging its authority’.
Of course, if the challenge is actually disruptive (for instance, if a politician and his band of supporters defy court oders, or indulge in vandalism) then the Court should condemn them, and rightly so. But no, other powers granted under the Contempt law are not just anti-freedom but unnecessary, even in India.
And yeah, I do hope the appeal works out well. Will keep my fingers crossed.
Yeah… I think your main argument stands on good ground. We err on the side of innocence in the criminal law and we should err on the side of freedom of speech on issues like this.
Its all about the ego of Courts,the man manning them,and the ego of the system.The law of contempt is nothing but anachonism.A hindrance in the path of true freedom of speech.Morever,what kind of system is this,the judge and the juror are same!
[...] Read my earlier post on the topic here. [...]