Synopsis: The proposal of four capitals may not be feasible in India. However, a Supreme Court Bench in south India can be created.

Introduction 

West Bengal’s CM Mamata Banerjee suggested that there should be four capitals of India. She is of the opinion that Parliament sessions should be held in each of the four capitals in rotation. However, the proposal is not feasible.

Why is the plan not feasible?

Each one of the Four Capitals will require parliament buildings, accommodation for all the MPs, and adjunct staff. Moreover, there will be other cost involved with it:

1. Firstly, if constructed, these residential accommodations would be vacant for a year or 2. There would be an added cost of traveling for all the MPs and their staff.
2. Secondly, It will overburden the state police. All the MPs and their vacant accommodations will require security round the clock.
3. Thirdly, depending on the risk factor, enhanced security will have to be necessarily provided to a fair number of MPs.
4. Fourthly, the cost to the government exchequer to have capitals in three other States will be huge. 
   • For instance, the Tamil Nadu Chief Minister proposed to shift the State capital to Tiruchirappalli in central Tamil Nadu in the 1980s. It was shelved due to the huge burden it would impose on the State exchequer. 

The case for SC bench in Southern state

The Bar Councils of the five southern States called for a Supreme Court bench in south India in 2021. This demand needs consideration.

1. Firstly, there is a long-distance between the southern states and Delhi. Many people cannot afford to travel all the way to New Delhi to engage lawyers and plead their cases.
2. Secondly, The excessive fee of the Supreme Court lawyers in New Delhi is another constraint.
3. Third, Attorney General K.K. Venugopal suggested that four benches of the Court of Appeal with 15 judges each should be created across the country. It will reduce the burden of the Supreme Court.
4. Fourth, Moreover, Judges would be able to go through each case thoroughly. Thus, it will ensure the delivery of a well-thought-out verdict. However, implementing this would require an amendment to the Constitution.

The way forward 

This arrangement will allow the Supreme Court to deal with constitutional issues. With cases rising in various courts, a practical solution needs to be worked out. Easy accessibility to justice for every citizen is a right that cannot be countered.

What is the News?

A study by the Development Data Lab has found no evidence of any systemic gender or religious bias in the district and subordinate courts across India.

The lab works with governments, firms, and civil society organizations. It generates policy-relevant knowledge using data.

About the study:

• Data used: The study looked at 2010 to 2018 records of all district and subordinate courts available on the government eCourt platform. This is the first such study of judicial data in India.
• Classification: The study classified judges and defendants according to gender and religion (Muslim and non-Muslim).  It was to examine in-group bias or whether existing structural inequalities led to worse judicial outcomes for women and Muslims.

Key Findings:

Women and Muslims Judges in Lower Courts:

• Women represent 48% of our population, but they constitute only 28% of district court judges.
• Similarly, Muslims represent 14% of India’s population but only 7% of lower court judges.

Outcomes of Cases:

• Male defendants did not get better outcomes in conviction or acquittal when their cases were assigned to men judges. Similarly, women defendants did not get better outcomes before women judges.
• Equally, the judicial outcomes of Muslims were virtually identical whether their cases were assigned to Muslim or to non-Muslim judges.
• However, the lack of bias in Indian lower courts in cases involving Muslims and women does not rule out judicial bias in its entirety.

Drawbacks of the study:

• The study examined bias by religion. But leaves outcaste which is a crucial variable in India.
• The study examines systemic bias during conviction and acquittal. But it leaves out significant markers of the judicial processes such as framing of charges, granting bail, and determining the quantum of punishment.

Other key Studies:

 A study by Delhi-based Project 39A:

• In 2016, there were 385 death row convicts in India. Among them, two-thirds belonged to the backward classes or were religious minorities. All the 12 women death row convicts at that time belonged to backward classes or castes or were religious minorities.

Study by National Crime Records Bureau(NCRB)

• In 2019, Muslims and Dalits constitute the biggest set of undertrials in the country, disproportionate to their share in the population.
• The share of Scheduled Castes among undertrials stood at 21% while their share in the population is at 16.6%(2011 Census).
• Scheduled Tribes and Muslims make up for 10.5% and 18.7% of all undertrials respectively. While their respective share in population is 8.6% and 14.2%.

Source: Indian Express

Synopsis: The instances of court’s intervening in the executive matters without providing comprehensive legal reasoning are increasing. SC’s recent decision to put stay on farm laws has been analysed in this context. 

Introduction  

The Supreme Court is trying to make a political settlement between farmers and the government. It has put a stay on farm law and made a committee for mediation. But the court has not provided any legal or constitutional reasons for that. 

What are the contradictions in this decision of SC? 

The following reasons suggests that the decision of SC to stay farm laws was a clear encroachment into the domain of executive. 

Firstly, the petition was filed on the argument that only states are eligible to enact farm laws under Seventh Schedule to the Constitution. SC should have analysed the validity of such basis.  

Secondly, the court is giving the example of the protests during Maratha reservation case in which it had issued a stay on the law in question. But in that case the stay was given on constitutional grounds.  

Third, the reason given by the court for its decision was not a legal reason. It provided hat this step will ease the hurt feelings of farmers and it will become easier to bring them on the negotiation table.  

Fourth, In the recent years, SC has been hesitant to take up constitutional challenges to similarly politically controversial moves. This decision by SC also falls into the same category. For Example; the cases of Article 370, the Citizenship (Amendment) Act, reservation quotas for economically weaker sections, electoral bonds, and the ‘love jihad’ laws. 

Fifth, Earlier SC Held protests as completely legal and part of the exercise of citizens’ rights under Article 19 of the Constitution.  But in a related case told that the question of whether the tractor protests should be allowed or not is a ‘law and order’ question and the decision will be taken by Police.  

SC is under question of the critics these days, but the positive roles played by it cannot be ignored due to that. In the Navtej Johar case (Navtej Singh Johar v. Union of India) court acted in a counter-majoritarian manner and decriminalised Homosexuality.  

Context: Inadequacies in the justice delivery system extends beyond the Supreme Court.

What are the various issues faced by the judiciary?

• Spending on judiciary: It is equated with a call for increasing the salaries of judges and providing better court infrastructure. Such perceptions are unfortunate.
• Issues under The Legal Services Authority Act of 1987: Under this law, all women, irrespective of their financial status, are entitled to free legal aid.
  • Free legal aid: Scheduled Castes and Scheduled Tribes and children too are entitled to free legal aid. This means that a significant proportion of the population falls under a free legal aid regime.
  • Lack of well-trained individuals: There has been little effort on the part of successive governments to provide a task force of carefully selected, well-trained and reasonably paid advocates to provide these services.
  • The system of legal aid in the U.K. identifies and funds several independent solicitor offices to provide such services.
• The judge-population ratio: It provides one of the most important yardsticks to measure the health of the legal system.
  • The U.S. has about 100 judges per million population. Canada has about 75 and the U.K. has about 50.
  • India has only 19 judges per million population. Of these, at any given point, at least one-fourth is always vacant.
  • Hardly any attention is focused on this gaping inadequacy in lower courts which is where the common man first comes into contact with the justice delivery system.
  • In All India Judges Association v. Union of India (2001), the Supreme Court had directed the Government of India to increase the judge-population ratio to at least 50 per million population within five years from the date of the judgment. This has not been implemented.
• Other issues:
  • Increasing tribunalisation of the justice delivery process;
  • the extortionate court fees payable to access justice in civil suits in some States; and
  • the poor integration of technology into the system are some issues that readily come to mind.

What can be done?

• Access to justice: Though ‘access to justice’ has not been specifically spelt out as a fundamental right in the Constitution, it has always been treated as such by Indian courts.
  • In Anita Kushwaha v. Pushpa Sadan (2016), the Supreme Court held clearly that if “life” implies not only life in the physical sense but a bundle of rights that make life worth living, there is no justice or other basis for holding that denial of “access to justice” will not affect the quality of human life.
  • Further, the court pointed out important components of access to justice:
    • Existence of adjudicatory mechanisms.
    • Conveniently accessible in terms of distance and
    • The process of adjudication must be speedy and affordable to the disputants.
  • National policy: The executive, judiciary and the legislature are yet to draw out a national policy and road map for clearing backlogs and making these concepts real.

Source: Click here

News: As many as 2927 complexes across India have been connected so far by a high-speed Wide Area Network(WAN) under e-Courts Project.

What is e-court project?

It is an Integrated Mission Mode Project under implementation since 2007 as part of National e-Governance Plan.

• The project is based on the National Policy and Action Plan for Implementation of Information and Communication Technology in Judiciary-2005.
• Aim: To provide designated services to litigants, lawyers and the judiciary by universal computerisation of district and subordinate courts in the country by leveraging Information and Communication Technology (ICT) for improved justice delivery.
• Implementation: The project is monitored and funded by the Ministry of Law and Justice.

Context: Attorney-general KK Venugopal has asked the Supreme court to fix the gender deficit in the Indian judicial system.

Facts on number of Women in Indian judicial system.

• Women comprise only 7.2 per cent of all the judges in the SC and the high courts.
• There were only eight women judges till now in supreme court and there has never been a woman Chief Justice of India.

Why the Indian judicial system is alleged gender insensitive?

• The Madhya Pradesh High Court had asked a man accused of “outraging the modesty of a woman” to visit the home of the victim and ask her to tie a rakhi.
• Nine women lawyers had moved the SC against the bail order.
• Courts are also known to nudge alleged sexual offenders and victims towards “compromise weddings”.
• In one instance, SC Chief Justice presided over a case in which he had been accused of sexual harassment at workplace. The SC, which has empowered judgments on gender rights failed to institute an impartial mechanism to deal with the allegations.
• Similar judgments and conduct of court get tangled in patriarchal notions of honour instead of holding up constitutional rights.

What needs to be done?

• Need for gender sensitisation of judges and lawyers to avoid judgments that exuberates patriarchy.
• Greater representation of women across all levels of judiciary is urgently needed for dismantling patriarchal attitudes.

The judiciary should consider the suggestions of the attorney-general and apprise itself of the gender skew in its workings and take urgent steps to bridge the gap.

News: The Supreme Court has pronounced its reasons for granting interim bail to Republic TV editor-in-chief Arnab Goswami in connection with the abetment of suicide case against him.

Facts:

Key Takeaways from the Judgement:

• Protect Personal Liberty: The Supreme Court called on judges to protect personal liberty and the right of ordinary people to bail saying liberty is not a gift for the few and deprivation of liberty even for a single day is one day too many.
• Importance of Bail: The apex court invoked the case of State of Rajasthan, Jaipur v Balchand and referred to Justice Krishna Iyer’s statement that “basic rule of our criminal justice system is bail,not jail”.
• Courts as first line of Defence: The Courts must ensure that they continue to remain the first line of defence when citizens liberty is deprived.But in reality, undertrials remained behind bars while their bail applications were lobbed from one rung of courts to another.
• Pending Bail Pleas: The court highlighted that 91,568 bail pleas were pending in High Courts, while 1.96 lakh bail applications continued to wait for a hearing in the district courts.Hence, it urged the judges in charge of these courts to utilise tools at their disposal to address this pendency.
• Importance of District Courts: The district courts are only subordinate in hierarchy.It is less to none when it comes to saving the lives of citizens or doing justice for them.Hence, the district judiciary must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector.

Context: The Chief Justice of India is reported to have stated during the hearing of journalist Siddique Kappan’s bail matter, that the Court was trying to “discourage” recourse to Article 32.

What does article 32 says?

• The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
• CJI M Hidayatullah in Tilokchand (1970) said that what Article 32 does is to keep open “the doors of this court” and requires the state not to put any hindrance to a person seeking to approach the Court.

What are exceptions to the article 32?

• The Court regards Article 32 as a judicial power subject to the fundamental principles of administration of justice.
• It does not mean that the Court must ignore and trample under foot all laws of procedure, evidence, limitation, res judicata and the like.
• Justice MP Thakkar and Kanubhai Brahmbhatt observed that time for imposing self-discipline has already come, even if it involves shedding of some amount of institutional ego and to inspire confidence in the litigants that justice will be meted out to them.
• Even if there is a constitutional right to remedies it remains subject to the discipline of judicial power and process.
• Article 33 clearly says that the right will not extend to the members of armed forces.
• Justice Patnaik maintains that the article 33 and 34 will not eclipse the right of a person detained without the authority of law to move for habeas corpus.

How the new facets of article 32 evolved?

• In 1950, it has ruled that powers under Article 32 are not limited to the exercise of prerogative writs.
• In 1987 the Court ruled that it has powers to rule for compensation of violation of fundamental rights.
• In 1999 it said that this power extended to the rectification of its own mistakes or errors.
• The Court has also upheld (in 1997) the 50th amendment enlarging the scope of this article against a challenge of the basic structure of the Constitution.

What are the issues have been raised?

• CJI or the Court as a whole should not suffer from epistemic collapse so as to receive sharp reminders and rebukes from citizen commentators.
• Article 32 does not merely confer wide powers on the Court but also the judicial duty to provide constitutional remedies.
• Lawyers and justices know what distinguishes Article 32 from Article 226 is the very dimension of it. HCs have the discretion to act or not to.
• Article 32 is not absolute. The Supreme Court decides on what “appropriate proceedings” should be for it to be so moved.
• Discrimination in bail where one case is fast tracked whereas others are consigned to slow moving judicial action.
• Scandalous judicial delays and a bold resolution of “who watches the watchman” syndrome demand urgent response.

Article 32 makes the apex court into a “people’s court” and in future we should be able to conclude that the Court did not deliberately dealt deathblows to the “soul” of the Constitution.

Context- Criticism is the hallmark of a prosperous democracy, but unfounded and unrestrained criticism is harmful rather than contributive.

Why judiciary is the strongest pillar on which the edifice of Indian democracy stands?

1. India ranks in the top one-third of nations in efficiency of the legal framework to challenge regulations and in judicial independence.
2. At the cost of being criticized for over-interference, the courts have strained to protect the life, liberty and the quality of life of citizens.
3. India’s overburdened judiciary has been epitome of a free and independent judiciary worldwide.

• On the other hand, US Supreme Court only accepts 100-150 of the more than 7,000 cases it is asked to review annually. In 2016-2017, only 92 cases were heard by the UK SC.

How Indian judiciary system is different from Poland, Hungary and Turkey?

1. In Poland– The legislative proposal aimed to ban judges from obeying the orders from their own Supreme Court making them liable for prosecution.
2. In Turkey– Thousands of Turkey’s judges and prosecutors have been sacked or jailed as Erdogan’s government wields the judiciary against its opponents.

• They have been replaced by loyal and inexperienced newcomers, some in their 20s, plunging the courts into crisis.
• By a new law, most of the 711 judges of the two highest courts will also be removed.

3. In Hungary – The Hungarian parliament is planning to establish a government-influenced judiciary system, apart from the ordinary courts, to establish direct political control over the judiciary.

Therefore, such a comparison is unjustified and unfounded to the Indian scenario.

Examples of Supreme Court landmark decision-

• SC ordered floor test within 24 hours in Maharashtra that led to the resignation of Devendra Fadnavis as chief minister.
• Defending LGBTQ and transgender rights.
• SC rules in favour of permanent commission to women officers and guaranteeing them the same terms of employment as men.
• Upheld the supremacy of the RTI Act over the Official Secrets Act.
• SC brought India’s most polarising case to a peaceful close through its Ayodhya judgment.

Way forward-

• Judicial barbarism is an extremely unjust and unfair description of the conduct of the Supreme Court.
• Constructive criticism – People should try and strengthen institutions with balanced and constructive critique and not slowly nibble at their foundation by constant badgering and berating.

Context: Recently questions have been raised on functioning of judiciary that it is slipping into “judicial barbarism”.

What are the recent charges made against the judiciary?

• Electoral bonds case: The court has refused to do timely hearings of cases that go to the heart of the institutional integrity of a democracy.
• Elgar Parishad case: The Supreme Court has been blamed for denying bail to Sudha Bharadwaj and Anand Teltumbde, who has been detained in the Bhima Koregaon case that is being probed by the National Investigation Agency.
• Promoting Love Jihad: judiciary was blamed in legitimising this newest assault on liberty.
• Arnab Goswami case: Where the Chief Justice of India was blamed for quick hearing of Arnab’s case when other significant constitutional cases are pending for hearing before the court.

Why the charges laid against judiciary are not true?

• Judiciary has effectively Protected Individuals Liberty: In the Prashant Bhushan case and the case of journalist Vinod Dua. After criticising government, these individuals got an early and effective hearing and also relief from the court.
• Judiciary has effectively Protected the Freedom from arrest: In 2018, Teltumbde was granted interim protection from arrest by the Bombay High Court. These are reflective of the fact that the Supreme Court has always come to the rescue of citizens.
• Judiciary has effectively Protected right to privacy: Historic verdicts by the SC such as nine judges held that the right to privacy is a fundamental right and it held that the CJI is a public authority under the RTI Act.
• Judiciary has always Ensured justice: For example, Umar Khalid though a student he has been probed for his role in the Delhi riots for allegedly trying to incite violence during the Delhi riots, which cost more than 50 lives.
• Judiciary has effectively Protected individuals freedom and choice: The Supreme Court in Shafin Jahan v. Ashokan K M (Hadiya case) observed that Hadiya, being a 24-year-old adult, had the power to make her own decisions, and the court could not compel her to go to her father or husband against her will.
• Judiciary has effectively Protected individuals from malafide prosecution: Arnab goswami case prima facie appears to be a case of malafide prosecution. The Supreme Court rightly remarked that the accused should pursue his remedy before the high court.

The criticism of the judiciary stems not from facts or evidence but from ideological inclination and dislike of particular political leaders.

what is the Issue of application of Article 32

Dr B.R. Ambedkar had once said,

‘If I was asked to name any particular article in this Constitution as the most important – an article without which this Constitution would be a nullity, I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it.’

News: Recently a Supreme Court Bench headed by Chief Justice of India S. A. Bobde observed that it is “trying to discourage” individuals from filing petitions under Article 32 of the Constitution.

What was the case?

• Kerala-based Siddique Kappan was arrested on 5 October when he was on his way to Hathras to report on the alleged gang rape and murder of a 20-year-old Dalit woman.
• Initially, he along with 3 others was arrested under Section 151 of the Code of Criminal Procedure (CrPC), later he was booked on charges of sedition and sections of the Unlawful Activities Prevention Act (UAPA).
• A habeas corpus petition seeking release of Kerala-based Siddique Kappan was filed in the Supreme Court.
• However, it is not the sole case that has met the same fate, in an another case, Article 32 petition filed on behalf of Nagpur resident Sameet Thakkar (arrested for allegedly making objectionable comments against Maharashtra CM) was also declined.

What is the issue all about?

• As per Faizan Mustafa, vice chancellor of the NALSAR University, ideally, cases must first go to the high court. However, SC should also be consistent in the matters, then only the desired results can be achieved.

Decisions in the similar cases

• In a recent matter, the Bench of CJI Bobde, Justice A S Bopanna and Justice V Ramasubramanian had issued a contempt noticeto the Assistant Secretary of the Maharashtra Assembly who, in a letter to Republic TV editor-in-chief Arnab Goswami, had questioned him for approaching the top court against the breach-of-privilege notice.
• The court had then said that the right to approach the Supreme Court under Article 32 is itself a fundamental right and that

“there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India, it would amount to a serious and direct interference in the administration of justice in the country”.

• Even as the Supreme Court underlines the powers of the high courts, it has in the past transferred cases to itself from the high courts.

Transfer of Cases

• Even though SC underlines the powers of the high courts, there are past examples of transferring cases Suo Moto, to itself from the high courts.
• Most recently, the Supreme Court transferred the case involving land use for the national capital’s Central Vista project to itself from the Delhi High Court.
• In 2018, the SC had transferred the case seeking probe into the death of judge B H Loya from the Bombay High Court to itself.
• When such transfers take place petitioners lose a stage of appeal that would otherwise have been available had the High Court heard and decided the case.

Fundamental rights under article 32

• Article 32 of the constitution is a Fundamental Right that  falls under Part III of the Constitution that includes the fundamental rights of individuals.
• It provides individuals, seeking enforcement of other fundamental rights recognized by the Constitution, the right to approach the Supreme Court directly.
• Under Article 32 the Supreme Court have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
• The right guaranteed by this Article ‘shall not be suspended except as otherwise provided for by this Constitution’.
  • Under Article 226 of the Constitution, similar powers have been conferred on high courts, to enforce the fundamental rights of citizens. However, article 226 is not a fundamental right like Article 32.
  • The two provisions are not mutually exclusive and allow a citizen to either approach the high court that has jurisdiction over the case or the Supreme Court.
  • However, scope of Article 226 is wider than that of Article 32, as it covers issues other than fundamental rights as well.
• Both the High Courts and the Supreme Court can be approached for violation or enactment of fundamental rights through five kinds of writs:

1. Habeas corpus: It is issued against the illegal detentions and wrongful arrests to ensure personal liberty and considered as one of the most important writs for personal liberty.
2. Mandamus:It is issued against public officials, governments, courts to perform a statutory duty
3. Certiorari:Issued for re-examination of an order or decision by judicial, quasi-judicial or administrative authorities.
4. Prohibition: Issued for directing judicial or quasi-judicial authorities to stop from going ahead with certain proceedings to ensure that it does not exceed its jurisdiction.
5. Quo warranto:It is issued to prevent people from assuming positions in public office when she or he is not entitled to it.

Previous judgments related to article 32

• In Romesh Thappar vs State of Madras (1950), the Supreme Court observed that Article 32 provides a “guaranteed” remedy for the enforcement of fundamental rights. “This Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights,” the court observed.
• In Additional District Magistrate, Jabalpur vs S S Shukla (1976), During the Emergency, the Supreme Court had ruled that the right to constitutional remedies under Article 32 would remain suspended during a national emergency.
• 44^th Constitutional amendment provided that president could issue orders suspending the right to move any court for the enforcement of fundamental rights, under Article 32, during a national emergency, with the exception of Article 20 and 21.

Conclusion

Constitutional experts say that it is eventually at the discretion of the Supreme Court and each individual judge to decide whether an intervention is warranted in a case, which could also be heard by the High Court first. There is need to bring in more clarity by judiciary on the matter of article 32 so that people do not lose their hope in the justice system as the ultimate remedy for the violation of their rights.

News: Attorney General has given his consent for the initiation of criminal contempt proceedings against stand-up comedian Kunal Kamra for his tweets following the Supreme Court’s decision to grant interim bail to a television anchor.

Facts:

• Contempt of Court: As per the Contempt of Courts Act 1971, contempt refers to the offense of showing disrespect to the dignity or authority of a court.
• Types: The act divides contempt into civil and criminal contempt.
  • Civil contempt: It is willful disobedience to a judgment, decree, direction, order, writ or other processes of a court or wilful breach of an undertaking given to the court.
  • Criminal contempt: It means the publication (whether by words, spoken or written or by signs or by visible representations) of any matter or the doing of any other act whatsoever which
    • scandalizes or tends to scandalize or lowers or tends to lower the authority of, any court; or
    • prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
    • interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any other manner.
  • In 2006, the government brought in an amendment which now provides “truth” as defence provided it is bona fide and in public interest.
• Prior Consent of AG: According to Contempt of Court Act, 1971, prior consent in writing of the Attorney General(AG) is required for the Supreme Court to initiate criminal contempt action in a case.
• Punishment: A contempt of court may be punished with:
  • Simple imprisonment which may extend to six months or
  • Fine which may extend to two thousand rupees or With both.
  • However,the accused may also be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

Context: Attorney-General K.K. Venugopal on Monday declined to give consent to the initiation of contempt proceedings against A.P. Chief Minister Jagan Mohan Reddy and his Principal Adviser Ajeya Kallam.

What is Contempt of court?

• Contempt of Court is the offense of being disobedient to or being disrespectful towards a court of law.
• Any action which defies a court’s authority or impedes the ability of the court to perform its functions or wilfully fails to obey a court order.
• A judge may impose sanctions such as a fine or jail on the person, found guilty of contempt of court.

There are two types of contempt of Court:

1. Civil Contempt
2. Criminal Contempt

Civil contempt of Court: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as willful disobedience to any judgment, decree, direction, order, writ, or other processes of a court or wilful breach of an undertaking given to a court.

Criminal Contempt of Court: It is defined under Section 2(c) of Contempt of Court Act, 1971. According to which criminal contempt is any publication which may result in:

• Scandalizing the Court by lowering its authority.
• Interference in the due course of a judicial proceeding.
• Creates an obstruction in the administration of justice. 

Source of Contempt Law:

The contempt powers of the Supreme Court trace their source to different provisions in the Constitution of India, namely, Article 32, 129, 131, 139A, and 142(2).

• Article 129: “The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”
• Article 215:
• “Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”
• High Courts have been given special powers to punish contempt of subordinate courts, as per Section 10 of The Contempt of Courts Act of 1971.
• High Courts do not have the power to initiate contempt proceedings of the Supreme Court, if there is contempt of the Supreme Court then only the Supreme Court can initiate the contempt proceeding.
• Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.

Contempt of Courts Act of 1971–

• The Act defines the power of courts to punish for their contempt and regulates their procedure.
• It gives courts powers to restrict an individual’s fundamental right to personal liberty for “scandalizing the court” or for “wilful disobedience” of any judgment, writ, direction, or order.
• Under the Act, judges could also be tried if they act in contempt of court. For Example, Justice Karnan was awarded six months of jail term for contempt of SC.

The amendment to the Contempt of Courts Act, 1971 in 2006

Before the amendment, neither ‘truth’ nor ‘good faith’, were a defense against contempt proceedings in India. However, the 1971 amendment made truth a valid defense in all contempt proceedings if the publication is in the public interest and is bonafide. It also clarified that the Court may impose punishment for contempt only when it is satisfied that the action substantially interferes, or tends to substantially interfere with the course of justice. 

Judicial cases dealing with contempt law and Court’s views:

• Hiralal Dixit vs. state of UP, 1954: Actual hindrance or obstruction in the administration of justice is not an essential condition, acts which may be derogatory and resulting in lowering of court’sin public eyes, may result in contempt of Court.
• K. Daphtary vs. O.P. Gupta 1971: Any act which brings down the confidence of Judiciary in the minds of the general public or is hindering the administration of justice or affecting the reputation of the judges of the SC or the SC itself, can be read under Article 129 read with Article 142 and considered under contempt law.
• Auto Shankar’s case, 1994: Court invoked the famous “Sullivan doctrine” that public persons must be open to stringent comments and accusations as long as made with bonafide diligence, even if untrue.

In the case of SUBRAMANIAN SWAMY V. UNION OF INDIA, 2016 it was held that the comments made regarding a particular Judge of the Court would not amount to contempt and this would amount to defamation under Section 499 of the Indian Penal Code, 1860. Thus, the comment or the publication should be of such nature that it hinders the administration of justice.

• Duda P.N.V. Shivshankar Case 1998: SC observed that contempt jurisdiction should not be used by Judges to uphold their own dignity. In the free marketplace of ideas, criticism of the judicial system or the Judges should be welcomed until they don’t impair or hamper the “administration of justice”.

In the recent case where a press conference was held by four senior-most judges of SC was not a contempt of court as they had exercised their right of speech and expression under Art. 19(1)(a) of the constitution; and also their act was done in good faith and for the public interest.

• Arundhati Roy Case: SC observed that fair criticism of the conduct of a Judge, the institution of the judiciary, and its functioning may not amount to contempt if made in good faith and in the public interest.
• Sahara case, 2012: Five-judge bench of SC permitted contempt law as a pre-emptive mechanism in pending proceedings so that sensitive reports and comments don’t lead to a “real and substantial risk of prejudice to the proper administration of justice” and “the fairness of trial”.
• Indirect Tax Practitioners’ Association vs. R.K. Jain, 2015: C. observed that the Court may permit ‘truth’ as a defense against contempt proceedings if two things are satisfied
• It is in the public interest
• The request for invoking said the defense is bona fide.

Recent instances where contempt of court proceedings was invoked by courts:

• In October 2018, contempt proceedings were initiated by Delhi High Court against journalist S. Gurumurthy, who tweeted about alleged bias in the court’s decision in Bhima-Koregaon violence case.
• The Bombay High Court in October 2018 sentenced a former journalist, KetanTirodkar, to three months’ simple imprisonment and Rs 2000 fine for posting defamatory allegations against sitting and retired judges on social media. The court observed that social media users don’t have the unfettered right to make baseless allegations citing freedom of speech and expression.

Contempt of court law is draconian and should be discouraged because:

• Antithetical to freedom of speech: Article 19(1)(a)of the Constitution gives the right to freedom of speech and expression to all citizens, while Articles 129 and 215 curb people’s freedom to speak against the court’s functioning.
• Subjective definition: The law is not objectively defined and can be used against even bonafide intentions. It is often used by judges arbitrarily to suppress their criticism by the public. As Justice Krishna Iyer said, the law of contempt has a vague and wandering jurisdiction with uncertain boundaries.

In the US, courts no longer use contempt to silence comments on judges or legal matters. The First Amendment to the US Constitution forbids the imposition of contempt sanctions on newspapers.

• Conflict of interest: Contempt law invokes conflict of interest for the judiciary as it itself is the victim and the judge simultaneously.
• Against democratic ethos: True democracy sustains with constructive criticism and contempt law suppresses criticism of judiciary by the public.
• Against people’s sovereignty: Contempt law is not in consonance with the constitutional scheme which makes people sovereign and the source of all power.
• Misplaced law: An enforced silence, in the name of preserving the dignity of the judiciary, would cause more resentment, suspicion and disrespect for the judiciary among people than the opposite.
• Discontinued elsewhere: The offense of “scandalizing the court” continues in India while it was abolished in England and Wales long ago.In March 8, 2018, the Department of Justice wrote to Law Commission, asking it to amend the 1971 Act to drop “scandalizing the court” as a ground for contempt and restrict contempt to only “wilful disobedience” of directions/judgments of the court.
• Lack of safeguards: Contempt law is draconian in nature without commensurate safeguards in favor of the persons charged with the accusation of having committed contempt of court.

Way-forward:

• The right of the citizens to free speech and expression under Article 19(1)(a) should be treated as primary, and the power of contempt should be subordinate.
• Judiciary should balance two conflicting principles, i.e. freedom of expression, and fair and fearless justice.
• This extraordinary power must be sparingly exercised considering the subjectivity involved in its definition and only when there is public interest demand.
• The purpose of the contempt power should not be to uphold the majesty and dignity of the court but only to enable it to function.
• It’s time for the legislature to take steps to amend the Contempt of Court Act and objectively define the confines of contempt law and its applicability.
• Establishing a review mechanism, as a safeguard against judicial tyranny and to remove the conflict of interest, by instituting an independent panel to verify the actions which extract contempt law.