The recent use by the superior courts of the power to punish for contempt of courts has raised serious issues. In the recent past this power has been used to silence those who have made criticism of judicial orders or made allegations against the judges. The present law of contempt makes it an offence to impute dishonesty to a judge or to say anything which will lower the dignity or authority of the court or a judge. The present law even prevents any person from bringing evidence to prove the truth of his imputation.

Over the last few years the superior courts are playing an increasingly active role in the socio-political life of the country and have come forward in defence of new economic policies which are affecting the broad masses. They are deciding a number of issues which are normally considered to be the domain of the Executive.

People are also getting disillusioned with the judicial system and are openly airing their criticism of the court verdicts. Now the courts are punishing their critics by using the provision of the contempt of court.

Committee of Judicial Accountability and Janhastakshep organized a panel discussion on “Contempt of Court – Need for a Review” at the Constitution Club on 22nd September 2001. The Convener of Janhastakshep, Dr. N.K. Bhattacharya introduced the subject of the discussion. The luminaries who participated in the panel discussion were Mr. Rabi Ray (Former Speaker of Lok Sabha), Mr. Shanti Bhushan (Former Union Law Minister), Mr. Fali Nariman (Senior Advocate, Supreme Court), Mr. Prabhash Joshi (Senior Journalist), Mr. Ajit Bhattacharjee (Member, Press Council), Mr. N. Ram (Editor, Frontline), Ms. Arundhati Roy (Booker Prize Winner) and Mr. Vineet Narayan (Editor, Kalchakra).

The panel discussion was attended by over 150 persons including eminent journalists, lawyers and judges, social activists, political workers and intellectuals. At the end of the discussion, Mr. Prashant Bhushan, renowned lawyer and social activist, moved a resolution that was passed unanimously by the house.

 Resolution Adopted in the Seminar on Law of Contempt of Court

Organized on the 22nd of September at the Constitution Club  

By the Committee of Judicial Accountability and Janhastakshep

 It is resolved that the Law of Contempt of Court in India as currently interpreted by the Superior Courts in India is highly antique and is acting as a serious impediment to the Freedom of Speech in India. It is significantly deterring a free and frank discussion and analysis of the Courts and judiciary in India. It is having the effect of rendering it totally unaccountable. With the impeachment system having practically failed and there being no other system of enforcing accountability of the judiciary, the discouragement of public discussion and criticism of the judiciary is bound to have and is having a deleterious effect on the functioning of our democracy.

The power assumed by the judiciary (and later conferred on them by the Contempt of Courts Act 1971) of deciding whether a particular criticism of themselves amounts to “scandalizing the Court or lowering the Authority of the Court”, is the very negation of the notion of justice in which no person can sit in judgment over his own cause. This power has been misused by the Courts to go so far as to hold that no motives can be ascribed to judges or Courts and that even the truth of an imputation cannot be pleaded in defense in a charge of Contempt! The issue of whether truth can be a defense in a charge of Contempt was referred for the reconsideration to a Constitution bench many years ago, but the Supreme Court has not found the time to deal with it.

Gagging the people from freely criticizing the Judiciary and examining the motives of judges cannot be the method of inculcating respect for the judiciary. Respect cannot be forced and must be earned by its actions, which must be transparent and open to criticism, however trenchant. The Civil and Criminal law of defamation provide sufficient safeguards to protect the reputation of honest judges against scurrilous attacks.

It has therefore become imperative for people of the country to demand that Parliament amends the Contempt of Courts Act and makes it clear that no criticism of the Court howsoever severe and no imputation against a judge or the judiciary will constitute Contempt of Court, unless it is shown that the imputation was baseless and malafide. It any case such a charge must not be heard and tried by the very judges against whom the criticism or imputation is made. This house therefore calls upon Parliament to make suitable amendments to the Contempt of Courts Act 1971, to incorporate the above features.