Fair and unfair

Paper:

Mains: General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.

Context:

Madras High Court’s advice on restraint in criticism should not allow for frivolous efforts to invoke contempt.

Why Contempt of court against the actor?

  • In the course of a statement against the National Eligibility-cum-Entrance Test (NEET) for medical admissions in the country, the actor had indirectly questioned the propriety of the Supreme Court allowing NEET to be held across the country during the pandemic when the Court itself was holding virtual hearings out of fear of infection.
  • A judge of the High Court had sought to construe the remark as an adverse comment on the judiciary in general and one questioning the devotion and integrity of judges.

Key Details:

  • The Advocate-General, whose opinion was sought by the Chief Justice of the High Court, declined consent for initiation of criminal contempt proceedings.
  • In a detailed order, the Court has noted that “it is not the job of a constitutional court to use a sledgehammer for avoidance of something which can be perceived to be not capable of even being propped up as contempt, much less debated to the level of criminal contempt”, rightly so.
  • The 29-page order lays much emphasis on the idea that criticism about the judiciary should be restrained, lest the line of fair comment is crossed.
  • There is a lengthy section on the need for prudence and restraint on exuberance, but such observations would be relevant only if made in the context of a harsh attack on the judiciary.
  • While the advice for restraint is reasonable and well-articulated, it should not open up the possibility of more such demands for contempt action in the name of deterring unfair criticism.

Argument in favour of the contempt law:

  • The provision of criminal contempt helps prevent attempts to scandalise the judiciary as well as interference in the administration of justice and overt threats to judges.
  • The contempt provision insulates the judiciary from unfair attacksand prevents a sudden fall in the judiciary’s reputation in the public eye.
  • The objective of contempt law is to safeguard the interests of the public. If the authority of the Court is diminished and public confidence in the administration of justice is weakened, then the judicial system and its ability to dispense justice are adversely impacted thus affecting the citizenry indirectly.

Arguments against the contempt law:

  • The law for criminal contempt is completely asynchronous with the modern democratic systemwhich recognises freedom of speech and expression as a fundamental right.
  • The contempt law may be trampling upon the civil libertiesof the people.
  • The extreme deference to judges does not augur well for the idea of a democracy.
  • The provision of criminal contempt is often used to prevent any criticism of the judiciary. This is an indication of the judiciary’s unwillingness to suffer any kind of criticism, regardless of how true the criticism may be.
  • The fear of contempt proceedings restrains much of the media and the public from a more rigorous examination of the functioning of the judiciary.
  • The criminal contempt law has become practically obsolete in most foreign democracies.
    • Canada evaluates the applicability of criminal contempt to real, substantial and immediate dangers to the administration.
    • The U.S. courts no longer use the law of contempt in response to comments on judges or legal matters.
    • The U.K. Law Commission in a 2012 report recommended the abolition of the law of contempt. In England, the legal position on contempt law has evolved. There has been a perceptible change in the attitude of the judiciary in deciding against the use of contempt proceedings for comments on them.

Concerns:

  • The definition of criminal contempt in India is extremely wide, and can be easily invoked.
  • It was only in 2006, through an amendment to the Contempt of Courts Act that truth and good faith were recognised as valid defences in the criminal contempt cases. Despite this, there have been numerous previous instances in India where the judiciary has used the criminal contempt law to punish people, despite truth and good faith raised as defences.

Way Ahead:

  • The contempt law should not be allowed to be used as a means to prevent any and all criticism of the judiciary.
  • The judiciary is well advised to give space for publicly voiced criticism and strident questioning of the court’s ways and decisions. The judiciary should appear to be concerned about accountability.
  • There is an urgent need to usher in judicial accountability by examining the serious allegations through impartial and transparent probes.