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Contempt Of Democratic Institutions

With the widespread video of mimicry of the Vice President of India, Jagdeep Dhankar, people have raised concerns regarding the defamation of a person holding a constitutional post. Judiciary, Executive, and Legislature are the three pillars of democratic India. A democratic institution stands on its legs because people believe in it. A question can pop up in mind whether there can be contempt of legislature and Executive just like the Judiciary has the privilege to punish for its contempt.

What Is Contempt Of Court?

Contempt of court protects judicial institutions from malicious attacks and unjustified criticism. There are two types of contempt as provided in the Contempt of Courts Act, 1971: civil contempt and criminal contempt.[1] "Wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court" amounts to civil contempt according to section 2(b) of the Contempt of Courts Act, 1971.

Criminal contempt, on the other hand, according to Section 2(c) means "the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:
  1. scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
  2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
  3. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
The constitution itself gives power to the Hon'ble Supreme Court and High Court to punish for its contempt. Article 129 states that the Hon'ble Supreme Court shall be a court of record and it has power to punish for contempt of itself. Article 215 provides the same power to the Hon'ble High Court. Contempt of court is one of the grounds on which freedom of speech and expression as is guaranteed in article 19(1)(a) can be reasonably restricted.

What Is The Need Of Power To Punish For Contempt?

According to Kelsen's Pure Theory of Law, a legal order is made up of norms that are structured in a hierarchical sequence, with one norm placed above another and each norm receiving its validity from the norm above it. The basic norm which is at the top of the hierarchy cannot be explained by referring to other validating norms. Rather, it acquires its legitimacy from the fact that it has been acknowledged by a sizable number of people.

The belief, that Kelsen talked about regarding the basic norm, of people living in society gives strength to democratic institutions the strength to stand on their legs. If people stop believing in the sanctity of constitutional institutions, then there it would not be democracy in its true spirit.

But is there any need for giving the power to punish for its contempt to legislature and executive? The answer is no. The special privilege provided to the judiciary is because of the nature of the work it performs. The Prime Minister is both an executive and a legislature. He has the privilege to defend his actions and speak up for himself and the people working on his command.

The constitution of India provides for the separation of judiciary from executive[2] and there is no such provision for separation between executive and legislature. Executive and legislature get several opportunities to mix up with people and put forward their views but the judiciary lacks here. Hon'ble judges sitting in Courts do not have the freedom to interact with the common public, nor do they have the opportunity to defend their decisions except for the grounds stated in the Judgment itself.

Any criticism of judgment given by the Hon'ble Judges does not become subject to contempt provided it is free from bad faith and is attacking the motive of the person sitting on the chair. Contempt starts where good faith ends. If any act tends to interfere with the justice, then it is a contempt of court. Fair criticism is always appreciated. One more thing that necessitates the need for contempt is that the judiciary is dependent upon the executive to enforce the orders passed by it. The power of contempt gives the upper hand to the judiciary.

View Of The Judiciary
In Andre Paul Terence Ambard v. Attorney General for Trinidad & Tobago[3], the privy council observed that "Justice is not a cloistered virtue she must be allowed to suffer the scrutiny and respectful though outspoken, comments of ordinary men."

The observation of the Hon'ble Chief Justice Y.V. Chandrachud in M.R. Parashar v. Farooq Abdullah[4] is noteworthy. He observed that as the judge acts as a prosecutor in a contempt proceeding, the courts must be hesitant to resort to such proceedings so that the rule of law is respected and the perception that the judges are acting in their defence is not generated.

He also noted that genuine criticism may help to improve the image of the judiciary by encouraging justice to pursue better practices towards accountability and openness. The public perception that the court is immune to criticism and is an institution that requires no improvement is not desired.

Only in a few cases where a person goes beyond the bounds of reasonable criticism, has the judiciary pursued contempt proceedings. The same can be understood from the case of Arundhati Roy, In Re[5]. According to the facts of the case, author Arundhati Roy made scathing remarks about the judiciary following the court's decision in the lawsuit contesting the construction of the Sardar Sarovar Dam across the Narmada River.

She responded to the notice of contempt by saying that the court demonstrated a worrying tendency to issue a notice in an absurd, despicable, entirely unsubstantiated petition to silence criticism and muzzle dissent, to harass and threaten people who differed with it.

The court convicted her, ruling that, unlike other contempt cases involving Narmada Bachao Andolan participants, this was a response to a court's notice in a pending proceeding and not an instance of general comment, and that Arundhati Roy was not a legal expert to comment on the functioning of the court.

It is visible from the above mentioned cases that although the judiciary has the power to punish for its contempt it is not used frequently by the Hon'ble Judges. Judges have a liberal approach towards this and are of firm belief that careless criticism by some people cannot shake its credit. Its shoulders are strong enough to get past the mischievous comments.

Even if someone is accused of contempt, the case is usually settled with a public apology or, in some situations, a small amount of fine. Contempt proceedings also increase the burden on the judiciary which already has lakhs of pending cases before it.

Our forefathers who drafted the Constitution of India gave the Judiciary the power to punish its contempt for a reason and no such power was provided to other democratic institutions. There is a need to prevent the contempt of the executive and legislature to maintain its sanctity and integrity, but this has severe consequences because they already have uncontrolled power.

The judiciary acts as a check and balance on the executive and legislature, yet it is entirely dependent on them to enforce its orders, and contempt actions provide the judiciary an advantage. Hence, save for the judiciary, no other organs have the authority to penalise for contempt of itself. It is neither entirely welcome nor entirely unpleasant, as it has both advantages and disadvantages.

  1. The Contempt of Courts Act, 1971, s.2(a)
  2. The Constitution of India, art. 50
  3. 1936 SCC OnLine PC 15
  4. (1984) 2 SCC 343
  5. (2002) 3 SCC 343

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