India in the age of contempt

India is unusual among the major democracies to retain laws that criminalise free speech and give the state wide powers to punish it. The laws include sedition, criminal defamation and contempt.

Sri Lanka abolished criminal defamation a few years ago and England and Wales abolished contempt as an offence. Sedition in the way that it is understood and practised in India has three problems. The first is, of course, the law itself, which is a relic from the colonial period. The other is its free and liberal use by those offended by speech that is not seditious. The third is the lack of adherence to Supreme Court guidelines regarding what constitutes sedition and the disregard of it by the state and lower courts.

Criminal contempt can come out of “scandalising the court” which is over-broad and, in 2018, the government wrote to the Law Commission of India asking it to examine an amendment that would remove this phrase and restrict contempt only to acts of wilful disobedience. However, nothing came of it because the commission said that the Act itself only defined the procedure, while the powers of contempt were drawn by the court directly from the Constitution.

Article 142(2) reads that the court shall “have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”

The issue is current because of contempt proceedings opened by the Supreme Court against activist and lawyer Prashant Bhushan. He tweeted about the chief justice of India photographed astride a Harley-Davidson motorcycle owned by a Bharatiya Janata Party leader in Nagpur and again to say that when historians would mark our era, they would note the role of the Supreme Court and the role of the last four chief justices.

The court acted apparently on a petition filed by a lawyer against Mr Bhushan, which contains unusual language. It says, for instance, “how can he [Bhushan] say that CJI without using the word Hon’ble being a lawyer in the Outer Space Moreover to it accusing him of denying citizens their fundamental right to access justice that too with a exclamation mark suggest his Rude behaviour.” (sic)

Illustration: Binay Sinha

With the court having chosen to go ahead with proceedings, we wait to see how this ends. We are not concerned about whether or not Mr Bhushan’s words are or will be found to be in contempt. However, the question is whether this is the best way of protecting the dignity of the court. Here the answer lies in how its actions can be seen.

If we look only at recent events, there seems to be a problem in the way that the court has addressed issues of fundamental rights and liberties. And particularly when these rights are in conflict with the government at the Centre.

The government told the court, knowing it not to be true, that there were no migrant workers on the road walking home as of 11 am on March 31. This was a week after the lockdown and flew in the face of evidence being gathered and published and broadcast daily. This evidence continued to be seen for weeks after this untruth in court but it drew no action or observation.

The court has been hesitant to take up habeas corpus cases from Kashmir including those of its former chief ministers. It has not sided with Kashmiris on the matter of denial of the internet to them. On May 12, examining its verdict on the matter, the Times of India published an article headlined “Supreme Court’s order on Kashmir internet shutdown: Judicial abdication or judicial restraint?”

The most egregious rights violations by the State in Kashmir have gone unnoticed by the Supreme Court even when admitted by the State. On January 1, 2018, the Rajya Sabha was told that of all the chargesheets that had been sent by Jammu and Kashmir police to the Centre documenting murder, rape and torture by the security forces, approval for prosecution was not granted in a single one.

The court has not decided issues that have been dear to this government’s heart though they might be considered grave and pressing questions of constitutionality. The hollowing out of Article 370 and the Citizenship Amendment Act have both been challenged but have not been given priority hearings. Speaking on the matter of the killing in custody of Vikas Dubey, the court observed that the inquiry into his death should primarily look at how he secured bail rather than the fact of custodial killing, surely the most pressing violation of rule of law in this instance.

The court in recent years has found itself in controversy and especially in the period that Mr Bhushan has referred to. An allegation of sexual harassment by the chief justice was heard by a Bench on which the chief justice himself appeared. Reports of the sexual harassment survivor’s policeman husband and brother-in-law being removed by Delhi police were not addressed by the court. The chief justice was exonerated by a process which was criticised for its opacity and at the end of which the survivor was reinstated without explanation. The chief justice went on to deliver a judgment on the Babri case, which was unsigned. On retirement, he was immediately sent by the government to the Rajya Sabha.

Surely, it is this sort of thing that one would classify as scandalous rather than an individual’s tweets. Ultimately, the reputation of any court depends on how it conducts itself and whether it is seen as doing its duty freely. In the case of the Supreme Court this would be upholding fundamental rights, preserving civil liberties and ensuring the constitution is not violated.

It must ask itself, since it is examining the issue of its reputation being scandalised, whether given the happenings of the last couple of years, it has delivered on this front.

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