In a recent decision [In Re: KK Mishra @ Balram], the Allahabad High Court found an advocate guilty of contempt of court. The Court sentenced the advocate to six months in simple imprisonment and a fine of Rs. 2000.

The accused advocate was charged on the basis of a series of transgressions, against a Civil Judge (Junior Division). During the course of a hearing of a case argued by the advocate, the judge ordered the return of certain written arguments. The advocate then hurled abuses at the judge, making allegations of bribery and corruption. He went on to threaten the judge of “dire consequences” after Court hours. The judge reported this altercation, and the Chief Justice of the High Court initiated proceedings against the advocate.

Thereafter, the advocate filed an affidavit making allegations of corruption and casteist bias against the judge and several other judicial officers. The advocate then filed a writ petition before the High Court, seeking an inquiry by an independent agency or the CBI against the officers. The High Court dismissed this petition and levied costs of Rs. 10,000 against the advocate.

Separately and simultaneously, on learning about the initial contempt of court reference by the judge, the accused advocate and several other advocates “surrounded the judicial room and chamber and resorted to sloganeering to boycott the Court.” The advocate, along with the District Bar Association, called for total boycott of the Court for over a week (a call that materialized). Just at the heels of this, several lawyers including the contemnor-advocate surrounded the judge and intimidated him over questions of integrity. It may be noted here that strikes by lawyers are illegal and unconstitutional, except in the rarest of rare cases, decided by the judge heading the Court, and for no more than one day (see Ex-Capt. Haris Uppal).

Finally, the High Court noted that when contempt charges were read out to him, “he started shouting at the Court also”.

The sole issue before the Court was whether this factual matrix constituted “criminal contempt” under the Contempt of Courts Act, 1972 (the “Act”). The Court used “[t]he facts noticed above and the allegations made by Contemnor before subordinate Court and his conduct before Court below as also this Court (High Court)”, to find that the fact circumstances did amount to criminal contempt.

Sec. 2(c) of the Act defines criminal contempt as

the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) 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;”

(emphasis supplied by the Court)

 Interestingly, the Court found the accused advocate guilty for scandalizing or lowering the authority of the Court (per sec. 2(c)(i) of the Act).

In our submissions to the Law Commission of India in response to the Consultation Paper on Media Law in June 2014, we had argued for the removal of the offense of scandalizing the court from sec. 2(c) of the Act (a blog post summarily delineating these submissions is available here). The rationale offered by Courts in support of the offense of scandalizing the courts is that public respect and confidence for the authority of courts is important for the efficient administration of justice. However, as free speech enthusiasts often argue, in the court of public opinion, the possibility of the confidence of judiciary plummeting is greater, not lesser, when criticism is suppressed.

A hallmark of any modern democracy is the vigorous critique of public institutions. If the judiciary is a public institution – which it is – then it should be subject to the same degree of scrutiny as, say, the Executive. Which is not to say that contempt of court powers is not worthy of protection at all. Indeed, contempt powers are expressly recognized as a justifiable restriction to free speech under Article 19(2) of the Constitution. CCG’s submissions find the raison d’être of contempt powers to be “intended to preserve the integrity of the adjudicatory process rather than judges’ reputations”.[1] If that is so, then sec. 2(c)(ii) and sec. 2(c)(iii) of the Act bear direct nexus with tackling the obstruction of justice and scandalizing the Court appears almost pedestrian in causality.

Gautam Bhatia provides an interesting analysis of the offense of scandalizing the court (see here and here). After surveying the positions in the US, the UK, and the Privy Council (which take a positively speech-protective stance in this regard), he draws an analogy with seditious libel. While sedition laws in India require a “public order” requirement of inciting imminent illegalities and direct causation as opposed to mere disrespect for the Government of the day, he argues that contempt laws are triggered on extremely subjective standards (scandalizing or lowering the authority of the Court or tendency to do either). This renders the offense of scandalising the court overbroad and chills speech.

If protection of the reputation of judges (as opposed to the reputation of the Court) is the underlying and unstated end, then it would be more appropriate for the Court to use alternative means to remedy personal injury to the judges. Indeed, the accused advocate argued that criminal defamation (sec. 499 IPC) or intentional insult to Judicial Officer (sec. 228 IPC) would be more appropriate provisions for prosecution. The court disagreed. It reverted to sec. 2(c)(i) of the Act and held that

The allegations are not against individual officer regarding his integrity but in respect to his functioning as a Judicial Officer in the Court and in respect of various orders passed by him. When these allegations are made, public confidence in the impartiality, fairness and independence of institution as a whole is bound to shrink. Hence, it is bound to scandalize and lower down authority of the Court.

While public confidence in the judiciary is important, as mentioned above, it is not the object of contempt powers. The sole objective is the preservation of the administration of justice. The Court could very well have analyzed this case and arrived at similar conclusions by taking a more speech-sensitive interpretation. It could have easily read the facts from the perspective of the obstruction to justice caused by threatening the judge in Court and indulging in illegal and violent strikes in the Court premises. Instead, it resorted to the more narrow, self-serving, subjective speech restrictive standards of scandalizing the Court.

[1] See authorities mentioned in para 6.5, CCG Submissions to Law Commission.