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“The less the clarity, the greater the arbitrariness, and the greater the chilling effect on people speaking truth to power.”Karuna Nundy, Supreme Court advocate
The Prashant Bhushan case has dominated headlines of late, with the Supreme Court convicting the well known public interest lawyer and activist for criminal contempt, for two recent tweets. The bench of Justices Arun Mishra, BR Gavai and Krishna Murari has reserved its decision on what his penalty should be.
The court’s decision, based on the concept of ‘scandalising the court’, ie lowering its authority in the eyes of the public, has come in for severe criticism, while Bhushan’s principled refusal to apologise has gained him a great deal of admiration. The rights and wrongs of the decision, the court’s conduct, the Attorney General’s support for Bhushan, have been the subjects of intense debate.
What has seen far less debate, however, is the need for a reform of our laws on contempt and the way in which allegations against the judiciary can be dealt with – issues which both this case and the other ongoing contempt case against Bhushan from 2009, have highlighted.
The Quint spoke to Supreme Court advocate Karuna Nundy about why contempt jurisdiction for this concept of ‘scandalising the court’ is so dangerous, and what can be done to fix things.
AN ‘ARBITRARY AND UNLIMITED’ POWER
“The jurisdiction of committing of contempt seems somewhat unlimited,” Nundy says, noting how even back in 1877, the English Master of the Rolls said that this power is:
“The jurisdiction of committing for contempt is practically arbitrary and unlimited... It should be most jealously and carefully watched and exercised, with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is no other mode, which is not open to the objection of arbitrariness, and which can be brought to bear on the subject.”
Nundy is a leading voice on issues of freedom of speech, and was part of the team which had Section 66A of the IT Act declared unconstitutional for arbitrariness.
When asked why she thinks this power of contempt is arbitrary, she explains that there is no clear way in which to define it. She takes the example of allegations about the court’s allocation of cases to particular benches, including the infamous Judge Loya case.
While such allegations could be viewed as contemptuous, four sitting judges of the Supreme Court had made this very allegation in their unprecedented press conference back in January 2018, she points out.
She also raises the question of whether the defence of truth is available to a person when it comes to contempt. While the Contempt of Courts Act 1971 was amended in 2006 to include this, the Supreme Court isn’t bound by this law.
In the Bhushan case, Justice Arun Mishra even suggested that Bhushan’s affidavit arguing a defence of truth, was an “aggravation”, making it unclear whether such a defence is open to someone accused of contempt by the apex court.
“I do understand that in its (the power of contempt’s) absence, courts may find that they have no other forum through which to speak, whether through the media or otherwise. But courts speak through their judgments. And when you are the most powerful court in the world, I think feeling secure in that power is important.”Karuna Nundy, Supreme Court advocate
DOES THE CONTEMPT LAW HAVE A CHILLING EFFECT ON FREE SPEECH?
Nundy explains that once contempt jurisdiction is triggered, it opens up the possibilities of serious punishment, including jail time, even if the person makes an apology – which obviously creates a chilling effect for those speaking out about the court.
On top of that, there’s also the lack of clarity on what exactly can fall within the offence, which leads to self-censorship at a preliminary stage:
“The lack of certainty is something that already brings in a significant chilling effect on free speech. Because then you don’t know what it is that is going to constitute contempt or not.”
She takes the example of HM Seervai – one of India’s greatest constitutional scholars – who never shied from expressing his views on the manner in which constitutional law was being interpreted by the courts, and argues that today, even someone like him could face contempt action for the things he said.
“So, what are we saying? Are we going to say that all constitutional comment on the court is going to be unavailable because of the chilling effect?” she asks.
This chilling effect, therefore, does serious damage to the rule of law and free public discussion, and is something to be concerned about.
WHAT KIND OF REFORMS DO WE NEED TO FIX THINGS?
Nundy has three broad suggestions for how to reform the system, keeping in mind the need to ensure that not only can good faith criticism flourish, but allegations against the court can be dealt with fairly – including if they are false and malicious.
- Set up an institutional, independent and transparent mechanism through which the probity of the institution can be upheld, and false, toxic allegations can be dealt with through due process. True allegations can then find their way through due process to their logical conclusion, through taking action – which also protects the probity of the institution.
- Consistent and robust jurisprudence on what constitutes contempt, including for the Supreme Court. Just because the Contempt of Courts Act 1971 may not apply to the Supreme Court, the safeguards built in by Parliament – a defence of truth, and a requirement that there has to be substantial interference with justice – should be applied.
- Processes should be carefully followed, whether getting the Attorney General for India’s views on a contempt case, or fully considering the defendant’s pleadings (both of which were issues in Bhushan’s case).
These ‘reforms’, she said, will ensure that at least some measure of certainty and clarity is brought to contempt cases going forward.
“The law of precedent is about future insurance of our basic rights. And that future insurance is vital to our continued flourishing as a constitutional democratic republic.”Karuna Nundy, Supreme Court advocate
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