GS Paper: GS2

The article discusses the issues that law for contempt of the court give rise to. The practice has monarchical origins. Its continuance conflicts with the ideals of democracy. 

Objective

• The objective for contempt is stated to be to safeguard the interests of the public if the authority of the Court is denigrated and public confidence in the administration of justice is weakened or eroded.
•  Need to “respect the authority and dignity of the court” has monarchical origins.

Issues in India

• With adjudicatory role having been handed over to judges, showing extreme deference to judges does not sit well with the idea of a democracy.
• But the definition of criminal contempt in India is extremely wide, and can be easily invoked.
•  Justice V.R. Krishna Iyer famously termed the law of contempt as having a vague and wandering jurisdiction, contempt law may unwittingly trample upon civil liberties.
• Criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right.
• Excessively loose use of the test of ‘loss of public confidence’, combined with a liberal exercise of suo motu powers, can be dangerous.
•  It can amount to the Court signalling that it will not suffer any kind of critical commentary about the institution at all.

Lessons from other democracies

• Contempt has practically become obsolete in foreign democracies.
• Canada ties its test for contempt to real, substantial and immediate dangers to the administration.
• American courts also no longer use the law of contempt in response to comments on judges or legal matters.
• In England, too, the legal position has evolved.

Approach of Indian judiciary

• Truth and good faith were not recognised as valid defences until 2006, when the Contempt of Courts Act was amended.
• Indian courts have not been inclined to display the same maturity and unruffled spirit as their peers in the other democracies.

Consider the question  “A law for criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right. Examine the issue in India context and suggest the major to strike the balance.”

Conclusion

Besides needing to revisit the need for a law on criminal contempt, even the test for contempt needs to be evaluated. If such a test ought to exist at all, it should be whether the contemptuous remarks in question actually obstruct the Court from functioning. It should not be allowed to be used as a means to prevent any and all criticism of an institution.

The article discusses the relation between the judiciary and the legislature. Recent development in Rajasthan assembly serves as the backdrop.

Context

• The political tussle in Rajasthan entered the High Court and the Supreme Court.
• The Supreme Court itself proposed to rule on the larger question of the jurisdiction of courts to entertain such pleas.

Historical background

• The President of India made a presidential reference to the Supreme Court on the relative powers of legislative assemblies and constitutional courts.
• The Supreme Court held that there is a broad separation of essential powers of each organ of the State.
• However, the Court went on to hold that a judge who entertains a petition challenging any order of the legislature does not commit contempt of the said legislature.
• Since then court have restrained themselves from interfering in the workings of legislative assemblies or Parliament is concerned.
• The sole exception is under the anti-defection law-after a final order of disqualification has been passed.

Let’s look into Kihoto Hollohan’s case

• Constitution bench of the Supreme Court in 1992 held that the Speaker acting in a disqualification matter acts as a tribunal and is subject to judicial review.
• However, the same judgment makes it clear that the Court will not intervene at an interim stage.
• The same judgment further holds the Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.

Let’s now look into Rajasthan episode

• In this case, issuance of a possible disqualification notice by the Speaker, has been contested in constitutional courts.
•  Even in routine petitions against notices of proposed administrative actions, the petitioner is told to answer the show cause notice and to challenge the final action only.
• The Rajasthan High Court, however, entertained a petition to challenge the Speaker’s authority to decide, if MLAs had committed an act of defection.
• The Rajasthan High Court reserved its judgment, requested the Speaker to defer further proceedings and proceeded to direct him to await judgment.

Co-equality of Constitutional authorities

• Rajasthan assembly Speaker moved the Supreme Court, questioning the court’s power to direct a Constitutional authority.
• The principle of law applied is that Constitutional authorities cannot issue directions to each other.
• They can, at best, make a polite request.
• The single judge in Calcutta, recorded in his judgment that the Supreme Court was only co-equal with the High Court, as a Constitutional Court.
• Appellate powers of the Supreme Court did not make it a superior authority to which the High Court was subordinate.
• Ever since, the Supreme Court has been careful to couch its orders as requests to any High Court, or Constitutional authority.
• Constitutional courts have followed the same principle, in addressing other Constitutional authorities.

Role of judiciary in maintaining the balance

• Unnecessary conflict between organs of state may well invite some Speaker, backed by a solid majority at State and Centre, to defy the courts.
• Courts are apolitical but keep getting pulled into political thickets, especially in matters of mass defections resulting in regime change.
• The walls of separation between constitutional organs, once breached, cannot be then repaired against future intrusions.

Consider the question “Analyse fine balance Indian Consitution strikes between the various Constitutional authorities. Also examine how role of judiciary in dealing with the anti-defection law.”

Conclusion

Even under a sovereign Constitution, parliamentary and legislative supremacy in their areas of working must be respected.