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insightsonindia.com/2020/07/27/contempt-of-court-4
Context:
Last week, the Supreme Court of India suo motu registered a case of contempt
against lawyer Prashant Bhushan.
The court registered the proceedings after a petition was moved citing two
tweets Bhushan had published over the last two months.
In the tweets, the lawyer had commented on Chief Justice of India SA Bobde
and about the general functioning of the court under the last four chief
justices.
What is Contempt?
The contempt of court law is one of the most controversial elements in the Indian
legal context.
While the basic idea of a contempt law is to punish those who do not respect
the orders of the courts, in the Indian context, contempt is also used to
punish speech that lowers the dignity of the court and interferes with the
administration of justice.
Relevant provisions:
Article 129 and 215 of the Constitution of India empowers the Supreme Court and
High Court respectively to punish people for their respective contempt.
The suo motu contempt proceedings initiated by a bench of the Supreme Court
against Mr. Bhushan constitutes an abuse of the court’s contempt jurisdiction,
which—for good reason—is to be exercised sparingly and with circumspection.
It is because, according to some experts, there is nothing in Mr. Bhushan’s tweets that
qualify as contempt of Court.
His tweets are an exercise of his fundamental right under Article 19 (1) (a) to
freely express himself by way of comment and criticism on the conduct of the CJI
as a private citizen.
Also, these tweets in question appear to be in the realm of perception and
comment and don’t seem to have transgressed into contempt. The general
principle on contempt is that one can criticise a judgment but you can’t attribute
motives to the judge.
Conclusion:
A law for criminal contempt is completely asynchronous with our democratic
system which recognises freedom of speech and expression as a fundamental right.
An excessively loose use of the test of ‘loss of public confidence’, combined with a
liberal exercise of suo motu powers, can be dangerous, for it can amount to the
Court signalling that it will not suffer any kind of critical commentary about the
institution at all, regardless of how evidently problematic its actions may be.
In this manner, the judiciary could find itself at an uncanny parallel with the
executive, in using laws for chilling effect.
Besides needing to revisit the need for a law on criminal contempt, even the test
for contempt needs to be evaluated.
1. Canada ties its test for contempt to real, substantial and immediate dangers to
the administration.
2. American courts no longer use the law of contempt in response to comments on
judges or legal matters.
3. In England, the legal position has evolved.
Insta Link:
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Discuss how contempt cases are handled by Supreme Court in India.