India in the Age of Contempt

Context: A case against the use of contempt proceedings by the judiciary as the best way of protecting the dignity of the court in India.

Criminalization of free speech in India:

• India- unusual among democracies: India still retains 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.
• England and Wales abolished contempt as an offence.

• Issues with Sedition in India:

• It is a relic from the colonial period.
• Its free and liberal use by those offended by speech that is not seditious.
• The lack of adherence to Supreme Court guidelines regarding what constitutes sedition and the disregard of it by the state and lower courts.

• Issues with Contempt of Court: 

• Criminal contempt can come out of “scandalising the court” which has a broad meaning.
• In 2018, the government asked the Law Commission of India for the rationale to remove this phrase and restrict contempt only to acts of willful disobedience.
• The powers of content are constitutional and thus cannot be over-powered by an Act of Parliament. 

• Article 142(2) --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.”

Recent examples of the failure of Judiciary in maintaining its dignity: 

• No action or observance over the plights of migrant’s weeks after the lockdown and blindly trusting governments claims that no migrants were walking on the road.

• Non-recognition of the rights violations in Kashmir which were admitted by the State:

• • • The Rajya Sabha was told that there was no approval for persecution granted for charge sheets filed against murder, rape and torture by the security forces in Kashmir.
    • The court has been hesitant to take up habeas corpus cases from Kashmir.
• Violation of Separation of Powers: The ex-CJI getting nominated as a member of Rajya Sabha just after retirement.

Conclusion: Judiciary can only redeem itself.

• The reputation of any court depends on how it conducts itself and whether it is seen as doing its duty freely.
• The court must ask itself whether it has been able to perform its constitutional duties of preserving the fundamental rights and civil liberties and ensuring that the constitution is not violated.