Concerns about contempt laws came up in the Constituent Assembly – and were never fully addressed

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. The court said it found the tweets prima facie contempt.

The Supreme Court also brought up for hearing a contempt case registered against Bhushan more than a decade ago in 2009 for statements made to a magazine, alleging corruption among former chief justices. The next hearings in these cases will take place in August.

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.

Courts require contempt powers to ensure their orders are implemented – so goes the argument. This, supporters of the law would argue, is important to sustain the independent nature of the judiciary itself. While the judiciary issues orders, they are implemented by the government or private parties. If the courts are unable to enforce their orders, then the rule of law itself will come to grinding halt.

In the current form that the contempt law exists, criticism of judges by imputing motives to their functioning could be considered contempt. And in punishing contempt, the court, especially the Supreme Court and the High Courts, have sweeping discretionary powers, even though they on record function strictly based on precedent.

One of the reasons for the high level of discretionary element in contempt powers is that this power of the Supreme Court and High Courts is enshrined in the Constitution. Though there is a Contempt of Courts Act which lays down procedures for contempt proceedings, the Supreme Court is not fully bound by the Act since it draws contempt powers from Article 129 of the Constitution.

Apart from Article 129 that specifically allows the Supreme Court to punish contempt of itself, the Constitution also includes contempt of court as a reasonable restriction to the freedom of speech and expression under Article 19, along with elements like public order and defamation.

However, not all the framers of the Indian Constitution held the same view on contempt of court. In fact, the Constituent Assembly saw intense debates over contempt of court laws, especially its articulation as a reasonable restriction on fundamental rights. Many members of Assembly were deeply apprehensive about its possible negative consequences. Their fears went unheeded.

Supreme Court and contempt

In response to substantive questions raised on the nature of contempt as a restriction on free speech, Dr BR Ambedkar, the chairman of the drafting committee, cited legal technicalities.

The first of the exchanges in relation to contempt powers of the Supreme Court took place on May 27, 1949, when Dr Ambedkar moved an amendment to draft Article 108, which later became Article 129 in the final Constitution. The amendment moved on that day had two elements. One was the seat or location of the Supreme Court and the other was its power to punish contempt of itself.

Ambedkar explained the necessity of providing contempt powers to the Supreme Court as a legal necessity flowing from the fact that the court is a court of record, that is the proceedings of which are recorded and become evidence or precedent. Ambedkar said:

“As a matter of fact, once you make a court a court of record by statute, the power to punish for contempt necessarily follows from that position. But, it was felt that in view of the fact that in England this power is largely derived from Common Law and as we have no such thing as Common Law in this Country, we felt it better to state the whole position in the statute itself. That is why article 108 has been introduced.” 

When these amendments were moved, the focus of other members who spoke was on the provision relating to the seat of the Supreme Court in New Delhi and not so much on the contempt part. This suggests the amendment was seen as non-controversial – a consensus seemed to exist that the Supreme Court had to be vested with powers statutorily to punish contempt of itself.

But when TTK Krishnamachari, who would later become Union Finance Minster in the Nehru Cabinet, proposed an amendment to Article 19 for the inclusion of contempt of court as a reasonable restriction on free speech, all hell broke loose.

Contempt and free speech

On November 17, 1949, the last day on which amendments could be moved in the Constituent Assembly, TT Krishnamachari introduced contempt of court laws as a reasonable restriction under Article 19, which provides citizens an array of rights, including freedom of speech and assembly. In the Constituent Assembly, Article 19 was draft Article 13.

Krishnamachari’s reasoning for introducing “contempt of court” as a reasonable restriction was that those laws made before the adoption of the Constitution that were not in consonance with the provisions of fundamental rights become void to the extent of the contradiction. That is, a law made before the Constitution should comply with the fundamental rights chapter of the Constitution or else it cannot be in force.

As the contempt of court law was already in existence, as was the case with public order and defamation provisions, it had to be expressly protected from being overwritten by the final Article 13. Krishnamachari positioned the amendment as filling a lacuna rather than expanding the scope of restrictions under Article 19.

This argument, however, did not cut ice with several members, who said the last minute amendment being introduced threatened to change the very character of the fundamental rights chapter, especially free speech. What was earlier given to the citizens was being chipped away, they alleged.

RK Sidhva, a member, criticised the assumption that judges would use the law cautiously. He asked the lawyer members in the Assembly why they were being so lenient to judges when past record has shown an abuse of contempt powers. Sidhva flagged the grave problem of allowing judges to decide on cases which alleged contempt against themselves. He said:

“First of all, let me state that this is not a consequential amendment. This is a fundamental proposition that is being brought before this House. We know, Sir, about this contempt of court, how the Judges have been exercising their powers in the past, as if they are infallible, as if they do not commit any mistakes. Even third class magistrates, first class magistrates and sub-judges have been passing such strictures which even High Court Judges themselves sit as the prosecutors. They themselves want the judiciary and executive functions to be separated. In cases of contempt of court, the High Court Judges is the prosecutor and he himself sits and decides cases in which he himself has felt that contempt of court has been committed.”

Sidhva’s comments reflected the view that the Constituent Assembly was packed with lawyers, which had resulted in extraordinary powers being vested in the court. Pointing out that contempt powers would allow judges to shut down even comments “necessary in the interest of the public life”, he said:

“I cannot understand why my lawyer friends there are very lenient to the judges. After all, Judges have not got two horns; they are also human beings. They are, liable to commit mistakes. Why should we show so much leniency to them? We must safeguard the interest of the public. If a citizen by way of making a speech condemns the action of a third class magistrate or a fourth class magistrate who has passed strictures upon the public, is he not entitled to make a speech and comment upon it?

...I say the High Court judges are not infallible ; they have also committed so many mistakes. They do not want any comment to be made against a High Court judge when comment was necessary in the interest of the public life.” 

Rajendra Prasad, the chairman of the Assembly, countered Sidhva by stating that his argument would mean “a law may be passed which will prevent defamation of a private individual; but a law may not be passed which will prevent defamation or libel of a court”.

To this, Sidhva reiterated that he did not want contempt of court to be included under Article 19 as his past experience had shown judges from the lowest to the highest courts had not been impartial. “Therefore I am opposed to this amendment,” he said.

Other members took a different view. Nazirduddin Ahmed said the higher judiciary should have powers to punish contempt in a “summary manner”.

Das Bhargava objected to the amendment moved by Krishnamachari, but his objection centred around the nature of the contempt law that legislatures would be allowed to make. He wanted the word “reasonable” to be added before the word “law” so that the legislatures were restricted from making unreasonable laws on elements like defamation and contempt of court.

Another member, K Santhanam, brought up the question of uniformity. Since all states were being given powers to make contempt laws, he said this will lead to inconsistency across the country. Thus, he proposed that the subject be added to the concurrent list so that Parliament can bring in an element of uniformity.

But as far as the power of contempt itself was concerned, Bhargava and Santhanam found it necessary.

Apart from Sidhva, the other member who spoke out strongly against Krishnamachari’s amendment was Biswanath Dass, who termed the very move to table the amendment “tyranny of the drafting committee”.

Dass argued that fundamental rights should not be allowed to be changed so suddenly. He pointed out if the amendment had not been moved at the last minute, the Constitutional provision related to amending the Constitution by an Act of Parliament would have kicked in. He said:

“Sir, I seek your protection from the tyranny of the Drafting Committee. The Fundamental Rights were passed by us with great solemnity – I am not a lawyer, but being a common man I understand the Fundamental Rights given to us after great consideration in so many Committees and after serious consideration by this House. What has happened for the last two or three days that we are suffering from the tyranny of the Drafting Committee? On the 15th [November] we received amendments to Article 13 by the same two gentlemen – the Honourable Dr Ambedkar and Mr TT Krishnamachari – and today Mr Krishnamachari has moved another amendment. Last night we got the present amendment which the House is concerned. Fundamental Rights cannot suddenly be changed. If today was not the last day of this house to consider further amendments, article 304 [power of Parliament to amend the Constitution] would have applied to any changes in the Constitution; for any changes to the Constitution.” 

Further, Dass also expressed his suspicion of judges. He said that he does not think very highly of judges as they were trained in the British tradition, misapplied justice and kept people down during the colonial rule. He warned Ambedkar that the law could even turn against him later. Dass said:

“If Dr Ambedkar, ten years hence on his retirement, writes a book on the vagaries of Courts, about contempt of court, he will see his particular partially [partiality] overnight to give certain more powers to these magistrates and judges were not called for. It will be a very wonderful book where many penniless lawyers became judges and regulated and controlled the affairs and rule of the alien Raj by the word ‘contempt of court’ and the chicken-hearted lawyers got frightened at them.” 

At this point, Rajendra Prasad interjected and said judges were highly respected. But Dass did not relent.

Ambedkar’s response to the whole debate rested on technicalities. He first reiterated Krishnamachari’s point that if contempt of court was not added as a reasonable restriction, the contempt laws would have to be abrogated as they would be in conflict with the fundamental rights chapter. Then, responding to the concern flagged by Santhanam on states and uniformity of contempt laws, he said:

“Now with regard to the point made by my Friend Mr. Santhanam, it is quite true that so far as fundamental rights are concerned, the word “State” is used in a double sense, including the Centre as well as the Provinces. But I think he will bear in mind that notwithstanding this fact, a State may make a law as well as the Centre may make a law, some of the heads mentioned here such as libel, slander, defamation, security of Sate, etc., are matters placed in the Concurrent list so that if there was any very great variation among the laws made, relating to these subjects, it will be open to the Centre to enter upon the field and introduce such uniformity as the Centre thinks it necessary for this purpose.”  

The amendment was then adopted, with the subject of contempt of court put in the concurrent list.

Resonating voices, 71 years later

What the debates in the Constituent Assembly reflect is a deep anxiety over vesting in the court contempt powers that could limit free speech. There were also doubts over the assumption that judges will use the powers with utmost caution.

These anxieties and doubts over whether contempt of court should be considered a reasonable restriction on fundamental rights were never squarely addressed.

Over the last 71 years, the contempt of court law has seen a gamut of interpretations from the Supreme Court. But the underlying concern remains – that the law provides sweeping discretionary powers to the judges to rule on what they perceive as contempt against themselves.

To an extent, the court itself has tempered the law down. In 2002, in his famous observation in a contempt case against writer Arundhati Roy, Justice Bharucha said that the shoulders of the court were broad enough to shrug off certain comments. But time and again, as the case against Prashant Bhushan shows, the courts in India have not shied away from using the weapon of contempt, despite the stark asymmetrical nature of power between the courts and the individuals.

While public debate often narrowly focuses on whether a particular statement amounts to contempt of court, the fact is that a law that provides wide discretionary powers to punish speech, in whatever form it may be, is antithetical to democracy.

British Judge Lord Templeman is often quoted during contempt cases in many countries. When the Daily Mirror ran articles calling British judges “old fools”, many wondered why the court did not initiate contempt proceedings. To this, Templeman is said to have observed that he was indeed old, but whether he was a fool or not was a matter of perception.

This at once shows the liberal attitude of certain judges who “shrug off” even insults and also reiterates the point that the law should not leave it to individual judges to be either liberal or conservative about contempt. While the image of the institution of the court is of utmost importance to protect the sanctity of the justice delivery system, on balance are more important the rights and freedoms of individuals.