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Does criticising a judge or judgment really amount to 'contempt of the court' in a vibrant democracy like India?
Recently the CBI interim Chief M Nageswar Rao was punished for a day by the SC in a case of contempt of the court. M Nageswar Rao had transferred an officer despite the court's direction not to take any policy decision.

There are various cases of contempt of court pending against many although the courts mostly release the culprits with a warning or a day's judicial custody. Arundhati Roy was punished with a symbolic imprisonment for a day with Rs 2000 fine on 6th March 2002 over her criticism during her 'Narmada Bachao Andolan' where some paragraphs of her affidavit brought ire of the judges. She also raised slogans inside the court room. After being punished also Arundhati Roy said that despite the punishment she stands by her words. 'SC observed that she committed criminal contempt of this court by scandalising its authority with mala fide intentions.'

Recently, AAP leader Sanjay Singh was also subjected to 'contempt of court' because he had criticised the court's verdict on Rafale. According to the SC, the comments of Sanjay Singh were very derogatory. Similarly, Attorney General of India served a contempt of court case against PIL activist and noted lawyer Prashant Bhushan because of his tweet criticising the appointment of M Nageswar Rao as interim chief of the CBI by the high powered committee.

The point to be noted is that I am not an admirer of all the above three personalities. But my question is does criticising a judge or judgement amount to 'contempt of the court'? Does sharing a tweet or debating on a sub-judice matter influence the judges while adjudicating a case?

In any democracy 'contempt of court' should always be if someone doesn't comply with a verdict. But criticising a judgement is the right of any citizen. One may agree or may not agree to a judgement. That's why the system of appeal is there. What constitutes an appeal? Isn't it that the judgement is erroneous hence to be re-adjudicated? Opposing a judgement is equal to criticising the judgement too although there's a very thin line whether an opposition/criticism is gentle or derogatory.

Let's come to what Indian law says about contempt of court. There are two types of contempt of court in India.

1.     Civil contempt: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.

2.     Criminal contempt: Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

i. Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or

ii. Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or

iii.  Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. 

From Civil Contempt law, it's clear that disobedience of a verdict is a clear cut 'Contempt of the court'. However Criminal contempt is bit ambiguous because the exact line beyond which a comment/publications etc influences, interferes or prejudiced is not exactly definable. Then India doesn't have a jury system. Juries generally tend to be influenced due to various public debate, publications etc as they come from general society. In India Judges directly adjudicates the cases and they are not to be influenced by anything as a matter of judicial ethics.

Some expert judges say 'that the Contempt jurisdiction should only be exercised in situations when the Courts are disobeyed and not adhered to, and should not be exercised to stifle criticism. The judges of the Courts must have thick skins, and should not be so sensitive as to brook no criticism of them. It is healthy for the people of a democratic republic to discuss, debate and critique judgements of the Courts...it is, in fact, crucial for our development as a democracy and for greater public participation in matters affecting the nation at large'

Further Justice Krishna Iyer said, the law of contempt has a vague and wandering jurisdiction with uncertain boundaries. Such a law, regardless of public good, may unwittingly trample upon civil liberties. In a democracy, the people should have the right to criticize judges. The purpose of the contempt power should not be to uphold the majesty and dignity of the court but only to enable it to function. (source: https://www.clearias.com/contempt-of-court/).

Thus, it's time to redefine the British-era based 'Contempt of Court law' of 1971. We are a vibrant democracy and should criticise a judgement and even the judges although with decency, but must not disobey an order/verdict even if there' disagreement.

Now the three personalities I have mentioned above shouldn't be charged 'Contempt of the Court' merely because they criticised. In fact court should initiate contempt of the court where there's real contempt/disobedience. For example, courts asked to remove mikes/ loud speakers from Mosques, temples etc. It has ordered as to what should sound decibel level when a procession is being conducted and those orders are openly violated on daily basis. Women are prevented to enter Sabrimala temple despite the verdict. You need not agree to a judgement but disobedience amounts to contempt of the Court'.

In conclusion, I would say that criticising a judge or a judgment or debating on a case that is under adjudication of the court shouldn't be treated as Contempt of the Court. Only disobedience should be considered as 'Contempt of the Court' and should be implemented strictly.

Editorial NOTE: This article is categorized under Opinion Section. The views expressed in this article are solely those of the author and do not necessarily represent the views of merinews.com. In case you have a opposing view, please click here to share the same in the comments section.
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