This post excerpts CCG’s submissions to the Law Commission of India on the subject of reforming contempt law. They deal in particular with the case for repealing the offence of scandalizing the court.
Colonial Origins of the ‘Scandalizing the Court’ offence
The first use of the terminology of “scandalizing the court” was in R v. Almon which held that “[t]o be impartial, and to be universally thought so, are both absolutely necessary for the giving justice that free, open, and uninterrupted current, which it has, for many ages, found all over this kingdom, and which so eminently distinguishes and exalts it above all nations upon the earth”. That case based its reasoning in the fact that imputations concerning judges would ultimately affect the Crown, as the latter appointed the former. The Court went on to hold that “the principle upon which attachments issue for libels upon courts is of a more enlarged and important nature — it is to keep a blaze of glory around them, and to deter people from attempting to render them contemptible in the eyes of the public.”
In R v. Gray, the Court defined the offence as “any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority.” This understanding of the offence prevails today and is codified by Section 2(c) of the Contempt of Courts Act, 1971.
By 1899, the Privy Council had acknowledged that the offence was obsolete, but found that it has utility in only context, holding that “in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.” For India, then, the offence is part of a repressive colonial legacy.
Almon’s rationale, that the mere imputation of partiality, whether borne out in fact or not, impedes the course of justice, and that keeping “a blaze of glory” around the judiciary is a valuable end in itself is a clearly problematic one, given that modern democratic, rule of law societies do not treat governments as ipso facto beyond reproach. The scandalizing the court offence is therefore a clearly “anachronistic form of contempt”.
Untenability of the Public Confidence Rationale
However, the rationale that the Supreme Court continues to offer when employing its contempt powers to quell criticism or dissent is that the power is necessary in order to preserve public confidence in the judiciary, which is necessary to the proper administration of justice. The Supreme Court has itself acknowledged that the law of contempt is intended to preserve the integrity of the adjudicatory process rather than judges’ reputations and that it should only be used as such. It has also recognized the need for public scrutiny of the judiciary. However, the scandalizing the court offence does not make that distinction.
In general, Supreme Court precedent does not appear to have taken a speech-sensitive approach in practice. In M.S. Namboodiripad v. T.N. Nambiar, for instance, where the Chief Minister of Kerala accused the judiciary of class bias, the Supreme Court upheld the conviction for contempt, on the grounds that his words had “the effect of lowering the prestige of Judges and Courts in the eyes of the people.” Again, in In Re: Arundhati Roy, the Court argued that it was justified in its finding of contempt (and particularly of scandalizing the court) on the ground that Roy had “tried to cast an injury to the public by creating an impression in the mind of the people of this backward country regarding the integrity, ability and fairness of the institution of judiciary” by criticizing the Court. The Court acknowledged that the judges who were the subject of the criticism faced had not been injured, and that the “wrong” had been done to the public.
These approaches create an almost paternalistic justification of preventing criticism, and given that “public interest” alone is not a ground under Article 19(2), would be unjustifiable incursions into the freedom of speech.
While the stated end of the contempt power and particularly of the power to punish for “scandalizing the court” (of preserving public confidence in the judiciary) is undoubtedly a valid one, we submit that suppressing criticism would not achieve that end. The United States Supreme Court has recognized that the assumption that respect for the judiciary can secured through enforced silences rather than through open debate and criticism of courts, decisions and judges in good faith is a faulty one. In fact, the opposite outcome could result. Especially given the fact that contempt proceedings are summary in nature, there is a palpable risk that they would be viewed as self-serving instead. We would also submit that, at any event, the Indian judiciary, as an institution, is a resilient one, fully capable of withstanding the effects of vigorous public debate concerning its functioning.
Checking Value & Chilling Effect
Broadly, the application of the contempt power in order to secure compliance with court orders or to respond to instances of contempt in the face of the court is consistent with Article 19(2) because such activity would adversely affect the administration of justice if left unchecked. Where the contempt power is applied in order to curtail public debate concerning court proceedings and judicial integrity, however, no countervailing interest would be served.
In addition to the dissonance between the intended object and the actual outcome of the application of the scandalizing the court offence, this approach of stifling criticism of the courts also fails to account for the need for judicial accountability in their conduct and in their decision making. Given the possibility (however slim) of bias or impropriety in judges’ conduct (as other public officials) exists, public perceptions of the existing standards of judicial integrity at our courts would only be burnished through healthy debate concerning our courts and judges. The same rationale that would apply with regards to the other arms of government would apply to the judiciary as well: criticism, particularly of those in positions of political, corporate social or other power (and judges are powerful actors in any democracy’s establishment), serves an important checking function.
If scandalizing the court refers to any standard it would be an excessively subjective one, which operates on a strict liability basis. In addition to the fact of the arguably realized propensity for overuse, attaching summary procedure and criminal sanctions to such a vague offense is extremely problematic. A direct consequence of this vagueness would be the chilling of speech concerning courts and judges.
Remedies for Reputational Injuries to Judges
We do not suggest that untruths concerning judicial conduct and decision making should be allowed to circulate unchecked. Where this is the case, defamation law would allow for reputational injury to judges to be addressed adequately. In addition, other measures, such as instituting a mandatory right to reply where such allegations are made could be considered.
Therefore, we would propose that measures, including the repeal of the scandalizing the court offence, be taken so that unless some clear impediment to administering justice would arise otherwise. Where the “dignity of the court” or the reputation of particular judges is in question in particular, special care would need to be taken to ensure that it is not all criticism of the court, but only instances where criticism is based in untruths is treated as actionable.
The ‘Fairness’ Requirement
In the interests of open justice and the freedom of speech, we would also propose the removal of the requirement of ‘fairness’ in Section 5 of the Contempt of Courts Act, 1971 as it relates to the criticism.
We acknowledge that the fairness requirement may be useful where the criticism would disadvantage a party at trial, and would agree that it is a necessary component of Section 4, provided it is read in parties’ In the context of criticism of judges, however, we would advocate its removal.
The imposition of a fairness requirement would ignore the fact that the freedom of speech and opinion under Article 19(1)(a) does not discriminate between viewpoint-based and viewpoint-neutral speech and that the Indian press has historically presented content with biases of ideology and opinion. Further, the term ‘fairness’ is a subjective one. If the intended outcome is to preserve public confidence in the courts, it would remain unrealized where a determination of fairness needs to be made by courts. The UK’s Law Commission has recognized that the application of contempt powers would place courts in the position of judges in their own cause, and would create the impression in the minds of the public of a self-serving judiciary.
As a result, while the requirement for accuracy, which for test for factual errors or misrepresentations is a defensible one in the context of criticisms of the judiciary, we would submit that the requirement for fairness is not.
 (1765) Wilm 243, 97 ER 94.
 Id., at 255 and 256.
 Almon, at 270.
  2 QB 36.
 McLeod v. St. Aubyn,  AC 549.
 Id., at 561.
 George Robertson and Andrew Nicol, Media Law, paragraph 7-054 (2007).
 Bal Kishan Giri v. State of U.P., CRIMINAL APPEAL NO. 555 OF 2010 (Judgment dated May 28, 2014).
 In Re: S. Mulgaonkar, (1978) 3 SCC 339 at paragraph 40, quoting with approval from R. v. Metropolitan Police Commissioner ex. p. Blackburn, (1968) 2 WLR 1204. (“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”)
 Brahma Prakash Sharma v. State of U.P., AIR 1954 SC 10, quoting with approval from Ambard v. AG for Trinidad, Tobago, (1936) 1704 PC (“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.”)
AIR 1970 SC 2015.
 Id., at 2024.
 (2002) 3 SCC 343.
 Bridges v. California, 314 US 252.
 ATH Smith, Reforming the New Zealand Law of Contempt of Court: An Issues/Discussion Paper (2011) at paragraph 3.72.
 Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer, (1994) 2 SCC 434, 441-2 at paragraph 13 (agreeing that a function of free speech is to “invite dispute”); Anand Chintamani v. State of Maharashtra, (2002) 2 Mah L.J. 14, 32-3 at paragraph 19 (holding that “[t]olerance of a diversity of view points” is a “cardinal value which lie[s]” at the very foundation of democratic government”); Terminiello v. Chicago, 337 US 1 (1949) (quoted in Printers (Mysore) Ltd. with approval).
 Law Commission, Contempt of Court: Scandalising The Court (Law Com No. 335) (UK) at paragraph 63-4.