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Contempt Of Courts Act Is A British Legacy And Should Be Abolished

The supremacy of the Court in the discharge of its onerous task of interpretation of the Constitution is matched only by the privilege of the Legislature to enact laws in attunement with the Constitution.

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A nation-state is the lowest common denominator of a system of civilised people, united by a common desire to preserve their unique cultural identity and live in peace. While it is the culture that brings people together, it is the Constitution that binds and keeps the people and their land together as a State. Respect for the Constitution is the hallmark of a civilised people. In no circumstances could an act of dishonouring the Constitution be allowed lest the very foundation of the state is shaken leading to chaotic conditions resulting in total anarchy. Laws are the veins and arteries that keep the Constitution, which is the heart of the body politic in a healthy working condition. 

The supremacy of the Court in the discharge of its onerous task of interpretation of the Constitution is matched only by the privilege of the Legislature to enact laws in attunement with the Constitution. The Legislature and the Judiciary for the orderly implementation of the Constitutional provisions are two halves of the democratic system complementing each other like hand and glove. Hence, it is essential that the Legislature and the Judiciary discharge their duties and responsibilities in complete sync with each other. Here, it is pertinent to recall the imposition of the state of Internal Emergency in 1975. The 21-month long period of Emergency enabled then Prime Minister Indira Gandhi to rule by decree, suspend elections and curtail civil liberties. 

One of the worst fallouts of the draconian measure was the expectation that the Judiciary be committed to the ideology of the government of the day. No other act could have spelt contempt of a worse order to the Court than the usurpation of powers by the government employing proclamation of Emergency albeit through invocation of a Constitutional provision. Yet the Court became helpless as its powers were restricted to the interpretation of the Constitution and no farther. Those days the Court was reduced to a parrot in a cage expected to sing to the tune dictated by the government that had arrogated to itself sweeping powers.

Protection for Court

To enable the Court to function without any hindrance, it is essential to delineate the scope of its authority and forearm it with the means to exercise its powers. This is especially so when the State is under occupation by an alien power that “rules” the people and territory to its own benefit. When the ruling power is an external occupation force, there is no way the dispensation would allow its laws and the Court's pronouncements to be ridiculed or subjected to contempt by those who are being ruled and are not free to govern themselves. It is in such a setup that the Court needs protection from contempt.

Indian Context

Currently, India is a free country where the Court is mandated to interpret the Constitution and ensure that the laws enacted by the people's representatives do not militate against the people's aspirations. There is no scope for a shift in the government's focus from the cardinal principles of liberty, equality and fraternity and the goal of establishment of an egalitarian society. So long as the Court's activities do not deviate from its mandate, there is no fear of its authority being challenged or disrespected. It is only when the Court oversteps its mandate or is exposed to corrupt practices that it becomes vulnerable to criticism and challenges. 

In such unusual circumstances, a free people who do not wish to become victims of a cock-eyed or mala fide functioning by the Court, could not be expected to be mute and suffer in silence. In such conditions, the need of the hour is to prevent the miscarriage of justice by redressing the lacunae in the system. To clamp down a prohibition on people’s freedom of expression against a perceived miscarriage of justice would be tantamount to going against the grain of the democratic system. It is incumbent on the people of the nation to be eternally vigilant and alert to forestall attempts on the part of the government to step out of its brief.

Contemptible Acts and Exceptions

Lately, the Indian Judiciary has become hyperactive in the matter of interpretation of the Constitutional provisions. Its eagerness to step into the grey areas of the Constitution such as religion, faith, traditions and customs has become more and more pronounced over a period of time. In cases relating to such domains of an individual's life as a member of a community, the people affected by the Court's verdict hardly have a course of appeal available to them. In such cases, it is unfair to expect the displeased people not to raise their voice against the Court albeit for a just cause. Take the case of the apex court pronouncing a verdict against an age-old practice traditionally followed in a temple, on wrong or misplaced premises such as gender equality. 

The affected people become all the more frustrated for want of a higher portal of appeal. Eventually, they take to the street and hold rallies causing an all-around inconvenience. While conducting a rally or a protest march per se could not be derided as an act of contempt of the Court, such a demonstration leading to an act of violence, causing avoidable loss of lives or damage to the public property cannot be ruled out. The Judiciary should not only foresee such conditions where a large body of people find themselves in a tight corner in the matter of faith and religious devotion, with no course of appeal available, but it should also avert such situations.

Abusing a judge or throwing invectives in a Court is not an acceptable form of freedom of expression and needs to be put down by strict laws. However, currently, the mainstream media is not free to discuss details of a case that is sub judice due to fear of punishment for contempt of court. While contempt of court could be invoked in such cases, a plaintiff's freedom of expression is often lost in the maze of legal and judicial procedures. In India, every court has a vast number of cases pending and large numbers of undertrials languishing in prisons pending pronouncement of the verdict. The duration of a trial could take an inordinately long period and even outlast an undertrial's lifetime. Under such circumstances, an undertrial or his family may not be able to hold their tongue for fear of being swiftly penalised for contempt of court?

Why the Abrogation

When the contempt of court becomes too fearsome a bugbear and prevents a citizen from expressing his opinion, the individual liberty to speak out is the inevitable casualty. It is a misnomer for the Court that is the watchdog of the Constitution in which is enshrined the fundamental right of freedom of expression, to be endowed with unbridled powers in the exercise of the Contempt of the Courts Act. The sanctimonious laws that protect the Court from acts of contempt are archaic and, therefore, they need to be struck down ultra vires for enhancing the people's faith in the Court.

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house. Unless otherwise noted, the author is writing in his/her personal capacity. They are not intended and should not be thought to represent official ideas, attitudes, or policies of any agency or institution.


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Dr Sunil Gupta

Dr Sunil Gupta is a chartered accountant by profession. He has served as a director on the boards of Punjab National Bank (PNB) and Rural Electrification Corporation Limited (REC), General Insurance Corporation of India (GIC) and Dena Bank. Appreciated by national leaders and business professionals, Dr Gupta believes in all-inclusive participation and growth

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