Contempt, Criticism and Accountability

What England did

England had the same head of contempt and abolished it. Section 33(1) of the Crime and Courts Act 2013 provides that scandalising the judiciary, also referred to as scandalising the court or scandalising judges, is abolished as a form of contempt of court under the common law of England and Wales. Section 33(2) preserves liability for conduct that also amounted to some other form of contempt.

What remains is the strict liability rule under the Contempt of Court Act 1981, which is aimed at prejudice to proceedings rather than at criticism of judges.

Section 2(2) confines the strict liability rule to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.

Section 2(3) applies it only where the proceedings are active.

Section 5 provides that a publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt under the strict liability rule if the risk of prejudice to particular proceedings is merely incidental to the discussion.

So the English scheme protects trials and leaves judges to defend their reputations like anybody else, or not at all.

The United States

There is no equivalent power to punish criticism. The First Amendment, applied to the States through the Fourteenth, protects comment on judges and their decisions, and the American position is that the answer to criticism is answer and not punishment.

Two of the cases on this paper mark out why.

Near v. Minnesota, 283 U.S. 697 (1931), struck down a statute allowing a newspaper to be enjoined as a public nuisance, holding that the chief purpose of the guaranty of liberty of the press is to prevent previous restraints upon publication.

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), held that a public official may not recover damages for a defamatory falsehood relating to his official conduct without proof of actual malice, and stated the principle of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open.

American courts retain the power to punish contempt in the face of the court and disobedience of orders. What they have given up is the power to punish disrespect at a distance.

Switzerland

There is no comparable jurisdiction to punish criticism of the judiciary. Disruption of proceedings is dealt with by the ordinary criminal law and by the court's police power over its own hearings, and criticism of a decision is a matter of free expression under article 16 of the Federal Constitution.

Comparison

The row that matters is the first. India retains an offence the country it inherited it from has abolished.

The argument each way

For retaining it. A court has no army and no purse; its authority rests on public confidence, and a sustained campaign of falsehood against it damages the administration of justice in a way that a defamation suit by an individual judge cannot repair, since a judge suing is an unattractive spectacle and may itself compromise the appearance of impartiality.

Against. The judge is the offended party and also the tribunal, which offends the rule that nobody should be a judge in their own cause. The offence is vague. It is used unevenly. And the confidence it protects is not obviously protected by punishing a critic, since the punishment itself becomes the story.

A worked example

A senior lawyer publishes two statements alleging that the Chief Justice has behaved improperly and that the Court has failed the country.

India. Criminal contempt may be initiated suo motu; truth is available as a defence only if the court is satisfied it is in the public interest and the plea is bona fide; the range of punishment is small but the finding is the point.

England and Wales. Section 33 abolished the head; unless the statement prejudices active proceedings under section 2(2), no contempt lies, and the judge's remedy, if any, is defamation.

United States. Protected speech; a defamation action by the judge would face the Sullivan actual malice standard.

Switzerland. No contempt jurisdiction of this kind.

The cases

Facts. In Re: Prashant Bhushan, Suo Motu Contempt Petition (Crl.) No. 1 of 2020, concerned two published statements by a senior advocate, one about the Chief Justice of India and one about the role of the Supreme Court over the preceding six years.

Held, by a three judge Bench. The statements amounted to criminal contempt, being calculated to lower the authority of the Court and to shake public confidence in the administration of justice rather than fair criticism of a decided case; a fine of one rupee was imposed, in default simple imprisonment and debarment from practice.

Why it matters here. It is the modern Indian instance of the jurisdiction being used against a critic, and the nominal punishment shows what the proceeding is actually for, which is the declaration and not the penalty.

Facts. New York Times Co. v. Sullivan, 376 U.S. 254 (1964), arose from an advertisement describing police conduct in Montgomery, Alabama, containing inaccuracies, on which an elected commissioner sued for libel.

Held, by Brennan J for the Court. The Constitution requires a federal rule prohibiting a public official from recovering damages for a defamatory falsehood relating to official conduct unless he proves actual malice, that is knowledge of falsity or reckless disregard of whether it was false or not; the case is considered against a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open.

Why it matters here. It states the premise on which the American refusal of a scandalising jurisdiction rests: that erroneous statement is inevitable in free debate and must be protected if the freedom is to have breathing space.

Distinctions

What beginners get wrong

"The Contempt of Courts Act 1971 is the source of the power." Articles 129 and 215 are; the Act regulates.

"Truth is no defence in India." It has been one since the 2006 amendment, subject to the public interest and bona fides conditions.

"England and India are the same on contempt." Section 33 of the Crime and Courts Act 2013 abolished scandalising in England and Wales.

"Criticism of a judgment is contempt." Fair criticism of a decided case is expressly excepted, and the line the Indian cases draw is between criticism of a decision and an attack on the institution.

Limits and criticism

The judge is the tribunal. No system has solved that, and the Indian answer, that the Court acts for the institution and not for the judge, is a distinction the person punished does not feel.

Vagueness. "Lowers or tends to lower the authority of any court" gives no notice of what is forbidden.

Chilling effect. The cost of the jurisdiction is paid by criticism that is never published.

And the strongest point for the other side is that the alternative, judges suing for defamation, is worse, and that Switzerland and the United States manage without because their courts are not under the same pressure from a litigation system in which delay itself is an object of public anger.

Quick revision

1. Articles 129 and 215: courts of record, with power to punish for contempt of themselves.
2. Article 19(2) lists contempt as a ground of reasonable restriction; article 142(2) supports the Supreme Court's power.
3. Contempt of Courts Act 1971: civil is wilful disobedience; criminal is scandalising, prejudicing, obstructing.
4. Defences: innocent publication, fair and accurate reporting, fair criticism of a decided case, and since 2006 truth in the public interest and bona fide.
5. England: section 33 of the Crime and Courts Act 2013 abolished scandalising in England and Wales.
6. What remains there is the strict liability rule, sections 2(2), 2(3) and 5 of the Contempt of Court Act 1981.
7. United States: no such offence, and Sullivan, 376 U.S. 254 (1964), states why.

Test yourself

1. What is the source of the Indian contempt power? The Constitution. Article 129 makes the Supreme Court a court of record with all the powers of such a court including the power to punish for contempt of itself, article 215 does the same for every High Court, and article 142(2) supports the Supreme Court's power subject to any law made by Parliament. Article 19(2) lists contempt of court among the grounds on which a reasonable restriction may be placed on freedom of speech. The Contempt of Courts Act 1971 regulates and limits the exercise of the power but is not its source.

2. Set out the English position and when it changed. Section 33(1) of the Crime and Courts Act 2013 abolished scandalising the judiciary as a form of contempt at common law in England and Wales, section 33(2) preserving liability where the same conduct also amounted to another form of contempt. What remains is the strict liability rule under the Contempt of Court Act 1981, which by section 2(2) applies only where a publication creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced, by section 2(3) only where the proceedings are active, and which by section 5 does not catch a good faith discussion of public affairs where the risk is merely incidental.

3. Why does the American system have no equivalent? Because the First Amendment protects comment on public officials, judges included. Near v. Minnesota, 283 U.S. 697 (1931), holds that the chief purpose of the press guaranty is to prevent previous restraints, and New York Times Co. v. Sullivan, 376 U.S. 254 (1964), requires a public official to prove actual malice before recovering for a defamatory falsehood about official conduct, on the footing of a profound national commitment to uninhibited, robust and wide open debate on public issues. American courts keep contempt in the face of the court and for disobedience of orders; what they lack is a power to punish disrespect at a distance.

4. State the best argument for and against retaining the scandalising jurisdiction. For: a court commands neither force nor money and depends on public confidence, so a sustained campaign of falsehood damages the administration of justice in a way individual defamation actions cannot repair, and a judge suing personally would itself compromise the appearance of impartiality. Against: the offended institution is also the tribunal, which offends the rule against being judge in one's own cause; the definition, lowering or tending to lower the authority of a court, gives no notice of what is forbidden; and the real cost is the criticism that is never published, which no proceeding ever measures.