Thought Papers for Friday's (26/6/15) Seminar (Contempt of Court)
Issac John
Thought Paper 1
Issac John, 212112, 4th Year.
E.M. Sankaran Namboodiripad vs T. Narayanan Nambiar, 1971 SCR (1) 697
Restrictions on free speech which are justified on the ground of contempt of court could be considered to be slightly different from other grounds of restrictions. The existence of a harm which justifies any restriction on a right is more indirect in the case of contempt of court. The reason being that the direct subject of contemptuous speech is the judiciary. However, the harm sought to be averted by restrictions on contemptuous speech is the creation of distrust or dissidence towards the judiciary on part of the general citizenry, This also means that an analysis of the existence of such a harm is likely to be more subjective than objective in comparison to more verifiable grounds like public order and security of the state.
Judgments concerning free speech restrictions are often criticised on the ground that judges cannot assess the effect of such speech on the listeners of such speech. The strength of such a criticism erodes to a significant extent with specific respect to contempt of court. The subjects of such criticism being the judiciary, the judges are less likely to get the effect of possibly contemptuous speech wrong. This is by virtue of their continued interaction with the legal system.
This is open to the obvious criticism that the judiciary would be biased in such cases since they are being judges of their own cause. However, that is a possibility which we necessarily have to live with. In an ideal situation, the judges are expected to be of impeccable character and would be unbiased, even in their own cause. In a situation which is less than ideal, the possibility of being biased is only as much as the possibility of more general evils, like corruption.
Therefore, any criticism of this case which is based on the usage of the tendency standard by the judges loses a lot of its strength, in comparison to cases based on other restrictions. As a result, I feel that the case is principally correct in adopting dealing with other free speech restrictions.
However, the flaw of this case lies in the method adopted to assess the effects of the impugned speech. A significant portion of the judgment is an exposition on what the criticism of the state by Lenin, Marx and Engels encompasses. It’s analysis on the likelihood of the impugned speech creating distrust towards the judiciary is based on the fact that it did not reflect the views of these scholars on the judiciary, or at the very least, gave a very warped version of the same.
The standard for justifying such speech cannot be whether it correctly reflected the views of the people cited in such speech. If it were so, then any radical speech could be protected simply on the ground that it correctly reflected the views of the people cited. Therefore, the flaw of this case is that it has incorrectly linked the contemptuous nature of the speech to a veracity of the cited opinion.
Regardless of the veracity of a cited opinion or a stated fact, the analysis of whether speech is contemptuous has to be entirely in the realm of the consequences, or possible consequences of such speech.
Issac John
kruthi...@gmail.com
Thought Paper: In Re Arundhati Roy
Kruthika N. S.
What
struck me most while reading In Re
Arundhati Roy was the immense sense of paternalism entrenched throughout
the judgment. The court at a point, states, “the respondent has 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.” This sentence (and also, later references to Holmes
Alexander) reeks of paternalism owing to the word ‘backward’, and disallows
people from forming their own opinions on the issue. This is problematic for two reasons: (i) it is an instance of prior restraint of speech, and (ii) it is nothing but hard paternalism based not on fact, but opinions which may include both fact and values.
The next and most vital flaw in the judgment is how the court attempts to rebut the fair comment argument. This is just another example where the court seems to have blatantly disregarded the fundamental right of equality when it has come to matters of free speech. It has done so by effectively demarcating between those who can speak in certain instances and those who cannot. In this scenario, the court has distinguished between a person who is capable of making fair criticism, and one who cannot by loosely stating that an expert on the subject can only review judicial pronouncements – a distinction that must be seriously analysed via the triple test. Other instances where equality has been overlooked is the case of public order restricting free speech, especially where public order is allegedly disrupted due to ‘hate speech’ related to religion.[1] There has been considerable criticism of the public order rule, and such criticism is definitely warranted in this case too. For instance, what if say, an economist, a doctor, or an illiterate labourer wants to voice his opinion against the court?
Most
importantly in this discussion (and presumably the most important leg of the
equality triple test), we ought to question why
contempt of court should even matter, and be treated differently from other
critique in the first place. Does a failed judicial system refusing to take
criticism really restore the people’s faith in it, and does shielding them from
its shortcomings even have place in a free democracy, are questions that need
to be addressed. The court's reasoning that people ought to be shielded is not an answer, but the problem itself.
[1] The best example would be the distinction between a Hindu or Muslim and an atheist or pacifist. Even moving to ostensibly conventional religions, if we consider say, Buddhism or Jainism being targeted by hate speech, will the followers actually have recourse? These religions are identified with peace and non-violence. Hence, a threat to public order scenario may not even arise with instances of hate speech. Even if it does, there may be difficulty in proving that the resistors are indeed part of that religion. I state this because many tests of religion are based on whether the person is actually following the tenets of that religion. In this case, a Buddhist may not want to cause public order disruption to go against his religion in the first place, or, if he does, he may not be identified as a Buddhist at all. Hence, this hypothetical scenario implies that two different religions can have two totally different consequences resulting from similar causes of action.
anush...@nujs.edu
Sahara India Real Estate v SEBI
- Anushree Malaviya
The exception of ‘contempt of court’ in Article 19(2) is in itself a highly problematic provision - it has around it an unmistakeable air of both arbitrariness and vagueness. The Sahara judgement only proves to further the confusion present in the hierarchies in Article 19(1)(a) and widens the scope of its application.
The implicit hierarchy that is created is evidenced by the the imposition of the ‘postponement orders’ that the Court allows to be issued. Although it tries to disguise these as merely preventive actions, as distinguished from prohibitive ones, it is in essence a prohibitive prior-restraint of speech. The Court has created various degrees and categories within 19(2) that warrant a prior-restraint, while others do not. For example, it isn’t unconstitutional if films are subject to prior-restraint, however, it would be ultra vires in the case of a book (albeit the fact that it is primarily the same in its substance). Publication of a proceeding sub judice, according to this judgement, is under the group exposed to prior-restraints. However, once again, the degrees and requirements for prior-restraint to be imposed with respect to films vis-a-vis court proceedings is not the same, the latter of which still remains unclear.
This brings us to the second major flaw with the reasoning - the persisting ambiguity as to the scope of its application. The law as it stood prior to this case was already under ample criticism since ‘scandalizing the court’ allows room for a tremendous amount of subjectivity and misuse. However, the instant case the court interprets contempt to be ‘sui generis’ - this, along with their balancing of rights under Article 21, incorporates the provisions under Articles 129 and 215 while interpreting the exception. Thus, in substance, the Court follows a convoluted path of reasoning to arrive at a vague conclusion, since it fails to give any comprehensive guidelines, stating its reason to be so that it may develop on a case-by-case basis).
Another related point that deserves criticism is the reinforcement of ‘public interest’ as an Article 19(2) exception by citing the poorly reasoned Cricket Association of Bengal Case (1995) wherein the Court states that 19(2) grounds are for the benefit of society, for which public interest may be a valid synonym. It is on this fallacious assumption of public interest as a 19(2) ground that the court proceeds to apply the sui generis rule and allow for postponement orders.
The potential danger of this judgement is demonstrated by a Delhi High Court order that applied this ‘postponement rule’ to postpone the media reporting on the scandalous sexual harassment charges against Justice Swatanter Kumar.
Thus, this judgement has potential for great mischief, not only in the realm of ‘contempt of court’ matters, but may have further reaching consequences and it only perpetuates the existing inadequacies with this law.
jah...@gmail.com
Thought Paper 2:
Sahara India Real Estate Corp. Ltd. v. Securities & Exchange Board of India
Jahnavi Visvanathan – 212106
I am inclined to agree with the Sahara judgement to the extent of the view that it is impractical to envision concrete guidelines regulating how the media must report on cases pending adjudication when confidential or private information is involved. No straitjacket formula can adequately reconcile the concerns of privacy and confidentiality of the parties with the right to free and open discussion of pending cases by the media and the public.
Solely with respect to confidential or sensitive evidence, media sensationalism of a case and the subsequent public reaction could potentially sway a court’s decision to the detriment of a particular party involved. In a country where the common man often lacks a nuanced understanding of the manner in which cases are investigated and disposed of, we cannot afford to let such factors prejudice the delivery of justice by the courts. This is not to say that the media and the public should not have the right to criticise the working of the courts or the actions of specific judges, but simply that the media cannot use freedom of expression as a justification to override what the Court describes succinctly in the Sahara judgement as the “right to negotiate in confidence”.
Thus, at the risk of coming across as the devil’s advocate, trial by media, which has the potential to sway people’s view’s adversely for or against a particular party in a case, does seem at odds with the right to a fair trial. Furthermore, under an adversarial system wherein the presumption of innocence is considered paramount, widespread and biased media coverage of the proceedings of a trial does run the risk of the party involved (often the accused) being viewed by even the courts through an unfair lens.
Additionally, juxtaposing the Indian model with the American one, I am of the view that the strict prioritisation of freedom of speech and expression with reference to journalism that could prejudice court proceedings would be a difficult policy to follow under our court system. For example, I do not think the “neutralising devices” mentioned in paragraph seventeen of the Sahara judgement would be sufficient safeguards against prejudice to court proceedings in India, given that our country is already plagued by the problem of overly prolonged litigation.
Thus, I find myself agreeing with the Court’s conclusion in Sahara that this question can only be answered with efficacy on a case-to-case basis in order to protect both the freedom of speech and expression and the right to privacy and confidential negotiation. However, this judgement is also open to criticism with respect to the fact that the Court failed to sufficiently elaborate its reasoning on the crucial question of what would, at least broadly, amount to “real and substantial” risk of prejudice to the administration of justice, possibly leaving this test open to arbitrary misuse in the future.
aparaj...@gmail.com
Thought Paper 2 - In Re: Arundhati Roy
Aparajita Sinha – 213023
There are several problematic elements in the case. Firstly, it is mentioned repeatedly throughout the judgment that the Judiciary is not immune to criticism and it is the privileged right of every Indian citizen to speak his mind, however, in a contradictory manner, the Judge observes that All citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism. Citing P.N. Duda vs. P. Shiv Shanker & Ors., the Court arbitrarily differentiates between a person who had been a Judge of the High Court and was a Minister and a person who had no legal background. In this context, the Court held that Arundhati Roy was not entitled to freedom of speech and expression to criticize the Judiciary because she did not possess any legal knowledge, which goes against the basic fundamental rights guaranteed to all citizens.
Another aspect of the case which seems absurd is the idea that the Judiciary can only function effectively if its dignity and authority is respected and protected, and the need for the law of contempt, to prevent the undermining of its authority, arises from that. The Court further observes that dignity of the Courts is maintained if the public has confidence in it and without that, the Judiciary will erode and fail to administer justice which essentially means that the Judiciary is just and efficient not because it performs its duties effectively but because public has faith that it just. Thirdly, the Court held that “the respondent has 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”, noting that the offence of contempt is really a wrong done to the public, further establishing the paternalistic idea that the so-called backward people lacked the ability to form their own opinions and needed to be protected from certain kinds of speech.
Fourthly, on the issue of whether the offence contempt requires any actual damage to be caused to the Judiciary, the Court ruled that the Respondent had already committed criminal contempt “intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow”. This is troubling because the Court does not deem it necessary to establish any connection between the speech and the eventual disruption in the course of justice and such an oversight can easily be manipulated to stifle free speech.
udbhav...@gmail.com
Thought Paper I – Udbhav Tiwari
E. M. Sankaran Namboodiripad v/s T. Narayanan Nambiar
My initial impressions upon reading the case were a mixture of shock and disappointment. The shock was in seeing that the highest court in the largest democracy in the world could use the argument ‘…judges do not consciously take a view against the conscience or their oaths…’ as a reason to imprison a man for a statement in a press conference while he was the Chief Minister of a state. The disappointment, on the other hand, stemmed from the legal reason for the judgement being ‘…the appellant's ignorance about the true teachings of Marx and Engels...’ (Whose merits where gone into in great detail by the court, with which I also have big issues with from both a mandate & need perspective) All of this when sharply contrasted with the arguments being put forth by the petitioner about the freedom of speech and expression given under Article 19 of the Constitution, probably does more to further the fears expressed by the petitioner in the his press conference in the eyes of a general member of the public than any statement from the press conference.
The high handed approach taken by the court in awarding itself and all the members of its profession a bona fide certification of all their actions being carried out in ‘good faith’ and any attempt at criticising them being an attack on the ‘bed rock of democracy’ shows the primary fallacy of the judgment, its circular premise that the judiciary is inviolate because a democracy envisages it so. It also ignoring any considerations to the real world implication of the judgment, the chilling effect of free speech and possible abuse of its blanket assertions (especially in the lower judiciary, where the criticism’s would arguably be more valid and infinitely more necessary) including various allegations of bias and corruption. By behaving is such a manner the Court acts more like an easily affronted, authoritarian clique than the gatekeeper of the Indian Constitution.
In fact, I think such a judgement serves as a blow to any of the legitimate arguments made by the Court in numerous other cases where it both justifies the need & effective use the provisions of contempt of court to further the cause of justice, fair play and redressal of disputes in a variety of matters, especially matters of evidence in criminal cases where they can be very effective in acting as a deterrent to attempts in manipulating the law to further vested interests in society.
ramya....@nujs.edu
Thought Paper – 2: E. M. Sankaran Namboodiripad vs T. N. Nambiar
Ramya Chandrasekhar
This case, in an extremely absurd fashion, upholds the conviction of the then chief minister of Kerala, for calling the judiciary an “instrument of oppression” and incorrectly quoting Marx and Engels in this regard.
For most part of the judgment, J. Hidyatullah undertakes an in-depth analysis of what he thinks Marx, Engels and Lenin were advocating. He reserves half the judgment for this extremely subjective analysis, but seems to discard it all in the end, when he says that the accuracy of the content doesn’t matter, as it seemed to him the petitioner was either ignorant or deliberately misrepresented the teachings of Marx and Engels. He relies on the consequence of the speech as the test, i.e. whether the “likely effect” of his speech would lead to a lowering of the reputation of the judiciary in the eyes of the people, which seems similar to the “calculated tendency” test used in Ramji Lal Modi v. UP.
If ultimately J. Hidyatullah has used this “effect” test to uphold the petitioner’s contempt of court charge, then the subsequent reasoning given by him is certainly not enough. In a particularly problematic line, he says that people would give a ready ear to the petitioner and believe his words, by virtue of his position as chief minister. If the test used is the test of consequence, then details such as the identity of the speaker and the veracity of the content should be irrelevant. What should only be analysed is the effect that the speech could have had on the listeners, which is where analysis of the listeners is required. The judgment doesn’t set out what kind of listeners are to be used as the standard – rational, autonomous ones or the most vulnerable ones? If the court does resort to the “effect test”, then such analysis is required as the effect of the speech is to be gauged w.r.t the autonomy of the listeners.
This is the general problem with tests that use the effect or harm or tendency that the speech causes or may tend to cause to penalize the speaker – it is unclear whether the test is an objective or a subjective one. While it may seem objective at first glance, an analysis into the effect, more often than not, as seen in this case, does lead to analyzing details such as the intention of the speaker or the content itself. It is for this reason, that the test employed here is deeply problematic.