On Tuesday, the Supreme Court of India held advocate Mathews Nedumpara guilty of contempt for referring to senior advocate Fali S Nariman while arguing a case for abolition of the system of senior designation of advocates. The incident occurred last week when Nedumpara, while arguing the case in front of Justice Rohinton Nariman (son of Fali S Nariman) remarked that the practice of designation of senior advocates is fraught with nepotism. He has been given two weeks to reply on the question of sentence.
It is for the second time in the past week that the judiciary is resorting to holding someone in contempt. Recently, the Meghalaya High Court issued a contempt notice to two journalists for an article published in The Shillong Times entitled "When Judges judge for themselves" which spoke about an order passed by the high court regarding retirement benefit to judges. The court remarked that the article was in bad taste and it showed the high court in very poor light.
Some might say the judiciary is too staunch and obstinate to entertain any view which goes against their authority, which gives an impression to the general public that the judiciary is too sensitive to criticism. However, there are a catena of judgments to disprove this view as the judiciary has provided guidelines to issue contempt notices in various instances.
On a bare perusal of the rationale of the Contempt of Courts Act, 1971, one will find that the judiciary welcomes fair criticism because every citizen has the freedom of speech and expression in the manner he or she desires. However, the problem arises when a prejudiced, biased and unfair comment is made which inordinately lowers or scandalises the authority of the court. This results in diminishing the authority of the court and taking away the public confidence in the primary institution of justice. Therefore, to safeguard this institution, and the interests of the public, the Act came into existence.
The test which is thus applied by the court to decide on the contempt action is the "test of erosion of public confidence". This finds its grounding in the rationale of the Act itself.
The first and foremost form of judicial restraint which translates to the defence against contempt of court is the defence of truth. This defence was introduced by the 2006 amendment to the Act. Plain, simple facts which present the true picture of any incident cannot therefore be brought under the definition of contempt. However, a dubious situation arises when the statements made are founded in the truth, but are stretched and exaggerated to such an extent that the resulting effect is a negative portrayal of the courts. In such a situation, the courts go to the basics of whether the said article lowers or scandalises the authority of the court.
Another defence provided is the right to genuine criticism. This includes the right to criticise the judgments of the courts. This defence stems out of the freedom of speech and expression provided to us under Article 19(1) of the Constitution of India. This freedom provides us the right to criticise not just the judiciary, but any organ of the government, as a conducive healthy democratic environment is provided only when there is a free flow of thoughts.
What still remains a contentious issue is the application of the test of erosion of public confidence. Many a time, a personal imputation on a judge is taken to be an imputation on the judiciary itself. This results in a fear created in the minds of people as the Act is then used wrongfully and in this way it defeats the very purpose of the Act: the people start losing confidence in the judiciary. However, in addition to this, it should be noted that the judiciary has exercised restraint on the arbitrary use of the contempt law. Whether it is exercised judiciously or not depends on the individual judge adjudicating the case on the given set of facts. But what remains settled is the importance of the confidence that needs to reposed by the people of the nation in the judiciary is important, and therefore, Contempt of Courts Act is a necessary law, which should be used.
The author is an assistant professor of law at Maharashtra National Law University, Mumbai