The offence of Criminal contempt exists so that the Court has an immediate and effective remedy against attempts to disrupt judicial proceedings or to interfere with the administration of justice.
Courts in advanced countries with highly effective administrations and policing may prefer to restrict their own recourse to this remedy. They may feel the better part of valour to lie in allowing politicians or mighty media moguls to vent their spleen at the Bench from time to time.
In a poor country where administrations may lack resources or be otherwise lethargic, the Bench may prefer to retain powers to detain those guilty of criminal contempt.
Does this necessarily mean that poor countries are doomed to a diminished right to freedom of expression because of a 'chilling effect'?
First let us look again at the phrase's definition- ' a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction'. Notice that the existence of a legal sanction can't either add or subtract natural or legal rights. You can't chill what does not already exist. But legal rights vary from jurisdiction to jurisdiction and from time to time. What is permissible here is forbidden there. Thus to show a chilling effect as arising from a particular conviction for criminal contempt, it is first necessary to show that a legal right which previously obtained can't now be exercised save with a degree of fear and foreboding.
One NGO has stated that, in the Bhushan contempt case, the Bench “in passing the judgement, has made it clear that ‘the majesty of the law and of the administration of justice’ is above the fundamental freedom of expression sending a chilling message about the cost of criticism'.
Surely, this message was already delivered loud and clear by a High Court judge being sent to prison for 6 months? It seems there was no 'fundamental freedom' such that allegations of corruption or malfeasance against Judges- save where made in a bona fide manner through mandated channels- could be bandied about.
Lawyers may want immunity from criminal contempt so as to tweet- 'I lost my case because Judge took a big bribe will raping everybody in the Court Room. Police won't arrest him because he is in cahoots with the Fascists ruling the country.' They may say, 'it is my honest opinion that the Judge took an invisible bribe while invisibly raping all and sundry. I demand a thorough investigation into invisible rape and corruption. I am armoured in Truth. Everybody else is a lying scumbag'. It may be argued that no great harm is done to the majesty of the Court if this fellow is let off. But what if he barges into the Court shouting this at the top of his voice? Should the Bench have no immediate remedy?
If lawyers can say 'This Judge is corrupt' then why shouldn't they also say 'If you want to win your case bring me a suitcase full of money. This Judge is corrupt. I have said so repeatedly on Twitter and in my blog. Everybody knows this. Check for yourself. So, be smart. Do yourself a favor. Bring me the money if you want justice.'
Of course, if lawyers are a class were smart, they would want this type of behavior to be punished by the Bench. Why? If the Bench is seen as corrupt, lawyers will lose business. Any tout can deliver a suitcase of cash. But why bother? Why not just threaten the judge?
If the Bench has no sanction of its own but must always apply to the Executive for a remedy, then lawyers get disintermediated. The Executive may still turn to the Bench for advise or so as to delay making a decision. But the Bench can call expert witnesses. It does not need to hear legal arguments from lawyers who, it may be, will be tweeting 'Just saw Judge so and so sodomizing the witness. Chee Chee! He could at least have offered a reach around! Hai! What is the world coming to? Should have done MBA instead of going to Law School. Sad.'
A different group of lawyers have written-
An independent judiciary consisting of independent judges and lawyers, is the basis of the rule of law in a Constitutional democracy.
This is not true. A Constitutional democracy may chose not to have an independent Judiciary. Arguably, the American judiciary is not wholly independent of the Legislature and the Executive. Europeans were scandalized by the role of the British Lord Chancellor and forced the UK to appoint a Supreme Court so as to come into conformity with European Law.
Whether or not we agree that Judicial independence exists, we can certainly agree
1) that there is a tradeoff between Judicial accountability and Judicial independence. If the Bench is made more and more accountable for its decisions it has less and less freedom and independence
2) the existence of Judges does not depend in any way on the existence of a professional class of lawyers. Where both exists, it is merely a sign that Justice is a service industry. Nothing can be claimed about any Constitutional role it might have.
Mutual respect and the absence of coercion, are the hallmarks of a harmonious relationship between the bar and bench.
No. Harmonious relations are evidenced by efficiency and contribution to the commonweal. Why? Justice is a service Industry. It is not a rave or an orgy of a genteel type. It does not matter if all the Judges and the lawyers get high together and kiss each other very respectfully on the anus before having non-coercive intercourse. What matters is the quantity and quality of the services the Legal system provides the public.
Any tilting of the balance, one way or the other, is deleterious both to the institution and the nation.
No. All that matters is efficiency and Social Welfare.
An independent judiciary does not mean that judges are immune from scrutiny and comment.
Yes it does. But, because we don't want it to be wholly independent, we ensure that this isn't wholly the case. Still, if the thing is to be useful, Supreme Court decisions must be 'buck stopped'- i.e immune to further scrutiny. Comment is a separate matter. One is welcome to write a learned paper for an Academic Journal critiquing particular decisions from the perspective of a particular theory of Jurisprudence. Of course, as a practical matter, one may simply tweet- 'this Judge is a fucking Fascist cunt! He denied me the right to marry my pussy-cat and have little kittens who look just like me.'
It is the duty of lawyers to freely bring any shortcomings to the notice of bar, bench and the public at large.
Through such channels as have been mandated by law and custom. Tweeting that a particular judge is corrupt and hinting that the Police would have arrested him had he not been a tool of the Fascists running the country could, as we have just seen, get you in hot water.
While some of us may have divergent views on the advisability and content of Mr. Prashant Bhushan’s two tweets, we are unanimously of the view that no contempt of court was intended or committed
These lawyers should know that their opinions are merely opinions. By contrast, a decision by the Supreme Court is the law of the land. If they say 'x is a crime', then x is a crime. Lawyers can no more argue the toss in this matter than Astronomers could argue that Ptolemy was right- the Sun goes round the earth.
especially when contrasted with the normal standard that “Justice is not a cloistered virtue… She must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men.”
This was not the ordinary standard in India. That is why people like Gandhi and Nehru were in jail. Lord Atkin was speaking of White people in his own country.
While Mr. Prashant Bhushan as a lawyer of good standing of the Supreme Court, may not be an ordinary man, his tweets do not say anything out of the ordinary,
then why did a fellow officer of the court file a complaint? It seems some lawyers say one thing, others say another. Who is to decide between them? The answer is- the Bench. But if the lawyers on the losing side still want to argue the matter why should the Bench listen? There may be more lawyers on the winning side. If you concede to the minority, you will have to concede to the majority. Why not just let the two fight it out with knives and guns and molotov cocktails?
other than what is routinely expressed about the court’s working in recent years by many on public fora and on social media.
But those tweets were not complained about by a smart lawyer who worked in Subramanian Swamy's office. Swamy is an economist. Yet he has run circles around the lawyers time and time again.
Now these cretins have abandoned any pretence of fighting for human rights. They are demanding that a hereditary member of the Aryan legal elite escape the punishment awarded to a Dalit Judge from the South.
Even some retired judges of the Supreme Court have expressed somewhat similar views.
Why? Because they had a certain ideological orientation for which, no doubt, they were rewarded. But no further rewards are forthcoming. Still, they like to see their names in the newspaper for something other than, as my tweets have repeatedly shown, sodomizing stray dogs in the streets while uttering casteist slurs. Yet these same soi disant judges refused to let me marry my pussy-cat so as to have a litter of kittens who would look like me!
This judgment does not restore the authority of the court in the eyes of the public.
Nothing save the public flogging of sleazy lawyers will do that.
Rather, it will discourage lawyers from being outspoken.
But they will smell like shit. How about throwing the lot in jail for criminal contempt till they have learnt to wipe themselves properly?
From the days of the supersession of judges and the events thereafter, it has been the Bar that has been the first to stand in defence of the independence of the judiciary.
Nonsense! The Bar was divided then and now and also it was completely useless. Voters had power. But, ultimately, Autocracy in India, as in Tzarist Russia, was tempered by Assassination.
A bar silenced under the threat of contempt, will undermine the independence and ultimately the strength of the Court.
Either the bar has always been silenced or it can't now be silenced because this sanction has always existed. It is clear that lawyers in India have shit for brains. All they can do is bluster.
A silenced bar, cannot lead to a strong court.
A strong court can exist without any lawyers whatsoever. This may be the best alternative for a poor country like India.
We also express a deep sense of disappointment about the Supreme Court’s utter disregard of the presence of the Learned Attorney General, a highly respected Lawyer of great eminence, and its refusal to seek his valuable opinion in the matter, which is mandated even as per contempt law.
The Bench called in the SG. But last year, it was the AG who brought charges against Bhushan who said he had made a 'genuine mistake'. But he was stiff necked and has remained so. This has led to his current predicament. Perhaps he is unwell. Or, maybe, he was always a shit lawyer.
We are of the firm view that the judgment must not be given effect to, until a larger bench, sitting in open court after the pandemic has the opportunity to review the standards of criminal contempt.
But more of the firm view that you guys have your heads stuck up your arses.
We do believe that the Supreme Court will hear the Voice of the People
who greatly care about a rich lawyer who tried to get into politics but failed miserably
expressed all around in last 72 hours on the subject and take corrective steps to prevent miscarriage of Justice and restore the confidence and respect that Citizens have generally reposed in it.
There was a time when these guys looked like they had popular support. Now it is Subramanian Swamy's proteges who are kicking the shit out of them. Economists, it seems, are smarter than Lawyers. Admittedly, that is not saying much.
As a case in point, look at the following article in the Hindu by ex High Court Chief Justice A.P Shah
These are strange times we are going through right now. The pandemic has brought all activities to a virtual standstill. Even as workplaces and institutions are slowly and tentatively getting back on their feet, the focus is on ensuring that the more important things get done first. Priorities are being identified accordingly. For the Supreme Court of India, identifying priority cases to take up first (in a pandemic-constricted schedule) ought not to be very difficult:
Indeed. A tweet by a well known lawyer saying the Supreme Court is shut must be immediately controverted. Otherwise ordinary people will believe that lying cunt.
there are dozens of constitutional cases that need to be desperately addressed, such as the constitutionality of the Citizenship (Amendment) Act,
a foregone conclusion
the electoral bonds matter,
re. which not a single sensible affidavit has been submitted
or the issue of habeas corpus petitions from Jammu and Kashmir.
which doesn't matter a damn so long as Preventive Detention on the basis of 'subjective' factors remains legal
It is disappointing that instead of taking up matters of absolute urgency in these peculiar times, the Supreme Court chose to take umbrage at two tweets.
Which lie about what it is doing right now.
It said that these tweets “brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution... and the office of the Chief Justice of India in particular….”
A retired High Court judge has no authority to controvert the findings of the Supreme Court.
Its response to these two tweets was to initiate suo motu proceedings for criminal contempt against the author of those tweets, the lawyer and social activist, Prashant Bhushan.
On the basis of a complaint by a young officer of the court who had interned with Subramanian Swamy's Law office. Bhushan got off by the skin of his teeth, having admitted to 'genuine mistakes' last year when the complainant was the AG. This time he ran out of luck.
This need to “respect the authority and dignity of the court” has monarchical origins from when the King of England delivered judgments himself.
This is foolish. The King could kill you if you looked at him sideways. Power delegated by him was cloaked in his majesty. But this is irrelevant to a Republic.
But over the centuries, with this adjudicatory role now having been handed over to judges, showing extreme deference to judges does not sit well with the idea of a democracy.
Yet it exists in Republican America and Republican France both of which have an earlier tradition of democracy than the UK or the India it ruled over.
The U.K. Law Commission in a 2012 report recommending the abolition of the law of contempt said that the law was originally intended to maintain a “blaze of glory” around courts.
He means the offense of 'scandalizing the court'. Why was it abolished in England and Wales? A silly Northern Ireland A.G tried to use it against former N.I Secretary Peter Hain whose autobiography sold very well as a result. The prosecution was dropped after Hain made appropriate noises. But 'murmuring judges' remained an offense in Scotland and NI.
It said that the purpose of the offence was not “confined to preventing the public from getting the wrong idea about judges... but that where there are shortcomings, it is equally important to prevent the public from getting the right idea”.
That is certainly fair comment regarding a part of the United Kingdom where the indigenous people might with perfect justice feel they were under the domination of colonial 'planters'.
The objective for contempt is stated to be to safeguard the interests of the public, if the authority of the Court is denigrated and public confidence in the administration of justice is weakened or eroded. But the definition of criminal contempt in India is extremely wide, and can be easily invoked.
Indeed. But India is a very very poor country. It is foolish to compare it with the United Kingdom. The fact is India has only retained territorial integrity by the use of extra-judicial killing on an industrial scale. Once Judges started getting shot, they turned a blind eye.
Suo motu powers of the Court to initiate such proceedings only serve to complicate matters.
How so? Either the Court can only try cases referred to them by the Executive- in which case it inevitably becomes a tool of the Executive- or else it trades off 'accountability' against 'freedom'. It becomes a trammelled thing which must excuse itself from any issue of import.
And truth and good faith were not recognised as valid defences until 2006, when the Contempt of Courts Act was amended. Nevertheless, the Delhi High Court, despite truth and good faith raised as defences, proceeded to sentence the employees of Mid-Day for contempt of court for portraying a retired Chief Justice of India in an unfavourable light.
The Supreme Court stayed that judgment and exonerated all concerned ten years later. However the officer of the court who brought the case was tried for contempt on a separate issue a couple of years later. The Supreme Court upheld his conviction but refused to jail him.
It seems no great harm is done by this particular law.
It comes as no surprise that Justice V.R. Krishna Iyer famously termed the law of contempt as having a vague and wandering jurisdiction, with uncertain boundaries; contempt law, regardless of public good, may unwittingly trample upon civil liberties.
But does not do so in this particular case. A lawyer who has evidence of Judicial wrongdoing should be offering that evidence to the proper authorities. He should not be tweeting lies.
It is for us to determine what is the extent of such trampling we are willing to bear.
No it isn't. It is for those who are getting trampled to provide evidence to that effect. Telling stupid lies in this connection helps nobody.
On the face of it, a law for criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right.
Has this man not read the First Amendment?
An excessively loose use of the test of ‘loss of public confidence’, combined with a liberal exercise of suo motu powers, can be dangerous,
but isn't because the thing is too time consuming and, anyway, the quantum of punishment is derisory
for it can amount to the Court signalling that it will not suffer any kind of critical commentary about the institution at all, regardless of how evidently problematic its actions may be.
only in the sense that it could amount to the Court signalling that it sodomizes stray dogs at every opportunity it gets.
In this manner, the judiciary could find itself at an uncanny parallel with the executive, in using laws for chilling effect.
Enforcing laws has more than a chilling effect. It leads to deprivation of liberty and some guy making you his prison bitch.
Besides needing to revisit the need for a law on criminal contempt, even the test for contempt needs to be evaluated.
Laws are a matter for the Legislature. Tests for contempt are matters for the Bench. If we belong to neither, why should we get exercised about something so utterly trivial?
If such a test ought to exist at all, it should be whether the contemptuous remarks in question actually obstruct the Court from functioning. It should not be allowed to be used as a means to prevent any and all criticism of an institution.
If we are going to get rid of useless laws, why start here? The fact is 'contemptuous remarks' may also be- indeed frequently are- 'fighting words'. A person who says 'contemptuously' that Judge X is a cowardly shitty runt unlike his daughter who has a stunning cunt may be seeking to intimidate that Judge by threatening his little daughter. He may say he is being merely contemptuous to the father while speaking admiringly of his daughter out of a charitable motive.
Already, contempt has practically become obsolete in foreign democracies, with jurisdictions recognising that it is an archaic law, designed for use in a bygone era, whose utility and necessity has long vanished. Canada ties its test for contempt to real, substantial and immediate dangers to the administration, whereas American courts also no longer use the law of contempt in response to comments on judges or legal matters.
Canada is much poorer than India. Americans dream of getting Indian passport. It is not the case that Judges- and even lawyers!- are respected in those countries. In India, the wisdom of the lawyer is proverbial. Nobody believes Judges are casteist, corrupt, cretins who can barely write a single grammatically correct sentence in any language.
In England, too, from where we have inherited the unfortunate legacy of contempt law,
prior to which we would just slice the nose of any guy we thought was dissing us
the legal position has evolved. After the celebrated Spycatcher judgment was delivered in the late 1980s by the House of Lords, the British tabloid, the Daily Mirror, published an upside-down photograph of the Law Lords with the caption, “You Old Fools”. Refusing to initiate contempt action against the newspaper, one judge on the Bench, Lord Templeton, reportedly said, “I cannot deny that I am Old; It’s the truth. Whether I am a fool or not is a matter of perception of someone else.. There is no need to invoke the powers of contempt.” Even when, in 2016, the Daily Mail ran a photo of the three judges who issued the Brexit ruling with the caption “Enemies of the People”, which many considered excessive, the courts judiciously and sensibly ignored the story, and did not commence contempt proceedings.
But England does not have an activist Judiciary. Moreover, it concentrates on the 'high value added' side of things. The Law is an 'invisible export'. British lawyers want the smartest people to become Judges because then foreigners prefer to fight their cases in England. Why? The barristers on both sides add value. But the decision given by the judge represents a superior 'Aumann signal' promoting a better correlated equilibria. That why wealthy Indians prefer to so arrange their affairs such that the, admittedly much more expensive, British legal system applies. This means that 'high value added' legal services constantly leave Indian jurisdiction. So our lawyers get more and more stupid and shouty. Our judges can barely spell their own names. From decade to decade, standards fall.
But Indian courts have not been inclined — or at least, not always — to display the same maturity and unruffled spirit as their peers elsewhere.
Indian judges are not the 'peers' of British or American judges. They are stupid and can't speak proper English. Gone are the days when Indian CJIs could hold their head high in company with a Lord Denning or Chief Justice Warren. A.P Shah must know this. He began his career as the lights were going out and the Indian Legal System groped its way in increasing darkness.
An exception lay in Justice S.P. Bharucha’s response to Arundhati Roy’s criticism of the Supreme Court for vacating the stay for constructing a dam: although holding that Ms. Roy had brought disrepute to the Court, nothing further was done, for “the court’s shoulders [were] broad enough to shrug off [these] comments”. But this magnanimity was sadly undone when contempt proceedings were initiated against the author for leading a demonstration outside the court, and filing an affidavit, where she said “it indicates a disquieting inclination on the part of the Court to silence criticism and silence dissent, to harass and intimidate those who disagree with it. By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm”. For “scandalising its authority with mala fide intentions”, she was punished for contempt of court, and sentenced to a day’s imprisonment, with fine.
And so she stopped making a nuisance of herself. This is a story with a happy ending. The crime may have been of the nature of a nuisance merely, but it was curbed at no great personal cost to a silly woman.
It is regrettable that judges believe that silencing criticism will harbour respect for the judiciary.
I suppose this cretin means 'garner' or 'increase'.
On the contrary, surely, any efforts to artificially prevent free speech will only exacerbate the situation further.
Nonsense! Beating people who are being a nuisance does not 'exacerbate the situation'. They learn to stay silent or to run away when they see you approach.
As was pointed out in the landmark U.S. case of Bridges v. California (1941), “an enforced silence would probably engender resentment, suspicion, and contempt for the bench, not the respect it seeks”. Surely, this is not what the Court might desire.
This is foolish. The Supreme Court did not want to antagonise the Trade Unions. However, once War was declared, 'clear and present danger' meant that fuckers who fucked with the War effort got right royally fucked in jail.
Simultaneous with the Indian Supreme Court’s decision to commence contempt proceedings against Mr. Bhushan, the Pakistan Supreme Court hinted at banning YouTube and other social media platforms, for hosting what it termed ‘objectionable content’ that ‘incited hatred’ for institutions such as the army, the judiciary, the executive, and so on.
Pakistan's Bench has gone completely mad. India's Bench is sobering down.
The eerie similarity between the two sets of observations raises concerns about which direction the Indian Supreme Court sees itself heading. One can only hope that these fears are unwarranted.
One can only hope that stupid fears stop plaguing stupid fools. But it is a forlorn hope.
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