Contempt or Criticism? Redefining the Limits of Judicial Accountability in the Digital Age

Introduction

In the digital revolution, public discourse is adapted to the ability of citizens to instantaneously share their opinions on judicial decisions in social media, blogs, podcasts, and digital news providers. This change in the right of speech has not only improved public interaction, but has also resulted in heavy criticism of courts and judges – sometimes causing a distinction to be confused between “contour” and “content. This has come as it has got fresh life in high-profile cases such as the contempt trial of Advocate Prashant Bhushan, raising a fresh question whether India’s existing contempt clause maintains the balance between the powers of courts and freedom of speech guaranteed by the Constitution.

To uphold public confidence in the administration of justice, rather than to immunize judges from criticism, is the aim of the law of criminal contempt. The general language of the Contempt of Courts Act, 1971, however, including the offence of “scandalising the court,” has got general criticisms because it could be used to stifle completely any public debate which is legitimate. The widespread use of criminal contempt in a time when accountability in the judiciary is a topic of discussion in digital space is indicative of important constitutional issues.

This article maintains that the need for contempt jurisdiction for the effective protection of the administration of justice is ongoing, but must be exercised in a limited sense in the digital era. Any valid criticism of the administration of the court has the constitutional protection guaranteed by Article 19(1)(a) and criminal contempt should only be invoked when real and substantial threat to the administration of justice is caused by the speech.

Contempt Jurisdiction and the Constitutional Balance

The Supreme Court and High Courts are courts of record of record and having inherent contempt jurisdiction as per Articles 129 & 215 of the Constitution. This constitutional power is supplemented by the provisions of the Contempt of Courts Act, 1971 which differentiates civil contempt and criminal contempt. According to section 2(c) of the act, “publication which scandalizes or brings into disrepute a court or prejudices judicial proceedings or is an impediment to the administration of justice.”

These provisions are of importance as an institutional measure but at the same time cannot fail to overlap with Article 19(1)(a), which ensures freedom of speech and expression. It is important to understand that the legitimacy of the judiciary rests on public trust, so criticisms of judicial reasoning and/or institution functioning cannot be seen as necessarily harmful. For democratic accountability, courts are like other public institutions, should open up to informed public scrutiny.

Under this standpoint, the Supreme Court in Brahma Prakash Sharma v State of Uttar Pradesh declared that criticism will be considered contempt if it will have a substantial effect in the course of administration in place of merely bringing down the prestige of particular judges. In a similar vein, in P. N. Duda v V. P. Shiv Shankar, the Court noted that a review of how things are working out in the administration of justice by way of fair criticism helps, not harms, to improve the justice delivery system. Because of these decisions, the rule of law exists in contempt jurisdiction and not infallibility of judgment.

The Digital Age and the Need for a Higher Threshold

With the advent of social media, the character of public discourse has changed in fundamental ways. The Lawyers, the Press, the Judiciary, the academics, influencers and the public have discussions driven into the fast moving current of judicial decisions. Instantaneous discussions on judicial decisions take place by the Lawyers, the Press, the Judiciary, the academics, the influencers, the ordinary people. Under the guise of “transparency” to improve access to justice for the public, digital platforms have facilitated misinformation, and abuse of commentaries, as well.

In recent contempt proceedings, the judicial dignity and the right to democratic criticism have been shown to be in conflict with each other within the constitution. The Supreme Court declared in In Re Prashant Bhushan that the advocate was guilty of violating the 1843 Criminal Contingency Act by making the above tweet about the judiciary and the CJI. The premise and decision provoked discussion about what constitutes severe criticism of judicial institutions which should lead to penal consequences and what should instead be met with an answer through reasoned public discussion.

Comparative constitutional practice indicates that India can do with a more narrow approach. Today the offence to scandalise the court has been effectively replaced in the United Kingdom as there it is generally stressed that mature democracies must allow strong criticism of judges, even if such criticism is potentially damaging to ongoing trials or confers upon judges freedom of action. In the same fashion, the United States treats criticism of judges with greater lenience and allows such criticism under the Constitution in the name of “the dignity of the bench,” since confidence in the judiciary can be best ensured by clarity rather than criminal penalties.

These are contexts which are not applicable to India, but the underpinning concept remains relevant. Public confidence can’t be maintained just via prosecuting critics. Instead, it relies on judicial autonomy, sound decisions, transparency and trust of the public. Therefore criminal contempt should be an exceptional remedy which should be available as a response only to that which really, substantially and proximately interferes with the administration of justice.

Towards a Modern Contempt Jurisprudence

Not the end of the contempt law, but the reshaping of it is necessary in the digital age. That, first, courts must make a distinction between institutional criticism and personal attacks. The criticism of decision-making, of the administration of justice or speedy procedures where those delays constitute a constitutional problem should, as a rule, be given constitutional protection, even if it is somewhat strongly expressed. Second, the requirement for the production of criminal contempt should be interpreted in line with principles of proportionality contained in the restrictions placed on Article 19(2). Reputation damage to the judiciary as such ought not to be enough, except where “there is some real threat to the administration of justice.

Legislative clarification and change could also be looked at in order to clear up the meaning and remove uncertainties from the “scandalising the court” law. Clearer guidelines would reduce the risk of accusations of selective enforcement, and would leave the judiciary free to rule on valid claims to have been engaged in acts of obstruction of justice or intimidation of the courts.

In the end, it is not court resistance that gives courts legitimacy, but court conversations on the basis of information and understanding of the Constitution. A more transparent and reasoned adjudication, coupled with institutional accountability, is likely to better help maintain public trust than a prosecution.

Conclusion

Contempt of court is one of the significant constitutional provisions to ensure the rule of law in the administration of justice. It’s not, however, to discourage criticism and to protect judges from public scrutiny. Clearly in a constitutional democracy, there should be healthy debate about judicial decisions, and such debate is normally protected under Article 19(1)(a).

Contempt jurisprudence in India has to find a more nuanced way to differentiate lawful criticism of the judiciary from unlawful interference in judicial proceedings with the growth of such discourse in the digital realm. A more focused and constitutional approach, in exercising contempt jurisdiction, would retain the rule of law, and the freedoms of expression. Ultimately, in the long run, longer, clearer and more faithful adherence to the rule of law rather than frequent recourse to criminal contempt will help restore public confidence in the judiciary. 

REFERENCE(S):

Constitution

1. Constitution of India, arts 19(1)(a), 19(2), 129 and 215.

Statute

1. Contempt of Courts Act 1971.

Cases

1. Brahma Prakash Sharma v State of Uttar Pradesh AIR 1954 SC 10.
2. E M S Namboodiripad v T N Nambiar (1970) 2 SCC 325.
3. P N Duda v V P Shiv Shankar 1988 Supp SCC 167.
4. Arundhati Roy, In Re (2002) 3 SCC 343.
5. Indirect Tax Practitioners’ Association v R K Jain (2010) 8 SCC 281.
6. In Re: Prashant Bhushan (2021) 1 SCC 745.

Books

1. M P Jain, Indian Constitutional Law (9th edn, LexisNexis 2024).
2. H M Seervai, Constitutional Law of India (4th edn, Universal Law Publishing).