The Curious Case of Contempt
EXPLORING THE EVOLUTION OF CONTEMPT LAWS
27th January, 2021
Written by Kapish Agrawal
Artwork by Suryansh Srivastava
Democracies thrive when inconsistencies are questioned and fallibility is embraced and combated.
With Palsy’d hand, shall justice hold the scale,
And o’er a judge, court complaisance prevailed;
Satire’s strong dose the malady requires,
I write – when lo! the bench indignant fires;
Each hoary head erects its load of hair,
Their furs all bristle, and their eye balls glare,
In rage they roar, ”With rev’rend ermine sport!
“Seize, seize him, tipstaff! – ‘Tis contempt of court.”
These words by journalist William Bingley, though written in 1768 England, speak of what most may recognize as the current state of affairs in India. It is only ironic that his publication The North Briton was charged with the very form of contempt it sought to challenge. Contempt charges against advocate Prashant Bhushan, and comedian Kunal Kamra are just few of the many this country has seen. To debate the merit of these cases would yet subscribe to the conceptual basis of the specific aspect of law. Instead, tracing these practices back could reap better results. Despite its subject, the story I want to share is not legal, as much political – one that I feel is in the right of every democratic citizen to know; at least those who are governed by the Westminster system.
Democracies are anything but simple. Their aim of living up to values too far fetched for their very idiosyncrasies are hopeful. Not to mention, their characteristic satisfaction in the process. Often, I look at the most disagreeable events and convince myself, “Ah! It is a part and parcel of democracy; finally, the displacement is only forward”. However, gaining this sense of security is not our only engagement with politics. We are also responsible for creating what constitutes the process and keeps it alive – a constructively critical view of ALL that exists in the name of State.
Discourses on topics such as Contempt enjoy a special status. The lack of legal knowledge largely deters opinions from the general masses. An instilled fear of overstepping the ‘democratic separation of power’ places systemic issues in separate watertight compartments. Such that the so-called ‘judicial concerns’ are seen as more nuanced, empirical, and at a moral level that is outside the general person’s reach. Yet, I believe, the political is legal and the legal is political. And while I agree that they are complex, so are other debates in our times. Nothing forms the ambit of those who descend from the skies, answer the questions, and climb back. Democracies thrive when inconsistencies are questioned and fallibility is embraced and combated. Like Henry Palmer in the courtroom drama The Judge said, “I respect the law, but I am not in awe of it”. Every opposition, if nothing, is a gateway to a more foolproof law.
WHAT IS CONTEMPT?
Within itself, contempt of court is a broad legal doctrine that focuses on the sanctity of judicial processes. It is an exclusive tradition of the Common Law countries across the world. In India, the concept has a largely customary history in the colonial period. However, the article 129 and 215 of the Indian constitution textualized it after independence. That this decision was contested even in the Constituent Assembly proves the debate is not a new one. The two articles granted the Supreme and the High courts with the authority to punish for contempt. While the constitution only substantiated the practice, the Contempt of Court Act, 1971 established an entire framework of law.
As per the act, there are four ways one can be in contempt of the courts. One of them is a civil offence and the others are criminal in nature. Civil offences have to do with disobeying court rulings in matters. Criminal offences, on the other hand, include (a) scandalizing the court, (b) prejudicing or interfering with the due process, (c) interfering with the administration of justice.
Charges faced by various people like Kunal Karma and Rachita Taneja are pursuant to scandalizing the court. They are blamed for acts that reduce the credibility and erode the trust of litigants in the judicial system without relation to any specific case. Scandalizing is only one part of the larger body of laws on contempt. Unsurprisingly, it is also the most contentious of all. One can be held for obstructing justice or disobeying order on grounds of evidence. How does one decide what reduces general trust in the judiciary?
One can be held for obstructing justice or disobeying order on grounds of evidence. How does one decide what reduces general trust in the judiciary?
The onus of proof in contempt cases, especially those for scandalizing, is on the defendant. Rather than actively proving charges, the court only provides them with a chance to prove ‘why they should not be punished for contempt?’
Contempt places defendants, appellants, and the courts in a different position than the usual. Although this is an issue in the concept in general, it is specifically highlighted in cases involving scandalizing. Across history, multiple judicial personalities have questioned the ‘personal stake’ that the courts come to recognize in such cases. Not only are they said to cloud judgments, but also to reduce the opportunity of a fair representation to the defendants. One can only wonder why so many cases of contempt result in pleading guilty and apologizing. In the words Douglas Hay, “it allowed the judges to [take] the position of parties, prosecutors, and jury.”
The onus of proof in contempt cases, especially those for scandalizing, is on the defendant. Rather than actively proving charges, the court only provides them with a chance to prove ‘why they should not be punished for contempt?’. This has been a trend in the history of common law.
Historically, members of the jury could only advise as to the validity of the proofs against individuals. Deciding on contempt was considered beyond their sphere of duty. Even the limited chance of representation granted to defendants seems obstructed. In that, there is no witness examination if the concerned court is itself the prosecutor. And, the defense challenges its presumed guilt instead of defending its presumed innocence. Although onuses of proofs have been shifted in many other laws, this situation is surely exceptional.
To make situations worse, defendants involved in contempt matters also lose one of the strongest defenses. What is the difference between a murder and manslaughter, in legal terms? It is intent. Despite involving identical outcomes and means, it largely separates the grounds for conviction. Contempt cases, especially those with scandalizing charges, do not account for one of the most basic considerations for conviction – mens rea (the guilty mind). Across their history, mens rea has been called ‘relevant, though not essential’.
However, it isn’t all that grim. India overtakes many common law countries in clarity of charges, proceedings, and punishments. As a customary practice, Contempt of Court rarely carried a limit on punishment and a set procedure. It represented the bona fide jurisdiction of the bench. To the contrary, the Indian legislation limits contempt punishments to six months of imprisonment and/or a fine of two thousand rupees. Further, there is also a strong practice of separate contempt hearings with adequate time for defense. Viewing these provisions as anything other than starters to a larger reform would beat the purpose. For a signatory to the International Covenant on Civil and Political Rights (ICCPR), India already has enough to work towards.
Where it all started is rather interesting for citizens of states that follow the Westminster system. Its political history speaks tons about the contemporary institutional dynamics within. Our pride in democracy cannot yet deny that we follow a system that could be called a monarchical adaptation to the changing times. Unlike the French polity that was built on the arguably leveled ground of a mass revolution, Westminster was incremental in incorporating the people. In such situations, the practice of following precedents really demands more than usual caution. Contempt for scandalizing could be called the result of this failure.
The common law system originated from the monarch’s judicial tours in circuits. Beyond force, the power to dispense justice and further execute it was a large part of royal legitimacy. The system grew with prominence, lords and emissaries replaced royals, and the same rules needed to be applied all across the country. This formed the ‘common’ in the common law. Here, protecting the system was very important. That which threatened the court, threatened the state. But again, what could be the largest of such fears? Presumably, most contempt involved disobeying rulings or misbehavior in the face of the court. Mass communications to affect opinions were years to come.
The principle tool of control, in the 1700s, was ‘seditious libel’. Opposition to the Crown or the judges was all alike. It formed the basis of multitudes of politically motivated trials. The only seeming roadblock was a non-aristocratic jury that often nullified politically motivated trials. Basically, it held the accused as guilty, but accounted the law itself as unjust. No party could afford this in an era of fierce party politics. One could either ‘pack a jury’, or find another way to avoid them all together. Ever think why the Attorney General is involved with contempt petitions today? In the first half of the 17th century, these legal officers were the only way to avoid the pre-trial stage of the Grand Jury. Instead of filing for indictments, AGs began filing ex-officio information for seditious libel that directly began trial. Governments could singularly target political opposition through a controlled judiciary.
Coincidently, Britain also witnessed the boom of the periodical press in the same era. Lords and the judiciary were not spared for its cozy, yet natural, relationship with politics. Staying clear of such unchallenged power was anyway hard for the judges. And now they felt an urgent need for it too. A series of libel and scandalizing charges were attached in the 1730s and 40s. Obiter (in passing) mentions Lord Hardwicke discussing the courts’ authority to punish scandals against them. This soon turned into a legal doctrine. How does one protect an extrajudicial means of silencing opposition? by promoting another such tool. However, it isn’t this simple. No scandalizing charges were pressed for the next two and a half a decades. But it all changed with the 1765 and 1768 cases R. Vs. Almon and R. Vs. Bingley. The analogies are for the readers to find.
In an era of funded pressers, John Wilkes was a Whig party supported journalist and politician. Alongside his publisher Almon, Wilkes soon began outgrowing the ideas of the party towards freedom. He promoted political commentary in an era even opposed to publishing parliamentary proceedings. His actions led to him being tried for seditious libel and scandalizing the court. Government support to the trial gave rise of questionable proceedings via Lord Mansfield. A Chief Justice, Mansfield had been in close quarters with the government and also a minister in the cabinet. After a brief refuge from prosecution Wilkes returned and faced trial to be severely prosecuted. His stature in the community for radical thought established a line of ‘Wilkites’. Nonetheless, Wilke was tried before two Chief Justices of opposite opinions on liberty, Chief Justice Mansfield and Camden. His trials bought the debate over contempt into the public arena.
Over the next few years, Mansfield was accused of judicial misconduct through pseudonymous publications. ‘Candor’ and the ‘Father of Candor’ were particularly active in their critique about Wilke’s trial. Among the Wilkites, Mansfield particularly targeted Almon. Unlike his author friends, Almon could not be tried due to matters of charge construction. His verdict remained undelivered, though written by Lord Wilton. The unpublished verdict was written after the first day of hearing before the defense’s arguments on day two. Seemingly inconsequential, this would change judicial history.
Once again, the doctrine was pushed into the shadows. Bingley, another Wilkite, was the only person charged for contempt in the next six decades. Tragically, sixty years later, Wilmot’s report on Almon became the basis for ensuring state control during the instability caused by Jacobian opposition and Napoleonic wars. In 1810, suggesting parliamentary reform amounted to contempt. Quoting Douglas Hay, the times were the same, “an unreformed and unrepresentative commons, a Chief Justice once more in the Cabinet, a bench richer than it had ever been from patronage appointments and extraction of fees”. By the 1900s, judgments of the English bench completely recognized scandalizing by contempt.
Against an already politically enmeshed judiciary, the courts were an active centre of power. Judicial politics was real and contempt originated in 18th century Britain as means of state control. Nonetheless, this does not entirely render laws of contempt as unneeded.
IF NOT CONTEMPT, WHAT?
When compared to other legal systems, such as the French Civil Law, contempt differs in its approach and the powers it grants to State apparatus. Even in instances other than scandalizing, the common law courts place themselves within the equation instead of being facilitators to the parties. Civil contempt in the French courts is considered as a failure of the executive agencies and not disrespect,the former only acts in extension to the latter’s discharge of duty.
Although similar to the Common law provision, the French laws are divided into multiple groups. Contempt in face is mostly dealt by the relevant court as means of control over proceedings. Larger matters also have the provision for trial in separate courts unrelated to the matter. The concept of scandalizing is very similar to that of 16th century Britain. A common law protects all state apparatus and personnel from seditious activities against their ability to discharge of duties. These laws are exercised through executive agencies such as the police. As a state apparatus, the courts are entitled to equal security and wield no separate power. The system rarely equates personal criticism with that of the entire court. As citizens, judges are expected to exercise complete right against defamation. It goes without mentioning that each system is a result of multiple events and circumstances. While there is no ideal way that can be simply emulated, adapting is the best way forward.
Perhaps it is the tumultuous nature of the legislative and executive wing that makes stability more important for the judiciary. But it is only possible to address these through systems designed for the same. The precedents we leave behind can change the future. Following the lead of many counterparts, it is time that the country revisits its basics on the subject. As a polity of one billion people, India’s stature is apt to expand its contribution to global jurisprudence.
As Australian Justice Hope said, “The truth is of course that public institutions in a free society must stand upon their own merits: they cannot be propped up if their conduct does not command the respect and confidence of the community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to protect them from criticism” .