Time to Derecognize ‘Scandalizing the Court’ As a Form of Contempt

This article is written by Pratha Waghmare, from the University of Mumbai Law academy, Maharashtra. This article has been curated by Himanshu Raj of Chanakya National Law University, Patna

“Pledges of contempt for the court scandal itself have become obsolete in this country. The courts are content to leave public opinion with attacks or comments that are contemptuous or scandalous for them. This remark by Lord Morris in a judgment handed down in 1899 is more relevant today given the development that the trio of journalists-writers-lawyers approached the Supreme Court in challenging the constitutionality of the criminalization of “shocking the court”.

These remarks by Lord Morris were noted by the Supreme Court of India in 1953 [Brahma Prakash Sharma et al. See Uttar Pradesh state AIR 1954 SC 10] while delivering a ruling in an appeal against the Allahabad High Court order that found six lawyers guilty of insulting the court for “shocking the court”. In that case, the attorneys, who were members of the Executive Committee of a District Bar Association, were found guilty of contempt for passing a resolution relating to the conduct of two judicial officials. However, accepting the apology they presented, the Superior Court sentenced them to pay the costs. But the lawyers attacked this order before the Supreme Court. The Attorney General supported his case and found that any act or publication calculated to diminish a judge’s authority or dignity does not in itself constitute an outrage to the court. The legislation then in force was the 1926 Contempt of Court Act. Referring to the history of the “law of contempt”, the court noted that an act or publication that “amounts to scandalizing the court itself” is a type of disrespect. .

The court took note of the observation cited above in the judgment of the Lord Morris Judicial Committee [MacLeod v. St. Aubin [1899] AC 549, [1899] UKPC 51]. However, the court went on to comment that this observation by Lord Morris that contempt proceedings to scandalize the courts have become obsolete in England was incorrect. To justify this comment, the bank relied on a Queen’s Bench ruling in Reg. V. Gray, which invoked its contempt jurisdiction to try a case of ‘scandalizing the courts.

Although the constitutional bench put aside the Superior Court ruling and distinguished between the defamation of individual judges and the crime of contempt of court, perhaps, for the first time, it recognized the English concept of “scandalize the court” as a form of contempt. The good part of this ruling is that it noted that if a particular act or publication is a mere defamatory attack on the judge and is not calculated to interfere with the fair course of justice or the proper administration of the law by that court, it is not it is appropriate to proceed with contempt.

Parliament, which codified the contempt law some two decades later, defined criminal contempt to include “the publication (whether in word, spoken or written, or by signs, or visible representations, or otherwise) of any matter or l execution of any other act which “(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court”.

Contempt to “scandalize the court”: a battle of perceptions on an uneven field

UK Law Commission Report 2012

Although the report does not refer to previous observations made by Lord Morris, the UK Law Commission found that, in England and Wales, the crime had almost fallen out of use by the end of the 19th century. He then claims that the crime was only revived in two successive cases in the 1930s. Understanding its obsolescence, the Commission concluded, in its report presented in December 2012, that the offense of scandalizing the court is, in principle, a violation of freedom of expression which should not be denied without solid justification of principle or practice. The Commission’s recommendation was implemented by the UK Parliament through the issue of the Crime and Courts Law Acts 2013

Law Commission of India Report of 2018

Although the Law Commission of India took note of the report from its British counterpart, it said the number of cases of criminal contempt in India highlights a different picture than in the UK. In addition, he noted that, in the UK, the removal of the words ‘scandalize the court’ did not change the situation regarding such offenses as they remain punishable under other existing laws: the Public Order Act 1986 and the Communications Act 2003. He added that this is not the case in India and that the suppression of “criminal contempt” will leave a palpable legislative vacuum.

The commission also noted that reducing the scope of contempt to include only “intentional disobedience to the Court’s instructions / judgment” would be undesirable due to the continuing need for deterrence against derogatory elements. “If the provisions are so limited in scope, there will be a reduction in the impact. Such a change in the contempt law could potentially diminish the respect or fear of the courts and their authority and functioning; and, there is a possibility that this may lead to an unwanted increase in cases of deliberate denial and blasphemy by the courts.

“He said. It is pertinent to mention that apart from a brief discussion on the effects of the contempt law on freedom of expression, the Legal Committee, in its report, did not discuss how it would stand up to the ‘reasonableness’ test.

It is time to dismiss the “scandalize” as a form of contempt

The origin of the form of contempt “to scandalize the court” is attributed to an English judge, Lord Hardwicke L. C., who in his 1742 sentence declared that a kind of contempt is to scandalize the court itself. 270 years later, the UK parliament canceled it. The Supreme Court of India in 1953 recognized this form of contempt when it observed the following: “This scandal can manifest itself in various ways but, in essence, it is an attack on individual judges or on the court as a whole with or without reference to particular cases., emanating unjustified and defamatory slander on the character or ability of judges. Such conduct is punished as contempt for this reason which tends to create distrust in the popular mind and undermines the confidence of the people in the courts, which are of primary importance for the parties involved in the protection of their rights and freedoms “. 18 years later, Parliament gave these remarks a legal color. In 2018, the Legal Affairs Committee refused to follow its British counterpart and reported that it is necessary. Now, is it for the Supreme Court of India to decide whether the colonial concept that hinders freedom of expression should be kept in the statute and in the law? Will it review the recognition granted by the Constitutional Court to the form of outrage to the “scandalization of the courts”?

It can only be hoped that the Supreme Court will review its comment on Lord Morris’s observation. Perhaps, as the judge said, the courts should be content with letting the public comment with scornful or scandalous attacks or comments.