Interview with Justice V. Gopala Gowda.

Justice V. Gopala Gowda: Constructive dissent is the bedrock of a healthy democracy

Print edition : September 11, 2020

Justice V. Gopala Gowda. Photo: By Special Arrangement

The U.K. Supreme Court in Parliament Square in central London, a file picture. The U.K. bid good riddance to criminal contempt by ‘scandalising the court’ in 2013 as it had fallen to disuse. Photo: Toby Melville/REUTERS

Interview with Justice V. Gopala Gowda.

The surge of support across the legal spectrum for Prashant Bhushan after he was convicted on charges of contempt by the Supreme Court has been unprecedented.

While several legal luminaries and eminent individuals were shocked that the apex Court could convict an individual who had built his legal career almost entirely by raising issues of public interest, they have been concerned in equal measure about the larger implications of the criminal law of contempt itself.

At least 12 eminent judges along with several members of civil society issued a statement in which they said that the criticism by the senior member of the Bar should be used as an opportunity to introspect and strengthen the institution.

Justice V. Gopala Gowda, a former Supreme Court judge who has earned the sobriquet of being a ‘people’s judge’ and a ‘judge with a heart’, was among the 12 judges critical of the Supreme Court’s conviction of Prashant Bhushan.

Justice Gowda was Chief Justice of the Orissa High Court and a former judge of the High Court of Karnataka.

In this interview to Frontline, Justice Gowda says that the Contempt of Courts Act, 1971, needed to be amended to prevent potential judicial excesses. Excerpts:

The Law Commission of India said in its report on the Contempt of Courts Act, 1971, that amending the definition of contempt would reduce the overall impact of the law and lessen the respect that people have for courts and their functioning. Do you agree with this viewpoint or is it redundant in some ways?

The Contempt of Courts Act, 1971, is not just a colonial relic. The Constitution of India under Article 215 and Article 129 inherently empowers the High Courts and the Supreme Court of India to punish for their contempt. The Act, in fact, gives flesh and spine to the expansive constitutional powers of the courts to punish contumacious conduct by stipulating conditions and qualifications to classify any act as contumacious or otherwise.

However, I do believe that the 1971 Act needs certain amendments to prevent potential judicial excesses. Perhaps, amendments akin to those to the Indian Penal Code, 1860, [IPC] under the Criminal Law (Amendment) Act, 2013, would be ideal to create the perfect balance in the specificity-generality continuum.

The Criminal Law (Amendment) Act, 2013, expanded the scope of Section 354 of the IPC that penalises assault or criminal force on a woman with intent to outrage her modesty. ‘Outrage of modesty’ is a nebulous standard that has been subject to judicial subjectivity and inconsistent interpretational discretion. The 2013 Amendment added Sections 354A, 354B, 354C and 354D that included specific definitions of sexual harassment, stalking, voyeurism, etc., that made the law a lot more specific and precise while simultaneously reducing the scope and possibility of miscarriage of justice from judicial subjectivity and/or abuse of discretion.

The wide scope of the words ‘scandalising the court’ under Section 2(c)(i) of the 1971 Act can also be crystallised and explicated likewise. In fact, appropriate amendments to the 1971 Act will increase the overall effectiveness of the law and reinstate the faith of the people in Courts and their functioning, quite contrary to what has been observed.

There has also been a debate on whether the act of contempt should be confined only to cover civil acts of contempt, that is, instances of wilful disobedience of the court. Is this debate germane to the present context? A much larger number of civil contempt cases, as compared with criminal contempt cases, are pending in High Courts and the Supreme Court. What does this phenomenon indicate?

The numbers say it all. A recent study shows that while around 96,993 cases of civil contempt are pending before the Supreme Court and the various High Courts across the country, only around 583 cases of criminal contempt were pending consideration.

The phenomenon indicates a general reluctance and abundant restraint exercised by Courts of Record in respect of initiating action against criminal contempt while primarily deploying the law to advance administration of justice and penalising civil contempt by wilful disobedience of solemn orders of courts of law.

Nevertheless, 583 is a significant number of cases, especially when seen in a relative context. The United Kingdom, in comparison, did not have a single prosecution of criminal contempt for ‘scandalising the court’ since the year 1931. In fact, this was one of the reasons why England did away with the law in 2013.

As seen in this context, it is deducible that Indian courts have used/have had the occasion to use their contempt powers far more frequently and such powers must be exercised with restraint and responsibility with a view to striking a harmonious balance with the fundamental right to freedom of expression guaranteed under Article 19 of the Constitution.

Does having it on the statute books actually inspire public respect or confidence in the judiciary or does the Damocles’ sword of contempt impede free speech and expression as guaranteed under the Constitution?

Constructive dissent is the bedrock of a healthy democracy. It must be celebrated and protected. Far from inspiring public confidence in the judiciary, an enforced silence by such draconian laws with colonial origins shakes the very foundation of our democracy and defeats the celebrated values of liberty and equality at the core of our constitutional ethos. It could possibly evoke ill-will, resentment and suspicion among the people and alienate the judiciary.

It is apposite to reminisce the words of Lord Denning in this context; “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”

Therefore, the use of contempt powers to bludgeon criticism and have a chilling effect on the citizenry does not bode well for a constitutional democracy like India.

Is there a model of the contempt law anywhere in the world where the dignity of the court is also preserved and at the same time it is not weaponised against the right to free speech and expression?

Diverse legal systems around the world have a contempt law in place to penalise both civil and criminal contempt of court. As a common law country, we inherited the current contempt law from the legal system of the U.K.. Its history purportedly dates back to the time when judges were deemed delegates of the Queen and an affront to a judge was deemed an affront of the Queen and, therefore, contemptuous.

Interestingly, the U.K. bid good riddance to criminal contempt by ‘scandalising the court’ in 2013 as it had fallen to disuse. The U.K. Commission observed in that context that there were other penal laws that covered publications and communications that might amount to ‘scandalising the court’ in addition to a civil action for defamation.

The IPC, the Information Technology Act and other laws have stringent provisions to cover such malicious publications/communications. India can augment its current model for better clarity or follow suit and bid good riddance to criminal contempt by ‘scandalising the court’ altogether.

Recently, a member of the Bar made very scathing remarks against a very reputable member of the judiciary for his observations on Supreme Court in the migrant workers’ issue. The apex court took scant notice of this. It was suggested that the member of the Bar was in contempt but the contempt law was not applied to him. Is the danger of a selective and arbitrary application of the contempt law inherent in the law itself?

One of the founding fathers of our Constitution, Dr B.R. Ambedkar, once remarked that a Constitution is only as good as those who make it work. In his seminal speech that is now renowned as ‘the Grammar of Anarchy’, he said: “Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution.”

The same principle applies to the contempt law in discussion as well. A knife in dangerous hands can kill. A knife in dexterous hands can save a life. The danger of selective and arbitrary application is inherent in the various stakeholders—judges, lawyers, media personnel and citizens—who make it work and not in the law itself.

However, there is no gainsaying the fact that the law needs certain appropriate amendments as discussed above.

Some clauses in Section 13 of the Contempt of Courts Act allow truth as a defence if it were in public interest and bona fide. Do you think courts give enough opportunity to those charged with contempt to establish the veracity or truthfulness of the act? Was Prashant Bhushan given this opportunity?

The law on criminal contempt as it prevails in the statute book today is ostensibly self-serving by its inherent nature. The procedure prescribed is far from the rigour required to prove any other criminal charge: ‘beyond reasonable doubt’.

The procedural safeguards that uphold the dictum of ‘innocent until proven guilty’ as in other criminal trials are woefully absent in the case of criminal contempt where the so-called opportunity of being heard that is accorded to an alleged contemnor is, more often than not, a mere smokescreen.

In fact, there is no semblance of a trial in determining the guilt of the alleged contemnor.

Various reports and the statement of Mr Bhushan reveal that the latter was not even supplied with a copy of the complaint on the basis of which the suo motu criminal contempt proceedings were initiated against him.

The apex Court judgment does not specifically address the pointed averments made by Mr Bhushan in his reply affidavit or the submissions made by the learned senior counsel appearing on behalf of Mr Bhushan. Prima facie, it appears that the modus operandi of the proceedings strike at the root of the principles of natural justice.

Can two tweets by Prashant Bhushan shake the foundations of law and bring the administration of justice into disrepute? What is it exactly that brings the administration of justice into disrepute? Is freedom of speech and expression not an integral component of the processes involving and leading to the administration of justice?

Two tweets cannot and have not shaken the foundations of the law by bringing the administration of justice into disrepute. The reaction to the two tweets in the form of a suo motu criminal contempt proceeding initiated and adjudicated in a record time span with apparent procedural lapses has not only shaken the foundations of the law bringing the administration of justice to disrepute but has also accorded the two tweets, (which would have, otherwise been liked, disliked, shared and forgotten) a cult status.

In a country of around 130 crore (latest estimates), Twitter users approximately constitute an insignificant minority of around 3.4 crore and Mr Bhushan has around 16 lakh followers (it is impossible to tell as to how many of these are bots/duplicate accounts, etc.).

As a consequence of the debate that has ensued after the suo motu criminal contempt proceeding initiated against Mr Bhushan, numerous national and regional newspapers, print and digital media platforms, television channels, social media exchanges are adrift in a sea of analyses, opinions and clinical dissection of the tweets and the entire saga that ensued.

This has hardly done any good to the public image and perception of the highest echelons of our judiciary and the administration of justice. The exalted norms of judicial ethics and the significance of a dignified silence are well encapsulated in the words of Justice Krishna Iyer in respect of the contempt jurisdiction on how judges must not dignify contumacious conduct even in the face of distortions and contortions by a reaction. A judge must instead “deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude”. Freedom of speech and expression guaranteed under the Constitution is sacrosanct.

The jurisprudence on free speech in the history of the Supreme Court is rich and steadfast. Contempt jurisprudence must necessarily be informed by the same and not head in the opposite direction.

The apex Court is the sentinel of our constitutional democracy and the final arbiter of the Constitution. With such great power comes great responsibility.

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