Print Edition - 2014-07-15  |  Oped

Constituting contempt

  • Censoring the media in the name of contempt of court can set a dangerous trend
- Dipendra Jha
Constituting contempt

Jul 14, 2014-On November 6, 1996, Bimarsa, a weekly newspaper published a cartoon depicting the Chief Justice sitting on a coconut tree. In the cartoon, the Justice was being asked to throw a file titled the ‘Tanakpur Agreement’ to the opposition and the ruling leaders, who were sketched as standing on either sides of the tree. Harihar Birahi, the publisher and editor of the newspaper, was sentenced to seven days imprisonment and slapped with a fine of Rs 500 pursuant to Section 7(1) of the Supreme Court Act 1991 for printing the cartoon. Subsequently, he published two apology letters in the same newspaper and sought the court’s pardon on the basis that he had not intended to hold the court in contempt.

Another newspaper, Janaastha Weekly, published a news article titled ‘Tulsa Le Machain Tahalka’ on June 30, 2007. The piece criticised the personal relationship of the Chief Justice with Tulsa. The administration of the Supreme Court (SC) filed a contempt of court case against the newspaper’s editor, Kishor Shrestha. On February 25, 2014, the SC delivered its final verdict, prohibiting the editor from writing any further articles that might damage the image of judges.

In the case Advocate Arun Gyanwali v Kanak Mani Dixit, the Court adopted a similar approach and warned the editor (Dixit, in this case) against publishing pieces that questioned the individual character of the Chief Justice. This was in reference to an article published on May 3, 2007 in Himal magazine. The Supreme Court ordered the publisher to publish a visible apology on the front page of the magazine.

Cases of contempt

These three representative cases demonstrate the trend of the enforcement of the contempt of court offence in Nepal. Though some people have been convicted of contempt of court cases, the fault is that there are no specific laws defining what constitutes contempt of court in clear terms. Although some provisions of the Supreme Court Act 1991 authorise the courts to decide on the matter, as can be seen from the above cases, the courts have been given undue excessive power and unfettered discretion on the contempt issue. So the recently proposed bill on the Contempt of Court Act is a welcome step in clarifying the scope of the offence.

However, Sections 4(b) and (d) of the bill adopt an excessive broad-brush approach in automatically presuming any act that ‘could undermine people’s faith towards the court’ or ‘casts aspersions on the judge for his/her verdict or other acts’ to be contemptuous. These provisions should not be included because they excessively restrict the right to freedom of expression.

A similar bill was proposed in Kenya—the Kenyan Contempt of Court Bill 2013. Section 8(2) of the bill prohibited publications that scandalise or tend to scandalise, or lowers or tends to lower, the judicial authority or dignity of the Court. This provision has been criticised by Article19.org for failing to meet internationally accepted criteria for legitimate restrictions on freedom of expression, namely that of ‘legality’ (for employing a threshold of ‘tendency’, its scope is uncertain) and ‘necessity’ (for the offence does not seem necessary to protect the authority and impartiality of the judiciary).

The Indian Contempt of Courts Act, No. 20 of 1971 has also been criticised on such grounds. In particular, Section 2(c) sets out that criminal contempt covers the publication of any matter or the doing of any act whatsoever, which “scandalises or tends to scandalise court or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding.” Amnesty International India recommended in its June 2014 paper that this provision should ideally be abolished entirely, failing which, the words “tends to” be removed, and that the defence of truth be considered in all circumstances.

 

The bill in question

It is clear that the proposed Nepali legislation is overly broad. The use of the word “could” (prefacing “undermine people’s faith toward the court”) only requires the possibility of undermining the people’s faith in the judicial system. This is arguably an even lower threshold than ‘tendency’ (as per the laws on contempt in India and Kenya).

The vague phrases “people’s faith toward the court” and “casts aspersions on the judge for his/her verdict or other acts” provides great discretion to judges to make their own subjective assessments about what constitutes contempt of court. This greatly increases uncertainty about the scope of the offence and could have a chilling effect on the freedom of speech.

Effectively, the proposed Sections 4 (b) and (d) do not allow for the judiciary to be criticised in any form—even if evidence turns up that this is rightfully so. This law could be easily used to hide breaches of judicial conduct.

As the UK Law Commission rightfully argued—following which the United Kingdom abolished the offence of scandalising the court through the Crime and Courts Act, 2013—such prosecutions are counter-productive in that they convey the impression that judges are protecting their own interests.

Setting limits

Media scrutiny helps to expose corruption and conflict of interest—this noble goal should be encouraged, not suppressed. The conviction of detractors does not put to rest the doubts that may linger in the minds of ordinary citizens. It merely diverts such perceived legitimate criticism to backchannels, where insidious rumours rule the order of day.

Judicial impartiality and integrity should be judged by the actions of the judges and open inquiries that demonstrate the falsity of any doubts that linger in the public’s mind—not by how often its critics are convicted.

As Christopher Hitchens, a noted British-American author cautioned: “Wherever the light of free debate and expression is extinguished, the darkness is very much deeper, more palpable, and more protracted.”

Yet, criticisms against the entire contempt of court bill are unfair. The Contempt of Court Act can set a benchmark for disrespect by limiting excessive and subjective judicial interpretation. The Bill still requires that its language be changed, in particular, that of Section 4. The provisions need to be rewritten in such a way that they meet the standards of international principles of freedom of expression and opinion. Indeed, a fair and rational criticism of judgments and the conduct of judges could enhance the quality of the judiciary. Censoring the media in the name of contempt of court can set a dangerous trend of heightened intolerance. Public discussion is a basic feature of a mature democracy. It is to this end that Voltaire proclaimed, “I disapprove of what you say but I will defend to the death your right to say it.”

 

Jha is a lawyer practising at the Supreme Court

Published: 15-07-2014 08:56

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