Is Contempt Law really a Dog-Law?
“It is the judges that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it; and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me..”
The above-mentioned excerpt is from ‘Truth v. Ashhurst' where this observation was made by Jeremy Bentham, who published the above tract as an attack against Sir William Henry Ashhurst, a puisne judge of the Court of King’s Bench (1792). Imbibing utilitarianism, Jeremy Bentham, believed that it is imperative that all laws exhibit two characteristics – cognoscibility and accessibility. According to him, unless the laws were cognoscible, which is, readily understandable; and accessible, which is, readily available; no one except a few coterie of judges and lawyers would be benefitted. To obtain cognoscibility and accessibility in the law, Bentham insisted upon the necessity of codification, and therefore, regarded Judge-made Law as ‘dog-law’.
This column progresses to deal with the contempt law in India, which derives its essence from the Constitution, and is statutorily prescribed under the short-title ‘The Contempt of Courts Act, 1971’ (‘The Act’) and analyse whether even after codification, does it still hold the principle in-tandem with that of a ‘dog-law’, as Bentham observed. Section 2(a) of the Act, as it reads, defines contempt of court, to be limited to only two kinds of contempt- civil and criminal.
As defined under Section 2(b), means-
“wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;”
The ambit of what constitutes civil contempt is mainly objective in nature, as it can be easily ascertained that whoever has the requisite mens rea (implicit in the word ‘wilful’)and acts or omits to act in defiance or disregard of the law, as it stands, by virtue of a judgment, decree, order, writ or process of court; or if the person breaches any undertaking given to/before the court, is in contempt.
As defined under Section 2(c), means-
“..the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which—
scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner; ”
Before proceeding on the analysis of the hereinbefore mentioned provision, let us evaluate two given situations and base our judgment, of whether criminal contempt is made out or not?
Case I: A leading newspaper publishes a report with the upside-down images of 3 sitting judges with a headline “YOU FOOLS” on the front-page;
Case II: A person in his speech calls out the judges as ‘idiots occupying the seat of justice’ and asks them to resign from their position, as he claims that they no longer serve the people and their verdicts are non-executable;
Both these illustrations, do have a critical or so-to-speak provocative connotation, but do these necessarily fall within the purview of criminal contempt? The answer is Yes (II) and No (I). Case I deals with an English case of 1987, where the judges eventually held that no contempt was made out, while the judges in Case II, which deals with an Indian case of 2015, held otherwise.
The above exercise was a demonstration to portray the subjectivity of the contempt law. [Note- India adopted the contempt law from the British, and amendments have not changed the fundamental basis]. The subjective scope of this provision grants courts the discretionary power to interpret it and adjudicate upon it on the basis of its own peril, which sometimes transpire to be drastic, and resonates the dog-law theory.
The basic principle that Jeremy Bentham associated with the dog-law theory was the fact that it was a judge-made law, and it was unclear and vague - as it punished people for doing something which, by its very subjective nature, was unknown to them.
Affirmatively, the reason why the Constitution assigns courts (Supreme Court and High Court) to be a court of record and concurrently directs them to punish for its contempt, is because every Judge is presumed to possess a judicial inclination of discernment which helps him/her in analysing, interpreting, and guiding through the accurate, or possibly the most favourable outcome of a dispute in law, which makes his/her judgments binding and admissible as evidence.
The civil contempt provision is more or less unambiguous, as it objectively states or mentions a simplified criteria to ascertain whether a given act or omission amounts to civil contempt or not and therefore it is clear to observe that it is not a dog-law. The problem arises when we analyse the criminal contempt provision. The textual language and definition of 'scandalise' 'authority of court' 'does any other act' 'prejudice' among many others is left in the lurch for the judiciary to interpret. Importing definitions literally from dictionaries accepted worldwide, doesn't seems to cast any relief to this scepticism.
In Hari Singh Nagra, the Supreme Court explained the term ‘scandalising the court’, as –
“Scandalising in substance is an attack on individual Judges or the Court as a whole with or without referring to particular cases casting unwarranted and defamatory aspersions upon the character or the ability of the Judges. 'Scandalising the Court' is a convenient way of describing a publication which, is a scurrilous attack on the judiciary as a whole which is calculated to undermine the authority of the Courts and public confidence in the administration of justice.”
If we analyse the gamut of this phrase elucidated by the court, it is certainly indistinguishable what constitutes criticism, opinion, speech, or ‘scurrilous attack’. Even with a marginally definite scope, there have been many examples to show that the ‘scurrilous attack’ equation has been treated differently by the bench, which casts a shadow of personal perceptions.
In the E.M. Sankaran case, the accused, speaking from a Marxist view, termed judiciary as an ‘instrument of oppression’ and the Supreme Court convicted the accused for contempt, however spoke volumes about how the contemnor misunderstood the Marxist philosophy in the judgment and ignored the contempt reasoning;
In the Arundhati Roy case, the accused in her reply-affidavit said “a disquieting inclination on the part of the (apex) court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it…the Supreme Court is doing its own reputation and credibility considerable harm..”, these comments were held to undermine the authority of the judiciary and she was held in contempt of court on the grounds that her comments were uninformed as she did not possess the special knowledge of law and the functions of the judiciary;
In the P.N. Dua case, when the accused, exclaimed that “FERA violators, bride burners and a whole horde of reactions have found their heaven in the Supreme Court”, the Supreme Court did not find it contemptuous;
Various judicial precedents and pronouncements have declared various facts and circumstances to be associated with ‘scandalising the court’ or ‘prejudicing the integrity of the court', without demarcating a precise chart of its ambit and also without defining its constituents so that it can act as a precedent for future litigations.
The continuing subjectivity of the law has not only substantiated its superfluous usage by the courts, but has also conformed with the theory of dog-law, as perceived from Bentham’s eyes.
The problem with the object and purpose of the legislation is that it has codified the law to be regulated on only two fronts - the procedure and the punishment. The scope of contemptuous actions, though defined, have been purposely set out for the judiciary to interpret. Even after two respective amendments to the law (1976 and 2006), the subjective application of the scope of contempt has taken a toll on not only writers, columnists but also litigants. Contrastingly, the Courts in various pronouncements have held that the Parliament cannot restrict the constitutional power of contempt, which the Court derives from the basic structure of the Constitution, and it is inherent in them to punish for its contempt; also if the Parliament, by legislation, tries to restrict such an inherent power, such legislation would be void ab initio.
The above observations clearly suggest that the courts have an inherent right to punish for its contempt and even if the Parliament amends the present contempt law, the court has the power to strike it down. The power of contempt is not averse in itself, but the constant subjective stature that it has acquired, seems to be para(dog)xical.
 ‘Truth versus Ashhurst’, Available at https://www.ucl.ac.uk/bentham-project/truth-versus-ashhurst
 ‘Jeremy Bentham and the Codification of Law’, Available at https://core.ac.uk/reader/73977262
 ‘The Contempt of Courts Act, 1971’, Available at https://www.indiacode.nic.in/handle/123456789/1514?view_type=browse&sam_handle=123456789/1362#:~:text=India%20Code%3A%20Contempt%20of%20Courts%20Act%2C%201971&text=Long%20Title%3A,their%20procedure%20in%20relation%20thereto.&text=Innocent%20publication%20and%20distribution%20of%20matter%20not%20contempt
 Attorney General vs. Guardian Newspaper, 1987 3 AllE.R.316
 M.V. Jayarajan v. High Court of Kerala & Another [Crim. Appeal No. 2099 of 2011]
 Hari Singh Nagra & Ors. v. Kapil Sibal & Ors., (2010) 7 SCC 502
 E.M. Sankaran Namboodiripad vs. T. Narayanan Nambiar, AIR 1970 SC 2015
 Re: Arundhati Roy vs. Unknown, AIR 2002 SC 1375
 P.N. Duda v. P. Shankar, 1988 SCR (3) 547
 Bar Association vs. Union of India & Anr. (1998) 4 SCC 409
ABOUT THE AUTHOR
This blog has been authored by Priyesh Srivastava, who is a Practicing Advocate at The High Court of Judicature at Delhi.
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