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THE GIST of Editorial for UPSC Exams : 27 July 2020 The chilling effect of criminal contempt(The Hindu)

The chilling effect of criminal contempt(The Hindu)

Mains Paper 2:Governance
Prelims level: Contempt of court
Mains level: Important aspects of governance, transparency and accountability

Context:

These are strange times we are going through right now. The pandemic has brought all activities to a virtual standstill.
Even as workplaces and institutions are slowly and tentatively getting back on their feet, the focus is on ensuring that the more important things get done first.
Priorities are being identified accordingly.
For the Supreme Court of India, identifying priority cases to take up first (in a pandemic-constricted schedule) ought not to be very difficult.
There are dozens of constitutional cases that need to be desperately addressed, such as the constitutionality of the Citizenship (Amendment) Act, the electoral bonds matter, or the issue of habeas corpus petitions from Jammu and Kashmir.
It is disappointing that instead of taking up matters of absolute urgency in these peculiar times, the Supreme Court chose to take umbrageat two tweets.

Monarchical origins:

This need to “respect the authority and dignity of the court” has monarchical origins from when the King of England delivered judgments himself.
But over the centuries, with this adjudicatory role now having been handed over to judges, showing extreme deferenceto judges does not sit well with the idea of a democracy.
The U.K. Law Commission in a 2012 report recommending the abolition of the law of contempt said that the law was originally intended to maintain a “blaze of glory” around courts.
It said that the purpose of the offence was not “confinedto preventing the public from getting the wrong idea about judges... but that where there are shortcomings, it is equally important to prevent the public from getting the right idea”.

A wide field in India:

The objective for contempt is stated to be to safeguard the interests of the public.
if the authority of the Court is denigrated and public confidence in the administration of justice is weakened or eroded.
But the definition of criminal contempt in India is extremely wide, and can be easily invoked.
Suo motu powers of the Court to initiate such proceedings only serve to complicate matters.
And truth and good faith were not recognised as valid defences until 2006, when the Contempt of Courts Act was amended.
Nevertheless, the Delhi High Court, despite truth and good faith raised as defences, proceeded to sentence the employees of Mid-Day for contempt of court for portraying a retired Chief Justice of India in an unfavourable light.

Need for Change:

It comes as no surprise that Justice V.R. Krishna Iyer famously termed the law of contempt as having a vague and wandering jurisdiction, with uncertain boundaries.
He said contempt law, regardless of public good, may unwittingly trample(violate) upon civil liberties.
On the face of it, a law for criminal contempt is completely not in tune with our democratic system which recognises freedom of speech and expression as a fundamental right.
An excessively loose use of the test of ‘loss of public confidence’, combined with a liberal exercise of suo motu powers, can be dangerous.
It can amount to the Court signalling that it will not suffer any kind of critical commentaryabout the institution at all, regardless of how evidentlyproblematic its actions may be.
Besides needing to revisit the need for a law on criminal contempt, even the test for contempt needs to be evaluated.
If such a test ought to exist at all, it should be whether the contemptuous remarks in question actually obstruct the Court from functioning.
It should not be allowed to be used as a means to prevent any and all criticism of an institution.

Obsolete abroad:

Already, contempt has practically become obsoletein foreign democracies, with jurisdictions recognising that it is an archaiclaw, designed for use in a bygoneera, whose utility and necessity has long vanished.
Canada ties its test for contempt to real, substantial and immediate dangers to the administration.
American courts also no longer use the law of contempt in response to comments on judges or legal matters.
In England, too, from where we have inherited the unfortunate legacy of contempt law, the legal position has evolved.

Displaying maturity:

But Indian courts have not been inclined — or at least, not always — to display the same maturity as their peers elsewhere.
It is regrettable that judges believe that silencing criticism will harbour respect for the judiciary.
On the contrary, surely, any efforts to artificially prevent free speech will only exacerbatethe situation further.
As was pointed out in the landmark U.S. case of Bridges v. California (1941), “an enforcedsilence would probably engenderresentment, suspicion, and contempt for the bench, not the respect it seeks”.
Surely, this is not what the Court might desire.
Two observations and a link:
Pakistan Supreme Court hinted at banning YouTube and other social media platforms, for hosting what it termed ‘objectionable content’ that ‘incited hatred’ for institutions such as the army, the judiciary, the executive, and so on.
The eeriesimilarity between the two sets of observations raises concerns about which direction the Indian Supreme Court sees itself heading.
One can only hope that these fears are unwarranted.
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Prelims Questions:

Q.1) With reference to the Monoclonal antibodies, consider the following statements:

1. Monoclonal antibodies are proteins cloned in the lab to mimic antibodies produced by the immune system to counter an infection.
2. Itolizumab is a monoclonal antibody which is used to treat acute psoriasis.

Which of the statements given above is/are correct?

(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

Answer: C