In 2011, the PGDNL class was burning with hot intellectual discussions on contempt provisions, and no one essentially agreed upon the justifications of a course teacher. We were not convinced, perhaps the class was not justified judiciously and realistically, and everyone had their own legal reasoning. This still is a debatable topic, maybe because contempt of court is a huge discretionary power of a judge. No legal principle, no philosophy, no norms, and no criteria essentially guide the courts to initiate a contempt of court proceedings in the Bhutanese context.
At the outset, let me introduce the conceptual meaning of contempt of court. There are generally two types of contempt: a) being rude, disrespectful to the judge or other attorneys or cause a disturbance in the courtroom, particularly after being warned by the Judge; b) willful failure to obey an order of the Court. The second type of contempt is very obvious and need no guided rules and procedures. If a person willfully disobey an order of the court, he or she is liable for the act. However, the first type of contempt is very difficult to contextualize. There involve numerous terminologies to be guided of – being rude, disrespectful to the judge or other attorney, disturbance in the courtroom, etc. – are all needed of judicial interpretation. How can a judge, for example, would define rude? What kind of behavior would consider disrespectful to the judge? What kind of activity will disturb the courtroom? These are some of the questions that we need to address during or before any contempt proceedings.
There are also direct and indirect contempt. A direct contempt is an act that occurs in the presence of the court and is intended to embarrass or engender disrespect for the court. For instance, shouting in the courtroom and refusing to answer questions for a judge which will impair the proper administration of justice would amount to direct contempt of court. Indirect contempt occurs outside the courtroom. Attempting to bribe a lawyer, publishing any materials that destroys the image of a judge is indirect contempt. However in both cases, the essence is that the misconduct should impair the fair and efficient administration of justice.
Then, let me put my proposition. I say that contempt of court is a loose character, meaning it is being loosely interpreted by the judiciary. Let me analyse this recent scenario.
On August 7, 2015, the Hon’ble High Court of Bhutan issued a press release which states that the Court may initiate a contempt proceedings for making unsolicited comments on social media. The press release was issued four days after litigant Penjor posted his story of dissatisfactions and grievances of the court’s judicial procedure in the kuenselonline forum. As of 7th August, 2015, Mr. Penjor’s post was liked by 19 people and receive almost 28 comments. The press release stated that such contemptuous comment on social media not only mislead the public but also malign the institution of the judiciary and reputation of the judges.
Does the post on social media, post of such nature, warrant judicial press release? Does such kind of expression amounts to contempt of court? There is always a dichotomy between the right to freedom of speech and expression on the one hand, and the fear of contempt proceedings on the other. While the former guarantees right to express freely, the later restricts this right. If that is the case, where does freedom of expression ends? Does it terminate with contempt proceedings? Questions are many and answers are limited.
The most significant question that we need to answer is this: under what circumstances the contempt of court provisions stipulated under the CCPC are invoked? This question direct us to conceptualize how judicial discretionary power of contempt of court is exercised in the Bhutanese jurisdiction. The answer however is simple. Given the fact that it is a discretionary power of a judge, contempt of court provisions are exercised loosely at any given period of time. A judge would frighten his litigants to send to the jail during the course of hearing. There is always a fear factor for people to plead freely before the court. However, in other jurisdictions, contempt of court proceedings can be initiated only when the misconduct or acts of a person impairs fair and efficient administration of justice. The contempt power should only be used in a rare and very exceptional situation where without using it, it becomes impossible or extremely difficult for the court to function. Modern judicial mind believe that even in such rare and exceptional situations, the contempt power should not be used if the mere threat to use it suffices. This eventually quantify that mere publication of materials against a judge would not amount to contempt of court, and that any publication should bear a disturbing weapon that destroys the spirit of justice.
That being so, it is important that judge or judiciary as institution should not be reactive to what people got to say. Any criticism is only an `occupational hazard’ of a Judge, and in a democracy people say all sorts of things, which a Judge should learn to ignore as long as his conscience is clear. Sometimes an honest and learned Judge is unjustifiably criticized. But for one such person criticizing an upright Judge one hundred people will immediately rush to his defence, even without the Judge asking for such defence. Why then, should judges get upset or be afraid of criticism, particularly when we are living in a democracy? As long as the Judge is allowed to function, the best course for him is to ignore baseless criticism, but pay heed to honest and correct criticism.
When I say this, I am not saying that the recent press release by the Hon’ble High Court of Bhutan was wrong and that it should not have been issued. Only that I ask is whether the post on social media by Mr. Penjor has actually impaired the fair and efficient administration of justice or has extremely disturbed the court’s functioning.
The best shield and armour of a Judge is his reputation of integrity, impartiality, and learning. An upright Judge will hardly ever need to use the contempt power in his judicial career. It is only in a very rare and extreme case that this power will need to be exercised, and that, too only to enable the Judge to function, not to maintain his dignity or majesty.
It is generally said that the Contempt of Court jurisdiction is exercised not to protect the dignity of an individual judge but to protect the administration of justice from being maligned. The Supreme Court of India in Rajesh Kumar Sing v. High court of Judicature of Madhya Pradesh, Justice RV Raveendran and Lokeshwara Singh Panta opined that “Judges, like everyone else, will have to earn respect…. Court should not readily infer an intention to scandalize courts or lower the authority of courts unless such intention is clearly established.”
Similarly, Justice Markandey Katju, Judge of Supreme Court of India writes that:
“As a Judge…… I would often tell the lawyers in open Court that they could criticize me as much as they liked, inside the Court or outside it, to their heart’s content, but I would not initiate proceedings for Contempt of Court. Either the criticism was correct, in which case I deserved it, or it was false in which case I would ignore it. Some people deliberately try to provoke the Judge to initiate Contempt of Court proceedings, their whole game being to get publicity. The best way to deal with such persons would be to ignore them, and thus deny them the publicity which they are really seeking. I would often say in Court “Contempt power is a `Brahmastra’ to be used only on a `patra’ (deserving person), and I do not regard you as a `patra’.”
We certainly need to look from this point of view and need to make contempt proceedings a tight character. In a free society, nothing can restrict people from free expression. Public institution should rather encourage free speech because comments and opinions are basis for improvement. Criticism and applause is must for a positive change. In a democracy, tyrant ways of thinking and governance would only promote civil unrest and disobedience. Justice is seen only in a free society. Thus, there should be criticism and applause from the general public without which there shall be no positive changes.