by Dipendra Jha
Courtesy : Kathmandu Post
A cartoon depicting the face of the Chief Justice hovering above a coconut tree was published on 6 November 1996 in the weekly newspaper “Bimarsa“. The CJ was caricatured as being asked to throw a file titled “Tanakpur Agreement” to the opposition and ruling leaders, who were standing on either sides of the tree. Harihar Birahi, Publisher and Editor of the newspaper, was sentenced to seven days’ imprisonment and was slapped 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 the contempt of court.
On 30 June 2007, a news article titled “Tulsa Le Machain Tahalka” was published in the Janaastha Weekly. The title of the newspaper had criticised the personal relationship of the Chief justice with Tulsa. The administration of the Supreme Court filed a case of contempt of court against the newspaper’s Editor, Kishor Shrestha. On 25 February 2014, the SC delivered its final verdict prohibiting the Editor from further writing such articles that could damage the image of judges.
In the case of Advocate Arun Gyanwali vs. Kanak Mani Dixit, the SC adopted a similar approach in warning the Editor (Dixit in this case) against publishing pieces that could question the individual character of the CJ. This case was in reference to the publication on 3 May 2007 in the Himal magazine, which had the catchy title “Himal Khabar Patrika” on its cover page. Beneath this title, a solemn-looking picture of the then Chief Justice Dilip Kumar Poudel was published. The SC further ordered the Publisher to publish a visible apology on the front page of the magazine.
These three representative cases demonstrate the trend over the years of the contempt of court offence being enforced in Nepal. Though some people have been convicted of contempt of court cases, the irony is that there are no specific laws defining in clear terms what constitutes contempt of court. 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, there is unduly excessive power and unfettered discretion given to the courts on the contempt issue. 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 prohibits publications that scandalize or tend to scandalize, 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 of 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.
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 a possibility of undermining 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’ gives a wide 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 creates 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 conducts.
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.
Media scrutiny helps to expose corruption and conflict of interest – this noble goal should be encouraged, not suppressed. A conviction of the 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 which demonstrate the falsity of any doubts that linger in the public’s mind – not by how often its critics are convicted.
As C. Hitchens 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 the benchmark for contempt in limiting excessive and subjective judicial interpretation, which is often experienced. The Bill still requires the language to 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, fair and rational criticism of judgments and the conduct of judges could enhance the quality of judiciary. Censoring the media in the name of contempt of court may set a dangerous trend of heightened intolerance. Public discussions are a basic feature in 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.’
