Why we need a law on contempt of court
In the wake of recent debates in Sri Lanka which have disclosed that our notion of contempt of court belongs to the era of the dodo, it is appropriate to dwell on what the modern law of contempt, in fact, means.

The necessity for this has been made clear by the fact that we obstinately cling to outdated definitions of contempt that have been discarded even by our South Asian neighbours, (in general and excepting those aberrant instances such as when writer Arundati Roy was recently convicted for contemptuous remarks against the Indian Supreme Court).

In the United Kingdom, form of contempt of court is regulated by the Contempt of Court Act 1981 and is a strict liability offence. The liability test is set out in s.2(2) which states that "The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced."

The Act was passed at least partly in response to the decision of the European Court of Human Rights in Sunday Times v. United Kingdom. The Sunday Times v. United Kingdom, 26 April 1979, Series A No. 30, 14 EHRR 229. Here, a United Kingdom court had granted an injunction to prevent a newspaper from commenting on the responsibility of a company for thalidomide-related birth deformities while there were ongoing settlement negotiations.

The European Court applied the relevant three part test and found that the interference with freedom of expression was "prescribed by law" and had a "legitimate aim" (maintaining the authority of the judiciary) but was not "necessary in a democratic society."

The Court rejected the Government's submission that it was a matter of "balancing" the public interest in freedom of expression and the public interest in the fair administration of justice. Rather, the proper approach was that "The Court is faced not with a choice between two conflicting principles but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted.

It reasoned that there was a public interest in knowing about the case which was not outweighed by a social need which was sufficiently pressing, including the fact that "In the present case, the families of numerous victims of the tragedy, who were unaware of the legal difficulties involved, had a vital interest in knowing all the underlying facts and the various possible solutions. They could be deprived of this information, which was crucially important for them, only if it appeared that its diffusion would have presented a threat to the "authority of the judiciary"…."

In the US, for example the power of the courts to punish for contempt by publication is extremely limited. The general rule is that a publication cannot be punished for contempt unless there is a "clear and present danger" to the administration of justice. The test requires that "the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished." In practice, this has allowed the media to report on pending judicial proceedings with little or no restriction and provide extensive (and often controversial) coverage of high profile cases.

These cases and very many more, discussion of which is not possible in this instance stipulate that on the one hand, basic freedoms underlie the importance of public scrutiny of the processes of governance, which in present day thinking, encompasses the administration of justice. This is deemed to be of vital concern not only to the immediate litigants but the wider public. Openness of adjudication processes thus buttresses the maxim that 'justice must not only be done but must be seen to be done' and promotes three important aspirational attributes of the judiciary, namely, impartiality, accessibility and effectiveness.

An additional justification for public scrutiny of the judiciary is that it constitutes a democratic check on judges who are not elected but who exercise public power. This is a method of scrutiny that becomes appropriate in the context of impeachment and removal from office of a judge under the Constitution being a remedy only in extreme situations, normally amounting to incapacity, gross incompetence or gross misconduct on the part of the judge.

On the other hand however, the freedom to debate the conduct of public affairs by the judiciary does not however mean that personal criticism of judges or scurrilous and unwarranted attacks on the judiciary as an institution can be condoned. International human rights law has maintained that when balancing rights of free speech with the principle of the authority of the judiciary, the question should be whether the prohibition is strictly necessary in a democratic society. When balancing rights of free speech with the principle of the authority of the judiciary, the question should be whether the prohibition is strictly necessary in a democratic society.

Thus, when contempt powers are, in fact exercised, they involve a careful balancing of the competing rights, (whether of expression or access to court), of an individual and the need to protect the integrity of an institution. The primary principle, in this sense, is that there must be substantive interference with the due administration of justice. Proportionate punishment must be imposed if contempt is, in fact, found. The whole must be subject to a procedure that has some, if not all the elements of right to a fair trial.

Importantly (and contrasted to the UK Act of 1981), the Contempt of Court Act in India not only prescribes a minimum sentence for contempt but also lays down an exhaustive procedure for contempt hearings. Thus, an accused person is furnished with a charge and evidence is heard on the charge. In addition, there is also a right, on appeal and if it is practicable and in the interests of proper administration of justice, to be heard before a different court than the court which the alleged contempt occurred.

The modern Indian law relating to contempt of court followed the Report of the Sanyal Committee, which considered the working of the old 1952 Contempt of Court Act and found it unsatisfactory in its substantive content. Thereafter, the 1971 Contempt of Court Act was enacted, 'harmonising as far as possible the interests of the individual in exercising his or her freedom of expression and the interests of the administration of justice within the framework of the Republican Constitution."

The 1971 Act, (in Section 5), provides expressly that fair criticism of judicial acts does not amount to contempt and stipulates also the defences of innocent publication/distribution. It provides moreover that no sentence should be imposed for contempt unless the act substantially interferes with the administration of justice. The fact that Sri Lanka yet does not have a Contempt of Court Act is one more reason why we now lag behind even South Asia nations in the outdated manner in which we regard this necessary evil. It is time that legislation was enacted for this purpose and last year's Parliamentary Select Committee on contempt of court (which lapsed along with the dissolving of Parliament) re-activated for this purpose.

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