I WAS midway reading a thesis on the effectiveness of the law of contempt at the 2004, SAARCLAW Conference in Karachi when suddenly the chairman of the session, Justice U.C. Banerjee of the Supreme Court of India, used an empty glass and spoon to ring an impromptu bell and wake up the audience.

The ‘ting’, ‘ting’ interruption from the chair of the panel was to stop me in my tracks as I was making the argument on how the Indian supreme court’s contempt conviction of the celebrated author Arundhati Roy did nothing to enhance the prestige of the Indian supreme court.

Justice Banerjee, took the mike and said, I am sorry to interrupt but the speaker has got it wrong: The Indian supreme court did not convict Arundhati Roy for contempt of court.

Another judge, this time from the front seats of the audience, justice Bashir Ahmed of the Delhi High Court stood up and said, yes sir, the speaker has his facts wrong, Arundhati Roy was never convicted of contempt of court in India.

The courts are the ultimate guardians of free speech, yet find it difficult to come to terms with free speech when critically directed at the courts themselves.

My reference to the Arundhati Roy case while discussing the law of contempt, more particularly of scandalising the court, in South Asian countries was purely a comparative examination. Scandalising the court is that species of contempt law which seeks to outlaw and punish scurrilous criticism of judges which undermines the administration of justice.

I was not in any way singling out the Indian supreme court. Yet, a judge of that court sought fit to curb my speech because he felt hurt at what he perceived was a wrongful allegation on the Indian supreme court and thus merited sacrificing the right of freedom of expression.

The proponents of contempt prosecutions reason that unfair allegations attacking the courts erode public confidence in the judiciary and therefore strike at the foundation of the most important pillar of a democratic society. The argument that courts must be protected from harsh criticism relies upon the view, that the public is naïve — that it lacks the faculties to distinguish between fair and unfair critique and, if left unprotected, harsh words will shatter public confidence. In other words that offensive speech unpunished will lead us all to ‘anarchy’.

Contempt actions are paradoxical. The courts are the ultimate guardians of free speech, yet find it difficult to come to terms with free speech when critically directed at the courts themselves. Interestingly, contempt of scandalising the court seems to have become obsolete in established democratic societies. Contemporary scholars such as Geoffrey Robertson and Andrew Nicol view the offence of scandalising the court in England as “an anachronistic relic of the 18th-century struggles between partisan judges and their vitriolic critics”. Eric Barendt suggests that the offence of scandalising the court is “now so unimportant in practice that it appears fruitless to spend much space in debating its justification”.

In 1899, the Privy Council (a sort of supreme court for many Commonwealth countries) ruled that “committals for contempt of court by scandalising the court itself have become obsolete in this country [UK]. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity and respect of the court”. Even a hundred years later, the Privy Council continues to look generously towards contempt convictions when they come from countries where the administration of justice is seemingly more vulnerable.

Courts in Pakistan, India, Bangladesh and Sri Lanka all have a prolific record of prosecuting contempt of scandalising the judiciary. Yet, each of these countries scores poorly on the World Justice Project’s ‘Rule of Law Index’, with Pakistan at an embarrassing 124th position out of 139 countries. Last year, the Sri Lankan supreme court set a new record by sentencing the actor-turned-parliamentarian Ranjan Ramanayake to four-year imprisonment for contempt. Yet, Sri Lanka fell almost 20 places on the ‘Rule of Law Index’ in a spate of two years.

Justice Banerjee was undoubtedly only trying to protect the dignity of the Indian supreme court when he interrupted and announced that my facts were wrong on the Arundhati Roy conviction. However, remarkably, another panelist from India, K.K. Venugopal, a highly acclaimed Indian lawyer, currently serving as that country’s attorney general, interrupted justice Banerjee. K.K. Venugopal, took the mike and told the audience that in fact the speaker was correct; the Indian supreme court had indeed convicted Arundhati Roy for contempt of court and it was justice Banerjee who had got his facts wrong. I heaved a sigh of relief and continued making the argument that it is necessary to re-examine the premise of public confidence in the judiciary as a justification for contempt actions.

While we restrict criticism directed at the court on the pretext of saving public confidence in the judiciary, we need to probe the question whether the immunity from intemperate and even unfair criticism strengthens the judiciary.

As Arundhati Roy was being whisked away to Tihar jail to serve her one-day sentence for contempt, she scribbled a note which said “I stand by what I said. And I am prepared to suffer the consequences. The dignity of the court will [only] be upheld by the quality of their judgements.”

I think Ms Roy is correct. The dignity of the court, the majesty of the rule of law will only be affected by the quality of judgements and not by anachronistic laws of contempt.

The writer is an advocate to the Supreme Court of Pakistan.

zfebrahim@gmail.com

Published in Dawn, January 7th, 2022