Whose contempt?

March 12, 2018 01:00 AM Sudeshna Thapa


Initiation of the contempt proceeding seems to have further discredited the Chief Justice and tarnished his public image

The ongoing contempt of court case against Kantipur and Chief Justice Gopal Parajuli’s recent interim order calling for Press Council to probe news reports published by the media conglomerate has raised concern over limits on judicial power in the country. While such a move on the part of Chief Justice is iniquitous on many accounts, it is also important to isolate any abuse of power by individual judicial officers from sanctity of judiciary itself.

Although sometimes subject to wide and extensive interpretations that are uncalled for, our laws on Contempt of Court are fairly clear-cut about what constitutes contempt. While we do not have a separate statute governing contempt like many other countries do, provisions dealing with the issue have been enshrined in our constitution and other related laws. Article 128 (4) of the Constitution of Nepal, 2015 provides that the Supreme Court can initiate a proceeding on contempt of court and impose punishment against anyone posing an obstruction to its act of judicial execution or that of its subordinate courts; or against anyone who fails to abide by its order or verdict or those of subordinate courts.

The Administration of Justice Act, 2016 reaffirms the same. 

Such power to initiate a contempt proceeding is not exclusive to Supreme Court. Under the Justice Administration Act, High Courts and District Courts have also been bestowed with the power to initiate proceedings against their own contempt or that of subordinate courts and judicial bodies.

Indian example 

A brief reference to India’s laws governing contempt is pertinent here. The Indian Contempt of Courts Act, 1971 distinguishes between Civil and Criminal contempt and provides an exhaustive list of what constitutes contempt. A particular clause in the statue that has drawn much scrutiny over the years is one that defines criminal contempt as the publication of any matter or the performance of any other act which, among others, ‘scandalizes or tends to scandalize’ a court. Despite strong public condemnation, media officers and lawyers have been convicted under the clause on many occasions for reporting cases of alleged judicial corruption. Many scholars and activists have claimed that such a clause is archaic and should be discarded owing to the arguably unwarranted power it tends to endow on judges. 

Parallels can be drawn between Indian example and our Chief Justice’s move against Kantipur.

What makes the proceeding against Kantipur even more alarming is the fact that the news reports it published cannot rationally be interpreted as satisfying any of the constitutive elements of contempt under Nepali law. Notably, the only two conditions that warrant the initiation of a contempt proceeding under Nepali law are those of posing obstructions in the dispensation of justice by a court; or of disregarding a court’s orders or verdicts. Needless to say, Kantipur’s news reports highlighting discrepancies in Parajuli’s official records qualify as neither. The Chief Justice appears to have overstepped the limits set by law. His attempt to enforce prior censorship on any material likely to mar his integrity infringes on press freedom and the fundamental right to freedom of expression.
Propagating fear

The situation seems to have propagated fear of oppressive judicial power. The authority to initiate contempt proceedings suo motu is, indeed, a powerful tool at the disposal of judges. Contempt proceedings can be cumbersome on the accused: if found guilty of contempt, they may be punished with a hefty fine of Rs 10,000 or up to one year of imprisonment or even both. Interestingly, however, the Judicial Administration Act also has a provision whereby any person against whom a proceeding has been initiated, can apologize before the court at any point before the judgement is final. If a court is satisfied with the apology, it may choose to suspend the contempt proceedings. Furthermore, even after being indicted with punishment, if the offender makes an apology ‘to the satisfaction of the court’, the court can decide not to implement such punishment; to reduce or change the punishment; or conditionally suspend the sentence and issue an order with the effect of non-execution of the sentence if the prescribed conditions are complied with. 
The Supreme Court’s history in dealing with contempt cases evidences consideration of apologies so made.

Given that contempt of court charges often stem from disruptive courtroom behavior and willful disrespect for the authority of a court of law, it may be customary in such cases to ask an accused if they apologize for their actions. However, asking Kantipur officials and reporters if they apologize for the news reports they published is grossly perverse and misplaced. Amidst what is overwhelmingly considered an anti-corruption crusade led by Dr Govinda K.C against Parajuli, the initiation of the contempt proceeding seems to have further discredited the Chief Justice and tarnished his public image.

While preserving the respect and dignity of the judiciary is important, it is important to distinguish the judiciary from the merit and integrity of individual judges. Parajuli is an official holding public office who is accountable to the general public and to the law.  If the Supreme Court is to indict Kantipur for contempt of court, not only could this stifle dissent but also pave the way for sanctioning judges to summarily arrest and punish anyone making earnest inquiries into any and all matters related to the judiciary. 

Although seemingly counterintuitive to some, it isn’t repressing criticism but setting precedent that allows or even encourages it, that will restore public faith in the judiciary and preserve its sacrosanctity. The Supreme Court must take this opportunity to put its foot down against Parajuli’s interim order and reaffirm that the laws on contempt of court cannot be subject to undue interpretations to suit personal convenience.

The author is pursuing LLM in International Human Rights Law from Lund University, Sweden

thapa.sudeshna@gmail.com

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