A Contemplation on Contempt of Courts
This article is written by Ritika Babbar, a Second Year B.A. LL.B (Hons.) Student at Ideal Institute of Management and Technology (GGSIPU), Delhi.
The author presents a contemplation on Contempt of Courts and glosses on the legal aspects of the offence. The Article tries to establish a ligature between Right to freedom of Speech and Contempt with a personal conjecture and thought as conclusion.
Introduction
The lightning speed shown by the Honourable Supreme Court on arriving at a decision in the Prashant Bhushan contempt case has made the entire India astound and at the same time inquisitive of the severity of the offence of contempt of court. Supreme Court’s expeditious conduct in response to the two tweets and a press interview given by Prashant Bhushan; which the Supreme Court found to be demeaning and disparaging the authority of the Honourable Court, has made people ponder if Contempt of Court is even a bigger and greater issue than the pending Habeas corpus writs, complaints filed under Article 32 of the Constitution of India and the perpetually deteriorating and, despitious conditions of migrant workers, among numerous unheard issues So let’s understand what is meant by contempt of court.
Contempt of Court
“Act of disparaging, deteriorating and scandalising the dignity, honour and majesty of the court may be termed as Contempt of Court.”
Section 2(a) of the Contempt of Courts Act, 1971 states- two types of contempt, namely civil and criminal contempt, which are further mentioned under Section 2(b) and Section 2(c) respectively.
Civil Contempt relates to wilful disobedience to any judgement, decree, direction, order, writ and other process of court and wilful breach of an undertaking given to court. The Criminal Contempt on the other hand discusses the scandalising or lowering the authority of court, interfering with any judicial proceedings or any interference in the administration of justice by the means of any publication in any form and manner be it written, spoken, by signs and otherwise.
Historical Background of Contempt Law
The origin of Contempt of Courts Laws in India can be traced from the English Law in which the court of records from earlier times, exercised the powers to commit for contempt persons who scandalised the Court or the judges. However, the offence of ‘scandalising the judiciary’ had been abolished by Statute in England and Wales by Section 33 of the Crime and Courts Act 2013.
The first Indian Statue on the Contempt of Courts Act was passed in the British Era in 1926 but at that time various Indian states including Hyderabad, Madhya Bharat, Mysore, Pepsu, Rajasthan, Travancore-Cochin and Saurashtra had their own corresponding enactments on the matter which resulted in replacement of the Act by the Contempt of Courts Act 1952.[1]
In April 1960 again an attempt was made to introduce a Bill in Lok Sabha to consolidate and amend law relating to Contempt of Courts. In July 1961 a Special Committee headed by Late Shri H.N Sanyal (then Solicitor General of India) was set up for the same purpose. The committee submitted its report in February 1963 which emphasised the importance given to Freedom of Speech in the Constitution and the need for safeguarding the status, dignity of courts and interests of administration of justice. The bill received assent of the President on December, 24 1971.
Power to issue Contempt
The power of issuing contempt is originally vested in the constitution under Article 19(2) which speaks of reasonable restriction on the right of Freedom of speech if it hinders or effect in any way the functioning of state, law making by state, its foreign affairs etc. and in contempt of courts.
Article 129 which empowers the Supreme Court to issue for contempt against itself.
Article 215 which empowers high court to issue for contempt against itself and also against the subordinate courts
Article 142 which empowers the Supreme Court to issue for contempt in case its orders made with an intention to secure and survive justice are not accepted and prevailed.
It is to be noted that as per the Reports of 21st Law Commission there were stupendously high numbers of civil contempt cases pending in Supreme Court and High courts. It was approximated to be 96,993 in contrast to a fairly lower number of criminal contempt cases countably 583.
When not contempt of court?
It is to be noted that speaking and standing for vindicating the truth doesn’t amount to contempt of court.
Section 3 of the Contempt of Courts Act, 1971 mentions that innocent publication and distribution of matter doesn’t amount to contempt.
Section 4 of the Contempt of Courts Act, 1971 mentions that fair and accurate report of judicial proceedings -not contempt.
Section 5 of the Contempt of Courts Act, 1971 mentions that Fair criticism of judicial act not to be considered as contempt.
Section 6 of the Contempt of Courts Act, 1971 mentions that a person cannot be held liable of contempt for any of his statements made by him in good faith concerning the presiding officer of any subordinate court.
In Supreme Court Bar Association v. Union of India[2], Supreme Court mentioned that the power of court to punish for Contempt of Court cannot be exercised to protect dignity of individual judge but can be utilised to protect the administration of justice from being maligned.
There’s an incident in history without which a deliberation on the topic of Contempt of Court is incomplete. In 1987 House of Lords passed an injunction upholding the restraining order on the publication of a book called “Spy catcher” (written by a former MI5 Intelligence Officer.) The ban was imposed on the ground that the book disclosed chaste, sensitive and delicate details of Intelligence Agency MI5 and MI6[3]. Later the injunction was removed as the book was already widely published but it was held that the observer group was not entitled to take any profits made from the publication. The observer group retaliated and in response published a picture on July 31 1987 of 3 Senior Judges upside down in a renowned newspaper called ‘The Daily Mirror’ and captioned it as ‘Three old Fools’. Lord Sydney Templeman while showing gestures of magnanimity denied issuing Contempt of Court against the publishers and said that, ‘it’s true that I am old but it’s their perception and idiosyncrasy to consider me as a fool or not’[4]. This gesture of Lord Sydney Templeman speaks of magnanimity, prodigality and broad acceptance of judiciary towards criticism and damnation. This gesture, I believe, alone vindicates the court of justice[5].
Conclusion
It is not to be forgotten that dissent plays a very crucial, indispensable and vital part in the formation, existence, survival and sustainability of a broad and effective judiciary. Criticism and damnation within the ambit of constitutional legality is sometimes very essential to uprise and ameliorate the functioning of the judiciary. But at the same time liberty and freedom of speech and expression guaranteed under Article 19(1) (a) of the Indian Constitution must not be mistaken as freedom of making unwarranted criticism, castigation and slander of courts and authorities.
In Arundhati Roy (in re;)[6] the Supreme Court mentioned that in the view of constitutional protection of freedom of speech and expression, it cannot be held that no one can be proceeded with Contempt of Court on the allegation of scandalising or intending to scandalise the authority of any court. It is always expected from the courts to show great magnanimity, highness and prodigality while issuing for contempt.
Successful Unions are those who have powerful courts and powerful courts are those who are grown and developed on the foundation of tolerance watered with criticism.
[1] Prelude, The Contempt of Courts, 1971
[2] Writ Petition (Civil) No. 27 Of 2007
[3] (Attorney-General v. Guardian Newspapers Ltd. [1987] 1 W.L.R. 1248, 1306 (H.L. (E.)) (per Lord Ackner))
[4] Faizan Mustafa, Contempt jurisdiction should be used sparingly, The Tribune (23 August 2020)
[5] (Faizan Mustafa, Contempt jurisdiction should be used sparingly, The Tribune, 2020)
[6] AIR 2002 SC 1375 (1379):(2002) 3 SCC 343:2002 AIR SCW 1210