Contours of contempt of court: Law and practice in India

“Silence is not an option when things are ill done” –Lord Denning

In common parlance, the phrase ‘contempt of court’ (contemptus curiae), or simply, ‘contempt’ is the act of being defiant or disrespectful towards the court of law and its officers. Lord Diplock in Attorney-General v. Times Newspapers Ltd [(1973) 3 W.L.R. 298; (1974) AC 273] defined it as “Contempt of Court is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or inhibit citizens from availing themselves of it for the settlement of their disputes”.

Civil and Criminal Contempt

Contempt may be civil contempt or criminal contempt. Section 2(b) of the Contempt of Courts Act, 1971 defines “civil contempt” as “wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court”. Sec 2(c) of the said Act defines “criminal contempt” as “the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any manner. A contempt of Court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may to two thousand rupees, or with both (section 12 of the said Act). Section 14 prescribes the procedure where contempt is in the face of the Supreme Court or a High Court, section 15 the cognizance of criminal contempt in other cases and section 17 the procedure after cognizance. Section 13(b) says that “the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide. No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed (section 20).

Contempt proceeding can be initiated in the following ways viz.

(i) On its own by the Supreme Court or the High Court independently or on the presentation of an application to it by a private person.

(ii) On a motion by (a) Attorney General or Solicitor General in relation to the Supreme Court (b) Advocate General of the State in relation to the High Court (c) Notified Law Officer in relation to the High Court of Delhi.

(iii) On an application filed by a third person after getting the permission of Attorney General or Solicitor General in case of Supreme Court or Advocate General of the state(s) in case of High Courts or notified Law Officer in case of High Court of Delhi. In case of any contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on motion made by the Advocate General.

Colonial hangover

In India, the law of contempt has colonial roots and sprouted during the British colonial era.

When the East India Company came to India and started administration of justice, they introduced the English law of contempt of courts in the country. Being an imperialist, British had to suppress any defiance of law by the ‘natives’ with iron hand. Thus, the Contempt of Courts Act, 1926 was enacted. It was amended in 1937. Post-independence, India enacted the Contempt of Courts Act, 1952. The Sanyal Committee was constituted to look into the short comings of the 1952 Act. The Contempt of Courts Act, 1971 was enacted by incorporating the recommendations of the committee. The Contempt of Courts (Amendment) Act, 2006 substituted new section for Section 13 of the 1971 Act. Constitutional perspectives Provisions relating to contempt are found in the following articles of the Constitution of India: (i) Article 19(2) read with Article 19(1)(a) –Freedom of Speech with restrictions and contempt, (ii) Article 129 – Supreme Court as court of record, (iii) Article 215- High Court as court of record, (iv) Article 227- Superintendence of High Courts and (v) Articles of 142-Enforcement of decrees and orders of the Supreme Court.

Criminal contempt - Scandalising the court:

Of late, contempt cases centres around the issue of scandalising the courts or lowering the authority of court amounting to the offence of “criminal contempt” defined in section 2(c) (i) of Contempt of Courts Act, 1971. The law of ‘scandalising the court’ originated from an undelivered judgment by Justice Wilmot in R. vs. Almon 1765 Wilmot 243 way back in 1765 CE. It is intended as a wall of protection against the vicissitudes of judging. As eminent jurist Fali S. Nariman said, “Ours is a very litigious society and there are a number of odd citizens (“Nuts” they are sometimes called): persons who will make any type of allegation against anyone at the drop of a hat.”

Lingering dialectic: Contempt vs. Freedom of Speech

“If the conduct of Presidents, Governors, Politicians and Chief Ministers – and a vast range of officials can be commented on, written about and criticised, there is no reason why the performance of Judges in their respective Courts cannot be…”(Fali S. Nariman) The law of contempt is an exception to the fundamental right of speech and expression guaranteed under Article 19(1) (a) of the Constitution, the law must then be justified on the ground that it is a reasonable restriction under Article 19(2); otherwise it would be unconstitutional. But to stifle criticism and stamp out dissent strikes the very root of the notion of democracy for the court to become intolerant of criticism or expressions of dissent would mark the beginning of the end of democracy. As Lord Atkin said in R. vs. Metropolitan Police Commissioner, 1968 (2) AER 319, “The path of criticism is a public way: the wrongheaded are permitted to err therein ……Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.” Unjust, unfair and ill temperate criticisms to undermine the authority of law, whether inside or outside the courts, bringing disrepute and disrespect to due administration of justice is not intended. Nobody has a right to denigrate others’ right of person and reputation. Bona fide criticism of any system or institution including the judiciary cannot be objected to as healthy and constructive criticisms are tools to augment forensic tools for improving its function.

The Long Hand

Fair criticism of the conduct of a Judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and in public interest. However, no contumacious behaviour of any person be allowed to tarnish, diminish or wipe out the confidence of the people in the courts of justice. The long hand of contempt of court is the weapon in the armoury of judicial repository which when needed can reach any neck howsoever high or far away it may be.

Free market of ideas vis-à-vis Contempt vis-à-vis Defamation

In PN Duda vs P Shiv Shanker [1988 (3) SCC 167], the Supreme Court said, “…In the free market-place of ideas criticism about the judicial system or judges should be welcome so long as such criticism does not impair or hamper the administration of justice”. Further, in Re-Arundhati Roy [AIR 2002 SC 1375], the Apex Court said, “…Any expression of opinion would, therefore, be not immune from the liability for exceeding the limits, either under the law of defamation or contempt of Court or other constitutional limitations under Article 19(2). If a citizen, therefore, in the garb of exercising right of free expression under Article 19(1), tries to scandalise the court or undermines the dignity of the court, then the court would be entitled to exercise power under Article 129 or Article 215, as the case may be…”

Conclusion

The line between ‘destructive attacks’ and ‘trenchant criticism’ is always a thin one. The nation wishes for an activist judiciary not judicial dictatorship loaded with judicial intolerance. However, no person can flout the mandate of law respecting the courts for establishment of rule of law under the cloak of freedom of speech and expression guaranteed by the Constitution.

Freedom of speech and expression is not absolute, unlimited and unfettered at all times and in all circumstances: it is subject to reasonable restrictions imposed by law. A fine balance between freedom of expression and fair and fearless justice is called for. After all, as Krishna Iyer, J in Baradakanta Mishra vs. The Register of Orissa High Court & Anr., [1974 (1) SCC 374] said, “…Justice is not hubris; power is not petulance and prudence is not pusillanimity, especially when Judges are themselves prospectors and mercy is a mark of strength, not whimper of weakness…”

(Views are personal; the writer can be reached at bimol94mei@gmail.com)

First Published:Aug. 17, 2020, 2:38 p.m.