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The Courts are the ultimate pedestal upon which justice is delivered through the beacon of due process. It is where ideally, inherent respect and acquiescence should arise regardless of the logistics involved in the justice delivery. But as we all know, idealism is just another perspective often confused by reality. While it is believed that justice served must be accepted as it is, that is often not the case, is it? People often have varied opinions that don’t agree with that of the judgment or even the judge. Since the ones who deliver it, become the face of the judgment’s existence, they also often become the subject of both dissent and appreciation. When dissent becomes the fore-runner, it often yields consequences that take the shape of contempt. It might be passive or assertive but is often directed towards the one presiding in the Court of law or certain cases at the Court of law itself. We will further look into various aspects of the prevalent expressions of contempt in court as well as the measures to curb it.
What is contempt of court?
The concept of contempt of court originated from the phrase “Contemptus Curiae” that has been recognized under English law ever since the 12th century. Lord Diplock in the case of Attorney-General v Times Newspapers Ltd [(1973) 3 W.L.R. 298] defined the term contempt of court 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.”
Contempt of Court is the act of being defiant or disrespectful towards the Court of law including its officers. Such conduct that amounts to contempt must be such that opposes the authority, justice, and dignity of the court. Thus, anything that curbs or impairs the freedom of judicial proceedings hampers the administration of law and subsequently intervenes with the due course of justice, it would be contempt of Court. In India, the concept of contempt of courts had its origin from the then British administration.
The Indian legal system is very much influenced by English law. The roots of this concept can thus, be traced from J Wilmot’s undelivered judgment of 1765. In this judgment, he stated that “the power of contempt was necessary to maintain the dignity of judges and vindicate their authority.”
Relevant legal provisions
The legal provisions for contempt of court in India are an offspring of the British regime. In 1926, the first Contempt of Court Act was passed to bring about transparency and punishment for contempt. But, this Act did not provide any provisions regarding contempt of courts that were lower to the Chief Courts and Judicial Commissioner’s Court. So, it was later replaced by the Contempt of Courts Act, 1952. This Act, however, did not satisfy people either. It was a prevalent opinion that the existing law on contempt of courts was ambiguous, undefined, and not properly demarcated. Thus, to negate the prevailing doubts a committee was set up in 1961 under H. N. Sanyal, the then Additional Solicitor.
This committee made an all-inclusive examination of the law on contempt and its subsequent problems in the then legal set-up. These recommendations involved the need for protecting the status and dignity of courts as well as an uninhibited process of administration of justice. These recommendations got incorporated in the Contempt of Courts Act, 1971.
Even though there is no explicit definition of contempt of Court but section 2(a) of this Act defines contempt of Court to mean civil contempt or criminal contempt.
- Civil contempt: Section 2(b) defines civil contempt as willful disobedience to any judgment, decree, direction, order, writ, or any other process of a court or willful breach of an undertaking given to a Court.
- Criminal Contempt: According to section 2(c), criminal contempt means the publication of any matter or the doing of any other act which:
- scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court, or
- prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
- interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
The publication can be by spoken or written words, or by signs, or by visible representation or through any other such manner.
Section 3 states that innocent publication and distribution of matter is not contempt. Section 4 provides that fair and accurate report of a judicial proceeding is not contempt. Section 5 states that a fair criticism of a judicial act is not contempt.
Section 10 empowers every High Court to punish for the contempt of its subordinate courts. Punishment for contempt is enshrined under section 12.
Section 14 states that procedure in case the contempt is in the face of the Supreme Court or a High Court.
Section 15 empowers the Supreme Court and the High Courts to take cognizance of criminal contempt.
Article 129 and 215 of the Indian Constitution confer upon the Supreme Court and the various High Courts, respectively, the status of a court of record. With this status comes the power to punish for contempt of itself. Article empowers the Supreme Court and High Court respectively to punish people for contempt. It is pertinent to note here that powers to punish for contempt under Art. 129 and 215 are not subject to Article 19(1)(a).
The legal boundaries as to how contempt of court was to be treated were devised by the various judgments surrounding it as well. Some of them are:
- Surendra Nath Banerjee v The Chief Justice and Judges of High Court at Fort William (P.C. 1888)
In this case, the Privy Council observed that “a High Court derives its power to punish for contempt from its own existence or creation. It is not a power, conferred upon it by law.”
- Legal Remembrancer v Matilal Ghose [ILR 41 Cal 173]
In this case, the Calcutta High Court explained the distinction between civil and criminal contempt and their fundamental character. Criminal contempt offends the public and consists of conduct that offends the majesty of law and undermines the dignity of the court. Civil contempt consists of a failure to obey the order, decree, direction, judgment, writ, or process issued by courts for the benefit of the opposing party.
- State v Padma Kant Malviya and Anr., AIR 1954 ALL 52
This was one of the earliest landmark cases in which it was opined that the legislation had no power to define contempt of court. Only a court of record could do so. Only such courts had the exclusive power to define and determine what would constitute its contempt. It was also held that the Parliament could legislate concerning substantive law of contempt of the Supreme Court and High Courts subject to the following three limitations:
- Contempt cannot be abrogated, nullified, or transferred to another body, except by constitutional amendment.
- It cannot stultify the status and dignity of the court.
- It cannot impose unreasonable restrictions on the right of a citizen’s freedom of speech and expression.
This had an influence on subsequent cases including Supreme Court Bar Association v Union of India & Anr [(1998) 4 SCC 409] and T. Sudhakar Prasad v Govt. of A.P. and Ors [(2001) 1 SCC 516]. These cases spoke about the court’s constitutional power to punish for its contempt.
- P. N. Duda v V. P. Shiv Shankar & Others, 1988 AIR 1208
In this case, the Hon’ble Supreme Court observed that the judges cannot use the contempt jurisdiction for upholding their own dignity. Our country is a free marketplace of ideas and there can be no restriction in criticizing the judiciary unless this criticism hampers the ‘administration of justice’.
- In Re Arundhati Roy, 2002 AIR (SCW) 1210
In this case, the Apex Court observed that fair criticism on the conduct of a Judge or the institution of Judiciary and its function may not amount to contempt if it is made in good faith and public interest.
Critically analyzing the legal aspects of contempt of court involves an overlook of how both the legislation and judiciary have influenced the means and modes of treating contempt of court. There can be no doubt that the impetus of contempt jurisdiction is to uphold the dominion and dignity of the Courts of law. It is to ensure that the image of the courts in the minds of the public is in no way simmered down. If by obstinate words or writings, the common man is led to losing his respect for the judge or the Court of law, then the credibility of courts is tumultuously shaken.
It is pertinent to understand the difference that the very essence of law governing contempt protects the seat of justice more than the person sitting on it. The jurisdiction to punish for the contempt of court also borders on two fundamental rights namely, the right to personal liberty and the right to freedom of expression. It is safe to say that the provisions of the Contempt of Court Act, 1971 are intra-vires the Constitution. This is because Article 19(2) provides for reasonable restrictions on freedom of speech. It explicitly states contempt of court as one of the restrictions. But this aspect is still debatable as balancing freedom of speech and expression and distinguishing it from contempt is not an easy line to tread upon. There is no strict jacket test to determine the same. This is because every case has a different set of facts and circumstances and thus cannot be judged based on a strict uniform formula.
It is important to keep in mind that apart from the statutory provisions, the Hon’ble Supreme Court has over the years through its various judgments has established what would form as contempt of court. However, this does not exempt the current legislative framework of its lacunas. More than often, the absolute discretion vested in the courts to determine contempt has been met with criticism. The loopholes regarding discretion need to be attended to.
The judiciary must be efficient enough to distinguish between contempt of court and contempt of judge. The provision for punishments in the legislative enactments should be a last resort and not the priority. The requirement of second opinions of committees or judicial authorities should be encouraged.
It is extremely pertinent for us to understand that the law of contempt is not to provide a cloak for judicial authorities to cover up their inefficiency nor is it to stifle criticism made in good faith against them. This is why it is essential to undertake due diligence while addressing an issue of contempt. Administration of justice cannot be efficacious unless reverence for it is fostered and maintained.
Any action of disregard which impedes the justice delivery system from working constructively must be sanctioned. The object behind such a sanction must be to prevent further indulgence in such activities. The requirement of such law was inevitable and has proved beneficial in the establishment of an independent and impartial judiciary. The existence of such courts must be supplemented with the trust and confidence of the public.
For if the common people lose their faith in the courts, then the courts also lose their meaning. One cannot also ignore the fact that there remains a conflict between contempt of court and the freedom of speech and expression. The borderline between these two concepts often gets blurred and needs to be trodden carefully. Hence, it is at the hands of the judiciary along with the prompt aid of the legislature to maneuver through such obstacles and ensure they uphold the dignity of courts immaculately and ceaselessly.
Author: M. Karnikka from Tamilnadu Dr. Ambedkar law university, School of Excellence in Law, Chennai.
Editor: Shalu Bhati from Campus Law Centre, Faculty of Law, University of Delhi.