Is “Contempt Of Court” Used As A Weapon By Supreme Court To Preserve Its Honour?

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Abstract

The main aim of “contempt of court” is to protect the dignity and authority of the Courts as it tries to guarantee that there is fair administration and delivery of justice. But, the interpretation regarding the law of contempt has been sometimes seen to be arbitrary in nature as a result of which the “Court of records” couldn’t really draw a line and there have been instances when the Courts have mistakenly infringed the fundamental rights of people in its attempt to preserve its honour. When the law regarding civil contempt is precise in nature it is the ambiguity in the words like “scandalising or lowering the authority of the Court”[1] which is used while defining criminal contempt that has resulted in the Courts of records to self-doubt its own image as a result of which there has been a number of times that the line between freedom of speech and acts which are contemptuous in nature has become blurred. Thus, this research encourages the need to lay down proper guidelines and measures to be able to do away with the indefinite field of criminal contempt.

Keywords: Dignity, freedom of speech, criminal contempt, scandalising, contemptuous

Introduction

It is essential to draw a particular distinction between the fundamental right of Freedom of Speech under the Constitution[2] and the law regarding Contempt of Court in India. Contempt is generally of two types; one is civil contempt while the other is criminal contempt. While civil contempt is necessary for Supreme Court so to make his law binding and it can be said to be a weapon which can be used to enforce its orders therefore civil contempt becomes essential to maintain judicial independence but there lies the problem in criminal contempt as the definition provided is too wide and can have several interpretations.

It is because of the nature of ambiguity present in its definition that the Courts many a times have failed to maintain a proper distinction between separation of powers and judicial independence as a result of which there arises a conflict in maintaining a healthy democracy. Therefore, this research would primarily focus on where does the line between the fundamental right of freedom of speech and the law regarding Contempt of Court gets blurred such that this lacuna be removed from our justice system.

Nature Of The Law Of Criminal Contempt

As previously mentioned Contempt of Law can be characterized as civil or criminal in nature. Civil Contempt can be said to be invoked only for the purposes of enforcing court orders or to force obedience[3] as a mode of preserving Court’s dignity and this kind of power is essential for the Courts to make sure that everyone complies with the Court orders or that the offender understands the importance of such orders. The constitution too upholds that the law as per Supreme Court judgements will be treated as the law of the land and thus will be binding on all court under Art 141. Therefore, to maintain the essence of judicial independence, civil contempt is of great importance. But, it is the law of criminal contempt that uproars controversy because of its wide interpretation. The main aim of this criminal contempt is to save the courts from any kind of verbal abuse on the whole image of the judiciary[4]. Basically the purpose of this law is to save the sanctity of the judiciary from any verbal or written attack which either scandalises or tends to lower the authority of the Courts thereby making law on criminal contempt quasi-judicial in nature[5].

Under Article 129 and 215 of the Indian Constitution both Supreme Court and High Court have the powers to punish for their own contempt and that of lower judiciary which was formerly regarded as inherent powers of the Court of Records[6]. But to properly define the powers of the Courts of records regarding punishment for contempt cases[7], Parliament enacted the Contempt of Courts Act, 1971.

Unlike other criminal trials, contempt proceedings take place between the Court and the contemnor[8] and are summary in nature. Now, contempt proceedings can be said to be initiated by three ways-

1)  High Court or Supreme Court can take suo moto actions either independently or on the application by someone private.

2) Request by the Attorney general to the Courts to initiate proceeding against the contemnor.

3) After getting permission from the Attorney General, a third person can apply to the Courts for it to take action against the contemnor.

Therefore, as per the definition of Criminal contempt under Section 2(c) (i) of the Contempt of Courts Act (hereinafter referred as the ‘said act’), it can be said to be any act of publication which can be through words or written which can be through signs and invisible representation as well which is in the nature of scandalizing or lowering down the authority of any court. Therefore, this act tries to channel down the power which is derived by the Court of Records as a result of Article 129 and 215 of the Indian Constitution[9]. Further section 228 of the Indian Penal Code also prescribes punishment for acts of contempt. Further under Article 145 of the Constitution of India read with section 23 of the said Act, the courts of records have the power to make rules regarding the procedural aspect of contempt.

Relation between Criminal Contempt and Free Speech

Now, the controversial aspect which arises in most contempt cases is whether it should fall under contempt of court or it gets the requisite protection under Article 19(1)(a) of the Indian Constitution which ensures freedom of speech and expression. But, in recent times, Court has been using contempt as a shield to protect its honour thereby several acts has been construed under Article 19(2) of the Indian Constitution which talks about reasonable restrictions which means that fundamental rights are not absolute subject to the limit established for the benefit of the society[10]. In India, an effort is being made to balance between both the law on contempt and the right of freedom of speech as the Indian Courts feel like nobody has the right to disregard the Court orders under the cover of exercising his freedom of speech so it has been held by the Courts in numerous judgements that both arenas are equally important and thus the dilemma arises because there’s the need for balancing both the abovementioned fields.

Ambiguity in the Language of Criminal Contempt

As per the definition Criminal Contempt can be said to be any act of publication which can be through words or written which can be through signs and invisible representation as well which is in the nature of ‘scandalizing or lowering down the authority of any court’. Therefore it’s the words ‘scandalising’ and ‘lowering down the authority of any court’ which is prone to misuse because of its wide ambit and time and again courts have tried to interpret of what all acts will come under this terminologies and in many such scenarios it has amounted to gross injustice has the Courts have infringed the fundamental right of speech and expression. In the case of DC Saxena v Hon’ble The Chief Justice of India[11] it was held that acts such publications which are defamatory in nature[12] as against a judge or any judicial institutions[13] will be regarded as acts lowering the authority of Courts. For the purpose of making sure that the Courts doesn’t hinder with the fundamental right of freedom of speech an amendment was introduced in the said act in the year 2006 wherein Section 13 came into existence which states that there must be presence of certain circumstances which would ensure that the case would not fall under contempt of court. Firstly, if the contempt considerably interferes with the course of justice and secondly that there must be a justification of truth with the act done which must be in the interest of public and the reason for initiating the defence must also be bona fide by nature.

Loopholes in Indian Justice System

Now, Indian Judiciary is in a constant attempt of maintaining a favourable public perception[14] as a result of which it has been mixing up the line between defaming a particular judge and contempt of court. Therefore, the law on criminal contempt is suffering from several loopholes which this research is going to address one by one. The first loophole is regarding his disability in drawing a distinction between defamation and contempt proceedings as a result of the ambiguity in its terminologies.

  1. Disability in distinguishing which are contempt proceedings.

 Courts has been considering mere criticism of judges to be reason enough to start contempt proceedings but in reality it can be said to be violating the fundamental right of freedom of speech and expression[15].Protecting the image of the judges cannot be said to be the aim of contempt proceedings but is to make sure the dignity of the judiciary and justice system is maintained but in India the line demarcating defamation and contempt is getting more and more blurry.

The first case which started these precedents that criticizing the judges would affect the dignity of the Court was the case of Aswini Kumar Ghose [16]which was the first contempt case after India got its independence and there itself it was held that attributing improper motives to the judges would result in clear disrespecting of the dignity of the Court. Following the footsteps of this case, in C.K. Daphtary [17]the Court explained that if a scurrilous attack is made on a judge it would automatically have a negative impact on the administration of justice and this will further degrade the confidence of public in the judicial system. Similar statements were also made in the case of J. R. Parashar, Advocate [18]where too it was agreed that criticizing the motives of judges automatically sows seeds of distrust in the heads of general public regarding the truthfulness of the judiciary thereby publication of any sort which basically challenges the motives of judges is enough to order contempt proceedings. Further it was held in this case that holding a dharna as a result of which it obstructs free entry and exit can be said to be enough for obstructing admission of justice. But, from this judgement it could be stated that holding a dharna can be said to be enough to be called obstruction in administering justice but a dharna which doesn’t create any kind of hindrance for the judges and public but may cause nuisance therefore can be punished under any other laws but not necessarily contempt of the court. Similarly in case of criticizing judges, the judges can personally initiate defamation proceedings against the person making such statements[19]. For this purpose of understanding the difference between mere defamation and contempt proceedings reference can be made to the case of Perspective Publication v Maharashtra[20]where two tests were put forwarded. The first test was regarding whether the publication in question is a mere personal or defamatory attack where a judge is involved or a where a due course in administration of justice is getting interfered with. And the second test is to see whether the wrong done through the publication is done to the public or to the judge. Therefore, in this case it was cleared that if it is a mere defamation statement against a judge and that administration of justice is not hindered in any manner and no wrong is done towards the public in general therefore there shouldn’t be initiation of contempt proceedings.

But since there is no proper legislation in this regard and that the terms used in Contempt of Court Act is ambiguous this has resulted in several heterogeneous judgements which has caused more confusion in this regard. In the case of Brahma Prakash Sharma[21] it has been said that such publication regarding fairness of judges is likely to cause embarrassment for the judges while discharging his duties. Therefore, the question arises whether embarrassment which has a certain level of subjectivity enough to initiate contempt proceedings against a person and thereby it results in public dissatisfaction in the judicial system. Therefore, the difference between constructive criticism and abuse of administration of justice is still not clear or in other words which of the acts will be considered under scandalizing the Court is still not clear which could be understood from the case of Re S.K. Sundaram Suo Motu Contempt Petition[22]where the contemnor was alleged to commit criminal contempt after he challenged the post of the Chief Justice of India even after superannuation. The Court here stated that scandalizing would be defined as hostile criticism and any kind of personal attack of judges if it is connected with the office he is holding will be considered as criminal contempt. But, here too it has been not been cleared that what is meant by constructive criticism and hostile criticism.

  • Differential treatment on the basis on the type of contemnors and on the basis of the audience.

Because of the unclear provisions of the nature of the law of content, it is the precedent that has the most affect on the decisions taken by judges. But, again the heterogeneous nature of the cases that has caused more and more confusion for the general public and the Indian Judiciary. Every case has tried to interpret in its own way and sometimes proper reasoning is not been used instead Court’s have just tried to make sure that the personal image of the judges are not ruined. In the case of Puskuru Kishore Rao[23]the test of audience was developed where it was said that if it is the judiciary who is the audience or any person related to judiciary therefore, statements spoken in front of them cannot be considered as contempt except on weighty standards which won’t be the case if the audience is general public. Like in the said case the audience were judges and senior advocates thereby the speech was held to be non-contemptuous in nature. Similarly, in the case of Hari Singh Nagra[24]., since the audience consisted of lawyers and judges who were attending the function when the contemnor who criticized the judiciary was a senior advocate was held to be not contempt of court because it was not done in front of public. Again in the case of Brahma Prakash Sharma, though it was declared to be contempt but since, the contemnors were held liable because the statement was passed with the four walls of bar association and a resolution was taken so not to reveal it to the outside world.

Such distinction which was made between general public and people from legal background can be said to be flawed as it shows that the ones from legal fraternity has a much greater sense of immunity and this can be further seen when the contemnors too are from legal background. Like in the case of Vishwanath[25]where contempt proceedings were initiated against the former Chief Justice of India where he made statements regarding the deterioration of Indian Judiciary but the proceedings were dismissed on the basis that the Chief Justice expressed his sadness over the deteriorating condition of some of the judges. Similarly, in the kapil Sibal case much weightage was not given while dismissing his proceedings since he was a senior advocate but this was not the case in case of general public as in the case of Rajendra Sail[26]SC considered that as a law student he should have known the limits till which he could criticize the judgements of High Court. Similarly, in the case of Arundhati Roy[27]she was held liable for criminal contempt after her statements were held to scandalous even though her statements were quite similar to that of the Chief Justice and senior advocate referred above[28].

But, againJustice Karnan can be said to be the first sitting judge to be held guilty of contempt and had to serve a six-month prison sentence when he alleged corruption among sitting judges and also passed orders against Chief Justice and seven other judges of Supreme Court. And according to Karnan the SC does not have the right to investigate and punish judges as since judges of SC and HC are appointed by President therefore if there is any allegation against a judge it has to be under the scope of Parliament but this decision was given based on his caste[29]. And similarly contempt proceedings also took place against advocate Prashant Bhushan when he tweeted regarding the function of Indian Judiciary and also regarding the then Chief Justice of India. Therefore, there is has been instances where people from legal background has been held guilty of contempt but it has been observed that this is all according to the decision by the judges and their interpretation thus can be said to be arbitrary in nature.

  • Arbitrary interpretation according to Supreme Court

As already discussed, interpretations of Supreme Court has been held arbitrary at many a cases and especially since a judge posesses the power to initiate contempt proceedings suo motu[30]. Therefore, the judge himself can decide whether a particular person can be held liable or not or that whether a particular act can be considered contemptuous or not. Therefore this the possibility that the judges are taking out their personal vengeance on someone[31] or if it is intentionally due to someone’s caste and since the maxim of Nemo in propria causa judex, esse debet which means a person cannot be the judge in its own case does not apply in this case as contempt proceedings are between the institution of court and the contemnor[32].

Similarly, even though section 13(b) is added to the Contempt of Courts Act which states that truth can be said to act as a defence in contempt proceedings but in reality it is still discretion of the Courts as per the language of the section as it says that “the court may permit”. Like in the case of Own Motion[33]where a mid-day daily was charged for contempt when he published statements against the then Chief Justice of India and when they plead to bring evidences then case was dismissed at the very threshold proving the arbitrariness of the Court.

Again, when it was thought the parliament had the right to determine the extent of punishment for contempt proceedings [34] the Supreme Court interpreted that since nowhere in the act it is written that it would be applicable to Supreme Court as well, therefore the maximum punishment which is given as a fine of two-thousand rupees or simple imprisonment upto 6 months or both will only apply in High Courts not in Supreme Court as stated in Zahira Sheikh case[35]. Therefore, Courts have been taking advantage of not having clear provisions for interpreting differently according to the situations of the cases.

Conclusion

Therefore, it can be concluded that explicit provisions are required to get over this ambiguity present in the current law of contempt. So, the above paper has tried to showcase the evolvement of cases over the years to show where and when the courts have interpreted acts in the name of disrespecting Court’s dignity or in other words lowering the authority of courts but in the reality has been trying to maintain a favourable public perception and to make sure that public sees a proper image of the Courts and of the judges.

But, in reality that the public is gradually losing trust in the Judicial system because of the ambiguity of law and because their fundamental right is getting infringed whenever they are too speak the truth of the degrading quality of the Judicial system. Therefore, it is because of the nature of ambiguity present in its definition that the Courts many a times have failed to maintain a proper distinction between separation of powers and judicial independence as a result of which there arises a conflict in maintaining a healthy democracy and thus there is a serious need from the side of the Parliament to remove the ambiguity and create a proper legislation regarding this matter.


[1] Contempt of Court Act, 1971, § 2(c)(i).

[2] The Constitution of India, art.19(1)(a)

[3] Delhi Development Authority v. Skipper Construction, (1995) 3 SCC 507.

[4] K. BALASANKARAN NAIR, LAW OF CONTEMPT OF COURT IN INDIA 41 (1st ed., Atlantis Publication).

[5] M.P. Jain, indian constitutional law 207, 208 (Lexis Nexis Publiction ,7th ed.,2018); Sahdeo Singh v. State of Uttar Pradesh & Ors., (2010) 3 SCC 705

[6] Ganga Bhishan v. Jai Narain, AIR 1986 SC 441; E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, AIR 1970 SC 2015.

[7] 3 Suhrith Parthasarathy, “The basics for free speech”, The Hindu (Jan 30, 2016)

[8] Jaipur Municipal Corp. v. C.L. Mishra, (2005) 8 SCC 423.

[9] T. Sudhakar Prasad v. Govt. of A.P., (2001) 1 SCC 516.

[10] Bennet Coleman v. Union of India, AIR 1973 SC 106.

[11] DC Saxena v Hon’ble The Chief Justice of India, AIR 1996 SC 2481.

[12] C.K. Daphtary v. O.P. Gupta, AIR 1971 SC 1132.

[13] In re: Ajay Kumar Pandey, AIR 1997 SC 260.

[14] Rupesh Agarwal, “scandalizing the fallible institution’: A Critical Analysis of the varied judicial approach on criminal contempt”IJLPP 3.1

[15] R. v. Kopyto, 1987 CanLII 176 (ON CA)

[16] Aswini Kumar Ghose v Arabinda Bose and Anr , AIR 1953 SC 75.

[17] C.K. Daphtary vs. O.P. Gupta AIR 1971 SC 1132.

[18] J. R. Parashar, Advocate & Ors vs Prasant Bhushan, Advocate & Ors ,AIR 2001 SC 3315.

[19] Rustom Corwasjee Cooper v. Union of India, AIR 1970 C 1318.

[20] Perspective Publication v Maharashtra,  AIR 1971 SC 221.

[21] Brahma Prakash Sharma  v. The State of Uttar Pradesh , 84 AIR 1954 SC 10.

[22] Re S.K. Sundaram Suo Motu Contempt Petition , 2000 Supp. 5 SCR 677.

[23] Puskuru Kishore Rao vs. N. Janardhana Reddy, 1993 Cri LJ 115 (AP) (DB).

[24] Hari Singh Nagra and Ors. vs. Kapil Sibal and Ors, (2010) 7 SCC 502.

[25] Vishwanath vs E.S. Venkatramaih , 1990 Cri LJ 2179.

[26] Rajendra Sail vs. Madhya Pradesh High Court Bar Association, AIR 2005 SC 2473.

[27] In Re: Arundhati Roy, AIR 2002 SC 1375.

[28] Contempt of Court, available at: https://www.lawyersclubindia.com/articles/contempt-of-court-1520.asp (last visited on 20th April, 2021)

[29] Contempt case on Prashant Bhushan wrong, available at: https://www.thenewsminute.com/article/contempt-case-prashant-bhushan-wrong-retd-justice-cs-karnan-131473 (last visited on 20th April, 2021)

[30] Contempt of Courts Act, 1971, § 15.

[31] Bathina Ramakrishna Reddy v. State of Madras, AIR 1952 SC 149.

[32] Jaipur Municipal Corp. v. C.L. Mishra, (2005) 8 SCC 423.

[33]Own Motion v. M.K. Tayal and Ors, 2007 (98) DRJ 41.

[34] Contempt of Courts Act, 1971, § 12(1)

[35] Zahira Abdullah Sheikh v. State of Gujarat, AIR 2006 SC 1367.

Author: Akanksha Mukherjee

Editor: Kanishka VaishSenior Editor, LexLife India.

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