This Article is written by Anurag Choudhary student of Delhi University.
Contempt as a term in the legal parlance refers to the offence of demeaning the authority and sanctity of a Court of law. It aims to protect judicial institutions from tendentious attacks and unwarranted criticism which might tarnish its image in public.
Interestingly, the expression “contempt of Court” is not defined in the Constitution but several Constitutional provisions related to it. For instance, under Article 19(2), contempt of Court is one of the reasonable restrictions on freedom of speech and expression. Furthermore, Article 129 and Article 215 confers on the Supreme Court and the High Courts respectively, as “Court of record”, the power to punish for its own contempt. Additionally, Article 142(2) empowers the Supreme Court to investigate and punish anyone for its contempt. This concept has lately come in vogue, owing to multiple cases of contempt filed against eminent activist-advocate Prashant Bhushan and comedian Kunal Kamra among others.
KINDS OF CONTEMPT
The Contempt of Courts Act, 1971 gives statutory backing to the idea of contempt and classifies it into two types;
- Civil contempt and
- Criminal contempt.
Civil contempt means wilful disobedience of any judgment, decree, direction, order or writ of a Court. Criminal contempt on the other hand means the publication of any matter or performance of any which:
- Scandalises or tends to scandalise or lower or tends to lower the authority of any Co
- Prejudices or interferes with the due course of any judicial proceedings.
- Interferes or tends to interfere with, obstructs or tends to obstruct the administration of justice in any other manner.
According to this Act, punishment for contempt of Court includes imprisonment for up to six months and/or a fine up to Rs. 2000. However, the offender may be discharged or the punishment awarded may be remitted on an apology being made to the Court’s satisfaction. In keeping with this, the Supreme Court even awarded a nominal fine of Rs. 1 on Prashant Bhushan for having refused to apologise. However, some experts opined that the issue was unnecessarily dragged and was a self discrediting exercise.
JUDICIAL DECISIONS REGARDING CONTEMPT
There have been several instances in the past where the Court, through its decision, has demarcated the institution and the scope of contempt proceedings. For example, in Bramha Prakash Sharma v. State of Uttar Pradesh case, the Supreme Court held that, an ual intervention in the administration of justice was not necessary for constituting contempt and even a defamatory remark jeopardising the judicial proceeding would be a sufficient ground. Similarly, in PN Dua v. Shiv Shankar and others, the Supreme Court held that merely a criticism of the Court does not amount to contempt.
Moreover, in the case of Baradnath Mishra v. The Registrar of Orissa High Court, judgment the Court said that it must be clearly determined whether the contempt case is due to the disparaging of a judge in its official capacity or in its individual capacity. In the latter case, the judge can exercise his personal remedies but the Court cannot constitute a case of contempt. Lastly, in Pritam lal v. High Court of M.P case, the Supreme Court held that it is the duty of the Court to punish the offender in order to preserve its dignity and the purity of the judicial proceedings.
EXCEPTIONS TO CONTEMPT OF COURT
Despite the strict limitations on the voicing of opinions or dissent on judicial affairs/proceedings there exist some considerable exceptions and relaxations. As such some publications are not considered as contempt. They are as follows:
- Any correct, honest and unbiased reporting of judicial proceedings do not amount to contempt.
- Once a case has been closed and the verdict pronounced, any fair criticism on the merit of the order does not constitute contempt.
- Interestingly, if any defamatory attack has been made on the judge which does intend to interfere with the Court and its proceedings or administration is exempted from contempt.
- In 2006, the Contempt of Courts Act was amended to introduce “truth” as valid defence against the charge of contempt, if it was in the larger public good and was disclosed in good faith.
PROBLEMS WITH CONTEMPT OF COURT
Although the law of contempt aims to preserve the judicial sanctity and the majesty of the Courts, many a times it is criticised for restricting Article 19 (freedom of speech and expression) enshrined in the Constitution. It stifles the voices of dissent, censors free speech and makes the judiciary too insular. Rather it indicates that the judiciary is superior and an infallible institution.
Constructive criticism and differences of opinion are the basic tenets of a democratic society and if this gets suppressed, it would be detrimental for a free society. Some experts argue that the offence of scandalising the Court is too subjective and depends on the judgment of a person. Hence, there are chances of arbitrary use of powers. Moreover, it is also criticised as reminiscent of British colonialism in India, given that contempt laws have been abolished from the United Kingdom itself. Besides, the ambit of contempt is very wide and can be instituted against anyone because of the suo motu power vested in the Courts.
Importantly, in such cases even the prior consent of the Attorney General of India is not required. Furthermore, it is argued that the law of contempt violates the law of natural justice. According to the latter, no one should be a judge in their own case but contempt power allows the Courts to judge and pronounce judgments in its own case. Additionally, a person convicted for criminal contempt can file a review petition but his plea is decided in chambers by the bench usually without allowing the convict to defend himself. Lastly, but importantly, it is sometimes misused to blackmail the executive as a result of which the smooth functioning of administration is hampered.
REVIEW BY LAW COMMISSION
In order to examine the relevance of Contempt of the Courts Act, 1971 the Department of Justice told the Law Commission to prepare a report on the need for effecting certain changes to the . However, the report negated the need for any amendments for the following reasons:
- Firstly, a large number of civil and criminal cases are pending in the Courts which shows the necessity of this A Besides, amending the law of contempt may reduce the majesty of the Court and the veneration which people have for it.
- Secondly, the Articles 129 and 215 of the constitution empower the Courts to punish for its contempt. Therefore, mere amendments or deletion of provision from the would be ineffectual.
- Thirdly, the accounts for the contempt cases of the subordinate Courts as well. Any amendment would make these Courts suffer for there would be no means to address their contempt cases.
- Fourthly, abolishing the offence of scandalising the Court in India would leave a legislative gap.
- Lastly, the provisions clearly indicate that not all cases of contempt lead to prosecution. It has adequate safeguards to exclude unnecessary contempt cases. Moreover, it has stood the test of judicial scrutiny for almost 50 years and hence amendment is unwarranted.
POSSIBLE CORRECTIVE MEASURES
Various measures are suggested to reduce the ambiguity and the arbitrariness of the law of contempt while at the same time maintaining its effectiveness. It is argued that the law confers discretionary powers and to check its misuse, it should be made more specific and principled. For instance, the words “any other manner” mentioned in Section 2 (c) (iii) of the Contempt of Courts Act, 1971 is limitless in nature and therefore should be either deleted or amended.
Furthermore, the power to punish for contempt must be exercised only after a thorough investigation and evaluating all possible repercussions. Besides, there should be an independent panel to check for the arbitrary and malicious usage of Contempt of Court power. Also the element of mens rea (a legal term meaning to say “a criminal being of mind”) should be incorporated in the to prove the guilt of a convict in cases of criminal contempt.
The law of contempt is a powerful tool and a boon if used wisely, but a bane if used arbitrarily with a malicious intention. Though the need to protect the Court’s majesty is important, that cannot be on the grounds of blatant infringement of freedom of speech and expression, especially in a democracy. Thus, it is important to distinguish between constructive criticism and disparaging remarks. In the wake of contempt, reasonable and legitimate disagreements should not be stifled.
- Contempt of Court, DRISHTI IAS (Aug 20, 2020) https://www.drishtiias.com/daily-updates/daily-news-analysis/contempt-of-Court-3.
- Express web desk, What is contempt of Court?, THE INDIAN EXPRESS, Nov 12, 2020https://www.thehindu.com/news/national/the-hindu-explains-what-is-contempt-of-Court/article32249810.ece.
- K Venkataramanan, What is contempt of Court?, THE HINDU, Aug,02,2020https://www.thehindu.com/news/national/the-hindu-explains-what-is-contempt-of-Court/article32249810.ece.
- Scandalising the Courts: A ground for contempt, DRISHTI IAS https://www.drishtiias.com/daily-updates/daily-news-analysis/scandalising-the-Courts-a-ground-for-contempt.