Contempt of Court in India: An Overview
I.
Abstract
The judgment on Prashant Bhushan’s tweets, which were
directed towards the former Chief Justice of India, Shri Sharad Arvind Bobde,
and the events that have followed this tweet has kindled a debate on the
cardinal concept of Contempt of Court, especially that of Criminal Contempt of
Court. Post this judgment it was witnessed that there were a series of requests
forwarded to the Attorney General of India for providing his consent for
initiation of Contempt of Court proceedings against various individuals[1].
The concept of contempt was in detail delved by Lord
Hardwicke L.C. in the year 1742 where he derived that there were broadly three
types of situation which could attract contempt proceedings; i) One
kind of contempt is scandalizing the court itself; ii) Abusing the parties who
are concerned in the causes here; iii) Prejudicing mankind against persons
before the cause is heard[2].
Whenever there is any conscious attempt to scandalize
the court, one needs to understand that it hits the confidence of the litigant
public, and this challenges the fair procedure of the judiciary. It also
creates a setback for the idea of rule of law, if a court allows a lawyer or a
litigant to malign a judge just to get orders in his favor, the judicial system
of that country is compromised at that very instance.
The article has tried addressing certain basic
questions that evolve around the concept of Contempt of Court. The origins of
this concept in India and the legal updates that have been followed. The
article has also analyzed the inherent powers of the Constitution. The article has
also tried analyzing the distinction between Criminal Contempt of Court and
Defamation. The article has also analyzed the Law Commission report on the need
for Criminal Contempt of Court.
Keywords- Criminal Contempt, Defamation, Free Speech,
Scandalize the court and Inherent contempt powers.
II.
Historical background of Contempt of Court in India
The origins of the contempt of court lie in the
pre-independence era in the 19th century. After the East India
Company took charge of India, a charter was issued by the King of England to
set up corporations in presidency towns. Initially, the Mayor courts were only
established in Calcutta, Madras, and Bombay. They were all covered under the
ambit of the Charter of 1726.
The courts in Madras and Bombay were superseded as the
recorder's court and in Calcutta as the Supreme Court. The recorder courts were
also later abolished and replaced with Supreme Courts and they all shared similar
powers of Contempt as practiced by the Supreme and Recorder courts in England[3].
These courts were then replaced by High Courts under the Indian High Courts Act
of 1861. These courts had inherent powers to initiate and preside over contempt
proceedings[4].
Till the year 1926, the powers of Contempt were interpreted
by the courts themselves in comparison to courts powers in England. However,
the first statute on the subject was introduced in the year 1926 as the
Contempt of Court Act, 1926[5].
This act defined the powers of the courts to initiate a contempt proceeding.
This act was later repealed in the year 1952 and was
superseded by the Contempt of Courts Act 1952[6].
This act was introduced to broaden the ambit of the term “Courts” in the
legislation and hence it included Courts of Judicial Commissioner as well as
Chief Courts. This was the period just after independence when the country was
going through major constitutional changes. It was observed that laws related
to contempt as per the established act were vague and ambiguous.
Recognizing this issue, a bill was tabled on April 1,
1960, to amend the existing contempt laws in the country. A special committee
was created after this in the year 1961 under the chairmanship of Shri H.N.
Sanyal, the Assistant solicitor general of India that time. The committee,
after analyzing the act, submitted its suggestions and recommendations in 1963.
The report was universally accepted by the government
and it was later sent to the Joint Select committee for ratification. They suggested
certain changes including introducing the idea of a limitation period on
initiation of contempt proceedings. Finally, in the year 1971, the government
introduced the Contempt of Courts Act, 1971[7].
The act divided the concept of Contempt into two
sections:
i) ‘Civil Contempt’ and ii) ‘Criminal Contempt.’
The act limited the powers of issuing contempt proceedings
to the Supreme Court and the High courts. The act highlighted that fair comments
and criticism shall not be equated with contempt. Section 2 makes this
clarification and defines contempt of court.
Civil contempt generally means willful disobedience of
an order, direction or any other order of the court or process of the court
whereas Criminal Contempt refers to the publication of any matter through any
means which:
1)
scandalizes or tends to scandalize or lowers or tends to lowers the authority
of, any court; or
2)
prejudices, or interferes with, the due course of any judicial proceedings; or
3)
interferes or tends to interfere with, or obstructs or tend to obstruct, the
administration of justice in any other manner[8];
Section 10 empowers the High Court to initiate
contempt proceedings for subordinate courts. Section 12 prescribes the
punishment and sections 14, 15 lays down the procedure that shall be involved
when a contempt proceeding is initiated. Section 16 also includes under its
ambit, the scope of contempt through any judge or magistrate, or any judicial
person.
III.
Constitutional provisions relating to Contempt of
Court
The constitution recognizes the Supreme Court and the
High Court as the court of record and hence also provides inherent powers to
punish for contempt of court. Article 129 states, “Supreme Court to be a court of record The Supreme Court shall be a
court of record and shall have all powers of such a court including the power
to punish for contempt of itself”[9].
The High Courts have similar powers under Article 215
of the Constitution. The term Court of record has not been defined under
article 129 or any other article in the constitution, however, it was clarified
by the Supreme Court in the judgment of Delhi
Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat[10]
that any court whose actions are enrolled for a “perpetual memory and testimony” is considered as the court of
record and such court shall also have the powers to initiate contempt
proceedings.
These courts are required to maintain a record of the
proceedings, these are presumed to be accurate and cannot be impeached, as per
the Black’s law dictionary. The second important constitutional provision that is
especially important is the conflict between article 19 and the concept of
contempt of court as a reasonable restriction on article 19.
Article 19(1)
(a) of the constitution defines the freedom to the citizens, however, these are
not absolute in nature and are subject to article 19(2) i.e. reasonable
restrictions on freedom. Contempt of Court is also considered as one of the
reasonable restrictions to maintain the dignity of the court and to ensure that
no one interferes with ‘administration of justice.’
There have been various judgments that have upheld the
judicial scrutiny of Contempt as a reasonable restriction on freedom of speech.
In the case of Aswini Kumar Ghose &
Anr. v. Arabinda Bose[11],
the court mentioned that a fair comment or a fair criticism made in good faith
of any judgment is accepted and is an exception under the Contempt act.
However, if there is any attempt to impute that judges
of the court and their decisions depend on the consideration they get, this
will be a clear contempt of court. The right to free speech under no
circumstances includes the right to commit contempt of court.
The last constitutional provision related to Contempt
of Court is defined under Article 142(2). This section is not covered under the
ambit of the Contempt Court Act, 1971, and is part of the inherent powers of
the Supreme Court. It states that the Supreme Court, with subject to the
provisions of any law, has the power to order the attendance of any person or
document, and has the power to investigate or punish the accused under Contempt
of Court.
IV.
Criminal Contempt of Court or Defamation?
Senior advocate of the Supreme Court Shri Dushyant
Dave while arguing for his client Mr. Prashant Bhushan stated that the actions
of his client are mere libel or defamation, and are not as grave as contempt of
court. The conflict of these two terms has been always in question and this has
also brought into question whether a remark on a Judge in his or her capacity
is also Contempt of Court.
Defamation is defined under section 499[12]
of the Indian Penal Code, 1860. To understand whether remarks on a judge are
covered under Contempt of Court or Defamation, or both, it is important to
understand the objective of both the provisions. The broader intention of
Contempt of Court is to maintain the dignity and respect of the court in
society.
It covers comments made on the Supreme Court as well
as the judges subject to the conditions of Criminal Contempt of Court. The
reason being that comments or allegations like such hampers the public
confidence in the institution as a whole and raises questions in their minds
which eventually leads to disruption of the administration of justice.
It was further clarified in the case of the Delhi Judicial Service Association, Tis
Hazari Court, Delhi V. State of Gujarat, and Ors[13],
where the court mentioned that it can include anyone who tends to interfere or
tries to lower the authority of the court. The judgment highlighted that the
courts are provided with the duty of looking after public interest and hence it
is important that the court shall be given the power of contempt of court. The
objective is not to preserve the dignity of the court but to ensure that the
administration of justice is not interfered with, obstructed, or perverted.
The objective of defamation on the other hand is vastly
different, under this provision of law, the idea is to prevent an individual
from maliciously maligning anyone else’s reputation which is an especially
important aspect of article 21, which is Fundamental Right to Life. For
criminal defamation, there must be an imputation where the objective should
have been to harm the reputation of the person or even cause to harm the
reputation of an individual.
Coming back to the case of Prashant Bhushan, where his
counsel relied on the judgment of Brahma
Prakash Sharma and Others vs The State of Uttar Pradesh[14],
where a clear distinction was made on the actions that a judge could take in a
situation like this. The court clarified in this judgment that there is a distinction
between a remark that has been made on a Judge in his capacity and comment on
his judicial capacity.
The former would lead to libel or defamation at large,
however, the latter would lead to Contempt of Court, howsoever it is for the
judge to decide how to proceed for the same. If the remark in any way tends to
create any apprehensions among an average mind regarding the credibility of the
institution or by any means if it tends to interfere in the administration of
justice, that remark will be considered as contempt of court.
The
confusion of the same was again cleared by the Supreme Court in the case of S. Mulgaokar[15],
where the Supreme Court mentioned, “The third principle
is to avoid confusion between personal protection of a libelled judge and
prevention of obstruction of public justice and the community's confidence in
that great process. The former is not contempt, the latter is, although
overlapping spaces abound.
30. Because
the law of contempt exists to protect public confidence in the administration
of justice, the offense will not be committed by attacks upon the personal
reputation of individual judges as such. As Professor Good hart has put it:
Scandalising
the court means any hostile criticism of the “judge as a judge; any personal
attack upon him, unconnected with the office he holds, is dealt with under the
ordinary rules of slander and libel.
Similarly,
Griffith, C. J. has said in the Australian case of Nicholls (1911) 12 C.L.R.
280 that:
In one sense,
no doubt, every defamatory publication concerning a judge may be said to bring
him into contempt as that term is used in the law of libel, but it does not
follow that everything said of a judge calculated to bring him into contempt in
that sense amounts to contempt of Court."[16]
It was also
observed in various other judgments like Haridas Das vs. Smt. Usha Rani Banik
and Ors. And Apu Banik[17], that there
could be a possibility that sometimes a comment might be libelous to a judge
individually, but it might also be a possibility that such a remark could be
contemptuous depending on the gravity of the remark and if it tends to lower
the authority of the court. This is one of the reasons that in the case of Mr. Prashant
Bhushan, the Supreme Court recognized that the tweet was in the judicial
capacity of the Judge and not in his capacity, and hence it was not adjudged
under the ambit of defamation, but a case of contempt.
Hence it
is noticeably clear that two simultaneous proceedings can also be initiated in
a case depending on the facts of the cases. The discretion solely lies with the
Judge to decide whether the adjudication shall be for Defamation or Contempt,
or both.
V.
Criminal Contempt of Court and the Law Commission
report
The idea of the Criminal Contempt of Court has always
been in debate and has always been construed as an unreasonable restriction on
free speech. Adding to this discussion the department of Justice submitted a
reference to the Law Commission of India on 8th March 2018 to
examine the amendment to the Contempt of Courts Act, 1971.
The reference was submitted and an amendment was
proposed that the Contempt of Court Act shall only be limited to Civil Contempt
and the later part which deals with ‘Criminal Contempt’ shall be repealed.
After examining the whole issue the commission submitted the report which was
maintained under the chairmanship of Justice B.S. Chauhan.
The paper has analyzed various jurisdictions including
the ones where the Criminal Contempt of Court is abolished. The paper has
addressed various issues that were there with the Criminal Contempt and has produced
the conclusion that the section shall not be amended as the need for that part
exists even today. The report clarified the following points:
1.
The
need for Criminal Contempt even continues today because of the high number of pending
criminal contempt cases in our country. As per this record, before the report,
there were around Civil (96, 993) cases and Criminal (583) cases pending in
High Courts and the Supreme Court[18].
The high number of cases justifies that the relevance of the act sustains
because the authority of the court shall not be lowered. The commission also
mentioned that changes in the definition will lead to a reduction in courts'
authority.
2.
The
second clarification was concerning the analogy that is being made concerning
the abolition of Contempt laws in the UK. The commission mentioned that there
were two broad differences in the situations of India and the UK. Firstly, the
number of cases in India was remarkably high as compared to the UK, where the
last case of ‘Scandalizing the court’ took place in 1931. The second
being that even after the amendment in the UK, the term ‘Scandalizing the
court’ is still covered in the Public Order Act, 1986 and Communication
Act, 2003[19].
3.
More
importantly, the commission clarified that the powers of contempt are not
because of the Contempt of Court act, 1971 but because of the Constitutional
Scheme. They clarified this by quoting various cases. In the judgment of Pritam
Pal v. High Court of M.P. Jabalpur[20],
the court clarified that the contempt jurisdiction of the Supreme Court and
various high courts can be regulated through the introduction of legislation,
but the inherent powers of the Supreme court and High courts in terms of
Contempt are already defined under article 129 and 215 of the constitution.
These cannot be in any way taken away through the means of legislation. The
broad point that the commission was trying to highlight was, even if the Contempt
of Courts Act is amended, the Supreme Court can always use its inherent powers
to issue such proceedings.
4.
Adding
to the third point the commission also highlighted that if the definition of
the Contempt is amended through the act, there will be more ambiguity because
the Supreme Court will use their inherent powers to issue contempt, and the
interpretation will be more complicated. It is important to understand that
legislation is there to ensure the procedure of the proceedings, however, if
the Supreme Court uses their inherent jurisdiction, they just need to ensure
that there shall be a free and fair trial.
Analyzing the act and the inherent powers of the Court,
the commission stated that the act has clearly passed the judicial scrutiny and
the existence of this section is also necessary, and hence an amendment is not
required. The courts can although ensure safeguards that there is no misuse of
this power but an amendment would attract chaos rather than clarity.
VI.
Concluding Remarks
It is already established that the Rule of Law is part of the basic
structure of the constitution and it also includes, among other things, the
right to justice through the judicial process. This can only happen if the
administration of justice is not meddled with in any way. This is one of the
most important aspects of a civilized society.
This is the reason that the Judiciary, being the guardian
of rule of law, is provided with powers related to contempt. After analyzing
the law commission report one thing is noticeably clear, which is the need for
criminal contempt of court in India to maintain the authority of the court and
respect in an average citizen’s mind. There shall be some provisions that
address the misconduct of litigants or lawyers, or anyone who tends to
interfere with the administration of justice or scandalizes the court.
The distinction of Defamation and Criminal Contempt of
Court has also been made noticeably clear and it lies on the wisdom of the
Judge to choose how to proceed in the matter depending on the merits and facts
of the case.
There is a need for Criminal Contempt of Court in
India in the present times and any changes in the definition of the act would
lead to a more ambiguous situation, and hence no amendment of Criminal Contempt
of Court is required. More importantly, as was highlighted by the Law Commission,
even an amendment in the act of 1971 could not stop initiating proceedings of
criminal contempt as the powers are inherently derived from the constitution
and not the act.
[1] How Prashant Bhushan’s case
triggered a slew of requests to AG Venugopal for contempt, ,
https://www.barandbench.com/columns/litigation-columns/contempt-of-court-supreme-court-prashant-bhushan-attorney-general-consent
(last visited Apr 25, 2021).
[2] Read v. Huggonson, (1742) 2 Atk. 469.
[3] Report of the Committee on
contempt of courts, February 1963, ,
https://dspace.gipe.ac.in/xmlui/handle/10973/33748 (last visited Apr 27, 2021).
[4] Ibid.
[5] coca1946228.pdf,
http://www.asianlii.org/mm/legis/laws/coca1946228.pdf (last visited Apr 27,
2021).
[6] Report274.pdf,
https://lawcommissionofindia.nic.in/reports/Report274.pdf (last visited Apr 25,
2021).
[7] Contempt of Courts Act, 1971, An Act to define and limit the powers of
certain courts in punishing contempts of courts and to regulate their procedure
in relation thereto. (1971),
http://indiacode.nic.in/handle/123456789/1514 (last visited Apr 27, 2021).
[8] Id.
[9] Article 129 in The Constitution
Of India 1949, https://indiankanoon.org/doc/927019/ (last visited Apr 27,
2021).
[10] Delhi Judicial Service Association, Tis Hazari Court,
Delhi v. State of Gujarat,
AIR 1991 SC 2176.
[11] Aswini Kumar Ghose & Anr.v. Arabinda Bose,
AIR 1953 SC 75.
[12] Section 499 in The Indian Penal
Code, , https://indiankanoon.org/doc/1041742/ (last visited Apr 27, 2021).
[13] Supre note 9.
[14] Brahma Prakash Sharma and Others vs The State of Uttar
Pradesh, 1953 SCR 1169.
[15] S. Mulgaokar, AIR 1978
SC 727.
[16] Criminal Contempt Of Court And
Criminal Defamation – Initiation Of Simultaneous Proceedings : Yes Or No -
Litigation, Mediation & Arbitration - India, https://www.mondaq.com/india/libel-defamation/549642/criminal-contempt-of-court-and-criminal-defamation-initiation-of-simultaneous-proceedings-yes-or-no
(last visited Apr 26, 2021).
[17] Haridas
Das vs. Smt. Usha Rani Banik and Ors. And Apu Banik, MANU/SC/3005/2007.
[18] LCI Report Summary Contempt of
Court_For Upload.pdf, ,
https://prsindia.org/files/policy/policy_committee_reports/LCI%20Report%20Summary%20Contempt%20of%20Court_For%20Upload.pdf
(last visited Apr 25, 2021).
[19] Id.
[20] Pritam Pal v. High Court of M.P. Jabalpur,
AIR 1992 SC 904.
Comments
Post a Comment