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Analyzing the Criminal Contempt of Courts-What is contempt and what isn’t?

Constitutional & Statutory Provisions for Contempt

The Rule of Law is a foundational feature of Constitution of India and the right to obtain judicial redress is a feature of its basic structure. It is through the Courts that the Rule of Law reveals its meaningful content. Protection of the administration of Justice is, therefore, as imperative as its existence for the civilized functioning of any free and egalitarian social order. The law of contempt secures public respect and confidence in the judicial process and provides the sanction for any act or conduct which is likely to destroy or impair such respect and confidence. The law of contempt can, therefore, be identified as one of the major props holding together the basic structure of Constitution of India.

Amongst all the fundamental rights guaranteed by Part III of Constitution of India, Article 19 (1)(a) i.e., freedom of speech and expression is the most sensitive one and is prone to controversy. If exercised negligently, without abiding by the limitations prescribed under Article 19 (2), a person, on one hand can be booked for defamation and on the other, hangs the probability of prosecution for Criminal Contempt.

The Constitution of India has, in Entries 77 of List I and 14 of List III, given power to the Legislature to legislate with respect to contempt of Court. However, the Constitution of India itself, in Articles 129 and 215 and the legislative entries, recognizes the power of the Supreme Court and the High Courts’ to punish for contempt of Court. Article 129 of the Constitution of India, makes the Supreme Court Court of Record and confers power to punish for contempt of itself.

Whereas, Article 142 empowers the Court to provide punishment for contempt, subject to any other law made in this behalf by the Parliament. Similar powers have been vested in the High Court by the virtue of Article 215 of the Constitution of India which makes the High Court Court of Record, implying that only Supreme Court & High Courts are empowered to adjudicate criminal contempt proceedings.

Both Supreme Court & High Courts are Courts of Record and as a Court of Record, they have the power to punish for contempt of itself respectively as well as contempt of Courts which are subordinate to it.

Nigel Lowe and Brenda Suffrin in the Law of Contempt (3rd Edition), have explained that the jurisdiction and power of the Court of Record write that contempt jurisdiction of Courts of Record forms part of their inherent jurisdiction, all Courts of Record have the power to punish for contempt committed in their face, but the inherent power to punish for contempt outside the Courts reside only in Superior Courts of Record.

In [Re Vinay Chandra Mishra Vs The Unknown, AIR 1995 SC 2348], the Supreme Court said that contempt jurisdiction of the Superior Court is not based on law, but it is inherent in the Court because it is a Court of Record. Thus power to contempt resides in the Supreme Court and High Courts because they are deemed as a Court of Record by the Constitution of India.

Section 10 of the Contempt of Courts Act, 1971 specifically empowers the High Courts to punish contempt of subordinate Courts. Similarly, Section 15 (2) says even in the case of criminal contempt of subordinate Court, proceedings for contempt are to be initiated by the High Court on a reference made to it by the subordinate Court or on a motion made by the Advocate-General (or Law Officer in cases of Union Territory). It is pertinent to mention here, High Court, for the purpose of the Contempt of Courts Act, 1971 would include the Court of Judicial Commissioner.

Inherent Power

It is now well settled that independently and apart from the Contempt of Courts Act, 1971 or other statutory law relating to contempt (e. g Indian Panel Code or Criminal Procedure Code), the Supreme Court (by reason of Article 129) and the High Courts’ (by reason of Article 215) have inherent power to punish for contempt of Supreme Court and the High Courts’ respectively.

In [R. L. Kapur Vs State of Madras, 1972 (1) SCC 651], the Supreme Court pointed out that such inherent power of jurisdiction was not derived from the statutory law relating to contempt nor did such statutory law affect such inherent power nor confer a new power or jurisdiction.

Since such power of Supreme Court and the High Courts’ are recognized in the Constitution of India, they partake the character of constitutional power and consequentially no law made by the legislature could take away the jurisdiction conferred on the Supreme Court and the High Courts’ nor could such law confer it afresh by virtue of its own authority.

In [Re; Vinay Chandra Mishra Vs The Unknown, AIR 1995 SC 2348] referring to Article 129 of the Constitution of India, the Supreme Court observed as under;
The jurisdiction is independent of the statutory law of contempt enacted by Parliament under Entry 77 of List I of Seventh Schedule of the Constitution. The jurisdiction of this Court under Article 129 is sui generis. The jurisdiction to take cognizance of the contempt as well as to award punishment for its being constitutional, it cannot be controlled by any statute.

Contempt of Courts Act, 1971

Objective
In India, contempt proceedings are governed by Contempt of Courts Act, 1971. Contrary to the obvious conception, the objective of the Act as mentioned in the Act is:
…to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto.

The rationale behind this enactment can be best described by pronouncement of Justice Wilmot in [Rex v. Almon, (1965) Wilm 243]:
And whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and…calls out for a more rapid and immediate redress than any obstruction, whatsoever, not for the sake of the Judges as private individuals but because they are the channels by which the King’s Justice is conveyed to the people …

What is Criminal Contempt?

Section 2 (c) of Contempt of Courts Act, 1971 defines criminal contempt in following manner:

‘Criminal Contempt’ means 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:

  1. scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or
  2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
  3. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;


Scandalising the Authority of Court

Scandalising in substance is an attack on individual Judges or the Court as a whole with or without referring to particular cases casting unwarranted and defamatory aspersions upon the character or the ability of the Judges. Scandalising the Court is a convenient way of describing a publication which, although it does not relate to any specific case either post or pending or any specific Judge, is a scurrilous attack on the judiciary as a whole which is calculated to undermine the authority of the Courts and public confidence in the administration of justice, [Hari Singh Nagra & Ors. Vs. Kapil Sibal & Ors, (2010) 7 SCC 502].

However, it is to be borne in mind that the authority of Court shall not be confused with Judges as individuals. Where the contemptuous comment is made on the Judge in his individual capacity and not as an Officer of the Court, the same may amount to defamation but charge of contempt cannot be invoked against such actions.

Prejudicing due Course of Judicial Proceedings

It is incumbent upon Courts of Justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard has pernicious consequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party amounts to contempt. To make a speech intending to influence the result of a pending trial, whether civil or criminal is a grave contempt. The question is not so much of the intention of contemnor as whether it is calculated to interfere with the administration of justice, [P.C. Sen, In re, AIR 1970 SC 1821].

Though a fair criticism of judgment after the judgment is pronounced is permissible in law, however, making any statement or giving press interviews during the pendency of the litigation is not permissible. Therefore, no lawyer or litigant should either give an interview, talk to the press or make any statement with regard to pending litigation before any Court, [Prashant Bhushan, In re, (2021) 3 SCC 160].

Obstructing Administration of Justice

There is no comprehensive definition of the expression administration of justice. But historically, and in the minds of the people, administration of justice is exclusively associated with the Courts of Justice constitutionally established, [Baradakanta Mishra Vs. The Registrar of High Court of Orissa, (1974) 1 SCC 374].

The Court is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with. Any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognizance of such conduct, [Delhi Judicial Services Assn. Vs State of Gujarat (1991) 4 SCC 406].

Where is the Line?
Section 13 of the Contempt of Courts Act, 1971 postulates no punishment for contemptuous conduct in certain cases. As a general guideline, it provides for no punishment unless the Court is satisfied that the contempt is of such a nature that substantially interferes, or tends substantially to interfere with the due course of justice. [Law Commission of India, 274th Report, Review of Contempt of Courts Act, 1971].

This section is an attempt by the framers of the Act to demonstrate a line between criticism and contempt:
13. Contempt not punishable in certain cases.—Notwithstanding anything contained in any law for the time being in force:

  1. no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;
     
  2. 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.


The offence of contempt is not absolute and act of contempt per se does not entail punishment (Exceptions—Sections 3 to 8).
Exercise of powers under the Contempt of Courts Act shall have to be rather cautious and use of it rather sparingly after addressing itself to the true effect of the contemptuous conduct, [Mrityunjoy Das & Anr. Vs Sayed Hasibur Rahaman & Ors, (2010) 3 SCC 739].

Defences Available

Innocent Publication and distribution of matter not contempt

Section 3 of Contempt of Courts Act, 1971 shows that immunity attaches to certain statements or certain matter which may interfere or tend to interfere or obstruct or tend to obstruct the course of justice in connection with any civil or criminal proceedings pending at the time of the publication. However, if the persons so publishing had at the time of its publication no reasonable grounds for believing that the proceeding was pending, the publication is described by this section as innocent, [Prabhakar Laxman Mokashi Vs Sadanand Trimbak Yardi, (1974) 76 Bom LR 191].

Fair and Accurate Report of Judicial Proceeding – Section 4 of Contempt of Courts Act, 1971

Subject to the provisions contained in Section 7, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.
Section 7 refers to leakage of information whereas Section 4 refers to reporting of court proceedings. Leakage defeats very purpose of hearing in chambers or in camera, [Sahara India Real Estate Corp. Ltd. & Ors. Vs SEBI & Anr., (2012) 10 SCC 603].

Fair and accurate reporting of the judgment is essential for the healthy administration of justice. This helps in uniform decisions in the country on the question of law and fact. A reflection made in the exercise of the right and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice is not contempt of Court. Fair and legitimate criticism, in the long run, enhances rather than impairs such confidence, and its general tendency is to improve and not to interfere with the administration of justice.

It is the privileged right of the Indian citizen to believe what he considers to be true and to speak out his mind, though not, perhaps, always with the best of tastes; and speak, perhaps, with greatest courage than care for exactitude. Judiciary is not exempt from such criticism. But there is no justification to resort to this freedom and privilege to criticise the proceedings during their pendency by persons who are parties and participants. [Sheela Barse & Ors. Vs Union of India & Ors., (1988) 4 SCC 226].


Power to be exercised with caution

Exercise of powers under the Contempt of Courts Act, 1971 shall have to be rather cautious and use of it rather sparingly by the Court after addressing itself to the true effect of the contemptuous conduct. The Court must otherwise come to a conclusion that the conduct complained of tantamounts to obstruction of Justice which if allowed, would even permeate in our society. [Mrityunjoy Das & Anr. Vs Sayed Hasibur Rahaman & Ors., (2001) 3 SCC 739].

In an endeavour to prevent frequent and prejudiced use of power in disgust or anguish, Justice Krishna Iyer, in [S. Mulgaokar, In re (1978) 3 SCC 339], laid down certain checks to be born in mind by the Court while exercising the power to punish its contempt. Considering, to be gentle is to be just and the quality of mercy is not strained, emphasis was on to draw up the objective line of action. These are:

  • Wise economy of the use of the contempt power by the Court
  • The constitutional values of free criticism and judiciary must be harmonized and a happy balance must be struck between the two.
  • Difference between personal protection of a libelled Judge and obstruction of public justice must be clearly kept in mind.
  • Press should be given free play within responsible limits when its focus of critical attention is on the Court.
  • Judges should not be hypersensitive when distortions and criticisms overstep the limits but deflate such vulgar denunciations by dignified bearing.
  • Lastly, when the attack on Judge(s) is scurrilous or malicious beyond condonable limits, the strong arm of the law must strike a blow in the name of public interest and public justice.


Conclusion
Free speech is a fundamental right; so too free access to justice. To strangle both these freedoms because the Courts are allergic to what they regard is savage criticism is to foster judicial tyranny or tantrum. Parliamentary privileges and immunities are a third basic grace sanctioned by the Constitution of India, geared to the fearless defense of the people’s democratic rights by parliamentarians.

To ban criticism of Legislators when one observes their pandemonic performance or berserk behaviour is bedlam law. Hermeneutic harmony governs the content and contours of contempt power so as to reconcile it with fundamental rights. Why? Because this trinity of values is a trust for the people and tryst by the people. Whatever power springs from the Founding Deed must ultimately be accountable to the people since they are the final nidus. Contempt Power must, in fairness, respect other great rights of the people.

A ruling which settles the bounds of Contempt of Court Law is that of Savyasaji CJ in [P. N. Dudu Vs V. P. Shivasankar & Ors., AIR 1988 SC 1208] Administration of Justice and Judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office. Excerpts from the Head Note are adequately instructive.

It has been well said that if Judges decay, the contempt power will not save them and so the other side of the coin is that Judges, like Caesar’s wife must be above suspicion per Krishna Iyer, Justice in [Baradakanta Mishra Vs. The Registrar of High Court of Orissa, (1974) 1 SCC 374]. It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the Court and in the majesty of law and that has been caused not so much by the scandalising remarks made by politicians or ministers but the inability of the Courts of Law to deliver quick and substantial Justice to the needy.

Many today suffer from remediless evils, which Courts of Justice are incompetent to deal with. Justice cries in silence for long, far too long. The procedural wrangle is eroding the faith in our justice delivery system. It is a criticism which the Judges and lawyers must make about themselves.

Written By: Dinesh Singh Chauhan, Advocate
High Court of Judicature, J&K, Jammu.
Email: [email protected], [email protected]

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