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A Legislation out of Time: Contempt of Courts Act, 1971

Often labelled as a Colonial Artefact in the 21st Century, the whole concept of Contempt of Court in India, emanated during the colonial rule and is routed back to Regulating Act of 1773, which stipulated that the Mayor's Court (Calcutta) would be given the same authority as an English King's Bench court when it came to punishing people for contempt of court.

Contempt Laws were rolled out for the same and the courts executed proceedings accordingly. The then-triangle of High Courts (Bombay, Calcutta and Madras) followed the common law premise, that all 'courts of record' have the inherent ability to punish for contempt of court matters. Currently, Article 129 states that the Supreme Court is a "Court of Record" with all of the powers of such courts, including the ability to penalize for contempt.

Until 1950, there was not the present-day Supreme Court in India. Later when the Constitution of India came into force, the Supreme Court was also given the status of Court of Record.

In 1971, one decade after when the usage of pre-existing contempt laws in India was evaluated by a committee led by H.N. Sanyal, the then-Additional Solicitor General, Contempt of Courts Act was rolled out. It is still in force, garnering sheer criticism and being a hotly-debated matter among scholars and courts alike.

What Exactly is Contempt of Court, and How the Act oversees the Process:

  • According to Oxford Dictionary, Contempt of Court refers to the act of being disobedient to/ disrespectful of a court of law and its respective officers.
  • The present-day Act classifies Contempt into two broad spectrums - Civil and Criminal, and the same being defined in the Section-2(b) and 2(c) respectively.
  • The Supreme Court and High Courts, have been given powers to deal with the Contempt Cases and can even initiate Contempt Proceedings against Subordinate Courts as well. Apart from this, specific administrative tribunals have also been given the ability to punish for contempt, in their own Legislations.
  • The proceedings can be initiated through two ways, and the Act paves the way for the same as well. The first being; On its Own/By Itself (Suo Motu). Here, the court issues a written-notice to the accused, provided that the contemptuous act occurred in the sight of the court.
  • When it comes to acts of contempt performed in their presence, courts are mandated to hold these hearings as soon as possible, typically on the same day. Those accused of contempt have the right to a heard in their defence, and courts hear the evidence in the case.
  • Meanwhile, the second way being; when the contemptuous act occurs outside the Courtrooms. Here, the courts can initiate the proceedings, but only when the Attorney General/Solicitor General (in case of Supreme Court) and State Advocate General (in case of High Court) have consented for the same. Without this, the court cannot initiate the same against the Accused.
  • The current Attorney General and Solicitor General are K.K Venugopal and Tushar Mehta respectively.

Punishments and a History of Lawsuits:

  • Pertaining to Punishment for this offence, the Act mandates a rigorous incarceration of Six Months and this can further be augmented by a fine of up to 2000. However, this act also provides that if an apology is made to the court, the judge may waive off the sentence and exercise its discretion to evaluate if the apology rendered is ample
  • As mentioned above, the Supreme Court can even initiate Contempt Proceedings against Subordinate Courts as well.
  • This was seen in the instance of former-Justice CS Karnan of the Madras High Court, who after finding the then-Chief Justice of India Jagdish Singh Khehar and seven other Top-Court justices guilty under the SC/ST Atrocities Act-1989, jailed them to five years in prison.
  • He wasn't let go scot-free, as the Supreme Court initiated suo-motu contempt proceedings and he was imprisoned for Six months in the Presidency Jail in Kolkata. He is also the first sitting-judge to be incarcerated for contempt
  • Over its history, there have been several Contempt cases which were initiated against Individuals, Former Judges, News and Political Organizations and Lawyers.
  • In the case of Arundhati Roy (2002), the Supreme Court of India found her guilty of contempt and sentenced her to one day in jail and a small fine. Arundhati Roy had protested in front of the Court after criticizing the Court's decision to build a dam and accusing it of muzzling dissent.
  • This resulted in her being charged with contempt of court. The Supreme Court ruled that freedom of speech and expression is not unlimited and is subject to legal limitations. The Court even went on to say that Roy's views were not genuine, meaning that they weren't made in good faith and in the public interest.
  • M. V. Jayarajan, of the Communist Party of India (M), was convicted of contempt of court in 2010 after criticizing a Kerala High Court order banning meetings in specific public venues.
  • He was sentenced to six months in prison by the Kerala High Court, which was shortened to four months after an appeal to the Court.
  • In 1997, The Bombay High Court found Shiv Sena leader Bal Thackeray guilty of contempt of court after he accused a judge of corruption in a public address.
  • In 1978, following the publication of articles critical of the Supreme Court's decision in Habeas Corpus Case (ADM Jabalpur v. Shivkant Shukla), in which the Supreme Court refused to protect the right to habeas corpus during the Emergency, two newspaper editors from the Times of India and the Indian Express were charged with contempt in 1978.

Lacunae and Unspoken Criticism:

While the list goes on, the Act draws strict criticism on Two fronts. The first being- Definition of Contempt has not been aptly and precisely given, as the term Scandalizing the Court which is given in Section 2(c)(i) is incapable to ascertain the conduct which scandalize or incite prejudices against the Judicial Establishments and this creates a gray area.

The Supreme Court concluded in Brahma Prakash Sharma v State of Uttar Pradesh that it was not required to establish that a real interference with the administration of justice had occurred in order to constitute the offence of contempt of court. The Court decided that it was sufficient if a disparaging comment is likely to interfere with the proper administration of justice in any way.

Second- Criticism of the Court and the Freedom of Speech being curbed. Prashant Bhushan, a PIL lawyer, was found guilty of contempt of court in 2020. He had shared a news photo of India's the then-Chief Justice, Sharad Bobde, riding a motorbike without a face mask during the Covid-19 outbreak, and reprimanded the judiciary for selective attention to hearing cases during the lockdown.

Since the Freedom of Speech is curbed by the court's power of contempt, it has been criticized by the Legal Fraternity as having a chilling effect on this right too, as its definition is too broad and imprecise, allowing it to be used to shield the judges from criticism.

Bhushan and others even filed a challenge to the legality of the Contempt of Courts Act, which is still an ongoing matter.

Even in PN Dua v Shiv Shankar and others, the Supreme Court ruled in that mere criticism of the court does not constitute contempt of court. The Court stated that critiques of the judicial system or judges should be welcomed in the public sphere as long as they do not impede or hinder the administration of justice. However, it has been felt that criticism is being equated to lowering the Authority of Courts and that is not the case at all.

Two years prior to the Prashant Bhushan Case; Section 2 of the Act, which defines contempt, was re-examined, as the Law Commission was requested to look at a suggestion that claimed contempt of court should be restricted to civil contempt, or disobedience of court orders, and not include the crime of "scandalising the court," or criminal contempt.

The Commission suggested that the charge of 'criminal contempt' be retained in India, citing the fact that it is still regularly used in Indian courts, unlike in other nations where offences such as 'scandalizing the court' have become obsolete. The Commission also said that courts had inherent power to punish contempt, which would continue to exist even if the Act was changed or repealed entirely.

Court rulings must be respected by everybody, and no one may interfere with the operation of the courts. Only on this wide foundation has the law of contempt formed. As we all know, a saying that states: "justice delayed is justice denied.."

As a result of the such lawsuits, the legitimate plaintiff suffers greatly as the existing burden of cases on the Judiciary sometimes leads to their cases being stuck over a long time, not to mention the financial resources that are drained out.

It is important to remember that superior Courts' jurisdiction in punishing contempt of their authority exists to prevent interference with the administration of justice and to maintain the authority of law as it is administered in the Court, thereby protecting the public interest in the purity of justice administration. It is undeniable that the ability to penalize for contempt is an extraordinary authority that should be used sparingly, but if the public interest requires it, the Court will not hesitate to use it and impose punishment, even jail, in circumstances where a fine may not be sufficient.

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