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Overview and Analysis of Contempt of Court Act,1971

Earlier the man had freedom to act in a way he pleased and his will to do an act depended upon the strength of his limbs, strengthened by the use of arms, which he developed day by day. Society was formed by our ancestors to bring peace. If a person constantly fears losing his limb, life, or livelihood, the creative spirit would remain dormant in him. So, it was decided to curtail individual liberties to a certain extent and settle disputes between the warring groups by an independent agency.

With time, this agency came to be known as king. The king was regarded as the fountain of justice and his authority was supposed to be absolute and people were regarded as his subjects. It was for him to decide the disputes arising between men, who chose him to be a king.

With the expansion of society, the number of disputes increased, making it impossible for the king to settle all the disputes personally. This is how the courts came into existence. If anyone interfered in the administration of justice, he was liable to be punished as that meant challenging the sovereign authority of the king.

This formed basis of the law of contempt. The term contempt of court (Contemptus curiae) is as old as law and has been used for centuries. It has advanced over the centuries as a medium whereby the courts may act to forbid or punish conduct that tends to obstruct, humiliate or may impede the administration of justice generally or with regard to a specific instance.

In B. Misra V. B. Dixit, the Supreme Court enunciated the concept of Contempt of Court as follows:
"It signifies a wilful disregard or disobedience of the Court's Order, it also signifies such conduct as tends to bring the authority of the Court and administration of the law into disrepute."

Any behaviour that perverts the course of justice, whether it comes from a party or a stranger, comes under the ambit of contempt. According to the Cambridge Dictionary, it refers to a strong feeling of disliking or having or showing disdain towards someone or something.

As long ago as 1742 Lord Hardwicke L.C. defined three different types of actions as qualifying as contempt of court, that are namely:
  1. Scandalizing the court itself
  2. Abusing the parties to the case
  3. Prejudicing society against the parties before the case is heard.
The issue of contempt of court affects how justice is administered as well as the dignity and authority of judicial authorities.

The Contempt of Court Act, 1971 divides the expression of contempt into two categories, viz:
  • Civil Contempt:
    Under Section 2(b) of The Contempt of Court Act, 1971 'civil contempt', is defined to mean wilful disobedience to any decree, order, judgement, direction or any other willful violation of a court-approved undertaking. It is formally under the ambit of contempt but it is a wrong of private nature. However, the court can also sentence the contemnor to six months in prison, if it considers that fine is not enough for punishment.
  • Criminal Contempt:
    Under Section 2(c) of The Contempt of Court Act, 1971 'Criminal Contempt', is defined as the publication (whether spoken or written, or by words, or by visible representations, or by signs, or otherwise) of any matter or the doing of any other act whatsoever which:
    • Scandalizes or tends to scandalise, or lowers or tends to lower the authority of, any court;
    • Interfere, or prejudices or tends to interfere with, the due course of any judicial proceeding;
    • Obstruct or tends to obstruct with, or interferes or tends to interfere, the administration of justice in any other manner

Historical Perspective Of Act:

India's laws against contempt date back to the era before independence. A charter was given in 1726 by the King of England when the East India Company acquired control of territories in India. Each presidential town was to have its own corporation, according to the charter. In each of the Presidency Towns, Mayor Courts were established. The Supreme Court of Judicature took the place of the Mayor's Court in Calcutta in the year 1774.

In Madras and Bombay, the Recorder's Court assumed the role of the Mayor's Court before being dissolved and replaced by the Supreme Courts.

The Madras and Bombay Supreme Courts were founded in 1801 and 1824, respectively. Regarding decisions involving the sanction for contempt, the Supreme Court and the Recorder's Court shared the same authority. Under the Indian High Courts Act of 1861, High Courts succeeded the Supreme Courts.

The three High Courts in Madras, Calcutta, and Bombay had the authority to impose contempt penalties by the virtue of certain inherent powers. The Indian High Courts Act, 1861 created the High Court of Allahabad in the year 1866 as a Court of Record with the authority to punish for contempt.

The Contempt of Court Act, 1926, was the first statute in India pertaining to the law of contempt. The Act authorised the High Courts to penalise for the contempt of subordinate courts and also laid down the upper limit of penalisation for the said contempt. Later, in 1937, the Act of 1926 was amended to make it clear that the statute's restrictions on penalty applied to contempt of all courts, not only inferior courts.

The Contempt of Court, 1952 replaced the Act of 1926.
It made two significant transgressions from the Previous Act:
  • The Act of 1926 did not apply to all courts; thus, the Courts of Judicial Commissioner were included in the definition of "High Court";
  • High Courts were granted the authority to try and inquire into any contempt of itself or that of any court subordinate to it. The aforementioned statute also gave the Chief Courts the authority to investigate and punish any act of contempt of itself.
With the advent of the constitution, ideas of freedom and liberty underwent a significant shift with which the existing provisions did not fit well. Although, the Act of 1952 was drafted and implemented after the Constitution came into effect, but in reality, it really re-enacted the provisions of the existing Act of 1926 which was made in Pre- Constitution background.

There was clamour and public agitation demanding a comprehensive statute that not only defined "Contempt of Court" but also provided for the procedure.

On April 1st, 1960, a bill was introduced in the Lok Sabha to amend the legislation governing contempt of court. Under the chairmanship of H.N. Sanyal, Additional Solicitor-General, a committee was set up for this purpose. One of the main suggestions of the Sanyal Committee was that the law officer of the government should propose about initiating the contempt proceedings rather than the courts themselves.

The submissions of the committee were referred to the joint committee in the parliament. The joint Committee then submitted its report on 23 February 1970 to the Rajya Sabha. Its recommendations included laying down a new clause for the implementation of a time period of one year at the expiration of which no proceedings for contempt can be initiated.

This resulted in the incorporation of Section 20 in the Contempt of Court Act, 1971. After all the requisite deliberations, The Contempt of Court Act, 1971 was enacted by the parliament on 24 December 1971 and it replaced the Act 1952. The Act was amended in 2006 to include truth as a defence under Section 13 of the original legislation.

The Department of Justice under the Ministry of Law and Justice vide its letter dated 8 March 2018 had asked the Law Commission to examine and consider an amendment to Act, 1971.

International Perspective:

England and Wales:
The Contempt of Court Act, 1981 is the Primary legislation relating to the contempt of Courts under English Law. This act places a maximum limit of imprisonment for 2 years upon the Contemnor. Under Section 1 of the Act, if conduct interferes with the course of justice, it may come under the ambit of contempt regardless of the intent to do so .

The law Commission of United Kingdom in 2012 published a paper regarding the contempt powers in which it advocated for the abolishment of the offence of 'Scandalising the Court' as a ground for Criminal Contempt. The recommendations were accepted and an amendment was made to the Crime and Courts Bill in 2013. In England and Wales, there were only two prosecutions in the 20th century, so technically the provision had already become redundant. The Commission also noted that if an action is sufficiently offensive and threatening, it could fall under the purview of the Communications Act, 2003 or Public Order Act, 1986.

United States of America:
The United States Code defines contempt of court as an act of disobedience, disrespect, or interference with the orderly process of the judicial arm of the government. It is considered to be an offense against the court of justice or an individual in whom the judicial functions have been vested.

The United States Code categorizes contempt into two categories that are civil and Criminal. Also, the code mandates it to be proven beyond a reasonable doubt. The Code also differentiates between direct and indirect contempt: Direct contempt is the one that occurs in the presence of court and the indirect contempt being the one that occurs outside the immediate presence of the court and consists of disobedience of a court's prior order.

The American Jurisprudence places greater value upon the freedom of speech and expression. It regards Freedom of Speech as a paramount right as enshrined in the First Amendment of the U.S. Constitution unless there is a clear threat that will result in significant wrongs that Congress has an obligation to prevent.

Rationale Behind The Provision:

The Concept of Contempt of court seeks to protect judicial institutions from motivated attacks and unwarranted criticism, and as a legal mechanism to punish those who lower its authority. A powerful Judicial system is sine qua non for a healthy democracy. If uncultured conduct and unprofessionalism in the domain of ethics are tolerated, it would lead to the destruction of the legitimacy of the judicial system without which no democracy can survive. There is a need to insulate and safeguard the judiciary, and the judges should be allowed to act without any fear or favour, otherwise the administration of justice would become a casualty.

Under Articles 129 and 215 of the Constitution of India, The Supreme Court and the High Court each have the authority to penalise for contempt. These are special and rare powers which if misdirected could lead to repression of liberty for a person accused of doing a conduct that amounts to contempt. The exercise of this power casts a sacred duty on the courts to exercise the same with the greatest possible care and circumspection.

Thus, it is advisable that the courts should restrict themselves from travelling beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt in the judgement or order, otherwise it could lead to neglect of the very idea of justice that it tends to protect. Thus, the power to punish for contempt is a rare species of judicial power which should be exercised with great care and caution. Such a power should be exercised only where "silence is no longer an option."

Prashant Bhushan Contempt Case:

The Contempt laws in the country were recently a hotly debated topic, when Prashant Bhushan, who is India's one of the most respected public interest lawyers and a human rights activist was held guilty of contempt on 14 Aug 2020 by the Supreme Court. Nearly 3,000 retired judges, eminent jurists, and lawyers had questioned the conviction.

The Contempt case against Prashant Bhushan revolves around two tweets posted by him on June 27 and June 29. The first tweet remarked about how the last four Chief Justices of India played a role in the destruction of democracy in India even without a formal emergency.

The Second Tweet commented upon the then CJI S.A. Bode riding an expensive motorcycle without wearing a helmet and mask while he kept the supreme court in Lockdown mode. In reference to the above tweets, a Suo motto criminal action for contempt of court was initiated him. The colliding principle of free expression, which is subject to a variety of limitations, was presented before the court in this instance. The court while initiating the proceeding held that the tweets were capable of undermining the dignity and authority of the judiciary.

Court's judgment:
The Division Bench of Justice Arun Mishra, Justice B.R. Gavai and Justice Krishna Murari in its 108-page long judgment "Malicious, scurrilous, deliberate attack on the basic foundation of the institution of the judiciary and therefore harming the very foundation of the democracy". The Supreme Court further imposed a token fine of Re 1 against the offence of contempt.

The bench which was headed by justice Arun Mishra asked him to do so by 15 Sept 2020, failing which he will attract a jail term of three months and debarment of law practice for three years. The bench had earlier granted him time till August 24 to reconsider his contemptuous tweets and tender an unconditional apology for the tweets. However, he refused to tender an apology.

Clash Between Free Speech And Contempt Provisions:

All Indian citizens have the right to freedom of speech and expression, according to Article 19(1)(a) of the Indian Constitution. This refers to the freedom to communicate one's own beliefs and thoughts, whether orally or in writing, print, visual media, or any other way. However, it is frequently noted that there are no restrictions on the right to free speech and expression.

The two fundamental and most significant elements of a democracy are the freedom of speech protected by the constitution and the independence of the court. The most crucial component for the growth of democracy is constructive criticism, and the Supreme Court should uphold free speech. How do you draw the line, though? According to the 1971 Contempt of Courts Act, the Court has the jurisdiction to penalise any such act that tries to diminish the value of the judiciary when the criticism has the capacity to diminish the authority of the judge and even hinder the administration of justice ("Act").

Fair criticism is not to be considered to constitute a form of contempt, according to Section 5 of the Act. However, the irony of the circumstance is brought out when the judiciary, which was targeted by the statement, is given the authority to determine whether it was constructive or not.

The effect of the law of contempt on the fundamental right of freedom of speech and expression conferred on citizens by Article 19(1) and (2) of the Constitution has been considered briefly in the commentaries on sub-clause (ii) of Section 2 (c) of the Act under the heading "Conflict with freedom of speech".

The Supreme Court has held that its power under Article 129 is independent and is not subject to Article 19(a), and when Article 19(2) excludes the operation of Article 19(1), trapping speech or expression amounting to contempt, it only does so by abundant caution.

Need For Reform:
  • It is necessary to apply the contempt jurisdictional powers impartially. The court cannot make distinctions between public figures and ordinary individuals.
  • The Committee on Judicial Accountability further stated that contempt cases should be heard by a bench of at least five judges rather than by the judge or judges against whom the imputation or condemnation in question is made.
  • The terms "lowering the authority of courts, scandalising the court, and prejudicing the course of judicial process" from the 1971 Contempt of Court Act should be scrapped since they are ambiguous and encourage judges' biases and arbitrary decisions. This has to be changed with some more precise, well-defined phrases.
  • Courts should appreciate fair criticism. Esteem for the judiciary should be gained through quality rulings, impartiality and without fear in the masses for the oppressive actions against contempt.
  • The clause that makes scandalising the court a crime has been removed or modified in the majority of the world's progressive democracies that have influenced Indian jurisprudence.
However, the court may still deal with direct contempt or improper behaviour inside the courtrooms. It would imply that disrespecting the court is now simply a civil offence that can result in penalties rather than a crime.

It is a virtue and a sign of maturity to be tolerant of criticism. The Indian judiciary, though first reticent and overly sensitive in the early periods, now seems to have matured to the point where it can accept criticism but never permits careless attempts to degrade its stature. This is the silver lining, but when the judiciary's power is seen from the perspective of the rule of law, it raises new serious issues.

The judiciary is given authority by the Constitution, and all public power is held in trust. If the judges violate this trust, they must pay the price. The Contempt of Court Act, 1971 is the legislation that deals the punishment for contempt of court and certain procedures related to that domain. Contempt laws first appeared in India during the colonial period, when the East India Company occupied Indian territories. The Supreme Court and the Recorder's Court that were established in India had similar as the superior courts in England had in relation to matters punishing for contempt.

The Contempt of Court Act of 1926 became the first statute in India dealing with the domain of contempt. This was replaced by the Act of 1952, which was further replaced by the Contempt of Court Act, 1971. The Act had certain limitations. The National Commission to review the Working of the Constitution had recommended in its report that in the matters concerning contempt, the Court has the discretion of permitting the use of defence of justification by truth.

The Law Commission of India in its 274th stated to the Ministry of Law and Justice that there was not any requirement for making any amendment to the Contempt of Court Act of 1971. The Commission in order to reach this conclusion took into consideration Articles 129 and 215 which give the superior court of the country i.e., the Supreme Court and High Courts the power to punish for contempt.

The aforementioned courts are empowered to investigate and punish the contemnor even without the any legislation outlining the procedural powers. Apart from this Article 142(2) of the Constitution of India empowers the Supreme Court to punish for contempt of court.

Thus, it can be said that powers of the Superior Courts to punish for contempt are independent of statutory provisions. The Commission also recommended that making any amendments to the Contempt of Court Act of 1971 will lead to inconsistency and ambiguity and it advocated for maintaining the existing definitions that have stood the test of judicial scrutiny.

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