Analysing Misuse & Relevance of Contempt of Court Conviction vis-à-vis Scandalizing of Court

Contempt of Court is of two types- civil and criminal. Inducted in the Indian Constitution haphazardly, like in England. It was decided to include ‘contempt of court’ as a constraint on freedom of expression. Devdatt Menon and Namit Vora explain its relevance and misuse in the present day and age, using relevant examples and the need for such contempt action.

By Devdatt Menon and Namit Vora, second year B.L.S LL.B. students from Government Law College, Mumbai

contempt of court

Introduction

Contempt can be mainly divided into two parts, one being civil contempt and the second one being criminal contempt. The former deals with wilful non-compliance of any kind of court order or breach of an undertaking. The latter contempt broadly deals with disrespecting legal authorities and trying to degrade the authority of the court, obstructing or trying to obstruct the administration of justice or impeding in the course of judicial proceedings. [1]

Of these, it is pertinent to note that contempt due to scandalizing or lowering the authority of court considerably threatens freedom of speech in the Indian context.

The emergence of Contempt of Court can be tracked down to an undelivered judgement of Justice Wilmot [2] This undelivered judgement was validated by the English Courts and its scope was expanded in the years that followed. [3] It was held by Justice Wilmot that this power was an essential concomitant to a Court. [4]

The law came into being haphazardly in England and was later inducted into the Indian Constitution in the same manner. [5] It was decided to include ‘contempt of court’ as a constraint on freedom of expression in the Indian Constitution during the constituent assembly deliberations in 1949. [6]

In the Indian Constitution, Articles 129 [7] , 142(2) [8] and 215 [9] are also concerned with the Contempt of Court. The Contempt of Court Act, 1971 defines and deals with contempt action.

Discretion and Misuse of Contempt of Court

Contempt by scandalising is one of the most controversial [10] branches of law as it has outlived monarchy. [11] It is still used in a democratic India. “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men”. [12]

Scandalising the court is vague [13] and provides the court with an unfettered discretion which leads to inconsistency in application and misuse of the power. This discretion stems from an assumption that scandalising will erode people’s confidence in the judiciary. This assumption cannot be verified but like any other authority in a democracy, the judiciary gains public confidence not by stifling criticism but by performing its duties with utmost integrity. [14]

The Supreme Court in In Re: S. Mulgaokar vs Unknown [15] was examining whether suggesting that judges of the Supreme Court were working at the executive’ss behest attracts contempt. The Court showed restraint and tried to demarcate the line between freedom of speech and administration of justice by laying down six principles. Unfortunately, in the latter judgements courts used these principles during the trials of important persons and hence these principles were not adhered to in its spirit.

The Apex Court in P.N. Duda vs V. P. Shiv Shankar [16] applied these principles when the then union law minister was tried for contempt. The union minister in a speech said that the Supreme Court consisted of the elite class and favoured haves. The Supreme Court did not find the minister guilty for contempt and adhered to the ‘Mulgaonkar’s principles’ as the speech did not obstruct or lower the authority of the court.

The same Court disregarded these principles in Re: Prashant Bhushan and anr [17] . In this case the Court initiated charges and convicted a lawyer for tweeting that the role of the last four Chief Justices India has had a negative impact on the democracy. The Court in the former case examined the minister’s speech by reading it in its ‘proper perspective’ but in the latter case the court failed to do so. Shiv Sena’s supremo Bal Thackeray was convicted for criminal contempt [18] by the Bombay High Court for alleging that a judge was bribed. Subsequently, the Apex Court reversed the judgement and stated procedural reasons as to why the high court was wrong in pressing contempt charges. [19]

Although, imputing judges as corrupt or biased also constitutes contempt, [20] this decision of the court is subject to favouritism. There are other instances where the courts have shown restraint and stated procedural ground for not pressing contempt charges. [21] But it is seldom observed that courts have shown restraint against people or organisations with little or no influence in governance. [22]

The Supreme Court in Sheela Barse v. Union of India & Ors [24] stated that, judicial institutions should and are made of strong stuff and will endure in a hardy climate but the citizens should ‘speak out their mind’ even if outspoken. But this freedom of outspoken criticism is limited to flowery judgements of Courts.

There are numerous cases which stand as a testimony to the hypersensitivity of the judiciary. [24] Delhi High Court in Shri Surya Prakash Khatri & anr. vs Smt. Madhu Trehan [25] held that the owners of the magazine ‘Wah India’. The crime of the magazine was to survey lawyers and to evaluate the working of the judges of the High Court.

Hypersensitivity and favouritism is a symptom and the root cause is the discretion which the words of the contempt act provides the judiciary. The defences available are not sufficient to strike a balance between free speech and administration of justice. For instance, the defence of truth was added after amending the act in the year 2005 by inserting section 13 (b) to the Act. [26] Section 13 (b) [27] states that, “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.” This amendment establishes the court’s discretion while considering the truth of the scandalous material.

Before this amendment, courts were of the view that the defence of truth. [28] Supreme Court in Arundhati Roy vs Unknown [29] stated its inability to consider the defence of truth as the court was examining whether the statements were contemptuous and not the truthfulness of the same.

Much recently, the Supreme Court in Re: Prashant Bhushan and anr [30] did not consider the defence of truth. Hence, it will be difficult to avoid misuse of contempt powers unless the discretionary powers of the courts are narrowed. [31]

Need for Contempt Action

While freedom of speech is an essential fundamental right but at the same time, it is also important to uphold the dignity of the judiciary. The contempt action is not exercised to settle personal scores of judges but instead to prevent the administration of justice from being disparaged. [32] It is critical for the public to have faith in the courts. [33]

To maintain a healthy democracy, it is necessary for people to believe in the judiciary system. Repetitive attempts of intimidating the court, gross breaches of professional standards and uncultured behaviour
can destroy the judicial system and democracy wouldn’t survive in such circumstances. [34] A contempt action is essential to uphold the dignity of the courts and to maintain public confidence in the system. [35]

The Courts and judges cannot be free from criticism but comments that are gross misstatements and misrepresent the facts, undermine public confidence should not be allowed. [36] In certain instances like in the case of Padmahasini v. C.R. Srinivas [37], when allegations are made against the judge in his judicial capacity without any justification or backing, it shows the ulterior motive of the contemnor. A judge should not be demeaned with such baseless allegations as they can shake the public confidence in the judicial system.

There also occur cases like Pritam Pal v. State of Madhya Pradesh, [38] Rama Dayal v. State of Madhya Pradesh, [39] Ajay Kumar Pandey contempt case [40] where the contemnor scandalizes the court or demeans the judge after failing to secure an order in his or her favour.

Moreover, in countries like India, a majority of the population resides in rural areas and justice is largely delivered at the basic level by the courts situated in such areas. A lot of them are not well educated. The vulnerability of such people is quite different from the population residing in urban areas.

If such people start having an impression that the judges are predisposed, partial or they do not approach the case with an open mind, they can quickly lose faith in the judiciary, especially when such comments are made by a lawyer. This may also make a judge’s job of administering justice difficult. [41] If contempt for scandalizing is removed, the lower or subordinate courts especially would be exposed to various never-ending uninvestigated ‘scandalous’ cases. [42]

Another important fact that should be taken into consideration for retaining contempt action is the inability of the judges to express an opinion in public. [43] Standards of judicial ethics state that judges cannot engage in debates or even go to the press. They cannot even publish or write anything about the actuality of unrestrained allegations made by a person unless the judges are handling that particular matter. The judges have a right to live with dignity and without contempt action, it would unnecessarily lead to reputational damage. [44]

In India, it would be unfair to say that the cases of contempt for scandalizing the court have become outdated. [45] The fact that scandalizing the courts has gotten outdated in certain nations with set up customs for regard for the judges and courts and exclusive expectation of conduct of judges ought not to be a contention for rejecting it somewhere else where states of developing majority rule foundations require certainty and regard for the judiciary to be safely settled. [46]

Contempt of Court & The Way Forward

The Supreme Court and High Courts do not draw contempt powers from any legislation but from the Constitution itself. [47] During the Constituent Assembly debate, [48] Dr. Ambedkar stated that by inserting Article 108 (which later on became Article 129) the Constitution establishes the Supreme Court and High Courts as a court of record.

A court established as a court of record has the power to punish for its own contempt and hence nothing short of a constitutional amendment can take away contempt powers. [49] Hence these powers need to be
regulated as it would be difficult to abridge them.

Although contempt action due to scandalizing is required in India, it is evident that there exists a need to make it narrower and more streamlined. Past foreign cases can be looked at in this regard. In the case of The Sunday Times v. The United Kingdom [50] , the European Court of Human Rights analysed a criminal contempt issue in a smooth manner.

Among the questions raised, three questions that were asked can be constituted as a test to determine
criminal contempt.

The first one is to see whether the restriction is provided by the law.

Secondly, the interference should be made in order to carry out a particular aim and lastly, the restriction imposed must be mandatory to secure one of the aims.

In quite a few Indian cases, the contemnor is convicted in order to ‘maintain public order’ [51] or by stating that ‘people should not lose faith in the judiciary system’. [52] These terms are vague and subjective while
interpreting. A test should be laid down or an investigation could be carried out to determine whether or not there has actually been obstruction of justice.

Another action that could be taken to narrow down criminal contempt is to remove the personal comments towards the judge from the ambit of criminal contempt. The judge is free to sue them for defamation and this will also help to move the burden of resources from the state to the personal expense of judges.

Conclusion

Free speech and criticism should go hand in hand with the administration of justice. This can be possible only if judges abide by tests that limit the judiciary’s discretion. This will curtail favouritism and misuse of contempt due to oversensitivity. This will also ensure that the judiciary is capable of averting the attacks which have real and potential threats to the institution of justice.

Finally, it should be noted that Mulgaonkar’s principles were trying to find a proper balance between the two. In order to strike a balance, it is necessary to have a test that gives no room for interpretation which threatens free speech. It is equally important for the judiciary to limit its powers for the well being of the judiciary itself as well as the country.

Endnotes

[1] Contempt of Courts Act, 1971, § 2, No. 70, Acts of Parliament, 1949 (India).

[2] Fali S Nariman, A judge above contempt, The New Indian Express Newspaper, August 5, 2005.

[3] Justice V R Krishna Iyer, CONTEMPT POWER – CIPHERISE ITS USER, 1 MLJ 19, 21-22 (2008).

[4] Mr. Justice Markandey Katju, Contempt of Court: The Need for A Fresh Look, 1 LW (JS) 1, 7 (2007).

[5] Sanyal Committee, Report of the Committee on contempt of courts, 3(28th February 1963).

[6] Constituent Assembly Debates, Volume 10, 10-14, October 17, 1949.

[7] INDIA CONST. art. 129.

[8] INDIA CONST. art. 142, cl. 2.

[9] INDIA CONST. art. 215.

[10] Sanyal Committee, Report of the Committee on contempt of courts, 16(28th February 1963).

[11] Willmot C.J., Wilmot’s Opinion p.256; Rex v. Davies 30 at p.40-41.

[12] Andre Paul Terence Ambard v. Attorney-General, (1936) 38 BOMLR 681.

[13] Craig v. Harney, (1947) 331 U.S. 367.

[14] Mr. Justice Markandey Katju, Contempt of Court: The Need for A Fresh Look, 1 LW (JS) 1, 6-9 (2007).

[15] S. Mulgaokar, In re, (1978) 3 SCC 339.

[16] P.N. Duda v. P. Shiv Shanker, (1988) 3 SCC 167.

[17] Prashant Bhushan, In re (Contempt Matter), (2021) 3 SCC 160.

[18] Harish Mahadeo Pimpalkhute v. Bal Thackeray, 1997 SCC OnLine Bom 67.

[19] Bal Thackrey v. Harish Pimpalkhute, (2005) 1 SCC 254.

[20] D.C. Saxena (Dr) v. Hon'ble The Chief Justice of India, (1996) 5 SCC 216.

[21] Vincent Panikulangara v. V.R. Krishna Iyer, 1983 SCC OnLine Ker 83.

[22] Mr. Justice Markandey Katju, Contempt of Court: The Need for A Fresh Look, 1 LW (JS) 1, 6(2007).

[23] Sheela Barse v. Union of India, (1988) 4 SCC 226.

[24] Ajay Harkerni v. State of West Bengal, 1992 SCC OnLine Cal 86, Ajay Harkerni v. State of West Bengal, 1992 SCC OnLine Cal 86, Arundhati Roy, In Re, (2002) 3 SCC 343, Mohd. Zahir Khan v. Vijai Singh 1992 Supp (2) SCC 72, Samar Ghosh v. Somnath Chakraborty, 1989 SCC OnLine Cal 57.

[25] Samar Ghosh v. Somnath Chakraborty, 1989 SCC OnLine Cal 57.

[26] The Contempt of Courts (Amendment) Act, 2006.

[27] The Contempt of Courts Act, 1986, §13(b), inserted vide Contempt of Courts (Amendment) Act, 2006 (w.e.f. 17th March, 2006).

[28] Perspective Publications (P) Ltd. v. State of Maharashtra, (1969) 2 SCR 779, Statement of Object & Reasons of The Contempt of Courts (Amendment) Act, 2006.

[29] Arundhati Roy, In Re, (2002) 3 SCC 343.

[30] Prashant Bhushan, In re (Contempt Matter), (2021) 3 SCC 160.

[31] Nina R. Nariman, Criminal Contempt of Court in India: A Critique, SCC J-34, J-48 (2011).

[32] Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409.

[33] T.R. Andhyarujina article (Scandalising the Court — Is it Obsolete?).

[34] Law Commission of India, Review of the Contempt of Courts Act, 1971 (Limited to Section 2 of the Act), Report No. 274 (April, 2018.)

[35] D.C. Saxena (Dr) v. Hon’ble The Chief Justice of India, (1996) 5 SCC 216.

[36] S. Mulgaokar, In re, (1978) 3 SCC 339.

[37] Padmahasini v. C.R. Srinivas, (1999) 8 SCC 711.

[38] Pritam Pal v. High Court of M.P., 1993 Supp (1) SCC 529.

[39] Rama Dayal Markarha v. State of M.P., (1978) 2 SCC 630.

[40] Ajay Kumar Pandey, Advocate, Re, (1998) 7 SCC 248.

[41] Rama Dayal Markarha v. State of M.P., (1978) 2 SCC 630.

[42] Law Commission of India, Review of the Contempt of Courts Act, 1971 (Limited to Section 2 of the Act), Report No. 274 (April, 2018).

[43] United Nations Office on Drugs and Crime, Office on Drugs and Crime, The Bangalore Code of Judicial Conduct, 2002, https://www.google.com/urlsa=t&source=web&rct=j&url=https://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf&ved=2ahUKEwi0q7jlknxAhWFxjgGHWfsBDkQFjACegQIFRAC&usg=AOvVaw1wmMKU80a0feBv8-JGfYwI (Jul. 11 , 2021, 9:29 PM).

[44] Prashant Bhushan, In re (Contempt Matter), (2021) 3 SCC 160.

[45] Perspective Publications (P) Ltd. v. State of Maharashtra, (1969) 2 SCR 779.

[46] T.R. Andhyarujina, Scandalising the Court — Is it Obsolete?, 4 SCC J-12, 23 (2003).

[47] Law Commission of India, Review of the Contempt of Courts Act, 1971 (Limited to Section 2 of the Act), Report No. 274 (April, 2018).

[48] Constituent Assembly Debates, Volume 8, 24, 27th May, 1949.

[49] Pritam Pal v. High Court of M.P., 1993 Supp (1) SCC 529.

[50] The Sunday Times v United Kingdom, (1979) 2 EHRR 245.

[51] Supdt., Central Prison v. Dr Ram Manohar Lohia, (1960) 2 SCR 821.

[52] Prashant Bhushan, In re (Contempt Matter), (2021) 3 SCC 160.

 

 

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