LAW OF CRIMINAL CONTEMPT: AGAINST CONSTITUTIONAL PRINCIPLES

    Edited by: Vaani Garg

    Genesis of the Contempt Law:

    Contempt of Court means a conduct showing disrespect to the dignity or the authority of a court. The law of contempt traces its origin from ancient times. In earlier times, king was the judicial head and no one could disobey, or disrespect him. But to reduce the burden over the king the courts of law were established and the power to administer justice was conferred to the courts. The courts were considered as representatives of the king and thus any disrespect or imputation against the court was considered an imputation against the king therefore giving a special power to courts to punish for their contempt.

    The Indian law of contempt finds its genesis from English Law. The Indian High Courts were given the power to punish for its contempt similar to the power conferred upon Supreme Court in England by the privy-council. The Contempt of Courts Act, 1926 was enacted to deal with the contempt related offences. It was replaced by Contempt of Courts Act, 1952 which was again repealed by The Contempt of Courts Act, 1971. The power to punish contempt is also recognized under other laws. The Indian Penal Code, 1860, provides for punishment for any contempt of lawful authority of public servant. Cr.P.C., 1973 and C.P.C., 1908 provides the procedure for civil and criminal contempt. Constitution of India also recognizes the contempt as an exception to the freedom of speech (Art. 19(1)(a)).

    Need for Contempt Law:

    1. To insulate the judiciary from unfair attacks
    2. To prevent a sudden fall of the public confidence in the judiciary and thus safeguarding the interest of public.
    3. To help the judges to decide cases without fear, favor, affection or ill will.

    The Contempt of Courts Act, 1971 provides for two types of contempt:

    Civil contempt (Sec. 2b):

    It includes willful disobedience to any judgment, decree, direction, order, writ or other processes of a court or willful breach of an undertaking given to the court.

    Criminal contempt (Sec. 2c):

    It includes any act, written or spoken, which may result in:

    • Scandalising the court by lowering its authority.
    • Interference in the due course of a judicial proceeding.
    • An obstruction in the administration of justice.

    Law of Criminal contempt: A vague concept

    The contempt law in India, as said by V.R. Krishna Iyer, is having a vague and wandering jurisdiction, with uncertain boundaries so it may unwittingly trample upon the civil liberties and so defeating the very purpose of its existence.
    Civil contempt can be justified as it gives the court enforcement power of its judgment, decree, or order. But criminal contempt poses several problems. First of all, it is entirely dependent on the opinions of judges. Being too subjective it can be arbitrarily used by the judges to suppress its criticisms by the public. For instance, when Arundhati Roy criticized the Supreme court for vacating the stay for constructing a dam the court chose not to pursue the matter saying that “the court’s shoulders are broad enough to shrug off these comments”. But the same court initiated contempt proceedings against Roy when she led a demonstration outside the court and remarked that “by entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm” and recently against lawyer-activist Prashant Bhushan for making two tweets, one a general comment on the role of some Chief Justices in the last six years, and another targeting current CJI, Justice S.A. Bobde, based on a photograph.

    Secondly, the Contempt of Courts Act, 1971 does not recognize one of the basic principles of natural justice, i.e. nemo débet esse judex in propia causa, meaning thereby that no man can be judge in his own cause.

    Contempt Law in other jurisdictions:

    Contempt law has practically become obsolete in other jurisdictions. It is recognized as an archaic law whose utility and necessity has long vanished. Abolition of the law is being done systematically in several jurisdictions.

    In England, from where the Indian law traces its origin, the legal position has evolved. The U.K. Law Commission in 2012 report recommended the abolition of the contempt law. It said that the law was originally intended to maintain the “blaze of glory” around the courts. The issue of contempt was raised when the Daily Mirror published a photograph of Law Lords with the caption, “You Old Fools” but one of the lord on the Bench said that “I cannot deny that I am Old; It’s the truth. Whether I am a fool or not is a matter of perception of someone else. There is no need to invoke the powers of contempt”. And so the courts judiciously and sensibly ignored the story. The contempt doctrine there is not in use. It has also abolished the offence of ‘scandalising the court’ in 2013.

    American courts too no longer use the contempt law in response to the comments on judges or legal matters. It has adopted the ‘clear and present danger’ standard according to which the contempt proceeding can be initiated only when ‘substantive evil’ complained of is ‘extremely high’. Canada too ties its test for contempt to real, substantial and immediate dangers to the administration.

    Contempt law and Constitutional principles:

    Constitution of India establishes India a democratic nation and guarantees freedom of speech and expression to its citizens. Even the Constitution provides contempt of court in the form of public order and defamation as an exception to the freedom of speech and expression but it does not mean that the judiciary misuses it to become despotic. Art. 129 and 215 grants SC and HC the power to punish for contempt of itself, respectively. Art. 142(2) enable the SC to investigate and punish any person for its contempt. But the Constitution does not define the ‘contempt’. The Act defining the criminal contempt uses wide language and thus giving the court more discretion in defining its contempt. It can initiate contempt proceedings against any type of comment which it finds critical to it and thus can pose a serious challenge and become a danger to the democratic system and freedom of speech and expression. Even the truth was recognized as valid defense in 2006 amendment to the Act but it cannot be used until it is shown that it is in good faith and public interest. But again this is left to the judiciary to decide what constitutes public interest.

    The trend of using the law for protecting oneself from personal attacks is increasing. It should be kept in mind that the contempt is meant for protecting the institution of judiciary from vilifactory and scurrilous attacks and not the judges as a person.

    Needs Amendment in Contempt of Courts Act, 1971:

    The Law Commission of India chaired by Justice B.S. Chauhan in its report on the Contempt of Courts Act, 1971, while denying the need of amendment in the Act, said that in UK the last offence of scandalizing the court was in 1931 and India continues to have a high number of criminal contempt cases, but it forgot to mention whether the surge in the cases was due to the misuse of the law by the courts.

    Another reason it cited was the ambiguity that will be caused if there is no law regarding the Contempt of Court. But the Commission was established to amend the law and not to abolish it. Current law also confers a wide power to the court for punishing for its contempt which needs to be restricted to protect the freedom of speech.

    Conclusion:

    The contempt of court should not be used as a means to prevent criticisms of an institution. Judges have vast powers and people cannot remain silent about the exercise of such powers. Just as the other branches of government are criticized, judicial decisions would also attract the same. So the relevance of contempt law in a free society where criticism of judiciary is inevitable needs a re-look.

    There is a need to revisit the law on criminal contempt, so as to make it compatible with right to freedom of speech. The test of contempt i.e. loss of public confidence needs to be evaluated. It requires to be made more specific like whether the act will lead to obstructing the functioning of court. The ground of scandalizing the court for initiating the contempt proceeding should be removed being the words very vague and so conferring arbitrariness to the courts. The principle of nemo debet esse judex in propria causa must be applied to the contempt proceedings as well. The powers conferred under the Act should be used as a last resort and only when the very foundation of the institution of the courts is challenged.