Contempt of Court

The Contempt of Court act was enacted in 1971 which consists of 2 types of contempt that can be initiated by a court of law – Civil and Criminal Contempt. Civil contempt is the willful disobedience of court’s order, judgement or decree. Criminal contempt consists of publication of any matter that (i) scandalises or tends to scandalise or lower or tends to lower the authority of any court prejudices or, (ii) interferes or tends to interfere with, the due course of any judicial proceeding or, (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner as stated in Sec. 2(c) of the aforesaid act. Any such publication which infringes with the work of court can be considered as Contempt of Court. The power is also inherently expressed in Article 129 and Article 215 of the Indian Constitution describing top two judicial courts of our country as Court of Record. It was last moment amendment by BR Ambedkar, the chairman of Drafting committee, in Article 19(1)(a) of the constitution which guarantees fundamental right of speech and expression, to introduce exception of Contempt of Court against the freedom embedded in Art. 19(1)(a). The article is based upon the use of the contempt power by the higher Indian judiciary. The constitution of India derives its authority from people itself as stated in preamble – “We the people of India”, and thus all the working machineries of the country acts as servant to the people who are masters. Thus, infringing the right of people to publish any information criticizing court should not be agreeable, as courts are in the end also serving citizens. However, Courts were established to solve the dispute between two parties and thus any act infringing such court must be punishable. But the contempt power should only be used when it becomes impossible for the court to function. In any other case, the judges should ignore the derogatory or irrelevant comments made upon them. It is the people in the end who are superior and rest of the servants including judges are inferior. It is the outcome of integrity and effectivity of courts itself that will uphold the public confidence in judiciary rather than frivolous or harsh statements. Contempt power within itself contains sub-judice rule which stats that publication of any information deprecating in any nature towards any case or appeal pending in High Court or Supreme Court of India shall be punishable and proceedings shall be initiated as if such person has committed criminal contempt. Talking of criminal contempt, it is utmost referred as both dubious and controversial: dubious, since it originates from a dictum of one judge, Justice J. E. Wilmot, in the John Wilkes case way back in 1765 and controversial since the dictum was recorded in judgment that was never delivered. It was published by Justice Wilmot’s son after his father died: the judgment had been reserved after argument and when it was ready to be delivered, it was found that the writ (case) against Wilkes was incorrectly titled; since the procedural law of the time did not permit an amendment to the writ unless consented to by both parties, the entire case had to be abandoned! This then is the ancestry of that part of the law of contempt that goes by the name ‘scandalizing court’: it is based on a judgment never delivered in court in a case that had already abated! Arun Shourie, former union minister approached the court as well stating that the term ‘scandalizing the court’ has very wide connotation and is used whimsically by the court on their own will. If a third person wants to initiate the contempt proceedings against an alleged, prior permission of Attorney General is required because court cannot dive into the facts of the case whether such allegation has weight or not? Attorney General may or may not accept the initiation of contempt case. In August last year, A.G. KK Venugopal rejected to approve the contempt proceedings against Actress Swara Bhaskar for allegedly making derogatory remarks against Supreme Court. However, Courts have impliedly accepted the rule that Suo moto proceedings can also be initiated by the judiciary if it finds any such statement purporting to scandalize the court. Recently in 2020, Prashant Bhushan, PIL Activist was charged with Suo moto contempt proceedings on his tweet on the functioning of Supreme Court of India.

The uncertainty of the contempt power is that in 2001, while she was let off by high court in an equally dismayed statement - world famous author and Man booker prize winner Arundhati Roy’s remarks on judgement of Supreme Court in Narmada Bachao Andolan’s case was considered as scandalizing the court and was held guilty, however the penance given was not unpleasant but it gave a scathing effect all over the world regarding such gross abuse of power of contempt on freedom of speech & expression. Truth is considered as a defence against contempt, if it is in public interest and is bona fide, but still it is on the discretion of the judges whether the asserting fact of the alleged is to be considered truth or not. The decision of House of Lords in world famous Spycatcher case circa 1987 where a judgement by 3:2 majority was considered as absolutely against the freedom of speech. Headline of the newspaper next day stated judge’s images with the caption “YOU FOOLS”. Judges in England did not take seriously personal insults unless such comments infringe their functioning capacity. In India also, such fruitfulness of thought should be given and remarks whether light or harsh should be ignored by the judges unless it is absolutely necessary for them to initiate contempt proceedings in order to function properly. The contempt power was introduced to be used in exceptional and rare circumstances only. The judges should be shrewd and shrug off the remarks passed against them off the shoulder. Another reason for the same is that whenever any contempt proceedings is initiated, the statement in question reaches more & more public out of curiosity, thus instead of supressing it, the court exposes such information more widely than it was before. As Justice Markandey Katju former retd. Supreme Court Judge observed, Judicial tolerance should be observed in regards of Public criticism. He also opined that in order to determine whether an act amounts to contempt of court or not is this: does it make the functioning of the judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court, even if it is harsh criticism. In a democratic state, such whimsical contempt power should not stand and the judges should move towards ignoring peculiar criticisms if it doesn’t tend to affect the court. Editors and writers too feel that such subjective use of contempt power affect their way of thinking and writing in certain material cases.