Contempt of Court – Time to Relook?

“Law is not law if it violates the principles of eternal justice.”

                                                                      – Lydia Maria Child

INTRODUCTION:

Freedom of Speech and Expression lies in the foundation of our democracy. Any tool used to deny it to us, no matter how pious its intention is, either needs to be scraped or needs to be amended. One such law is the Contempt of Courts Act, 1971.

Freedom of speech & expression includes the right of every citizen to criticize the court, the judiciary, and its administration. On the other hand, courts to maintain their independence, use the power of contempt to punish one who lowers the dignity of the court or interferes with the administration of justice.

This precisely is the conflict between Freedom of speech and expression and contempt of court. Both freedoms of speech and power of contempt are essential for democracy as both are for the benefit of the public. Freedom of speech and freedom of press secures judicial onus whereas the power of contempt maintains the dignity of the court.

It is in this background that we will be discussing the position in other countries juxtaposed with India so that a proper conclusion may be derived in this regard. To understand the imbalance let’s recognize the concept of Contempt of Court.

WHAT IS CONTEMPT OF COURT?

Contempt of Court is basically the offense committed by a person either by disobeying/being disrespectful towards the Court of Law, its officers or by defying, scandalizing, interfering with the Administration of Justice. In many countries, a similar attitude towards legislation is known as Contempt of Parliament. In India, Contempt of Court is of two types:

Civil Contempt: –

It has been defined as intractable disobedience to any judgment, direction, order, writ, or other processes of a court or willful breach of an undertaking given to a court Under Section 2(b) of the Contempt of Courts Act of 1971.

Criminal Contempt: –

Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication of any matter or the doing of any other act whatsoever which:

1. Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or
2. Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or

• Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Article 129 of the Indian Constitution grants the Supreme Court power to punish for contempt. The corresponding power is given to the High Court under Article 215 of the Indian Constitution. The Court having special jurisdiction can order Suo Moto cognizance if it discerns someone discourteous to the dignity of the court.

INTERNATIONAL PERSPECTIVE:

Every country has different contempt laws. Canada and the United States are very lenient as they consider freedom of speech more important. In Singapore yawning in the court is treated as contempt.

In England, civil contempt is known as direct contempt. Disobeying court orders, misbehaving in court, interrupting proceedings, etc. are commonly recognized contempt all over the world. In the United States, the principle of proportionality and principle of reasonability is adopted to see if the offense is contempt or not.

In some countries like India, to start contempt proceedings the permission of Law Officers i.e. Attorney General or Solicitor General is required if filed by a private individual. The criminal contempt in India is considered asynchronous to our democratic system as freedom of speech is our fundamental right. This concept can be further understood with some precedents.

In R Vs. Commissioner of Police in 1968, Lord Denning known as one of the most influential judges of the 20^th century stated that “Let me say that we will never use this jurisdiction as a means to uphold our dignity…. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it.

There is something far more important at stake. It is not less than freedom of speech itself. It’s the right of every man in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest…. We must rely on our own conduct itself to be its own vindication.

As judges, we cannot reply to people for their criticism in public. The best reply is by giving strong judgments.” According to me, judges should let go of minor faults and punish for serious contempt. This is the attitude of judges in other countries. They consider that criticism should be accepted as it is part of democracy.

In 1987, the Spy Catcher Case set a quintessential example of the flexibility of Freedom of Speech. An MI 5 agent wrote in his book that there is a Russian spy present in British Intelligence. Due to this statement, his book was banned.

Now seeing this a famous Newspaper named Daily Mirror published an article criticizing judges saying “You Fools” to them and also quoted “Enemies of the People” as the title of the article. Lord Templeton commented by saying ‘I cannot deny that I’m 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.’ In spite of such high nature of criticism, the judges let the media exercise but on the other hand, let’s take a similar case from India.

In 1995, Chandan Mitra the editor of Hindustan Times criticized in his weekly column by saying that “Supreme Court judges need a psychiatrist.” The Court ordered contempt against him and later Senior Counsel Ram Jethmalani requested an apology on his behalf. In India, we witness that judges do not accept open criticism.

In the case of Bridges Vs. California, Harry bridges who was an influential labor leader in the United States was held liable for contempt as he and a newspaper criticized judicial proceedings in a pending case. He in his letter threatened to strike if the state-imposed their decision in a labor dispute.

The telegram was also published in a newspaper. Justice Hugo Black observed that the punishment of contempt was based on English common law. He quoted that “One of the objects of the valuation was to get rid of English common law on the liberty of speech and of the press.”

He also cited that James Madison who is the founding father of the American Constitution intended to give the press the broadest scope that could be countenanced in an orderly society. Justice Black did not consider the telegram in this case to threaten either value.

Judges already knew the judgment of the unconcluded criminal case and Bridges’ right to strike in the event of this ruling was not a threat of illegal action. We should learn that media is the medium to communicate between government and people. If they are charged for delivering the truth to the public then it is not contempt. Fair criticism is leeway to democracy.

INDIA’S CONTEMPT LAW:

Advocate/Activist Prashant Bhushan is well known for his impactful work in the area of public law and public interest. According to him Article 19 of the Indian Constitution is most important and due to his practice in public activism and criticizing former judges of the Supreme Court, he has been summoned twice for contempt.

The first contempt case filed against Prashant Bhushan was in 2009 when he in an interview with Tehelka Magazine said that ‘the Supreme Court Judges are corrupted and there is very much corruption in the judiciary.’ The case was filed by veteran Advocate Harish Salve when activist/lawyer Prashant Bhushan made allegations against former Chief Justice S.H. Kapadia and Justice K.G. Balakrishnan.

After this in 2020, Prashant Bhushan tweeted on the present Chief Justice of India S.A. Bobde’s photo alleging him for not wearing a mask and helmet and sitting on a bike which was owned by an MLA. The Supreme Court found this tweet, disrespectful in nature, and a case was filed against Prashant Bhushan for the second time.

Prashant Bhushan argued that it was his right to freedom of speech to criticize whatever he feels was going wrong and it is not mentioned in the Act that such tweets or allegations could be treated as contempt. He also said that it is high time that we make certain amendments in the Contempt of Court Act and make it more specific and well defined so that misconceptions could be removed in the following case.

Supreme Court ordered Bhushan guilty for contempt and he had to pay a penalty of Rupee 1 and if he failed to pay such amount, he would have to surrender his practice and be imprisoned for three months. After this Prashant Bhushan paid the fine but he also filed a review petition and another writ petition in the Supreme Court challenging the previous judgment.

Scandalizing should be defined properly in the definition and as in Article 19(2) the term contempt of court is very vague as reasonable restrictions are not very gnomic.

In the Writ Petition Prashant Bhushan stated that Section 2 of Contempt of Court Act, 1971 is unconstitutional as it infringes Article 19(1)(a) and also the term ‘Reasonable Restriction’ in Article 19(2) is vague as according to the Test of Reasonability, there should be a balance between the seriousness of situation and intensity of restriction. This was observed in the case of State of Madras Vs. V.G. Row.

Test of Proportionality means there should be equality between restriction and cause. By these two tests, we could find out whether contempt in this particular case is unconstitutional or not. Thus, Contempt for one could be just a comment for another, so it should be amended.

You cannot punish someone for contempt of court unless it has affected court proceedings or the Administration of Justice. In the above case, Attorney General K.K. Venugopal suggested to the bench to withdraw proceedings as it was a ‘genuine mistake’ and forgive him as nobility is in the conscience of respected judges.

A Review Petition is in progress for the same case. In the Prashant Bhushan case, he succinctly stated something which was misread, due to which the tussle took place.

Recently we have seen a sudden rise of contempt cases after the above case, as many people file cases without understanding the real reason. People should understand that contempt is a serious crime. Pointing out defects is not an offense but restricting the right to do so is.

CONCLUSION:

In a democracy, the motive of the contempt power can only be to maintain the administration of the court. The power is not to prevent the people from criticizing the judge if the latter does not function properly or commits misconduct. Judiciary should not use iron hand to stop criticism. People have trust and confidence in our judicial system.

We need introspection and transparency in the judiciary. Only then it will be laudable. Proper amendments are required as it’s high time. The people are free and have the right to criticize judges, but they should not go to the extent that affects the working of the judiciary.

Contempt of Court Act needs rectifications so that we could utilize time for some other issues which are taking place. Before we proceed further with the concept of a civilized society, it is mandatory to maintain balance among all the structures developed by the Constitution.

We proudly say that we are being protected by the most robust written constitution of the world and thus, it is our responsibility to use the rights provided as a citizen, maintain good decorum and not misuse them. The faith is alive in our judicial system that we are protected and therefore, we should make efforts and contribute for the betterment and progress of our country.