Contempt of Court : An Eternal Battle
This article has been authored by Satendra Singh, Abhay Saxena and Devyani Singh, students of Rizvi Law College.
“To become truly great, one has to stand with people, not above them.”
-Charles de Montesquieu
The notion of Contempt of Court finds its roots in late 14th century Western Europe. It had initially found its place in King's Courts or mixed government i.e. Kings, aristocratic assemblies and popular assembly[i], where the administration of justice was done by the King and later by his judicial representatives. The concept was grounded on a popular belief that the King can do no wrong and hence disobeying the order passed by the king or his representatives was considered as contempt and was also punishable. The Doctrine of mixed government was later evolved into the Doctrine of Separation of powers propelled by Locke and Montesquieu[ii] and three branches were distinguished i.e. Executive, Legislature and Judiciary. The Separation of powers and independence of judiciary forms an integral part of the basic structures of the Indian Constitution[iii] and the sole purpose of laws on Contempt is to ensure the independence of the judiciary in a democracy.
The contempt laws act as sentinels protecting the sanctity of the temples of justice. The prowlers can possibly be Article 19(1)(a) of the Constitution of India (hereinafter referred as COI) or Section 499 of the Indian Penal Code, 1860. Surprisingly the battalion of Sentinels is quite large which consists of doyen officers like Article 129, Article 142 and Article 215 of COI. The battalion was later enlarged in 1971 when a new force was set up and named as The Contempt of Courts Act, 1971 (hereinafter referred as CCA). Although there have been attempts by the prowlers to infuse a seed of ‘divide and rule’ between the Articles of COI and Sections of CCA but every time the efforts go in vain and the sanctity of the temples was retained. This article would be discussing the importance and the nature of the battalions to combat above mentioned prowlers as well as the roles and limitations of various stakeholders like Priests of the temples (Judges), Caretakers (Advocates), devotees (citizens) and International Temples like the Supreme Court of U.K. The entire discussion shall revolve around the recent battle fought between Activist- lawyer Mr. Prashant Bhushan (caretaker) and Retd. Justice Arun Mishra (Priest) of the Hon’ble Supreme Court of India.
Contempt as an offence
Although there have been laws to penalise Contempt of Court since India became a republic, the offence was defined in 1971 through Contempt of Courts Act. There are two types of contempt i.e. civil and criminal. Civil Contempt has been defined under Section 2(b) of CCA which makes willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court a civil offense[iv]. A person who obtains an order from court is entitled to see that the order is enforced. The courts pass orders, decrees etc. having an intention that they would be obeyed by parties. Effective checking of violations is necessary to keep up the prestige and image of the courts and it is also necessary for maintaining an orderly society in a democratic set up.
No litigant should be allowed to go free by deliberately flouting the orders of courts. That is a matter affecting the administration of justice and courts cannot have a light hearted approach in such matters.[v] The definition under Section 2(c) of CCA states that if any act of the alleged contemnor scandalizes or tends to scandalize or lowers or tends to lower the authority of any court or if that act prejudices or interferes or tends to interfere with 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 manner shall be convicted and punished for criminal contempt.[vi] Scandalising the court is a form of contempt of court. It generally takes the form of a publication, though it can include statements published by other means, such as holding banners outside a court.[vii] Where one person makes a statement, whether in oral or in writing, and another publishes it, both can be guilty of scandalising.[viii] The statements must be derogatory of the judiciary: that is, either of individual judges or courts or of the judiciary in general or a section of it.[ix]
The Suo Motu cognizance of criminal contempt can be taken by the Supreme Court or High Court as mentioned under Section 15 of the said Act. Although the law of contempt is largely governed by the 1971 Act, it is now settled law in India that the High Courts and the Supreme Court derive their jurisdiction and power from Articles 215 and 129 of the Constitution. The said issue regarding the jurisdiction is no more res integra. This situation results in giving scope for “judicial self-dealing”[x] The language of Entry 77 of List I and Entry 14 of List III of the Seventh Schedule demonstrates that the legislative power of Parliament and of the State Legislature extends to legislate with respect to matters connected with contempt of court by the Supreme Court or the High Court, subject however, to the qualification that such legislation cannot denude, abrogate or nullify, the power of the Supreme Court to punish for contempt under Article 129 or vest that power in some other court.[xi]
In Sukhdev Singh Sodhi v. The Chief Justice of the Pepsu High Court, the Court held that:
“We hold therefore that the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemner is made aware of the charge against him and given a fair and reasonable opportunity to defend himself.”[xii]
In the Prashant Bhushan case, the three judges bench led by Retd. Justice Arun Mishra also made it clear that Section 17(2) of the CCA, 1971 which makes it mandatory for issuing a copy of petition to the Contemnor shall not be applied to the Suo motu Contempt proceedings. The sole criteria is of Form 1 which has been framed under Rule 6 of the Rules of Supreme Court which requires the court to briefly state the nature of Contempt. [xiii]
Freedom of Speech and Expression
Article 19(1)(a) of COI is one of the gems of the Magna Carta of the Indian Constitution. It is vital for the sustenance of democracy in a state yet there are some restrictions attached with the said right. It is one of the precious liberties in any democracy but equally important is the maintenance of respect for judicial independence, which alone would protect the life, liberty and reputation of the citizen. It is completely in the nation’s interest that criticism of the judiciary must be measured, strictly rational, sober and proceed from the highest motives without being coloured by partisan spirit or pressure tactics or intimidatory attitude. Even prior to the enactment of the CCA,1971 a fair and reasonable criticism of judicial act did not constitute contempt and this cherished and noble facet of the larger liberty of freedom of speech and expression enshrined in Art. 19(1)(a) of the Constitution has found its echo in Section 5 of the CCA, 1971.[xiv]
The flowers of ‘free speech and expression’ blossoming on the stem of Article 19(1)(a) comes with the thorns of ‘reasonable restrictions’ clamoring its voice from sub clause 2 of Article 19 of COI. The words of the said clause is quite precise regarding the subjects including contempt of court but vagueness of the phrase ‘reasonable restrictions’ has always been a matter of judicial scrutiny. The limit of fair comment mentioned in CCA 1971, cannot be put into a straight-jacket formula or converted into a master key which will open any lock. More or less it would depend upon the facts and circumstances of each case, the situation and circumstances in which the act was done, the language employed the context in which the criticism was offered and the people for whose benefit the exercise was undertaken and the effect which it will produce on the litigants and society in relation to courts and administration of justice.[xv]
It is an established law that fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact, such fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility. Such a criticism may fairly assert that the judgment is incorrect or an error has been committed both with regard to law or established facts. But when it is said that the judge had a predisposition to convict or deliberately took a turn in discussion of evidence because he had already resolved to convict the accused, or has a wayward bend of mind, is attributing motives, lack of dispassionate and objective approach and analysis and prejudging of the issues which would bring administration of justice into ridicule. [xvi]
The proponents of Article 19(1)(a) of COI shall read the said provision along with Article 121 of COI, which bars the Members of Parliament to discuss any conduct of any Judge of the Supreme Court or of High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as provided under Article 124(4) and (5) and in the manner laid down under the Act, the Rules and the rules of business of Parliament consistent therewith.[xvii] It is quite obvious that if the Members of Parliament are not given due privilege to discuss any conduct of Judges then there is no other fora to have such discussion much less the Bar Council or a group of practicing Advocates.
Truth as a defense
One more commander was recruited in the battalion of CCA in 2003 through an amendment which added Truth as a defense in Section 13 of the said Act. The intent of the legislature in recognition of one of the fundamentals of our value system i.e. Truth must be applauded. The National Commission to Review the Working of the Constitution (NCRWC) had recommended the then government in 2003 to insert a provision in Section 13 of CCA, 1971 to enable the courts to permit justification by truth as a valid defense in any contempt proceeding if it is satisfied that such defense is in public interest and the request for invoking the defense is bona fide. If a speech or article, editorial, etc. contains something which appears to be contemptuous and the Supreme Court or the High Court is called upon to initiate proceedings under the Act and Articles 129 and 215 of the Constitution, the truth should ordinarily be allowed as a defense unless the Court finds that it is only a camouflage to escape the consequences of deliberate or malicious attempt to scandalize the court or is an interference with the administration of justice.[xviii]
Defamation or Contempt of Court?
Whether the derogatory comments made against the judges should be dealt under Contempt laws or defamation is dealt perfectly in the case of Baradakanta Mishra vs The Registrar Of Orissa High Court[xix] & another where the Constitution Bench held that that when proceedings in contempt are taken for vilification of the judge, the question which the court has to ask is whether the vilification is of the judge as a judge or it is the vilification of the judge as an individual and if the vilification of the judge is as an individual, then he is left to his private remedies and the court has no power to punish for contempt. A libel upon a Judge in his judicial capacity is a contempt, whether it concerns what he did in court, or what he did judicially out of it.[xx]
Scandalizing the court is a convenient way of describing a publication which, although it does not relate to any specific case either past or pending or any specific Judge, is a scurrilous attack on the judiciary as a whole, which is calculated to undermine the authority of the courts and public confidence in the administration of justice.”[xxi] The Committee was set up in U.K to revise the penal laws on Contempt which was headed by Sir Henry Josceline Phillimore. In 1967 which was completed in 1974 and subsequently led to Contempt of Court Act, 1981. The Committee in its report at one stage had affirmed that the judges do have the option of initiating defamation proceedings and there was no need for further protection. In Contrary to the opinion ,the committee concluded stating that some restraints were required in order to protect the administration of justice as well as preserving the public confidence in its honesty and impartiality.[xxii]
Judges’ only weapon
Intellectuals and Advocates across the world propagate and contend for one of the very popular principles of natural justice of the judicial battle i.e. Audi Alteram Partem which means that no party should be judged without being heard. Unfortunately, persons who are held responsible if the said principle is not followed are themselves denied the said right.
It will be relevant to refer to some of the clauses of the ‘Restatement of Values of Judicial Life’ adopted in the Chief Justices’ Conference at New Delhi in September, 1992. Under clause 8, a Judge is not expected to attend a public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination. Likewise, as per clause (9) a Judge is expected to let his judgment speak for themselves.[xxiii] It is very easy to make any allegation against the Judges in the newspaper and media. Judges have to be the silent sufferer of such allegations, and they cannot counter such allegations publicly by going on public platforms, newspapers or media. Nor can they write anything about the correctness of the various wild allegations made, except when they are dealing with the matter. The sole medium of expression is through their judgments which are not accessed by the general public and hence are ignorant of the exact law. It is highly unfair to make scurrilous and scathing remarks on the judges in their official capacity when the contemnors know that they cannot respond and will suffer silently.[xxiv]
Contempt laws in United Kingdom
Indian contempt laws have been derived from U.K and its roots can be traced back to one of the earlier courts of record, if not the earliest, expressly created as such seems to be the Court of the Mayor and Corporation of Madras established under the East India Company's Charter of 1687.[xxv] The English law of contempt which itself had a haphazard growth came to be introduced in our country in a yet more haphazard manner. But amendments have been made to transform the Act as per the current needs of the country. Interestingly, the U. K’s House of Lords had passed Crimes and Courts bill abolishing ‘scandalizing the court’ in 2012. The bill was proposed by Lord Pannick, a barrister as well as a crossbencher in the House of Lords. The said decision was taken based on the findings of the Law Commission formed by the order of House of Commons in 2012 wherein the Commission had affirmed the view that there had been a change in attitude of the citizens and it was no longer a case where the authority figures were given immense respect.
The offence of scandalizing the court arose in an era where deferential respect to authority figures was the norm. This is clearly no longer the case to nearly the same extent as it was.[xxvi] In India however the situation is not the same. The citizens consider judges as priests of the temples of Justice. More importantly the literacy rate of U.K. is 99% as against 77.7% in India.[xxvii] Hence, chances of getting influenced due to any scurrilous or scathing remark against the judiciary and shaking the faith of the general public in such an institution is immense in India. As mentioned above only an independent judiciary is the sine qua non of a vibrant democratic system. Only an impartial and independent judiciary can stand as a bulwark for the protection of the rights of the individuals and mete out even handed justice without fear or favour.
In the U.K, however, the parliament is supreme. The judiciary, there, has not been separated from the legislature. In fact, the House of Lords acts as the highest Court of appeal.[xxviii] The amendment had only abolished scandalizing the court as an offence or form of contempt at common law. It would have no effect on statutory forms of contempt such as those under section 12 of the Contempt of Court Act 1981 (relating to magistrates’ courts), section 118 of the County Courts Act 1984 (relating to county courts) or section 309 of the Armed Forces Act 2006 (relating to service courts). [xxix]
Devotees versus Caretakers
There seems to be a misconception regarding how judges deal with contempt cases. It is often believed that any citizen criticizing the court or making derogatory remarks against the judges or courts shall be prosecuted and convicted. It is indeed partially correct but recent judgments of Supreme Court have unfolded the interpretations of ingredients like interference in ‘administration of justice’.
The three-judge bench led by Retd. Justice Arun Mishra in In re Prashant Bhushan and Anr. held that the allegations made by the contemnor through two tweets on CJI as well as former CJIs were scandalous and were capable of shaking the very edifice of the judicial administration and also shaking the faith of the common man in the administration of justice.[xxx] It is important to note here that although two tweets seem trivial for shaking such an enormous institution for a common man, in reverse this is quite possible when the contemnor is an advocate of 35 years of standing and has filed several public interest litigations (PILs). When a man of such a stature raises allegations against an institution there are high chances that it would create distrust in the mind of the public and in the capacity to impart fearless justice. The consequences would not be the same if the same two tweets in question were done by an ordinary man. Hence, he would not have been prosecuted for scandalizing the court much less contempt of court.
Advocates unlike ordinary citizens are bound by the “Standards of Professional Conduct and Etiquette” of the Bar Council of India Rules. The rules clearly say that if there is any complaint against any judicial officer then it shall be his right and duty to submit his grievance to proper authorities. Though expectations from an ordinary citizen may be different, the duties and expectations that are expected from a lawyer of long standing are on the higher side. An advocate cannot forget his ethical duty and responsibility and cannot denigrate the very system of which he/she is an integral part. Fair criticism is not to be silenced, but an advocate has to remind himself/herself, where he/she crosses the zone of propriety, and the Court cannot continuously ignore it, and the system cannot be made to suffer. When the criticism turns into malicious and scandalous allegations thereby tending to undermine the confidence of the public and the institution as a whole, such a criticism cannot be ignored.
The courts in India have always been open to criticism and public scrutiny. Judges have always welcomed free flow of ideas and criticisms about the judicial system but as long as criticisms do not impair or hamper the administration of justice. Cognizance for contempt of court is taken by courts when the alleged contemnor had crossed the ‘lakshman rekha’ which divides “fair criticism and scandalizing the court”. In India more than a billion people from all walks of life rely on courts to get justice and show utmost faith in judges unlike U.K where judges or judiciary lack respect due to reasons like non independence of judiciary and alternatives like arbitration. It is beyond the doubt that like any other institution, the judiciary is not flawless and pious. Any proposition stating that an institution is or can ever be corruption free is quixotic. Any grievance against any judicial officer must be intimidated to the appropriate authority like the registrar of the court of Chief Justice of the High Court or Supreme Court. The aim is to protect the trust and faith of the devotees for the temples of justice. Unlike devotees (ordinary citizens), the caretakers of the temples (advocates), are expected not to cross the zone of propriety. The question whether temples of justice can survive without the battalions of CCA and COI? The answer would be No. As long as the existence of any law is benefitting the citizens of the country, omne bonum.
[i] M.CJ.Vile, Constitutionalism and Separation of Powers, (1967)2nd Edition Indian police .Liberty Fund, Online Library of Liberty accessed on 21 June 2010. [ii] https://shodhganga.inflibnet.ac.in/bitstream/10603/218008/9/09_chapter%202.pdf [iii] Indira Gandhi v Raj Narayan, 1975 SCC (2) 159 [iv] Contempt of Courts Act, 1971 [v] Krishnan Kesavan And Ors. vs Kochukunju Karunakaran, AIR 1988 Ker 107 [vi] Supra 4 [vii] CP para 17; Vidal, The Times, 14 Oct 1922 [viii] A-G v O’Ryan and Boyd (1)  1 IR 70. [ix] Infra 27 [x] Samaraditya Pal, The Law of Contempt Vol (1) Edn 5, (2012) [xi] Supreme Court Bar Association of India V. Union of India (1998) 4 SCC 409 [xii] Sukhdev Singh Sodhi v. The Chief Justice and Judges of the Pepsu High Court, 1954 SCR 454 [xiii] SC, Suo Motu Contempt Petition (Crl.) No.1/2020, 14th August, 2020 [xiv] SC, Suo Motu Contempt Petition (Crl.) No.1/ 2020, 31st August, 2020 [xv] Rama Dayal Markarha vs State Of Madhya Pradesh 1978 SCR (3) 497 [xvi] ibid. [xvii] Constitution of India, 1950 [xviii] Indirect Tax Practitioners’ Association v. R.K. Jain, (2010) 8 SCC 281 [xix] Baradakanta Mishra vs The Registrar Of Orissa High Court, 1974 SCR (2) 282 [xx] Oswald’s Contempt of Court (3rd Edn.), 1993, at p. 50 [xxi] Chokolingo v. Attorney General of Trinidad and Tobago [(1981) 1 All ER 244, 248] [xxii] PhilliSir Henry Josceline Phillimore report on Contempt of Court, 1974 [xxiii] Restatement of Values of Judicial Life’ adopted in the Chief Justices’ Conference (1992) [xxiv] Supra 14 [xxv] Report of the Committee on Contempt of Courts, roruary 1963, (Sanyal Committee report) [xxvi] Munby LJ in Harris v Harris  2 Family Law Reports 895 at ; CP para 19. See also Lord Taylor, “Justice in the Media Age” (1996) 62(4) Arbitration 258. [xxvii]https://timesofindia.indiatimes.com/india/international-literacy-day-2020-how-literacy-rate-is-calculated-in-india/articleshow/77991200.cms#:~:text=India's%20literacy%20rate&text=As%20per%20NSO%2C%20India's%20average,in%20the%20list%20with%2096.2%25. [xxviii] Santosh Kumar Pandey, 2018 “Independence of judiciary in India” Vol. IV, International Journal of Law, ISSN:2455-2194 [xxix] 335th Law Commission Report, Contempt of Court: Scandalising the Court. http://lawcommission.justice.gov.uk/areas/contempt.htm [xxx] Supra 14