‘CRITICISM’ NOT ‘CONTEMPT’
This article has been authored by Hritik Pathak, a second-year student at RGNUL, Punjab
Law is often seen as the noblest among every profession, and it is the obligation of the general public to give regard and respect to the Court. Any activity of disregard or negligence which hindrances the delivery system of justice requires to be dealt with punishment. Therefore, the prerequisite for such law was required and it is an outright need for the establishment of an impartial and independent jury. Before going into the profundity of Contempt of Court and the laws which govern a similar concept, we should see the assorted significance of contempt of court and its utility in the field of law. In general parlance, contempt refers to an act which has caused or is ought to cause disobedience to anything which as a rule must be complied, regarded, or followed.
However, In India, the actions of contempt are dealt under ‘Contempt of Court Act 1971’(Herein after referred to as “the Act”), and the same states that the contempt of court means civil contempt or criminal contempt.
To further clarify the difference between both, the Act defines civil contempt under Section 2(b) as “willful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a Court. Whereas, criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act”.
Contempt v. Freedom of Speech
The Constitution guarantees every individual freedom of speech and expression but is the freedom at conflict with contempt of court? The foundational tenet of the constitution is balance. Both contempt of court and freedom of speech and expression originate from the constitution. As the freedom of speech and expression cannot be unbridled, the court cannot exercise unfettered power to punish for its contempt. Freedom of speech and expression has been given a place of great importance in the Indian Constitution. Public criticism is essential in a democracy as it keeps a check on the working of a democracy, which includes all institutions and organs of the State.
In the light of the case of Arundhati Roy, The Hon'ble Supreme Court of India made it clear that the dignity of the court cannot be compromised as fair criticism and the same does not fall under the Right to freedom of speech and expression guaranteed in Article 19 (1) (a) of the Constitution. Whereas in the case of UP Residential Employee Cooperative Society v. New Okhla Industrial Development Authority, The Hon'ble Supreme Court of India held that filing a false affidavit with the intention of misleading the court amounts to criminal contempt.
Overview of the Law
The concept of contempt originates from British law where the power of contempt of court was necessary to maintain the authority and dignity of the judges. In the landmark judgment of Surendra Nath Banerjee v. The Chief Justice and Judges of High court, the Privy Council held that the High Court possess the power to punish for contempt from its own creation. To bring more transparency to the law, ‘The Contempt of Court Act 1926’ was passed, later on, in 1952, it was replaced by Contempt of Court Act 1952. This was later on again replaced by ‘The Contempt of Court Act, 1970.’
Subsequently, the Act of 1971 was passed by the Indian government and it beautified the idea of justice related to the law of contempt of court.
The contempt of court act 1970 got amended in 2006 and a layer of defence was added on the Act in which it stated that a person having good faith and belief shall not be subjected to contempt.
i. Punishment under the act
Section 12 of the Act deals with the punishment for the contempt of court, which states that in a case of contempt, a person would be liable for simple imprisonment of a term which may extend to 6 months, fine up to Rs.2,000 or both.
ii. Period of Limitation
Section 20 of the Act deals with the period of limitation which states that no court should initiate the proceedings on its own motion or within a year from the date of the contempt.
iii. Defences against the civil contempt
Unawareness of order- The contemnor was not aware of the order made by the court. Disobedience was not wilful- The contempt was circumstantial, as the reason was due to accidental, administrative, or beyond the control of the contemnor. More than one interpretation of the order- If the order involves more than one reasonable and rationale interpretation under the bonafide intention.
iv. Defences against the criminal contempt
Innocent publication/ distribution. Fair report of judicial proceedings. A fair criticism of a judicial act. Justification by truth
In reference to the Prashant Bhushan’s remark on The Cheif Justice of India, S.A Bobde will not be considered as contempt because defaming the judge personally would not account forcontempt but it may be considered as defamation.
v. The remedies against a order of punishment-
Apology- The contemnor may apologize to the court and the court may grant him relief if it finds that it has been with a sense of repentance. As in the judgement of Union Of India & Ors vs A.K. Pandey, the Supreme Court repeatedly held that the court is not bound to accept the apology.
In the case of MC Mehta v. Union of India, the Court held that the apology should not be used as a defence mechanism and it should be genuine in nature.
Appeal- Prior to 1971, there was no statutory right to appeal against the orders of the High Court but contemnors were not remediless. The High Court could itself grant the certificate under Article 134, and if it does not the appeal cam be entertained in Supreme Court by the virtue of Article 136 of the Indian Constitution.
The Tale of Tweets
There are two contempt cases against Adv. Prashant Bhushan, who is booked under Section 2(c) (i) of the ‘Contempt of Court Act 1971’ which states that if a person “scandalises or tends to scandalise", lowers the authority of judiciary or prejudices and interferes with any judicial proceeding.
The first case of contempt against him dates back to 2009 when he remarked about the conduct of previous Chief Justices of India. In an interview, he said, “Half of the last 16 CJIs were corrupt.” The second case against him is a fresh one where he said "role of the last 4 CJIs and the role of the Supreme Court must be examined in the destruction of democracy in the country.”
Recent Developments In Prashant Bhushan's Case.
Senior Journalists Arun Shourie and N.Ram have advocated the rights of Prashant Bhushan, they have moved an application to the Supreme Court saying that the case of contempt is ‘incurably vague’ as the law is unconstitutional and deeply rooted on colonialism. Their petition has been filed by Advocate Kamini Jaiswal focussing on the legality of Section 2(c)(i) of the Contempt of Court Act, 1971.
The ambit of the definition of criminal contempt is extremely wide. As of 2018, there were 96,993 civil and 583 criminal cases pending in the courts. A high number of cases of contempt not only lays fingers on the reputation of Judiciary but also it broadens the legislative gap which does not paint a very good picture. In past, there were demands forwarded for reviewing the law as it was seen as draconian in nature, but they were dismissed on the grounds that the Act only outlines the procedure in relation to the investigation and punishment of the contempt. Therefore the deletion of the act would not invalidate the inherent constitutional power vested on the superior courts to punish anyone for its contempt. The need for the offence of criminal contempt has been questioned and in response the same has been justified repeatedly. In the west, the contempt law has become obsolete with jurisdictions recognising it as an archaic law. For example, India got its law on Scandalising the court from England but in 2013 England abolished the offence altogether. During BREXIT, the newspaper ‘DAILY MAIL' published in 2016, stating the Judges as the enemies of people but no action of contempt was taken against them. While one can accept the constraints imposed by the Constitution, it is overwhelming to accept the ad hoc rules and provisions imposed by the whims of the judges.