“Democracy is a ceaseless endeavour. Democracy is a work in progress.”
— Nani Palkhivala
Introduction
Lawyers are frontline defenders of the Constitution of India and, more than anyone else, require the protection as whistleblowers in court. A contempt is to protect the institution and to prevent interference in the course of justice. Undermining the majesty of the institution or undermining the authority that is vested in Judges is a very important take away. I think that crosses a line from legitimate criticism of a ruling and goes into whole different area. Legitimate criticism of ruling is permissible but on the other hand we must draw the line where it becomes abusive, irrational, personal attacks on Judges that undermines the entire integrity of the institution.
Lord Denning, in 1968, Britain’s former master of rolls, had this to say to the law of contempt: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity nor we will use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.” It is the right of every man, in Parliament or out of it, in 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[1].
Brief history
The origin of the law of contempt of courts in India can be traced back from the period of Ramayana and Mahabharata, where the courts were called as sabha and the king was called as sabhapati. Here the judicial function was administered by the sabhapati and justice has to be delivered as per the dharma. And at that time whosoever vilify the decision of sabhapati, would be liable for punishment. In ancient times the said law of contempt was used to maintain the dignity and integrity of the sabha and sabhapati and is not in codified form. It varies from empire to empire and king to king. As it is not codified, the meaning of contempt carries different meanings and interpretations as per religion and dharma.
As today, we call it that the origin of contempt of courts in India can be traced from England law but India has developed this concept and can be traced back from history. In England the Supreme Courts of Record from early times exercising the power to punish the contemnors who scandalises the Courts or Judges. This right was first recognised by the judicial committee of the Privy Council which observed that the offence of the contempt of court and the powers of the Indian High Courts to punish it are same as in the Supreme Court in England. The first Indian statute on the law of contempt i.e. the Contempt of Courts Act was passed in 1926.
Contempt and its objective
The Contempt of Courts Act, 1971 comes into existence on 24-12-1971 with an objective to define and limit the powers of certain courts in punishing contempt of court and to regulate their procedure in relation thereto. Which means contempt jurisdiction enjoyed by the courts is only for the purpose of upholding the majesty of the judicial system that exists. While exercising this power, the court must not be hypersensitive or swung by emotions, but must act judiciously[2].
Contempt is defined under Section 2(a)[3] of the Contempt of Courts Act, 1971 which says “contempt of court” means civil contempt or criminal contempt. Whereas “civil contempt” is defined under Section 2(b) which means wilful disobedience to any judgment decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to court. And on the other hand, “criminal contempt” is defined under Section 2(c) which means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
- Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
- 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[4].
Any wilful disobedience of court order to do or abstain from doing any act is a civil contempt. Civil contempt arises when the power of the court is invoked or exercised to enforce obedience to court orders.[5] On the other hand, criminal contempt is criminal in nature. It includes defiant disobedience to the Judges in the court, outrages of Judges in open court, libels on Judges or courts or interfering with the course of justice or an act which tends to prejudice the course of justice.
A person is guilty of a criminal contempt when his conduct tends to bring the authority and administration of law into disrespect or tends to interfere with or prejudice litigants during litigation[6].
Let’s take an example for better understanding the concept of contempt of court. Let’s assume a situation where the impact of contempt is of that nature, where a common man lost his faith in the judiciary. Let’s say, otherwise for a common man, if the local MLA came and getup and abuse the court, what respect the common man will have for the institution because the said MLA effectively taken away one important pillar of democracy.
As per the observations of Justice Wilmot in R. v. Almon[7] made as early as in 1765:
“… And whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of Judges, as apricate individuals, but because they are the channels by which the King’s justice is conveyed to the people.”
Constitution of India and contempt of court
It is very conflicting in nature and difficult to understand that whether the law relating to the contempt of court is somewhere touches two important fundamental rights of the citizen, namely, the right to personal liberty and the right to freedom of speech and expression or not?
There is a very thin line between criticism and vilification. One of the basic principles of independence is that you are free to do anything which does not intervene in my independence. The same goes to determine whether it is a contempt or not? If you are criticising, it is valid but if you are vilifying or tried to degrade the integrity of the institution then it is a contempt.
- Article 129[8] – Grants Supreme Court of India, the power to punish for contempt of itself.
- Article 142(2)[9] – Enables the Supreme Court of India, to investigate and punish any person for its contempt.
- Article 215[10] – Grants every High Court the power to punish for contempt of itself.
Note: That the source of power of Supreme Court of India, to punish for its contempt is not from Section 15[11] of the Contempt of Courts Act, 1971 but it flows from Articles 129 and 142(2) of the Constitution of India.
The Supreme Court has emphasised upon the need for the contempt of court in the following words:
Availability of an independent judiciary and an atmosphere wherein Judges may act independently and fearless is the source of existence of civilisation in society. The writ issued by the court must be obeyed. It is the binding efficacy attaching with the commands of the court and the respect for the orders of the court which deter the aggrieved persons from taking the law into their own hands because they are assured of an efficacious civilised method of settlement of disputes being available to them wherein, they shall be heard and their legitimate grievances redeemed. Any act or omission which undermines the dignity of the court is therefore viewed with the concern of the society and the court treats it as an obligation to zealously guard against any onslaught on its dignity.[12]
The Supreme Court exercises this power to punish an act which tends to interfere with the course of administration of justice. The following inter alia have been held to constitute contempt of court: [13]
- Insinuations derogatory to the dignity of the court which are calculated to undermine the confidence of the people in the integrity of the Judges.
- An attempt by one party to prejudice the court against the other party to the action.
- To stir up public feelings on the question pending for decision before court and to try to influence the Judge in favour of himself.
- An attempt to affect the minds of the Judges and to deflect them from performing their duty by flattery or veiled threat.
- An act or publication which scandalises the court attributing dishonesty to a Judge in the discharge of his functions.
- Wilful disobedience or non-compliance of the court’s order.[14]
In several cases, private parties violating or flouting the Supreme Court orders have been held guilty of contempt of court:
- Gomti River water was being polluted due to discharge of effluents from the distillery of a company. The Supreme Court ordered the company to remove deficiencies in the effluent treatment plant by a certain due date. The company failed to do so and yet kept on running its plant. The Court ruled that violation of the court order by the company was deliberate and pre-planned indicating a defiant attitude on its part. The Court imposed a fine of Rs 5 lakhs on the company which amount was to be utilised for cleaning of the Gomti River.[15]
- An article in a newspaper, criticising a Supreme Court decision, attributing improper motives to the Judges and seeking to create an impression in the public mind that the Supreme Court Judges act on extraneous considerations in dealing cases has been held to constitute court’s contempt. The Court has stated that if an impression were created in public mind that the Judges in the highest court act on extraneous considerations in deciding cases, public confidence in the administration of justice would be undermined and no greater mischief than that could possibly be imagined.[16]
Note: Contempt of court is a matter between the court and contemnor and hence, held, third parties cannot intervene. Intervention applications are thus not maintainable.[17]
Supreme Court and the Contempt of Courts Act, 1971
As per the Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975[18]. In case of contempt other than the contempt referred to in Rule 2, the Court may take action:
- Suo motu; or
- On a petition made by Attorney General, or Solicitor General; or
- On a petition made by a person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General.
A bare reading of Rule 3 helps us understand that there are 3 ways for initiating contempt proceedings. The first is suo motu, the second is the petition made by the Attorney General or the Solicitor General, and the third is on the basis of a petition made by any person and where criminal contempt is involved then the consent of the Attorney General or the Solicitor General is necessary.
As in necessary to understand that the Supreme Court of India is the supreme authority and the powers for the contempt of itself is a constitutional power vested to this Court, such power cannot be abridged or taken away even by legislative enactment. Whereas on the other side the Contempt of Courts Act, 1971 is a legislative enactment.
Although the law of contempt is largely governed by the Contempt of Courts Act, 1971. It is now settled law in India that the Supreme Court and the High Courts derive their jurisdiction and power from Articles 129 and 215 of the Constitution of India. This situation results in giving scope to “judicial self-dealing”.
It is the saying of the Supreme Court of India that a scurrilous attack on a Judge, in respect of a judgment or past conduct has in our country the inevitable effect on undermining the confidence of the public in the judiciary; and if confidence in judiciary goes administration of justice will definitely suffers[19].
Permissible limit in the eyes of law
Scandalising a Judge as a Judge is different from scandalising a Judge as an individual. The abovementioned assertions bring both freedom of speech and expression and contempt of court, in conflict, on one side of the coin, freedom of fairly and reasonably criticising judiciary increases its accountability but on the other side of the coin, the power of punishing contempt of court ensures free and non-obstructed administration of justice. When the proceedings are taken for vilification of the Judge, the question which the Court has to determine is whether the vilification is of the Judge as a Judge or it is a vilification of a Judge as an individual. That 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. In the former case, the Court will proceed to exercise the jurisdiction with scrupulous care and in cases which are clear and beyond reasonable doubt.[20]
A distinction is drawn between a mere libel or defamation of a Judge personally and what amounts to a contempt of court. A mere defamatory attack on a Judge is not actionable but it becomes punishable when it is calculated to interfere with the due course of justice, or the proper administration of law by the Court. Alternatively, the test is whether the wrong is done to the Judge personally, or it is done to the public.[21]
A fair, reasonable, temperate and legitimate criticism of the judiciary, or of the conduct of a Judge in his judicial capacity is permissible. A contempt is to protect the institution and to prevent interference in the course of justice. Undermining the majesty of the institution or undermining the authority vested in Judges is a very important take away. I think that crosses a line from legitimate criticism of a ruling and goes into a whole different area. Legitimate criticism of a ruling is permissible and on the other hand we must draw the line where it becomes abusive, irrational, personal attacks on Judges that undermines the entire integrity of the institution. That has to be where we stop, that is where the freedom of speech ends. Anything that/which undermines the institution rather than criticises the institution that is where you cross the bounds of legitimacy.
In Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago[22], the court said “… no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.
Although Section 5 of the said Act states that fair and reasonable criticism is not to be termed as a contempt of court. A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided[23]. Judgments are open to criticism that must be done without casting aspersions on the Judges and the courts and without adverse comments amounting to scandalising the courts[24]. Actual interference with the course of administration of justice is not necessary, it is enough if the offending publication is likely on if it tends in any way to interfere with the proper administration of law[25].
Note: That a contempt petition cannot be withdrawn by the petitioner as a matter of right. The matter is primarily between the court and the contemnor. It is, therefore, for the court to allow or to refuse withdrawal in the light of the broad facts of the case and more particularly whether respect for judicial process would be enhanced or reduced by the grant or refusal of withdrawal. It is for the court to determine whether the act complained of tending to scandalise the court if viewed with certain severity with a view to punishing the person would in the larger interest of the society enhance respect for the judicial process, or too sensitive attitude in such matter may even become counterproductive. The power to commit for contempt of court has to be exercised with greatest caution.
Conclusion
At last, I would like to conclude from the golden words of Lord Atkin in Andre Paul Terence Ambard v. Attoney General of Trinidad and Tobago[26] “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
In the free market place of ideas criticisms about the judicial system or the Judges should be welcomed, so long as criticisms do not impair or hamper the administration of justice. As one should know where to stop and when to stop, as there is a very thin line difference between criticism and vilification. If one has the right to freedom of speech and expression as their fundamental right on one side then he has the duty/obligation to maintain dignity and integrity of the institution on the other side, as the freedom of speech and expression is not an absolute right it can be taken away in case someone tries to cross the justifiable limit permitted by the law of land.
For instance, if I fight a case and I loose, I should have the confidence to accept that I tried my case but it went wrong. I should not go home thinking the Judge was worried about what newspaper would say and that is why he decided against me. The day I get that feeling you have eroded my faith in judiciary.
† Advocate, e-mail: adv.nihitsinghal@gmail.com.
[1] Lord Denning in Reg. v. Commr. of Police of the Metropolis, ex p, Blackburn, (1968) 2 QB 150.
[2] W.B. Administrative Tribunal v. S.K. Monobbor Hossain, (2012) 11 SCC 761.
[3] <http://www.scconline.com/DocumentLink/IB5rg5rZ>.
[4] The Contempt of Courts Act, 1971.
[5] DDA v. Skipper Construction, (1995) 3 SCC 507.
[6] DDA v. Skipper Construction, (1995) 3 SCC 507.
[7] 1765 Wilm 243 : 97 ER 94.
[8] <http://www.scconline.com/DocumentLink/aMeb67Y3>.
[9] <http://www.scconline.com/DocumentLink/z3Hfxsu4>.
[10] <http://www.scconline.com/DocumentLink/z3Hfxsu4>.
[11] <http://www.scconline.com/DocumentLink/Pu75QPE4>.
[12] Om Prakash Jaiswal v. D.K. Mittal, (2000) 3 SCC 171.
[13] Pritam Pal v. High Court of M.P., 1993 Supp (1) SCC 529.
[14] Rajiv Choudhary v. Jagdish Narain Khanna, (1996) 1 SCC 508.
[15] Vineet Kumar Mathur v. Union of India, (1996) 7 SCC 714.
[16] Aswini Kumar Ghose, In re v. Arabinda Bose, 1953 SCR 215.
[17] Bhushan Power and Steel Ltd. v. Rajesh Verma, (2014) 5 SCC 551.
[18] Vide G.S.R. 368(E), dated 27-5-2014, published in the Gazette of India, Extra., Pt. II, S. 3(i), No. 287, dated 29-5-2014 <http://www.scconline.com/DocumentLink/zMvdG5rb>.
[19] C.K. Daphtary v. O.P. Gupta, (1971) 1 SCC 626.
[20] Baradakanta Mishra v. Registrar of the Orissa High Court, (1974) 1 SCC 374.
[21] Rustom Cowasjee Cooper v. Union of India, (1970) 2 SCC 298.
[22] 1936 SCC OnLine PC 15 : (1936) All ER 704.
[23] S. 5, The Contempt of Courts Act, 1971.
[24] Advocate General v. Abraham George, 1975 SCC OnLine Ker 83 : 1976 Cri LJ 158, 161.