Context: Attorney-General K.K. Venugopal on Monday declined to give consent to the initiation of contempt proceedings against A.P. Chief Minister Jagan Mohan Reddy and his Principal Adviser Ajeya Kallam.
What is Contempt of court?
- Contempt of Court is the offense of being disobedient to or being disrespectful towards a court of law.
- Any action which defies a court’s authority or impedes the ability of the court to perform its functions or wilfully fails to obey a court order.
- A judge may impose sanctions such as a fine or jail on the person, found guilty of contempt of court.
There are two types of contempt of Court:
- Civil Contempt
- Criminal Contempt
Civil contempt of Court: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as willful disobedience to any judgment, decree, direction, order, writ, or other processes of a court or wilful breach of an undertaking given to a court.
Criminal Contempt of Court: It is defined under Section 2(c) of Contempt of Court Act, 1971. According to which criminal contempt is any publication which may result in:
- Scandalizing the Court by lowering its authority.
- Interference in the due course of a judicial proceeding.
- Creates an obstruction in the administration of justice.
Source of Contempt Law:
The contempt powers of the Supreme Court trace their source to different provisions in the Constitution of India, namely, Article 32, 129, 131, 139A, and 142(2).
- Article 129: “The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”
- Article 215:
- “Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”
- High Courts have been given special powers to punish contempt of subordinate courts, as per Section 10 of The Contempt of Courts Act of 1971.
- High Courts do not have the power to initiate contempt proceedings of the Supreme Court, if there is contempt of the Supreme Court then only the Supreme Court can initiate the contempt proceeding.
- Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.
Contempt of Courts Act of 1971–
- The Act defines the power of courts to punish for their contempt and regulates their procedure.
- It gives courts powers to restrict an individual’s fundamental right to personal liberty for “scandalizing the court” or for “wilful disobedience” of any judgment, writ, direction, or order.
- Under the Act, judges could also be tried if they act in contempt of court. For Example, Justice Karnan was awarded six months of jail term for contempt of SC.
The amendment to the Contempt of Courts Act, 1971 in 2006
Before the amendment, neither ‘truth’ nor ‘good faith’, were a defense against contempt proceedings in India. However, the 1971 amendment made truth a valid defense in all contempt proceedings if the publication is in the public interest and is bonafide. It also clarified that the Court may impose punishment for contempt only when it is satisfied that the action substantially interferes, or tends to substantially interfere with the course of justice.
Amendment of 1971 Act in 2006 was not followed in the Mid-Day case, in which Delhi high court sentenced employees of English tabloid MID-Day for publishing scandalous reports against a retired Chief Justice. In their defense, Mid-Day submitted that whatever had been published was the truth and was a permissible defense in contempt of court case.
Judicial cases dealing with contempt law and Court’s views:
- Hiralal Dixit vs. state of UP, 1954: Actual hindrance or obstruction in the administration of justice is not an essential condition, acts which may be derogatory and resulting in lowering of court’sin public eyes, may result in contempt of Court.
- K. Daphtary vs. O.P. Gupta 1971: Any act which brings down the confidence of Judiciary in the minds of the general public or is hindering the administration of justice or affecting the reputation of the judges of the SC or the SC itself, can be read under Article 129 read with Article 142 and considered under contempt law.
- Auto Shankar’s case, 1994: Court invoked the famous “Sullivan doctrine” that public persons must be open to stringent comments and accusations as long as made with bonafide diligence, even if untrue.
In the case of SUBRAMANIAN SWAMY V. UNION OF INDIA, 2016 it was held that the comments made regarding a particular Judge of the Court would not amount to contempt and this would amount to defamation under Section 499 of the Indian Penal Code, 1860. Thus, the comment or the publication should be of such nature that it hinders the administration of justice.
- Duda P.N.V. Shivshankar Case 1998: SC observed that contempt jurisdiction should not be used by Judges to uphold their own dignity. In the free marketplace of ideas, criticism of the judicial system or the Judges should be welcomed until they don’t impair or hamper the “administration of justice”.
In the recent case where a press conference was held by four senior-most judges of SC was not a contempt of court as they had exercised their right of speech and expression under Art. 19(1)(a) of the constitution; and also their act was done in good faith and for the public interest.
- Arundhati Roy Case: SC observed that fair criticism of the conduct of a Judge, the institution of the judiciary, and its functioning may not amount to contempt if made in good faith and in the public interest.
- Sahara case, 2012: Five-judge bench of SC permitted contempt law as a pre-emptive mechanism in pending proceedings so that sensitive reports and comments don’t lead to a “real and substantial risk of prejudice to the proper administration of justice” and “the fairness of trial”.
- Indirect Tax Practitioners’ Association vs. R.K. Jain, 2015: C. observed that the Court may permit ‘truth’ as a defense against contempt proceedings if two things are satisfied
- It is in the public interest
- The request for invoking said the defense is bona fide.
Recent instances where contempt of court proceedings was invoked by courts:
- In October 2018, contempt proceedings were initiated by Delhi High Court against journalist S. Gurumurthy, who tweeted about alleged bias in the court’s decision in Bhima-Koregaon violence case.
- The Bombay High Court in October 2018 sentenced a former journalist, KetanTirodkar, to three months’ simple imprisonment and Rs 2000 fine for posting defamatory allegations against sitting and retired judges on social media. The court observed that social media users don’t have the unfettered right to make baseless allegations citing freedom of speech and expression.
Contempt of court law is draconian and should be discouraged because:
- Antithetical to freedom of speech: Article 19(1)(a)of the Constitution gives the right to freedom of speech and expression to all citizens, while Articles 129 and 215 curb people’s freedom to speak against the court’s functioning.
- Subjective definition: The law is not objectively defined and can be used against even bonafide intentions. It is often used by judges arbitrarily to suppress their criticism by the public. As Justice Krishna Iyer said, the law of contempt has a vague and wandering jurisdiction with uncertain boundaries.
In the US, courts no longer use contempt to silence comments on judges or legal matters. The First Amendment to the US Constitution forbids the imposition of contempt sanctions on newspapers.
- Conflict of interest: Contempt law invokes conflict of interest for the judiciary as it itself is the victim and the judge simultaneously.
- Against democratic ethos: True democracy sustains with constructive criticism and contempt law suppresses criticism of judiciary by the public.
- Against people’s sovereignty: Contempt law is not in consonance with the constitutional scheme which makes people sovereign and the source of all power.
- Misplaced law: An enforced silence, in the name of preserving the dignity of the judiciary, would cause more resentment, suspicion and disrespect for the judiciary among people than the opposite.
- Discontinued elsewhere: The offense of “scandalizing the court” continues in India while it was abolished in England and Wales long ago.In March 8, 2018, the Department of Justice wrote to Law Commission, asking it to amend the 1971 Act to drop “scandalizing the court” as a ground for contempt and restrict contempt to only “wilful disobedience” of directions/judgments of the court.
- Lack of safeguards: Contempt law is draconian in nature without commensurate safeguards in favor of the persons charged with the accusation of having committed contempt of court.
- The right of the citizens to free speech and expression under Article 19(1)(a) should be treated as primary, and the power of contempt should be subordinate.
- Judiciary should balance two conflicting principles, i.e. freedom of expression, and fair and fearless justice.
- This extraordinary power must be sparingly exercised considering the subjectivity involved in its definition and only when there is public interest demand.
- The purpose of the contempt power should not be to uphold the majesty and dignity of the court but only to enable it to function.
- It’s time for the legislature to take steps to amend the Contempt of Court Act and objectively define the confines of contempt law and its applicability.
- Establishing a review mechanism, as a safeguard against judicial tyranny and to remove the conflict of interest, by instituting an independent panel to verify the actions which extract contempt law.