CONTEMPT OF COURT

CONTEMPT OF COURT


Author: Naina Agarwal,
Second year,
Rajiv Gandhi National University of Law, Patiala.

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we 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.” Lord Denning [1]

The contempt of court means disregard or disrespect shown by one towards the court of law or disobey the legal authorities. In such a situation, the judge can impose fine or send to prison for a certain time period. It impairs the freedom in administration of law.
Halsbury defines contempt as consisting of words spoken or written which obstruct or tend to obstruct the administration of justice. However, no definition has been given in the Indian legislature and it is impractical to confine contempt because it varies from circumstances to circumstances. Hence, contempt should not be confined within the four walls but open to interpretation.
The two articles of the Indian Constitution deals with the same:
Article 129: It states that the apex court shall be a ‘court of record’ and it includes the power of the court to punish for contempt of itself [2]. ‘Court of record’ means the existing decisions given by the court which cannot be questioned.

Article 142(2): This article mentions that when the parliament makes provision on clause 1, the apex court has the power to make order for securing any person’s presence or document and possess the power to punish for its contempt [3]. Since, the judiciary is considered to be the guardian of Constitution, it must not violate citizen’s rights and move beyond right to liberty.

Origin


The contempt of court finds its origin in the adage “A king can do no wrong” since he was appointed by the god. Everyone was accountable to the monarch. The judges at that time were considered to be representatives of divine will. The king was the ultimate head who delegated his powers to judiciary due to the incessant increase in the number of cases and if anyone including the king makes an attempt to contempt then it raises the question of validity, authority and wisdom[4]. Kautilya, in his book Arthashastra mentioned about the governance at that time. He stated, “Any person who exposes the king or insults his council or make any type of bad attempt on the kings then the tongue of that person should be cut off.” Further he also remarked that “When a judge threatens, bully or make silence to any of the disputants in the court then he should be punished.” The law pertaining to contempt finds its roots in English law. Till 1926, such cases were governed by English principles because of absence of any statute. Sanyal Committee Report revolves around the historical aspect of contempt of law. The legislation deals with the cases taking into consider
ation freedom of speech and expression and right to personal liberty.

Essentials of contempt:


  • In the case of civil contempt, disobedience to any kind of court proceedings, the orders, judgments, decree etc. should be performed ‘willingly’.
  • ‘Publication’ is the most important aspect of criminal contempt and it can be either be spoken or written, though letters, symbols or gestures.
  • The court must make a ‘valid order’ and should be known to the respondent.
  • Contemnor’s conduct should be intentional and the court’s order should be specifically disregarded.  

In C.K. Daphtary v. O.P. Gupta[5], a public booklet was published and circulated by the respondent in order to attribute bias and dishonesty to justice shah while acting in his capacity as a judge. Along with others, Mr. C.K. Daphtary filed a petition arguing that a booklet scandalized the judges who took part in decision and disregarded the jurisdiction of the highest court of the country, thereby undermining people’s confidence. While hearing the case, apex court decided that the standard in each case was whether the impugned report was simply a defamatory mark on judge or if it actually conflicts with the proper conduct of justice and administration of judiciary.

Third party:

A third party may be accused of court of contempt if they have a role to play in the same. In LED Builders Pty v Eagles Homes Pty Ltd[6], Lindgren remarked that “it is not necessary to show that a person who has helped or facilitated a contempt of court has been held in violation of order. It is only necessary to show that the party wanted to be made responsible is aware of the order.”

Classification of contempt:


According to Lord Hardwick, contempt of court can be divided into three categories, namely;
  • Insulting the court;
  • Mistreat the parties concerned and present in court; and
  • Prejudicing the public before case is heard.[7]

But according to statute prevalent in India, i.e. Contempt of Courts Act, 1971, it can be divided into two heads: civil and criminal contempt [8]. The difference between the two was highlighted in the cases Legal Remembrancer V Motilal Ghose[9] and Vijay Pratap Singh V. Ajit Prasad [10]. The motive behind the civil contempt relates to make the contemnor do right for the wrong committed by way of sanctions whereas criminal contempt on the other hand moves with the objective of punishing the contemnor for his misbehavior to impart justice.  

Civil contempt:


According to section 2(b) of the Contempt of Courts Act, 1971 civil contempt means willful disobedience to any judgement, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court.[11]
From the above definition, two essentials can be derived:

Disobedience of any judgement or decree: There must be a disobedience of a valid order to constitute contempt of court. An order comprises of judgements, decree, orders be it final, preliminary or ex-parte. In H. Puninder v. K. K. Sethi[12], that the order against which the appeal is filed should be complied with in the absence of a stay order in appeal or a review of the higher court, pursuant to any judgment passed at a later stage, otherwise it is open to the contempt court to proceed further on the basis of the issue.

Supreme court held a different view on interim relief in case State of Jammu and Kashmir v. Mohammad Yakub Khan[13], held that where the request for stay vacation has been sent immediately by the respondent against whom the order for stay has been issued and the same is pending for disposal, the court should not continue in the contempt case unless and until the demand for stay vacation has been determined.

Such disobedience must be intentional: Mere breach of the court’s order by person is not enough. According to court, it should be willful, deliberate and intentional and proved beyond reasonable doubt. No trivial act should be taken into court.

In U.P Resi. Emp. Co-op., House B. Society v. New Okhla Industrial Development Authority[14], asked the authority to verify for the affidavit details for allotment of plots. Mr. S filed a false affidavit thereby misleading the court and hence, a show-cause notice was issued to him for contempt of court.

Defences:


Following defences can be taken if a person is accused of civil contempt-
  1. Lack of knowledge of order
  2. The breach was unintentional
  3. The order disrespected was ambiguous
    In R.N. Ramaul v State of Himachal Pradesh[15], the Supreme Court ordered the respondent’s company to recover the petitioner’s promotion in the service from a specific date. But for the given period, the respondent did not produce the monetary benefit and Contempt of Court was lodged against him. He pleads on the provided facts for the prosecution, that the court did not mention him to pay the monetary benefit. He’s finally getting the defense.
    Further in case Bharat Coking Coal Ltd. vs. State of Bihar[16], supreme court held that such ambiguous provisions must be clarified from the court.
  4. Fulfilling order is an impossible task
    In Amar Singh v. K.P Geetakrishnan, pensioner benefits were granted to many employees from a back date and hence a plea was moved for impossibility. The court held that it was difficult to comply with but not impossible.
  5. An order depicted more than one interpretation
    In T.M.A Pai Foundation v. State of Karnataka[17], it was held that unnecessary interpretations created to divert the court shall not be entertained.
  6. Order passed without jurisdiction:
    In Krishna Devi Malchand V Bombay Environmental Action Group[18], it was cleared by the court that the person should get it clarified from the court, if he feels that it has been passed without any jurisdiction.

Criminal contempt:


According to section 2(c) of The Contempt of Courts Act, 1971, criminal contempt means the publication (whether by word, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which
  • Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court,
  • Prejudices or interferes or tends to interfere with the due course of any judicial proceeding,
  • Interferes or tends to interfere with, or obstruct or tends to obstruct, the administration of justice in any other manner.[19]

    Essentials:


    1. Publication: It can be done either in spoken or written, signs, symbols, gestures, newspapers and magazines broadcasting of material on radio or television. Such should lower or tend to lower the authority of the court.


    2. Lowering authority of court: It might include scandalizing reputation of judge in particular case or as a whole which defames his ability or character. Such crime is punishable as it tends to lower the reputation of judiciary in the eyes of others and they lose confidence. The Supreme Court made it very clear in the case of Arunadhati Roy[20] that criticism which lowers the reputation of the court cannot be connoted as fair one and cannot fall in the freedom of speech and expression as guaranteed under article 19 (1)(a) of the constitution.  


    3.Interference with due process of proceeding


    4. Interference in the administration of justice

      In J.R Pa
      rashar v. Prashant Bhushan[21], supreme court held that resorting to strike on its own may not amount to contempt of the court, but if, in doing so, the court’s presiding officer, his stay, the police and the litigating parties are prohibited from entering the court, it will amount to interference in the administration of justice and will constitute criminal contempt for the trial.

      Defences:

      1. Innocent publication
      2. Fair and accurate report[22]
      3. Fair criticism[23]
      4. Bonafide complain against any officer

        In Auto Shankar’s Case, Jeevan Reddy J, described the famous “Sullivan doctrine” that public must be open to harsh comments and complaints as long as it is made with good conscience even if they are untrue.

      5. Truth

        In indirect tax practitioners’ association v. R. K. Jain, the apex court laid down two tests for the defence: it must be in public interest and revocation of this defence should be in a good faith.

      6. No substantial interference
      7. Defamation of judge personally and not an attack on administration of justice

        Remedy against the punishment[24]:

        Following are the remedies available against the punishment for contempt of court:

        1. Apology: The contemnor may seek apology to discharge his punishment for court of contempt. Supreme court, in A.K. Pandey[25] case held that the court is not bound to accept the apology unless there is an actual feeling of repentance and guilty. The apex court further clarified in M.C. Mehta v. UOI[26] that the remedy of apology should not be misused by the contemnor.
          Supreme court in Haridas v. Smt. Usharani[27] did not accept the apology as it was not found genuine. He was apologizing and asking for a chance to prove the allegations at the same time. In The Attorney General of India v Prashant Bhushan[28], the case was taken down as the court accepted the apology granted by Prashant Bhushan as a ‘genuine mistake’ for his remarks on twitter.

          2.  Appeal[29]: There lies a remedy of appeal from High Court if the decision passed is beyond its jurisdiction. The High Court under Article 134 of Indian Constitution and Supreme Court under Article 136 by Special Leave Petition may entertain the appeal.


            Criminal contempt vis a vis criminal defamation:


            Criminal defamation has been defined in Indian Penal Code, 1860 under section 499 as “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person”.[30] Right to reputation is an important aspect of right to life under article 21[31]. The concept of criminal defamation was approved by court in Dr. Subramanian Swamy vs. Union of India (UOI), Ministry of Law and Ors.[32]


            Period of limitation[33]:

            Section 20 specifies that under two circumstances, the court shall not begin any contempt of court proceedings:
            1. When the proceedings are on his own motion
            2. After period of one year from the date when the act of contempt was alleged.

              Madras High Court recently in case, Tmt. A Pushpa v Thiru Karunakaran[34] remarked that no contempt of court action can be taken after the period of limitation is over.  

              Bar on private persons[35]:

              In Hari Kishan v. Narutham Das Shastri, court imposed a bar on private persons from filing the suit as trifles might overload cases and waste precious time of court.

              Latest developments:


              Justice Karnan was the first sitting judge to be accused of contempt of court, since he blamed twenty judges working under garb of corruption and he was unable to prove this with evidence[36].

              The supreme court recently in National Lawyers Campaign for Judicial Transparency and Reforms & Ors. v. Union of India & Ors.[37] while listening to averments of Shri Mathews Nedumpara held that court can take the matter into cognizance without issuing of notice if it is seen as contempt on the face of it.
              Justice Kurien Joseph clearly mentioned that there should not be media trial on pending cases as he same would lead to contempt of court.

               A remarkable move was taken when Justice J.S Kehar in the matter Transparency International India and Another V. State of Jammu and Kashmir[38] stated that the reports wi
              th regards to corruption in judiciary should not be considered as contempt but the same should be used to remove such evils from the system.

              Supreme court recently set aside the judgment given by Punjab and Haryana High Court on the notion that criticism of judge on Facebook would not be considered as contempt[39].

              Freedom of Speech and Expression V. Contempt of Court


              The society is governed by ‘rule of law’ cherished in the Indian Constitution and the framers deliberately left the task of its successful application on the judiciary. A person possesses the right of free speech and expression under article 19(1) of the Indian Constitution. The promoters argue that they have freedom to write and criticize the Indian judiciary. But such has been always a bone of contention in many cases before the court as the gap cannot be recognized as where does the freedom of speech and expression ends and contempt of court begins. The contempt of court does not aim to protect the dignity of individual judges but safeguard the ‘administration of law’. It will leave a deep impact if a wrong is done to public as people will lose faith on the justice system which is the most important pillar of the democracy. The freedom of speech and independence of judiciary are two main facets of the constitution. Reconciling the differences between the two might be a difficult task but not an impossible one. If one gets a freedom of speech and expression does not mean he is free to commit contempt of court. The freedom should not be equated with allegations on judiciary. Hence, there must be a line of distinction between freedom and contempt of court.

              Critical Analysis of Act


              Though the act was made with due diligence but certain questions are still left unanswered. The major problem revolves around the concept whether the judiciary as a whole is being criticized or personal integrity is being violated? The gap is still lying whether the usage of word comes within the ambit of article 19(1) of Indian Constitution as freedom of speech and expression or not protected under Contempt of Court Act.  The defence of truth might be misused!

              There a huge number of cases lying pending in the high court and supreme court which makes us once doubt the validity, enforcement and stringency of the act. This leaves an overall negative impact on people as they feel less bothered to follow the same. Furthermore, under the act, the supreme court and high court have the authority to punish for the contempt but it fails to provide such powers to subordinate courts and nowhere mentions about the consequences in case of contempt and thereby turned it down to a narrow act. There lies an ambiguity regarding the definition as different interpretations can be taken into consideration. Moving forward, there is a major drawback as it goes against the notion of ‘No one should be a judge in his own cause’ and hence it calls for a high degree of vigilance. If proper steps are not taken into consideration, such contempt laws will turn as vague as Section 66A of Information Technology Act, 2000.

              Conclusion

              Despite its limitations, contempt of court act, 1971 is one of the powerful statutes which gives constitutional platform to right to dignity and personal liberty along with Article 21 of the Indian Constitution. But any conduct which brings disrespect to the administration of law shall be punished and not let free otherwise no legal validity will be left of the laws in country. There are few suggestions to overcome the shortcomings: the court should not be biased and accept fair criticisms, speedy trial should there, there should be a crystal clear difference between contempt of judge and contempt of court, intention must be taken into consideration, the act should be applied equally among all citizens and no discrimination should be done on basis of common citizen and public figures and efforts should be made to test if act comes within the ambit of the act. There must be a balance between freedom of speech and expression and contempt of court. The act should be used wisely and efficiently to impart justice.




              [1] R vs. Commissioner of Police (1968) 2 QB 150.

              [2] INDIA CONST. art. 129.


              [3] INDIA CONST. art. 142 cl. 2.


              [4] Mriganka Shekhar Dutta & Amba Uttara Kak, Contempt of Court: Finding The Limit.


              [5] C.K. Daphtary v. O.P. Gupta, 1971 1 SCC 626.


              [6] LED Builders Pty v Eagles Homes Pty Ltd, 1999 FCA 1213.


              [7] St. James Evening Post case, (1742) 2 Atk 469.


              [8] Contempt of Courts Act, 1971, Section 2(a).


              [9] Legal Remembrancer V Motilal Ghose, (1972) 1 Supreme Court Cases 573: 1972 Supreme Court Cases (Cri) 337.


              [10] Vijay Pratap Singh v. Ajit Prasad, AIR 19 66 All 305.


              [11] Contempt of Courts Act, 1971, Section 2(b).


              [12] H. Puninder v. K. K. Sethi, 1998 8 SCC 640.


              [13] State of Jammu and Kashmir v. Mohammad Yakub Khan, JT 1992 (5) SC 278, 1992 (2) SCALE 424, (1992) 4 SCC 167, 1992 Supp 1 SCR 43, 1992 (2) UJ 720 SC, (1992) 2 UPLBEC 1166.


              [14] U.P. Resi. Emp. Co-op., House B. Society v. New Okhla Industrial Development Authority, AIR 2003 SC 2723.


              [15] R.N. Ramaul v State of Himachal Pradesh, AIR 1991 SC 1171.


              [16] Bharat Coking Coal Ltd. vs. State of Bihar, 1990 SCR (3) 744, 1990 SCC (4) 55.


              [17] T.M.A Pai Foundation V. State of Karnataka, 2002 8 SCC 481.


              [18] Krishna Devi Malchand V Bombay Environmental Action Group, 2011 3. SCC 363.


              [19] Contempt of Courts Act, 1971, Section 2(c).


              [20] In re, Arundhati Roy, AIR 2002 SC 1375.


              [21] J.R Parashar v. Prashant Bhushan 2001 6 SCC 735.


              [22] Contempt of Courts Act, 1971, Section 4.


              [23] Contempt of Courts Act, 1971, Section 5.


              [24] Contempt of Courts Act, 1971, Section 13.


              [25] Ajay Kumar Pandey V. Piyush Verma, Additional Civil Judge, 2016 14 Supreme Court Cases 301, also, Amit Chanchal Jha v. Registrar High Court, Delhi, 2015 13 Supreme Court Cases 288.


              [26] M.C. Mehta v. UOI, 1987 4 S.C.C. 463.


              [27] Haridas v. Smt. Usharani, Appeal (civil) 7948 of 2004.  


              [28] The Attorney General of India v Prashant Bhushan, CONMT. PET. (Crl.) No. 1/2019 in W.P.(C) No. 54/2019.


              [29] Contempt of Courts Act, 1971, Section 19.


              [30] Indian Penal Code, 1860, Section 499.


              [31] INDIA CONST. art. 12.


              [32] Dr. Subramanian Swamy vs. Union of India (UOI), Ministry of Law and Ors., MANU/SC/0621/2016.


              [33] Contempt of Courts Act, 1971, Section 20.


              [34] Tmt. A Pushpa v Thiru Karunakaran, W.P.No.2551 of 2018, Madras High Court.


              [35] Contempt of Courts Act, 1971, Section 15.


              [36] In re, Hon’ble Shri Justice C.S. Karnan, 2017 7 Supreme Court Cases 1.


              [37] National Lawyers Campaign for Judicial Transparency and Reforms & Ors. v. Union of India & Ors, 2019 SCC OnLine SC 411.


              [38] Transparency International India and Another V. State of Jammu and Kashmir, 2017 4 Supreme Court Cases 748.


              [39] Maneesh Vashistha v. State of Haryana and others, 2014 SCC OnLine P&H 5780.
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