BACKGROUND

Halsbury defined contempt as words spoken or written which obstruct or tend to obstruct the administration of justice.[2] There is a very thin line difference between freedom of speech and contempt.[3] Earlier the freedom of the press does not cover contempt of court because its freedom cannot be equated with allegations against the judiciary.[4] After that in the landmark case of Bathina Ramakrishna Reddy v. The State of Madras,[5] the Supreme Court observed that defaming a judge is equal to defaming due course of justice or proper administration of justice so it would amount to contempt. It would weaken the authority. So freedom of speech and expression always includes the freedom of the press because it includes the right to circulate too and includes the freedom to communicate.

The concept of contempt of court is derived from the phrase “Contemptus Curiae”. This was recognized by Lord Diplock.[6] He mentioned that Contempt of Court is a descriptive term of settlement in particular proceedings that undermine the system or inhibit citizens regarding the disputes. Freedom of the Press is a part of freedom of speech and it is a backbone of political liberty.[7]

Democracy allows open discussion and criticism, these are the rights given to citizens.[8] Currently, in different nations the law of contempt has different approaches it becomes obsolete in most of the foreign countries like e.g. The US has no contempt laws. In the UK and Canada regarding Contempt Laws, these countries have adopted very liberal approaches.

LEGAL APPROACH

Sections 12 of the Contempt of Court Act, 1971 deals with the punishment for Contempt of Court as the High Court and the Supreme Court have the power to punish for the Contempt of Court. On the other hand, an accused may be discharged if he makes an apology to the concerned court or authority only when the apology satisfy the court

Section 13 of the Contempt of Courts Act 1971 observed that:

“Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence under this Act for contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially interferes, or tends substantially to interfere with the due course of justice.”

The legal background for contempt of court is derived from the British but then the first act for Contempt of Courts came in 1952. But there are too many loopholes for the same as it was not properly drafted so for removing the loopholes a committee was set up under H. N. Sanyal, the Additional Solicitor.[9] The Sanyal Committee has a popular opinion about the co-relation of Freedom of Speech and Contempt of Court that Freedom of Press gives constitutional protection under freedom of speech. In such scenario if the judiciary can’t work efficiently and if the Press disturbs the judicial judgement then the freedom of speech can be curtailed and the court has power to take appropriate actions. A free press as well as Independent Judiciary both are required for a free and just society.[10]

JUDICIAL APPROACH

Recently the Supreme Court held that the tweets by Shri Prashant Bhushan as “destruction of democracy”; and that it “lowered the authority of the Court”.

Under Article 19(2) of the Constitution, the term “Reasonable” is used, which can be tested on the anvil of the test of proportionality.  This must be used in a qualitative sense and relative sense.[11] So Article 19 gives fundamental rights to citizen but with certain limits.

The judicial approach on the concept of court is changed from time to time. Initially, the discussion was limited to the authority and approach about how courts can use the authority to contempt but in reality, the Court derives its power to punish for contempt from its existence or creation. This power is not limited by Law.[12] After some time the difference between criminal & civil contempt was discussed through cases.[13]

In the landmark case of State v Padma Kant Malviya and Anr.,[14] court observed that legislation had no power to define contempt of court and regarding the law of contempt the Supreme Court and High Courts have the following limitation –

  1. Only a constitutional amendment can abrogate, nullified, or transferred the laws.
  2. The status and dignity of the court must not be hampered.
  3. Unreasonable restrictions on the right of a citizen’s freedom of speech and expression should not be imposed.

This limitation is a benchmark for all the leading cases afterward.[15] The contempt of court is cannot be used for the dignity of the judges except in the cases where it hampers the “administration of justice”. The country gives rights to people of speech and expression because of that we have a free marketplace for ideas but with a certain exception.[16] Criticism of judges in good faith and in the public interest cannot be contempt of court.[17]

The relationship between Article l9 (1A) and Article 129 (this gives the power of contempt to the Supreme Court) is very crucial to understand the concept of contempt and it must be governed by Article 19(2) (reasonable restrictions).[18]
The Court has to protect the rights of the community in the due administration of justice. The power to commit for contempt of court is not to protect the dignity of the Court but it is for protecting the right of the public.[19]

Judges in case of Pennekamp v. Florida [20]observed that, regarding the Contempt of Court, it is a safeguard and power not for Judges as persons but this is a power for the function which they are exercising in the public domain.[21] The object of the strict approach of cases of contempt of Court is to prevent undue interference with the administration of justice.[22] Judicial decisions are subject to criticism and the power exercised by Court is for the dignity of the court and to protect public confidence that is reposed in them.[23]It has been observed through the language of the statute that the rights are not included expressly under Article 19(1)(c), here balancing of such rights (Fundamental Rights) and public interest is need of an hour.[24]

The words of Article 19(2) “in relation to contempt of court” have the widest amplitude. Article 19(2) of the constitution does not describe the true nature of the offense which consists of interfering with the administration of justice.[25] The right of freedom of speech is not only limited to the laws of contempt it also includes the powers of the Supreme Court and High Court to punish for contempt Under Article 129 and 142(2) of the Constitution.[26] Freedom of speech is an essential part of democracy, healthy and constructive criticism of the judgments in public interest cannot amount to contempt of Court. [27]

CRITICAL ANALYSIS

Chief Justice of India, M.N. Venkatachalia in under the National Commission of Review, in its report stated that law in the area of contempt requires appropriate changes and we should manifest the motto of ‘Satyamaeva Jayate ’ in the High Courts and ‘Hatho dharmas tatho jaya’ in the Supreme Courts. He claimed that under a satisfactory state of laws for a charge of contempt of court a truth cannot be pleaded as a defence. While observing the need for change in Contempt Laws Justice Markandey Katju[28] observed that,

 “The basic principle in a democracy is that the people are supreme. It follows that all authorities – whether judges, legislators, Ministers, bureaucrats – are servants of the people.

Once this concept of popular sovereignty is kept firmly in mind, it becomes obvious that the people of India are the masters and all authorities including courts are their servants. Surely, the master has the right to criticize the servant if the servant does not act or behave properly. It would logically follow that in a democracy the people have the right to criticize judges. Why then should there be a Contempt of Court Act, which to some Article 19(1) (a) of the Constitution gives the right of freedom of speech and expression to all citizens? But Articles 129 and 215 give the power of contempt of court to the higher judiciary, and this power limits the freedom granted by Article 19(1)(a).”

Justice Katju took the attention of people in balancing the powers of courts and the rights of citizen’s altogether. In a democratic country like India, the people are supreme. So the reconciliation between Laws of Contempt and Freedom of Speech & Expression would affect by Articles 19(l) (a) to be primary, and here the power of courts regarding contempt is subordinate.  The power is in hands of people, the master and they can criticize the Judges but it will cover under contempt of court only when functions of the courts are going to affect or if they are not functioning properly or commits misconduct. Reconciliation between Article 19(1) (a) of the Constitution and Articles 129 and 215 of the Constitution is a difficult task and has many consequences. So the test to determine whether a particular act is covered under contempt of court is that it is going to affect the functioning of the judges or not. And if the functioning is not hampered then even in a harsh criticism person is not entitled to contempt of court.

In most cases, a truth can be used as a defence in a contempt case as observed by the Supreme Court.[29]The Court observed that freedom of speech and expression is given to citizens in fair judicial criticism but it has some restrictions prescribed by law. The Contempt of Courts Act, 1976 covered statutory recognition to the concept of contempt of court. It can either be civil or criminal.

CONCLUSION

The borderline/lakshmanrekha between contempt and truth is blurred. It needs to be trodden carefully. Hence, it is at the hands of the judiciary and legislature to remove the obstacles. Laws of the Contempt are needed to ensure the dignity of court while maintaining the rights of the citizen. The powers to punish for contempt are inherent, it is not law driven.[30]

The provisions of the Contempt of Court Act, 1971 are intra-virus the Constitution because Article 19(2) has reasonable restrictions. Balance is important in both. We don’t have any strict jacket test to determine the same. Our current legislative framework has lacunas.

Mr. Soli Sorabjee, Ex Attorney General had also justified criticism of judgments but under a democratic set-up. According to Lord Atkin’s, Justice is not a cloistered virtue; it must include comments of ordinary men because scrutiny is necessary.[31] Article 19(1) (a) and Article 19(2) are not separate and must go together.[32] Justice P B Sawant observed that Article 19 is necessary, for free conscience and self-fulfilment. So that people can debate on social and moral issues. It is the best way to expand the ideas and essence of democracy.[33]

The limits for Article 19 right to free speech & expression is very narrow.[34] Open criticism of Government policies and actions are necessary for efficient working.[35] Thus to remove the lacunas, distinction must be clear between contempt of court and contempt of judge. The Law of contempt is related to the faith of people if faith lost then the court also lost their meaning.

Recently a Judicial Magistrate in Bihar took offence to a very simple request of a woman survivor of a gang-rape. As one of the activists who were accompanying the victim wanted to read the statement signed by the victim, the judge took offense of the same, and the two activists who merely accompanied the victim for moral support, was thrown into jail.[36] On the other hand regarding Advocate Prashant Bhushan’s tweets the Court has an opinion that he is undermining the dignity and authority of the court in the eyes of the public and should be charged, as the judiciary was of the view that, the tweets of Mr. Bhushan was malicious in nature and that it was scandalous too. Here in the abovementioned two situations we can clearly distinct among fair criticism. The reasonable and fair criticism of the judicial system and Judges are required, to improve upon something, also the same should be within a described lakshmanrekha.[37]        


[1] Authored By : Swarnendu Chatterjee (AOR, Supreme Court of India and Senior Associate, L&L Partners, New Delhi). Assisted By : Ms. Rachi Gupta, Final Year Law Student, VIPS, New Delhi.

[2] http://www.legalserviceindia.com/legal/article-472-contempt-of-court-analysis.html

[3]https://www.thestatesman.com/india/there-is-a-thin-line-between-free-speech-contempt-supreme-court-1502914012.html

[4] C.K. Daphtary v. O.P. Gupta, AIR 1971 SC 1132 : Narmada Bachao Andolan v. Union of India, AIR, 1999 SC 3345.

[5] Bathina Ramakrishna Reddy v. The State of Madras 1952 SCR 425.

[6] Attorney-General v Times Newspapers Ltd [(1973) 3 W.L.R. 298].

[7] Indian Express Newspapers v. Union of India MANU/SC/0185/1995.

[8] S. Rangarajan vs. P. Jagjivan Ram (1989) 2 SCC 574.

[9] https://lexlife.in/2020/06/06/law-regarding-contempt-of-court/

[10]  Report of the Committee on Contempt of Court, 34 (1963).

[11] Anuradha Bhasin vs Union Of India (2020) 3 SCC 637.

[12] Surendra Nath Banerjee v The Chief Justice and Judges of High Court at Fort William (P.C. 1888).

[13] Legal Remembrancer v Matilal Ghose [ILR 41 Cal 173].

[14] State v Padma Kant Malviya and Anr. AIR 1954 ALL 52.

[15] Supreme Court Bar Association v Union of India & Anr [(1998) 4 SCC 409] and T. Sudhakar Prasad v Govt. of A.P. and Ors [(2001) 1 SCC 516].

[16] P. N. Duda v V. P. Shiv Shankar & Others, 1988 AIR 1208.

[17] In Re Arundhati Roy, 2002 AIR (SCW) 1210.

[18] Read more at: https://www.deccanherald.com/national/expression-of-opinion-cannot-constitute-contempt-of-court-prashant-bhushan-to-supreme-court-869160.html

[19] Tis Hazari Court, Delhi v. State of Gujarat and Ors., MANU/SC/0478/1991: 1991CriLJ308.

[20] Pennekamp v. Florida [MANU/USSC/0122/1946 : (1946) 90 Led 1295 at p. 1313].

[21] The Registrar General, High Court of Meghalaya Vs. Patricia Mukhim and Ors. MANU/MG/0016/2019.

[22] Narmada Bachao Andolan v. Union of India, MANU/SC/1042/1999.

[23] State of U.P. Vs. Asok Pande MANU/UP/2818/2017.

[24] N. Ramesh Kumar and Ors. vs. The State of Andhra Pradesh and Ors. (29.05.2020 – APHC) : MANU/AP/0024/2020.

[25] Sahara India Real Estate Corporation Ltd. and Ors. vs. Securities and Exchange Board of India and Ors. MANU/SC/0735/2012.

[26] In Re: Vijay Kurle and Ors. MANU/SC/0413/2020.

[27] Dr. D.C. Saxena v. Hon’ble the Chief Justice of India MANU/SC/0627/1996 (1996) 5 SCC 216.

[28] Markandey Katju, The Hindu, January 22, 2007.

[29] Anil Diwan, The Hindu, October 29, 2007.

[30] Sudhakar Prasad vs. Govt. of A.P. and Ors MANU/SC/08112000.

[31] Ambard v. Attorney General of Trinidad and Tabago (1936) A C 322 ; In Re : Guljarilal, Advocate of Ambah and Ors. MANU/MP/0152/1968.

[32] E.M.Sankaran Nambbodiripad v T. Narayanana Nambiar AIR 1970 SC 2015.

[33] Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal MANU/SC/0246/1995 : (1995) 2 SCC 161.

[34] Romesh Thapar v. State of Madras (1980) 1 SCC 132 ; Shyamal Das vs. State of Tripura and Ors. MANU/GH/0733/2006.

[35] Indibily Creative Pvt. Ltd. vs Govt. Of West Bengal 2019 SCC OnLine SC 520.

[36]https://theprint.in/india/bihar-court-sends-gang-rape-survivor-to-jail-for-contempt-while-recording-statement/461368/.

[37] P. N. Dudda v. P Shivshankar (1998( (3) SCC 167.

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