Power of judiciary lies neither in deciding cases, nor in imposing sentences, nor in giving punishment for its contempt, but in the trust, confidence and faith of the general public. Criticism is important for it helps to give us a new perspective and opens our eyes to things we may have overlooked or never considered.

But where do we draw the line between Contempt and criticism? Contempt of court is back in the news. This follows the initiation and conviction of contempt proceedings against a veteran advocate-activist by the Supreme Court of India, on its own motion.

What is Contempt of Court?

Contempt of court, often referred to simply as “contempt”, is the offence of being disobedient to or disrespectful toward a court of law and its officers in the form of behaviour that opposes or defies the authority, justice and dignity of the court.

History behind ‘Contempt’

The concept of contempt of court is several centuries old.
In England, it is a common law principle that seeks to protect the judicial power of the king, initially exercised by him, and later by a panel of judges who acted in his name.
Violation of the judges’ orders was considered an affront to the king himself.
Over time, any kind of disobedience to judges, or obstruction of the implementation of their directives, or comments and actions that showed disrespect towards them came to be punishable.

Entry into our legal books

There were pre-Independence laws of contempt in India. Besides the early High Courts, the courts of some princely states also had such laws.
When the Constitution was adopted, contempt of court was made one of the restrictions on freedom of speech and expression.
Separately, Article 129 of the Constitution conferred on the Supreme Court the power to punish for its contempt.
Article 215 conferred a corresponding power on the High Courts.
The Contempt of Courts Act, 1971, gives statutory backing to the idea.

What are the types of Contempt?

In India contempt of court is of two types under the Contempt of Courts Act of 1971:

Civil contempt: Under Section 2(b), civil contempt has been defined as willful disobedience to any judgment, decree, direction, order, writ or another process of a court or willful breach of an undertaking given to a court.
Criminal contempt: Under Section 2(c), criminal contempt has been defined as 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:
1. Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or
2. Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

WAIT, What accounts for the scandalizing of the Judiciary?

Making allegations against the judiciary or individual judges, attributing motives to judgments and judicial functioning and any scurrilous attack on the conduct of judges are normally considered matters that scandalise the judiciary.

What is not contempt of court?

Fair and accurate reporting of judicial proceedings will not amount to contempt of court.
Nor is any fair criticism on the merits of a judicial order after a case is heard and disposed of.
The Contempt Act was amended in 2006 to introduce truth as a valid defence if it was in the public interest and was invoked in a bonafide.

Since we are done with what is not contempt, let us look at what constitutes contempt.

Necessary ingredients for Contempt of Court in India

1) Interference with Administration of Justice

In Brahma Prakash Sharma v State of UP, the Supreme Court had held that in order to constitute the offence of Contempt of Court, it was not necessary to specifically prove that an actual interference with the administration of justice has been committed.
The Court held that it was enough if a defamatory statement is likely or in any way tends to interfere with the proper administration of justice.

2) Scandalizing the Court

In the case of PN Dua v Shiv Shankar and others, the Supreme Court held that mere criticism of the Court does not amount to contempt of Court.
The Court observed that in a free marketplace of ideas, criticisms about the judicial system or Judges should be welcomed, so long as such criticisms do not hamper the administration of justice.
In the case of Baradanath Mishra v, the Registrar of Orissa High Court the court held that a common form of such contempt is the vilification (personal abuse) of the judges.

3) Interference with due course of Justice

In Pritam Lal v. High Court of M.P the Supreme Court held that to preserve the proceedings of the Courts from interference and to keep the streams of justice pure, it becomes the duty of the Court, to punish the contemner in order to preserve its dignity.
No one can claim immunity from the law of contempt if his act or conduct in relation to Court interferes or obstructs the due course of justice.

Issues with the Contempt

Contempt is not just associated with judiciary, we have heard or read about journalist or cartoonist arrested for contempt of parliament. Now in general, Use of contempt power has the following issues:

1) Curb on Civil Liberties

A law for criminal contempt gets in conflict with India’s democratic system which recognises freedom of speech and expression as a fundamental right.
In this manner, the judiciary draws resemblance with the executive, in using laws for a chilling effect on freedom of speech.
Former Justice of Supreme Court, V.R. Krishna Iyer, famously termed the law of contempt as “having a vague and wandering jurisdiction, with uncertain boundaries; contempt law, regardless of the public good, may unwittingly trample upon civil liberties”.

2) Ambiguity of the concept

The definition of criminal contempt in India is extremely wide and can be easily invoked.
Also, suo motu powers of the Court to initiate such proceedings only serve to complicate matters.
Further, the Contempt of Courts Act was amended in 2006, to add truth and good faith as valid defences for contempt, but they are seldom entertained by the judiciary.

3) Fair criticism is justified

In S.Mugolkar v. Unknown (1978), the Supreme Court held that the judiciary cannot be immune from fair criticism.
It held that contempt action is to be used only when an obvious misstatement with malicious intent seeks to bring down public confidence in the courts or seeks to influence the courts.

4) Obsolete ideology

The punishment for contempt could procure submission but not respect for the judicial institution.
Already, contempt has practically become obsolete in foreign democracies, with jurisdictions recognising that it is an archaic law.
For example, England abolished the offence of “scandalizing the court” in 2013. Canada ties its test for contempt to real, substantial and immediate dangers to the administration. American courts also no longer use the law of contempt in response to comments on judges or legal matters.

Need for the Contempt provisions: Arguments in favour

1) Upholding the constitution

The powers of contempt of the Supreme Court and High Courts are independent of the Act 1971, that is, drawn from the Constitution.
So to delete the provision relating to ‘criminal contempt’ particularly ‘scandalizing of courts’ will have no impact on the power of the Superior Courts to punish for contempt in view of their inherent constitutional powers, as these powers are independent of statutory provisions.

2) Ensuring Safeguards for Judiciary

The Judiciary is the guardian of rule of law in India and it needs to be made sure that it is protected with all kinds of problems that do or might hamper the fluent administration of justice.
The provision of powers to punish for contempt is significant for ensuring such respect of the Judiciary. Such kind of power is necessary to prevent interference with the course of justice and the authority of the court.

3) Protecting public faith in Judiciary

Amendment in the definition of contempt may reduce the overall impact of the law and lessen the respect that people have for courts and their authority and functioning.
Also by abolishing the offence in India would leave a legislative gap.

4) Impact on Subordinate Courts

The Constitution allows superior courts to punish for their contempt. The Contempt of Court Act additionally allows the High Court to punish for contempt of subordinate courts.
Thus, if the definition of contempt is removed, subordinate courts will suffer as there will be no remedy to address cases of their contempt.

5) Fair criticism is not contempt

The 1971 Act contains adequate safeguards to exclude instances which may not amount to criminal contempt” as defined under Section 2(c) of the Act 1971.
It means that not all cases of contempt are considered.

“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

Way forward

The Law Commission has held that there is a need to retain the provision regarding the contempt of courts. However, it also recommended the definition of contempt should be restricted to civil contempt, i.e., willful disobedience of judgments of the court.
The contempt of court should not be allowed to be used as a means to prevent criticisms.
In recent times, it is more important that courts are seen to be concerned about accountability, that allegations are done by impartial probes rather than threats of the contempt action, and processes are transparent.
If the contempt has to continue, a review mechanism within the judiciary should be there as a safeguard against judicial tyranny.

In an era in which social media are full of critics, commentators and observers who deem it necessary to air their views in many unrestrained and uninhibited ways, the higher judiciary should not really be spending its time and energy invoking its power to punish for contempt of itself.

Conclusion

Globalized human society as a singular entity and individual societies are moving towards the consensus of a world where an individual has greater autonomy, rights and dignity.
Healthy and constructive criticisms are the necessary features for the development of democracy.
In this perspective focus should be given precedence over ‘dignity of court’, but not blindly.
In this backdrop, there is a need to revisit the need for a law on criminal contempt, where India can learn from Britain which abolished the offence of scandalizing the judiciary as a form of contempt of court in 2013 based on the fact that the law was vague and not compatible with freedom of speech.