By Dr S. Saraswathi
Controversies over the contempt of court law will go on irrespective of the final scene in the Supreme Court in Prashant Bhushan case. For, the case has raised the crucial question of the need for relook into the law, which is more important than the proceedings of this particular case. There are strong arguments both for and against the law. The offence — wherever it is considered as one — is possible only in free democratic States where there is freedom of speech.
If there is a law, courts have to apply the law and judge according to the merits of the case which is in the domain of judges. Lay public can debate whether such a law in relevant today, and if considered necessary, review the details and provide suggestions for amendments to make it specific, clearer, and appropriate to our times. Bhushan has done a service in reopening the debate.
Contempt of court is the offence of being disobedient to or disrespectful toward a court of law and its officers by behaviour that opposes or defies the authority, justice, and dignity of the court. Same behaviour towards a legislative body is treated as contempt of Parliament.
Law of contempt originates from the ideals of supremacy and independence of the judiciary. It may be traced to ancient kingdoms and treatises like Arthashastra, but in its present form, it is rooted in common perception of holding justice, judges, and judicial institutions beyond reproach.
The law is intended to prevent indignities to a court of justice and to maintain and uphold the dignity and respect of courts in the eyes of the public. It is intended to preserve the authority of the judicial process, judiciary, and court reputation. Courts as the ultimate authority to maintain the rule of law, undoubtedly the institution and concerned personnel deserve due respect. Contempt includes remarks and allegations made against judges.
Public confidence and trust in courts is very important for the justice system. Justice Marshall has elucidated this in the US by his observation that the “power of judiciary lies neither in deciding cases, nor in imposing sentences, nor in giving punishments for its contempt, but in the trust, confidence and faith of the general public”.
It is this trust and confidence that is targeted in contempt cases. Common people are not likely to have knowledge of law and justice, but are prone to be carried away by personal and derogatory remarks, hate speeches, charges of corruption, and insinuations. With more and more easier access to mass communication, it is possible to reach countless people in a clique. As human nature relishes offensive remarks better than compliments about others, there is need to put some limit to freedom of speech so that issues, processes and decisions and not vague accusations against personalities and institutions are circulated.
Contempt of court is different from criminal defamation increasingly occurring today which can be initiated by an aggrieved person against the accused. Contempt of court can be initiated suo moto by the Supreme Court or any High Court or on a motion by Advocate-General/Law Officers or on a reference made to High Court by a subordinate court.
Article 129 of the Constitution provides powers to the Supreme Court to punish an offence aimed at tarnishing its image. The victim is the judge. Similar power is given to High Courts under Article 215. Article 142(2) grants the Supreme Court power to issue any order for securing the attendance of any person or discovery and production of any documents, or investigation or punishment of any contempt of itself. Contempt law has its roots in the Constitution itself.
In India, there is a specific Contempt of Court Act of 1971, which recognises three types of contempt. Civil contempt is disobedience to any judgement, decree, direction, or order of a court. Criminal contempt is publication of any matter which scandalises or lowers the authority of any court, or interferes in due course of judicial proceedings, or obstructs administration of justice in any other manner. Even if the publication tends to scandalise, or interfere, or obstruct judicial process, it may be treated as contempt of court. The offence is disrespect to legal authorities or disobedience of court orders.
The first Contempt of Courts Act was passed in India during British rule in 1926 and was amended in 1937. After independence, the first contempt law was adopted in 1952. The existing Act was made in 1971 and amended in 2006 which accepts truth as a valid defence if made in public interest. The preamble to the 1971 Act is clear that it is not the dignity of individual judges that the Act seeks to protect, but the administration of justice and judicial proceedings. Rendering justice is always respected as a sacred responsibility.
Contempt of court is no longer considered a punishable offence in many countries. “A silenced bar cannot lead to a strong court”, said Lord Atkin in Britain in 1936. Long disuse led to practical abolition of contempt law in England as insignificant. However, scandalising the courts is still punishable under other Acts like the Public Order Act 1986, Communications Act 2003. In Australia, a judge remarked that as long as the defendant is genuinely exercising a right of criticism and not acting in malice, he or she is immune. It makes the intention of the defendant important in deciding contempt cases. In the US, comments on judges or legal proceedings are not barred by contempt law. The first amendment of US Constitution forbids several restrictions on freedom of expression on the principle that debate on public issues should be uninhibited, robust and wide open.
The Law Commission’s Review on Amendment to Contempt of Court Act in its 274th Report in 2018 refers to the constitutional provisions and has declared that any amendment to the law will not impact the power of the SC to punish for contempt of court as these powers are independent of statutory provisions.
The need to balance two very important principles of democracies — freedom of expression on the one hand and free, fair, and fearless justice on the other — is the reason for treating contempt of court as an offence as well as the aim of the law against contempt. As important as scrutinising the message emanating from the defendant and its possible impact, the physical expression, body language, the tone or style of conveying the message to the audience and the social circumstances become important in deciding contempt. It is indeed a tough job for the court to distinguish between constructive comments meant for better justice system and destructive criticism with potential to weaken faith in the system or impair administration of justice. Freedom of speech is aggressively asserted today giving more and more scope for offences like defamation and contempt of court. Facts and circumstances must be taken into account and comments made with malice towards none should be protected. For, words have contextual meaning and purpose. A relook into the law is needed to protect freedom and prevent scandal
The author is Former Director, ICSSR, New Delhi