APPLICATION OF CONTEMPT OF COURT ACT BY COURTS: CRITICAL ANALYSIS (By- Chhavi Jain)

APPLICATION OF CONTEMPT OF COURT ACT BY COURTS: CRITICAL ANALYSIS

Authored By- Chhavi Jain

Abstract

Contempt of court is a topic which under a controversial position for a time being. Due to recent controversial and landmark judgements passed under the said provision, it attracts the light of mainstream. This Research paper has covered all the aspects of Contempt laws in detail. Commencing from the system in period where monarchy or king rule exists, passing through british era in India and laws passed by East India Company, evolution of these laws from time to time and Establishments of Courts in british rule. Subsequent to that for the first time, contempt of court act came into force in 1926. After India gained independence in 1947, there were amendments made in 1952 and 1971. Finally, the law which regulates the contempt proceedings is Contempt of courts Act, 1971. This paper also covers the scope of contempt act and its application in India imbibing the scope of contempt in accordance with provisions of constitution in Article 129 and 142, types of contempt, defenses available in cases of contempt and jurisdiction of different courts in contempt proceedings. Subsequent to that, this research paper has thrown light on contempt proceedings against judges with reference to landmark case of Justice CS Karnan. After that, this research paper has enlarged the scope of contempt laws through various judgements like Prashant Bhushan case, vijay kurle case and many others by discussing it in detail and highlighting the finding of courts in each case. Lastly, concluding the research paper with few general suggestions related to contempt laws in order to protect the dignity and integrity of courts and respect towards judiciary. Prioritizing interest of public at large for the administration to justice and maintaining the decorum of court.

Keywords- Contempt, courts, judicial institution, Contempt of courts Act, 1971, judges, advocates, bar and bench relations, decorum of court, integrity, dignity and respect towards judiciary.

Introduction

“THE KING DOES NO WRONG”

Contempt laws in India are very benevolent piece of legislation, but how they are attributed depends from case to case. Earlier, when there was a system of monarchs or kings, any person who does not compel the orders of King was punished severely. There was no system of right to speech or expression. A command of king was supreme, and no person had liberation to go against it. With the passage of time and advancement of laws, our constitution recognized fundamental right to speech and expression under article 19[1]. Our constitution also recognizes contempt laws under article 129 and article 142 of Indian Constitution[2]. As said, No one can go against the orders of King, same as ‘Law is supreme authority’. Therefore, no one can go against what is prescribed by law and authority of courts. Indian judiciary is an independent pillar of constitution. It exercises all its powers and functions prescribed in constitution. That’s why any person going against, condemning or insulting any authority of courts is punishable under Contempt of Courts Act, 1971[3].

Fair expression of opinion or criticism which is reasonable per se does not constitute Contempt. But there is a thin line of demarcation between criticism and insult, it should be taken in consideration to not to cross that line and maintain equilibrium.

It is a well-known fact that independent, impartial and integrated judiciary is a ‘sine quo non’ of a healthy society where justice prevails. Therefore, it is of paramount importance to protect judiciary from all evils that affect the administration of justice in society. The quest for gaining support of society and respect towards judiciary led to the establishment of provisions of contempt to prevent any act which may cause disruption or chaos in society while administering justice and any disrespect towards the judiciary. The law of contempt is built on public confidence towards administration of justice by authority of courts. The purpose of inflicting contempt provisions is to protect the dignity and integrity of courts and authorities.

There is a case of contempt against J. Almon in the year 1765[4]; a statement was made by the Irish judge Sir Eardley Wilmot in regard to this contempt attacks on the judges. This matter gave a great scope in the establishment of the law of contempt of court.

 This judgement recognised that the unbiased nature is also one of the salient features of the judiciary which clearly vindicates difference between judiciary and other institutions.

Origin & Concept Of Contempt Of Courts

Going back to pre-independence era, Contempt of Courts came into light when East India company took over the territories of India and started their reign over provinces of India. Years later, when east India Company succeeded in conquering major portion of Indian territory. They started establishing courts in order to regulate the control and possess the authority within themselves.

The 1st   Supreme Court in India was set up in Calcutta under Regulating act, 1773[5] in the year 1774. Subsequently after that, two more Supreme courts were set up in Madras and Bombay by the government of India act, 1800[6] and Charter of 1823[7] respectively.

Soon after that all three of the Supreme courts were abolished under Indian High Courts act, 1861[8] and replaced them with High Courts vesting them with inherent powers of Contempt of Court. In 1866, the High Court of Allahabad was set up with powers to punish for contempt of Courts and a year after that 1st judgement related to contempt of court was pronounced by Allahabad High Court. In Re Abdool and Mahtab (supra)[9], It was held that there is no doubt that every court has power to punish for contempt of court summarily.

The Contempt of Court, 1926[10] was first law/statue enacted in India in relation to contempt matters. Section 2[11] of this act recognizes the existing jurisdiction in all the High Courts to punish for contempt of themselves and conferred on the High Court’s the power to punish for contempt of courts subordinate to it. The act also specified upper limit for punishment in contempt cases.

In 1927, in the case of Crown vs. Sayyib[12], It was observed that the powers of contempt of courts is inherent to all the High courts in India not only to three chartered High courts namely, Calcutta, Madras and Bombay.

The amendment to the act was made in 1937 to clarify the limits of punishment in contempt matters of all courts in India, except state of Hyderabad, Madhya Bharat, Mysore, Rajasthan, Travancore-Cochin, Saurashtra & Pepsu as they had their own state enactments.

The other amendment was made by the Pepsu High court in 1948 by an ordinance which established that Section 33[13] says that It would be a court of Record and power to punish for contempt. And thereafter the 1926 act was substituted by Contempt of Courts act, 1952[14] along with state enactments.

On 1st April, 1960, a bill was introduced in Lok Sabha to consolidate and amend the law of contempt on grounds of being uncertain, undefine and unsatisfactory. Keeping in mind the constitutional provision of our country, amendments should be made in the law. For this purpose, government appointed a Special Committee in 1961 under the chairmanship of Shri H.N. Sanyal, then Additional Solicitor General of India.

Sanyal Committee report deals with aspects related to contempt laws. This committee is recognized and responsible for bringing contempt laws in India. The Sanyal Committee examined the law, procedure, punishment in relation to contempt proceedings and thereafter submitted its report in 1963, which defined and limited the powers and regulated the procedure in relation to contempt of courts. It specifically highlighted criminal contempt and its procedure to be followed

The recommendation of committee was accepted by government, state government and Union Territories. It was examined by Joint select Committees of both houses which suggested few changes related to period of limitation in contempt proceedings. After incorporating those changes in bill. It was passed by both houses of parliament and the bill was enacted as Contempt of Courts Act, 1971[15] repealing and replacing the Contempt of Courts Act, 1952[16].

Contempt Of Courts Act, 1971 And It’s Application

Definition-

Any behavior, general conduct or wrongdoing of any individual that challenges or engages in conflicts with the authority, integrity and superiority of courts or any defiance to comply with orders, requests or tampering any witnesses or evidences is constituted under act of contempt of court.

Definition by Oswal-

Contempt of court may be said to be constitutes by any conduct that tends to bring the authority and administration of law into disrespect or disregard or to interfere with or prejudice parties in litigation or their witness during litigation.

Definition provided under Contempt of courts act, 1971[17]-

The said act has categorized contempt proceedings into two parts-

Civil Contempt defined under section 2(b) of the said act[18]- provides that ‘civil contempt’ means willful disobedience or disregard to any judgement, decree or order of the court and willful breach of any undertaking or statement or oath given to court.
Criminal Contempt defined under section 2(c) of the said act[19]- provides that any matter or publication or doing of any act which lowers the authority of court, prejudices or interferes with any pending judicial proceeding or interfere or obstructs the administration of natural justice.
For example- Fair and accurate report of a judicial proceeding under section 4[20] and Fair comment on the merits of any case which has been heard and finally decided under section 5[21] would not give rise to any contempt of court proceeding.

Section 2[22] has also cult out few exceptions and guidelines prescribing for reporting, commenting on judicial proceedings would not attract the proceedings of contempt of court.

The act also specifically envisaged that any act would attract the provisions of this act unless it substantially interferes or tends substantially to interfere with the due course of justice under section 13[23].

This act has also described the period of limitation for initiating contempt proceedings under section 20.

Since, the enactment of the contempt of courts act 1926[24] then after 1952 and finally 1971. The power given to courts in relation to contempt matters have always been unlimited and uncontrolled.

Defenses Available in contempt of court proceedings-

In any penal law, where punishment is derogatory it becomes a matter of principle of natural justice that a person has a right to defend himself.

These defenses are envisaged in Section 3 to Section 8 and section 13 of contempt court act, 1971[25], and these defenses are divided into two parts- Civil and Criminal defense

Defenses available in Civil Contempt-

Non-voluntary or unwilful disobedience or breach of undertaking.
The order passed by court was outside/without jurisdiction of that court.
The order passed by court which was disobeyed was vague and ambiguous.
There can be possibly more than one reasonable interpretation of that order.
There is no possibility for compliance of that order.
The person disobeying the order has no knowledge of the same.
There was an alternative remedy available.
Defenses available in Criminal Contempt-

Innocent and unambiguous publication or distribution of matter.
Fair and Accurate report or comment on judicial proceedings.
Fair criticism or comment on judicial act.
Bonafide and unambiguous complaint against presiding officers of subordinate court.
No substantial interference or interpretation in due course of justice as a defense.
Defamation or comment on judge personally.
Procedure Applicable to Contempt proceedings-

Section 14 and 15[26] deals with procedure of contempt of court proceedings in face of record and other than face of record respectively.

Article 129 and Article 215 provides to Supreme court and High court respectively that every court shall be a court of record and have all powers to punish for contempt of court proceedings

Contempt apparent to the Supreme court and High court-

Section 14 of the contempt of court act,1971[27] states that, If a person commits a contempt in the presence of judges at hearing, the court may cause detention of such person at any time before the rising of court in the same day. Thereafter:

He shall be informed with charges under which he is framed.
He shall be allowed to take defense in due course.
Court shall take into account evidences offered, defenses put forward and grounds for adjournment pleaded and then shall determine the matter.
Court thereafter will make such order for punishment or discharge as it seems fit and necessary.
Contempt apparent to the Subordinate court-

Section 228 of Indian Penal Code[28] read with Section 345 & 346 of Criminal Procedure Code[29] lays down procedure for subordinate court to take immediate action in case of contempt.

Procedure of Criminal Contempt outside the court-

Criminal contempt committed outside the court is otherwise called “Constructive Contempt”.

Section 15(1)[30] of the act provides that cognizance of criminal contempt outside the court can only be taken by Supreme court and High Court in manner provided in this provision of the said act-

Section 15(2)[31] of the act provides that cognizance of criminal contempt in subordinate court can only be taken by High court of that concerned state

Section 15(3)[32] of the act provides that every reference or motion shall specify the charge for which person alleged is guilty.

Bar on Private Individual-

Section 15 of the act has barred private individual to file a complaint of contempt without the consent of respective advocate-general in order to save the time of court in dealing with frivolous matters.

Punishment, Apology and Appeal-

Section 12[33] of the act provides for punishment of contempt of court by power authorized to High court and Supreme court.

Punishment given in said action for contempt- Simple imprisonment upto 6 months or fine exceeding Rs.2000 or both.

Remedies against the order of punishment-

Apology- The contemnor may be discharged from punishment of contempt, if he makes sincere apology to court for his alleged act.
Appeal- The said act has provided statutory right to appeal to contemnor in supreme court against the order passed by High court in relation to contempt proceedings.
Before the statutory right to appeal, The High court could grant certificate under Article 134 of Indian Constitution[34] & where it refuses to grant certificate The supreme court could entertain the appeal by granting special leave petition.

Contempt Of Court In Accordance With Constitutional Provisions

There are constitutional provisions dealing with contempt of court- Article 129 and Article 142(2) of Indian Constitution[35].

Article 129[36]- Article 129 emphasizes that Supreme court shall be the ‘Court of Record’ and has all the powers to deal with contempt matters including power to punish for contempt done by Supreme court itself.

Article 142(2)[37]- Article 142(2) says that when any law is made by parliament on the matters given in Article 142(1)[38], then Supreme court has all the power to make an order for securing attendance of parties, production of documents or evidences and punishment for contempt.

Whether Contempt Of Court Proceedings Arise Against Judges

Judiciary is a ‘sina quo non’ for justice and judges are the administrator of justice in judiciary, in the same manners like Kings of ancient times. Like in ancient times, where ‘Praja’ blindly obeyed the commands of king, same happens with judiciary and judges, people blindly follow the orders and judgements of judiciary. This is a prove that they are highly respected dignitaries and supreme authorities before whom everyone should bow with respect and obey them dutifully and blindly. Disrespect, disregard or insult towards judges is an insult or disrespect of judiciary, and judiciary being an inherent and important pillar of constitution, means a disrespect of constitution, which is an ultimately offence and hence punishable under contempt of courts. Therefore, judges should be treated with utmost dignity and respect and with due regards, as they are administrator of justice and law in the society which is prevalent, and essential to maintain the equilibrium and peace amongst others.

Judges should also be aware of the fact that despite of being a powerful pillar of judiciary, they are the administrators of law and justice. Even from richest to poorest in the country come at their doorsteps for seeking justice. Someone being educated and well aware and others being illiterate and unaware all that they seek from judiciary is justice. They have a right to be treated equally, despite of the ranks or position they hold, strata in the society or their income level, they have the same demand that is the administration of law and justice. That’s why judiciary asks judges to be polite, earful, accessible and appealing, so that everyone person living in this society feels that their rights are addressed and are not left unheard. In the cloak of power and authority judges should not be abusive, corrupt and disregarding someone who comes to court with their issues and infringed rights.

Also, in order to maintain bar and bench relations, judges are asked to be polite, respectful and kind towards advocates, because advocates are also an inherent part of judiciary and they also hold respect, power and knowledge which makes them respectful amongst others.

Judges are asked to be polite and respectful towards other judges from lowest to apex court. They are asked to not disgrace someone’s authority publicly and humiliating them with false and vicious charges, that will be an utter disregard towards judiciary.

Earlier there was no provision for contempt proceedings against judges, but because of rising cases of abusive authorities of judges against commoners and advocates. Supreme court has addressed this issue and which has become a prevalent law nowadays.

The landmark case for the contempt of court proceeding against judges-

The case of In Re: Hon’ble Justice Shri C.S. Karnan (2017)[39] There was a contempt proceeding against Justice C.S. Karnan who was encircled by numerous controversies. The facts are as follows- Justice Karnan, who was quite infamous for his actions committed in a courtroom, He has accused and alleged many high court judges with charges of being corrupt, impartial and dependant. He also sent a notice to Prime Minister Narendra Modi to take serious actions against his fellow judges. Further, Justice Karnan accused the then Chief Justice of Madras High Court for quashing one of his decisions. Justice Karnan also accused the judges with charges of caste-based discrimination against him. He repetitively and constantly filed several suo moto petition against his fellow judges who voted for his transfer even after the Supreme Court restrained him from handling any administrative or judicial work.

The Court observed that Justice C.S. Karnan has consistently and continuously committed act of criminal contempt. Justice Karnan has scandalized and poorly framed several judges and accused them of corruption and impartiality without providing any evidence regarding the same in the court. The obnoxious and false allegations made by him in front of the media and the public at large tarnished the image of the courts and the beliefs of people in the concept of justice and belief in judiciary. The conduct of the justice karnan(contemnor) was both scandalising the court as well as interfering with the court’s proceedings. The Court was seemingly shocked and utterly disappointed at the behaviour of Justice Karnan and stated that his actions constituted the grossest and gravest actions of contempt of court. The Court held him guilty for criminal contempt and sentenced him to 6 months imprisonment. 

However, the case suffered several atrocities and media outrage as the procedure followed by the Court was not proper and fair. The Supreme Court formed a seven judge bench for the case that is generally instituted in exceptional cases. Further,

the written apology given by Justice Karnan was ignored by the Court which is a discretion although. The Court failed to formulate any substantial issue underneath the case. The decision was also taken in a hush manner as no amicus curiae was appointed in the case which was an important step and should be kept in mind by the Court. 

In 1981, V.R. Krishna Iyer[40], a former Supreme Court judge, delivered a speech in public, where he criticised the functioning and administration of the judiciary in India. The Kerala High Court tried him for criminal contempt after receiving a complaint from a person who heard that speech, but he was not found guilty of the charges.

Landmark Judgements

There are quite a few landmark judgements in relation to contempt of court proceedings as follows-

In Re: Prashant Bhushan and another (2020[41]), This was one such landmark case that threw the limelight to the scope of contempt of court. Given the facts of case are as follows, Prashant Bhushan, who is known for his exemplary and remarkable contribution to the legal fraternity and advancement, tweeted two comments on twitter about administration of justice by the courts and on then Chief justice of India, Shri Sharad Arvind Bobde. Firstly, on 27 June 2020, he posted a tweet that accredited responsibility to the Supreme Court for ‘destructing’ India’s democracy for the past six years. The second tweet was posted on 29 June 2020 that negatively/malafidely pictured the then Chief Justice of India SA Bobde while riding a Harley Davidson motorcycle. Supreme court took suo moto cognizance in relation to 2nd  tweet

The hon’ble Supreme court held that the court is prima facie of the view that the tweets by Mr. Bhushan bought disruption in administration of justice and has blemished the dignity and authority of hon’ble supreme court of India and Chief justice specifically in the view of public at large. It observed that any frivolous publication that attacks a dignity of any individual judge or court in general, prescribes the negative character about the judges and thus constitutes scandalizing the authority of court. Such acts imbibed a sense of distrust and disregard the confidence of people at

large towards institution of judiciary In the end, The court held that neither the tweets by Mr. Bhushan is a true virtue of fair criticism nor it clarifies the bona fide intention of Mr. Bhushan. Therefore, Mr. Prashant Bhushan was held guilty of contempt of court and was imposed with a fine of Rs.1, failure to payment of which, would punish him for 3 months imprisonment and would also bar him for practice of law for 3 years.

In Re: Vijay Kurle (2020)[42], Three advocates Vijay Kurle along with Rashid Khan Pathan and Nilesh Ojha sent two letters dated 20.03.2019 and 19.03.2019 to the Chief Justice of India Ranjan Gogoi. The above letters were true sign of vicious or scandalous allegations against Justice RF Nariman and Justice Vineet Saran. 

The Court observed that the said letters showed malicious and scandalous allegations against the judges and such allegations cannot be made against judges and the courts. Further, the Court stated that not even a shred of guilt was shown or apology forwarded by the contemnors. This behaviour, therefore, should not be entertained and it should not be let off sparingly. The Court also observed that in order to pass comments or criticize the court’s judgment, people should also first have the knowledge or virtue to challenge the integrity and authority of a judge. Therefore, the Court held them guilty of contempt of court and sentenced all the three advocates to undergo simple imprisonment of three months along with a fine of Rs. 2000. 

In the case of M.V. Jayarajan v. High Court of Kerala (2015)[43], the appellant, while delivering a speech at a public gathering at Kannur in June 2010, used unparliamentary words and abused the Kerala High Court judgment banning meetings on public roads.

In the appeal addressed by Supreme Court of Kerela High Court, it was observed that any foul/abusive language used against the court or disrupting the administration of justice should be countered and prevented. Any encumbrance/disruptions faced by the judiciary in tendering any

judgment is said to obstruct the delivery of justice and must be repelled. The Court stated that no person can use foul language against the judges and cannot threaten them to step down from their offices. Further, the Court observed that the appellant showed no remorse and was not apologetic for his behaviour and remarks against the judges. Therefore, the Supreme Court upheld the decision of the Kerala High Court except it reduced the sentence from six months to four months.  

In the case of Hari Singh Nagra and others Vs Kapil Sibal and others (2010), the concept of fair and reasonable criticism was established in this case with respect to contempt proceedings. Referring to the facts of the case, Sr. advocate Kapil Sibal along with others sent a souvenir to be published by an association of lawyers while indicating his deep concern about the extremity of the junior members of the Bar Association and the degrading standards of the legal fraternity. Initially, the souvenir was neither published or sold, it was distributed only among the members of the Bar. However, when the respondent was contesting for the elections of the Supreme Court Bar Association, certain excerpts of his souvenir were published in the newspaper of Times of India. 

The Court presented the wide view in the arena of contempt proceedings and established the concept of “fair” criticism. The Court observed that any ridicule/criticism brought towards the judges and the courts, that hampers or brings down the confidence and belief of the public at large thereby deteriorating the foundation of justice must be prevented at all times. But any criticism which is reasonable, rational, fair and sober, not woven in threads of any mala fide intention must be welcomed. In accordance with view of Article 19(1)(a) of the Constitution, freedom of speech and expression when used by the Press, Media and the people to fairly or reasonably criticize any judgment of the court, does not constitute criminal contempt. Rather it is treated as a right of the people. Therefore, fair and reasonable criticism on the working of the judges and the courts can be made without condemning it as contempt of court.

The case of Abhyudaya Mishra v. Kunal Kamra[44] This case was initiated in the year 2020 and is still under trial. But the case has brought the concept of contempt of court into the limelight. The famous stand-up comedian Kunal Kamra has been alleged to have passed defamatory statements

against the court through the publication of tweets on social media. The said tweets criticised the Supreme Court for the way it’s fast procedure in the bail plea of Arnab Goswami, in case of abetment to a suicide. Attorney General KK Venugopalan gave his assent to initiate the contempt proceedings against Kamra stating that his tweets were of bad sense and that it was time for people to understand attacking the Supreme Court eccentrically would attract punishment. In January 2021, the respondent claimed that the jokes are not matter of truth and do not claim to be so and the fact that mere claims can hamper the foundation of the Supreme Court will be an overestimation.

In yet another ongoing case of Aditya Kashyap v. Rachita Taneja (2020), Rachita Taneja who is a cartoonist was accused of tweeting objectionable/critical content against the court by way of cartoons. The said post went viral and was widely shared and forwarded to. The Attorney General added that such posts are made to degrade the authority of the Supreme Court in the eyes of the public at large and therefore, even the cartoons were in contempt of the apex court.

In Re: Arundhati Roy Vs. Unknown 6 March 2002[45], writer Arundhati Roy was arrested and charged with contempt of court by the Supreme Court of India, after she publishing an article criticising one of the supreme court's judgments in relation to the Narmada Dam, and participated in a protest regarding the same outside the Court. Following her arrest, Roy made a further statement questioning the Supreme Court's act of initiating the contempt proceedings against her, and turned down the Court's offer of escaping punishment by pleading apology. She was imprisoned for one day and was fined ?2000. In 2016, Roy again faced contempt of court proceedings after she criticised the arrest of Delhi University professor G.N. Saibaba, who was imprisoned for having an connection with Maoists in India.

In the case of Delhi judicial Service Association, Tis Hazari Court, Delhi Vs. State of Gujarat[46], the Supreme court determined its power under article 129 to punish for contempt. “There is no iota of any doubt that this court has wide power to interfere and correct the judgment and orders passed by any courts or Tribunals in the country. In addition to the appellate power, the court also have special

Conclusion

Law of Contempt is essential to maintain the line of criticism and insult towards the institution of judiciary. Judges and authorities of court are vested with extreme powers to protect the rights of people and respect towards judiciary. That’s why when a judge founds that any person insulting judicial institution or authorities of court which ultimately hinders administration of justice in society, they charge him under the contempt laws. But, with the advancement of law and orders in society, it is under the perception of many people that these provisions are arbitrary used by courts in order to avoid fair criticism or opinion of public at large for the judicial pronouncements or legislations.

In most cases, Advocates, Journalists, politicians and media persons are charged under contempt proceedings for giving statements, speaking at public places, posting tweets or publishing content which may provoke public towards the biasedness of judiciary and may also cause insult to the dignity of judges and authorities.

So, Supreme court through its various judicial pronouncements had asked courts, judges and advocates to maintain mutual respect with each other by not using abusive languages, insulting statements and having communication in degrading tones which lower downs the level of judiciary. Judges are asked to be polite towards advocates, or any person seeking justice in court while advocates are asked to respect and maintain decorum before the supreme authority of judges. This will boost the morale and confidence of advocates and public and judges will gain huge respect and appreciation in return towards judiciary or at personal level.

The judges and advocates are also asked to maintain bar and bench relationship keeping mutual respect hand in hand and prioritizing natural justice keeping aside personal ego or displeasure, which will help in administration of justice, which is the ultimate aim.