Contempt of Court
Why in the News?
Contempt of Court has recently been in the news for the infamous case against Advocate Prashant Bhushan for two of his tweets, regarding the functioning of the Apex Court as well as the Chief Justice of India (Justice Bobade), which have held to be in contempt by the Supreme Court. Prashant Bhushan was fined Re. 1 as a penalty for the contempt.
What is Contempt of Court?
Contempt of Court refers to the offence of showing disrespect to the dignity or authority of a court.
As a concept, Contempt of court proposes to protect judicial institutions from motivated attacks and unwarranted criticism.
Used as a legal mechanism to punish those who lower its authority, in order to safeguard the interests of the public and public confidence in the administration of justice.
The Supreme Court and High Courts derive their contempt powers from the Constitution (contempt of court is one of the restrictions on freedom of speech and expression under Article 19(2)).
Article 129 of the Constitution conferred on the Supreme Court the power to punish contempt of itself.
Article 215 conferred a corresponding power on the High Courts.
The Contempt of Courts Act, 1971 (“the Act”), gives statutory backing to the idea. The Act was significantly amended by the 2006 Amendment to the Act.
The Act specifies that the Supreme Court as well as the High Courts have the power to try and punish the offence of contempt.
High Courts also have the power to punish acts of contempt against courts subordinate to them.
In addition to these courts, certain administrative tribunals also have been given the power to punish for contempt, in their governing statutes
The Contempt of Court Act, 1971, outlines the procedure in relation to investigation and punishment for contempt.
According to the Act, contempt is divided into civil and criminal contempt.
*‘Scandalising the Court’ broadly refers to statements or publications which have the effect of undermining public confidence in the judiciary.
The punishment for contempt of court is simple imprisonment for a term up to six months and/or a fine of up to ₹ 2,000.
Contempt Charges against Judges and Advocates
The Act provides that a charge of contempt may be brought against a judge, magistrate or any other person acting judicially, for contempt of her own court or any other court in a manner similar to any other individual. The provisions of the Act shall be applicable in the same manner to such persons, as any other individual. (E.g. – In the year 2017, a sitting judge of the Madras High Court, Justice Karnan, was charged with and convicted of contempt by a 7-judge bench of the Supreme Court, for levelling corruption charges against sitting judges of the Madras High Court and also defying the Supreme Court.)
An advocate may be held in contempt of court for:
using insulting language or making against a judge, making scandalous allegations against a judge, suppressing the facts to obtain favourable order hurling shoe at the judge,
imputation of partiality and unfairness against the judge, advising clients to disobey the order of the court, attacking the judiciary in a bar council election manifest, refusing to answer the questions of the court, using intemperate language and casting unwarranted aspersions on various judicial officers and attributing motives to them while discharging their judicial functions.
What is not contempt of court?
Fair and accurate reporting of judicial proceedings.
Fair criticism on the merits of a judicial order after a case is heard and disposed of.
Is truth a defence against a contempt charge?
Initially Truth not a defence against a contempt charge.
Amendment to the Contempt of Court Act in 2006 introduced truth as a valid defence, if it was in public interest and was invoked in a bona fide manner.
Arguments Against Contempt of Court
Against Civil Liberties: Contempt law in conflict with freedom of speech and expression as a fundamental right.
Use of contempt law by judiciary causes chilling effect on exercise of 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”.
Wide Scope of Contempt: The definition of criminal contempt in India is extremely wide, and can be easily invoked. Courts may also initiate proceedings suo motu.
Truth and Good Faith as Defences are seldom entertained, although included as defences under the Contempt of Courts Act.
International Disuse: Contempt of court has practically become obsolete in foreign democracies, with various jurisdictions recognising it is an archaic law.
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.
Arguments in Favour
Reduction in respect to the Judiciary: Amendment to 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.
Constitutional Source of Contempt Power: Supreme Court and High Courts derive their contempt powers from the Constitution. The Contempt of Court Act, 1971, Act only outlines the procedure in relation to investigation and punishment for contempt. Therefore, deletion of the offence from the Act will not impact the inherent constitutional powers of the superior courts to punish anyone for its contempt.
Impact on Subordinate Courts: The Contempt of Court Act allows High Courts 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. The Court reject that Law or any of its parts which is found to be unconstitutional or against the constitution.
Ambiguity: Amending the definition of contempt will lead to ambiguity; superior courts will exercise power of contempt under the constitution and may give multiple definitions and interpretations to what constitutes contempt. Retaining the definition fulfils the purpose of clarity according to the commission.
Adequate Safeguards: The Law Commission of India noted that there are several safeguards built into the Act to protect against its misuse. For instance, the Act contains provisions which lay down cases that do not amount to contempt and cases where contempt is not punishable.
The Law Commission of India looked into the issue of Contempt and recommended that the provision for contempt of courts be retained. However, it also recommended the definition of contempt in the Contempt of Court Act should be restricted to civil contempt, i.e., wilful disobedience of judgments of the court.