JV’s Mains Drill
What do you understand by contempt of Court under the Indian law? Does it clash with citizens, right to freedom of speech and expression?
- Under the Indian law, the Contempt of Courts Act, 1971, divides contempt into civil contempt and criminal contempt.
- ‘Civil contempt’ is a ‘wilful disobedience to any judgment, decree, direction, order, writ or other processes of a Court or wilfulbreach of an undertaking given to the court’.
- ‘Criminal contempt’ is ‘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:
- Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court.
- Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding.
- Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.’
Punishments for Contempt of Court
- The supreme court and high courts have the power to punish for contempt of court, either with simple imprisonment for a term up to six months or with fine up to 2,000 or with both.
- In 1991, the Supreme Court has ruled that it has the power to punish for contempt not only of itself but also of high courts, subordinate courts and tribunals functioning in the entire country.
- On the other hand, High Courts have been given special powers to punish contempt of subordinate courts, as per Section 10 of The Contempt of Courts Act of 1971.
- Article 129: Grants Supreme Court the power to punish for contempt of itself.
- Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.
- Article 215: Grants every High Court the power to punish for contempt of itself
Issues with Contempt Law
- Article 19(1)(a) of the Constitution gives the right to freedom of speech and expression to all citizens, while “contempt provisions” curb people’s freedom to speak against the court’s functioning.
- The law is very subjective which might be used by the judiciary arbitrarily to suppress their criticism by the public.
The Need: Judiciary ensures justice and equality to every individual and institutions, therefore, the makers of the constitution upheld the sanctity and prestige of the revered institution by placing provisions under articles 129 and 215 of the constitution, which enables the courts to hold individuals in contempt if they attempt to demean or belittle their authority.
Is criticism allowed?
Yes. The Contempt of Courts Act, 1971, very clearly states that fair criticism of any case which has been heard and decided is not contempt.
Contempt of Courts (Amendment) Act, 2006:
- The statute of 1971 has been amended by the Contempt of Courts (Amendment) Act, 2006 to include the defence of truth under Section 13 of the original legislation.
- Section 13 that already served to restrict the powers of the court in that they were not to hold anyone in contempt unless it would substantially interfere with the due process of justice, the amendment further states that the court must permit ‘justification by truth as a valid defenceif it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.’
Arguments in Favour of retaining the contempt provision
- Increasing instances of Contempt and scandalising: A high number of civil and criminal contempt instances are being observed in various High Courts and the Supreme Court. The high number of cases justify the continuing relevance of the contempt of court law.
- Constitutional Source of Contempt Power: Supreme Court and High Courts derive their contempt powers from the Constitutional articles 129 and 215. 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.
- Affecting Judiciary’s Reputation and eroding people’s faith in judiciary: Increasing instances 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.
- 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.
- Ambiguity: The Commission observed that amending the definition of contempt will lead to ambiguity. This is because the superior courts will continue to exercise contempt powers under the Constitution. If there is no definition for criminal contempt in the Act, superior courts may give multiple definitions and interpretations to what constitutes contempt. The Commission suggested retaining the definition for the purpose of ensuring clarity.
- Adequate Safeguards: The Law Commission 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. These provisions suggest that the courts will not prosecute all cases of contempt.
- International comparison: In relation to the offence of ‘scandalising the Court’, the United Kingdom had abolished the offence in its contempt laws. However, it noted that there were two differences in circumstances in India and the United Kingdom, which warranted a continuation of the offence in India. First, India continues to have a high number of criminal contempt cases, while the last offence of Scandalising the Court in the UK was in 1931. Second, the offence of Scandalising the Court continues to be punishable in UK under other laws. The Commission observed that abolishing the offence in India would leave a legislative gap.
Arguments against retaining the contempt provision
- Against 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”.
- Wide Scope of Contempt: 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.
- International Disuse of Contempt Doctrine: 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 “scandalising 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.
- In S.Mugolkar v. Unknown (1978), the Supreme Court held that the judiciary cannot be immune from fair criticism, and 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.
- The Law Commission of India held that there is a need to retain the provision regarding the contempt of courts. However, it also recommended the definition of contempt in the Contempt of Court Act should be restricted to civil contempt, i.e., willful disobedience of judgments of the court.