ORIGIN, DEVELOPMENT AND CONSTITUTIONALITY OF CONTEMPT OF COURTS ACT

Sasi K.G.

01. Meaning and Definition of contempt of Court

According to Corpus Juris Secundum, “The Contempt of Court is disobedience to the Court by acting in opposition to the authority, justice and dignity thereof. It also signifies a wilful disregard or disobedience of the Courts order.”

Section 2 (a), (b) and (c) of the Contempt of Courts Act, 1971 defines it as,

“2. Definitions.   In this Act, unless the context otherwise requires,

 (a)   contempt of court  means civil contempt or criminal contempt;

 (b)   civil contempt  means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;

(c)   criminal contempt  means 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 

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

02. Early Days of Contempt of Court

Contempt of court is an offence, which by the common law of England was punishable by the High Court, in a summary manner, by fine or imprisonment or both. The power to punish for contempt of court was applied originally in England to contempt committed in the presence of the court. In 1747 it was initiated against Thomas Martin, Mayor of Great Yamouth, for sending a banknote of Pound 20 to lord Hardwicke, Lord Chancellor, with a letter referring to a proposed chancery proceeding. Mayor sought pardon and the Lord Chancellor did not take any action.

In 1631, when a prisoner threw a brickbat at the Judge and narrowly missed him, the prisoner’s right hand was ordered to be cut off and hung on the gallows. In 1938, when the disgruntled litigant threw tomatoes at the Court of Appeal, consisting of Clauson and Goddard JJ, he was immediately committed to prison, but released after a few days of incarceration, because, he did not score a direct hit and secondly Christmas was soon approaching.

Down to the 16th Century criminal contempts out of court by strangers were, like trespass, tried either by jury or in the Star Chamber. Upon the abolition of the Star Chamber in 1641 libels on the court were tried by information down to 1721. In 1721 a stranger was tried for libel by attachment and examination, and by 1821 summary process without jury was established as regular practice.

Amercement was introduced by William the Conqueror in place of the Anglo-Saxon wite. According to the old law before the 17th Century a person punished for contempt was imprisoned but discharged on the payment of a fine and it was only after the 17th Century that a person was punished in case of contempt both by imprisonment and a fine and imprisoned until the fine was paid.

Kings created the contempt jurisdiction and claimed it was a natural adjunct to their adjudicating work. A law which began as a convenient method to enforce their orders was subsequently used to extract respect from the challenges of the press. Phillimore Committee discussed historical aspect of law of contempt in the following words: “The law relating to contempt of court has developed over the centuries as a means whereby the court may act to prevent or punish conduct which tends to obstruct, prejudice or abuse the administration of justice either in relation to a particular case or generally.”

03. Origin and Development of the Law of Contempt in England

The phrase contempt of court (Contemptus Curiae) has been in use in English law for eight centuries. The law conferred the power to enforce discipline within its precincts and punish those who fail to comply with its orders.

The idea of contempt of the king is referred to as an offence in the laws set-forth in the first half of the twelfth century. Contempt of the king‘s writ was mentioned in the laws of king Henry-1. In the same laws there was mention of pecuniary penalty for contempt or disregard of orders. Thus in England before the end of the twelfth century contempt of court was a recognized expression and applied to the defaults and wrongful acts of suitors.

After making a study of cases in the thirteen century John Charles Fox concluded that there was no indication of trial of contempt out of court otherwise than in the ordinary course of the law and many cases of contempt in court were tried by indictment and not by a summary process. If the contempt is confessed there was no need for trial by jury and such cases of contempt were disposed off by sentence upon confession. The earlier form of procedure was attachment by Bill, when trial by jury was followed, unless the accused confessed. Later the Star Chamber practice of attachment and examination without jury was substituted for the procedure by Bill.

From fourteenth century onwards the jurisdiction of the King‘s Justices to punish contempts of a criminal nature summarily was limited to offences not heinous, committed in court in the actual view of the justices. The summary jurisdiction was held to extend to all contempts whether committed in or out of court.

04. Origin and Development of the Law of Contempt in India

1. Contempt law in ancient India

In the ancient times, it was the duty of the King to administer Justice by hearing litigation with the assistance of Councilors.  When the king himself could not preside over Court, he should appoint a Judge to act as his delegate along with Councilors. King was fountain of justice, judicial system and code of conduct in all walks of life. Similarly, whosoever disobeyed decisions or orders or of Court or dictates or Ordinance issued by King was held to have committed contempt or Avman, Utkraman, or Ullanghan and was punished.  Along with the filing of the plaint the temporary injunction could be obtained and that was called as Asedhuh. An injection was to be obeyed by the defendant till he appeared and got it vacated. In Katyayana Smriti there is a mention that in such circumstances, in case an injection was served on the dependent and it was disobeyed it was punishable. Disobedience of the order of Court was contempt and was punishable.

In Narada Smrti Chapter XVIII Stanza 32, contempt of King is dealt with as,

32. Therefore one must not treat him with contempt, and, particularly, not scold at him, and pay obedience to his bidding; to disobey him would bring on (instantaneous) death.”

Narada Smrti Chapter I Stanzas 66 and 67 mentions of the Judges who commit contempt of their own office as reproduced below.

“66. If a verdict contrary to justice has been passed, the assessors of the court must pay that fine; because nobody certainly can act as a judge without incurring the risk of being punished (eventually).

67. When a member of a court of justice, actuated by wrath, ignorance, or covetousness, has passed an unjust sentence, he shall be declared unworthy to be a member of the court, and the king shall punish him for his offence.”

2. Introduction of Contempt law in India by the British 

The contempt power of the Superior Court does not base on any statutory enactment but on the common law principle that the concept is inherent in every court of record. The contempt of law was introduced in British India by setting up of the Court of Record through a charter of 1687 issued by the East India Company for the establishment of Mayor's Court at Madras.  Thereafter charter of 1726 occupied and important places in the development of the administration of justice in India. Before 1726, there was no uniform judicial system in all three Presidency towns, for example Bombay, Madras and Calcutta. The Mayor court was reconstituted in 1753 and thereafter also, it remained the court of Record having power to punish for contempt of Court. Even prior to it, when after 1704, the court of Admiralty ceased to sit regularly appeals from the Mayor's Court lay to the governor in Council. The admiralty court and the governor in Council may also be taken as Court of record as they heard appeals from the Mayors Court of record.

In 1774, the Calcutta Mayor’s Court was replaced by Supreme Court established under the charge for granted in 1774. Madras and Bombay High Courts continued till 1797 when they were superseded by the recorders court by an Act passed by the British Parliament in 1893. The recorders court was a court of record and as such it had power to punish contempt.

The Indian High Courts Act, 1861 replaced the Supreme Courts of Calcutta and Madras by unification of Company's Court and Crowns Courts.  The High Court was a Court of record, had a power to punish for its Contempt.

The first use of the contempt jurisdiction against the press was very circumspect. William Tayler had written to the Englishman that Justice Dwarkanatha Mitter was wrong to have made certain remarks about Taylor's honesty and then refused to retract these remarks in a review petition before the court. “Our Courts, therefore, are generally free from all complaints against the press, either civil or criminal, on the ground of defamation."

In 1883, the Bengalee was cited for contempt in Surendra Nath Banerjee v. The Chief Justice and Judges of the High Court at Fort William in Bengal (1883) 10 Cal 109 because it made some adverse comments about an English judge's zubberdasty (obstinacy) in requiring a Hindu idol to be produced in court. Despite an apology, Surendranath Banerjee was punished. Justice Dwarkanath Mitter published a powerful dissent in which he argued that the court had accepted an apology from the Englishman, why was the editor of the Bengalee being treated differently.

It is only after the Nationalist Movement acquired a certain momentum that it became clear that the courts would not be spared the trenchant comments reserved for the rest of the administration of the Raj, and that the contempt jurisdiction was tightened up to meet the exigencies of the situation. In Bombay, in the Maharatta case (In re Narasimha Chintaman Kelkar (1908) 33 Bom 240), the editor criticized the government for colluding with the trial judge-Justice Davar-to produce a prejudicial result in the Lokmanya Tilak case. But only the words of Tilak has become history, he said, “In spite of the verdict of the Jury, I maintain that I am innocent. There are higher powers that rule the destiny of men and nations and it may be the will of providence that the cause which I represent may prosper more by my suffering than my remaining free.” In the Young India case (In re Mohandas Karamchand Gandhi AIR 1920 Bom 175) where Gandhi published certain documents in a pending case and also commented on certain civil dissent cases. Since Gandhi refused to apologize, he should have been punished severely. The judges made the wise political decision of letting Gandhi off with a warning.

In the Amrit Bazar Patrika case (In re Motilal Ghose and Others (1918) 45 Calcutta 169), the Calcutta High Court reacted very sharply to the allegation that an Indian judge should have been retained on the Bench and that the chairman of the Calcutta Improvement Trust had secured a Bench "after his own heart." An attack on the summary nature of the court's jurisdiction supported by Sir John Fox's research that the contempt jurisdiction did not proceed on a summary basis before R. v. Almon was brushed aside on the ground that the summary process to deal with contempts had come to stay and could not be questioned. The Bombay High Court in E. v. Balkrishna Govind Kulkarni AIR 1922 Bom 52 was in some doubt about the use of the summary process in respect of a newspaper controversy that the liquor contractors had trumped up an extortion case against followers of the Temperance Movements. At the same time, they felt that the 'Roman' concept of leniency needed drastic revision in modern times. In the Bombay Chronicle cases (1922-3) (E. v. Marmaduke Pickthall AIR 1923 Bom 8), the judges were in no doubt that the courts had to be protected from allegations that they were influenced by political pressures. Nor would the courts permit an editor who had been guilty of contempt on five different occasions to be let off simply on the basis that he offered an apology.

Meanwhile a controversy arose as to whether the contempt jurisdiction could be used for the protection of the due administration of justice of all the lower courts within the jurisdiction of the High Courts. The High Courts were divided on this question. Since it was a matter of policy that there should be a concerned attempt to protect the administration of British justice in India at all levels, the Contempt of Courts Act, 1926 was passed to give the High Court the power to punish for contempts of courts subordinate to them. High Courts became responsible for punishing all contempts of any little matter which was brought to their notice. This had a profound effect on the use of their jurisdiction.

It soon came to be assumed that any kind of adverse comment on the administration of justice came within the purview of the contempt jurisdiction. Thus, where the Searchlight accused the courts of ignoring earlier precedent, deplored the non-separation of the judiciary from the executive at the local level and criticized court decisions as having produced bad law, angry, rhetoric and monstrous sentences, the editor was found guilty of contempt and fined Rs.500 which was payable by the afternoon in E. v. Murli Manohar AIR 1929 Pat 72. In the Leader case (1935) (In the Matter of an Advocate of Allahabad AIR 935 All 1) comments to the effect that undeserving lawyers were being elevated to the Bench was considered contempt despite Sir Tej Bahadur's argument that no particular judge was being scandalized and no specific litigation was being affected. In a remarkable case from Allahabad, Debi Prashad Sharma v. E.  AIR 1943 PC 202, the Hindustan Times was found guilty of contempt because it carried a newspaper report of a circular sent by the Chief Justice to the judges of the lower judiciary asking them to voluntarily assist in raising funds for the war effort. The newspaper went on to suggest that the voluntary effort may well be spurious in that the Chief Justice "cannot remove from the mind of a person, particularly a litigant, that the request is being made by one whom it may not be safe to displease."

But dealing as they did with a vast tour de force of attacks on the judiciary, the High Courts of India often lost sight of the difference between a fair and justified criticism of the judiciary and an unfair and unwarranted attack or interference with the due administration of justice. And as the volume of the contempt case law before the court grew in size, the courts' sensitivity to such distinctions also diminished. Till about 1920, the law of contempt was sparingly used against the press. Around this date, the law of contempt was transformed into a political weapon to deal with criticism of British justice in India. The Contempt of Courts Act, 1926 facilitated the extension of the contempt jurisdiction to deal with all the courts within the jurisdiction.

3. The Contempt of Courts Act, 1926

The first Contempt of Court Act was enacted in the year 1926. It was practically an Act to define and limit the power of certain Courts in punishing contempts of courts. Received the assent of the Governor General on the 8^th March, 1926. The Act received the assent of the Governor General on the 8^th March, 1926. Received the assent of the Governor General on the 8^th March, 1926.

Section 2 of the Act empowered the High Courts and Chief Court to take cognizance of the Contempt Cases. It also restricted the High Courts from taking cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.  The Act also limited the punishment to simple imprisonment for a term which may extend to six months, or with fine, which may extend to two thousand rupees, or with both. And also introduced a proviso to the effect that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.

However, as usual, Courts began to interpret this restricting law as empowering law, and as no procedure has been prescribed therein, held that criminal procedure as it was under IPC need not be followed by Courts and only summary trial is necessary. The general defences which were available under IPC were also refused to the contemnors and Contempt continued as a privilege rather than a punitive proceedings.

4. The Contempt of Courts Act, 1952

Contempt of Court Act 1926 was repealed and replaced by the Contempt of Courts Act, 1952. The Act of 1952 empowered the court of Judicial commissioner to punish the Contempt of court subordinate to it. It was given the jurisdiction to inquire into or try a Contempt of itself or any Court subordinate to it. The definition of Contempt of Court and defenses available to contemnor etc. were not given in the Act. There were many objections for the academic world against it. Accordingly on 1st April, 1960 a bill was introduced in Lok Sabha by Shri Bibhuti Bhushan Dasgupta to amend the law relating to Contempt of Courts.

5. Contempt of Courts Act, 1971

Contempt of Courts Act, 1971 came into force on 24 December 1971 and repealed the 1952 Act. The provisions of this Act extends to the whole India, provided that it shall not apply to the State of Jammu and Kashmir, except to the extent to which the provisions of this Act relate to the content of Supreme Court. This Act is not an exhaustive code.  Section 22 of the Act provides that the provisions of this act shall be in addition and not in derogation of the provisions of any other law relating to the Contempt of Courts. This Act provides the definition of term, "Contempt of Court" and some important defenses. The Act makes provisions in respect of liability of the Judges, Magistrates and other persons acting judicially. It makes elaborate provisions in respect of the procedures to be followed in the Contempt proceeding and also in respect of the Appeal.

From the Preamble to the Act of 1971, it 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.

Section 10 of The Contempt of Courts Act of 1971 defines the power of the High Court to punish contempts of its subordinate courts. Power to punish for contempt of court under Articles 129 and 215 is not subject to Article 19(1)(a).

6. Truth as defense

The most recent attempts to reform the contempt law started with the recommendation of the National Commission to Review the Working of the Constitution (NCRWC) in 2002 to allow 'truth' as defense in matters of Contempt of Court. Contempt law was amended in 2006 in line with the above proposal. In the law as it now stands, while a person accused of contempt can seek his defense in "truth", he must get the permission of court for this defense after satisfying it that this truth will be in public interest and that he is acting bona fide, that is, with reasonable care and caution.

05. Some Important Case Laws

Recently, a Delhi High Court judge initiated contempt proceedings against a legal news magazine that published a report which claimed that a nightclub in the capital was allowed to remain open beyond the licensed closing time because the judge’s son had an interest in the club. It was debated whether this was a contempt. There are some instances where courts have used this power to penalise communication in the media that has been critical of the integrity of judges.

1. Bathina Ramakrishna Reddy v. State of Madras AIR 1952 SC 149

Supreme Court in  this case held: "When the act of defaming a Judge is calculated to obstruct or interfere with the due course of justice or proper administration of law, it would certainly amount to contempt. The offence of contempt is really a wrong done to the public by weakening the authority and influence of Courts of law which exist for their good.”

2. Perspective Publications v. State of Maharashtra (1968) 1971 AIR 221, 1969 SCR (2) 779

Blitz, a weekly newspaper, had lost a suit in which a firm of architects claimed damages of Rs. 3 lakhs from them. Justice Tarkunde of the Bombay High Court had passed the decree. Later, an article that appeared in a publication brought out by Perspective Publications and written by its editor, alleged that the judgment had been decided in favour of the firm because Justice Tarkunde’s father, brother, and other relatives were partners and had a large pecuniary interest in the firm. They were found guilty of contempt of court and sentenced to a month of simple imprisonment and a fine of Rs.1000.

3. E.M. Sankaran Namboodripad v. T.Narayanan Nambiar 1970 (2) SCC 325

Supreme Court in this case held that Article 19(1)(a) guarantees complete freedom of speech and expression but the Constitution has itself imposed restrictions, in relation to contempt of court and it cannot therefore be said that the right abolishes the law of contempt or that attacks upon judges and courts will be condoned."

4. In Re S. Mulgaokar v. Unknown (1978) 3 SCC 339: 1978 3 SCR 162

A letter was circulated among judges of the Supreme Court and the High Courts on drafting a code of ethics for judges. The Indian Express published the details of the letter and also commented on the character of the judges, specifically referring to some who lacked ‘moral courage’. The suit was dismissed and the article was not held to amount to contempt of court. Justice Krishna Iyer laid down six principles to determine if the publication of some matter amounts to contempt of court.

5. P.N. Duda vs. P.Shiv Shanker & Ors. 1988 (3) SCC 167

Supreme Court in  this case found that the criticism by Minister P.Shiv Shanker was making a study of the attitude of this Court and was not amounting to Contempt. Administration of justice and judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by the conscience and oath to their office, i.e, to defend and uphold the Constitution and the laws without fear and favour.

6. Sheela Barse v. Union of India & Ors. 1988 (4) SCC 226

In this case, the Court acknowledged that the broader right of a citizen to criticise the systemic inadequacies in the larger public interest. Judiciary is not exempt from such criticism. Judicial institutions are, and should be made, of stronger stuff intended to endure the thrive even in such hardy climate. But this freedom and privilege to criticize the proceedings cannot be used during their pendency by persons who are parties and participants therein.

7. Supreme Court Bar Association v. Union of India and Another Writ Petition (civil) 200 of 1995

In In Re: Vinay Chandra Mishra was overruled in this case. It was found that the matter is that of contempt of Court not of professional misconduct. The Court has jurisdiction on the matter of contempt but professional misconduct vests with the Bar. As the Bar Council can suspend an advocate only after giving him an opportunity to represent himself which is the requirement of due process of law, after the case of Maneka Gandhi v. Union of India. The Court in Vinay's case had vested with itself with the jurisdiction that it never had.

8. In Re: Vinay Chandra Mishra (1995) 2 SCC 584

In this case an advocate was found guilty of criminal contempt of Court and he was sentenced to undergo simple imprisonment for a period of six weeks and suspended from practising as an advocate for a period of three years. Supreme Court held that it may suspend or cancel the license of an advocate to practice his profession for contempt of Court.

9. In Re: Sanjiv Datta, Deputy Secretary's, Ministry of Information & Broadcasting, New Delhi & Ors. 1995 (3) SCC 619

The statements made in an affidavit filed in the court was held by Supreme Court in this case to amount to a criminal contempt.

10. Shri Surya Prakash Khatri & Another v. Smt. Madhu Trehan and Others 2001 Cri LJ 3476: 2001 (59) DRJ 298

Wah India, a fortnightly magazine, published an article listing fourteen judges of the Delhi High Court and evaluated them on parameters of punctuality, knowledge of the law, integrity, quality of judgments, manners in court, and receptiveness to arguments. The evaluation was apparently based on a survey that took in the opinions of fifty “senior lawyers.”

Delhi High Court Bench asked the Deputy Commissioner (Crime), Delhi Police to seize and confiscate copies of the issue of the magazine from shops, news-stands or any other place where they were being sold. It also asked the respondents to withdraw from circulation copies of the issue. It further directed that no one shall publish an article similar to it, or any article, news, letter or any material that tended to lower the authority, dignity and prestige of the members of the judiciary. The Bench also put a bar on reporting the proceedings of the case in the media, including contents of the article, in any manner. Issuing the notices, the Bench asked the respondents to show why they should not be punished for contempt of court. There was a huge uproar in response to these orders and many leading media personalities sought to express solidarity with the accused, and clamoured for more complete media rights. This had the desired effect and the court finally did allow media coverage of the proceedings. The Court held that prima facie contempt had been committed by the respondents because the ranking of the judges amounted to scandalizing the judiciary. The Court also refused the apologies that were tendered by the accused.

06. Constitutionality of Contempt Law

1. Contempt of Court under Constitutional Provisions

The jurisdiction to punish for contempt touches upon two important fundamental rights of the citizens,

1. right to personal liberty (Article 21)

2. right to freedom of expression. (Article 19 (1) (a))

In India, since the enactment of Contempt of Courts Act, 1926, punishment for contempt of court was statutorily limited to a maximum of six months imprisonment and a fine of rupees two thousand. But the position is different when contempt proceeding is initiated under Article 129 and Article 215. Whether contempt proceeding initiated by the High Courts under Article 215 is governed by Contempt of Courts Act is yet unsettled. However it is well settled that the contempt proceeding initiated under Article 129 is not governed by Contempt of Courts Act. In such situations, there are instances of imposition of strange punishments completely disregarding maximum punishment for contempt of court mentioned under the Act. There are instances of punishment for contempt of court disregarding the maximum punishment mentioned under Contempt of Courts Act even for proceedings for contempt of court initiated under the Act.

The jurisdiction which is vested by these the two articles (Article 129 and Article 215) is inalienable, and thus cannot be taken away from the courts. However, this is not an absolute ban, and such powers can be taken away only by a legislative enactment in Constitution. The provisions of the Contempt of Courts Act, 1971, are not in derogation but in addition to these two articles, and thus the Provisions of the Act cannot be used for limiting or regulating the exercise of jurisdiction contemplated under the said two articles.

Under Articles 129 and 215, Supreme Court and High Courts are conferred with the status of courts of record including the power to punish for contempt of itself. With regard to the powers of Supreme Court and High Courts for contempt committed against itself, the constitutional provisions are clear and unambiguous.

Entry 77 of the Union list of the seventh schedule of the Constitution is as follows-

Constitution, organization, jurisdiction and powers of the Supreme Court (including contempt for such a court) and the fees taken therein; persons entitled to practice before the Supreme Court.

Entry 14 of list III Concurrent List is as follows" contempt of court but not including contempt of Supreme Court."

The legislature is fully competent to legislate with respect to contempt of court subject only to the qualification that the legislature cannot take away the power of the Supreme Court or the High Court to punish for contempt or vest that power in some other court.

Article 142(2) of the Constitution of India states that the Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any document, or the investigation or punishment of any contempt of itself.

According to article 372 of Constitution of India, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.  That is why section 22 of the Contempt of Courts Act 1971, makes it clear that the provision of that Act shall be in Additon to and not in derogation of the provision of any other law relating to contempt of courts.

The contempt of Courts Act is not violation of guarantee of equality and article 14 as the classification of a founded on the intelligible differentia   which distinguishes persons or things that are grouped together from other left out of the group and the differentia has a rational relation to the object thought to be achieved by the statute in question is reasonable.

As the existing law relating to contempt of court imposes reasonable restrictions within the meaning of article 19(2) and therefore, it is not violative of the fundamental right to freedom of speech and expression guarantee by article 19 (1)(2) of the Constitution.

According to clause 10 of the Article 366 the existing law means any law ordinance order bye- law, rule or regulation passed or made before the commencement of this Constitution by a legislature, authority or person having power to make such a law.,  ordinance bye-law , rule or regulation.

The contempt of law is not violative of article 21 which provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law as the existing procedure for contempt proceedings have statutory sanction.  Section 10 of the contempt Act, 1971, makes it clear that every High Court shall have and exercise the same jurisdiction powers and authority in accordance with the same procedure and practice in respect of contempts of courts subordinate to it as it has and exercise in respect of contempts of itself. Beside this article 225 of the Constitution of India makes provision for its continuity.

A model case is C.K. Daphtary v. O.P. Gupta (1971 1 SCC 626), wherein the respondent published and circulated a booklet in public purporting to ascribe bias and dishonesty to Justice Shah while acting in his judicial capacity. Mr C.K. Daphtary, along with others, filed a petition alleging that the booklet has scandalized the judges who participated in the decision and brought into contempt the authority of the highest court of the land and thus weakened the confidence of the people in it. The Supreme Court, in examining the scope of the contempt of court, laid down that the test in each case is whether the impugned publication is a mere defamatory attack on the judge or whether it will interfere with the due course of justice or the proper administration of law by the court.

2. Contempt of Court and Freedom of Speech - A Constitutional Analysis

Freedom of speech nowadays is mostly associated with freedom of press. “Were it left to me to decide whether we should have a government without newspapers or newspapers without a government. I should not hesitate a moment to prefer the latter.” Said Thomas Jefferson in a speech.

According to Justice Krishna Iyer the major contents of the freedom of press are:

1.      Freedom to gather information from diverse and antagonistic sources, on a competitive basis, free from any monopolistic control from the government.

2.      Freedom to inform the public true facts without fear or favor.

3.      Right to have free access to sources of information.

Sit William Scrogg who became Lord Chief Justice in 1678, had pronounced a judgment that to publish a newspaper was illegal as, according to him, manifested an intention to commit breach of the peace. On 24^th February 1703 Daniel Defoe was fined 200 Marks and condemned to be pillared thrice to be imprisoned indefinitely and to find sureties for his good behaviors during seven years for writing an anonymous pamphlet called “shortest way with dissenters”. Thus Press and Judiciary have maintained born rivalry in the earlier periods. The numerous contempt proceedings against press during the pre-independence and post-independence  periods also prove that rivalry.

Though freedom of press has not been recognized as such in Indian Constitution, the Indian courts have read this freedom under freedom of speech and expression under Article 19(1)(a) as in Romesh Thappar v. State of Madras, AIR 1950 SC 124. Supreme Court in Maneka Gandhi v. Union of India AIR 1978 SC 597 observed that “to be a fundamental right it is not necessary that a right must be specifically mentioned in a particular article specifically, it may be a fundamental right if it is an integral part of a named fundamental right or parties of the same basic nature and character as that fundamental right. Every activity, which facilitates the exercise of the named fundamental right, may be considered integral part of that right and hence be a fundamental right-freedom of press in Article 19.”

But the freedom of press impliedly provided under Article 19(1)(a) is not absolute. As per Article 19 (2), it is liable to reasonable restrictions as imposed by an existing law or a law to be made by a state on various grounds like

a) sovereignty and integrity of India

b) the security of the state

c) friendly relations with foreign states

d) public order

e) decency or morality

f) or in relation with contempt of court and g) defamation or incitement to an offence.

It is this nexus between freedom of press as impliedly provided in Article 19(1)(a) and its restriction based upon contempt of court that is conflicted and adjudged in favour of the judiciary.

07. Some Recent Case Laws

1. In Re Arundhati Roy AIR 2002 SC 1375

The Court said in Naramada Bachao Andolan Vs Union of India (1999) 8 SCC 308 that court's shoulders are broad enough to shrug off their comments and because the focus should not shift from the resettlement and rehabilitation of the oustees, no action in contempt be taken against them. But in In Re Arundhati Roy Supre Court sentenced Arundhati for simple imprisonment for one day and to pay a fine of Rs.2,000/-. Supreme Court held in this case that Contempt of Court Act was constitutionally valid.

2. Court on Its Own Motion v. M.K. Tayal and Others (2007): MANU/DE/8520/2007

Mid-Day published an article with a cartoon which alleged that Justice Y.K. Sabharwal, a former Chief Justice of India had headed a Supreme Court bench which passed certain orders in the matter of sealing off commercial establishments in residential areas even though the sons of the Chief Justice had a vested interest in those commercial establishments. The Delhi High Court took suo moto cognizance of the matter and the newspaper’s editor, publisher, resident editor, and cartoonist were held guilty of contempt of court. However in Vitusah Oberoi & Ors v. Court on Its Own Motion in Criminal Appeal No.1234 OF 2007 acquitted the accused only because the High Court cannot decide the matter of a Supreme Court Judge.

3. Dr. Subramanian Swamy v. Arun Shourie (1990) 2014(3) ALT (Crl.) (SC) 164: 2014(suppl.) Cri LR (SC) 790: 2014(12) SCC 344

Justice Kuldip Singh, then a judge of the Supreme Court, was appointed the chairman of a commission of inquiry to probe into allegations of corruption against Ramakrishna Hegde, the former Chief Minister of Karnataka. When the commission released its report, it refuted all the allegations. The Indian Express published an article titled “If Shame Had Survived”, criticising the report for being “deferential” to the Chief Minister and accusing Justice Singh of “inventing theories and probabilities” to argue against the allegations. Even though the Court took suo moto cognizance of the matter, the petitions were dismissed, partly because the law was amended during the course of the proceedings to include truth as a defence and partly because Justice Singh, as member of a commission of inquiry, was not a court for the purposes of the contempt law.

4. Maheshwar Peri & Ors v. High Court of Judicature at Allahabad in Criminal Appeal No. 549 of 2016

In November 10, 2008 edition, Outlook had published an article written by Banerji that dealt with the PF scam and named some judges who were allegedly involved. In this case Supreme Court upheld the one year limitation of initiating contempt proceedings and exonerated the contemnors.

5. In Re: Hon’ble Mr. Justice C.S. Karnan Suo Motu Contempt Petition No. 1 of 2017

The Supreme Court recently punished for 6 month imprisonment a Calcutta High Court judge, Justice CS Karnan, after the top court decided to initiate the case on its own against the judge for continuously leveling allegations against former and sitting judges. This is the first time that a sitting high court judge faces and gets punished in a contempt case.

Conclusion

The Summary proceedings and the qualitative and partial character of the few available defenses and the non-necessity of mens rea make contempt proceedings far from the attainment of the utopian Justice.

The History of Contempt cases is very complex. When Gandhi is warned, E.M.S. Namputiripad gets punished and Minister Shivashankar gets exonerated on his judicial background. Retired Justice Krishna Iyer gets praises when facing contempt whereas Justice Katju is summoned and escapes by apology and Sitting Justice Karnan is ordered for imprisonment. The discharge of contempt cases as a whole is not at all solely for the interest of justice, but for the maintenance of the power, reverence and infallibility of the Judicial system. When personal attacks on the Judges do not come under contempt, an attack on a Judge is protested on the ground of the integrity of the co-judges who signed the judgment in question. Thus contempt proceedings attain a functional quasi-administrative nature. Applying a social engineering analysis, it can safely be said more contempt has been caused by the judicial contempt actions than the actual contempts against Judiciary.