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 8th March, 1926. The Act received the assent
of the
Governor General on the 8th March, 1926. Received the assent of the
Governor General on the 8th 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.
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.
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.
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 24th 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.
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