The age-old Contempt of Courts laws’ history comes way back from the period of Regulating Act enacted by the British in India, where, the Mayor’s Court was given the authority which is equal to that of the English King’s Bench court for assigning punishment for the offence of contempt of court.
The first Contempt of Courts Act was enacted in 1926. The Act gave the authority to the three High Courts in Colonial India- Bombay, Madras and Calcutta to penalise any person for the offence of contempt on itself and also its inferior courts. The punishment was imprisonment for a minimum of 6 months or a fine or both for committing the Act. However, on an apology submitted by the accused, he/ she would be discharged.
After India acquired independence, the Act of 1926 was replaced by the Contempt of Courts Act 1952. The highest court of India, i.e., the Supreme Court also known as the Court of Record has been given powers that the High Courts during British India had along with the power to penalise for contempt by Article 129 of the Constitution of India. The Act of 1954 had many shortcomings in it. The committee headed by the Former Additional Solicitor General, H. N. Sanyal, reviewed the contempt laws in 1971 after a decade of its enforcement. The Committee was mandated to:
(i) review the law pertaining to court contempt generally, and in particular, the law pertaining to the sanctioning process;
(ii) to propose changes therein in order to (whenever necessary) clarify and revise the law; and
(iii) to offer suggestions for the codification of the legislation.
The lacunae present in the previous Acts have been corrected and the present Contempt Courts Act 1971 was formulated as per which, it is “An Act to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto.”
CONTEMPT OF COURTS
In general terms, we can understand that anyone who disrespects the court or its legal authorities or disobeys the order of the court, the judge has the right to impose fines on them or can sentence imprisonment for some time if found guilty of the act. This phrase can also be taken in terms of the judiciary’s freedom from restrictions. As is common knowledge, every judge has the authority to grant judicial proceedings within the bounds of the law. Anything that restricts or prevents a judge from granting a necessary judicial action can be considered contempt of court.
According to Section 2 (a) of The Contempt of Courts Act 1971, Contempt of Court is defined as civil or criminal contempt.1
The Constitution of India has 2 two Articles regarding the Contempt of Courts.
- Article 1292– This Article gives the power to Supreme Court to be the ‘Court of Record’ and it has the authority to penalise for contempt of itself and its inferior courts.
- Article 142(2)3– The Supreme Court shall have absolute authority to issue an order for the purpose of securing any person’s attendance, the discovery or production of any documents, or the investigation or punishment of any contempt of itself, subject to the requirements of any law established in this regard by Parliament.
- Article 2154– The High Courts have the right to punish for the contempt of courts and its lower courts.
CONTEMPT OF COURTS ACT 1971
The Contempt of Courts Act 1971, is the only act which has defined the terms ‘Contempt of Courts’ in the enactment. As mentioned earlier, contempt of court is defined as civil or criminal contempt. In Noorali Babul Thanewala v. K.M.M. Shetty5, a person provided a court with an undertaking during civil proceedings. The court sanctioned a course of action based on the assumption that the undertaking was accurate, yet the undertaking appears to be false. As a result, this was viewed as misbehaviour and court contempt. There are various clauses in this legislation which state that doing so does not constitute contempt of court.
The Act specifies under Sections 3 to 7 that innocent publication and distribution of matter, accurate report of the proceedings, fair criticism, complaint against presiding officers of subordinate courts, and publication of information relating to proceedings in chambers or camera do not amount to contempt. Any other defences except mentioned under the act don’t affect. The Act gives the power to the high courts to try the contempt of courts cases and also the punishments are prescribed, procedures, etc., are mentioned.
Types of Contempt:
- Civil Contempt:
Civil contempt is defined in Section 2 (b) as “wilful disobedience to any judgment, decree, direction, order, writ or other processes of a court or wilful breach of an undertaking given to a court;”6
Essentials of Civil Contempt:
- The disobedience or breach must be done wilfully.
- The act must be done deliberately.
- A genuine court order being issued, the respondent being aware of the order, and their capacity to comply.
- It does not include careless, negligent, honest, or unintended behaviour or a real incapacity to follow the requirements of the order.
In Anil Ratan Sarkar v. Hirak Ghosh7, the Supreme Court has held that mere disobedience of the decree is not enough to prove civil contempt. The element of willingness is important to charge within the Act. In the case of Dr. Sajad Majid v. Dr. Zahoor Ahmed8, the court stated that mere pendency of the appeal in the appellate jurisdiction does not protect him from contempt of court if there is a non-compliance of the order and that would cause him risk since it’s done without any legal justification.
- Criminal Contempt:
According to section 2(c), “ ‘criminal contempt’ means the publication (whether by words, spoken or written, or by signs, or by visible representations, 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.”9
In the case of Jaswanth Singh v. Virender Singh10, a lawyer made a scandalous and insulting attack on the High Court judge. A petition for an election was submitted to the High Court by an advocate. In order to hear more arguments in an election petition and to transfer election petitions, he wished to ask to remain. These things undermine the High Court’s judicial process and have a propensity to embarrass the Court. In this instance, it was determined that there had been an attempt to intimidate the High Court judge and obstruct the conduct of a fair trial.
In Anantha Lal Singh v. Alfred Henry11, it was held that any comment upon the advocate who is handling the suit amounts to contempt of court on the same principle, which is applicable to the judges or the judgement.
Punishments under The Contempt of Courts Act, 1971:
Section 12 of the Contempt of Courts Act 1971, mentions the punishments for the offence of contempt. The Act states that there can be simple imprisonment which extends to 6 months or with a fine, which extends to Rs. 2,000 or both. However, on the accused apologising for the act committed, he can be discharged or the punishment can be remitted. The Supreme Court has the authority to award punishment to its subordinate courts as well.
In the case of Re: Arundhati Roy12, Supreme Court made the observation that legitimate criticism of a judge’s behaviour or the role of the judiciary as an institution may not constitute contempt if it is offered in good faith and for the benefit of the general public. The editors of the Times of India and the Indian Express were charged with contempt in 1978 as a result of the publication of articles that criticized the Supreme Court’s ruling in the habeas corpus case, ADM Jabalpur v. Shivkant Shukla13, where the Supreme Court declined to defend the right to habeas corpus during the Emergency.
The list continues, but on two fronts, the Act receives harsh criticism. The term “scandalizing the court,” which is used in Section 2(c)(i), is unable to identify action that scandalizes or incites biases against the judicial establishments, leaving a grey area. The meaning of contempt has not been adequately and precisely provided.
In Narmada Bachao Andolan v. Union of India14, it was held –
- that scandalizing the court is not only an offence under the Act but is sui generis. While courts are not unduly sensitive to fair or even outspoken comments, in the larger interest of protecting the administration of Justice, no one can be permitted to distort orders of the court and deliberately give a slant to its proceedings and bring it to ridicule.
- Courts succumbing to the pressure tactics of litigants would result in negation of rule of law. Threats of public protests, meetings and undertaking satyagrahis against orders of Supreme Court prima facie appear to be an attempt to prejudice or interfere with the due course of judicial proceedings.
- Courts cannot be forced by pressure tactics of litigants to change their decisions, by organizing protests against court orders in pending judicial proceedings.
- Supreme Court’s shoulders are broad enough to shrug off comments and no action in contempt is needed to be initiated.
Criticism of the Court and restrictions on free speech – A PIL attorney named Prashant Bhushan was found guilty of contempt of court in 2020. He had criticized the judiciary for paying only partial attention to hearing cases during the lockdown after sharing a news photo of India’s then-Chief Justice, Sharad Bobde, riding a motorcycle without a face mask during the Covid-19 epidemic.
The Legal Fraternity has attacked it as having a chilling effect on this right as well since its definition is too broad and imprecise, allowing it to be used to shield the judges from criticism, and because the Freedom of Speech is constrained by the court’s power of contempt. The constitutionality of the Contempt of Courts Act was also challenged by Bhushan and others; this case is still pending.
The Supreme Court declared that merely criticizing the court does not amount to contempt of court in PN Dua v. Shiv Shankar & Ors15. The Court ruled that as long as criticisms of the legal system or of judges don’t interfere with or obstruct the administration of justice, they should be welcomed in the public realm. However, some people have thought that criticism is being linked with diminishing the authority of courts, which is completely untrue.
The Contempt of Courts Act 1971 can be said as a colonial act due to its presence in society. The act provides the provisions that protect the dignity of the courts and the judges. Contempt of court is a concept whose remedy is to prove that the information is true. There also are provisions in the act which provide exceptions for the contempt of courts. However, there is also the perspective that, the extent of the contempt authority is constrained by giving it a clear and specific meaning, making it impossible to employ it carelessly or indiscriminately.
It is undeniable that the judiciary has exceptional power when it comes to contempt. The aforementioned authority must be used to uphold the Rule of law, not the supremacy of any particular judge. The rule of law frequently manifests itself through court and tribunal judgements. Therefore, the Court’s inherent authority to protect the majesty and dignity of the courts is the Contempt Jurisdiction.
- The Contempt of Courts Act 1971, s. 2(a).
- The Constitution of India, art. 129.
- The Constitution of India, art. 142 (2).
- The Constitution of India, art. 215.
- Noorali Babul Thanewala v. K.M.M. Shetty, 1990 AIR 464.
- The Contempt of Courts Act 1971, s. 2(b).
- Anil Ratan Sarkar v. Hirak Ghosh, AIR 2002 SC 1405.
- Dr. Sajad Majid v. Dr. Zahoor Ahmed, 1989 Crl.L.J. 2065
- The Contempt of Courts Act 1971, s. 2(c).
- Jaswanth Singh v. Virender Singh, 1994 suppl. (5) SCR 336
- Anil Ratan Sarkar v. Hirak Ghosh, AIR 1931 Cal 257.
- Re: Arundhati Roy…. … vs — on, 2002 AIR (SCW) 1210.
- Narmada Bachao Andolan v. Union of India, AIR 2010 SC 2221.
- Re: Prashant Bhushan & Anr. …. Alleged Contemnor(S)
- P.N. Dua v Shiv Shankar & Ors, 1988 AIR 208.
This article is written by K. Mihira Chakravarthy, first year BA LLB student from Damodaram Sanjivayya National Law University (DSNLU).