Tag: courts

Introduction

Due to the COVID-19 outbreak, the whole world including India had gone into lockdown. Even the courts were shut down for a while in March when directed by the Supreme Court of India. The centre and the state governments had put down restrictions that made it difficult for the courts to function. As in the Anita Kushwaha v. Pushap Sadan¹ case, it was declared by the Supreme Court, “It is the constitutional right of rural (and other) citizens to ‘Access to Justice’ under Article 14 and Article 21 of the Constitution of India”. The courts have found a way to prevent human interference and still work exceptionally. Several courts were largely shut down, and only urgent hearings were being held. A few states permitted open courts to operate with partial hearings, but this was terminated due to an increase in cases, and virtual courts were fully implemented instead.

The pandemic paved way for the judiciary to work in virtual mode to prevent the contagiousness of the virus. However, India had its first virtual court in Faridabad. The Supreme Court Vidhik Anuvaad Software was unveiled by the President of India on November 26, 2019, and it has the ability to translate legal documents from English into nine regional languages and vice versa.

The Supreme Court of India’s official multilingual mobile application will also be made available to give lawyers and litigants precise real-time access to case status, review screens, judgments, daily orders, etc. Although the judiciary has seen several technical advancements, such as the ability to record testimony through video conferencing², the ongoing Covid-19 pandemic has had a severe impact on virtual courts.

Positive impacts of the virtual courts

In the wake of the pandemic, the virtual courts have come to the rescue to deliver justice and continue the proceedings of the cases. They have become a mode of advancement of the judicial system through technology. The virtual courts have helped to maintain social distancing and decreased the risk of exposure to the virus.

The judges, counsels, and parties of a proceeding are joined in a video conferencing website within the given time. This process reduces the chances of corruption and brings more transparency. The cost-effectiveness allows people to approach the courts, since, the parties wouldn’t have to travel every time. These courts are also known as E-courts and e- justice is considered to be a stepping stone to e-governance. e-courts make it easier to achieve a number of goals that will aid the judicial administration in the allocation of cases, reduce litigation delay and cost, contribute databases, guarantee e-filing and e-notices, and make witnesses available through video conferencing, create digitally signed court orders, and digitize ADR. Thanks to technology, the open courts in many nations are able to function and serve as a medium to safeguard citizens’ rights throughout the pandemic.

Virtual hearings are used to safeguard the safety of the witnesses too. Court workflow management has been successfully automated with the use of virtual courts. As a result, it would contribute to improving the administration of courts and cases. This also gives the litigants ability to attend the proceedings from their office or home.

The court’s ability to operate around the clock is one of the main benefits we’ll have in the future too. There is a massive backlog of court cases, and a prolonged wait for justice causes residents to lose faith in the legal system. The method will gain momentum as a result, and cases can be decided in a timely way.

Virtual Courts versus Open Court

With the ongoing trend of the virtual courts, a very important question has been raised i.e., whether the virtual courts would replace the open courts. Many bar associations across the nation, from the Supreme Court Advocates-on-Record Association to the Gujarat High Court Advocates Association, have acknowledged the challenges experienced by attorneys during hearings through virtual courts.

It was also stated by Justice D.Y. Chandrachud that virtual courts can’t completely replace open courts. The first reason is that many advocates don’t have access to the internet in many areas and India is still in the process of technological development. High-speed internet isn’t available in all the areas all across the nation.

Secondly, many advocates don’t have the basic proficiency in technological skills which can be said as a major drawback since it would be difficult for them to shift to the virtual proceedings.

Thirdly, the current state of our legal system prevents the adoption of the idea of virtual courts because even an open court system cannot handle the massive backlog of unresolved cases. Fourthly, despite the fact that virtual courts and the open court system are not mutually exclusive, people’s privacy has not been respected. The legal system is geared toward litigants. It is particularly challenging for litigants, who typically hail from rural areas, to comprehend that their case is resolved without their attorney being in court. Although some attorneys may feel at ease in virtual courts, the clients still are not prepared. Justice consumers have been completely disregarded throughout the process.

Fifth, the people of India, whose cases have been languishing for long years, lack confidence in the current system.

Sixth, affluent law firms, corporations, government agencies, and legal tycoons may be able to take advantage of virtual courts more so than regular attorneys. Therefore, even if the Supreme Court intends to permanently establish virtual courts in India, it should have started by providing technical training to the lower judiciary, specifically the district courts and taluka courts at the bottom. The people’s trust must be earned at the grassroots level. If they are content, moving on to the next level would be simple.

It is very appreciable that the Apex court is understanding and putting in efforts to improve the grass root level problems if the virtual court system comes into play. However, litigation plays a crucial role in the judicial system. Judiciary being the strongest pillar of democracy, has the obligation to safeguard the litigation process in India. Due to these few issues, it can be very difficult for virtual courts to completely replace open courts. The clients of the advocates invest their trust in them and the advocates might find it a little bit difficult to connect to their clients and find proper information in online mode. Along with this, the virtual court system has its own challenges.

Challenges

Infrastructure: India does not have the complete infrastructure to completely depend on the online mode. The most problematic thing is the bandwidth. Also, the video conferencing apps have third-party interference which may lead to the breach of data i.e., data privacy lacks here.

Information Technology Infrastructure: The new evidence legislation concerning electronic evidence is still in flux and has not yet been finalized, as evidenced by the assignment of the question of the application of Section 65B of the Certification for the Admissibility of Electronic Evidence to a wider bench³. In circumstances of electronic filing and data storage, it raises the worry of tampering with paperwork and paper records.

Practical issues: If it is properly accessed by the citizen, virtual courts are an endeavor by the judiciary to convince the public that we value their time. Statistics lead us to conclude that our Indian lawyers lack the necessary experience in this field, and their law degrees don’t necessarily prepare them for it. There is no mention of access for those without internet connectivity. Even the fact that up to 50% of Indians lack Internet connection seems to be overlooked. Despite having the second-highest percentage of Internet users in the nation, that is.

Some may contend that even someone without access to the internet should go to someone who does and use it, which is unquestionably preferable for a rural resident than going to a distant court. However, the internet gap continues to be a significant barrier for the majority of individuals to access or understand virtual court hearings.

The Supreme Court ruled in Naresh Shridhar Mirajkar v. the State of Maharashtra⁴, that all claims presented before the courts, whether civil, criminal or other, must be heard in open court because “Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice”.

In Swapnil Tripathi v. Supreme Court of India⁵, the Bombay court held that only the cases with urgency would be dealt with due to the wake of the pandemic in the month of April 2020 and dissented on granting the bail which was filed under section 439, Cr.P.C6. There were 2 issues that were understood via this case. First, it was claimed that only urgent bail cases are being decided by the courts as a result of the epidemic location. Second, giving the applicant bail would put both his life and the lives of others in jeopardy because he might not be able to return home because of the lockdown. In order to avoid these scenarios, he was not granted bail. Though it is something to consider, there should be no doubt that the fundamental rights of a person seeking legal assistance have always been maintained in the legal system. If even one person’s well-being is hampered by the court’s conclusion, the judgment is open to public review.

Conclusion

The wake of the pandemic has paved a new path to the development of the judiciary through technology. The virtual court system is accessible and cost-effective. It also helps to curb social evil i.e., corruption in the judicial system. The travel burdens would be reduced for the people who have to approach the court. However, there are more than equal chances that these courts may not be permanently reliable as India is a developing nation, it still lacks technological advancement and there are people who are poor in understanding the working of the technology. There is a high possibility that the parties might not be having high bandwidth in their localities. Also, it is important to ensure that the virtual court systems shall be user-friendly and it can be said that, with the given situation in India, it would be impossible to rely completely on the virtual court systems as there are many challenges present with that respect.

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Citations

1. (2016) 8 SCC 509.
2. State of Maharashtra v. Prafulla B. Desai (Dr.), (2003) 4 SCC 601.
3. The Indian Evidence Act 1872, s. 65(B).
4. (1966) 3 SCR 744.
5. (2018) 10 SCC 628].
6. The Code of Criminal Procedure 1973, s. 439.

This article is written by K. Mihira Chakravarthy, 1st year BA LLB student from Damodaram Sanjivayya National Law University (DSNLU).

INTRODUCTION

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.

1. 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.
2. 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.
3. 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:

1. 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.

Cases:

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

Cases:

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.

LACUNAE

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.

CONCLUSION

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.

REFERENCES

1. The Contempt of Courts Act 1971, s. 2(a).
2. The Constitution of India, art. 129.
3. The Constitution of India, art. 142 (2).
4. The Constitution of India, art. 215.
5. Noorali Babul Thanewala v. K.M.M. Shetty, 1990 AIR 464.
6. The Contempt of Courts Act 1971, s. 2(b).
7. Anil Ratan Sarkar v. Hirak Ghosh, AIR 2002 SC 1405.
8. Dr. Sajad Majid v. Dr. Zahoor Ahmed, 1989 Crl.L.J. 2065
9. The Contempt of Courts Act 1971, s. 2(c).
10. Jaswanth Singh v. Virender Singh, 1994 suppl. (5) SCR 336 
11. Anil Ratan Sarkar v. Hirak Ghosh, AIR 1931 Cal 257.
12. Re: Arundhati Roy…. … vs — on, 2002 AIR (SCW) 1210.
13. Narmada Bachao Andolan v. Union of India, AIR 2010 SC 2221.
14. Re: Prashant Bhushan & Anr. …. Alleged Contemnor(S)
15. 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).