Historical background: In earlier times the administration of justice was done by the King and later by his judicial representatives whom he delegated the responsibility of administration of justice.It was believed that king can do no wrong.So disobeying order of king or his representatives was considered as contempt and was punishable.Even fair criticism of judgments given by King or representatives was punishable.Slowly and slowly as the time passed and democracy came into being with power being transferred to elected representatives and court as the watchdog of respective constitution of the nations,various laws were made by the elected representatives regarding the contempt of court.
Contempt of court laws in India: With the establishment of High courts under High Court Act, 1861 High courts were given power to punish the contempt on itself. The Britishers used this power to crush the dissent of freedom fighters.Therefore any publication/gesture showing disrespect towards courts was not tolerated.Even if such criticism was true/fair.These were pre-independence laws.Even today also the contempt of laws have the imprint of British laws.Besides the early high court’s there were separate laws of contempt of court in princely states.After the adoption of constitution the contempt of court was made as the exception to article 19(1) which talks about Freedom of Speech and expression.Article 129 gives power to the Supreme Court to Punish it’s contempt and same power is given to high courts by Article 215.Finally contempt of court act 1971 was passed and thus became a codified law.There are two kinds of Contempt of Court according to Contempt of Court act 1971.Civil contempt and Criminal Contempt.Civil contempt occurs when someone knowingly violates or disobeys the order given by court.Criminal contempt consists of three types.(1)Words, written or spoken signs and actions that “scandalise” or tends to scandalise or “lower” or tends to “lower”the authority of any court.(2) Prejudices or interferes with any judicial proceeding and(3)Interferes with or obstructs the administration of Justice.Personal allegations against judges are also viewed as contempt of court in certain cases.It is punishable with simple imprisonment for a term up to six months and/or a fine upto 2000 rupees.
There are some defenses given under under contempt of court act 1971-
- Fair and accurate reporting of Judicial Proceedings.
- Fair criticism on the judicial order of case which is heard and disposed of.
- Truth said in public interest in a bona-fide manner.(Included by amendment in contempt of court act 1971 on 2006).
- Innocent publication without knowledge of pendency of case.
- If the order was impossible to be obeyed.(6)If the order was ambiguous.
Cases in India- In Baradanath Mishra v. Registar of Orissa High court, the court held that the intention of contempt jurisdiction is not to uphold the personal dignity of the judges.The judgement in this case also laid down certain parameters to decide whether a particular action will amount to contempt or not.The court said that common form of contempt is the vilification of Judge.The court has to ask whether the vilification is of the judge as a judge or it is the vilification of judge as an individual.If the latter is the case, then the judge is left to sought relief with his private remedies.If former is the case then the court will proceed with scrupulous care in cases that are clear and beyond a reasonable doubt.Recently senior lawyer and activist Prashant Bhushan did 2 tweets.In one of the tweets he highlighted about the role of supreme court and especially last 4 Chief Justice of India in the destruction of democracy. In another tweet he posted a picture of Chief Justice of India Boble criticising him for riding a 50 lakh bike without mask while keeping Supreme Court in lockdown mode denying citizens fundamental access to justice. Advocate Rajiv Dhawan(Counsel of Prashant Bhushan)argued that the tweets were fair criticism made in bona fide manner in the interest of public and does not tends to scandalise the court.The Prashant Bhushan was held guilty of contempt of court by 3 judge bench lead by justice Arun Mishra.Justice. Arun Mishra held that in the zeal of overdoing for public interest,there is a lakshman Rekha(Limiting Line) which no one should cross.There is a need for balance and restraint.
Cases in England- English newspaper daily mirror had published a picture of three justices with the captain ‘You old fools’.But Lord Templeman who was one of those three judges refused to pursue contempt charges against the newspaper.He said that although he was old citing the but he being fool or not is a public perception, although he believed that he was not fool.British justice Lord Denning observed in the case of Metropolitan Police commissioner(1969) that even though court had the jurisdiction of contempt,they shall never use it.This is because judges do have some personal interest in the contempt cases.This is against the legal principle that one cannot be a judge in his own case.Lord Denning said that they do not fear criticism nor do they resent it.He said that dignity of court cannot be established unless there are free discussions.He said-” Let me say at once that we will never use this jurisdiction to uphold our dignity.”In 2013 Crime and Courts act was passed.According to section 33(1) Scandalising the judiciary(also referred to as a scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law of England and Wales.
Conclusion- It becomes necessary that administration of justice should not be hindered.Therefore it becomes necessary that orders of court are obeyed.So civil contempt of court is must for those who willfully disobeys the orders/directives of court.Regarding Criminal Contempt,judges must understand that personal allegations against them does not amount to scandalisation of judiciary always. So judges in India must refrain from using this power of contempt of criminal court for their own insult/defamation.If a judge feels insulted they can use their personal remedies as a citizen of India.For example bringing personal suit of defamation.Also judges should welcome criticism as long as it does not hinders the administration of justice. As Britishers ruled India for many years,these contempt laws had impact in post-independence laws related to contempt of court like contempt of court act 1971.But the Britishers themselves have repealed the scandalisation of courts as a form of contempt of court by passing Crime and Courts act in 2013.Healthy criticism is must to ensure better functioning of the institutions such as court, parliamparliamenThereforein the interest of right to freedom of speech and expression of citizens the abolition of scandalisation of judiciary as a form of criminal contempt is must.
Rizvi Law College,Mumbai
Disclaimer: The author bears sole responsibility for the accuracy of facts, opinions or view stated in the present blog..