About the Author:
Faheema Jabbar is a 3rd year law student from Government Law College, Ernakulam.
“What is the Freedom of Expression? Without a freedom to offend, it ceases to exist. ” –Salman Rushdie.
INTRODUCTION:
The Indian Constitution is based upon the principle of Rule of law, which means that all are equal before the law in our country. The framers of the Indian Constitution have put forth several regulations to maintain this. The duty uphold these regulations lies with the Judiciary, who is the interpreter of the Indian Constitution. It is a branch that settles disputes and administers justice in the nation. It is said to be the ‘Watchdog of Democracy’. Though the Indian Judiciary is considered as the main pillar of this, it is not the only pillar and is supported by the other organs of the government in its endeavors.
‘Contempt of Court’ is one such jurisdiction available to the court of law, the invocation of which variably than often demands a debate, especially when it relates to criminal contempt of court. The contempt jurisdiction allows the court of records1 to punish the condemner for scandalizing the judiciary and for disobedience of orders. The law of contempt in India has its roots in English law. In 1883 the Privy Council held that the Chartered High Courts in India had summary jurisdiction to commit for the contempt of scandalizing them or their Judges2. The Chartered High Courts of Calcutta, Bombay, and Madras which were Courts of Record, had been exercising the summary jurisdiction to punish for contempt. Persisting on with the powers exercised by the Court of Record, the Constitution of India sustained and conferred the contempt powers with the higher judiciary, it being the Court of Records. As such, under Articles 129 and 215 of the Constitution of India, Supreme Court of India and High Courts of States respectively are empowered to punish people for their respective contempt. It has now been settled that apart from other statutory law relating to contempt, the Supreme Court and the High courts by reason of Articles 129 and 215 respectively have inherent power to punish for contempt of the Supreme Court and the High Courts.
THE ORIGIN OF ‘CONTEMPT OF COURT’:
The origin of contempt of court is spread across centuries whereby the courts may act to prevent or punish conduct which intends to obstruct, prejudice or abuse the administration of justice, either in relation to a particular case or in general.
In India, almost all the laws replicate the English statutes and contempt law is no exception to it. The law of contempt received statutory recognition in the form of the Contempt of Court Act, 1926. The 1926 Act was repealed since it was not a comprehensive piece of legislation, as such it was replaced by the Contempt of Court Act, 1952. However, even disregarding the many other flaws in provisions of the 1952 Act, the scope of it was not wide enough to define as to what actually constitutes contempt of the court. The 1952 Act was repealed and replaced by the Contempt of Court Act, 1971 upon the recommendation of the committee set-up in 1961 that overhauled the law of contempt of courts in India. The Committee under the chairmanship of the late H.N. Sanyal -the then additional Solicitor General, made a comprehensive examination of the law and problems relating to contempt of court in comparison with various foreign countries. Evaluating the law relating to contempt, the doyen of the Indian Bar, Fali Nariman in his speech delivered on the topic “The Law of Contempt –is it being stretched too far?” said the offence of scandalizing the court is a mercurial jurisdiction in which there are no rules and no constraints. He and others were perfectly correct in saying that there should be definite certainty in the law, and not uncertainty. After all, a citizen should always know where he or she stands and be allowed to express it.
However, there are two reasons for the uncertainty in the law of contempt of court; In the Contempt of Court Act, 1952 there was no definition of contempt. Secondly, even when a definition was introduced by the Contempt of Court Act, 1971 (vide Section 2), there was no definition of what constitutes scandalizing the court or what prejudices, or interferes with the course of justice. What could be regarded as scandalous earlier may not be regarded as scandalous today and what could earlier be regarded as prejudice or interference with the course of justice may not be so regarded today.
Thus, contempt of court is any act that obstructs the court in the administration of justice and which is performed to lessen its authority or dignity. The definition of the contempt of the court in the 1971 Act is too exhaustive, leaving much to the discretion of the judges regarding the interpretation of what constitutes contempt of court, no specific guideline is provided under the definition so as to confine the judicial interpretation in the contempt proceedings. The contempt power in a democracy is only to enable the court to function effectively, and not to protect the self-esteem of the judge.
Contempt of Courts Act 1971 specifies two types of contempt:
- Civil contempt
- Criminal contempt
Civil Contempt means: Willful disobedience to any judgement or decree or order or any other process of the court or willful breach of an undertaking given to a court.
Criminal Contempt mean: 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:
- Scandalizes or intends to scandalize, or lowers or intends to lower the authority of, any court; or
- Prejudices, or interferes or intends to interfere with, the due course of any judicial proceeding; or
- Interferes or intends to interfere with, or obstructs or intends to obstruct, the administration of justice in any other manner. The present article concentrates on the extraordinary jurisdiction of ‘Criminal Contempt‘3.
CONTEMPT OF COURT AND FREEDOM OF SPEECH:
While exercising the power of contempt of court, it affects the fundamental right of an Indian citizen to the Freedom of Speech and Expression. The right to freedom of speech and expression includes the right to fair criticism. Therefore, it is important to maintain a dilate balance between these two laws. The law for Contempt of court and the fundamental right of freedom of speech and expression which is enshrined in Article 19(1)(a) of the constitution must co-exist. The reasonable restrictions are provided in Article 19(2) of the Indian Constitution. As per this fundamental right, citizens should be allowed to express, write and publish any criticism on the judiciary which is true and fair not withholding any contempt proceedings.
CASE LAWS:
In E.M. Sankaran Nambbodiripad v. T. Narayanana Nambiar4 it has been held that while Article 19(1)(a) guaranteed the freedom of speech and expression, Article 19(2) showed that it was also intended that contempt of court should not be committed while exercising the right.
The liberty of free expression is not to be compounded with the license to make unfounded allegations of corruption against the judiciary.
In Brahma Prakash Sharma v. State of UP5, the constitutional bench of the supreme court held that the main objective of the contempt of proceedings is not to afford protection to the judges personally from imputations to which they may be exposed to as individuals. Instead, it is intended to be a protection to the public whose interests may be very much affected by such an act or conduct.
The Right to freedom of speech and expression includes the Right to press. In Hiren Base6 it was held that though the press is free to criticize the judicial system under Article 19(1)(a), and though it “stands as one of the greatest interpreters between the government and the people” it cannot commit contempt of court in the garb of criticism. The fundamental right to the freedom of speech in the context of a news item scandalizing a judge was exhaustively considered in another case of Lokanath Mishra v. State of Orissa7.
In Gobind Ram v. State of Maharashtra8 it was held that it must be tested in each case to determine whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by his court. It is only in the latter case that it will be punishable as contempt.
CONCLUSION:
The right to freedom of speech and expression is an unavoidable fundamental right which is subjected to reasonable restrictions. The rule of law and the independence of judiciary is required to maintain a balance between them and as they are indispensable. Reconciling these two competing public interest issues and maintaining a balance presents a challenge in any given democratic set-up. Healthy and constructive criticisms are the necessary feature for the development of the democracy. The Indian legislature has enforced the “Contempt of Court Amendment Act, 2006” and introduced new section i.e. section 13(b) provides that, “The courts may permit, in any proceedings for contempt of court, justification by truth as a valid defense if it is satisfied that it is in public interest and the request for invoking the said defense is bonafide.” These are the regulations in place as of now to maintain a balance between the Law of Contempt of Court and Right to Freedom of Speech and Expression for the citizens.
Footnote:
- A court of record is a court that keeps permanent records of its proceedings. In many jurisdictions courts that have the power to fine or imprison must be court of record.
- Surendra Nath Banerjee v. Chief justice and Justice of the High Court of Bengal (1883)
- Section 2 (c) of Contempt of Court Act 1971
- 1970 AIR 2015, 1971 SCR(1) 697
- 1954 AIR 10, 1954 SCR 1169
- AIR 1969 Cal 1 at p.3
- 1999 Cri LJ4719
- 1972 (1) Scc 740
