Contempt, dignity and fair criticism: What do they mean to courts?

Recently, the Apex Court held that the tweets made by Mr Prashant Bhushan on the current and the previous four chief justices of India amounted to criminal contempt of court. Prashant Bhushan's first tweet was about a picture of Chief Justice SA Bobde sitting on a high-end bike. In the second tweet, Prashant Bhushan offered an opinion on the role played by the last four Chief Justices of India in the country's current situation.

What is the Law regarding Contempt of Court in India?

Contempt of court is an offence of disobedience or disrespect towards a court of law and its officers in the form of conduct that opposes or challenges the authority, justice and dignity of the court. Contempt of Court is a constitutional power vested with the Supreme Court of India.

Article 129 of the Indian Constitution of India states "The Supreme Court of India shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself ". Superior courts of record have the powers to punish contempts relating to the judges of those courts and the proceedings therein. The principal aim of the jurisdiction is to protect the dignity of the court and the due administration of justice.

The Contempt of Court Act, 1971 under Section 2(c) defines and limits the powers of certain courts in punishing contempt of courts. 

Contempt can be civil as well as criminal in nature. The act defines civil contempt as "willful disobedience to any judgment, decree, direction, order, writ or other processes of a court or wilful breach of an undertaking given to a court" and criminal contempt as "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;" 

However, innocent publication, distribution of matter and reasonable and fair criticism of judicial acts and comments on the administrative side of the judiciary does not amount to contempt of the court. 

What are the necessary ingredients to constitute Contempt of Court in India?

Interference with Administration of Justice

In Brahma Prakash Sharma v State of Uttar Pradesh, the Supreme Court had held that in order to constitute the offence of Contempt of Court, it was not necessary to specifically prove that an actual interference with administration of justice has been committed. The Court held that it was enough if a defamatory statement is likely or in any way tends to interfere with the proper administration of justice. 

Scandalizing the Court 

In the case of PN Dua v Shiv Shankar and others, the Supreme Court held that mere criticism of the Court does not amount to contempt of Court. 

The Court observed that in a free marketplace of ideas, criticisms about the judicial system or Judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice. This is how Courts should approach the powers vested in them as Judges to punish a person for an alleged contempt, be it by taking notice of the matter suo motu or at the behest of the litigant or a lawyer.

In the case of Baradanath Mishra v the Registrar of Orissa High Court the court held that a common form of such contempt is the vilification of the judge. The Court has to ask whether the vilification is of the Judge as a judge, or it is the vilification of the Judge as an individual. If the latter the Judge is left to his private remedies and the Court has no power to commit for contempt. If it is the former, the Court will proceed with scrupulous care in cases that are clear and beyond a reasonable doubt. 

Secondly, the Court will also have to consider the degree of harm caused as affecting administration of justice. If it is slight and beneath notice then the court will not punish for contempt. This salutary practice is adopted by Section 13 of the Contempt of Courts Act, 1971. 

The contempt jurisdiction is not intended to uphold the personal dignity of the Judges. That must rest on surer foundations. Judges rely on their conduct itself to be its own vindication.

Interference with due course of Justice

In  Pritam Lal v. High Court of M.P the Supreme  Court held that to preserve the proceedings of the Courts from interference and to keep the streams of justice pure, it becomes the duty of the Court, to punish the contemner in order to preserve its dignity. 

No one can claim immunity from law of contempt if his act or conduct in relation to Court interferes or obstructs due course of justice. The court concluded that making libellous accusations against the sitting Judges of the High Court amounts to interference with the administration of justice and contempt of court was imperative to have a smooth functioning of the Judiciary.

In Shamsher Singh Bedi v. High Court of Punjab and Haryana the Supreme  Court held that if remarks made against the Judge are scandalous and can pervert the course of justice by interfering with the proper administration of justice, then it amounts to contempt. The same jurisprudence was reiterated in Dr D.C. Saxena v. Hon'ble The C.J.I. where the court held that scandalising the court or judge, undermines people's confidence in the administration of justice and brings the Court into disrepute. Such disrespect tantamounts to criminal contempt. A scurrilous attack on a Judge questioning his authority would amount to contempt.

Recently, in the matter of In Re Vijay Kurle, Vijay Kurle, Nilesh Ojha and Rashid Khan Pathan were held guilty of setting outrageous charges against Justice RF Nariman and Justice Vineet Saran. All three of them had to undergo simple imprisonment for three months, each with a fine of Rs. 2000/-. In this case, the Court held that no doubt; any citizen can comment or criticise the judgment of this Court.  However, that citizen must have some standing or knowledge before challenging the ability, integrity, and impartiality of a Judge of the highest court of the land. 

How do judges respond to criticisms in other democracies?

Contempt of Court is very sparingly used by the judges in England. In the popular spycatcher case, the English newspaper Daily Mirror had published an inverted picture of three law Lords with the caption 'You Old Fools'. In response, Lord Templeman refused to pursue contempt charges against the newspaper. He said that he was indeed an old man, however, whether he was a fool was a matter of public perception, though he believed that he was not a fool. 

The Contempt Law in England has now been abolished after the last contempt proceedings occurred in 1930. 

British Judge Lord Denning had observed in the matter of Metropolitan Police Commissioner in 1969 that even though the Court has the jurisdiction for contempt, they shall never use it. The reason being that the judges, in contempt cases, do have a certain amount of personal interest. This is against the legal principle that one cannot be a judge in their own case. Lord Denning said "We do not fear criticism, nor do we resent it."

In the United States of America, Justice Hugo Black had observed in the case of Bridges in 1941, that American Public opinion could not be silenced in the pretext of Contempt of Court. Instead, it contended that the dignity of the Court will not be established and respected if free discussions about the Court were restricted on the pretext of preserving its duty.

Similarly, in Canada also, the Courts are free to be criticised unless there is any imminent danger to the administration of justice. It was observed in the case of Kopyto in 1987 that Courts are not fragile flowers that may wither away with controversies. 

Australia also follows similar principles on Contempt of Court. In the case of Munday in 1972, Justice Hope had observed that there is no more reason why acts of courts should not be trenchantly criticized than acts of public institutions, including parliaments. 

Justice Hope observed "The truth is of course that public institutions in a free society must stand upon their own merits: they cannot be propped up if their conduct does not command the respect and confidence of the community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to protect them from criticism." 

(The author is a Research Assistant with The Leaflet and an advocate based in Delhi.)