Contempt of Court by Judges

    Contempt of the Court is an offense of disobeying or disrespecting a court of law and its officials in a manner that is contrary to or violates the justice, dignity of the court and authority. Anything that reduces or interferes with the freedom of the judiciary should cause a breach of the administration of the Act and a violation of the proper course of justice.

    The contempt of the Court’s powers is given to the judiciary to prevent obstacles in the administration of justice. However, what we are seeing is that this power is often misused by the courts to protect the status of individual judges, when in the cases like this only defamation proceedings would be sufficient. In addition, the Principles of Natural Justice under the Indian Constitution are violated, where judges sit in judgment for their contempt. In this article, I have explored how the Power of Contempt has been used in India, in value of judicial accountability.

    Legal Provisions

    The first thing we need to realize is that justice should not only be done but also see that it is done.[1] Contempt is defined under Section 2(a) of the Contempt of the Court Act, 1971. The Constitution of India also establishes the concept of contempt, articles such as:

    Article 19(1)(a) of the Constitution gives all citizens the right to freedom of speech and expression. While, Article 19(2) of the Constitution lists “contempt of court” as a reason to impose reasonable restrictions on freedom of speech. Therefore, Articles 129 and 215 provide for contempt of court for higher judges, and this limits the freedom granted by Article 19(1)(a).

    Article 129 in The Constitution of India: Supreme Court to be a court of record: The Supreme Court shall be a court of record and shall have all the jurisdiction of such a court and the power to punish for its contempt.

    Article 142 (2) gives three different powers to the Supreme Court. They are:

    (i) Securing the attendance of persons before it.

    (ii) Discovery and production of documents. 

    (iii) Investigation and punishment of contempt of itself.

    The first two powers are in the ambit of the law of evidence i.e. the procedural law. The third aspect when read in Article 129 shows that it also deals with procedure. Our Constitution have two articles dealing with contempt power in the Supreme Court, Articles 129 and 142(2) respectively. Article 129 states that the Supreme Court will be the court of record and will have all the powers of such a court including the power to punish for its contempt read with Article 142(2) which deals with the investigation and punishment of the contempt of the Supreme Court.

    Article 215 in The Constitution of India: High Courts to be courts of record: Each High Court shall have a record court and shall have all the powers of that court as well as the power to punish for its contempt.

    The acquisition of this power in the Supreme Court for contempt under Article 129 and the High Court under Article 215 is not prohibited, restricted or denuded[2] by the Contempt of Courts Act, 1971. It was argued that Parliament could still set the procedure for court contempt will apply to both the Supreme Court and the High Courts held in the case of Supreme Court Bar Association[3].

    This would implicitly imply that Section 12(1) of the Contempt of Court Act, shall be applicable to the High Courts, but shall only act as a guide for the Supreme Court in Zabira Habibullah Sheikh,[4]

    The High Courts and the Supreme Court are ‘record courts’ as a result of Articles 129 and 215 of the Constitution of India. This means that they have the intrinsic power to punish with contempt. As a result, the provisions of the Contempt of Courts Act cannot restrict the power of these courts to punish for contempt, as this power is derived from the Constitution itself. The Contempt of Courts Act, 1971 empowers Judges to punish for criminal contempt in the event of scandalising the court, damaging acts and violations of the law.

    The power of punishment for contempt is given precisely by Parliament’s advice that can legislate and pass laws on how it should be investigated and punished. In the Supreme Court Bar Association case, it was held that the Parliament could still establish procedures for contempt of court to be applied in the Supreme Court and the High Courts.

    There are two types of Contempt in India;

    1. Civil Contempt: It means wilful disobedience to any decision, decree, direction, order or any other wilful violation and any other court procedure of responsibility assigned to a court.
    2. Criminal Contempt: Publication whether by words, spoken or written or by signs or by representation or otherwise of any matter or doing the act whatsoever which scandalise or tends to offend or lower or intends to reduce the authority of any court or prejudices or interferes or tends to interfere, the due course of any judicial proceeding or obstruct the administration of justice in any other manner.

    In India, there are more of civil contempt cases that are filed than criminal contempt cases.

    https://legalreadings.com/personal-laws-religion-in-india/

    Scandalising the Court

    The Indian High Court case must be considered in the case of Veeraswamy[5]. In this case, a complaint was filed under the Prevention of Corruption Act, 1947 against a former Chief Justice of the Supreme Court, alleging that the Judge had assets that did not match his salary. The Supreme Court, in a landmark judgment, ruled that no criminal case could be registered against a judge of the Supreme Court or the Supreme Court, without consulting the Chief Justice of India.

    Therefore, judges are less likely to be protected from the deterrent effects of criminal prosecution and contempt. This makes it very important for the media to have the right to criticize the judiciary.

    Scandalising the court means any violent criticism of a judge in his or her capacity as judge.[6] This includes scandalising judges and defamation of the judiciary as a whole, challenging the judge’s integrity, his personal honesty or defaming the judge in public.[7] The gist of this offence is that the attack must be “to the judges or to the judiciary as a whole or to refer to certain cases, which creates defamatory honesty and undermines the character and ability of the judge.[8]

    International Comparison

    While the Court’s scandalising, the Court is based on common law, there has been no conviction in England since 1931.

    The origin of contempt by scandalising the court can be traced back to as early as the year 1765. In King v. Almon,[9] the judiciary proceeded against the Almon in a summary trial, for libel against a judge.

    While deciding the case of McLeod v. St. Aubin[10], Lord Morris made a remarkably far-fetched statement that the obligations of contempt by scandalising have expired, and that courts must leave to the public opinion-attacks or comments that are derogatory or scandalous to the judiciary.

    However, within a year, his knowledge about the offence of scandalising contempt became obsolete proved false in the decision Queen v. Gray.[11] Mr. Gray was punished for contempt. The Court acknowledged that the judiciary was still critical of the media, but justified the statement by adding that “there must be reasonable arguments or falsehoods” so as not to make such a statement insulting which amounts to contempt.

    The ambit of the contempt power is indeed very wide. Its wide amplitude, as deciphered from the various judicial decisions, could be comprehended and crystallized as follows:

    V. Commissioner of Police 1968

    The value of this is personified in the English case of R. v. Metropolitan Police Commissioner., ex p Blackburn (No. 2)[12], where Lord Denning, Master of the Rolls stated “Let us say at once that we will never use this Power as a means of preserving our dignity… and we will not use it to oppress those who speak ill of us.”. We do not fear criticism, nor do we resent it. Because, there is something very important at stake. It is a matter of personal freedom and the freedom of speech itself. It is the right of everyone, in parliament or outside of it, in the press or in the media, to make a good opinion, or to comment openly, on matters affecting society… we must rely on our own conduct that it is a struggle for itself.”

    This means that contempt has never been used to elevate the dignity of the court which must remain on well-established grounds rather than oppress those who speak ill of it.[13] Although a large number of judgments pay tribute to this liberal approach to freedom. [14]

    Spycatcher Case, 1986

    In the United Kingdom, Daily Mirror (a leading newspaper) once wrote, in retaliation for a court order that kept a secret from the famous Spycatcher trial.[15] They went on calling the Judges involved “old fools”, but no contempt trials were commenced against the newspaper because Judges in the United Kingdom “did not take notice of personal insults, uttered without malice”[16]

    Brexit Ruling 2016

    The article on the right-wing Daily Mail newspaper published on November 4 featured photographs of three judges and the headline, “Enemies of the people” on the front page.

    The three judges had ruled that Parliament should be consulted before the Government initiated Article 50 of the Lisbon Treaty, which would establish the UK’s official EU withdrawal process.

    Since its publication, the front page of the Daily Mail has so far raised a number of complaints about the Editor’s Code of Conduct but no complaint about contempt of court has been welcomed as the British judiciary is more inclined towards the freedom of speech and expression.

    In 1987, after the Spycatcher case Judgement, when the Daily Mirror called British Lords “You Fools” or, in 2016 After the Brexit ruling, when the Daily Mail called the judges “Enemies of the people” the British Judiciary, consciously and sensibly ignore the headlines and did not consider contempt prosecution. In fact, Lord Templeton’s comment on Spycatcher headline is worth recalling “I can’t deny that I’m old; it’s true. Whether I am a fool or not is a matter of personal opinion… I do not need to invoke the power of contempt”.

    Contempt of Court in India

    Chandan Mitra case, 1995

    In the case of Chandan Mitra (1995), the Editor of the Hindustan Times had published an article in their newspaper stating that judges in the Indian Supreme Court needed psychological counselling for imposing restrictions on Punjab police officers. The Editor was charged with contempt.

    Kannur MLA Case, 2011

    In this case Kannur MLA criticized the judges of the Kerala High Court for blocking road meetings in 2011 and the Kannur MP basically said “stupid” to the judges of the Kerala High Court in Malayali and was charged with contempt of court.

    Justice CS Karnan, 2017

    In Re Hon’ble Justice C S Karnan, 2017, Supreme Court of India has summoned a sitting judge in a case involving contempt proceedings. The judge who was at the centre of the issue was Justice C S Karnan who has been summoned by the supreme court. According to Justice Karnan the Supreme Court does not have locus standi to issue suo motu contempt notice against Justice Karnan which is violative of Natural Principles of Directive Principles of State Policy. And also, Article 14, Article 21 and Article 19(1)(g) of the Constitution of India which duly permits all Citizens. At the end the Apex Court came to the conclusion that all the allegations provided by Justice Karnan are false and the Court held Justice Karnan for contempt.

    Justice Kurian Joseph Press Conference, 2018

    In 2018, Justice Kurian Joseph addressed an unprecedented press conference stating that the Chief Justice of India, Justice Deepak Mishra was subordinate to someone outside the legal profession. The Times of India asked for this statement by Justice Kurian Joseph asking if he could make such statements against the Chief Justice of India ?. A PIL has been filed against Judge Joseph as the credibility of the institution is at stake. Later, Justice Ranjan Gogoi denied PIL, saying “the credibility of the institution can be maintained by those who work at the centre of it.”

    Unfortunately, the trend in Indian contempt cases seems to be getting more and more intolerant. Thus, though the power of contempt is broad, the Indian judiciary is urged to remember that it must be exercised cautiously, with discretion and with circumspection.[17]  

    Vijay Kurle Case, 2019 [18]

    In this case, the Supreme Court has taken suo motu action against lawyers who have made scandalous allegations against judges and tried to disgrace the entire institution of the Supreme Court and they were held liable for the contempt.

     Prashant Bhushan Case, 2020 [19]

    The Supreme Court has initiated charges of contempt on Advocate Prashant Bhushan and Twitter India, based on two tweets written by Advocate Prashant Bushan on social media. The Supreme Court held that Advocate Prashant Bhushan was guilty of contempt of court and fined Advocate Prashant Bhushan INR 1.

    Conclusion

    ‘Scandalising the Court’ is a form of contempt that has its roots in the United Kingdom. Although this offence is no longer in force in the UK, the Indian judiciary vigorously uses the power of contempt to punish the offences against criticism of the judiciary. Moreover, the judiciary often uses its contemptuous powers to punish attacks on their personal identities, even though that is outside the ambit of the contempt of court.

    The outcome of this offence, besides from impinging on the Fundamental Right of Freedom of Speech, is the shrouding of the legitimacy of the law. By charging newspaper editors, activists, and journalists for disrespecting their views or publishing their findings, the judiciary not only undermines public power of choice, but also loses its accountability. The judiciary is also a public institution – it is important, if not, that the public should not only trust, but investigate and criticize without the threat of persecution.

    Therefore, I would like to submit that as India has had an independent judiciary for more than half a century. It is time for India to follow the United Kingdom and accord more importance to freedom of speech and judicial accountability, as any mature democracy must.

    REFERENCES

    [1] Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices, [1924] 1 KB 256

    [2] In Re: Ajay Kumar Pandey, (1996) AIR 1997 SC 260.

    [3] Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895.

    [4] Zahira Habibullah Sheikh v. State of Gujarat, (2004)

    [5] K. Veeraswamy v. Union of India, (1991).

    [6] Goodhart Arthur, ‘Newspapers and Contempt of Court in English Law’, Harvard Law Review, Vol. 48, No. 6 (Apr., 1935), p. 885, 898.

    [7] R. De, Contempt of Courts: Law and Practice, Eastern Law House, Kolkata, 2012, p. 233.

    [8] Brahma Prakash Sharma v. State of UP, AIR 1954 SC 10.

    [9] 243 K.B. 1765.

    [10] Aubyn, [1899] A.C. 549.

    [11] Gray, 1900 2 Q.B. 36 (Queen’s Bench Division)

    [12] (1968) 2 QB 150 : (1968) 2 WLR 1204 : (1968) 2 All ER 319, 320 (CA)

    [13] Cited in High Court of Karnataka v. K. Sankaran Nayar, (1999) 6 Kar LJ 645.

    [14] Shakuntala Sahadevram Tiwari v. Hemchand M. Singhania, (1990) 3 Bom CR 82 (Bom)

    [15] Attorney General v. Newspaper Publishing Plc., 1988 Ch 333 : (1987) 3 WLR 942 : (1987) 3 All ER 276 (CA).

    [16] Fali S. Nariman, “The Law of Contempt − Is It Being Stretched Too Far?” 2001 C.L. Agarwal Memorial Law Lecture: Bar Council of Rajasthan, 14

    [17] State of Maharashtra v. R.J. Mehta, (1984) 2 Bom CR 122, 126.

    [18] Re: Vijay Kurle & Ors. SUO MOTU CONTEMPT PETITION (CRIMINAL) NO. 2 OF 2019.

    [19] Re: Prashant Bhushan Suo Motu Contempt Petition (CRL.) NO. 1 Of 2020.


    BY DEEPANKAR KUMAR | UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES, GGSIP UNIVERSITY

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