Contempt can be said to be an act or omission which interferes or tends to interfere in the administration of justice.
“The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect”.
Per Hugo Black J. in Bridges v California (1941) 314 US 252 at 271-72.
In India contempt of court is of two types:
Civil contempt: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.
Criminal contempt: Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined 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.
The concept of contempt of court is several centuries old. In England, it is a common law principle that seeks to protect the judicial power of the king, initially exercised by himself, and later by a panel of judges who acted in his name. Violation of the judges’ orders was considered an affront to the king himself. Over time, any kind of disobedience to judges, or obstruction of the implementation of their directives, or comments and actions that showed disrespect towards them came to be punishable.
There were pre-Independence laws of contempt in India. Besides the early High Courts, the courts of some princely states also had such laws. When the Constitution was adopted, contempt of court was made one of the restrictions on freedom of speech and expression. Separately, Article 129 of the Constitution conferred on the Supreme Court the power to punish contempt of itself. Article 215 conferred a corresponding power on the High Courts. The Contempt of Courts Act, 1971, gives statutory backing to the idea.
The law codifying contempt classifies it as civil and criminal. Civil contempt is fairly simple. It is committed when someone wilfully disobeys a court order, or wilfully breaches an undertaking given to court. Criminal contempt is more complex. It consists of three forms: (a) words, written or spoken, signs and actions that “scandalise” or “tend to scandalise” or “lower” or “tends to lower” the authority of any court (b) prejudices or interferes with any judicial proceeding and (c) interferes with or obstructs the administration of justice.
Fair and accurate reporting of judicial proceedings will not amount to contempt of court. Nor is any fair criticism on the merits of a judicial order after a case is heard and disposed of.
Is truth a defence against Contempt?
For many years, truth was seldom considered a defence against a charge of contempt. There was an impression that the judiciary tended to hide any misconduct among its individual members in the name of protecting the image of the institution. The Act was amended in 2006 to introduce truth as a valid defence, if it was in public interest and was invoked in a bona fide manner.
CRIMINAL CONTEMPT
According to Section 2(c) of The Contempt of Courts Act, 1971, criminal contempt means the publication (whether by word, 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) Scandalizes or tends to scandalize, 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 obstruct or tends to obstruct, the administration of justice in any other manner.
Thus from the abovementioned definition it can be ascertained that these are the important essentials to constitute criminal contempt:
(i) Publication of any matter:
The word “publication” has been given a very wide meaning so far as contempt of court is concerned. It includes words (spoken/written), signs and visible representation. It also includes the publication of any material in the newspaper and magazines, the broadcasting of any material on the radio and exhibition of anything in cinemas, theaters and television.
If these materials contain anything which scandalizes or lowers or tends to scandalize or lower the authority of any court, prejudices or interferes with the due course of any judicial proceeding or interferes or tends to interfere with administration of justice, it will amount to criminal contempt of the court.
(ii) Scandalising or lowering the authority of the court:
Scandalising might manifest itself in various ways but in substance, it is an attack on individual judges in particular or the court as a whole, with or without reference to a particular case, by casting unwarranted and defamatory aspersions upon the character or the ability of the judges. Such conduct is punished as criminal contempt for the reason that it tends to create distrust in the minds of common people and thereby shatters confidence of the people in the judiciary.
The Supreme Court made it clear, in the case of Arundhati Roy, that criticism which undermines the dignity of the court can’t be said to be fair criticism and does not fall under the ambit of freedom of speech and expression as is guaranteed by Article 19 (1)(a) of Constitution of India. Thus, prosecution of persons for Scandalising the court is not prohibited by constitutional right of freedom of speech and expression under Article 19 (1)(a).
Writing/drafting in pleading or petition by which defamatory allegations have been levelled against a judge in particular or court as a whole, would amount to criminal contempt, held the Supreme Court.
In case of UP Residential Employee Cooperative Society v. New Okhla Industrial Development Authority, the Supreme Court held that filing a false affidavit in the court with a view to mislead the court will amount to criminal contempt.
(iii) Prejudice or interference with the due course of any judicial proceeding:
Any publication which prejudices or interferes with the due course of any judicial proceeding would amount to criminal contempt of court. Media trial or trial by newspaper is not considered proper because it effects the fairness of trial and is likely to cause interference with the administration of justice.
The knowledge of pendency of the case and reasonable grounds to believe that the case in pending is sufficient to make out criminal contempt and the intention and motive of the publisher behind the content of publication is not relevant for the purpose of criminal contempt. If it lowers the authority of the court and causes interference with the due course of judicial proceeding it would amount to criminal contempt.
In civil cases, the pendency starts with the filing of the plaint and in criminal cases, with the filing of a charge sheet or the issuance of summons or warrants. The pendency continues till the case is decided. In case an appeal/revision is filed, pendency continues till the appeal or revision is decided. If appeal/revision is not filed, pendency continues till the period of limitation for filing the same has not expired. Once it expires, pendency is over.
(iv) Interference/Obstruction with the administration of justice in any other manner:
The publication or doing of any act which interferes or obstructs or tend to interfere and obstruct in the administration of justice in any other manner, would amount to criminal contempt of court. This clause is a residuary clause, covering those cases of criminal contempt which are not expressly covered by section 2(c) of the Contempt of Court Act.
The term “administration of justice” is much wider than the term “course of judicial proceedings”. Every person in India is entitled to approach the court in order to secure justice and for the redressal of his grievances and the court has to decide dispute between the parties as per law and equity.
Any conduct which tends to prevent or actually prevents a party to approach the court, amounts to criminal contempt of court, for eg. writing a threatening letter to litigating party or his counsel preventing him from attending the court, writing a letter to the judge or approaching him in order to influence his judicial conscience or approaching a counsel for undue favor are all examples of interference with administration of justice and are contempt of court.
An advocate is an officer of the court and undue interference with the advocate in the discharge of his professional functions amounts to contempt of court. Casting aspersions on counsel or approaching him for not defending a particular person amounts to criminal contempt of court.
Justification by truth: The amended S.13(2) provides that the Court may permit justification by truth as a valid defence in any proceeding for criminal contempt if it is satisfied that it is in public interest. Thus, truth is now a defence if it is in the public interest and bona fide.
Anything that curtails or impairs the freedom of limits of the judicial proceedings. Any conduct that tends to bring the authority and administration of Law into disrespect or disregard or to interfere with or prejudice parties or their witnesses during litigation. Consisting of words spoken or written which obstruct or tend to obstruct the administration of justice. Publishing words which tend to bring the administration of Justice into contempt, to prejudice the fair trial of any cause or matter which is the subject of Civil or Criminal proceeding or in any way to obstruct the cause of Justice.
An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona-fidely.
Section 12 deals with the punishment for contempt of court. It provides as follows: Section 12(1)- Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extent to 6 months or a fine which may extend upto rupees 2000 or both.
Provided that, the accused (of contempt) may be discharged or the punishment awarded may be remitted on apology being made to the court’s satisfaction.
However, in short, contempt can be said to be an act or omission which interferes or tends to interfere in the administration of justice. To constitute contempt, it is not necessary that there has been actual interference in the administration of justice. If the act complained of, tends to interfere or attempts to interfere in the administration of justice, may be taken as contempt. The expression “administration of justice” is to be used in a very wide sense. It is not confined to the judicial function of the judge but includes all functions of judges—administrative, adjudicatory and any other function necessary for the administration of justice.
If two tweets can threaten to bring down “the central pillar of Indian democracy”, then it is simply because that pillar is perceived to be crumbling.
Senior Advocate Ashok Bhan practises at the Supreme Court of India.