The Contempt of Court: Present-Day Wrangle


Lawyer turned activist, Prashant Bhushan, was found guilty for a tweet against the Chief Justice of India, S.A. Bobde. The latter was found riding a motorcycle without a helmet and a mask during the government-imposed lockdown which deprived citizens of their fundamental right to access justice. Bhushan's second tweet addressed the worsening of India’s democracy and the role of the past six Chief Justices of India. The bench, while hearing the matter, took the view that it is not the first part of the tweet, which talks about the CJI not wearing a helmet or mask, but the latter half, which states that the citizens are deprived of Fundamental Rights which has had an enormous effect as the stated facts are false. The bench is of the view that there lays a tendency that such statements may lead to a shudder in the confidence and beliefs of the public at large against the institution of The Chief Justice of India and the judiciary.


“We are not final because we are infallible, but we are infallible only because we are final,” quoted by Justice Jackson [1] stated that citizens must have the right to criticize the court’s intemperate language. However, the question arises whether such a right is available to Indian Citizens? Are Indian citizens not allowed to express their opinions? Are we paving the way into the formation of a Monarchy?

The Judiciary is believed to be unbiased and an independent authority that closely administers law and justice. To provide the judiciary with due respect, the concept of Contempt of Court was introduced so that no individual shows disrespect to the dignity and authority of the court. Contempt of Courts Act, 1971 was introduced which laid down guidelines as to what would be termed as a civil contempt [3] or a criminal contempt [4], and what its subsequent effects would be. In Indirect Tax Practitioners Association, v RK Jain [5], the court laid down the essentials for a statement in defence of the truth if such a statement is in the interest of the public and the request for invoking the defence is in a bonafide manner as per Section 13 of Contempt of Court Act, 1971.

The principal objective of introducing the Contempts of Court Act was to ensure that the interest of the public and their confidence in public administration by the court is duly safeguarded. Further, it was widely believed that certainty in the law can only come at the expense of flexibility [6]. The question that surfaces here are, why are we talking about ambiguity and flexibility? The reason for the same has nowhere been mentioned in the Contempt of Courts Act, 1952. However, it has been justified that the view of contempt could not be defined in the case of certain specific circumstances.[7]

In 2006, the Act of 1947 was amended to ensure that the judiciary did not hide any vital information or support any kind of misconduct in the name of ‘contempt.’ This amendment was enshrined with the provision that any form of truth can be used as a valid defence, provided that it is in the interest of the public and is invoked in a bonafide manner.

Advocate Prashant Bhushan, in the recent case, was questioned as to what the reasons were for deteriorating the image of the judiciary, and specifically, the Supreme Court of India. It is clear that the intention of Mr Bhushan was not to defame the judiciary and instead, stated his act to be a ‘bona fide attempt to discharge his duty as a citizen.’ He further mentioned that Article 19 states that every citizen of India has the fundamental right of Speech and Expression. Section 7 of the Contempt of Courts Act, 1971 states, “A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided,” i.e. ‘fair criticism’ on the judicial determination of a matter does not fall under the purview of contempt.

A three-Judge Bench of the Supreme Court [8], on 14.08.2020, held Advocate Prashant Bhushan guilty of contempt of court. As per the bench:

“No doubt, that while exercising the right of fair criticism under Article 19(1), if a citizen bonafide exceeds the right in the public interest; this Court would be slow in exercising the contempt jurisdiction and show magnanimity. However, when such a statement is calculated to malign the image of the judiciary, the Court would not remain a silent spectator.”

Justice Krishna Iyer, in Re: S. Mulgaokar,[9] observed that “the Court must act with seriousness and severity in cases where justice can be jeopardized by unnecessarily attacking the judges to create an obstruction or to destroy the working of the judiciary.” Justice Iyer further stated that “the person who challenges the supremacy of the rule of law by fouling its source and stream would be held liable.”

Article 129 and Article 215 of the Indian Constitution define the power to punish for contempt conferred by the Supreme Court and High Court of India respectively. The punishment for Contempt of Court is imprisonment for a term of six months or a fine of up to Rs. 2000 or both. The case of Sudhakar Prasad v Government of A.P. and Ors[10] mentions that the Supreme Court as in reference to the Supreme Court Bar Association Case[11] provides the powers vested by the courts to punish for contempt of court which is of inherent nature. The court further stated that the provisions of the Contempt of Court cannot limit the exercise of jurisdictions given in Article 129 and Article 215 of the Constitution.

In the case of Jaswant Singh v. Virender Singh [12], an advocate passed a derogatory and a” scandalous statement attacking a High Court Judge. The court was of the view that such statements were attempts to intimidate the judge of the High Court. These statements would cause an interface in a free and fair trial and hence, was held liable for contempt of court.

The discussion of ‘contempt powers of court’, as made in the case of Arundhati Roy [13], is of great importance. Writer Arundhati Roy has been charged for contempt thrice. The first being in a case where she wrote an article on ‘The Greater Common Good’ which mentions ‘tender concern’ in regards to children's parks for the tribal inhabitants which were displaced due to the increase in height of the Sardar Sarovar Dam. The writer showed the plight of innocent children which were taken otherwise by the Honorable Supreme Court stating her facts to be prima facie, a misrepresentation of facts and was held liable for contempt. The court bluntly ignored the freedom of speech and expression by terming their judgment a ‘lifeblood of democracy.’ In light of such instances, the need of the hour is a requirement to change the techniques of assessments by the learned Court.

Another significant case in this discussion is the Narmada Bachao Andolan case [14]. The case related to a dharna that took place in front of the Supreme Court, where slogans were shouted against the Hon’ble Court, led to a commitment of contempt of court. The FIR for the same was filed against Medha Patkar, Arundhati Roy, and Prashant Bhushan, all three of whom strongly denied the commitment of contempt stating their act was in regards to exercising the fundamental right of Speech and Expression which is guaranteed by the Constitution of India. The court, while hearing the matter, stated that no charges were available against the respondents, but a suo moto notice by Arundhati Roy’s affidavit led to a fresh issue of notice of contempt. The said act was stated unreasonable by many activists and the questions arose related to the contents in the said affidavit. As per Roy, the affidavit did not attack the court and stated that she did not mean any harm to the court’s reputation in any manner intentionally.

The verdict of the Court on the said matter was criticized stating the courts’ inability to realize a fundamental relationship between the authority of the court and the trust of people in such institutions. Moreover, Article 19(2) provides for ‘reasonable restrictions’ which has been overlooked by the court in regards to Article 19 which guarantees the fundamental right of freedom of speech and expression.

Justice Karnan’s case [15] is the perfect example when we talk about Section 13 of the Contempt of Courts Act, 1971. In the present case of 2017, a high court judge was jailed for six months for falsely accusing Prime Minister, Narendra Modi, of charges of Corruption but was unable to provide any evidence proving the statements made by him. Though the statement was made with the interest of the public, the lack of evidence could not validate the statements.

Further, the Advocate General v. Seshagiri Rao[16] case observed that “any form of allegations which are provided against the court excites in the minds of the people a general dissatisfaction with all judicial determinations and in disposes of their mind to obey them” would be a cause of obstruction in the due course of justice.

The Supreme Court, in the cases of National Lawyers Campaign for Judicial Transparency and Reforms and others vs. Union of India & Ors [17] and Re: Vijay Kurle & Ors [18], took suo moto action against Advocates who had made scandalous allegations against individual judge(s), wherein the alleged contemnor attempted to scandalize the entire institution of the Supreme Court.

“Freedom of Speech cannot be curtailed,” said the Supreme Court. The final order in the matter of Prashant Bhushan was given by the learned court on 31.08.2020, wherein Advocate Prashant Bhushan was ordered to pay a fine of Re.1 latest by September 15, 2020, else will be termed imprisonment for 3 months. After all, was the act of the Supreme Court justified? This verdict is relieving a lot of criticisms.

Justice Mishra stated, “Judges are not supposed to go to the press, their comments outside the court should not have been relied on.” The problem arising is that the uncertainty of the law requires justification either by flexibility or by ignoring evil. The need of the hour is to improve the administration of law and justice so that the law aims at protecting individuals and the public at large and not the judicial system. Judges must preserve their dignity by following the right procedures and principles of delivering free and fair justice to everyone. It is very well said that the “Power of judiciary lies not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence, and faith in the common man.”

END NOTES:

[1] Brown v Allen, 344 U.S. 443 (1953).

[2] G RAMACHANORAN, CONTEMPT OF COURT, Edition 19 (1976).

[3] Section 2(b) of Contempt of Courts Act,1971.

[4] Section 2(c) of Contempt of Courts Act,1971.

[5] Contempt Petition (CRL.) No.9 of 2009 in Contempt Petition (Crl.) No.15 Of 1997.

[6] ‘Report on Review of Law of Contempt’, The Law Reform Commission of Australia, June 2003.

[7] Re: Bhola Nath, AIR 1961 Part 1: 1961 CriLJ 134.

[8] Suo Motu Contempt Petition (CRL.) NO. 1 Of 2020.

[9] (1978) 3 SCC 339: 1978 3 SCR 162.

[10] Civil Appeal Nos. 5089-90 of 1998

[11] Writ Petition (Civil) No. 27 Of 2007.

[12] Civil Appeal No. 5332(NCE) of 1993.

[13] 2002 2 SCR 213: 2002 (1) UJ 491 SC.

[14] 2000 SCC 664.

[15] SUO-MOTU CONTEMPT PETITION (CIVIL) NO. 1 OF 2017

[16] AIR 1966 AP 167: 1966 CriLJ 642

[17] WRIT PETITION (C) NO. 191 OF 2019

[18] SUO MOTU CONTEMPT PETITION (CRIMINAL) NO. 2 OF 2019.


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