Criminal Contempt of Court in India: Time for a Review
- Syin and Sern
- Apr 15, 2021
- 8 min read
Aaloka Dhanyamraju*
Abstract
In this article, the author has examined the need for a review of the Contempt of Court Act, 1971. Contempt of Court can be either civil or criminal. Civil contempt, which means not obeying any order or injunction of the Court should definitely be punishable. The rule of law needs to be upheld. However, in the author's opinion, in a mature democracy, there is no need to be hyper-sensitive about criminal contempt of court which consists of making defamatory statements about the Court itself. Every statement that is critical of the judiciary need not be defamatory. Freedom of speech and expression is one of the hallmarks of a vibrant democracy and must be protected.
Introduction
In the Preamble of the Constitution of India, one of the key goals that have been laid down for the Indian State is Justice - Social, Economic and Political. Justice can be accessible to any citizen only if the Judiciary is not only independent but also accountable. Accountability is a feature of all mature democracies. In a democracy, the rule of law is very important. No individual and no institution can be above the law. Consequently, the judiciary also needs to be subject to public scrutiny. The present blog discusses the constitutionality of the Contempt of Court Act, 1971 with an insight into the contempt proceedings against Prashant Bhushan, Yatin Oza and the Shillong Times.
The Definition of Criminal Contempt of Court
The Contempt of Court Act, 1971 defines and limits the powers of the Supreme Court of India and the High Courts in punishing contempt of court. The Act is applicable in both civil as well as criminal contempt. Civil contempt may comprise deliberate disobedience of a judgement, decree, order or writ of the court. Criminal contempt means the publication of any matter which can scandalise or lower the authority of any court/ interfere with the judicial proceedings or administration of justice in any manner.
Section 2 (c) of the Contempt of Court Act, 1971(hereinafter referred to as the Act), defines criminal contempt of court to include the publication of any matter which may scandalise or attempt to lower the authority of any court. Section 5 of the Act further clarifies that a person will not be guilty of contempt of court for publishing any “fair” comments on the merits of any case that has been finally decided.
Section 12 of the Act specifies the punishment for contempt of court to be simple imprisonment for a period up to 6 months or a fine of up to two thousand rupees or both. The punishment may be remitted if the accused apologises and the court is satisfied with the apology.
Historical Background: Lack of Standardisation
Legal scholars have criticised the fact that there is no standard code for the execution of contempt proceedings. For example in the case of Mamata Banerjee, Chief Minister of West Bengal, she was absolved of contempt proceedings by the Calcutta High Court in 2012. She had made a controversial speech where she alleged that judgements were being delivered in exchange for money and corruption had made wide inroads into the Judiciary. However, in a similar case from 2001, journalist Madhu Trehan and four others were found guilty of contempt by the Delhi High Court. The case related to a magazine article in which Advocates in Delhi were asked to anonymously rate Delhi High Court Judges on various grounds including perceived honesty. The journalists were made to apologize unconditionally and the Delhi Police was asked to seize all copies of the magazine.
The Case of Prashant Bhushan
Prashant Bhushan's case holds an immense pertinence in the study of Criminal Contempt of Court because the Supreme Court initiated a suo moto criminal contempt proceeding against Advocate Prashant Bhushan and Twitter India on the basis of two tweets posted by Bhushan. Bhushan had tweeted about the Chief Justice of India accompanied by a picture of CJI Arvind Bobde on a motorcycle. Bhushan in late June 2020 had commented that while access to justice was restricted for the common citizens due to lockdown, the CJI was riding a bike without a helmet or face mask while keeping the SC on lockdown. Later, Bhushan apologised for a portion of his tweet and regretted mentioning that the CJI was not wearing a helmet as he had not noticed that the bike was stationary.
However, he stood by the rest of his tweet and said that that was his impression about the manner and functioning of the Supreme Court during the lockdown and pandemic. Contempt proceedings were initiated against Prashant Bhushan. A bench consisting of Justices Bhushan Ramkrishna Gavai, Krishna Murari and Arun Mishra held him guilty. Bhushan refused to apologise as his conscience did not permit him to do so and therefore was asked to pay a nominal fine of one rupee. In its verdict, the bench recognised the importance of free speech but at the same time, pointed out that the freedom of speech and expression can’t be used to denigrate or undermine one of the key pillars of democracy.
The suo moto proceedings against Bhushan should not have been initiated. This initiation of proceedings created a needless controversy. The fine of rupee one was only a token sum. In this case, the judiciary was hypersensitive, and a mountain was created out of a molehill. If the rationale behind the verdict was to create a precedent and deter others, the objective was not achieved. In my opinion, a fine of one Rupee hardly serves as a deterrence. Also, in this particular case, a large number of people would agree with Bhushan that the COVID-19 pandemic should not have been used as a pretext to deny justice to the common citizen. As it is, there is a huge pendency of cases in our legal system. The courts could have worked out some SOPs to keep the system running. If the health care services were functional, legal services should also have been available.
Proceedings Against Yatin
In October 2020, Advocate Yatin Narendra Oza was held guilty of contempt of court in suo moto proceedings initiated by the Gujarat High Court. Yatin Oza had pointed out the shortcomings in the functioning of the High Court Registry. He made serious allegations against the dispensing of justice at the Court in a press conference that was live-streamed on Facebook. Oza alleged that “undue favour was being shown to high-profile industrialists and smugglers”. He said that the court functioned for the rich people and that its advocates, the poor people & non-VIPS had to suffer. While I agree that there is a widespread perception about lack of accessibility to justice for the poor, the criticism could have been a bit more nuanced as Oza termed the entire judicial system a “gambling den”.
Oza was found guilty of contempt and was fined a sum of two thousand rupees. As another consequence, his status as a Senior Advocate has stripped away from him. Oza appealed to the Supreme Court and prayed that after twenty-one years as a Senior Advocate, it would be difficult for him to function as an advocate. The matter is under appeal and proceedings are underway in the Supreme Court of India. During proceedings, the Judge has observed that dissent and disagreements are perfectly normal but the discourse should not be unpalatable.
The Case of Shillong Times
In this case, Shillong Times Editor Patricia Mukhim and Publisher Shobha Chaudhuri were found guilty of contempt of court by the Meghalaya High Court. Two news stories were published in the newspaper related to the facilities provided to retired judges and their families. The newspaper story mentioned medical facilities for the spouses of retired judges and their children, domestic help and mobiles for the judges. Despite their unconditional apology, the journalists were fined rupees two lakhs each although the maximum fine that can be imposed as per the law is only rupees two thousand. A ban was also imposed on the newspaper in case the fine was not paid. The Supreme Court of India stayed the operation of the High Court Judgement. In my opinion, the Meghalaya High Court overreacted in the matter by making the two journalists sit in a corner and by not accepting their apology.
Need for Transparency and Accountability
The judiciary is a very important part of the State and is a pillar of democracy. The existing system makes the judiciary accountable through the process of impeachment under Articles 124 (for Supreme Court Judges) and 218 (for High Court Judges). But impeachment is a very long and cumbersome process. It also needs political consensus. In the current climate of extreme partisanship, political consensus is almost impossible to achieve and that is why very few judges who have allegations of corruption against them are actually impeached.
Recently, a sitting judge of the Allahabad High Court faced arrest by the Central Bureau of Investigation (CBI) under corruption charges. Even he escaped impeachment. The case related to corruption in admissions to medical colleges. Though these colleges were denied permission to function by the Medical Council of India, a network of middlemen allegedly bribed the judiciary to facilitate the running of colleges run by Prasad Education Trust. A writ petition was filed before the Lucknow bench of Allahabad High Court on 24th August 2017. This petition was heard on August 25th and a favourable order was passed on the same day. It was alleged that B.P. Yadav of Prasad Education Trust met Justice S.N. Shukla at his residence and delivered illegal gratification. It is unfortunate that Justice S.N. Shukla retired before impeachment proceedings could be brought against him.
In this scenario, civil society including the media and NGOs must play an enhanced role in demanding judicial accountability. However, people are deterred from speaking up as they fear that contempt proceedings might be initiated against them. Thus, in my opinion, it is high time to review and have a relook at the provisions of the Contempt of Court Act 1971.
Constitutionality of the Contempt of Court Act, 1971
When the Constitution of India was adopted, contempt of court was one of the restrictions made on the freedom of speech and expression. Also, Article 129 of the Constitution gives the Supreme Court of India the power to punish for the contempt of itself. A similar power is granted to the High Courts under Article 215. These powers are given statutory backing by the Contempt of Court Act 1971. It is interesting to note that the constitutionality of the Contempt of Court Act has been challenged in the court of law. Senior journalists N Ram and Arun Shourie and Advocate Prashant Bhushan have filed a petition in the Supreme Court arguing that the contempt law is unconstitutional, rooted in colonialism and produces a chilling effect on free speech and expression. The legality of Section 2 (c)(i) of the Contempt of Court Act 1971 has also been challenged on the grounds that the phrase “scandalizing the Court” is ambiguous and vague. It is interesting to note that the UK Law Commission report 2012 concluded that the offence of scandalizing the court was an infringement upon freedom of expression and was no longer in sync with current social attitudes. Accordingly, this category of contempt was abolished in the UK in 2013.
Conclusion: A Re-Examining of the Laws Needed
As a former Supreme Court Judge Justice Madan B. Lokur rightly pointed out that judges should not be “hyper-sensitive” about criticism. In 1987, after the Spy Catcher Judgment (UK), when the Daily Mirror newspaper called British Law Lords “old fools” in a headline, the British Judiciary ignored the headlines and did not consider contempt proceedings. Lord Templeton’s reaction is worth quoting “I cannot deny that I am old, it’s the truth. Whether I am a fool or not, is a matter of perception of someone else… there is no need to invoke the powers of contempt.” I am of the opinion that contempt proceedings should be invoked only rarely in a modern democracy, more so as in these cases, the judiciary is both the victim and the adjudicator. In a democracy, all organs of the State need to be held accountable. If a government official is corrupt, proceedings can be initiated against him. If a politician is inefficient or dishonest, he can be voted out. Similarly, the judiciary also needs to be accountable. The working of the judiciary should be freely discussed. If the Judiciary is not receptive to criticism, it will weaken the entire institution and this will not be good for democracy.
[*] Aaloka Dhanyamraju is a first-year undergraduate student from Jindal Global Law School, Sonepat. For any discussion related to the article, he can be contacted via mail:20jgls-adhanyamraju@jgu.edu.in
Preferred Citation – Aaloka Dhanyamraju, “Criminal Contempt of Court in India: Time for a Review", Syin & Sern Law Review, Published on 15th April 2021.
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