Contempt of Court: Is it time to get rid of the Law?
Written by Riya Khanna [i] and Swastik Mishra [ii]
Third Year students B.A. LLB. [i] [ii]
National Law Institute University, Bhopal [i]; West Bengal National University of Juridical Sciences, Kolkata (WBNUJS)
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
Contempt of Court is an act of disobeying the court, where the authority or a specific judgement decided by it has been publicly disregarded and loathed, thus drawing a negative perception against the judicial system. In simpler terms, it is an act which goes against the basic duties that have been thrust upon a party or any individual by the judiciary through an order or decree of the court.
The genesis of contempt law lies in the divine origin theory, and the theory of the Social Contract. In antiquated times, the Monarch was in-charge of the protection of his subjects and consequently administration of justice, ergo his position was beyond question. Therefore, at that time, all legal contempt was considered as an offence more or less against the king (or the Palace) as he was seen as the guardian and protector of the law. As time passed by, the power of the king to deliver justice was shifted to the office held by a Judge. The authority of a Judge, just like the King, was beyond question being the King’s delegate. Therefore, it is very clear that the statute of contempt of court is of ancient origin and has significantly evolved over the course of time.
The Prashant Bhushan case has recently raised this question again as to whether there is the need of the contempt law considering the fact that it compromises with our right to freely express our views?
Many legal scholars and lawyers have raised their voice in support of Prashant Bhushan and have stated that such a law is an obstacle for having free opinions and application of power to contempt is clearly against the idea of justice altogether.
In the light of such developments, this article aims to expand on what the power of contempt is, how it has been developed throughout the years by examining judgements, what its importance is in recent times and to what extent the courts should go on exercising it.
Interpretation By Indian Courts
The Courts under the law of contempt have been granted a right to punish those who have tried to obstruct the smooth process of the Justice Delivery system by either imprisoning such people or by imposing fines for the same. Earlier, the above mentioned power was considered to be as inherent powers of a court of record but now the Constitution of India expressly grants the said power to the Supreme Court and the High Courts.
Though Contempt are of many kinds yet, the chief amongst them are humiliating statements targeted towards Judges, attacking their behaviour or conduct, to pass statements pertaining to the forthcoming proceedings by stating that the said Judge has a propensity to prejudice the free and fair trial, causing hindrance in the working of Court Officials, witnesses or the parties, abusing the process of the court, breach of duty by officers associated with the court and outraging the Judges or the courts. The last and most prevalent form is when the statements by an individual is likely to cause an obstruction to the Justice Delivery System by putting the authority and administration of the law into bad light or disregard. Therefore, the power of contempt becomes extremely important to help maintain the dignity of and respect for the court. The power of contempt also establishes that defiance of the orders of the court can lead to punishment by imprisonment, thus establishing the court’s authority.
In recent times, there has been a catena of judgments deciding on the question of contempt of Court, ergo, it becomes essential to understand the interpretation of Indian Courts on the subject and to comprehend when the comment on a Judge becomes contempt from constructive criticism.
The Constitution Bench of the Apex Court has noted that what should weigh with the Court is that, whether the statements targeted towards the Judges fall within the four corners of what is called as reasonable criticism and whether such statements can be labelled as mere libel or defamation of the Judge as an individual. If the same is a mere defamatory statement targeted towards the Judge as an individual and it is nowhere interfering with the due process of justice delivery system by such a court, then it will not be appropriate to proceed by way of contempt. To get a clear understanding of the matter, the Apex Court in another case observed that whenever the Court is confronted with a case involving an allegation pertaining to contempt, the question which the court should raise is whether the condemning statement is targeted towards the judge as a judge or it is against the judge as a person. If the latter is true i.e., the statement was against the judge in individual capacity, then it is not a fit case for contempt, and the Judge is open to opt for private remedies.
The general public has a right to throw light on the infirmities any institution is suffering from, and make such information public, and the Judiciary is no exception, people have a right to talk about its infirmities.
Critics are necessary to bring a change in the current situation, nevertheless, not those which are incited by perniciousness but those individuals who are roused by public weal. It is essential to mention here that healthy and constructive criticism is essential for any institution to improve its existing capabilities.
The office of a Judge deserves respect and from the masses in general by dauntlessness and objectivity of the approach to deal with the issues arising for decision, quality of the judgment, restraint, dignity and decorum a judge observes in judicial conduct off and on the bench and rectitude.
Should the Law be abolished altogether?
Considering we have gone through the history of the law, we can now revert back to the question once again as to whether the judiciary should do away with the contempt law and the penalty associated with it? Prashant Bhushan himself has not been hesitant to point out that the “power of contempt is a very dangerous tool which can be (and have been) used by few judges to suppress any form of criticism which have been made against them”. He believes that in a democratic country like India every citizen has a right to question the authority and such a power, therefore, acts as a “fundamental block to the functioning of democracy”.
A very important point that has been raised by many scholars has been that the law was drafted for protecting the sanctity of the judiciary from malicious allegations made against it but often it is the judges who have faced criticism for their decisions and their off-court behaviour as well and such criticisms have been held as the contempt of court which is wrong as anyone is sensible enough to understand that just by making random allegations against a judge would not really harm the reputation of the institution in any way and therefore, the penalty is obviously very harsh in such cases. This seems to be a valid point as a personal remark against the judge has nothing to do with the judiciary as such a remark shall be considered as a redundant one, something that would not deserve any attention in the eyes of the public.
A provision in the Contempt Act states that people shall only be allowed to ‘reasonably criticise’ the judiciary is a highly problematic one as the fairness of his/her statements shall be scrutinised by the judiciary only, thus clearly violating the principle “Nemo judex in causa sua”(No one should be made a judge in his own cause).
Let’s take a moment to think about the scenario that is being created; at one side the Constitution is expecting the public to question the authority by empowering us with Article 19 and on the other hand Contempt Law and its certain provisions (Section 5 for instance) have partly prevented us from giving free opinions against the judiciary. This is what the naysayers of the ‘power to contempt’ also believe that such power goes directly against the principle established by Article 19. Again, we know for a fact that Article 19 is not absolute and an individual is expected to be reasonable in whatever he says or does especially when his/her actions directly affect the judiciary.
So, the dilemma seems to continue as scrapping the Act altogether does not seem like a possible solution because then what we shall see is that there would be a constant bashing of the Judges (related to the judgements they would deliver) by the public through random allegations being made and with no scrutiny being done over such statements, there is a high chance that in such a case, Judges shall be pressurised to deliver biased judgements in favour of what majority wants.
So, the possible solution seems to be at the hands of the judiciary only which can actually set out a few guidelines as what exactly shall be considered as a ‘contempt’ and how such statements or actions shall be scrutinised by the courts. The need here is that the freedom must be granted to the citizens in case of criticising the judiciary. Citizens need the certainty that every time they choose to express their disagreement with the court, they would not be punished for it and such a guarantee can only be given by the judiciary itself (through the set of guidelines, as mentioned).
The judiciary holds a special place in a democracy. It should not be allowed to be maligned by allegations that are made only to demean its status in the eyes of public and therefore, such a power (to penalise for contempt) becomes a necessity but in a democracy, it is equally important that all kinds of authority are questioned from time-to-time so as to ensure the authorities dutifully stick to their responsibilities.
Reasonable criticism should always be welcomed and baseless allegations should not be given any attention as long as they don’t go on impairing the respect the Judiciary has in the eyes of the public.
 Miller v. Knox (1878) Bing N.C 574, 589. (Per Williams, J.)  Gregory S. Alexander, Pluralism and Property, 80 FORDHAM L. REV. 1017 (2011)  Anita L. Allen, Taking Liberties: Privacy, Private Choice, and Social Contract Theory, 56 U. CIN. L. REV. 461 (1987)  J. F. OSWALD, CONTEMPT OF COURTS 1 (1911).  Ibid  Re: Prashant Bhushan and Ors. MANU/SC/0587/2020.  E.M. Sankaran Namboodripad v. T. Narayanan Nambiar (1970) 2 SCC 325  Brahma Prakash Sharma and Ors. v. The State of Uttar Pradesh 1953 SCR 1169  Baradakanta Mishra v. The Registrar Of Orissa High Court and Anr. (1974) 1 SCC 374  Re: Prashant Bhushan and Ors. MANU/SC/0587/2020  Dr. D.C. Saxena v. Hon'ble the Chief Justice of India (1996) 5 SCC 216  “Power of contempt of court misused to stifle free speech: Prashant Bhushan” https://economictimes.indiatimes.com/news/politics-and-nation/power-of-contempt-of-court-misused-to-stifle-free-speech-prashant-bhushan/articleshow/77913648.cms, (Last visited on September 10, 2020)  Ibid  “Court must remember: It is supreme because it’s final not because it’s infallible” https://indianexpress.com/article/opinion/columns/law-of-contempt-challenged-supreme-court-prashant-bhushan-karan-thapar-6547810/ (Last visited on September 11, 2020)  Contempt act, 1971 Section 5  “Contempt of Court v. Freedom of Speech and Expression” https://thelawblog.in/2020/03/23/contempt-of-court-v-freedom-of-speech-expression/ (Last visited on September 12, 2020)  Ibid  Supra note 12  Constitution of India, 1950, Article 19(2)
Gregory S. Alexander, Pluralism and Property, 80 FORDHAM L. REV. 1017 (2011)
Anita L. Allen, Taking Liberties: Privacy, Private Choice, and Social Contract Theory, 56 U. CIN. L. REV. 461 (1987)
Miller v. Knox (1878) Bing N.C 574, 589.
Re: Prashant Bhushan and Ors. MANU/SC/0587/2020
E.M. Sankaran Namboodripad v. T. Narayanan Nambiar (1970) 2 SCC 325
Brahma Prakash Sharma and Ors. v. The State of Uttar Pradesh 1953 SCR 1169
Baradakanta Mishra v. The Registrar Of Orissa High Court and Anr. (1974) 1 SCC 374
Dr. D.C. Saxena v. Hon'ble the Chief Justice of India (1996) 5 SCC 216
Contempt Act, 1971 Section 5
Constitution of India, 1950, Article 19(2)
1. “Power of contempt of court misused to stifle free speech: Prashant Bhushan” https://economictimes.indiatimes.com/news/politics-and-nation/power-of-contempt-of-court-misused-to-stifle-free-speech-prashant-bhushan/articleshow/77913648.cms
2. “Court must remember: It is supreme because it’s final not because it’s infallible”
3. “Contempt of Court v. Freedom of Speech and Expression” https://thelawblog.in/2020/03/23/contempt-of-court-v-freedom-of-speech-expression/