“I have often in the course of my practice told the presiding judge in very emphatic terms that I am bound to obey his judgment but I am not bound to respect it. That is the liberty that every lawyer enjoys in telling the judge that his judgment is wrong and I am not prepared to give up that liberty.”
The above-cited statement was made by none other than The Father of the Indian Constitution—Dr. B.R Ambedkar in 1951 when the provisional parliament of India (that succeeded the Constituent Assembly and existed until the first general elections to the House) was debating the First Constitutional Amendment Bill and it also marks one of the first instances when “Contempt of Court” was questioned at the highest level.
The aforementioned assertion was a response to the criticism that Dr Ambedkar received on calling out the judgement in the “Champakam Dorairajan vs. State of Madras” case—”utterly distasteful”.
One of the most controversial provisions of the Indian Constitution that are antithetical to the idea of democracy always finds a place in the limelight. It is just recently, that the apex court has once again defended the necessity of the contempt provision in the Indian scheme of democracy.
Recently, the Supreme court observed during a judgement in the contempt case that—power to punish for contempt is a constitutional power that cannot be taken away even by legislative enactment. The two-judge bench of SK Kaul and MM Sundresh hence found Suraz India trust Chairman Rajiv Dahiya guilty of contempt of court on scandalizing the apex judicial body. SC also observed that the ‘raison d’etre‘ of contempt jurisdiction is to protect the judicial institutions from unwarranted criticism and motivated attacks that go on to tarnish the image and dignity of the judiciary and creates a public distrust in the justice system.
But the question persists as to why do we need contempt of court provision in a constitutional democracy? Let’s find it out by going down to the roots of this provision and how it developed over time.
Contempt of Court in Indian context
Contempt in common parlance means an offence for showing disrespect to the dignity or authority of the court. Contempt laws in India trace their history to a pre-independent phase where the presidency and early high courts, as well as some courts in the princely states, had laws for its contempt.
It was in 1926 when the first statute related to the Law of Contempt came into force in India. Sec. 2 of the Act recognized the existing powers of the High Courts to punish for contempt of themselves and conferred on them the powers to punish for contempt of courts subordinate to them, it also specified the upper limit of punishment to be given in case of conviction. The act was later repealed by the Contempt of Court Act,1952 that elaborated the expression “High courts” in the previous act, to include Courts of Judicial Commissioner and Chief Courts that existed at that time alongside specified the nature, type and extent of the punishments that could be imposed by the courts for their contempt.
Constitution of India that came into force in 1950, also included some provisions to confer upon courts the power to punish for their contempt. Two articles in Constitution bestow upon the apex court the power to punish for its contempt. First is, Article 129 of the Constitution, which declares the Supreme Court “a court of record” and confers power to punish for contempt of itself. Whereas, Article 142 empowers the Court to provide punishment for its contempt, subject to any other law made by the Parliament. By Article 129, Supreme Court thus opined in a recent judgement that power to punish for contempt is an unfettered, constitutional power that cannot be taken away even by legislative enactment.
Similar powers have been vested in the High Court by the virtue of Article 215 which makes the High Court “a court of record”, implying that only the Supreme Court and High Courts are empowered to adjudicate criminal contempt proceedings.
A committee headed by H.N. Sanyal, then the Additional Solicitor General for India, was appointed in 1961 to examine the implementation of contempt laws in India.
“The Sanyal Committee recommended that contempt proceedings should be initiated not by the courts themselves, but on the recommendation of a law officer of the government”.
These recommendations were incorporated in the Contempt of Courts Act 1971, enacted by Parliament, which is also the current legislation governing contempt of courts in India. The Contempt of Courts Act 1971 defines civil and criminal contempt separately. Where Civil contempt in Sec.2(b) refers to willful disobedience to any judgment of or undertaking given to the court, Criminal contempt.Sec.2(c) can be invoked if an act (through words, written or spoken or signs and actions) intends to scandalise or lower the authority of the court or tends to interfere with or obstruct the administration of justice.
Contempt of court carries simple imprisonment of up to six months, or a fine up to two thousand rupees, or both, the accused may also be discharged or the punishment awarded may be remitted if an apology to the satisfaction of the court is being made.
However, fair and accurate reporting on the judicial proceedings and criticism based on the merits of judicial order doesn’t amount to contempt of court.
The Act was later amended in 2006, to limit the power of courts to punish for contempt, only when such contempt “interfered with due course of justice,” and to allow ‘truth as a defence’ to contempt.
Why does contempt laws run contrary to the idea of democracy?
The most fundamental of the fundamental rights enshrined in Article 19(1)(a)— Right to freedom of speech and expression, however, is not absolute and subject to reasonable restrictions by Art. 19(2), but it is also not meant to be subjugated to the unreasonable restrictions imposed by contempt laws of the country. The law should be used only in such conditions and for such reasons when there is a need to sustain the legitimacy of the judiciary and not of judges. Also, the scrutiny of contempt charges is a crucial factor in maintaining the balance between freedom of speech and the dignity of the judiciary.
In this context, observations of a renowned English Judge Lord Denning M.R. holds relevance here, who in 1968 set out guidelines in matters of contempt of court. where he stated that—“Contempt is not the means to uphold the court’s dignity, it’s jurisdiction is to be exercised sparingly and that protection of freedom of speech is paramount”.
In S.Mugolkar v. Unknown (1978), SC held that the judiciary cannot remain immune from fair criticism, and contempt proceedings are to be only invoked in those cases when an obvious misstatement with malicious intent is made to bring down public confidence in the courts or seeks to influence the courts in any way.
It is also worth noting here that unlike the legislature and the executive whose extra-constitutional outreach may be struck down by the judiciary, the judges and the judiciary may only be corrected by public criticism. Thus only rare cases after judicious scrutiny are to be subjected to “contempt proceedings”.
Need of a Contempt law in India
The 21st Law Commission of India headed by B.S Chauhan submitted a report on “Review on Contempt of Courts Act, 1971” in 2018 which examined various facets of the law in question including the proposal to do away with the criminal contempt provision and restrict the contempt proceedings to civil acts only.
Commission however outrightly denied to make any amendments in the present structure of the contempt laws in India on the following accounts—(i)High no of contempt cases- civil (~97,000) and criminal (~580) are still pending in various high courts and the supreme court which justifies the continuing relevance of the Act. (ii) Higher courts in India derive the power to punish for contempt from the Constitution itself so deletion of the Act would not affect the inherent power of the courts(iii) There are adequate safeguards in the Act that protects against its misuse like it contains provisions where acts don’t amount to contempt and acts where contempt is not punishable. (iv) If the definition of contempt law is narrowed down, the subordinate courts will suffer as they will be left with no remedy to punish for their contempt.
Considering all these situations, it was argued by the Commission that the continuation of the Contempt of Court Act, 1971 is justified in the interest of the judicial institutions and for the sake of public trust in them.
All said and done, it is reasonable to say that higher courts in India already wields a powerful position in Indian polity, its power to deliver justice and command obedience is unconstrained and protected by the Constitution itself. So, an unfettered, extra-constitutional measure of contempt law to command over the right to freedom of speech and expression would amount to a violation of the fundamental rights of citizens and would run contrary to the idea of democracy. Hence, to maintain the balance between judicial integrity and citizen’s rights, it is to keep in mind that: “Freedom is a rule while the restriction is an exception”.