Perhaps the paradigm of an all powerful Judiciary sending down bolts of
righteous wrath on a cowering populace needs to be set aside and the emerging
complex issues in the arena of criminal contempt need to be debated.
A vagarious branch of Judicial jurisprudence, popularly known as Contempt Power,
of ancient British vintage and regal mintage, has incarnated as part of the
corpus of Free India, with some constitutional sanction. But how has this
intriguing infiltration been rendered possible into countries where No Crown No
Crown reigns nor Palace rules, and yet is allowed to invade people’s freedoms
and intimidate democratic activities, sans constitutional parameters and
regulatory correctives in crucial pharmacopoeia. Free speech is a fundamental
right; so too free access to justice.
To strangulate both these freedoms because
the Courts are allergic to what they regard is savage criticism is to foster
judicial tyranny or tantrum. Parliamentary privileges and immunities are a third
basic grace sanctioned by the Constitution of India, geared to the fearless
defense of the people’s democratic rights by parliamentarians. To ban criticism
of Legislators when one observes their pandemonic performance or berserk
behaviour is bedlam law. Hermeneutic harmony governs the content and contours of
contempt power so as to reconcile it with fundamental rights.
Why? Because this
trinity of values is a trust for the people and tryst by the people. Whatever
power springs from the Founding Deed must ultimately be accountable to the
people since they are the final nidus. Contempt power must, in fairness, respect
other great rights of the people.
The Supreme Court of India, in its wisdom, initiated suo moto criminal contempt
proceedings against Prashant Bhushan for two tweets. One expressed the view that
when historians look back at the destruction of democracy in India in the last
six years without the declaration of a formal emergency, they would mark the
role of the Supreme Court and in particular the role of the last four CJIs.
second shows a photo of Justice S. A. Bobde, Chief Justice of India (CJI),
perched atop a Harley Davidson motorcycle. In the accompanying text, Bhushan
drew attention to the anomaly of the CJI not wearing a mask when he has closed
the Court down – thereby denying ordinary citizens access to Justice – citing
the need for social distancing due to the pandemic.
Simultaneously, the same Bench decided to list and hear a 10-year-old contempt
case against Bhushan for an interview in Tehelka magazine in September 2009,
wherein, he alleged that the last eight of the 15 CJIs were corrupt. The
contempt case with regard to the Tehelka interview was first heard in January
2010 and the last hearing was on May 02, 2012. The listing of a case which had
been languishing for eight years, on the heels of the current suo moto proceedings
by the same Bench, speaks for itself.
It has raised questions on the true intent
of contempt of court proceedings and the independent nature of the judiciary.
Contempt of court is a common-law concept that arose in England during times
when kings delivered judgments themselves. This concept, although relevant for
monarchical times, is asynchronous to a democratic structure like India, whose
entire identity is based on the freedom of speech and the independence of the
judiciary from the executive.
Contempt of Court is a unique circumstance that undermines the freedom of speech
of an individual in order to safeguard the Court from any scandalization and
defamation so as to enable it to carry out its functions in a fair and fearless
manner. It has specifically been recognized as a limitation on the freedom of
speech under Article 19 (2) of Constitution of India. Furthermore, the Contempt
of Courts Act, 1971 provides statutory recognition to this concept.
the Act, contempt of court can either be civil or criminal. While civil contempt
is reasonable in the sense that it ensures that the orders of the court are
complied with, criminal contempt is where the judiciary has been vested with
vast powers that are often misused for frivolous purposes.
There are three
elements to criminal contempt:
- words, whether written or spoken, signs and actions that scandalize or
tend to scandalize or lower or tend to lower the authority of the Court,
- prejudices or interferes with any judicial proceeding and
- interferes with or obstructs the administration of Justice.
The first element of criminal contempt is open-ended and is left to the ultimate
discretion of the court. The special nature of contempt proceedings is that it
is not the state against the individual, but the very court against the person.
The judges themselves are the petitioners, judges, and executioners, and begin
with the presumption of guilt of the accused.
From the very outset, it hints
that this discretionary power vested with the court is arbitrary and results in
an unfair trial of the accused, who is at the beck and call of the court. It
makes a mockery of the principles of natural justice under the pretext of
protecting and demanding respect for the court of law.
Powers of Superior Courts To Punish
The power of Superior Courts to punish for contempt involves two invaluable
rights. As the Court can and does sentence persons to imprisonment, the
fundamental right to life and liberty enshrined under Article 21 of the
Constitution of India gets directly affected. Similarly, the fundamental right
to speech and expression integral to democracy and encoded in Article 19 (1) (a)
of the Constitution of India comes into play as far as public speech and
publications are concerned.
Indian courts followed the Common English Law base till the enactment of
statutory enactments in 1926, 1952 and the Contempt of Courts Act, 1971. As
English Common Law evolved through precedents and continues to be the bedrock of
the exercise of contempt powers in India, it is worth taking a closer look at
Criminal Contempt Jurisprudence
More than a century ago, Lord Morris while delivering the Judgment of the
Judicial Committee in [Mac Leod Vs St. Abuin, (1899 AC 549] observed,
Committals for contempt by scandalizing the court itself have become obsolete in
this country. Courts are satisfied to leave to public opinion attacks or
comments derogatory or scandalous to them.
In a similar vein, Lord Denning in 1968 in [Regina Vs Commissioner of Police,
(1968)] observed, Let me say at once that we will never use this jurisdiction as
a means to uphold our own dignity. That must rest on surer foundations. Nor will
we use it to suppress those who speak against us. We do not fear criticism, nor
do we resent it. For there is something far more important at stake. It is no
less than freedom of speech itself.
Nearer Home, Chief Justice Gajendragadkar following in the rich liberal
tradition, while heading a Seven-Judge Bench of the Apex Court in a 1964
case cautioned against frequent or indiscriminate use of the power of contempt
and observed, Wise Judges never forget that that the best way to sustain the
dignity and status of their office is to deserve respect from the public at
large by the quality of their judgments, the fearlessness, fairness and
objectivity of their approach and by the restraint, dignity and decorum which
they observe in their judicial conduct.
The exercise of contempt power by Courts in recent times needs to be placed in
the framework sketched out by Morris, Denning and Gajendragadkar.
Leave aside more complex matters, examining from first principles the manner of
exercise of contempt power, even in the apparently clear case of the sentencing
to imprisonment of Nand Lal Balwani, reported as [Nand Lal Balwani Vs The
Unknown 1999 (1) SCR 937] who purportedly hurled a shoe towards the Court,
raises doubts. The incident occurred on the morning of February 26, 1999 in the
Apex Court. By afternoon, the same Bench convicted Balwani for contempt and
sentenced him to four months imprisonment.
Requirements Of Natural Justice
The right to an independent tribunal, protection against self-incrimination, the
requirement of intention or mens rea in criminal law and the right to a legal
practitioner are some of the principles that need to be borne in mind in the
exercise of criminal contempt jurisdiction. In Balwani’s case, rather than
referring the contempt matter to some other Bench, the same Bench at which the
shoe was allegedly thrown took cognizance without even a cooling-off period,
violating the right to an independent tribunal. The right of protection against
self-incrimination and the right to a legal practitioner appear to have been
violated, and the issue of the intention or mens rea was not gone into by the
Lord Goff in [Regina Vs Gough, (1993) 2 All ER 724] observed that in the
exercise of contempt jurisdiction, It is vitally important to avoid giving the
impression that the Judge is biased or that the decision has been prompted by
personal animus. Viewed from the standpoint of safeguards, incorporated in
Article 6 of the European Convention on Human Rights, the trend is to refer the
matter to a bench other than the one before whom the contempt was committed.
This is a recognition that it is possible that the Judge will not have seen the
entire incident of which the complaint is made, particularly if the act of
contempt is a fleeting and single one, as appears to be the case in the
shoe-throwing matter. Thus, before truth can be sufficiently established it may
be necessary to have a good deal of evidence from eye-witnesses, some of whom
may have had a different impression from that of the judge.
Even where the same Bench hears the matter, the desirability of a cooling off
period between the incident and the contempt hearing has been stressed. The Phillimore Committee, Report of the Committee on Contempt of Court emphasized
that the very extensive contempt powers should only be exercised, without
…being influenced by the heat or exasperation of the moment.
Right Against Self-Incrimination
Article 20 (3) of the Constitution of India embodies the universal principle of
privilege against self-incrimination and declares that a person cannot be
compelled to be a witness against himself. In cases of contempt in the face of
the court as in the Balwani case, the Judges directly question the accused. The
right against self-incrimination demands that a person accused of contempt
should be alerted to the fact that he/she is at risk of losing his liberty and
is not obliged to answer questions and in particular ones that may be
incriminating. The right to legal counsel requires that the accused be given
time to prepare a defence, an opportunity of taking informed legal advice and of
being represented by counsel.
In Civil Liberties & Human Rights in England and Wales, D. Feldman argues that
the summary nature of the proceedings for contempt are in breach of Article 6 of
the European Convention on Human Rights which guarantees that an accused be
informed of the nature and cause of the allegation against him; the right to an
independent and impartial tribunal; a proper opportunity and facilities for the
preparation of a defence and a right to legal assistance.
Actus Reus & Mens rea
In addition to the actus reus, i.e. act committed, the guilty state of the mind
or intention called mens rea is a crucial component to be established before a
person can be punished for an offence. The present trend in Europe is that the
requirement of mens rea in criminal law should also operate in the sphere of
criminal contempt. Thus, a positive intention to interfere in the course of
justice must be established before a person can be punished for contempt.
Distinctions between an intention to interfere with the course of Justice as
opposed to intending to do the act in question need to be established.
Similarly, recognition in contempt law of an intention merely to insult the
Judge, but not to interfere with the course of Justice as such is also being
sought. In fact, there have been instances in our Courts where an under-trial
has hurled things at the Judge in frustration at the delay in the case. The
intention behind the act is a plea for expediting the course of justice.
However, presently Courts in India treat this as criminal contempt.
Contempt Power & Protection Of Judges
The power to punish for contempt is not for the protection of the individual
Judicial Officers from insult or injury. In the words of Lord Morris in [Attorney General Vs Times Newspaper Limited, (1973) 3 All ER 54], The
power summarily to commit for contempt is considered necessary for the proper
administration of Justice. It is not to be used for the vindication of a Judge
as a person. He must resort to action for libel or criminal information.
While formulating principles for exercise of contempt power by Courts, Justice
V. R. Krishna Iyer in the [In Re S. Mulgaokar Vs Unknown, (1978) 3 SCC
339] case, which arose out of the publication of an article in the Indian
Express in December 1977, lays down, The third principle is to avoid confusion
between personal protection of a libeled Judge and prevention of obstruction of
public justice and the community’s confidence in the great process. The former
is not contempt, the latter is, although overlapping spaces abound.
Basis of contempt power
The raison d’ętre of the power to punish for contempt is the essential right of
the ordinary citizen to get effective justice. The power is to be used for the
implementation of the court’s judgments to ensure justice for the litigants.
The chief judicial magistrate N. L. Patel of Nadiad town in Gujarat was
handcuffed, tied with ropes, forced to consume liquor and was sought to be
framed in a false case of consuming alcohol in a dry State by the local police.
There was outrage in the country as the police had also got the CJM photographed
and major newspapers splashed the picture of the CJM – bound with ropes and
handcuffed – on the front pages.
Petition was filed by the Delhi Judicial
Service Association Tis Hazari & the Supreme Court appointed a Senior Judge of
the Allahabad High Court as Commissioner on behalf of the Court. The Supreme
Court on the basis of the Commissioners’ Report, convicted the police officers
of contempt and sentenced Nadiad Inspector S. R. Sharma to six months
imprisonment, Sub-Inspector Sadia to five months, Head Constable, Constable &
Mamlatdar to five months and District Superintendent of Police to one month
imprisonment for their role in the incident.
There are innumerable instances of the police handcuffing, beating up and
foisting false cases on innocent citizens. It would add tremendously to the
credibility of the Judiciary if the Superior Courts would invoke the contempt
petition in the case of ordinary citizens subjected to brutal treatment by the
police and convict the uniformed perpetrators for gross interference in the
administration of Justice.
Social norms with regard to acceptable restrictions on liberty, the value of
free speech in a democracy change over time and have to be taken into
cognizance. In 1972, E. M. S. Namboodripad, then Chief Minister of Kerala,
was hauled up contempt for stating that judges are prey to the biases of their
class and are weighted against the exploited peasants and working classes. The
defence that the comments constituted fair and reasonable criticism of the
judicial system and were protected by the right to free speech was rejected by
the Supreme Court.
In 1987, the law minister P. Shiv Shankar referred to the elite background of
the judges in a speech at the Bar Council of Hyderabad & declared, Mahadhipatis
like Keshavananda & Zamindars like Golaknath evoked a sympathetic chord nowhere
in the whole country except the Supreme Court of India. And the bank magnates,
the representatives of the elitist culture of this country, ably supported by
industrialists, the beneficiaries of independence, got higher compensation by
the intervention of the Supreme Court in Cooper case. Anti-social elements i.e.
FERA violators, bride burners and a whole horde of reactionaries have found
their haven in the Supreme Court.
The apex Court in [P. N. Dudu Vs P. Shiv Shanker & Ors, AIR 1988 SC 1208],
took the view that Shiv Shankar had examined the class composition of the
Supreme Court. His view that the class composition of any instrument indicates
its predisposition, its prejudices did not amount to contempt. Referring to the
EMS case, the Court observed that, times and climes have changed in the last
The view taken by the Apex Court in the [In Re; Arundhati Roy Vs The Unknown,
AIR 2002 SC 1375] is in stark contrast to the liberal perspective reflected in
the P. N. Duda case. After the Judgment in the Narmada Bachao Andolan case in
2000, there was a dharna protesting the majority Judgment outside the Supreme
Court on 30-12-2000.
This led to petition being filed by J. R. Parashar & four other advocates
against Advocate Prashant Bhushan, Narmada Bachao leader Medha Patkar and writer
Arundhati Roy for contempt of court. Notices were issued on a rather shabbily
drafted petition which in contravention of the Supreme Court Rules neither
specified the addresses of the Petitioners nor the Respondents and was without
requisite consent from either the Attorney-General or Solicitor-General.
The Supreme Court issued notices to Bhushan, Patkar & Arundhati Roy. The
Petition was eventually dismissed by the Court.
However, the Court initiated suo moto contempt proceedings against Arundhati Roy
for three paragraphs in the affidavit filed in the Parashar case. The
objectionable paragraphs are ironical in the context of the exoneration of Shiv
Shankar in the Duda case and the shift in attitude of the Supreme Court. The one
paragraph which can be deemed the most offensive in the Roy affidavit is
reproduced below for comparison with the hard hitting Shiv Shankar speech.
It indicates a disquieting inclination on the part of the Court to silence
criticism and muzzle dissent, to harass and intimidate those who disagree with
it. By entertaining a petition based on an FIR that even a local police station
does not see fit to act upon, the Supreme Court is doing its own reputation and
credibility considerable harm.
The Supreme Court distinguished the P. N. Duda case on the specious reasoning
that the criticism of the Judicial system was made by P. Shiv Shankar, a person
who himself had been a Judge of the High Court, was a minister and had made
studies about the system and expressed his opinion, while Arundhati Roy did not
claim to be possessing any special knowledge of law and the working of the
Judiciary and only claimed to be a writer of repute. The Judgment held that the
benefit which was available to P. Shiv Shanker was not available to Arundhati
Roy and convicted her for contempt of court, imposing a sentence of one day
imprisonment and a fine of Rs. 2000/-.
The present definition of criminal contempt in India under Section 2 (c) of the
Contempt of Courts Act, 1971 uses phrases like ‘scandalizes or tends to
scandalize or lowers or tends to lower the authority of any Court’ and
‘interferes or tends to interfere with the administration of Justice’. These
expressions are inherently vague and leave a lot of scope for arbitrariness,
dependent on the opinions, predilections and the emotions evoked in the
individual Judge and can lead to unreasonable restrictions on freedom of speech.
In the context of the need to strictly define laws which take away the important
right to liberty, the Phillimore Committee in United Kingdom recommended that
the crime of scandalising the Court should be replaced by a new and strictly
defined criminal offence. The offence should be so constituted to include the
component of intention to impair confidence in the administration of justice and
defence should be available, if the defender could prove not only that what he
said was true but also that that the publication as such was for the public
Perhaps the paradigm of an all powerful Judiciary sending down bolts of
righteous wrath on a cowering populace needs to be set aside and the emerging
complex issues involving free speech, restriction on liberty, truth as defence
and inclusion of mens rea, need to be debated in the arena of criminal contempt
jurisprudence in India.
Freedom of opinion and expression includes freedom to seek, receive and impart
information and ideas through any media. The media, although has freedom of
expression, but can’t invent or exaggerate, abuse or unfairly present court
proceeding or a Judge hearing a case. The law of contempt is not dead and if
there is vitriolic violation or vulgar misuse against a Court, there will be no
excuse and appropriate punishment will follow. Even so, in a democratic society,
Courts must lean on indulgence rather than indignation.
Where the contemnor is a foolhardy bully or literary terrorist against the
judiciary, pusillanimity syndrome is not response. Heavy, corrective sword will
be unsheathed. Truth, not false accusation, is a valid factor. Courts are part
of our constitutional democracy and must submit themselves to fair criticism
even if there is marginal excess. Judges are not pride of lions who roar with
resentment when something unpleasant is irreverently urged. They are instruments
of Justice and are not panicky or provoked by spoken exposure.
Written By: Damini Singh Chauhan, B.A LL.B
E-mail; [email protected]