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Contempt Laws are Obsolete and Archaic

A simple reading of the Contempt of Court Act reveals that sometimes a tweet on the basis of facts is criminal contempt. Both criminal and civil contempt are defined under the Contempt of Courts Act, 1971. Section 2I of the Contempt of Court Act, 1971 defines Criminal Contempt to mean the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
  1. Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
  2. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
  3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

As a result, the laws of contempt should be revived in order to strike a balance between preserving the majesty of the courts and judicial system, as well as the natural, basic, primordial, inalienable and inherent right to freedom of expression guaranteed by Article 19(1)(a) of the Constitution. The Supreme Court was given the power to penalise contempt of itself by Article 129 and the High Courts were given an equivalent power under Article 215 of the Indian Constitution.

The power to exercise contempt jurisdiction and to punish for contempt of court dates back to the thirteenth century. The king was regarded as the most important figure in delivering justice throughout the ancient times, and his powers were extensive and indisputable. People at the time had no right to criticise or denounce the king's actions, and if they did, they were punished. Work became burdensome due to changes in time and pattern, therefore he transferred it to a working authority, namely judges.

The goal of initiating contempt of court charges was to defend the court's legitimacy and keep judicial administration running smoothly, regardless of whether the contempt was intended at judicial officers or the general public. To understand what constitutes legitimate criticism, how the judiciary values criticism, and how freedom of speech and expression is curtailed in order to defend and maintain the court's credibility.

Analysis of Contempt Laws
The constitution bestows a particular sort of jurisdiction known as contempt jurisdiction. To sustain and maintain the court's credibility, as well as to build citizens' faith in the law, this power of contempt must be utilised with extreme caution and ultimate impartiality. The power of contempt ensures that a judicial institution's dignity is preserved, preventing it from being degraded and ensuring that the administration of justice system runs smoothly.

The objective of contempt law is to comprehend the idea of contempt of court, as well as legal provisions and features of the Act, in the context of the judiciary's fair exercise of power when dealing with contemptuous acts as well as to comprehend the factors that authorities evaluate when assessing whether or not a situation or deed is deplorable and should be punished. Further, to understand what constitutes legitimate criticism, how the judiciary values criticism, and how freedom of speech and expression is curtailed in order to defend and maintain the court's credibility.

The Supreme Court has ruled that the authority to penalise for contempt as per Article 129 is a constitutional power that cannot be limited by legislation. The Supreme Court has all and every power to make any order on punishment of any contempt of itself, according to Article 142 (2), subject to the terms of any law adopted in this regard by Parliament.

When the two clauses are compared, it becomes clear that, while the framers of the constitution believed that the powers under clause (2) of Article 142 might be subject to any law passed by Parliament, there is no such constraint in existence for Article 129. Wilful defiance of a court's judgement is referred to as civil contempt.

A person can be charged with criminal contempt if they:
  • have a tendency to embarrass or undermine the court's authority
  • have a tendency to obstruct the proper conduct of any judicial proceeding
  • Attempt to thwart the administration of justice.

A contempt of court petition was filed against Advocate Prashant Bhushan, and the Hon. Supreme Court convicts him after many hours of deliberation and hearings. So far, everything has gone well. The Supreme Court then requests, almost begs, the offender to humbly tender an apology to it so that he will not be punished. Bhushan then adopts a superior ethical stance and makes no apologies, claiming, like Mahatma Gandhi, that he would gladly accept any punishment imposed by the court, but that apologising would violate his conscience. As a result, the court orders Bhushan to pay a one-rupee fine.

Is the Supreme Court of India's contempt worth a single rupee?
Individuals' fundamental right to freedom of expression should not be suppressed, nor should their right to fair and genuine criticism. Instead, the courts must make a concerted effort to safeguard it. In the matter of Brahma Prakash Sharma, 1953 SCR 1169, the Supreme Court emphasised this by distinguishing between libel on the judge and contempt of court. Every Indian has an inherent right to a just and equitable system of justice.

The Constitution, which prioritises the individual and guarantees civil and political rights, enshrines such a right. Individuals should be held accountable not only by the state but also by the judiciary. Arguing that the judiciary cannot be subjected to fair and valid criticism would be a violation of citizens' rights. This supports the notion that the law of contempt should be revised to provide citizens the freedom to question motives, if any exist, as this would help to improve democracy.

The law of contempt has changed significantly in Western democracies. In UK, for example, the judiciary was recently called "You Old Fools" and "Enemies of the People" by various newspapers. However, no action of contempt was taken against them, despite the fact that such remarks are undoubtedly extreme. The stories were ignored by the courts in a judicious and sensible manner. When elephants walk by, dogs bark. Elephants, on the other hand, continue to walk.

Erstwhile US president Theodore Roosevelt railed over Justice Oliver Wendell Holmes' dissenting opinion in the Northern Securities case, saying, "I could carve a judge out of a banana, with more backbone than that." President Trump reportedly referred to District Judge Jon S. Tigar as a "Obama judge." Has the American judiciary been weakened as a result of such statements? Quite the opposite is true. Apart from boosting the justice delivery system, such independence has only improved democracy.

"We don't have Obama judges or Trump judges, Bush judges or Clinton judges," Chief Justice John Roberts remarked. What we have here is an incredible set of dedicated judges who are doing everything they can to ensure that individuals who appear before them are treated equally.

We should all be grateful for the independence of the court." As he went on to say that all jurists will continue to do their job, without fear or favour, from any quarter. These assertions are equally applicable to the Supreme Court of India as they are to the Supreme Court of the United States. As a result, even the world's most powerful men cannot damage the underpinnings of our courts in any way.

India's contempt laws are outdated and need to be updated. These laws must safeguard citizens from any unsettling tendency of any institution (including the judiciary) to silence dissent or criticism, as well as harassment and intimidation of such dissenters. An imposed silence would almost certainly breed anger, distrust, and contempt for the bench, rather than the respect that it craves. Respect that is earned rather than coerced is what the Indian courts would like to see.

The right to free speech is by far the most basic of the fundamental rights, and limits on it must be kept to a minimum. Only the restrictions necessary to maintain the legitimacy of legal system can be imposed under the legislation of contempt of court. As a result, regulations and guidelines detailing the process that superior courts must follow when conducting criminal contempt action must be drafted, bearing natural justice and fairness principles in mind.

The purpose of the contempt jurisdiction granted to the court is to protect the court's integrity as well as to ensure that judicial administration is fair and efficient. The constitution bestows the power of contempt on the assumption that it will be used fairly and efficiently. The judiciary is viewed as an institution that protects citizens' rights and administers justice. Citizens regard the courts as the highest level of protection, thus when judicial officials bring the institution into disrepute by their actions, they must be held accountable.

There is no denying that, as a large authority with many obligations and tasks, the judiciary is bound to receive some criticism. The judiciary, on the other hand, should have a big heart and accept constructive criticism within the bounds of justice. After dealing with a variety of situations over the last few years, the judiciary has matured to the point where it can confront criticism while simultaneously refusing to condone behaviour that undermines the court's grandeur. Hence, India's contempt laws are outdated and need to be updated.

  • Harshita Tomar & Nayan Jain, Contempt of Court: A Challenge To Rule Of Law � A Critical Analysis, Journal on Contemporary Issues of Law (JCIL), Volume No. 2, Issue 7 (September 2016).
  • Ms. Priyanka Oberoi, Contempt of Court in India, ICAN Conference at Noida, (March 2018).
  • Law of Contempt of Court in India by K. Balasankaran Nair.
  • G.V. Mahesh Nath & Audhi Narayana Vavili, "Contempt of Court and Free Expression -Need for a Delicate Balance", (December 5, 2008)

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