The question of criminal contempt continues to be a topic of debate among residents.
It wasn't long ago that the issue of contempt was in the spotlight after the Supreme Cou
rt launched a suo motu contempt case against Senior Advocate Prashant Bhushan.
Contempt proceedings against Kunal Kamra, a stand-up comedian, and Rachita Taneja
, a cartoonist, have recently brought the issue of contempt back into the spotlight.
The Indian legislature does not provide with a concrete definition of contempt,
however section 2(a) of The Contempt of Courts,1971 says ‘contempt of court
means civil contempt or criminal contempt’. Section 2(b) & section 2(c) of The
Contempt of Courts Act, 1971 defines civil and criminal contempt. Although the
legislature has not defined what amounts to contempt, it has defined civil and
criminal contempt. Thus contempt cannot be confine to four walls of a definition.
Therefore, what would offend the court’s dignity and what would lower the court’s
prestige is thus a matter which can be decided by the court itself and it’s for the
court to deal with each case of contempt under the facts and circumstances of
that case.
Amongst all the fundamental rights guaranteed by Part III of Indian Constitution,
Article 19(1)(a), i.e., freedom of speech and expression is the most sensitive one
and is prone to controversy. If exercised negligently, without abiding by the
limitations prescribed under Article 19(2), a person, on one hand can be booked
for defamation and on the other, hangs the probability of prosecution for
“Criminal Contempt”.
Article 129 of the Constitution, makes 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 contempt, subject to any other law made in
this behalf by the Parliament. 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 Supreme
Court and High Courts are empowered to adjudicate criminal contempt
proceedings. Section 10 of the Contempt of Courts Act, 1971specifically
empowers the High Courts to punish contempt of subordinate courts.
Similarly, Section 15(2) says even in the case of criminal contempt of
subordinate court, proceedings for contempt are to be initiated by the High
Court on a reference made to it by the subordinate court or on a motion made
by the Advocate-General.
Section 13 of the Act postulates no punishment for contemptuous conduct in
certain cases. As a general guideline, it provides for no punishment unless the
court is satisfied that the contempt is of such a nature that “substantially
interferes, or tends substantially to interfere with the due course of justice”
The offence of contempt is not absolute and act of contempt persedoes not entail
punishment (Exceptions— Sections 3 to 8).
“Exercise of powers under the Contempt of Courts Act shall have to be rather
cautious and use of it rather sparingly after addressing itself to the true effect of
the contemptuous conduct,” Mrityunjoy Das v. Sayed
Hasibur Rahaman,
(2001) 3 SCC 739
However, there are various defences available.
Section 3 demonstrates that some comments or matters that may interfere or tend to
interfere with the process of justice or obstruct or tend to obstruct the course of justic
e in connection with any civil or criminal actions pending at the time of publication ar
e immune from prosecution.
However, if the people publishing had no reasonable reasons to believe that the proc
eeding was underway at the time of publication, the publication is defined as "innoce
nt" by this section.
Fair and Accurate Report of Judicial Proceeding –Section 4
Subject to the provisions contained in Section 7, a person shall not be guilty
of contempt of court for publishing a fair and accurate report of a judicial
proceeding or any stage thereof.
Section 7 refers to leakage of information whereas Section 4 refers to reporting of
court proceedings. Leakage defeats very purpose of hearing in chambers or in
camera. KunalKamrawroteinhisdefence,“…
constitutionaloffices−includingjudicialoffices−
knownoprotectionfromjokes.Idonotbelievethatanyhighauthority,includingjudges,
wouldfindthemselvesunabletodischargetheirdutiesonlyonaccountofbeingthe
subjectofsatireorcomedy.”Whathewaswillingtoimplybythisdefencewaspublic
accountability of judges.
It is the Indian citizen's special right to believe what he considers to be true and to ex
press his thoughts, if not necessarily with the best of taste; and to speak, perhaps, wi
th greater boldness than regard for accuracy.
The judiciary is not immune to such criticism.
However, there is no justification for people who are parties and participants to use t
his freedom and privilege to criticise the procedures while they are ongoing.
If the Court is persuaded that justification by truth is in the public interest and the req
uest for invoking the defence is bona genuine, Section 13 of the Act allows the Court
to allow it as a viable defence in any contempt proceedings.
Truth should normally be accepted as a defence unless the Court determines that it i
s really a ruse to avoid the consequences of a deliberate attempt to scandalise the C
ourt.
However, for considering the truth as valid defence there is a twin requirement:
defence is in public interest, and
request for invoking the defence is bona fide
The accused may be freed or the punishment imposed remitted if an apology is mad
e to the satisfaction of the Court, according to the proviso to Section 12(1) of the Act.
The court should be convinced that the apology is genuine and honest.
If the court accepts the apology after being convinced of his sincerity, the contemnor
may be considered to have absolved himself of the blame.
Conclusion
The Court will have to be cautious in exercising its powers under the Contempt of Co
urts Act and will have to utilise them sparingly after considering the genuine effect of
the contemptuous behaviour.
Otherwise, the Court must conclude that the alleged conduct constitutes obstruction
of justice, which, if allowed, would spread throughout our society. MrityunjoyDasv.
SayedHasiburRahaman, (2001) 3 SCC 739.
In an endeavour to prevent frequent and prejudiced use of power in disgust or
anguish, Justice Krishna Iyer, in S.Mulgaokar,Inre(1978) 3 SCC 339, laid down
certain checks to be born in mind by the Court while exercising the power to punish
its contempt.
Given that being gentle is to be right, and mercy is not stretched, the focus was on dr
awing up an objective plan of action.
These include: • The Court's prudent use of the contempt power; • The constitutional
principles of open criticism and the judiciary must be harmonised, and a happy balan
ce achieved between the two.
• There must be a clear distinction between personal shielding of a libelled Judge an
d obstruction of public justice.
• Judges should not be overly sensitive when falsehoods and criticisms overstep the
bounds, but instead deflate such vulgar denunciations with dignity.
• Finally, where the attack on the Judge(s) is slanderous or malicious beyond toleran
ce, the powerful arm of the law must strike in the name of public interest and puberty
.
