CONTEMPT LAW: OVERVIEW AND DEVELOPMEN IN INDIA

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THIS ARTICLE WAS WRITTEN BY JESSICA KAUR A STUDENT OF SYMBIOSIS LAW SCHOOL, NOIDA.

The Contempt of Courts Act, 1971 came into being after several amendments of the original act , given by the English law of punishing those who disrespect the law in the colonial era. The Act gives the definition of contempt as being two fold- criminal contempt and civil contempt. It aims at preserving the honor of the court by punishing those who disobey court order, obstructs administration of justice, and obstructs court proceedings. While civil contempt punishes or forces a person to perform what he is bound to as directed by the court, criminal contempt punishes those who try to defame and lower the authority of the court. The act prescribes penalty as well as summary trial of contempt proceedings.[1]

The Act was brought into existence with the purpose of maintaining the dignity of the court as it is the essence of a democratic government. The judiciary being the ultimate authority and powerhouse for maintaining justice and peace in the country ought to be respected and obeyed and the same is the purpose of this Act.

The Act empowers the High Court and Supreme Court to undertake contempt proceeding against any individual who scandalizes or disobeys the judiciary. As such under Articles 129 and 215 of the Constitution of India, Supreme Court of India and High Courts of States respectively are empowered to punish people for their respective contempt being court of record.[2]

The power to contempt has been exercised rather frequently, one may also say that it has misused a number of times which leads to the argument by free speech supporters that it restricts their right by not allowing even honest criticisms from being published.[3] The rights to scrutinize, discuss and comment on the judiciary has been raised time and again calling for reforms in the law relating to the contempt of court. In E.M.Sankaran Nambbodiripad v T. Narayanana Nambiar[4] it was held that the freedom to speech and expression cannot be exercised in abuse of the Act by making unfounded allegation against the judiciary which harms the dignity of the courts.  It will be injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice, or if it likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.

One must bear in mind that if the judiciary ceases to be accountable to the press and the public , the whole justice system would fail as transparency of the judiciary is as important as maintaining it dignity which can only be achieved by being able to report the fair doings of the court and creating awareness in public. It has been observed since a couple of years that the judiciary has been misusing the power of contempt to conceal the misdoings happening within it.[5]

1. Contempt of Court and the Media:

Freedom of the press is as important as any other fundamental right as it connects to the people and helps in making the country truly democratic. Although it is entitled to criticize the judiciary, it shouldn’t be punished for contempt for publishing activities of the court which are true and fair. The Supreme Court in Re: Harijai Singh and Anr.[6] has pointed out that a free and healthy press is indispensable to the function of a true democracy but, at the same time, cautioned that the freedom of Press is not absolute, unlimited and unfettered at all times and in all circumstances.

It is true that freedom of press and expression should not be used so as to undermine the reputation of the judiciary but it should also be seen that such a restriction on the garb of contempt should not restrict in publishing information which is in public interest and promotes fair trial. The public interest in ensuring and maintaining both protecting fair trial and preserving freedom of press necessitates a delicate balancing exercise. It is a sensitive and delicate task to accommodate these two spheres without conflicting interest of the public.[7]

1. Media Trial

Media has posed another hurdle in proper administration of justice by the courts by becoming a public court and take things to its own hands. It is very essential that the court is lower t work according to its own procedure without being interfered by anyone as it effects the whole case and subsequently the rights of the people involved in the case. Now, what we observe is media trial where the media itself does a separate investigation, builds a public opinion against the accused even before the court takes cognizance of the case. This has severely threatened the principal of being innocent until proven guilty as they themselves decide whether the accused is guilty or innocent. The innocent is shown guilty, the guilty shown innocent. Thi snatches way their entire right and liberty and even if they are proved otherwise at the end of the case, too much damage has been done already to be able to put that away along with their charges. It amounts to undue interference with the “administration of justice”, calling for proceedings for contempt of court against the media. Tragically, laws intended to control journalistic behavior are lacking to curb the infringement of social liberties.[8]

CONCLUSION

 From the above discussion we can say that there is conflict between contempt law and freedom of speech and expression. Balancing them both is an urgent requirement. The courts exclusivity from media glare should be examined keeping in mind the right of the public. On one hand where freedom of speech and expression is regarded as a fundamental right , whether it is subservient to contempt law needs to be analyzed bearing in mind that right to expression should not be misused but also honest and bona fide criticism should not be prevented making contempt of court as an excuse. As both freedom of speech and contempt of court are inexplicable features of a democratic government, the equally essential task is to reconcile them both so as to promote healthy and constructive criticism thereby safeguarding public interest. Only then our government can be said to be a truly democratic one by not granting absolute restriction to media from criticizing or exposing the judicial activities.

 This demands the reformation of contempt laws as well as judicial decision to come at par with countries such as England and United States where contempt jurisdiction is exercised under special circumstance instead of making it like a daily affair which is often the case in India. It is high time to do away with the prevalent conservative view of contempt law and bring in the liberal approach advocating free expression pursued by western and other commonwealth countries.

[1] Nath, G. V. Mahesh and Vavili, Audhi Narayana, Contempt of Court and ree Expression – Need for a Delicate Balance (December 5, 2008).

[2] Subir Ghosh, Mass Media Today 42 (Rupa & Co. Distributor, Calcutta, 1991).

[3] Banerjee,A (2007)  ‘Contempt of Court and Criticism of the Judiciary’ 12 Media & Arts Law Review 320 (LexisNexis, Sydney)

[4] AIR 1970 SC2015

[5] Nandi, K. (2011). Investigative Role of Media: Responsibility to the society. Retrieved March 15,2016 from http://www.caluniv.ac.in/Global%20mdia%20journal/student_research/SR%206%20

[6] 1996 (6) SCC 466.

[7] Katju, M. (2012, May 2). Media cannot reject regulation – The Hindu. Retrieved March 15, 2016 from http://www.thehindu.com/opinion/lead/media-cannot-rejectregulation/article3374529.ece

[8] Udwala, T. (2007, January 26). Media on trial (Opinion). Retrieved March 15, 2016, from http://permalink.gmane.org/gmane.culture.region.india.zestmedia/2710