REVIEWING THE CONTEMPT OF COURTS ACT, 1971

This article was written by Bhavya Singh Baghel, a student of Law College Dehradun.

INTRODUCTION

Contempt of Court or Contempt is the offence of being disrespectful or discourteous towards the court of law including its officers. In other words, it is wilfully failing to obey the orders to the court. Punishments could be either imprisonment or fine or both. The judiciary derives its power of contempt from the Constitution itself, under Art.129 and 215. With time, such powers have been misused, resulting in declaring even a fair criticism on the working of the judiciary as contempt and thus, providing inappropriate punishments for the contempt.

DEFINITION

1. Contempt of Court means civil contempt of criminal contempt.[1]
2. Civil Contempt means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court.[2]
3. Criminal Contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, otherwise) of any matter or the doing of any other act whatsoever which-
4. Scandalises or tends to scadalise, or lower or tends to lower the authority of, any court; or
5. Prejudices, or interferes or tends to interfere with , the due course of any judicial proceedings; or

• Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.[3]

CRITICAL ANALYSIS OF THE CONTEMPT OF COURTS ACT, 1971

There have been confrontations between judges and the court which have given rise to reviewing the Contempt of Courts Act, 1971. The amendment made in 2006 included “truth and good faith” as a defence.  In accordance with the amendment in 2006, it was declared that the court may impose punishments only if the act of the other person substantially interferes, or tends to interfere with the due course of justice. The same was not followed in the Mid-Day case wherein the Delhi High Court had sentenced the editor, a journalist, printer, publisher and cartoonist of Mid-Day to four months in jail. The employee was sentenced for publishing the portray of the retired Chief Justice of India as it found it an unfavorable. The publisher claimed defence of truth and good faith but was not entertained by the hon’ble court. However, in a judgement delivered on January 2, T. S. Thakur, CJI., along with Khanwilkar, J., set aside the judgment. It could be understood how contempt powers are abused by the judiciary.

As per the reports of the Law Commission, “the powers of the contempt of the Supreme Court and High Courts are independent of the Act, 1971” and the contempt powers of the higher courts are derived from the Constitution of India itself. The Constitution of India provides Freedom of Speech and Expression enshrined under Art.19 (1) (a). However, such freedom is restricted by the higher judiciary under Art.129[4] and 215[5] which provides the power of contempt to the Supreme Court and High Court respectively and it limits the freedom of speech of an individual. Such powers have a vague jurisdiction and are without certain boundaries. In Kuldeep Kapoor & Ors. v. Court, the court observed that the litigant refusing to answer a question put to him by the court does not amount to contempt of court. The jurisdiction is completely ill-defined which leaves scope for the misuse of power resulting in taking arbitrary decisions. In re Arundhati Roy, the S.C. observed that the fair criticism of the conduct of judges, and the institution and functioning of judiciary may not amount to contempt if made in good faith and in public interest.  Moreover, in Auto Shankar’s Case, the Court invoked the Sullivan doctrine stating that the public servants must be open to stringent comments and accusations as long as made fairly even if untrue. Even though the judiciary has interpreted its power of contempt, the public do not have the freedom to fairly criticize the judiciary as done towards the other organs of the government.

The judiciary has been protected from the fair criticism by the public in a democratic country whereas in US, the courts have forbidden the power of contempt. Thus, no longer using it to avoid comments on judges or criticism on legal matters.

CONCLUSION

The supremacy of the judiciary owes its origin to the mid-British principle that “King could do no wrong”. The power of contempt is not in consonance with the constitutional scheme of India. In India, it is not the judiciary which is supreme but the people. The concept of popular sovereignty is prevalent and thus the people are the masters and all the authorities come under them. In India, there exists popular sovereignty but it could not be exercised due to vast powers in the hands of the judiciary. The powers are being used in an arbitrary manner and still people cannot criticize or comment on the functioning of the judiciary.

Though, the power of contempt is in the hands of the judiciary, it must not be exercised when there exists fair and true criticism as it enables the organs of the state to function in an effective and efficient manner and deliver justice properly. The judiciary must balance between the freedom of expression and fair and fearless justice.

[1] Sec. 2(a), Contempt of Courts Act, 1971.

[2] Sec. 2(b), Contempt of Courts Act, 1971.

[3] Sec. 2(c), Contempt of Courts Act, 1971.

[4] The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

[5] Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.