Open
Forum
New Delhi, 27 August 2020
Contempt of Court
RELOOK INTO LAW
NEEDED
By Dr S. Saraswathi
(Former Director,
ICSSR, New Delhi)
Controversies over the contempt of court law
will go on irrespective of the final scene in the Supreme Court in Prashant
Bhushan case. For, the case has raised the crucial question of the need for
relook into the law, which is more important than the proceedings of this
particular case. There are strong arguments
both for and against the law. The offence -- wherever it is considered as one --
is possible only in free democratic States where there is freedom of speech.
If there is a law, courts have to apply the
law and judge according to the merits of the case which is in the domain of
judges. Lay public can debate whether such a law in relevant today, and if
considered necessary, review the details and provide suggestions for amendments
to make it specific, clearer, and appropriate to our times. Bhushan has done a
service in reopening the debate.
Contempt of court is the offence of being
disobedient to or disrespectful toward a court of law and its officers by
behaviour that opposes or defies the authority, justice, and dignity of the
court. Same behaviour towards a legislative
body is treated as contempt of Parliament.
Law of contempt originates from the ideals of
supremacy and independence of the judiciary. It may be traced to ancient
kingdoms and treatises like Arthashastra,
but in its present form, it is rooted in common perception of holding justice,
judges, and judicial institutions beyond reproach.
The law is intended to prevent indignities to
a court of justice and to maintain and uphold the dignity and respect of courts
in the eyes of the public. It is intended to preserve the authority of the
judicial process, judiciary, and court reputation. Courts as the ultimate
authority to maintain the rule of law, undoubtedly the institution and
concerned personnel deserve due respect.
Contempt includes remarks and allegations made against judges.
Public confidence and trust in courts is very
important for the justice system. Justice Marshall has elucidated this in the
US by his observation that the “power of judiciary lies neither in
deciding cases, nor in imposing
sentences, nor in giving punishments for its contempt, but in the trust,
confidence and faith of the general public”.
It is this trust and confidence that is
targeted in contempt cases. Common people are not likely to have knowledge of
law and justice, but are prone to be carried away by personal and derogatory
remarks, hate speeches, charges of corruption, and insinuations. With more and
more easier access to mass communication, it is possible to reach countless
people in a clique. As human nature relishes offensive remarks better than
compliments about others, there is need to put some limit to freedom of speech
so that issues, processes and decisions and not vague accusations against
personalities and institutions are circulated.
Contempt of court is different from criminal
defamation increasingly occurring today which can be initiated by an aggrieved
person against the accused. Contempt of court can be initiated suo moto by the Supreme Court or any
High Court or on a motion by Advocate-General/Law Officers or on a reference
made to High Court by a subordinate court.
Article 129 of the Constitution provides
powers to the Supreme Court to punish an offence aimed at tarnishing its image.
The victim is the judge. Similar power is given to High Courts under Article
215. Article 142(2) grants the Supreme Court power to issue any order for
securing the attendance of any person or discovery and production of any
documents, or investigation or punishment of any contempt of itself. Contempt
law has its roots in the Constitution itself.
In India, there is a specific Contempt of
Court Act of 1971, which recognises three types of contempt. Civil contempt is
disobedience to any judgement, decree, direction, or order of a court. Criminal
contempt is publication of any matter which scandalises or lowers the authority
of any court, or interferes in due course of judicial proceedings, or obstructs
administration of justice in any other manner. Even if the publication tends to
scandalise, or interfere, or obstruct judicial process, it may be treated as
contempt of court. The offence is disrespect to legal authorities or
disobedience of court orders.
The first Contempt of Courts Act was passed
in India during British rule in 1926 and was amended in 1937. After
independence, the first contempt law was adopted in 1952. The existing Act was made in 1971 and amended
in 2006 which accepts truth as a valid defence if made in public interest. The
preamble to the 1971 Act is clear that it is not the dignity of individual
judges that the Act seeks to protect, but the administration of justice and
judicial proceedings. Rendering justice
is always respected as a sacred responsibility.
Contempt of court is no longer considered a
punishable offence in many countries. “A silenced bar cannot lead to a strong
court”, said Lord Atkin in Britain in 1936. Long disuse led to practical
abolition of contempt law in England as insignificant. However, scandalising
the courts is still punishable under other Acts like the Public Order Act 1986,
Communications Act 2003. In Australia, a
judge remarked that as long as the defendant is genuinely exercising a right of
criticism and not acting in malice, he or she is immune. It makes the intention
of the defendant important in deciding contempt cases. In the US, comments on
judges or legal proceedings are not barred by contempt law. The first amendment
of US Constitution forbids several restrictions on freedom of expression on the
principle that debate on public issues should be uninhibited, robust and wide
open.
The Law Commission’s Review on Amendment to
Contempt of Court Act in its 274th Report in 2018 refers to the
constitutional provisions and has declared that any amendment to the law will
not impact the power of the SC to punish for contempt of court as these powers
are independent of statutory provisions.
The need to balance two very important
principles of democracies -- freedom of expression on the one hand and free,
fair, and fearless justice on the other -- is the reason for treating contempt
of court as an offence as well as the aim of the law against contempt. As
important as scrutinising the message emanating from the defendant and its
possible impact, the physical expression, body language, the tone or style of
conveying the message to the audience and the social circumstances become
important in deciding contempt. It is indeed a tough job for the court to
distinguish between constructive comments meant for better justice system and
destructive criticism with potential to weaken faith in the system or impair
administration of justice.
Freedom of speech is aggressively asserted
today giving more and more scope for offences like defamation and contempt of
court. Facts and circumstances must be taken into account and comments made
with malice towards none should be protected. For, words have contextual
meaning and purpose. A relook into the law is needed to protect freedom and
prevent scandal. ---INFA
(Copyright,
India News & Feature Alliance)
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