This article has been written by Aadarsh Singh and Himanshu Mishra, 4th-year Students, National Law University, Delhi.

Abstract: The Jurisdiction contempt of court is essential for the functioning of courts and delivery of justice. However, many a time overuse of this provision is suspected and alleged. This article attempts at, with the help of an analysis of court proceedings and the language used in the course of such proceedings, to decipher the basic issues involved and the concepts involved.

Background

The jurisprudence of contempt of court arose in the 18^th Century^[1] in common law. It perhaps is reminiscent of the court being a king’s court and the concept that the king can commit no sin or crime.

However, in the modern-day courts this concept is still found useful as The proceedings of a court need a certain amount of order and decorum in the first place, so that the business of the court can be conducted in an uninterrupted and orderly manner, and further, if the court is not respected, and rather it is held in contempt then there would be no value of its decisions. We can argue that enforcement is not the work of a court but rather of the police administration, but courts do have limited jurisdiction in this regard in the form of contempt of court proceedings. This is very lucidly reflected in R. V. Vermette[2] in these words:

‘For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance.’

The emphasis upon the need of promptness in contempt proceedings[3] in Keeber v Keeber[4] only goes on to highlight the importance attached with contempt jurisdiction of the courts by some jurists.

It can be argued that this jurisdiction is justified, with safeguards. The judicial thinking reflected in Attorney General v Leveller Magazine[5] where it was held that ‘It is justice itself which is flouted by contempt of court, not the individual judge who is attempting to administer it.’ appears to be clear in upholding the judicial process and not the individual dignity of the judge.

The Scales of Justice

Despite of this giving due consideration to the freedoms at stake the Supreme Court has advised caution in Jhareswar Prasad Paul[6] in the following words: ‘The power is special and needs to be exercised with care and caution. It should be used sparingly by the courts on being satisfied regarding the true effect of contemptuous conduct.’ In this case the court went ahead further in defining and restricting the contempt jurisdiction to avoid its misuse in the following words: ‘The contempt jurisdiction should be confined to the question whether there has been any deliberate disobedience of the order of the court and if the conduct of the party who is alleged to have committed such disobedience is contumacious.’                                                                            

Further, contempt of court in essence should not be contrary to the right of freedom of speech and also it should not be used for defending the judges’ individual egos, or even esteem. On the other hand as held in M.R. Prashar v. Dr. Farooq Abdullah[7] the court ruled that ‘The liberty of free expression is not to be compounded with a licence to make unfounded allegations of corruption against judiciary.’ This demonstrates an attempt to attain the mean position of equity where on the one hand freedom of speech is protected and on the other dignity and freedom of the court to function, and its functionaries is upheld. Likewise In re Ajay Kumar Pandey[8] it was observed:

 ‘fair comments, even if, out-spoken, but made without any malice and without attempting to impair the administration of justice and made in good faith in proper language do not attract any punishment for contempt of court. However, when from the criticism a deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute the courts must bitter themselves to uphold their dignity and the majesty of law.’

Which is in continuation of the above attempt of striking a balance between two opposing goals. Again in C.Elumalai & Others[9] the court held that ‘punishing a person for contempt of Court is indeed a drastic step and normally such action should not be taken.’ However, in the same breath the ruling goes on to add that, ‘it is not only the power but the duty of the Court to uphold and maintain the dignity of Courts and majesty of law which may call for such extreme step.’ This reinforces the dilemma outlined above. Likewise in  M. Muthuswamy v P. Kandasamy[10]  Madras High Court while dismissing a contempt petition held it to be a well settled principle of law ‘that if the action taken by the Contemnor are bona fide, without any intention to violate the order of the court, the said action cannot be treated as wilful disobedience as defined in S. 2(b) of the Contempt of Courts Act, 1971. Here the element of intention has been added to arrive at the “balance”.

Definition and types of Contempt of court

In Jhareswar Prasad Paul v. Tarak Nath Ganguly[11] it was observed that ‘The power to punish for contempt of court is a special power vested under the Constitution in the courts of record and also under the statute’.

The Indian law as embodied in the Contempt of Court Act 1971 has in its definition (in Sec-2)[12] recognised two types of contempt of court viz. ‘civil contempt’ and ‘criminal contempt’. The latter has been further classified into two categories: one which has ephemeral effect while the other that causes permanent damage to the institution and the administration of the justice[13].

The judicial interpretation of civil and criminal contempt of court however may show different judicial perspective. For example In Every Women Health Centre Society v Bridges[14] the distinction is very much on the lines of classical definition of civil and criminal law i.e. civil cases involves disputes between individuals while in criminal cases the offence is presumed to be against the state. While in AG v Times[15] the civil contempt is seen as a specific act of violating a competent court’s order, and criminal contempt is a commission of prohibitive wilful interference in the administration of the justice[16].

Jurisprudence of the contempt of court is not new and is not surprising because law is associated with the authority, and to be more than a kangaroo court and dispenser of summary justice it requires people to respect it, as in Indirect Tax Practitioners Assn. v R.K. Jain the court observed that “Faith in the administration of justice is one of the pillars through which democratic institution functions and sustains.” Likewise, in another case[17] the Judge DP Mohapatra observed that ‘The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law, since the respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the democratic fabric of society will suffer if respect for the judiciary is undermined’.

Respect

In summary justice guns are the only justification that follow the whims of a dictator. The other types, or civilian or democratic setup it is very important that justice follows some principles of equity, fair play, Logic and Justification for its actions so that the society in general governed by this administration of justice accepts the court’s ruling or judgments guided by their own concept of right, wrong and justice.

This line of thinking incorporates the concept of ‘respect’. However, this respect is of that abstract entity known as ‘Court’. Which Roughly can be construed as being made up of a building, litigants, defendants, officers (including advocates), ‘procedures’, ‘ceremonies’, and ‘symbols’ of the court and authority personified by the judge. The judge may himself, or herself be the authority for ex. the king, ruler, dictator, or may have assigned authority by virtue of being a representative of the ruler, the constitution, or God.

In light of enunciation it becomes imperative that all these elements of the court must be defended, namely: the defendant, litigant, officers of the court (advocates and judges), procedures of the court, ceremonies and symbols of the court, and the source of the authority.

In theocratic societies where the source of authority of the ruler and the judge is divine there blasphemy laws are very important and they are zealously protected. In the societies where the king is the source of the authority, sedition laws are very important, which can be seen in imperial and colonial setups, likewise where constitution is the authority the basic principles including the freedom of the speech, personal liberties also become important and hence only the procedures of the court are to be guided and defended more zealously for the practical purposes.

In many modern legal systems and specifically in the Indian legal system there appears to be a lack of clear understanding of these principles. In the overall picture of all the systems of legal thinking explored above it would become necessary to defend 3 things, viz. (i) Processes of the court (ii) The human elements involved (iii) The authority.

This sounds very logical and is of course necessary. Further, most of the legal systems of the world ultimately defend these three for the functioning of the legal systems. The problem is not so clear understanding of the inter-relationship between these elements and the paradigm in which they have to be protected. In India the legal system is about democracy believing firmly and vowing in, and having allegiance to the Constitution of India which is seen as the source of all judicial, administrative and executive authority. As discussed earlier in India it is important for us to uphold in any judicial proceeding the dignity of the constitutional provisions including the freedom of speech, dignity of the individual, and also functioning of the court (Art. 19(2), Art. 129, and Art. 215). In this paradigm there should be a crystal clear understanding that the judge is not the ruler, priest, or an agent of the imperial power. We primarily need to protect the judge and all other human elements as citizens. This can also be argued that the judge by virtue of holding a constitutional position, or as a government employee himself or herself becomes a symbol of the constitution. With these concepts we should primarily defend under the contempt of court, the procedures and the proceedings.

In view of this the image of the judge should be that of a citizen first and not of a demigod, or super human being. Reflecting on other aspects the judges must by law be held as a citizen who holds a responsible office, should be addressed in consonance with the spirit of the constitutional article prohibiting titles (Art. 18). It is an anachronism that a judge be addressed as ‘Lord’ or ‘Ladyship’.

Remedies available to a Judge as an individual and as an officer of the court

Although the judge is also a symbol of the constitutional authority but the symbol has to take a secondary role as compared to the fundamentals of the constitution namely equity, equality, and the freedom of speech. As an individual the judge can seek protection against defamation. However, in the case of Bathina Ramakrishna Reddy[18] the court held that

‘Although contempt may include defamation, yet an offence of contempt is something more than mere defamation and is of a different character. When the act of defaming a judge is calculated to obstruct or interfere with the due course of justice or proper administration of law, it would certainly amount to contempt. Attacks upon the judges excite in the minds of the people a general dissatisfaction with all judicial determinations…… and whenever man’s allegiance to the laws is so fundamentally shaken it is the most fatal and dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges as private individuals but because they are the channels by which the King’s justice is conveyed to the people”.

Three Heads

The judge at the same time wearing the three heads, one of the private citizen and individual and the second of the public servant and third as a judge. We have already discussed the balance between judge as an individual and as the judge. However, the other axis namely the judge a public servant and as an officer of the court is also important, as S-186, IPC gives them ordinary protection against obstruction on the discharge of their duties. However, this doesn’t weaken the need for the contempt laws given the very special nature of the court in the justice dispensation system.

This argument has merit, but the risk involved is obvious, and ‘Clear and present danger test[19]’ as practiced in deciding contempt situations in the US is certainly a step forward in the jurisprudence of contempt of court because: (i) It has tried to restrict the scope of the contempt of court jurisdiction, and (ii) It has bypassed the concept of ‘dignity’ and ‘scandalizing’. It may arguably be said that words like ‘honour’ and ‘dignity’ are not only difficult to define, but they can be dangerous, and in many a situations courts are seen defending their dignity under the shield of the contempt laws. This to some may be reminiscent of the defence of ‘honour’.

According to the Universal Declaration of Human Rights, ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[20]’ This way contempt of court jurisdiction has always to be weighed against the issue of Human Right of Freedom of speech.

Freedom of Speech

Krishna Iyer[21] very philosophically expressed his perception on the issue of contempt of court in the following words,

“This shift in legal philosophy will broaden the base of the citizen’s right to criticize and render the judicial power more socially valid. We are not subjects of a king but citizens of a republic and a blanket ban through the contempt power, stifling namely, Administration of justice, thus criticism of a strategic institution, forbidding the right to argue for reform of the judicial process and to comment on the performance of the judicial personnel through outspoken or marginally excessive criticism of the instrumentalities of law, and justice, may be a tall order for change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic government. The judicial instrument is no exception.”

Likewise, Lord Atkin’s[22]says that ‘Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men’. However, there are differing voices, for example, in Sanjiv Datta[23] the court took a contrary stand by saying that ‘The court’s verdict has to be respected not necessarily by the authority of its reason but always by reason of its authority.’

The Supreme Court in Rama Dayal Markarha[24] interestingly declared: “Fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact such fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility” while refusing to consider the case of an advocate who published and distributed a paper alleging waywardness of a judge in convicting an accused without evidence to be ‘fair criticism’. This demonstrates a dangerous mixture of ambiguity of language and subjectivity in interpretation of the words ‘fair criticism’.

In Aligarh Municipal Boards[25] the judgement upholds the contempt proceeding by listing the following benefits: ‘(1) vindication of the public interest by punishment of contemptuous conduct and (2) coercion to compel the contemnor to do what the law requires of him.’

Discussion

Contempt of court is a very vexed issue; it has no simple or clear-cut answers. On the one hand the freedom of speech of an individual is at stake and on the other the proceedings of the court have to be protected against threat, coercion and intimidation for the dispensation of fair justice without fear or favour. The other irresolvable issue is of the judge as a symbol of court’s authority and the judge as an individual. The two roles of the judge are clearly distinct but the individual in the two roles is one. This leads us to the conflict between application of defamation laws for the protection of an individual’s dignity, and application of the contempt of court law for the protection of the sanctity of law. This is a philosophical issue and the boundaries between the individual and the professional are bound to be fuzzy, and dependent upon perception and interpretations.

By this discussion can only hope to enrich the ongoing debate and jurisprudential thinking can inch towards a clearer understanding of the issues in whatsoever small a way, and hopefully this would also lead to a resolution sooner or later in full, or whatsoever small a fraction.

The contempt of court proceedings are not unique in the modern legal-judicial frameworks, as we also have provisions in the Indian Penal Code to provide an atmosphere of fearlessness to public servants in the discharge of their duties so that they can perform without fear or favour[26].

In Jayarajan[27] the following points can be constructed: (i) according to the court dissection of the judgment and arguing against its legality is a fair exercise of the freedom of speech. (ii) a person has the freedom to hold their perceptions on a matter, for example in this case the defendant said that judges live in glass houses and also that the judgment’s worth was less than grass. However, the court refused to accept abusive and pejorative language. This way a line was drawn by the judges, but again this is not an absolute line, it is subjective and can keep shifting from jurisdiction to jurisdiction and country to country. There are benefits of this dynamism of interpretation as it can be argued that human circumstances are so complex and varied that straitjacketed rules with no flexibility can lead to miscarriage of law more often than not, however on the flip side this very flexibility can become a victim of human biases and imperfections.

Conclusion

As we have seen in the fore going discussion, it is very difficult decision due to the considerations of the personal liberties and the societal order that often appear to be in conflict or in opposition of each other that is why arriving at a set formula for resolving all situations where contempt jurisdiction is evoked is illusive if at all possible. The issues of the contempt of court bring us face to face with the philosophical and jurisprudential issues, and have to be resolved on a care to care basis. This doesn’t mean that the jurisprudence of contempt of court should not evolve, or would not evolve. Like it is true for all philosophical issues concerning law, we can say that in dealing with contempt of court cases current societal, beliefs, norms, conditions should be considered. Globalized human society as a singular entity and individual societies are moving towards the consensus of a world where human individual have greater autonomy, rights and dignity. In this perspective focus should be given a precedence over ‘dignity of court’, but not blindly. Contempt of court jurisdiction appears to be essential and need to be applied sparingly, with greatest caution and in cases where the court purposes of this jurisdiction lie. All the superfluous cities have sediment upon the basic concepts of this jurisdiction must be dusted and removed.

Endnotes

[1] Joseph H. Beale’s, Contempt of Court Criminal and Civil, 1908, 21 Harv. L. R., p. 161

[2] R v Vermette [1988] 1 S.C.R. 985

[3] Contempt proceedings should be dealt with swiftly and decisively and adjourned only where there was a real risk of serious prejudice which might lead to injustice.

[4] [1996] 1 FCR 199

[5] Attorney General v Leveller Magazine [1979] AC 440

[6] Jhareswar Prasad Paul v. Tarak Nath Ganguly, [2002] 5 SCC 352

[7] M.R. Prashar v. Dr. Farooq Abdullah, [1984] 1 Cr LJ 433

[8] In re: Ajay Kumar Pandey, AIR 1997 SC 260

[9] (C.Elumalai & Others v. A.G.L.Irudayaraj and Another, AIR 2009 SC 2214

[10] M. Muthuswamy v.  P. Kandasamy, SCC Online 2012 Mad 3488

[11] ibid8

[12] 2. Definitions – In this Act, unless the context otherwise requires – a) “Contempt of court” means civil contempt or criminal contempt” b) “Civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. c) “Criminal contempt” means 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- d) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or i. Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or ii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

[13] Delhi Judicial Service Association v.  State of Gujarat, [1991] 3 SCR 936

[14] [1990] 54 BCLR 273

[15] [1991] 2 All ER 398

[16] ibid15

[17] ibid8

[18] Bathina Ramakrishna Reddy v. The State of Madras ,AIR1952 SC 149

[19] Schenck v United States [1919] 47 US 249

[20] Universal Declaration of Human Rights, Art-19

[21] Baradakanta Mishra v. The Registrar of Orissa High Court [1974] 1 SCC 374

[22] Lord Atkin in Ambard v Attorney General of Trinidad & Tobago [1936] UKPC 16, [1936] AC 322

[23] In Re:Sanjiv Datta [1995] 3 SCC 619

[24] Rama Dayal Markarha v. State of Madhya Pradesh, AIR 1978 SC 921

[25] Aligarh Municipal Boards and ors. v. Ekta Tonga Mazdoor Unions, AIR 1970 SC 1767

[26] S.186, IPC. ‘Obstructing public servant in discharge of public functions. —Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.’

[27] M.V Jayarajan v. High Court of Kerala & Anr, SCC OnLine 2012 Mad 3488

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