Contempt of court

This article is written by S A Rishikesh, from the Institute of Legal Studies, Shri Ramswaroop Memorial University, Lucknow. This article provides an insight into the famous instance when Gandhi refused to apologise and cheerfully faced contempt proceedings. This case was brought into the limelight by the statements made by Prashant Bhusan and understanding what constitutes contempt of court.

Introduction

Supreme Court lawyer and activist Prashant Bhusan was convicted for contempt of court for his tweets directed to the former Chief Justice of India SA Bobde and the Supreme Court. The three-judge Supreme Court bench gave Mr Bhusan three days to apologise for his tweets and end the contempt proceedings. But, Mr Bhusan refused to apologise and issued a fresh statement which said apologising for his tweets which he believes to be true would be ‘a contempt of his own conscience’. He further added offering an insincere apology would amount to an insult to the institution that has very high esteem in his eyes. 

Prashant Bhusan’s supplementary statement was very carefully worded; a principled and constructive response, wherein he said, “I can only humbly paraphrase what the Father of the Nation Mahatma Gandhi had said in his trial: I do not ask for mercy. I do not appeal to magnanimity. I am here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the court has determined to be an offence, and what appears to me to be the highest duty of a citizen.” This statement is paraphrased from the original statement of Gandhi when in the year 1919 the Bombay High Court started a contempt proceeding against him.

Contempt of Court

Constitutionalism means everyone remains within their limits. Article 19 of the Constitution of India gives freedom of speech and expression but it is not absolute there are restrictions on this right, mentioned in Article 19(2). Contempt of court is a reasonable restriction; an exception to the freedom of speech and expression. Contempt of court in simple words means ‘showing disrespect to the Court either through words or actions’. The power to punish for contempt is given to the Supreme Court under Article 129 and to the High Court under Article 215

The Contempt of Courts Act, 1971 explains two kinds of contempt:

  • Civil contempt 
  • Criminal contempt

Civil contempt

Section 2(b) of the Contempt of Courts Act, 1971 defines civil contempt.
Illustration: If a court order asks A to pay a penalty of INR ten thousand or if a court judgement asks A to pay INR ten thousand damages to Z and A denies to do so. 

Police officer A has received an order to release prisoner Z from the jail. But A disrespects the court’s order by not releasing Z.

Will it amount to contempt? The answer is yes. In both cases A has committed civil contempt of court. So civil contempt means willfully disobeying any judgement, decree or order of the court. The word willfully here means voluntarily. This definition is simple even a person of ordinary prudence, with no background knowledge of the law can decide what actions will constitute civil contempt. Civil contempt can be punished with a six months jail or a fine of up to INR two thousand or both.

Criminal contempt

Section 2(c) of the Contempt of Courts Act, 1971 defines criminal contempt. Any form of published words that scandalises or lowers the authority of the court, or interferes with or prejudices any judicial proceeding, interferes in or obstructs the administration of justice in any manner, constitutes criminal contempt. 

Illustration: If A talks loudly during a court proceeding thereby disturbing the proceeding and after even being asked to keep quiet A continues to do so. 

A has committed criminal contempt. Criminal contempt is also punishable with a six months jail or a fine of up to INR two thousand or both.

Background of the Gandhi case

This case dates back to 1919, the same year in which the Rowlatt Act was passed. The anti-Rowlatt Act agitation was taking place in the entire country. On April 13, 1919, the British troops opened fire at the unarmed Indians, who had assembled peacefully in the Jallianwala Bagh. An estimate of 379 people was killed in this incident leaving behind more than 1200 people injured. It was followed by Martial Law in Punjab and thousands were arrested.

Indian National Congress and Mahatma Gandhi reacted very strongly to it and began making a ground for Satyagraha and the non-cooperation movement. On April 22, 1919, the District Judge of Ahmedabad (Mr. B.C. Kennedy) wrote a letter to the registrar of the Bombay High Court. The letter had the names of two barristers Kalidas J. Jhaveri and Jivanlal V. Desai, who had signed the ‘Satyagraha pledge’. The pledge among other things mentioned refusing to obey the Rowlatt Act and other such laws. Mr Kennedy believed that signing such pledges was inconsistent with their duties as advocates.  The result of this letter was a notice that was issued against the advocates on July 12, 1919, and eventually, on October 15, 1919,  the court held that the ‘Satyagraha pledge’ signed by the accused advocates was inconsistent with the performance of their duties to the court and the public. 

Mohandas Karamchand Gandhi was the editor and Mahadev Hirabhai Desai was the publisher of a weekly newspaper named Young India. Contempt proceedings were started against them because on August 6, 1919, they published the letter written by the District Judge Mr. Kennedy on the front page under the heading “O’Dwyerism in Ahmedabad”. Page 2 of the newspaper contained an article with the heading “Shaking Civil Resistors”. It contained comments on the letter. 

The charges framed against Mr Gandhi and Mr Desai were that they had published a private official letter which was part of a proceeding then pending in the Bombay High Court and comments which were made by them in their newspaper in the second article were on that pending case.

The trail

On October 18, 1919, the registrar of the Bombay High Court acting on the directions of the chief justice asked the editor of Young India Mohandas Karamchand Gandhi to appear before the chief justice on October 20 at 11 o’clock in his chamber to explain publishing the letter and the comments made in the article published in his newspaper. To this Gandhi replied that he would be unable to attend His Lordship as he was going to Punjab and asked if a written explanation would do. 

To this, the registrar replied that the Chief Justice does not want to interfere with your pre-scheduled plans and is therefore ready and willing to accept a written explanation. The explanation as to why the letter and the comments thereon were published without the permission of the court at the time when proceedings were pending in the court in connection with the said letter. 

On October 22, 1919, Gandhi replied through a letter that the letter in question came to him in the ordinary course, and he understood that the giver is giving him the letter in a proper regular and open manner. He in no way knew that the letter was private, nor by reading the contents of the letter he did think so. As a journalist, he believes that he was within his rights in publishing that letter and commenting on it. He believed the matter was of public importance and one that calls for public criticism. 

On October 31, 1919, the registrar wrote back to Gandhi stating that the Chief justice found the explanation unsatisfactory; however, the Chief Justice understood that he was unaware of the fact that he was exceeding his right as a journalist when he published the letter and the comments thereon. The letter also contained an apology format which the Chief Justice has asked to publish in the next edition of ‘Young India’ to dispose of the matter. 

Gandhi replied on December 11, 1919, apologising for the delay caused in replying. Concerning the letter, he informed that he regretted that he was unable to follow the advice of the Chief Justice, and will not be printing the suggested apology. He once again went on to explain his actions and also mentioned that in his opinion he was doing useful public duty. He ended the letter by saying ‘Should this explanation be not considered sufficient by his lordship, I shall respectfully suffer the penalty that their Lordships may be pleased to impose upon me.’

Finally, Gandhi and Desai were served the show cause notice by the High Court. Both of them appeared in person on February 27, 1920. 

Petitioners argument 

The petitioner finds respondents guilty of contempt of court, on two grounds. By publishing the letter and comments thereon in the Young India newspaper respondents scandalized Mr Kennedy and secondly, it should be seen as an attempt to obstruct the path of justice. Publication of the letter while the matter was still pending before the court amounted to contempt of the court. 

Respondents argument

Gandhi stated that he does not wish to argue the legal points but added that he was not convinced with the arguments of the petitioner. Moreover, he said he had commented on the District Judge not as a judge, but as an individual. Regarding the explanation for his conduct, he said that he had already written a letter to the registrar on December 11, 1919, which explained why he published the letter. He regrets not following the advice of the Chief Justice of publishing an apology. He was unable to act on the advice of the Chief Justice because he believes he has neither committed a legal or moral breach by publishing that letter and comments thereon.

He said,I am sure that this Honourable Court would not want me to tender an apology unless it is sincere and expresses regret for an action which I have held to be the privilege and duty of a journalist. I shall therefore cheerfully and respectfully accept the punishment that this Honourable Court may be pleased to impose upon me for the vindication of the majesty of the law.’ At last, he added that Mr Desai published the letter on his request and advice. 

Mr Desai in his statement said that he has read the statement submitted by his editor and he associates himself with that statement. He shall cheerfully and respectfully abide by any penalty awarded to him by the court. 

Judgment 

The case was heard by the three judges bench of Mr Justice Marten, Mr Justice Hayward, and Mr Justice Kajiji held that the publication of the letters and the comments thereon amounted to contempt. 

The judges concluded that they have vast power, in this case, to impose a very severe fine as they think fit or send the person to prison for the time they judge right. But as their powers are large they need to use them with discretion, keeping in mind that they have to use these powers for administering justice and for the public good. In the present case the accused had expressed their inability to apologize but at the same time have expressed their acceptance for any award as deemed fair by the court. It is certain that the editor, Mr Gandhi did not realize that he was breaking the law. Keeping all this in mind, the court dismisses this contempt proceeding by ‘severely’ reprimanding the respondents and cautioning them for their future conduct.

Contempt in other countries

This case is over a hundred years old. A lot has changed since then; the law of contempt of court has become obsolete in many foreign countries. Most liberal democracies see this law as anarchic. The United States of America has no contempt of court laws. While countries like the United Kingdom and Canada have limited this right. It is only used when there is a real and grave danger to the administration of justice. This can very well be understood by the following examples: After the Spycatcher judgement (1987), A cartoon of Lord Sidney Templeman was published in the Daily Mirror titled ‘You old fools’. Lord Templeman refused to initiate a contempt proceeding saying he is old is true and if he is a fool or not is the matter of perception, well he believes he is not. Similarly, no contempt proceedings were initiated against the Daily Mail article titled ‘Enemies of the people’ published after the Brexit judgement(2016).  

Conclusion

Unfortunately, things are not the same in the world’s largest democracy. Constructive criticism is the most important aspect of democracy. However, a large number of contempt cases show judges have failed to keep a broad mind on this issue. It is high time that judges adopt a more liberal view in contempt proceedings.

References


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