Contempt proceeding
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This article is written by Miheer Jain, pursuing a Certificate Course in Advanced Criminal Litigation and Trial Advocacy from Lawsikho.

Introduction 

The recent case of contempt held against Advocate Prashant Bhushan appears to have invited significant limelight due to the bizarre observation of Supreme Court by holding the advocate in contempt and reprimanding him with a punishment of Re 1 fine failure and default to which would amount three months imprisonment or bar from practising law for three years. 

On August 14, the Supreme Court sentenced Prashant Bhushan to criminal contempt for two tweets criticizing the judiciary. The two tweets mentioned were released in June of this year. The first tweet pertained to the CJI Bobde riding a luxury motorcycle and, through the other tweet, Bhushan gave his opinion on the role of the last four CJIs in the state of affairs in the country.

The Court initially ruled August 20 as the date of the sentence in Bhushan’s case. However, the Court delayed the hearing until August 25 after the August 20 hearing in order to give Bhushan the opportunity to apologize unconditionally. However, Bhushan refused to apologize but made an additional statement, and the decision was postponed after the results were evaluated by the Court. 

The bench also noted that this gave Bhushan several opportunities to express regrets for his derogatory statements. He also stated that Bhushan gave publicity to the events that circumvented the proceedings through the media. Lastly, by ruling Rs. 1 fine, he said: “Court’s decision should not be preempted by the publication of opinions in the press.”

Issue

The question which this blog seeks to address is whether the action of Mr. Bhushan was so grave that it warranted the Hon’ble Court to take out its precious time and prosecute him and without any repent, let him suffer from a symbolic fine of Rs. 1.

In order to come to a non-conjecture-based conclusion, an understanding of Contempt of Court would be really important. Contempt of Court as a concept tries to protect institutions of the judiciary from unwarranted and motivated rebuke and criticism and act as a concrete legal mechanism to penalize those subdue this rule of law and its authority.

Historical background

This principle evolved in England wherein the King in order to protect his judicial power and the sanctity of his rulings devised this common law principle that disobedience to the King or his rulings would amount allegiance against the state’s interest and therefore would be penalized. This was supplemented by a panel of Judges who would sit and decide such rulings in King’s honor and name.

Defences in case of civil contempt

If a person is charged with the allegation of civil contempt then following are the defences which can be used:

  • Lack of knowledge: If the accused did not have knowledge of the order passed by the Court while committing contravention then the Court would ask the successful party whether or not the certified copy was served to the opposite party or not.
  • Not a willful act: It can be pleaded by the person accused of contempt that while he was committing such action, it was not done willfully and it happened by the virtue of being an accident or the consequences of his action were beyond his control and foreseeability. 
  • Multiple interpretations possible in order: If the order passed by the Court constitutes multiple interpretations then the compliance with the same would become difficult. Therefore, if the accused exercised reasonable action which is not in coherence with the order might not be considered as contempt if his action was subject to some other reasonable interpretation of the Court’s order.
  • Impossibility of compliance: If the order of the Court is not possible by virtue of it being beyond reasonability and out of control of the accused.

Constitutional support

India had laws of contempt before the independence era. In addition to the early higher courts, some magistrates also had such laws. When the Constitution was adopted, contempt of Court became one of the restrictions on freedom of expression and expression. 

Separately, article 129 of the Constitution gives the Supreme Court the power to punish contempt of its own and may do so through laid rules. Section 215 gives the High Court appropriate powers. Contempt of Court Act 1971 confirms these ideas as law and provides statutory backing to the idea behind the forefront. There are two different types of contempt, one being criminal and other one being civil. The criminal aspect of contempt deals with an individual attempting to lower the authority of the court and civil disobedience towards a court order by willfully breaching its directives.

In the case of Brahma Prakash Sharma vs. State of Uttar Pradesh, the Supreme Court established a premise that an actual interference with the administration of justice need not be projected and a mere defamatory statement which is likely to interfere with the administration of justice would be enough.

Nevertheless, in the case of PN Dua vs. Shiv Shankar, the Supreme Court also said that mere criticism of the Court would not amount to contempt of Court.

Foremost in Baradakanta Mishra vs. The Registrar Of Orissa High Court, the Court said that if vilification of a judge is left to his private sphere of life, then the Court would have no power to rule in favour of contempt of Court. It is because the objective of the contempt of court jurisdiction is not to uphold the dignity and image of judges in their personal lives.

Limitation

Just like most of the other laws, the contempt of court as initiation is also covered under Limitation of time. Pursuant to Section 20 of the Contempt of Court Act, 1971, no court has the authority to initiate contempt proceedings in the following two conditions:

  1. After expiration of one year from the date of commission of contempt.
  2. Or if the proceedings are on his motion.

Foreign jurisprudence

British Judge Lord Denning had opined in the leading case of Metropolitan Police Commissioner in the year 1969 that though the Court of law has the right to exercise the contempt of court jurisdiction, they shall never use it. The rationale projected was pretty simple, and that was that the judges tend to have some personal interest associated with the contempt hearings. Lord Denning while delivering the judgment said “We do not fear criticism, nor do we resent it”. In the case of King vs. Almon, it was established the principle of scandalizing the court as a part of criminal contempt according to Justice Willmort. According to Queen vs. Grey, it was also established that Judiciary should be open to criticism by outlets of media, nevertheless it should qualify ‘reasonable arguments or expostulation’. 

Even In the US, Justice Hugo Black had opined in the case of Bridges vs. California, 314 U.S. 252 (1941) in the year 1941, that Public opinion in America over the whims and fancies of contempt of Court could not be silenced under any circumstance. Furthermore, it was said that the dignity and sanctity of the Court are not tweaked by free discussions and liberal and modern ideologies. 

Conclusion

The Activist-lawyer Mr. Bhushan has again approached the Court by filing a review petition in the Supreme Court against its judgement to fine him Rs.1 as punishment for committing contempt of Court by ‘scandalizing the court’ with his tweets. 

Under the ambit of dissent and fair criticism, Mr. Bhushan has solicited the support of Bar Council of Delhi in its response to the notice on why he should not be disbarred and has urged and requested the association to stand up for truth and freedom.

It would be interesting in the light of the Supreme Court’s previous judgments on the aspect of Contempt of Court to see what is the aftermath of this review petition. Whether or not opinion that does not concern or interfere with the administration of justice still be held to be under expunction by honorable Court of law. 

Foremost will the facet of fair criticism bear the justification of merit or confidence of the society? 

References

  1. P.N. Duda vs. V.P. Shiv Shankar & Others
  2. R. Rajagopal vs. State of T.N.
  3. In Re: Arundhati Roy
  4. Indirect Tax Practitioners’ Association vs. R.K. Jain
  5. Justice Karnan’s Case W.P.(C) 6278/2017
  6. Attorney-General vs. Times Newspapers Ltd, [1973] 3 W.L.R 298
  7. Noorali Babul Thanewala vs. K.M.M. Shetty, AIR 1990 S.C. 464
  8. Jaswant Singh vs. State of Himachal Pradesh, AIR 1991 SC 1171

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