This article is written by Adv Nazir Ah Bhat
The contempt law in India though already in vouge had assumed significance and public attention in recent times. It’s desirable prior to further elaboration to discuss chief features and over time developments in the said law.
Earlier the contempt law was considered highly inconsistent and inadequate while seeking its relevance with other constitutional guarantees and rights given to citizens. Therefore, it was thought pertinent to revisit and review the said law to make it more adaptable and appropriate, considering the other legal factors of the Constitution. A review committee of experts was set up in 1961 under the supervision of Mr. HN SANYAl, then additional solicitor general of India to revisit and review the contempt laws.
The committee made recommendations and other observations to make the contempt laws more vibrant and commensurate with other laws considering the constitutional guarantees of individual liberties and free expression. Eventually, the government of India accepted by and extensive all said recommendations. Consequently, Contempt of Courts Acts 1971 came to be passed which as on date is in vouge and operational law in the said field.
Notwithstanding, the passing of the said aid act, one can fairly understand that whole act. It explains the procedure to initiate and conclude the contempt proceedings including punishments but any specific definition of what constitutes “contempt” has not been given.
What exactly is contempt or what constitutes contempt is somewhat not objectively defined in the Contempt of Courts act 1971, but the procedure for conducting the contempt trial and punishments are described in the act. Contempts broadly speaking are two types, one is civil contempt in which orders of the concerned court are alleged to have been violated, ignored, bypassed, or in totality contemptnor despite knowledge of court orders had acted converse to it. The concerned court treats it as an interference into the justice delivery system together with undermining the authority of court or law as such proceeds against the guilty.
Another contempt is criminal contempt which is somewhat severe than the former. Usually, it is taken as the allegation against the judge or the functioning of the court which is believed to affect directly the integrity of the presiding officer with consequent effects on public confidence and trust so reposed in judge/ courts to seek justice.
However, this type of contempt is more or less subjective in nature which requires personal satisfaction of the presiding officer that certain act of contempt nor in a real sense amounts to contempt.
It is apt to mention here section 2 with allied sub-clause a, b, and c of Contempt of Courts act 1971 on critical reading of said definition and in its collective import of interpretation three principal ingredients must be there as to constitute contempt of court ordinarily. It holds that scandalising or tends to scandalise the authority of the court, prejudices, or interferes, tends to intrude into the administration of justice, or obstructs or tends to obstruct into the administration of justice are the ingredients to constitute the commission of contempt. The criminal contempt has a sharp edge to carry on which says any publication in words or spoken, by signs or by visible representation or otherwise, having anyone or all above-discussed ingredients present constitutes criminal contempt.
In India where the constitutional guarantee on freedom of expression has vast coverage which is inclusive of other personal rights like the right to liberty etc., do take enough care to rationalise the consequences of contempt proceedings without offending any of such constitutional guarantees. The serious consideration is the subjective satisfaction of the judge to adjudge the ingredients constituting the criminal contempt.
Commenting with fair criticism on judgments though, immune from contempt yet is always court Choice. Press comments, signs, or visible representation not having specific explanations are quite risk-oriented things to attract contempt of court. The offending presiding officer though understandable again assumes contradictions in the assessment of legal accuracy to indict guilty with contempt.
Reasons are quite obvious, as a judge here becomes the judge of his own cause, the judge turns complainant and arbiter to deliver justice in such cases. Still ahead it is not clear if a person of a judge is maligned, would it amount contempt to the person of the judge? Or to court? Relevance to assume the query is visible as the definition of the court is a little broader and inclusive of an advocate being an officer of the court. Though, safeguards are duly provided under section 3 to 7 of contempt of courts act 1971, yet, in this whole process, subjective satisfaction of the judge works too, sharply.
We have had a recent instance of contempt proceedings of advocate Prashant Bhushan. He was charged for having commented on the person of honourable Chief justice of India while his lordship was shown on some foreign-made scooter. Another tweet attracting contempt was some of the earlier period. Both were taken into cognisance without the prior consent of the Attorney General of India, which is a condition precedent as a constitutional requirement; nevertheless, the Supreme Court has inherent power to initiate contempt on suo moto basis.
The said proceedings went through public observations. The record was in the public domain that how allegation against higher judiciary would or would not cause a contempt of court. The contempt act under section 6 states that no person is guilty of contempt of court if a comment is made fairly against the subordinate judiciary. But the same does not hold good for the higher judiciary. Of late we had noticed that the Supreme Court indicted some retired high court judge of Allahabad High Court for granting an unwarranted concession to medical colleges, even, Justice Karnan was found guilty of contemptuous behaviour and punished etc. Yet, in a private capacity if the judge is found in the unwarranted act, can any comment on it would bring the person concerned guilty?
It is to be seen how come private act of judge would involve the court in it, second, if judge being complainant, he is deciding the case?
Third, taken court as a whole being in contempt then trail even by any judge of the court would also include the unlawful proposition that judge of his own cause? All these shortcomings need to be seen in relevance to contempt laws.