CONTEMPT OF COURT: CRIMINALIZING FUNDAMENTAL RIGHTS?

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW,

RANCHI

RESEARCH PAPER
ON

CONTEMPT OF COURT: CRIMINALIZING FUNDAMENTAL RIGHTS?

SUBMITTED BY – SUBHASHNI KUMARI SUBMITTED TO – DR. RABINDRA

PATHAK
SEMESTER – V , SECTION - A ASSISTANT PROFESSOR
ROLL NO. - 778 JURISPRUDENCE
 CONTEMPT OF COURT: CRIMINALIZING FUNDAMENTAL RIGHTS?

INTRODUCTION

Contempt in simple words means disrespect, dishonor, disdain and disobedient. Dishonoring and
disrespecting the state authority attracts Contempt in legal world. It can be defined as an act of
disobedience towards legislative or Judicial Body or the members or the parties connected
thereto. This concept gives the power to the authorities to punish the person who willingly fails
to respect the Legislature and Judiciary.

The phrase ‘Contempt of Court’ has been a well- known expression in English Law from the 12 th
Century. Before this article further delves into its long history, it wants to convey that the term
“Contempt of Court” has been defined by Lord Hardwicke L.C in 1742. One of his lines of
Contempt of Court was
“…one of the kind of contempt is scandalizing the court itself…1 Halsbury’s Law of England
defines the phrase as “Any act done or writing published which is calculated to bring a court or
a Judge into contempt, or lower his authority, or to interfere with the due course of Justice or
the lawful process of the court is a contempt of Court.”2
The court all over the world has reiterated that the purpose of the concept of contempt is to
uphold the majesty and dignity of the Court of law so that people obey the orders and decisions
of the court without any fail and stop any possibility of disdaining the image of the court. Those
fails to do so have to pay the price of their acts.

The term has direct relation to the two most important Human Rights: Freedom of speech and
expression and Right to personal liberty. Whether the Rights of the people hold that power to
break the protective shield of the Judiciary and get preferred over the Expression ‘Contempt of
Court’ or still the protective shield of judiciary is strong enough to suppress the fundamental
rights in lieu of protecting and upholding the dignity and majesty of the court? This article will

1
Re: Read v. Huggonson, (1742) 2 Atk.469.
2
Halsbury’s Laws of England (3rd ed. Vol.8) pp. 7.
 CONTEMPT OF COURT: CRIMINALIZING FUNDAMENTAL RIGHTS?

analyze the complete web of tangle between the Fundamental Rights of People and the concept
of upholding the majesty in the democratic country with reference to the present social milieu.

HISTORY OF CONTEMPT POWER

The origin of bestowing power to the court to punish for contempt has been traced back to the
bygone era of England and the crown. It had begun in order to ensure the efficiency and dignity
of and respect for the governing sovereign. It is the product of the time when “Might is always
Right.” The law of contempt is not law of men but is law of kings. It is not the Vox Populi i.e.
opinion of the majority which the representative legislates but have derived from the trace of
divine law of kings. The kings were called the Vicar of God. 3 The king need to be obeyed,
respected and cooperated as the disobedience to the Vicar of God was considered sinful and
punishment was associated to curtail such sinful acts.

As the societies get more complex in nature, the kingly government started delegating their
powers to their representatives. The courts, then, of early England functioned on the behalf of the
king. So contempt of such king’s court was tantamount to the contempt of the Divine King itself.
With further complications of the societies and maturity of the contempt power bestowed on the
judiciary, this power gradually becomes inherent to the courts. 4

CONTEMPT OF COURT: AN INDIAN DEVELOPMENT

The contempt law in India was in existence even in the pre-independence period. The three High
Courts of Calcutta, Bombay and madras which were established were all had inherent contempt
power. In the case of Re: Abdool and Mahtab5, Peacock C.J upholds the validity of contempt
power ofcourt in following words:

“..there can be no doubt that every court of record has the power of summarily punishing for
contempt…”

3
FIGGIS, The Divine Right of Kings 38-65 (2d ed. 1922).
4
RONALD GOLDFARB, The History of the Contempt Power, Washington University Law Review,1 (Vol.1961)(1961).
5
(1867) 8 W.R. (Cr.) 32.
 CONTEMPT OF COURT: CRIMINALIZING FUNDAMENTAL RIGHTS?

The Contempt of Court Act, 1926 was the first enactment of the contempt of court. The section 2
of the Act conferred contempt power on all the High Courts. Because of the incompetency of the
Act to handle the situation, the Act of 1926 was replaced by the act of 1952 which took a very
different track from 1926 Act. It includes the Court of Judicial Commissioner in the definition of
High Court. Gradually the power of contempt of court gets penetrated to the roots of the judicial
system from three High Courts in 19 th century to every High courts and Subordinate Courts
inclusive of Court of Judicial Commissioner in 20th century.

On April 1, 1960, a bill was proposed in the Lok Sabha which aims to consolidate and amend the
law relating to the contempt of court. To observe the uncertainty of law in the light of the
constitutional and societal changes, the government appointed a special committee in the year
1961, under the chairmanship of Shri H.N Sanyal, the then Additional Solicitor General of India.
The committee submitted its report in 1963 and the Contempt of Court Act, 1971 was enacted
out of this report. This repealed the previous Act of 1952. The Act of 1971 includes the
definition of Contempt of Court which in earlier acts was left undefined, unstructured, uncertain
and unsatisfactory. 6

Finally, in 2002, the National Commission to Review the Working of the Constitution
recommended for the introduction of truth as a defense of justification for contempt and rational
given behind such introduction was that it would be ironical to exclude the truth a valid defense
for justification in case of contempt of court, despite the fact that the court halls have emblems
manifesting the motto of ‘satyamev jayate’ in High Court and ‘yatho dharm statho jaya’ in the
Supreme Court.7

CONSTITUTIONAL BACKING

The Contempt of Court Act, 1971 is not a Substantive statute because it is not the source of
‘power to punish for contempt’; instead it is a procedural statute that regulates the enforcement
and regulation of such power. 8 The real source of contempt power to the courts has been derived
from the Constitution itself via Article 129 and 215 of the Constitution. Article 129 explicitly
mentions that “the Supreme Court shall be a court of record and shall have all the powers of such
6
Law Commission Report, Report No.274
7
Ibid.
8
Ibit at 54
 CONTEMPT OF COURT: CRIMINALIZING FUNDAMENTAL RIGHTS?

a court including the power to punish for contempt of itself” and the Article 215 vest the same
power to all the High Courts. According to the constitution of India, Supreme Court and High
Court are court of records their acts and proceedings are enrolled for a “perpetual memory and
testimony”9 together with Article 129 and 215, the another provision is Article 142(2), which
states very clearly:

“…(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme
Court shall, as respects the whole of the territory of India, have all and every power to make any
order for the purpose of securing the attendance of any person, the discovery or production of
any documents, or the investigation or punishment of any contempt of itself.”

Therefore, considering all the provision, the Supreme Court and High Court are granted power
from the Constitution itself. To further safeguard the power of the court, the constitution brought
the contempt of court as an exception to the Right of freedom of speech and expression and
makes it fall under Article 19(2).

IS CONSTITUTION NURTURING THE DRACONIAN PROVISION?

Under section 2 of the Contempt of Court Act, 1971, the ‘contempt of court’ has been
categorized as Civil Contempt and Criminal Contempt. The Civil Contempt means willful
disobedience to any judgment, decree direction, order, writ or other process of a court or willful
breach of an undertaking given to a court 10; whereas, the Criminal Contempt means the
publication (whether by words, spoken or written, or by signs, or by visible representations, or
otherwise) of any matter or the doing of any other act whatsoever which—

(i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
(ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding;
or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of
justice in any other manner;11
Vagueness:

9
Delhi Judicial Service Associations, Tis Hazari Court, Delhi v. State of Gujarat, AIR 1991 SC 2176.
10
Section 2(b) of Contempt of Court Act, 1971.
11
Section 2( c) of Contempt of Court Act, 1971.
 CONTEMPT OF COURT: CRIMINALIZING FUNDAMENTAL RIGHTS?

This definition involves much criticism as the phrase “scandalizes or tends to scandalize” is very
uncertain, undefined and notoriously vague. Because of its vagueness the judges get the
complete discretion to fall the case under this phrase and makes it a contempt case going to the
extent of punishing the person who just exercised his Fundamental Right of freedom of speech
and expression. Vagueness in the law raises a prima facie threat to the ideal of the rule of law.
The ideal of Rule of Law is;
“Laws must be open, clear, coherent, prospective, and stable, legislation and executive action
must be governed by laws with those characteristics, and there should be courts that impose the
rule of law. The organizing principle of these requirements is, as Joseph Raz puts it, that ‘the
law must be capable of guiding the behaviour of its subjects” (Endicott 2000:185)12

Sometimes judges are called on to resolve those disputes for which the law is vague and
uncertain. With regard to such cases, the Judges are opened to impose their own discretion. In
Dicey’s word;
“Where there is discretion, there is room for arbitrariness and that in a republic no less than
under a monarchy discretionary authority on the part of the government must mean insecurity
for legal freedom on the part of its subjects”

So, when the language is vague, it results is some form of arbitrary government. The problem
with regard to the vagueness of the term “scandalizes” is in two ways: (i) linguistic vagueness
results to legal indeterminacy (ii) legal indeterminacy terrorize the Rule of Law. 13 At last, the
another contention which further makes the definition violative of Rule of law is that it failed to
comply with the fundamental principle of Jurisprudence that no person shall be put in peril on
an ambiguity.14 Many people including the Man Booker prize holder, Suzanna Arundhati Roy
have been punished under this ambiguous word. In the case of Baradakanta Mishra v. The
Registrar Of Orissa High Court & Anr. 15, Justice Krishna Iyer said that:

12
Alex Silk, Theories of Vagueness and Theories of Law, Edinburgh Legal Theory Seminar, pp10.
13
Endicott, Timothy, Law and language, The Stanford Encyclopedia of Philosophy, (2016).
<https://plato.stanford.edu/archives/sum2016/entries/law-language/>, Summer 2016 edn.
14
The State of Gujarat v. Jethalal Ghelabhai Patel, 1964 AIR 779.
15
1974 SCC (1) 374.
 CONTEMPT OF COURT: CRIMINALIZING FUNDAMENTAL RIGHTS?

“stating the principles of law bearing on the facets of contempt of court raised in this case we
would like …this ancient and inherent power, intended to preserve the faith of the public in
public justice, will not be so used as to provoke public hostility as overtook the Star Chamber. A
vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to
punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and
public good and permits a process of brevity conviction, may unwittingly trendiness upon civil
liberties…”

Mixed Roles of Judiciary: Victim and Judge!

Nemo judex in causa sua is a Natural Justice which means that no one can be the judge in his
own case. But in the case of contempt of court, the Contemnor is brought before and tried by the
offended party and the verdict that whether the contemnor will be punished or acquitted will be
decided by the offender himself. Therefore the concept of contempt of court inherently and
directly violates the principle of Natural Justice.

To protect this principle, the legislature in the Contempt of Court Act, 1971 has included the
section 14(2) which says that where a person charged with contempt under that sub-section
applies, whether orally or in writing, to have the charge against him tried by some judge other
than the Judge or Judges in whose presence or hearing the offence is alleged to have been
committed, and the Court is of opinion that it is practicable to do so and that in the interests of
proper administration of justice the application should be allowed, it shall cause the matter to be
transferred to the judge which the CJI deems fit considering the circumstances of the case. But
law in paper is different from law applicable in reality. Recently, in the case of Re Arundhati
Roy 16, Justice G.B Pattanaik who rejected the plea of Arundhati Roy in her contempt case to
rescue himself (Justices G.B Pattanaik and R.P Sethi) was the same judge whose judgment
(Given by Justices Ruma Pal and Pattanaik) that Arundhati Roy criticized and then faced the
another Contempt case. Therefore, there is mixed roles of judiciary, it is being victim and at the
same time being the judge.

Obsolete:
16
(2002) 3 SCC 343.
 CONTEMPT OF COURT: CRIMINALIZING FUNDAMENTAL RIGHTS?

The law of contempt was functional in the British Raj so that the people coercively accept their
supremacy and uphold their majesty, but even after independence this law has continued to exist
and operates as in the old days of British periods which is presently causing resentment to the
people of democratic world where these laws are declared to be leviathan rule. It seems that the
government authorities have forgot that we are not living in the era of king and queen where
every words of theirs should be considered as equal to god and so criticizing it will attract
punishment. We live in the modern and complex society which is intellectually and
technologically developed. Here, people sue the government in protection of their rights and not
bow down to uphold its majesty. The relation between the rulers and its subject has been
completely changed. We have travelled from the notion that the King can do no wrong to filing
writ petition against the government. This age old adage was earlier used to punish people if they
criticize the act of the divine power of king but democratic world appreciate and welcome
criticism rather than punishing it because the entire model of democracy is based on criticism.

In many of the countries, the contempt of court has been declared as archaic and obsolete and
exercised sparingly. It is declared as obsolete in the country of its own origin i.e. Britain. There
has been no report of cases of scandalizing the court since 1930. The American ideology is
completely based upon the rights of the individual. They prefer the first amendment over the
contempt of court. They do not even recognize the term “scandalizing of the court” and they
commence the case of contempt only when there is “clear and immediate danger” to the
administration of justice. Solomon17 said:
“…it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning
them away, to injure the vigor of those yielding the proper fruits.”

Vigilance:
There is a web of checks over the actions of others. The misusing power of the executive can be
checked by the court and the courts have the power to strike down the actions taken by the
executive, when the legislature goes beyond the supremacy of the law of the land, the protector
of the constitution i.e. Judiciary can declare it to be void. So when the judges themselves are
guilty of mistakes, irregularity or violations, public criticism is the only way to correct the
17
Stephen D. Solomon is Marjorie Deane Professor at the Arthur L. Carter Journalism Institute at New York
University.
 CONTEMPT OF COURT: CRIMINALIZING FUNDAMENTAL RIGHTS?

judges.18Without being hypersensitive the judiciary could adjust itself to the fair berates and
criticism so that the judiciary function taking along with the public opinion. In the case of
Ambard v. Attorney- General for Trinidad and Tabago19, Lord Atkin said:
“Justice is not a cloistered virtue: she must be allowed to suffer scrutiny and respectful, even
though outspoken, comments of ordinary men.”
In the case of Regina v. Commissioner of the Metropolis ex parte Blackburn20, Lord Denning
said:
“Silence is not an option when things are ill done.”

Compromise with Truth as a defense:

As we have discussed before that the Act of 1971 was amended in 2006. Even the amended law
is not able to comply with its own basic objective of amending the provision. Section 13(b) uses
the term “the court may” which again gives the overriding discretionary power to the court to
either accept or not to accept the truth as valid defense of justification. The validation of truth as
a defense does not stand alone; instead the Contemnor is further burdened for proving the truth to
the court that it is in public interest. Last but not the least which makes the amendment devoid of
fulfilling its objective is that the court will decide that the contemnor has revoked the defense of
truth with bonafide motives. Through the amendment clarifies that the court may impose
punishment for contempt when it is fully satisfied that the act substantially interferes or tends to
substantially interferes with the due course of justice. But even this was not followed in the Daily
Mid-day case where the 4 journalist were accused of contempt of court for publishing articles
against the ex-CJI. The defense of truth raised by the contemnor was not allowed.

The constitution guarantees the right of freedom of speech and expression but this right is
restricted under the concept of Contempt of court. So, the exercise of our fundamental rights
depends upon the concept which is obsolete, vague, violates Rule of law and threatens the very
basic principle of democracy. Therefore, the constitution knowingly or unknowingly is nurturing
the Draconian provisions that give contempt power to the courts. If this continues, then one can
imagine what will be the fate our basic human rights!!

18
https://www.thehindu.com/opinion/columns/Truth-fair-criticism-help-fight-contempt charge/article16149796.ece
19
(1936) AC 322 pp.335.
20
(1968) 2 WLR 1204.
 CONTEMPT OF COURT: CRIMINALIZING FUNDAMENTAL RIGHTS?

CRIMINALIZING THE RIGHT TO EXPRESSION

Some time ago, the case of contempt charged on Arundhati Roy was the talk of the town. No one
will dispute in the fact that the Judiciary action in this case falls under the Wednesbury Principle,
where no reasonable man who have acted the manner in which the person has acted. No apex
court in this democratic era, governed by Rule of Law and Constitutionalism, would have held
anyone guilty of Contempt for writing in her affidavit

".... a disquieting inclination on the part of the Court to silence criticism and muzzle dissent, to
harass and intimidate those who disagree with it. By entertaining petition based on an FIR that
even a local police station does not see fit to act upon, the Supreme Court is doing its own
reputation and credibility considerable harm."

In the judgment, Justices Pattanaik and Sethi reasoned for punishing Arundhati Roy that she
“scandalizes the authority with malafide intention” and “further did not show any repentance or
remorse” and therefore committed criminal contempt of the court. The court failed to
substantiate that how she had the malafide intention. The right of Freedom of Speech and
Expression was catastrophically jeopardized and suffered serious blow.21 The levels of sensitivity
of honorable Indian Courts were compared when Bernard Levin accused Judges of arrogance
and hypocrisy and of impairing public confidence in the judiciary by their own conduct.

In the other instances, where Supreme Court lawyer, Prashant Bhushan in 2009 has faced the
charges of contempt of court for making allegations of corruption against some Supreme Court
Judges and the Managing Editor of Tehelka is also wrapped in this change because of publishing
his interview. There is another recent confrontation raised on the issue of alleging corruption
charges against some Supreme Court judges between Justice Markandeya Katju and the Supreme
Court has raised some issues on contempt jurisdiction in India.

HIGH TIME FOR REFORM

The amendment shall be done in the Contempt of Court Act, 1971 which only confines itself to
the “willful disobedience to any judgment, decree, direction, order, writ or other process of a
21
https://frontline.thehindu.com/static/html/fl1906/19060270.htm
 CONTEMPT OF COURT: CRIMINALIZING FUNDAMENTAL RIGHTS?

court or willful breach of an undertaking given to a court and an act which causes clear and
immediate danger to the administration of justice. The section 2(c) (i) of the Act shall be
removed. The source of the contempt power of the court has been derived from the constitution
and not from the contempt of Court Act, 1971. Therefore, amending the Act of 1971 will not
suffice. The amendments need to be done in the Constitution in such a manner that contempt of
court does not completely restrict the fundamental right and criticism to the judiciary should be
allowed.

CONCLUSION

The mechanism of Contempt of Court is not only unnecessary to the present functional legal
system, but also violative of basic rights of the innocent citizens. 22 The basic formation of the
Democracy is based on the concept that all men are at least philosophically sovereign while
governments are their servants or the vehicle of the sovereignty. The entire democratic society is
for the people, by the people and of the people. The people are supreme and masters and the
authorities is its servant. So, question broach up that should the government branches are allowed
to punish people for critiquing the acts of their own servants?

On a reading of the Act, it appears as though the Act places more

importance on the exceptions to contempt rather than what
constitutes contempt itself.23

22
Pekelis. Legal Techniques and Political Ideologies: A Comparative Study, 41 Mich. L. Rev. 665, 671 (1943).
23