Law of contempt both as regard its interpretation and application had posed complex questions before the Court. No branch of law possibly has been more misconstrued or miss utilized within the contempt jurisdiction; observed Lord Denning. The contempt jurisdiction originates from the Ecclesiastical Courts which goes back to the middle ages while ethics and law were treated to be at par.
Inherent power of the court to punish a person for committing contempt of the court is universally recognised. The law of contempt is governed by the Statutes including Contempt of Courts Act, 1971 or other statutory laws relating thereto as, for example, Indian Penal Code and Code of Criminal Procedure but the powers of the superior courts are engrafted in the Constitution by reason of Articles 129 and 215 thereof providing that the Supreme Court and the High Court being a court of records shall have all the powers of such a court including the power to punish for contempt of itself.Bar Council of India vs High Court of Kerala1)
Contempt refers to the offence of showing disrespect to the dignity or authority of a court. It is the offence of being disobedient to or disrespectful towards a court of law. Being disrespectful to legal authorities in the courtroom, or willfully failing to obey a court order may attract contempt of court proceedings.
Contempt of courts consists in “any act done or writing published calculated to bring a court or a judge into contempt or to lower his authority to interference with the due course of justice or the lawful process of the court, is contempt of court. Any episode in the administration of justice may, however, publicly or privately criticized, provided that the criticism is fair and temperate and made in good faith. The absence of any intention to refer to a court is a material point in favour of a person alleged to be in contempt.” —Lord Russell
“Any act done or writing published which is calculated to bring a court or a judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court, is a contempt of court. Any episode in the administration of justice may, however be publicly or privately criticized, provided that the criticism is fair and temperate and made in good faith. The absence of any intention to refer to a court is a material point in favour of a person alleged to be in contempt.” —Halsbury’s Law of England
The administration of justice and judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by the conscience and oath to their office, i.e., to defend and uphold the Constitution and the laws without fear and favour. Any criticism about the judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the judges and brings administration of justice to ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be criticized. Motives to the judges need not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice is one of the pillars on which democratic institution functions and sustains.
Section 2 of the Contempt of Courts Act categorizes contempt of court into two categories
The public has a vital stake in effective and orderly administration of justice. The court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the court against insult or injury, but, to protect and to vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with.Delhi Judicial Service Association vs State of Gujrat 2)
An advocate, as a citizen of this country, has the fundamental right of freedom of expression and speech under Article 19 of the Constitution. This right is also guaranteed to him under the Advocates Act. Apart from that, the legal profession has the inherent right to express itself in the best manner possible in uninhibited language, but the right to express also carries with it the duty to be dignified in the use of expression and to maintain decorum and peace in the court proceedings.In Re: Ajay Kumar Pandey3)
Advocate touches and asserts the primary value of freedom of expression. It is a practical manifestation of the principle of freedom of speech. Freedom of expression in arguments encourages the development of judicial dignity, forensic skills of advocacy and enables protection of fraternity, equality and justice. It plays its part in helping to secure the protection of other fundamental human rights. Freedom of expression, therefore, is one of the basic conditions for the progress of advocacy and for the development of every man including legal fraternity practising the profession of law. Freedom of expression, therefore, is vital to the maintenance of law and liberty of the citizens. The advocate or the party appearing in person, therefore, is given liberty of expression. But they equally owe countervailing duty to maintain dignity, decorum and order in the court proceedings or judicial process. The liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the judiciary.Dr. DC Saxena vs Hon’ble the Chief Justice of India(1996) 5 SCC 216: 1966 AIR SCW 3082]
If a judge, on account of the proceedings conducted by him in his court, is threatened that he would be prosecuted in a court of law for the judicial act done by him, it amounts to lower the dignity of the court.Dr. DC Saxena vs Hon’ble the Chief Justice of India4)
Any advocate is likely to be punished for contempt, if he personally insults the court and, insulting the court includes not only insults made to the judge, but also insults made to a jury.5)
Just as an advocate will not be justified in using abusive language neither will he be able to use blasphemous language. Thus, in R vs Davison, a litigant conducting his own case repeatedly used blasphemous language and for this conduct he was held guilty of contempt, even after allowances had been made for the fact that he was a layman.
Justice Bayley has said— The question is shortly this, whether, for the future, decency and decorum shall or shall not be preserved in Courts of Justice; or whether, under colour of defending himself against any particular charge, a defendant is at liberty to introduce new, mischievous, and irrelevant matter upon the trial. I agree that a defendant, in all cases, should have every facility allowed him in his address to the jury, provided he confines himself within those rules which decency and decorum require. In every case, the subject of the discussion before the jury is to be considered, and a judge is bound to see that the arguments which are adduced, are such as are consistent with decency and decorum, and not foreign to the matter on which the jury have to decide.6)
A fair criticism of the conduct of a judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and in public interest. In order to ascertain the good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved. All citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism, which if not checked, would destroy the institution itself. Litigant losing in the court would be the first to impute motives to the judges and the institution in the name of fair criticism which cannot be allowed for preserving the public faith in an important pillar of democratic set up, i.e., judiciary.
The Supreme Court is not hypersensitive in matters relating to contempt of courts and has always shown magnanimity in accepting the apology on being satisfied that the error made in the publication was without any malice or without any intention of dis-respect towards the courts or towards any member of the judiciary. The Supreme Court has always entertained fair criticism of the judgment and order or about the person of a judge. Fair criticism within the parameters of law is always welcome in a democratic system.
A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case, which has been heard and finally decided. Fair criticism, in democracy, as regards the working of all the organs of the state should be welcome which would in fact promote the interest of democratic functioning. Judges and courts are alike open to criticism, and if reasonable arguments or expostulation are offered against any judicial act as contrary to law or public good, no court would treat that as contempt of court.
Fair and healthy reporting of the judgment is essential for the healthy administration of justice. This is conducive for uniformity in decisions throughout the country on the question of law and fact. But under the pretext of shelter given by the provision of law, if there is incorrect and dishonest reporting, the same cannot be permitted. It is obvious that the section gives protection to fair and accurate report of judicial proceedings. Reading section 4 with the provisions of section 7 of the Contempt of Courts Act, 1971, it is clear that what is meant by the words ‘judicial proceeding’ is the day to day to proceedings of court. Assuming, though not granting that it is capable of a wider construction, it only permits a publication of ‘fair and accurate report’ of a judicial proceeding. In those cases where the reports do not represent a fair and accurate report and gives absolutely one-sided view of the matter, the protection afforded under section 4 cannot be availed.Subhash Chand vs SM Agarwal7)
An advocate does not enjoy absolute privilege when acting in the course of his professional duties. The dignity of the court is required to be maintained in all situations. However, far-reaching implications the case may have but a lawyer is not justified in making personal attack upon the complainant or Witnesses on matters not borne' out by the record nor in using language which is abusive or obscene or in making vulgar gestures in court. An advocate in no circumstances is expected to descend to the level of appearing to support his view in a vulgar brawl.8)
In PN Duds vs P Shiv Shankar9), Hon’ble Supreme Court had held that
administration of justice and judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by the conscience and oath to their office, i.e., to defend and uphold the Constitution and the laws without fear and favour. Any criticism about the judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the judges and brings administration of justice to ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be criticized. Motives to the judges need not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice is one of the pillars on which democratic institution functions and sustains. Criticism about the judicial system or judges should be welcome so long as such criticism does not impair or hamper the administration of justice. This is how the Courts should exercise the powers vested in them and judges to punish a person for an alleged contempt by taking notice of the contempt suo motu or at the behest of the litigant or a lawyer.
Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on Law.