Editorial Notes

[Editorial Notes] What is criticism and what is contempt of Court?

Contempt refers to the offence of showing disrespect to dignity or authority of a Court. It is classified under two major categories: Civil contempt and Criminal contempt.
By IASToppers
August 18, 2020

Contents:

  • Introduction
  • Contempt of Court
  • Civil contempt
  • Criminal contempt
  • Punishment for Contempt of Court
  • Concerns
  • Can one voice any criticism of Judiciary?
  • Guidelines for Criticism
  • Previous rulings
  • Conclusion

What is criticism and what is contempt of Court?

For IASToppers’ Editorial Simplified Archive, click here

Introduction:

A recent order of Supreme Court found senior advocate Prashant Bhushan guilty of contempt for two tweets — one relating to the Chief Justice of India astride an expensive motorcycle and the other that the Supreme Court played a role in the destruction of democracy in India over the last six years.

Contempt of Court:

  • Contempt refers to the offence of showing disrespect to dignity or authority of a Court.
  • The Contempt of Courts Act, 1971 Act confers upon certain courts power to punish individuals for contempt of themselves as also of subordinate courts.
  • Article 129: Power of Supreme Court to punish contempt of itself.
  • Article 215: Power of High Courts to punish contempt of itself.
  • The Contempt of Courts Act, 1971 gives statutory backing to the idea.
  • In India, contempt is classified under two major categories: Civil contempt and Criminal contempt.

Civil contempt:

  • Section 2(b) of Contempt of Courts Act, 1971 defines Civil contempt as:
    • Willful disobedience of any judgement, decree, direction, order, writ or other processes of a court or an undertaking given to the court.
    • Disobedience or breach must be willful, deliberate and intentional.

Criminal contempt:

  • Section 2(c) of Contempt of Courts Act, 1971 defines criminal contempt as a publication of any matter or doing of any other act which-
    • Scandalises or lowers the authority of any court;
    • Prejudices or interferes with the due course of any judicial proceeding;
    • Obstructs the administration of justice.

Punishment for Contempt of Court:

  • The Supreme Court and High Courts can punish for simple imprisonment for a term up to six months or with fine up to Rs. 2,000 or with both.
  • Supreme Court in 1991 stated that it has the power to punish for contempt for itself as well as of High courts, Subordinate courts and Tribunals of India.
  • Under Section 10 of the Contempt of Courts Act of 1971, High Courts have special powers to punish contempt of subordinate courts.
  • The idea behind criminal contempt is to punish the contemner who has, by his insolent behaviour, dishonoured the court.

Concerns:

  • Contempt of Court has been used previously to provide restriction to the Freedom of speech and expression under Article 19 (Right to freedom of opinion and expression).
  • The law provides sweeping discretionary powers to the judges to rule on what they perceive as contempt against themselves.
  • On a specific action, two judges might have a different viewpoint on whether this action can be considered as contempt of court or not.
  • As per Section 9 of Contempt of Courts, 1971 Act, the scope of what is to be treated as contempt cannot be expanded beyond what is provided for in the Act.
  • However, when contempt itself is held to mean anything that scandalises the courts, it is so open-ended that it makes invoking the contempt law quite easy.

Can one voice any criticism of Judiciary?

  • Yes, there is a thin line separating criticism and contempt.
  • Freedom of speech is a fundamental right guaranteed to every Indian citizen under Article 19(1)(a) of the Constitution, albeit subject to reasonable restrictions under Article 19(2).
  • C.K. Daphtary v. O.P. Gupta (1971) case: Supreme Court held that the existing law of criminal contempt is one such reasonable restriction.
  • Lord Denning M.R in 1968 set out guidelines in matters of contempt of court.
  • He stated its jurisdiction is to be exercised sparingly and that protection of freedom of speech is paramount.
  • Criticism is welcome but it must be fair since judges, owing to their status, are not in a position to refute the comments so levelled against them.

Guidelines for Criticism:

  • The Supreme Court has held that if a comment is made against the functioning of a judge, it would have to be seen whether the comment is fair or malicious.
  • If the comment is made against the judge as an individual, the Court would consider whether the comment seeks to interfere with the judge’s administration or is simply like libel or defamation.
  • The Court would have to determine whether the statement is fair, bona fide, defamatory or contemptuous.
  • A statement would not constitute criminal contempt if it is only against the judge in his or her individual capacity and not in discharge of his or her judicial function.
  • Statements which affect the administration of justice or functioning of courts amount to criminal contempt since the public perception of the judiciary plays a vital role in the rule of law.
  • An attack on a judge in his or her official capacity denigrates the judiciary as a whole and the law of criminal contempt would come down upon such a person unless it is a fair critique of judgment.

Previous rulings:

1. S.Mugolkar v. Unknown (1978):

  • SC held that judiciary cannot be immune from fair criticism.
  • The contempt action is to be used only when an obvious misstatement with malicious intent seeks to bring down public confidence in the courts or seeks to influence the courts.

2. Indirect Tax Practitioners’ Association v. R.K. Jain (2010):

  • SC held that Truth is also a defence in matters of criminal contempt if it is bona fide and made in the public interest.

Conclusion:

  • It can be concluded that whether a comment would constitute criminal contempt or not depends entirely on the facts and circumstances of each case. The tweets or remarks by conscientious citizens certainly do not affect the dignity of the Indian judiciary.
  • To quote Lord Denning, “We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”
  • There must be a balance between the right to speech and the court’s power to punish its critics. Judiciary like other institutions is open to criticism, subjected that the criticism is fair enough and doesn’t seeds of distrust in the minds of the public about the administration of justice as a whole.
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