Condescension of Court: A Constitution and Criminal perspective
I once tried a law book, At first, it refused to budge, Then suddenly it shook And fell on to Judge. To tell you what I felt there, I won’t contempt not because I don’t dare But there is something called Contempt.
The society is the basic unit of the nature, wherein both the men and women live together in a social harmony. Hence, arises a need to regulate the society with the help of some law, which is applied uniformly on all its subjects.
At the time, when big and mighty rulers ruled the kingdoms, the subjects used to approach the King to take the advice and to resolve their disputes. If the subject reflected some kind of impertinence towards the King, he had the sufficient and complete power to punish such contemnor, either to send him to the jail or to hang him on the scaffold.
As the countries started to have the democratic rule as a governing mechanism, the Courts also evolved for the proper administration of law and justice in the society. If there is any scandalizing of the Court or if a person does not obey i.e. disobey the orders of the Court, the Court has been provided with the power to initiate the contempt proceedings whether civil or criminal in nature.
In the words of Lord Atkin, “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
“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 their conscience and oath of their office to defend and uphold the Constitution and the laws without fear and favour.”
In its origin, all legal contempt shall be found to consist in an offence more or less direct against the sovereign himself as the fountainhead of law and justice or against his palace, where the justice is administered. It has been said that the law of the contempt is of ancient origin yet of fundamental contemporary importance.
In a democratic society, freedom of speech and expression is a prized privilege and a salutary right of the people. But, at the same time, no less important is the maintenance of independence and integrity of the Judiciary and the public confidence in the administration of justice.
Law of Contempt is of a fundamental importance in every legal system. It is a necessary incident of every court of justice to fine and imprison for contempt of the Court committed on the face of it. The law relating to the Contempt of the Court has developed over the centuries as a means whereby the Courts may act to prevent or punish conduct, which tends to obstruct, prejudice or abuse the administration of justice either in relation to a particular case or generally.
The sole and the fundamental purpose of the proceedings for contempt is to give the power effectively to protect the right of the public, by ensuring that the administration of justice shall not be obstructed or prevented. The existing law relating to the contempt is originally of the English origin. The contempt jurisdiction appears to be based upon on the principle that the court has the duty to protect the interest of the community in the due administration of justice and so, it is entrusted with the power to commit for the contempt of the court, not to protect the dignity of the court against insult or injury, but to protect the rights of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with. It is the method to prevent the obstruction in the way of justice.
In an ordered community, courts are established for the pacific settlement of the disputes and for the maintenance of law and order. In the general interest of the community, it is imperative that the authority of the courts should not be imperiled and recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed, it is not because those are charged with the responsibilities of administration of justice, but they are concerned more with their own dignity.
In one of the celebrated judgment of the Indian Supreme Court, it stated that, “Availability of an independent judiciary and an atmosphere wherein Judges may act independently and fearlessly is a source of existence of civilization in a society. Any act or omission which undermines the dignity of the Court is therefore viewed with concern by the society”.
Those who strike at the course of justice, strike at the very foundation of the society. Therefore, so as to maintain the law and order in the society, it is very imperative on the part of the Judge, to imprison the offender without any trial. It is so necessary, that, now the Judges have started to use the power, without any appeal. Consequently, ‘Contempt of Court’ is such a power, which helps the authority to punish each person, who tends to interfere in the working of such an authority.
As a civil society is founded on the very foundation on a respect for the law, thus if the citizen chooses to disobey or flaunt the laws of that very foundation, then there would not be any existence of such a society.
The law does not exist to protect the personal dignity of the Judiciary, nor does it exist to protect the rights and liabilities of any private party/litigant. The offence primarily is in connection with the interference with the administration of law; in impeding and perverting the course of justice. It is not the dignity of the court, which is being offended, but, it is the challenge to the supremacy of the law.
The phrase, ‘Contempt of Court’ does not in the least describe the true nature of the class of offence with which we are here concerned. The offence consists in interfering with the administration of the law; in impeding and perverting the course of justice. It is the fundamental supremacy of the law which is challenged.
The concept of contempt proceedings should not be meant for the protection of the Judges personally, but it should be conceived as for the safeguarding the seat of justice, which helps the injured person in getting the justice.
Thus, it is utterly impossible for the Judges to administer the law, unless he has the power to prevent the instances or punish such offenders, which disturbs the Court in the course of the administration of justice. The power has been conferred not for the personal protection, but for the protection of the public.
The broad principle to look upon the process of contempt proceedings, is to provide each and every person with a fair trial and it restraints the occurrence of any such incidence which restricts the court in the administration of justice or to provide a fair trial.
The Contempt of Court jurisdiction is a special jurisdiction, and it has to be used very cautiously. It must primarily be used to uphold the dignity of the Court and should in no manner be used in upholding the personal dignity of a Judge. Therefore, the Court with a very scrupulous care and caution, restraint and circumspection should exercise Contempt Jurisdiction.
It should be exercised only when the act tends to affect the administration of justice or the act tends to shake the confidence of the public in the Court’s administration of justice. ‘The respect for judiciary must rest on a surer foundation than recourse to contempt jurisdiction.’ The jurisdiction must be exercised not only with circumspection but also with pragmatic flexibility.
The corner stone of the contempt law is the accommodation of two constitutional values- the right to free speech and right to independent justice. The ignition of contempt action should take place where substantial and mala fide interference with fearless judicial action is made and not where there is a fair comment or trivial reflections on the judicial process and personnel. If there is any reasonable, argument offered in against any judicial act or a judgment, and if the same is for the public good, the same should not be considered a contempt of court.
Frequent or indiscriminate use of this power in anger or irritation, would not help to sustain the dignity or status of the Court, but sometimes affects it adversely. Wise Judges never forgets that, the best way in sustaining the dignity or status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness, or objectivity of their approach, and by the restraint, dignity, and decorum, which they observe in their judicial conduct.
In the words of Lord Denning in the case of Quintin Hoggs’s case, “It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise; more particularly as we ourselves have an interest in the matter. Nor will we use it to suppress those who speak against us. It is beyond the boundaries of the Parliament, to make a fair comment on the matters of public interest.”
In addition, In Re S. Mulgaokar case, an observation was made that, “The first rule in the branch of contempt power is a wise economy of use by the Court of this ranch of its jurisdiction. The court will act in seriousness and dignity and severity where justice is jeopardized by a gross and unfounded attack on the Judges, where the attack is made in a calculated manner so as to destroy the judicial process.”
However, in another case, the Supreme Court made the following statement, “Any publication which was calculated to interfere with the due course of justice or proper administration of law would amount to contempt of court. A scurrilous attack on a Judge is treated as undermining the confidence of the public upon the Judiciary.”
In the words of Justice Frankfurter, the power to punish for contempt, as a means of safeguarding Judges in deciding on behalf of the community as impartiality as is given to the lot of men to decide, is not a privilege accorded to Judges. The power to punish for contempt of court is a safeguard not for the Judges as persons, but for the functions, which they exercise.
In one of the celebrated judgment, the Hon’ble Supreme Court held that, “Proceedings for contempt of court are different than those taken for the persecution of a person for an offence under the Criminal Jurisdiction. Contempt proceedings are peculiar in nature although in certain aspects they” are quasi-criminal in nature, but they do not form a part of criminal jurisdiction of the Court. Code of Criminal Procedure does not apply in matters of contempt triable by the High Court.”
In India, there was a Contempt of Court Act, 1952, but, the enactment required some drastic changes as it was felt that the same lacked the safeguards for the fundamental freedom guaranteed by the Constitution to each and every citizen of the nation. Thus, under the chair of the then Additional Solicitor General of India, Shri H.N. Sanyal, a committee sat to look into the issue. After the submission of a detailed report, there were several radical changes into the old statute; the Rajya Sabha passed the same in 1968 and 1971 replaced the 1952 act.
Preamble to the Constitution:
The Preamble to the Constitution reads as under:
“We, The People of India, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixty day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUION.”
These words emphasize the republican and democratic character of our Constitution, and show that all power ultimately stems from the People.
Thus, in analyzing the concept of sovereignty, the People of India are above all the authorities. Thus, the People can criticize the working of such authorities. However, why would the People of India is punished for the Contempt of the Court and criminal proceedings?
So, according to the Preamble, People of India has been given the supreme authority, however, still the so called ‘supreme authority’ can be prosecuted for the contempt action against the Court and the Judges. This is the primary question and needs to have an answer for upholding the ideas and thoughts inserted by the learned Constitutional Framers of our country.
Additionally, we can get the answer of our question from Part III of our Indian Constitution, which specifically talks about the Fundamental Rights. Speaking more specifically, Articles 19 (1) (a), 129 and 215 of the Constitution talks, wherein Article 19 (1) (a) deals with the right freedom of speech and expression to all the citizens and the other two Articles are about the power of the Contempt of Court.
Once it is accepted that India is a democratic nation, and that in a democracy the people are supreme, the reconciliation can only be affected by treating the right of the citizens of free speech and expression under Article 19(1)(a) to be primary, and the power of contempt to be subordinate. In other words, the people are free, and have the right to criticize Judges, but they should not go to the extent of making the functioning of the judiciary impossible or extremely difficult.
As we know, in our country, the Judiciary plays a very vital role of interpreting and applying the law and adjudicating upon the controversies among the citizens or among the States. It is the primary function of the Court to maintain law and order in the country, so that the Government can run the country in accordance of law.
Apart from this, the Judiciary also has a duty to uphold the provisions of the Constitution and to put into effect all the fundamental rights among the citizens, which has been guaranteed by the Constitution.
In the words of Justice Untwalia, the role of the Judiciary is that of “a watching tower above all the big structures of the other limbs of the State from which it keeps a watch like a sentinel on the functions of the other limbs of the State as to whether they are working in accordance with the law and the Constitution, the Constitution being supreme.”
The Supreme Court is a Court of Record and has all such powers to punish for the contempt of itself. However, the Supreme Court in one of the cases had asserted that, “in the absence of any express provisions, the Apex Court has the jurisdiction in every matter, in case of any doubt; the Court has the power to determine its jurisdiction”.
Article 129 of the Indian Constitution provides that the Supreme Court shall be a Court of Record with all the powers of such a Court; including the power to punish for the contempt of itself.
Apart from this, Article 129 has also made a significant contribution towards maintaining the integrity and independence of the subordinate courts by taking them under its umbrella. The Supreme Court has ruled that Article 129 also provides the power to the Supreme Court to punish the contemnor for contempt of not only itself, but also for the High Court as well as subordinate Courts.
Under Article 136, the Supreme Court has a very wide and effective power to correct the judicial orders of the subordinate courts. Therefore, the Supreme Court exercises a supervisory jurisdiction over all of its subordinate courts in India. Not only this, the Supreme Court also has the power to safe guard the interest of the inferior courts to ensure the free flow of the justice without any interference.
However, not only Supreme Court, even the High Courts have the inherent power to punish the contemnor for a contempt of itself under Article 215.
The Supreme Court in a very landmark judgment stated that, the act affirms the jurisdiction of the High Court to take action for its own contempt as well as of the subordinate courts. Even in the case of R.L. Kapur v. State of Tamil Nadu, the Supreme Court observed that, the High Court possess the inherent powers related to the contempt power and jurisdiction and the same is possessed not from the Contempt of Court Act.
Even though the Constitution provides freedom of speech and expression under Article 19 (1) (a), there is an imposition of reasonable restriction over unreasonable expression of the thoughts and beliefs. The Supreme Court has, clearly stated that the contempt of court proceedings initiated by the Court under Article 129 is clearly reasonable under Article 19 (2).
The power of the courts to punish for contempt is an essential judicial weapon to prevent interference with the administration of justice. However, it may at times, be in conflict with freedom of speech. This conflict has to be resolved in such a way as to protect administration of justice at a minimum sacrifice of freedom of speech. Nevertheless, in E.M.S Namboodiripad v. T N Nambiar, the Supreme Court of India failed to strike a balance between the competing demands of freedom of speech and fair administration of justice.
Nevertheless, the straightforward reason behind imposing the reasonable restriction is to remove the obstructions from the way of the Courts exercising the administration of justice.
The Criminal contempt is discussed under Section 2 (c) of the Contempt of Courts Act, 1971. It is seen that scandalizing or prejudicing a Judge is Contempt. Even tending to do any of the above acts, tends to scandalize the court.
The Supreme Court, in one of the cases held that, it is necessary to examine whether any of the impugned statements do interfere with the due course of proceedings be creating the prejudice against the writ petition.
The ingredients of the criminal act of contempt are as follows:
· that something has been done which either is clearly intended, or at least calculated, to prejudice a trial which is pending;
· that the offending statements were published or said with prior knowledge that the case was pending or with the knowledge that the case was committed; and
· that the statements published or said tended substantially to create prejudice against the courts in the public mind.
Generally, cases of contempt fall in the following three categories:
· acts likely to influence the decision of a court in a pending case,
· willful disobedience of the command of a court and
· scandalizing a court so as to lower its public image.
Once again, the Supreme Court in one of the celebrated judgments observed that, the scope of the criminal contempt is wide enough to include any act, which tends to interfere with the administration of justice.
Widening the scope of the criminal contempt, the Supreme Court in Afzal v. State of Haryana said that, a false or a misleading statement given in the Court also commences the criminal contempt and amounts to the interference with the administration of justice.
The intention of the accused in a contempt case is immaterial. What really matters is the effect or the likely effect of his act on the administration of justice. Any act, which causes lack of confidence in the administration of justice, or otherwise interferes or tends to corrupt it, has to be prevented. The English law of contempt, which the Indian courts have generally been following, encompasses a wider field.
Some have expressed the view that freedom of speech is subordinate to the power of the courts to punish for contempt and that the law authorizing punishment for contempt need not satisfy the test of 'reasonableness' under Article 19(2) of the Constitution. These were the views of the High Courts. The issue came before the Supreme Court in such concrete form for the first time through Namboodiripad appeal case. Chief Justice Hidayatullah observed, "While it is intended that there should be freedom of speech and expression, it is also intended that in the exercise of the right, contempt of court shall not be committed". The Chief Justice further observed, "freedom of speech and expression will always prevail except where contempt is manifest, mischievous or substantial".
After completing the above analysis, it is clear that, there exists a significant tension between the fundamental freedom of speech and expression and the administration of justice because of the protection of public interest.
In the golden lexis of one of the greatest legal luminary of India, Mr. Fali Nariman, once said that the offence of scandalizing the Court is a mercurial jurisdiction in which there are no rules and no constraints. The stand of the Supreme Court cannot be ascertained correctly, because in one of the cases, the Supreme Court did not initiated any contempt proceedings even when the contemnor had demurred the reputation of the sitting Judge of the Apex Court; while in the other case, the Court had issued a notice and the contemnor was found to be guilty of contempt of the court.
The description `Contempt of Court’ no doubt has a historical basis, but it is nonetheless misleading. Its object is not to protect the dignity of the Courts but to protect the administration of justice.
The Judiciary is one of the important wings in our society and it is very important to give respect to the Judges and their verdict. Any comment or act, which tends to vitiate the functioning of the Judiciary, shall amount to contempt of court and the Court has the sufficient power to initiate the civil or criminal proceedings against such contemnor.
# Raju Z Moray, Conversation in a Court Room, The Lawyer’s Collective, 53, July-August, (1994)
# Ambard v. A.G. for Trinidad and Tobago, AIR 1936 PC 141
# As per Justice Sabyasachi Mukherjee in P.N. Dua v. P. Shiv Shanker, AIR 1988 SC 1212, at page 1214
# Prof. Jain M.P., Indian Constitutional Law, 1013 (5th Edition, 2008)
# Attorney General v. Times News Paper, (1974) AC 273 at page 302
# Om Prakash Jaiswal v. D.K. Mittal, AIR 2000 SC 1136
# “The Due process of Law” Lord Denning
# Lord President Clyde commented in Johnson v. Grant, 1923 SC 789 at page 790; Also cited in In Re. Arundhati Roy, AIR 2002 SC 1375
# Malik Surendra and Malik Sudeep, Supreme Court on Contempt of Court, 20 (2009)
# Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895
# Pal Samaraditya, The Law of Contempt, 33 (4th ed. 2006)
# In Re Article 143 of the Constitution of India, AIR 1965 SC 745
# Quintin Hogg (1968) 2 WLR 1204
# In Re S. Mulgaokar, AIR 1978 SC 727
# P.N. Dua v. P. Shiv Shanker, AIR 1988 SC 1208
# Pannekamp v. Florida, 90 L. Ed 1295
# Delhi Judicial Service Association, Tis Hazari Court v. State of Gujarat, 1991 (4) SCC 406
# Justice Katju, Markandey. Contempt of Court: The Need for a Fresh Look, 2
# Union of India v. Sakalchand Himatlal Sheth, AIR 1977 SC 2328
# A Court of record is a court whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, the records of which are admitted to be of evidentiary value and are not to be questioned when produced before any court.
# Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1
# Prof. Jain M.P., Indian Constitutional Law, 209 (5th Edition, 2008)
# Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176
# C.K. Daphtary v. O.P. Gupta, AIR 1971 SC 1132
# S.P. Sathe, Freedom of Speech and Contempt of Court, 5 Economic and Political Weekly, 1741-1742
# (1974) 1 Alt 170
# Delhi Judicial Service Association, Tis Hazari Court v. State of Gujarat, 1991 (4) SCC 406
# (1995) 2 Supp. SCC 388
# Conscientious Group v. Mohammed Yunus and Ors., AIR 1987 SC 1451
# Mohd. Zahir Khan v. Vijai Singh & Ors., (1992) 2 Supp. SCC
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