INTRODUCTION
Said the book worm to the silverfish
I once tried a law book
At first, it refused to budge,
Then suddenly it shook
And I fell on to judge.
To tell you what I felt there.
I won’t even attempt.
Not because I don’t dare
But there is something called contempt.1
Contempt of court is an offence, which by the common law of England was punishable by the
High Court, in a summary manner, by fine or imprisonment or both. The power to punish for
contempt of court was applied originally in England to contempt committed in the presence of the
court. In 1747, Thomas Martin, Mayor of Great Yamouth, sent a banknote fundamental rights
Pound 20 to lord Hardwicke, Lord Chancellor, with a letter referring to a proposed chancery
proceeding. The Lord Chancellor ordered Martin to show cause why he should not be committed
for contempt. He sought pardon and the Lord Chancellor in consideration of this, his public office,
the payment of costs, and his willingness to the suggestion that the bank note be sent to the
warden of the Fleet Street prison for debtors for their relief, did not take any action. 2
In 1631, when a prisoner threw a brickbat at the Judge and narrowly missed him, the prisoner’s
right hand was ordered to be cut off and hung on the gallows. In 1938, when the disgruntled
litigant threw tomatoes at the Court of Appeal, consisting of Clauson and Goddard JJ. 3 He was
immediately committed to prison, but released after a few days of incarceration, because, he did
not score a direct hit and secondly Christmas was soon approaching. There are several instances
of contempt in the face of the Court in English Tradition and they would not end even if we write a
book on it. The development of contempt law in England did contribute great principles to the law
of contempt, which are presently followed by several common law jurisdictions.
The Indian Courts as guided by Common Law principles ought to have followed similar principles
as laid down by the common law courts. The law of contempt is well developed under the English
precedent system. With regard to other laws the Indian Courts have blindly followed them but the
law of contempt has been exercised in an arbitrary and uncontrolled manner, as there was no
limit to the period of imprisonment that may be inflicted, or the fine that may be imposed. Article
129 of the 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 contempt of itself. Similarly, Article 215
provides that every High Court shall be a Court of Record with all the powers of such a Court
including the power to punish for contempt of itself. Under Article 129 the Supreme Court has
Raju Z Moray, “Conversation in a Court Room”, The Lawyers Collective, July-August 1994 at 53.
Vepa P. Sarthi, G. C. V. Subba Rao’s Commentary on Contempt of Courts Act, 1971, ALT
Publications, Hyderabad, 1999 at 1.
1
2
1
power to deal with contempt committed vis-à-vis the High Courts.4 Under Entry 77 of List I of the
Seventh Schedule to the Constitution, Parliament has the power to make laws relating to the
jurisdictions and powers of the Supreme Court, including contempt of such court. Under Entry 14
List III, Parliament and a State Legislature have power to make laws relating to contempt of court,
but not contempt of the Supreme Court. Sarthi in his book outline three basic principles of
contempt jurisdiction:
1. The power to punish for contempt of court is under Articles 129 and 215 of the Constitution
and not solely under the Contempt of Courts Act. The real jurisdiction to try contempt is
conferred upon the courts by the Constitution, the basic document of all the laws.
2. But there should be wise economy in the use of this power, as in the case of any other
power. Judges should never use this jurisdiction as a means to uphold their dignity, which
must rest on better and stronger foundations. It should never be used to suppress those who
speak against them, because, good judges do not fear criticism nor do they resent it. The
freedom of speech is a very important right and it is only when it is abused to the extent of
interfering with the administration of justice that the contempt jurisdiction should be invoked.
3. The dichotomy between the personal protection of a libeled Judge and prevention of
obstruction of public Justice should be clearly kept in mind. It is only when the court considers
the attack on the Judge or Judges scurrilous, offensive, intimidating or malicious beyond
condonable limits, that the strong arm of the law must strike a blow on him who challenges
the supremacy of the rule of law by fouling its source and stream.
The issue in question has been if the statement made by the contemnor is the truth, then can it
still be considered contempt. It is submitted that in all cases the so-called contemnor should be
allowed to prove the truth of his statement. If he is able to show some prima facie justification, the
Judge should be left to his personal remedy of invoking the criminal law of defamation. But if the
contemnor fails to show any justification, he must be severely punished.
In light of these powers and principles laid down under our Constitution and common law, the
authors attempt to analyse the law on contempt of court in India. The position of this principle
seems to be arbitrary as far as the recent debates in media portrayed it to be. This is an important
3
Id.
As explained by Sawant J. in V.C. Mishra AIR 1995 SC 2348. “To discharge its obligations as the
custodian of the administration of justice in the country and as the highest court imbued with supervisory and
appellate jurisdiction over all the lower courts and tribunals, it is inherently deemed to have been entrusted
with the power to see that the stream of justice in the tribunals are protected while fear or favour and for that
purpose all the courts and tribunals are protected while discharging their legitimate duties. To discharge this
obligation, this court has to take cognizance of the deviation from the path of justice in the tribunals of the
land, and also of attempts to cause such deviation and obstruct the course of justice. To hold otherwise
would mean that although this court is charged with the duties and responsibilities enumerated in the
Constitution, it is not equipped with the power to discharge them.”
4
2
tool in the hands of the court and sometimes they need to be used as a sword and sometimes as
a shield to protect itself.
RESEARCH METHODOLOGY
Aim
The aim of this paper is to find out the concept of contempt of court. This paper seeks to identify
the development of contempt under different jurisdictions
Scope
The project limits itself in understanding the concept of contempt of court. This paper traces the
historical jurisprudence of the concept and the latest developments and the contempt as
understood under both UK systems and US.
Research Questions
1. What is contempt of court?
2. Why is there a necessity of this concept?
3. What is contempt understood in other jurisdictions?
4. Is the Contempt of Courts Act, 1971 a comprehensive legislation?
5. What is the response of Indian Judiciary to this concept?
6. What ought to be contempt of court?
Methodology
The approach has been primarily descriptive and analytical.
Hypothesis
The law of contempt, which developed under the common law system, has been clearly defined
by the English courts. Even though the Indian courts have deliberated a number of times on
contempt law, they have given different interpretations and still the law of contempt is ambiguous
under the Indian system.
Mode of citation
A uniform mode of citation has been adopted throughout the project. It is as follows:
Name of author, Title of book, Place of Publication, Name of the Publishers, Year of Publication,
page number.
Name of the Author, “Name of the Article”, Name of the Journal, Volume, Year, Page Number.
Sources
Both primary and secondary sources are used for the project.
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Chapter-I
HISTORY AND BACKGROUND TO THE CONTEMPT OF COURTS ACT
“Our Judges are so honest as other men,
and not more so. They have with others
The same passions for party, far power
And privilege of their corps”5
It is a great question to every judicial system as to what “ contempt of court” is. James Francis
Oswald defines contempt of court as “ to speak generally contempt of court may be said to be
constituted of the law into disrespect or disregard, or to interfere with or prejudice parties litigant
or their witness during the litigation”. 6 Lord Hadwick in 17427 made a three-fold classification of
contempt:
1. Scandalizing the court.
2. Abusing parties who are concerned in the causes, in the presence of court.
3. Prejudicing the public against persons before the cause is heard.
The law of contempt is as old as the concept of justice and judicial system. From the times of
Romans, this concept was used by the judicial officers of the state to preserve the dignity of the
justice system as a whole. But during those days these concepts were used liberally by the
sovereign. Oswald in his book provides an illustration. T. of F went armed in the palace, which
was shown to the council of the King, by which he was taken and disarmed before Chief Justice
Shard, and committed to the prison of the Marshalsea and could not be bailed till the king sent his
will.8 With the change in time, the concepts of contempt also evolved. As the art of governance
began to grow, the King yielded his powers to the three organs 9 of the government, the
Executive, the Parliament/ Legislature and the Judiciary. The judges were deemed to have acted
in the name of the king. It was Kings justice and as such demanded all respect and obedience.
Any disrespect to the seat of justice was affront to the dignity and majesty of law. It is apt to quote
what Justice Wilmot states in Rex v. Wilmot:10 “ And whenever men’s allegiance to the law is so
fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and in my
opinion calls for rapid and immediate action than any other obstruction whatsoever not for the
5
Thomas Jefferson, as cited in Oxford Dictionary of Quatotations, 3rd Edition, Oxford University Press,
1999.
6 James Francis Oswald, Contempt of Court, 3rd Edn., Hindustan Law Books, Calcutta, 1993 at 6.
7 St. James Evening Post Case (1742) 2 A & K 469. Cited From, V. G Ramachandran, Contempt of Court,
5th Edn., Eastern Book Company, 1976 at 2.
8 Supra. n. 6at1.
9 Mosntesque’s idea of separation of power divided the state governing bodies into three organs. This model
is followed by almost all the jurisdictions in the world.
10 (1975) Wilm 243.
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sake of the judges as private individuals but as they are the channels by which the Kings justice
is conveyed to people.”
Thus the provision of contempt of court was first put forward and given a firm footing by the
English judges. Later the process of contempt of court was introduced into India by the British
following the establishment of the courts of record in the 19 th Century. This was put on a firm
basis in India by Contempt of Courts Act, 1926. The need for contempt of Courts Act, 1926 was
felt on account of the difference of opinion between the madras and Bombay High Courts on the
one hand and Calcutta High Court on the other regarding the protection of subordinate courts. 11
The attempt at a comprehensive legislation relating to contempt of courts in India was the
contempt of Courts Act, 1926. The Act did not contain any provision with regard to contempt of
courts subordinate to courts other than High Courts, that is, the courts subordinate to Chief courts
and judicial commissioners. The Act also did not deal with the extra territorial jurisdiction of High
courts in matters of contempt.
The Act of 1926 was a short Act containing only three sections. The preamble mentions that it
was an act to define and limit the powers of certain courts in punishing for contempt of courts and
since doubts arose as to the powers of the High Court of Judicature to punish for contempt, it was
considered expedient to resolve these doubts and limits the powers of the High Court in
punishing for contempt of courts. Section 3 of the Act laid down that a contemnor may be
punished for simple imprisonment for a term which may extend to 6 months or fine which may
extend to 2000 Rupees or with both.12 The Contempt of Courts Act, 1926 was not found adequate
and as such the Contempt of Courts Act, 1952 was enacted. From the statement of objects and
reasons which led to the enactments of the contempt of Courts Act, 1952, it is obvious that this
law was made as there was no specific provision of law which enabled a High Court to exercise
this power in respect of Contempt Committed beyond its territorial jurisdiction. 13
The provisions for punishment contained in the Contempt of Courts Act, 1926 and the Act of 1952
though valid and constitutional fell short of the expectations of the people and interfered with their
fundamental rights of freedom of speech and expression. It was felt that the Act of 1952 did not
contain sufficient safeguards for the freedom of press particularly. Thus a committee was set up
under the then Additional Solicitor General of India, Sri H. N. Sanyal. The Sanyal Committee
submitted a very detailed and comprehensive report suggesting drastic changes in the contempt
law. The draft bill was referred to a select committee and the Bill was finally introduced In the
11
Justice V. C. Srivastava, Contempt of Court as Cited in K. N. Goyal, Judicial Miscellany, 1st Edn.,
Institute of Judicial Training and Research Uttar Pradesh, 1993 at 33.
12 This amount of fine was imposed in 1926 and even today under the 1971 Act we have continuation of the
same provision without taking into consideration of the time elapsed and the value of money reduced.
13 K. N. Goyal, Judicial Miscellany, 1st Edn., Institute of Judicial Training and Research Uttar Pradesh,
1993 at 34.
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Rajya Sabha on 19th February 1968 and the Contempt of Courts Act, 1952 was replaced by the
1971 Act.
It is generally felt that the existing law relating to contempt of courts is somewhat uncertain,
undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two important
fundamental rights of citizen, namely, the right to personal liberty and the right to freedom of
expression. It was therefore, considered advisable to have the entire law on the subject
scrutinized by a special committee. The Sanyal Committee was set up to look into this aspect,
which made recommendations and most of it were accepted by the Government. Contempt
proceedings do not partake the character of a traditional lis. In the legalistic sense a contempt
proceeding is not a dispute between two parties but is primarily between the court and the person
who alleged to have committed the contempt of court.14
The individual who brings to the notice of the court that contempt has been committed is not a
prosecutor but merely an assistant of the court or friend of the court. In Supreme Court Bar
Association v. Union of India15 a Constitution Bench described the special jurisdiction to punish
for contempt as an unusual type combining the Jury, the Judge and the Hangman and explained
this apparent anomaly on the ground that the Court was not adjudication upon any claim between
litigating parties. The power to commit for contempt is a punitive power. This is to honor the
dignity and integrity of the court and the orders passed by them.
DEFINING CONTEMPT OF COURT
Several jurists and judges have defined contempt of court but there is no one single standard
definition of the phrase contempt of court. Pointing out the difficulties in defining contempt the
Sanyal Committee observed:
“In the law of contempt, difficulty and vagueness start at the definition stage itself. Contempt in its
root sense signifies disrespect to that which is entitled to respect or regard and the expression
contempt of court has been a recognized phrase in English law from the 12th century. If
administration of justice has to be effective, respect for its administration has to be fostered and
maintained and it is out of rules framed by courts in this behalf that the law of contempt has
grown. From rudimentary rules devised for the limited purpose of securing obedience to the
orders of courts, there evolved in the course of time elaborate and far reaching doctrines and
extraordinary procedures. Right till the present century, these doctrines and procedures were
never subjected to legislative scrutiny with the result that the law of contempt had, as it were, a
wild growth. Each new precedent was not declaratory but creative of the law. Each new type of
attack on the administration of justice received a corresponding elaboration or extension of the
14
15
State of Maharashtra v. Mahboob S. Allibhoy, AIR 1996 SC 2131.
1998 (4) SCC 409.
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contempt law. As Craries has said the ingenuity of the Judges and some of those who are
concerned to defeat or defy justice has rendered contempt almost protean in this character. And
even now, it may well be said the categories of contempt are not closed. The result is that there
are contempt, contempt’s ranging from mere disobedience to orders of the court and involving
only a wrong of a private nature as between the parties to a suit at one end and contempt
involving physical violence or large scale blackmail or mudslinging by means of publication on the
judge at the other end. In view of the haphazard development inherent in the process of
development of law by judicial precedent, it is not possible to attempt neat and clear cut
classifications of various branches of the law of contempt and, in view of the possibility of new
types of contempt arising in future, it is not possible to demarcate the area of operation of the law
of contempt arising in future, it is not possible to demarcate the area of operation of the law of
contempt. It is for these reasons that judges and jurists have not succeeded in formulating a
comprehensive and complete definition of the concept of contempt of courts. The Shawcross
Committee observed: Not the least of the difficulties in this field (definition) is that contempt, being
growth of the common law, has no authoritative definition or limitation…It can be defined in the
most general terms. In the words of one of our own judges, “It is indeed difficult and almost
impossible to frame a comprehensive and complete definition of contempt of court. The law of
contempt covers the whole field of litigation itself. The real end of a judicial proceeding, civil or
criminal, is to ascertain the true facts and dispense justice…Anything that tends to curtail or
impair the freedom of the limbs of the judicial proceeding must sof necessity result in hampering
the due administration of law and in interfering with the course of justice.” 16
The reasons given by the Sanyal committee does not require any clarification or explanation to
the problem of defining the concept of contempt of court. It is the discretion that is left to the judge
to decide whether the contemnor has passed the tests laid down by prior decision or has in any
manner affected the dignity or integrity of the court. If we provide with a concrete definition that
would limit the scope of contempt, hence it should be left to the courts to decide whether any
contempt has been done. But the fear that crops up with this vagueness is the danger of misusing
this power by the court and the judges. The discretion of defining contempt is given to the judges
with an assumption that they are honest and would always be fair and just.
16
S. Pal, Law of Contempt, Law Research Institute, Calcutta, 2001 at 26.
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Chapter-II
COMPARATIVE STUDY
Contempt Under Common Law- Position In United Kingdom
Lord Justice Otton gave an overview of the concept of contempt of court. In England, contempt
has inhered in the judicial power to run the courts and to prevent interference with justice "since
time immemorial". Contempt protects the dignity of the Court, not the individual judge.
Contempt can be criminal or civil. Criminal contempt involves an intentional interference
with the administration of justice, while civil contempt is disobedience to orders or
judgments of a court, with only knowledge of the order or judgment, not intent to interfere,
being needed. Civil contempt requires only a preponderance of the evidence while
criminal contempt requires proof beyond reasonable doubt. Another significant distinction
arises from whether the contempt occurs "in the fact of the court" or outside it; contempt
beyond the courtroom is much harder to prove.
English contemnors are not entitled to a trial by jury. Parliament enacted the Contempt of Court
Act of 1981, which for the first time imposed a two-year maximum jail sentence for civil and
criminal contempt as well as maximum fines. The court can use all its contempt powers but still
suspend sentence if the contemnor promises not to repeat the contumacious act and apologizes.
Lord Justice Otton described a fine of £40,000 against The Evening Standard newspaper, which
had been sustained by the Court of Appeal a week earlier for publishing the criminal records of
defendants on trial for explosives offenses with IRA links. England imposes limits with respect to
reports of proceedings and publication of material likely to interfere with the administration of
justice. The result in The Evening Standard case was very prejudicial, including a halt to the
criminal trial. He also noted a reluctance to use the contempt power for fear of creating a cause
that spurs public sympathy as, for example, in various English coal strike orders.
The main aim of contempt of court rules is to prevent potential jurors from being prejudiced for or
against a defendant because of what has been published in the media before or during a trial.
A jury is supposed to reach their decision only on the evidence produced in court. The jury must
also presume that the accused is not only innocent but also that he has no previous convictions.
Contempt of Court is governed by two sets of rules.
1. The Contempt of Court Act 1981 applies to individual cases.
2. Common Law contempt can apply to individual cases and to the administration of the
law generally.
8
One of the tests to determine contempt is whether the story creates a substantial risk that
the course of justice will be seriously impeded or prejudiced.
The important words are ‘substantial’ and ‘serious’. These are the tests by which the court
decides whether the story would create a substantial risk of serious prejudice the mind of
anyone who read it and who was then was selected to serve on the jury hearing the case.
Time: The longer the time between the story being published and the jury retiring to reach its
verdict the less chance there is of the story being in contempt. News desks should know the
average time it takes in their Crown Court area for a case to go from arrest to trial. If the story is
published, say, on the night before the trial opens then the risk of contempt is higher than if it
were published months previously.
Proximity: The court will weigh up the chances of a juror having actually read the offending story.
If the story is published in the Northern Echo in Darlington and the trial is held in Cornwall then
there is plainly little chance of a substantial risk of serious prejudice because a potential juror
could never be expected to have read it.
Initial Impact: Presuming, though, that the story is likely to have been read by a potential juror
then the court will try to assess the impact the story would have had on him.
It does so by determining how novel was the way it was presented. A screaming Page One lead
in the local paper would plainly have more impact than a down page three-par story on page 18
of a national. Then the court would try to evaluate the:
Residual Impact: The theory is that if a juror listens in court to all the evidence, and hears all the
witnesses cross-examined, and then is guided by the trial judge on what is, and is not, important
then any initial prejudicial impact the story might have had will fade away as the juror
concentrates on the actual evidence.
The trend is towards liberalization when it comes to applying the Contempt of Court Act 1981.
Judges seem to have accepted that most pre-trial coverage, while maybe prejudicial, falls short of
creating a substantial risk of being seriously prejudicial. National tabloids have used lurid
accounts of Geoff Knights beating up a taxi driver and have been cleared of contempt.
But each case is different. By using the above tests an editor can at least make his own
assessment of whether the particular story creates a substantial risk of serious prejudice.
There is a particular danger in revealing that the defendant has a previous conviction. A jury
(which must presume that a defendant has an unblemished past) would find that hard to forget.
The Contempt of Court Act 1981 ceases to be active when: The arrested person is released
9
without being charged - except when released on police bail. No arrest is made within 12 months
of the issue of the warrant the case is discontinued the defendant is acquitted or sentenced the
defendant is found unfit to be tried, or unfit to plead or the court orders the charge to lie on the
file.
Newspapers are safe when they use police appeals for help in tracing a wanted man for whom a
warrant has been issued even though the ‘Danger Man’ or ‘ Find this Monster’ type of headline
would plainly create a substantial risk of serious prejudice especially as most such stories reveal
his past convictions. This is classic contempt of court territory but the Attorney General has
promised not to prosecute because the public safety outweighs the fugitives right to a fair trial. As
soon as ‘Danger Man’ is arrested, however, the immunity ceases.
Section 3 of the Contempt of Court Act gives an editor a defence if, at the time of publication,
having taken all reasonable care, he did not know and had no reason to suspect that proceedings
in the particular case were active.
Section 5 of the Contempt of Court Act gives protection to stories, which are a discussion of
public affairs as long as the risk of prejudice to a particular case is merely incidental to the wider
discussion.
Civil proceedings: The Act states that civil proceedings become active as far as contempt risk is
involved when the case is set down for trial (put on the waiting list) or when an actual date is fixed
for the case to be heard.
Pictures: A picture can be in contempt in the same way as a story if , for instance, the case
hinged on witnesses identifying the man in court or at an identity parade. And if you used a
picture of the defendant handcuffed and guarded by armed police it might also prejudice a juror.
The risk of contempt under the 1981 Act only starts when the Initial Step is taken - a person is
arrested, charged, or has a warrant or summons issued against him. Common Law contempt
covers the time before that initial step is taken but when a trial could plainly be seen to be
imminent or pending. If a known criminal, for instance, takes a group of people hostage and a
newspaper identifies him and his previous convictions before he is arrested or charged or a
warrant is issued then there is plainly going to be a risk of contempt to proceedings which will
almost certainly take place.
If the newspaper is prosecuted under Common Law contempt the prosecution has to prove that
the editor intended to create prejudice. The court can infer intent by taking account of all of the
circumstances leading to publication. Common Law contempt can also be used against articles
prejudicial to the course of justice generally, as distinct from the particular case governed by the
81 Act.
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Position Under the American Legal System
Contempt of court is an act of disobedience or disrespect towards the judicial branch of the
government, or an interference with its orderly process. It is an offense against a court of justice
or a person to whom the judicial functions of the sovereignty have been delegated.
The American Jurisprudence defines contempt of court in Vol 17. It can be classified as follows:
1. Despising the authority of the Judge or dignity of the court;
2. Any conduct which tends to bring the authority and administration of law into disrespect or
disregard;
3. Any conduct which interferes or prejudices the parties to a litigation or their witnesses during
a litigation;
4. Any conduct which otherwise tens to impede, embarrass, or obstruct a court or a judge in the
discharge of its or his duties;
5. A statute may define contempt but it can never be exhaustive.
In the United States of America freedom of speech was originally protected by the doctrine clear
and present danger propounded in Schenk v. United States17 In that case the Supreme Court of
USA passed observations upon the military censorship provisions of the Espionage Act of 1917,
which imposed certain limitations upon press and speech. Rejecting the contention Justice
Holmes wrote an opinion unanimously concurred by the court, upholding the Constitutionality of
the Espionage Act. The right of speech he said “ had never been an absolute one at any time, in
peace or in war. Free speech would not protect a man in falsely shouting fire in a theatre, and
causing a panic. When a nation is at war he added many things that might be said in time of
peace are such a hindrance to its effort that their utterance will not be endured so long as men
fight and no court could regard them as protected by any Constitutional Right.”
According to this view freedom of speech could be abridged only if the Government could show
that there was a clear and present danger to the state arising from the abuses of that freedom.
This doctrine, however, was jettisoned in Dennis v. United States.18 In that case the validity of the
17
(1919) 249 U.S. 47. The case involved an appeal from a conviction in the lower Federal Court on a charge
of circulating antidraft leaflets among members of the US armed forces. The Espionage Act made it a felony
to attempt to obstruct the enlistment in and recruiting to services of the United States or to convey false
statements with intent to interfere with military operations. Appellant’s counsel contended that the Espionage
Act violated the First Amendment guaranteeing freedom of speech and of the press and was
unconstitutional.
18 (1951) 34 U.S. 494. The Statute made it unlawful for any person to advocate, advice or teach duty,
necessity desirability or propriety of overthrowing or destroying the Government in the United States, by
force or violence and penalized even a conspiracy to commit such forbidden acts. The petitioners, leading
members of the Communist Party, were charged with a conspiracy to form a party for teaching and
advocating the overthrow of government by force. They contended that the statute could not stand the
11
Alien Registration Act, 1940 was in question. Vinson C.J. observed as follows “ In this case we
are squarely presented with the application of the clear and present danger test and must decide
what the phrase imports.” The test of clear and present danger was discarded and the test of
clear and probable danger has been substituted. The time factor has been thus eliminated from
the test. Judged by the new test it was held that the impugned statute was constitutional, though
it penalized even conspiring to advocate the future overthrow of the state and no imminent
danger is to be apprehended thereby. The arm of the law has been lengthened thereby. No doubt
Douglas J., in his dissenting opinion bewails that free speech, the glory of our system of
government, had been eclipsed by the majority ruling in Dennis case.
In Yates v. United States19 while appearing to adhere to the modification of the clear and present
danger test, the Supreme Court has in a measure really overruled the Dennis Case. In Yates
case the Supreme Court set aside the conviction of fourteen communists who had been
convicted under Smith Act. It was held that the advocacy of the overthrow of the Government as
an abstract principle did not constitute an offence under the Smith Act. It is only when action to
that end, though it may not be immediate action, has been advocated, that the offence would be
committed. The decision in Yates case restored to some extent the protection to freedom of
speech which had been withdrawn in Dennis case. But his test is not applicable in India as this
principle was rejected by Justice Madhokar in 1961. 20
Under the US law of contempt, the courts have recognized both direct and indirect contempt.
Contempt is indirect when it occurs out of the presence of the court, thereby requiring the court to
rely on the testimony of third parties for proof of the offense. It is direct when it occurs under the
court's own eye and within its own hearing. See Matter of Heathcock, 696 F.2d 1362, 1365 (11th
Cir. 1983); United States v. Peterson, 456 F.2d 1135, 1139 (10th Cir. 1972). The requirement that
direct contempt be committed in the presence of the court does not limit direct contempts to those
which take place in the courtroom, but some degree of formality usually found in the courtroom
setting must accompany an exercise of the judicial function for the proceedings to be in the actual
presence of the court. Matter of Jaffree, 741 F.2d 133 (7th Cir. 1984). Direct contempt for conduct
in the court's presence may be punished summarily. McGuire v. Sigma Coatings, Inc., 48 F.3d
902 (5th Cir. 1995).
The law of contempt cannot have a broad general principle applicable to the concept of contempt
in totality. The courts have made a distinction between civil and criminal contempt. Because
different substantive and procedural rules apply to civil and criminal contempt, distinctions
between the two forms of contempt are important. "Criminal contempt is a crime in the ordinary
Constitutional test of “clear and present danger” and that their conviction by the court below was therefore
liable to be set aside.
19 (1957) U.S. 298.
20 Babu Lal Parate v. State of Maharashtra, AIR 1961 SC 884.
12
sense," Bloom v. Illinois,21, and "criminal penalties may not be imposed on someone who has not
been afforded the protections that the Constitution requires of such criminal proceedings." Hicks
v. Feiock.22 These constitutional protections include the right (1) not to be subject to double
jeopardy, see United States v. Dixon23; In re Bradley,24; (2) to receive notice of the charges, (3) to
receive assistance of counsel; (4) to receive summary process; (5) to present a defense, Cooke
v. United States25 (6) not to self-incriminate oneself, and (7) to proof beyond a reasonable doubt,
Gompers v. Bucks Stove & Range Co. 26. For serious criminal contempt involving imprisonment of
more than six months, these protections include the right to a jury trial.
By contrast, civil contempt sanctions--which are designed to compel future compliance with a
court order--are coercive and avoidable through obedience, and "thus may be imposed in an
ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof
beyond a reasonable doubt is required." International Union, UMWA v. Bagwell27.
21
391 U.S. 194, 201 (1968)
485 U.S. 624, 632 (1988).
23 509 U.S. 688, 695 (1993).
24 318 U.S. 50 (1943).
25 267 U.S. 515, 537 (1925).
26 221 U.S. 418, 444 (1911).
27 512 U.S. 821, 114 S.Ct. 2552, 2557 (1994)
22
13
Chapter-III
CONTEMPT OF COURT AND THE INDIAN JUDICIARY
The Media and the Judiciary share a need that neither can live without: you must have journalistic
independence and judges must have judicial independence. He further elaborated “ Hitler’s
Germany is still fresh in memory, so we can recall two of his major steps to consolidate his power
when he became the Chancellor. One was to destroy the free press; the other was to control the
courts and eliminate an independent judiciary. Knew and we know that no dictation can survive
with an independent press and independent judiciary. 28
The power of the Supreme Court of India in dealing with the day-to-day affairs of the citizens has
increased many a fold during the past few decades. Looking at the pages of Law Reports prior to
lifting of emergency will reveal the irrelevance of the courts to a large part of the Indian
population. It is after the lifting of emergency from the 1980’s that the Supreme Court fully
realized its potential. The failure of the Legislature and the Bureaucracy to live up to the
expectations in the eyes of the people put the Judiciary in a higher pedestal. It was seen as the
last resort for justice to the otherwise “justice starved” citizens of India. The Supreme Court of
India as well as other courts arose to the occasion in helping the poor and down trodden section
of the society.
But it was precisely this magnanimous view taken up by the Supreme Court to look into almost all
the aspects of the other two wings that gave rise to criticisms. The criticisms were from the public,
from the press and the media. The view of the Supreme Court towards these criticisms were not
always static. It kept on changing from the stating that the judiciary’s shoulders are broad and
going to the other extreme by punishing an individual who had made a contempt of court. It is
precisely those exercise of the contempt powers of the Supreme Court and the Indian Judiciary in
general over the past few decades, that will be dealt with in these chapters. There is no better
way to look at these exercise of power but to examine the judgments passed by the Supreme
Court and the High Courts regarding this matter.
One of the first and interesting cases regarding law of contempt arose in 1954.29 In this case the
members of the Executive Committee of the District Bar Association at Muzaffarnagar within the
state of U.P made certain allegations against a judicial officer Mr. Kanhaya Lal Mehra and a
Revenue Officer Mr. Latta Prasad. A resolution was passed in the meeting of the Bar
Associations that complaints should be filed to the superior authorities against the misconduct of
these judges. The allegations were in all”
CHIEF JUSTICE Warren Berger as cited in Floyd Abrams, “Fair Trial- Free Press: A Legal overview”,
Address before Connecticut Bar Association, 1979 as cited in Justice V r Krishna Iyer ad V Sethi, Essays
on Press Freedom, 1st Edn., Capital Foundation Society, 1996, New Delhi at 13.
29 Brahma P. Sharma v. State of U.P. AIR 1954 Supreme Court 10.
28
14
1. The judicial officer does not record evidence in cases tried before him properly, that in all the
Criminal matters that are transferred to the court, where the accused are already in bail, he
does not give them time to furnish fresh sureties with the result he is sent to jail. He is not
accommodating to lawyer as whole
2. The revenue officer follows the highly illegal procedure of leaving 2 cases at a time, wherein
he records the evidence of one case and ask the court clerk to do so with the other. Also he
is highly temperamental and constantly threatens the lawyers with contempt of court.
3. It is now our considered opinion that the two officers are thoroughly incompetent in law, do
not inspire confidence in their judicial work. They state wrong facts when passing judgments
and are overbearing and discourteous to the litigant public and the lawyers alike.
The High Court found the lawyers to be prima facie in contempt of court and fined them Rs. 300/-.
The Supreme Court considered all the relevant facts including the fact that the meeting was held
in closed quarters. Only members were present, the resolutions were typed by the president of
the Bar itself and even the minutes book didn’t have the record. After considering all the relevant
facts and circumstances the Supreme Court speaking through Justice Mukherjee held:
“We are unable to agree with the learned counsel for the respondents that whether or not the
representation made by the appellants in the present case is calculated to produce these results.
It is to be kept in mind, when attacks or comments are made on a judge or judges, disparaging in
character and derogatory to their dignity care should be taken to distinguish between what is libel
on the judge and what amounts to contempt of court. The fact that a statement is defamatory so
far as the judge is concerned does not really make it a contempt.”
More over the judge said that the object of representations made by the appellant in the present
case were not for the purpose of exposing the public alleged short comings of the officers
concerned, the whole object was to have the grievance of the lawyers and the litigating public
really felt. The Supreme Court reversed the decision and allowed the appeal.
One of the excellent examples for the so-called “hyper sensitivity” of the Supreme Court is the
case of E.M.S. Namboodri v. T.N. Nambiar.30 The case arose out of a press conference that the
then Chief Minister E.M.S Namboodripad held.31 During the press conference he made certain
remarks:
“ Marx and Engel considered the judiciary as an instrument of oppression…Judges are guided
and dominated by class hatred, class interests and class prejudices and where the evidence is
balanced between a well dressed, pot bellied rich man and a poor, ill-dressed and illiterate
person, the judge instinctively favors the former…..Judiciary is part of the class rule of the ruling
30
AIR 1970 SC 2015.
15
class. And there are limits to the sanctity of the judiciary. The judiciary is weighed against
workers, peasants and other sections of the working class and the law and the system of judiciary
essentially serve the exploiting classes.”
Namboodripad was convicted by the Kerala High Court for contempt of court and sentenced to a
fine of Rs 1000/-. This was a majority decision made by Justice Raman Nair, Justice
Krishnamoorthy Iyer and with Justice Mathew dissenting. Namboodripad appealed to the
Supreme Court pleading:
1. His observations did no more than give expressions to the Marxist philosophy and what was
contained in the programme of his party.
2. They contained a fair criticism of the judicial administration.
3. They did not contain criticism of any particular judge or his judgment or conduct.
4. The law of contempt ought to be interpreted so as to cause no encroachment upon the
freedom of speech guaranteed by Article 19(1)(a) of the Constitution of India.
The judges Hidayatullah CJ, G. K. Mitter and A. N. Ray after looking deeply into the teachings of
Lenin and Marx came to the conclusion that no where in their writings have they shown any direct
attack on the judiciary. The court arrived at the conclusion that in all their writings there is no
mention of judges, which the appellant had made. The court further states that “ either he does
not know or has deliberately distorted the writings of Marx. The Supreme Court hence convicted
Namboodripad for contempt of court but reduced the fine from Rs 1000/- to Rs. 50/-.
Another case which relates to Freedom of Press and contempt of court, and also which gave rise
to vehement criticism from both inside and outside legal circles is P. N Duda v. P. Shivshanker.32
The case arose out of a complaint filed by P.N Duda against P. Shivshanker who was the Union
law minister. According to the petitioner the Union Law Minister had committed contempt of court
during speech made by P Shivshanker on the occasion of the silver jubilee of the Bar Council of
Andhra Pradesh. Even though the speech was addressed to Judges and lawyers, a large number
of press personnel were present. P. N. Duda complained about 5 passages in his speech. The
two main point were:
1. The Supreme Court composed of the element from the elite class had their sympathy for the
haves i.e. the Zamindars. As a result they interpreted the word compensation in Article 31
contrary to the spirit and amendment of the Constitution and rules the compensation must
represent the price which a willing seller is prepared to buy from a buyer. The entire
programme of Zamindari abolition suffered a set back. The Constitution as amended by the
1st 14th and 17th Amendments to remove this oligarchic approach of the Supreme Court with
31
This press conference was held at Trivandrum on November 9 th 1967 and the paper which reported was
the Indian Express.
32 AIT 1988 SC 1208.
16
little or no help. Ultimately this rigid reactionary and traditional outlook of property, led to the
abolition of property as a fundamental right.
2. Anti social elements, i.e. FERA violators, bride burners and whole horde of reactionaries
have found their haven in the Supreme Court.
The case was heard by a bench comprising of Justice Sabyasachi Mukherjee and S
Ranganathan. To the biggest surprise of everyone the Supreme Court took a liberal view.
Speaking through Justice Mukherjee, the SC held that: “ there was no imminent danger of
interference with the administration of justice, nor of bringing a administration into disrepute. In
that view the minister was not guilty of contempt of the court. The speech of the Minister read in
its proper perspective, did not bring the administration of justice into disrepute or impair
administration of justice, though in some portions of the speech language used could have been
avoided by the minister having background of being former judge of the High Court. The minister
perhaps could have achieved his purpose by making his language but his facts deadly. The
petition was dismissed.
The Supreme Court has not been the only court, which has issued contempt of court
proceedings. Many of the High Courts have also done the same. Recently the Delhi High came
into the limelight following what has been called as the “ Wah India” case33. The case arose out of
the publication by the publishers of a magazine by the name of Wah India ! on their website, the
results of a purported survey grading the judges of Delhi High Court. Each of the judges whose
photos were also published were graded in a five column table rating the inter alia, on their
personal integrity, depth in law and quality of judgments delivered. The publishers claimed that
the grades were based on a survey where fifty of the senior members of the Delhi Bar were
consulted. The publication was titled “ Judged out” and it also claimed that the survey is by no
means an attempt to cast any aspersion on the competence of the judiciary, but is a small and
humble attempt to hold a mirror to it. It might make some Judges uncomfortable, but the truth
sometimes does.
The Delhi High Court passed an order summarily directing the confiscation of the unsold copies
of the issue of the news magazine barred its circulation and ordered the media not to publish any
thing that would lower the authority, dignity and prestige of the members of the judiciary. The next
day the court lifted the ban on reporting of the contempt proceedings and directed that the
reporting must be fair and accurate.34 But the court let the publishers off after the acceptance of
an apology by the publisher Rahul Mishra, editor Madhu Trehan and three journalists.
33
Cited in Madhavi Divan, The Law of criminal Contempt: time to move on, The Lawyers Collective, March
2002 at 8.
34 The Indian Express, 2nd May 2001.
17
Another case that came up before the Supreme Court recently was Re: S K Sundaram.35 The
case arose out of a suo motu action in the Supreme Court. A Chennai based advocate had sent
telegrams to the then CJ of India Dr. A.S Anand, demanding his resignation on the ground that
the latter had exceeded the age of superannuation. Within three days of sending the telegram, he
filed a criminal complaint against the CJ under the IPC, 1860 alleging cheating, criminal breach of
trust and falsification of records, that Dr. Anand had usurped the office of Chief Justice of India
and ‘caused loss to the exchequer to the tune of Rs. 3 Crores’. The petitioner who had previously
filed a mandamus seeking the president of India to verify the age of Dr. Anand, alleged that he
was spurred into action by an article that appeared in The Hindu on 3-11-2000, publishing a
statement by Ram Jethmalani and an annexure published in the book “ Big Egos Small Men”.
The Supreme Court in this case held that ‘well if he is determined to sign that he would not look at
any one of those material as well as the final decision rendered by the president of India
regarding the age of Dr. Anand, and then decided to persistently jump into the foray with the
tirade, putting himself into the outfit and chasuble of his proof insignia, it is only reminiscent of the
Spanish heir Don Quiescent of La Mancha. On the part of this court, we may observe that if the
contemnor had stopped with his telegram we would have persuaded ourselves to ignore its as a
case of ranting gibberish. But when he followed it up with lodging of a criminal complaint before a
criminal court in which the Chief Justice of India was arrayed as an accused having committed
the offence of cheating, criminal breach of trust and falsification of records we realized that he
seriously meant to malign and undermine the dignity and authority of this court.36 Sundaram was
sent to 6 months imprisonment.
The most recent as well as the most controversial one was Arundhati Roy, In Re.37 The facts of
this case arose from a former case Narmada Bachao Andolan v. Union of India.38 While the case
was pending before the Supreme Court Mrs. Arundhati Roy wrote an article “ The Greater
Common Good” which was published in outlook and Frontline magazines. Two of the judges of
the Supreme Court found that the comments made by her were, prima facie, a misrepresentation
of the proceedings of the Court. The Court showed its discontent “ we are unhappy at the way
leaders of NBA and Mrs. Arundhati Roy have attempted to undermine the dignity of the court. We
expected better behaviour from them.39 But the court let the matter lie in the larger interest of the
issues pending before them. But on 30-12-2000 Mrs. Arundhati and Mrs. Medha Patkar led a
huge protest rally in front of the Supreme Court and shouted abusive slogans at the court. They
also attacked the petitioners to judges R Parashar advocate and others. Hence they filed a
35
(2001) 2 SCC 171.
(2001) 2 SCC 171 at 176.
37 (2002) 3 SCC 343.
38 AIR 1999 SC 3345.
39 NBA v. Union of India (1999) 8 SCC 308 at 313.
36
18
petition stating that Mrs. Arundhati Roy is guilty of contempt of court. 40 Moreover the respondent
also stated in her affidavit; “ on the grounds that judges of the Supreme Court are too busy, the
CJ of India refused to allow a sitting Judge to head the judicial enquiry into the Tehelka
Scandal…
Yet when it comes to an absurd, despicable entirely unsubstantiated petition in which all the three
respondents happen to be people, who have publicly- though in markedly different ways
questioned the policies of the Government and severely criticized a recent judgment of the
Supreme Court, the court displays a disturbing willingness to issue notice. It indicates 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 a 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.41 The Bench comprising of Justice G. B. Patnaik and R. P.
Sethi allowed her to retract her averments. But she stood her ground.
The court held that “A fair criticism of the conduct of a judge the institution of the judiciary and its
functioning may not amount to contempt if made in good faith and in public interest. To ascertain
the good faith and the public interest, the courts have to see all the surrounding circumstances
including the person, his knowledge in the field and the intended consequence. 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.
More over the Supreme Court stated these cannot come under the exception of P. N. Duda v.
Shiv Shanker42, the court held that “it may be noticed that the criticism of the judicial system was
made by a person who himself had been the judge of the High Court and was the Minister at the
relevant time. He had made studies about the system and expressed his opinions which, under
the circumstances was held to be not defamatory despite the fact that the court found than in
some portion of the speech the language used could have been avoided by the Minister having
the background of being a former judge.”43 The court here found that Mrs. Roy was devoid of any
special knowledge of law and hence was fined Rs. 2000/-.
40
Judges R Parasher v. Prashant Bhusan, (2001) 6 SCC 735.
In re Arundhati Roy, (2002) 3 SCC 346 at 354.
42 AIR 1988 SC 1208.
43 (2002) 3 SCC 343 at 372.
41
19
Chapter-IV
CIVIL AND CRIMINAL CONTEMPT
The concept of contempt is a broad one, which has the capacity to encompass any act done in
detriment of the court. Contempt may range from disobedience to orders of the court to throwing
of tomatoes at the Judges. Broadly we can categorize contempt into two types: Civil Contempt
and Criminal Contempt.
CIVIL CONTEMPT
It has been defined under Section 2(b) of the Contempt of Courts Act, 1971. 44The essential
ingredient is ‘willful’ disobedience and not any and every disobedience due to various reasons
such as delay due to unavoidable circumstances, or inadvertence. It has to be proved that the
disobedience was ‘willful’. It connotes a ‘clear intention to flout’.
A civil contempt involves
disobedience to a Court’s order affecting the rights of other parties to that order basically denying
the rightful fruits of the suit to the other party. But Mens Rea has been made an essential
ingredient in the 1971 Act, which is a departure from the pre-existing law with the introduction of
the word ‘willful’. So Civil contempt does not attract strict liability any more. It is sometimes
supposed that the ‘will’ being a party to the disobedience is not enough and that there should
further be an element of obstinacy, rebellion or defiance. In Worthington v. Adlib Club Ltd.45, the
court held that the word ‘contumaciously’ as meaning was not different
from ‘willfully’. In India
also, the courts use the word ‘contumaciously’ in describing contempt and invariably use it
disjunctively with ‘willful’ or ‘deliberate’. In Deba Brata Bandopadhyaya v. State of West Bengal.
46,
The Supreme Court observed that “if orders of stay, bail, injunction, received from higher
courts must be attended to promptly, and if there is a delay in dispatching them or dealing with
them the court may draw an inference of indifference and even contumaciousness.” In Md.Ikram
Hussain v. State of U.P.47, the court asked the appellant to produce his daughter in a matter for
habeas corpus. He made false excuses and did not produce her. He was found guilty of
contempt. In Alligarh Municipality v. E.T. Mazdoor Union
48,
during the pendency of the suit the
trial court passed an order prohibiting the appellant municipality from realizing any fees from the
tongawallas for the use of a stand, which they did not follow and it was held as ‘willful
44
Civil contempt means(i)
wilful disobedience to any judgement, decree, direction, order, writ or other process of a court;
(ii)
wilful breach of an undertaking given to a court.
45 (1964) 3 All. ER 674
46 AIR1969 SC 189
47 AIR 1964 SC 1625
48 AIR 1970 SC 1767
20
disobedience’ and amounted to contempt of court. In Union of India v. Oswal Wollen Mills49,the
court held that “When as a result of an order of the High Court in a writ petition, an application for
license was to be disposed of by the statutory authority, no contempt can be said to be committed
merely because there is a failure to dispose of the petition.” Any order of the court should give
sufficient time for compliance before contempt proceedings can be initiated. Regarding violation
of an undertaking given to a court it was held in M v Home Office50, that if a party or his advocate
acts so as to covey to the court the firm conviction that undertaking is being given the party would
be bound and it will be no answer that he did not think that he was giving it or that he was
misunderstood and he would be held for contempt. But an undertaking, which runs counter to the
statutory provisions or law is an unauthorized undertaking and cannot be the basis of contempt
proceedings for its breach.51
In Md. Idris v. Rustam Jehangir52, where there was a clear breach of the undertaking the court,
held that it was entitled to give directions for closing the breach in addition to imposing
punishment.
CRIMINAL CONTEMPT
It has been defined under Section 2(c) of the Contempt of Courts Act, 1971.53It is thus seen that
scandalizing or prejudicing a Judge or interfering with the administration of justice is Contempt.
Even tending to scandalize or tending to prejudice or tending to interfere or obstruct is enough to
invoke action in criminal contempt. In Naraindass v. State of UP,54the Supreme Court held that, it
is necessary to examine whether any of the impugned statements do interfere or have a tendency
to interfere with due course of the proceedings by creating prejudice against appellant or the writ
petition. In N. Rajagopala Rao v. Murtaza Mujtabbi,55the AP high court held that the publication of
an article casting aspersions on the integrity of the High Court Judges while selecting and
recommending candidates for appointment of District judges was held to be criminal contempt.
All acts, which bring the court into disrespect or disrepute or which offends its dignity, or
challenge its authority, certainly amount to contempt. In Delhi Judicial Service Association v.
State of Gujarat56, the Supreme Court observed that “the definition of criminal contempt is wide
49
AIR 1985 SC 1264
(1992) 4 All. ER 97
51 Babu Ram Gupta v. Sudhir Bhasin , AIR 1979 SC 1528
52 AIR 1984 SC 1826
53 Criminal contempt meansThe publication (a) by words spoken or written; or (b) by signs; or (c) by visible representations or otherwise
of any matter; or (d) 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.
54 AIR 1974 SC 1252
55 (1974) 1 ALT 170
56 AIR 1991 SC 2176.
50
21
enough to include any act by a person which would tend to interfere with the administration of
justice or which would lower the authority of the court. The publics have a vital stake in effective
and orderly administration of justice. The court has the duty of protecting 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. In Pratap Singh v. Gurbaksh Singh,57 the court held that any kind of threat or
any action which may amount to a threat held out to a person who has approached the civil court
for redressal of his grievance with a view to forgo the assistance of the civil court amounts to
criminal contempt. A threat held out to a judge with a view to obtain favourable order would
amount to criminal contempt as interference with the administration of justice in State of A. P. v.
V. Prakash Rao.58 The threat need not be a threat to the judge himself personally.
A false or misleading or a wrong statement deliberately and willfully made by the party to a
proceeding to obtain a favourable order would prejudice or interfere with the due course of judicial
proceeding was held to be criminal contempt in Afzal v. State of Haryana59
Distinction between Civil and Criminal Contempt
Civil contempt is basically wrong to the person who is entitled to the benefit of a court order while
criminal contempt involves defiance of the court revealed in conduct, which amounts to
obstruction or interference with the administration of justice. A helpful illustration is a case where
the person restrained commits a breach, he is guilty of civil contempt but a third party aiding and
abetting a breach commits criminal contempt because he interferes with the administration of
justice. In A-G v. Times Newspapers Ltd.60, the House of Lords, on the rationale behind the
distinction held that “A distinction is sometimes drawn between what is described as ‘civil
contempt’, that is to say contempt by party to the proceeding in matter of procedure, and ‘criminal
contempt’. One particular form of contempt by party to proceedings is that constituted by an
intentional act, which is in breach of the order of a competent court. Where this occurs as a result
of the act of a party who is bound by the order or of others acting at his direction or on his
instigation, it constitutes a civil contempt by him which is punishable by the court at the instance
of the party for whose benefit the order was made and can waived by him. The intention with
which the act was done will, of course, be of the highest relevance in the determination of the
penalty (if any) to be impose by the court, but the liability here is a strict one in the sense that all
requires to be proved its service of the order and the subsequent doing by the party bound of that
which is prohibited. When, however, the prohibited act is done not by the party bound himself but
57
AIR 1962 SC 1172.
1997 (5) ALT 724.
59 1995 Supp.(2) SCC 388.
60 (1991) 2 All ER 398
58
22
by third party, a stranger to the litigation, that person may also be liable for contempt. There is,
however, this essential distinction that his liability is for criminal contempt and arises not because
the contemnor is himself affected by the prohibition contained in the order but because his act
constitutes a willful interference with the administration of justice by the court in the proceedings
in which the order was made. Here the liability is not strict in the sense referred to, for their has to
be shown not only knowledge of the order but an intention to interfere with or impede the
administration of justice- an intention which can of course be inferred from circumstances.”
But a decision of the Andhra Pradesh High Court 61 failed to appreciate this distinction where the
conduct of the contemnor in instituting a suit and obtain in interim order of status quo and
thereafter writing letters to the Advocate Commissioner to stall a decree passed earlier were
characterized as civil contempt in spite of the express finding that the offending acts were
deliberately intended to thwart the earlier orders passed by the High Court.
61
Kamalabai Nayak v. Dhananjoy Nayak, 1996 (3) ALT 404.
23
Chapter-V
CONTEMPT OF COURT AND FREEDOM OF SPEECH- CONSTITUTIONAL ASPECT
“Were it left to me to decide whether we should have a government without newspapers or
newspapers without a government. I should not hesitate a moment to prefer the latter.”62
Though the concept of freedom of press is not a new one, it is very hard to find a suitable
definition. Abraham Lincoln has aptly put it when he said, “ the world has never had a good
definition of it.”63 But people have defined the concept of Freedom of Press and continue to do so.
The concept was explained by William Blackstone way back in 1769 “ The liberty of the press is
indeed essential to the nature of a free state; but this consists in laying no previous restraints
upon publications and not in the freedom from censure for criminal matter when published. Every
freeman has an undoubted right to lay what sentiment he pleases before the public; to forbid this
is to destroy the freedom of the press; but if he publishes what is improper, mischievous, illegal
he must take the consequence of his own territory.” 64
In 1977 the royal Commission on Press has emphasized the importance of, and defined the
freedom of the press as “ that degree of freedom from restraint which is essential to enable
proprietors, editors ad journalist to advance the public interest by publishing the facts and
opinions without which a democratic electorate cannot make responsible judgments.
Prof Chafee said “the truth is, I think, that the framers had no very clear idea as to what they
meant by the freedom of speech or of the press, but we can say with reasonable assurance that
the freedom which congress was forbidden to abridge was not, for them, some absolute concept
which had never existed on the earth.”65 Professor Baxi says that freedom of press means two or
three things. “First it implies the freedom to have the infrastructure required to set up a
newspaper and to run it efficiently. Secondly, it means freedom to gather and report information.
Thirdly, it means freedom to express opinion.” 66
But quite adverse view has also been put in by K. K. Mathew 67 when he said “ the question of the
freedom of press has to be understood in the context of freedom for whom the publisher who has
put in the money; the worker who produces the paper, the advertiser who sustains it, the politician
62
Speech by Thomas Jefferson, S. K. Padover, Thomas Jefferson on Democracy, 2nd Edn., McMillan
Publishers, New York, 1956 at 93.
63 K. K. Mathew, On Democracy, Equality and Freedom, 1st Edn., Universal books, 1978 at 98.
64Blackstone Commentaries, Vol. IV at 151-152 (Wendell ed.;1854) as Cited in Justice E.S.
Venkataramaiah, Freedom of Press- Some Recent Trends, 2nd Ed., B. R. publishing Corp, Delhi, 1987 at
14.
65 Z. Chafee, Book Review, “Free Speech: And its Relation to Self Government by Alexander Meiklojohn,”
62 Harvard Law Review, 1949 at 891 (898).
66 Upendra Baxi, “In an interview on the Freedom of Press,” Vidura, Journal of the Press Institute of India,
Vol. 12, No. 6, December 1974 at 4.
67 K. K. Mathew, Chief Editor, Malayalam Manorama, A Talk on All India Radio on “ The Freedom of Press”,
Vidura, Vol. 15, No. 5, October 1978 at 280.
24
who runs the administration or the reader who reads it? Freedom of the press is the freedom of
the community, of society as a whole. It is not the exclusive privilege of any of the four categories
who are associated with the newspaper publication. The reader who represents society, should
have the ultimate freedom.
The eminent Jurist and writer Mr. Krishna Iyer has summed up what is Freedom of Press.
According to him the major contents of the freedom of press are:68
1. Freedom to gather information from diverse and antagonistic sources, on a competitive basis,
free from any monopolistic control from the government.
2. Freedom to inform the public true facts without fear or favor.
3. Right to have free access to sources of information.
The contempt of freedom of press has come quite a long way. There was a time in U.K. When the
freedom of Press wasn’t encouraged. Sit William Scrogg who became Lord Chief Justice in 1678,
pronounced a judgment that to publish a newspaper was illegal as, according to him, manifested
an intention to commit breach of the peace.69 On 24th February 1703 Daniel Defoe was fined 200
Marks and condemned to be pillared thrice to be imprisoned indefinitely and to find sureties for
his good behaviors during seven years for writing an anonymous pamphlet called “ shortest way
with dissenters. Thus even though the church and state resorted to all methods to suppress,
corruption of youth or sedition. Such restraints through licensing and censorship came to be
accentuated after the invention of printing and the appearance of newspapers in 17 th century,
which demonstrated how powerful the press as a medium of expression is. It is in protest to such
governmental interference that the freedom of the press was built up in England.
A classic example for this situation would be John Milton’s 70 “Aeropagtica” which was a protest
addressed to the long Parliament which had taken up licensing, after the abolition of star
chamber. Milton Said: “Truth and understanding are not such wars as to be monopolized and
traded by tickets…give me the liberty to know to utter and to argue freely according to
conscience, above all liberties. Whoever knew truth put to worse in a free and open encounter?
Who knows not that truth is strong next to almighty; she needs no policies, no strategies, no
licensing to make her victorious; these are the shifts and defines that error makes against her
power.”
It was result of such agitation that the Licensing Act of 1662 was eventually refused to be
renewed by the House of Commons in 1694 though reasons given were technical. Thus even
though the concept of Press Freedom developed in United Kingdom, Sweden was the first
68
Justice Krishna Iyer and V. Sethi, Essays on Press Freedom, 1st Edn., Capital Foundation Society,
1996, New Delhi at 13.
69 Justice E.S. Venkataramaih, Freedom of Press- Some recent Trends, 1st Edn., B.R. Publishing Corp,
New Delhi, 1987 at 13.
25
country in the world to recognize lawfully the freedom of press. The Swedish press Law of 1756
guaranteed a clear protection or the press. The law of freedom of press was first promulgated in
1810 in Sweden. It was replaced in 1949 by a new Act, which enjoyed of being part of the
Constitution itself. Certain amendments were made to the Freedom of Press Act in 1976.71 We
can see from Article 1 of Swedish Constitution that Swedish law expressly provides for freedom
of press. So is the case of United States. In America the struggle for freedom of Press had its
greatest triumph when it came to be guaranteed by a written Constitutions, as a fundamental
right. The First Amendment declared: “ Congress shall make no law…abridging the freedom of
press.” In Bridges v. California72, the American Supreme Court held that freedom of press will
include the freedom to possess those means and equipment which are necessary for the
achievement of the object or goal for which freedom of the press is required.
The Indian Constitution though has not recognized this right specifically under any of the
freedoms the Indian courts have read this freedom under freedom of speech and expression
under Article 19(1)(a).73 Supreme Court in Maneka Gandhi v. Union of India74 observed that “to
be a fundamental right it is not necessary that a right must be specifically mentioned in a
particular article specifically, it may be a fundamental right if it is an integral part of a named
fundamental right or parties of the same basic nature and character as that fundamental right.
Every activity, which facilitates the exercise of the named fundamental right, may be considered
integral part of that right and hence be a fundamental right-freedom of press in Article 19.
But the freedom of press impliedly provided under Article 19(1)(a) is not absolute. It is liable to
reasonable restrictions as imposed by an existing law or a law to be made by a state on various
grounds like a) sovereignty and integrity of India b) the security of the state c) friendly relations
with foreign states d) public order e) decency or morality f) or in relation with contempt of court
and g) defamation or incitement to an offence.75
It is this nexus between freedom of press as impliedly provided in Article 19(1)(a) and its
restriction based upon contempt of court that will be dealt in detail in the coming chapters.
Contempt by Lawyers and Contempt against Judges
In the case of Brahma P. Sharma v. State of UP76 the Supreme Court discussed in very detail the
concept of contempt and libel. The court held that in an instance where the court is called upon
J. Milton, “Aeropagiticia”, 1st Edn., 1644 at 23 as Cited in D. S. Bogen, First Amendment Ancillary
Doctrines, Maryland Law Review, Vol. 37, No. 4, 1978 at 682.
71 Justice A. N. Grover, Press and the Law, 1st Edn., Vikas Publishing House Ltd., New Delhi, 1990 at 8.
72 (1941) 314 U.S. 252.
73 In Romesh Thappar v. State of Madras, AIR 1950 SC 124, the court recognized the fact that freedom of
speech and expression as given in Article 19(1)(a) impliedly gave rise to freedom of press.
74 AIR 1978 SC 597.
75 Article 19(2)
76 AIR 1954 SC 10.
70
26
the exercise the summary powers in cases of contempt committed by scandalising the court,
there are two primary considerations.
1. The reflection on the conduct or character of a judge in reference to the discharge is made in
the exercise of the right of fair and reasonable criticism.
2. When attacks/ comments are made against judge/ judges’ care should be taken to distinguish
between what is a libel on the judge and what amounts to contempt. If the statement is
defamatory so far as the judge is concerned, then he can proceed against the libel or for libel.
The importance of this case lies in the fact that the circumstances as a whole should be looked
into. It is one of the very 1st cases, which states the principle. The fact that the meeting was held
in a closed room, with only four members present, the President himself typing the letter, and
forwarding it to superiors in letter marked “ confidential” all made the court think that whatever
they did was to seek an answer for the grievances faced by the Bar and the public and not to
inform the public about the so-called misdeeds of the judiciary and to scandalize and lower the
value of the court.
The Namboodripad Case was one in which we believe that a more severe punishment ought to
have been imposed. The Supreme Court to a surprise penalized merely with a symbolic fine. H M
Seervai points out “ it is submitted that the judgment is correct in the result but unsatisfactory
when it tends to summarize.77But if we look into it closely we can see that Namboodripads
observations have to be seen in the context of the circumstances they were made in. they were
general in nature. They pertained neither to a pending case nor were they in disobedience of
court order or in defamation for any judge. They contained a criticism of the judicial system in
general and were expressed at a press conference before press correspondents so that they
were not likely to cause even distantly, any interference with the administration of justice. They
were as you can see of purely academic in nature, so far as their effect on the listeners are
concerned. The gravity of speech and the conviction did not seem to get along together.
But whatever the results were the methods by which the court arrived at the conclusion is nothing
but pitiable. In order to refute the arguments of Mr. Menon who appeared on behalf of the Chief
Minister, the Court went and examined the whole Marxian ideology. Vehement criticisms were
raised against this approach of the Court. After the court decided, S. P. Sathe wrote, “ it is not
clear. However, that there was any need to undertake an examination of the writings. The Courts
could have told Mr. Menon that they were interpreting the Indian Constitution and not Marx, Engel
or Lenin. Whether they had learnt about communism only by reading Miclellitan-Murray was
irrelevant. If Namboodripad’s statement amounted to contempt of court, he had to be punished no
matter whose views he was voicing.” The Supreme Court could have resorted to what justice
77
H M Seervai, Constitutional Law of India, Vol. I, 4th Edn., Universal Book Publishers, New Delhi, 1999 at
749.
27
Holmes stated in his classic dissenting judgment in Lochner v. New York 78 “the case is depended
upon an economic theory which a large part of the country does not entertain. If it were a
question whether I agreed with that theory, I should desire to study it further and long before
making up my mind. But I do not conceive that to be my duty, because I strongly believe that my
agreement or disagreement has nothing to do with the right of the majority to embody their
opinions in law…the 14th amendment doesn’t enact Mr. Herbert Spencer’s social statistics.” This
is what court ought to precisely have done. Apart from the fact that their dwelling into history of
Marxist ideology sidetracks the main issues. It also unnecessarily involves the court in a political
controversy.
It comes to as a surprise to many that the Supreme Court who convicted Namboodripad who was
a chief minister and widely acclaimed scholar, acquitted Shiv Shanker. 79 The speech by Shiv
Shanker is highly inflammatory and with complete disregard to his position. If it was to be argued
that the decision in Namboodripad’s case was correct, because a person in such a high position
should have taken more care while making such statements before the press, that argument
collapses when one reads the ShivShanker judgment. Justice Mukherjee not only didn’t convict
him but even stated that the statement was a compliment to the judiciary.
Justice Mukherjee applied the test of “imminent dangers” as laid down by Justice Holmes in
Schnenck v. U.S.80 Justice Mukherjee said “ with these observations, it must be held that there
was no imminent danger of interference with the administration of justice, nor of bringing
administration into disrepute. In that view it must be held that the minister was guilty of contempt
of court.”
Moreover the judges should have looked into the consequence when the Union Law Minister
himself speaks to the gathering where the press is present, that Supreme Court is comprised of
the elite class…what will be the impression on the normal man; will he have faith in the judicial
system? H. M. Seervai remarks about that he intended no disrespect to the Supreme Court and
that he had high regard for the Hon’ble court can only be compared to a man who slaps another
person very hard and then says that he had high regard for that person and was merely trying to
rouse him to a sense of his own shortcomings. 81
The case of Wah India where they were hauled up for contempt was a correct decision by the
Apex court. As put forward by Lord Simons in Attorney General v. Times Newspaper82 there are
always 2 conflicting interests before the court. One in the publics right to information and thus the
78
(1904) 198 U.S. 45, 49 L ed. 937.
P. N. Duda v. P. Shiv Shanker AIR 1988 SC 1212.
80 (1918) 249 U.S. 47.
81 Supra. n77 at 759.
82 [1973]1 ALL E. R. 710.
79
28
freedom of press and the other in uninterrupted administration of justice. Here I cannot see how
the public’s right to information is infringed. They were putting up news item, which had no real
and substantial basis at all. The publishers claimed that the grades were based on a survey
where fifty of the senior members of Delhi Bar were consulted. But how far is this credible?
Wouldn’t it happen that a lawyer who lost an important case will have some grudge against that
particular judge? So the element of truth cannot be found out. The Wah India case does no credit
to the case for journalistic freedoms. If the media demands greater freedom to criticize the
administration of justice, there is also a corresponding duty on the media to report with a much
greater degree of responsibility.83 Also we should look at the facts that judges by the nature of
their office cannot respond to criticism or get embroiled in controversy in the public arena. 84Also
in De Haes and Gijsels v. Belgium,85 the European Court while reiterating that the press plays an
essential role in a democratic society remarked that “the courts must be protected from
destructive attacks that are unfettered, specially in view of the fact that judges are subject to a
duty of discretion that precludes them from replying to criticism.”
In the case of Re. S K Sundaram86 the distinction between libel and contempt is almost
completely blurred. The court while discussing the charges contained in the telegram held that
“anyone of those postulates would certainly scandalize and at any rate would tend to scandalize
and lower the authority of the courts as a whole, and particularly the Supreme Court of India. The
Chief Justice of India by virtue of his Constitutional ranking is the head of the Indian Judiciary.
When threats of the above nature have been hurled at him, they would unmistakably ten to
undermine the positions, majesty and dignity of the courts and the law.
Another important aspect about this case was put forward by Madhavi Divan in an article. 87 Divan
stated “where the allegations ceased to be libel and when they amounted to contempt is not
explained. Also, although the court referred to Jethmalani’s Book Big Ego Small men, it appears
that the context of this book, the apparent source of renewed attack by Sundaram were not
examined. This book in addition to containing material in support of the claim that the then chief
justice had passed the age of superannuation, also alludes to a controversial land acquisition
case involving members of Dr. Anand’s family. Yet those writings of the former law minister of
India and far more damaging than any “ ranting gibberish” by an unknown entity provoked no
judicial response.
83
Re Harijai Singh and Another and Re Vijay Kumar, (1996) 6 SCC 466.
Lord Denning in R. v. Metropolitan public Commissioner Exparte, (1968) 2 ALL E. R. 319.
85 Application 19998/ 92, (1998) 25 EHRRI
86 (2001) 2 SCC 171.
87 Madhavi Divan, “The Law of criminal Contempt: time to move on”, The Lawyers Collective, March 2002
at 8.
84
29
In Re Arundhati Roy88 the verdict of the Supreme Court, which distinguishes this case from P. N.
Duda v. Shivshanker is utterly illogical. The court held that since Mr. Shivshanker was a retired
High Court Judge and Union Law Minister, he had made studies about the system and expressed
his opinion which, under the circumstances was held not to be defamatory. But the courts also
held that in the instant case the respondent has not claimed to possess any special knowledge of
law and the working of the institution of judiciary. She has not made any studies regarding the
working of judiciary in this country and in these case, the benefit to which Mr Shivshanker under
the circumstances was held entitled is therefore not available to the respndent in the present
proceedings.
This however I cannot grapple with. To say explicitly that only a person who has knowledge of
law and working of the judiciary can criticize the judiciary, is to saying that only lawyers, jurists
and academicians can criticize the judiciary. Then what about the average and so called lay man
to do?
In R. v. Nicholls,89 which is regarded as an Australian authority, Griffith CJ held that “ the defence
of fair comment is available to persons charged with scandalizing the court”. The same case has
been cited with approval in many of the leading Indian decisions. If we follow this principle,
Arundhati Roy’s opinion should have been considered as a fair comment.
It has been rightly held in M.R. Parashar v. Farooq Abdullah90 by Chandrachud CJ that “ the right
of free speech is an important right of the citizen, in the exercise of which he is entitled to bring to
the notice of the public at large the infirmities from which any institution suffers, including
institutions which administer justice. Thus it is clear from this statement that every citizen has a
right to healthy and constructive criticism. Here one cannot differentiate the citizens by barriers of
specialist knowledge of law and the working of judiciary. A G Noorani writes a disturbing
judgment has looked into these aspects and commented “all men are equal before the law, one
cannot but wonder how the Supreme Court at last distinguish citizens into two categories.” 91
One cannot help but wonder at the irregular pattern in which the Supreme Court gives its verdict
for contempt cases. In Namboodripads Case, the Supreme Court convicted him and went to great
lengths to check up the works of Marx and Engel to prove him wrong. In P. N. Duda v.
Shivshanker it went to the other extreme and even said what he had said was a compliment and
exonerated him. This was not the only instance. Even the Kerala High Court hauled up Justice
Krishna Iyer for contempt of Court twice but exonerated him by stating “ he was an eminent jurist
author and judge, and has better and more thorough knowledge in the field of law. In J.
88
(2002) 3 SCC 346.
(1911)12 CLR 280.
90 AIR 1984 SC 615.
91 A. G. Noorani, “A Disturbing Judgment”, Frontline, March 29 2002 at 34.
89
30
Subramanium Potti’s wards.92 “There is an ocean of difference between well-informed and illinformed criticism. Those who have spent years and perhaps life time as part of the institution or
to study an institution may have occasion to make a through objective assessment of that
institution. What they say in regard to a matter concerning that institution should be viewed
differently from a similar statement by an uninformed person.
One of the important questions that arise in the specter of contempt power of the courts is the
right of the contemnor to go ahead and prove the truth of his allegations. Or otherwise will truth
be a defence in contempt in contempt proceedings?
A few years back the honorable Supreme Court had the occasion to consider this question in
D.C. Saxena v. Hon’ble the Chief Justice of India.93 In that case a contemnor filed a writ petition
against the then Chief Justice of India was unfit to hold that office and hence he should be
stripped of his citizenship. He also sought for a direction to register an FIR against the then CJI
under different provisions of IPC and also to prosecute him under the Prevention of Corruption
Act.
Looking into the relevant facts the 3 judges bench held that “ it tends to lower the dignity and
authority of the court and also sow seeds to persons with similar propensity to undermine the
authority of the court or the judiciary as whole, he crossed all boundaries of reckless and indulges
in wild accusations.
Speaking about truth as a defence judges K Ramaswamy said “ it would not be open to the
contemnor to bring forward evidence or circumstances to justify on to show whether and how
fairly imputatious were justified because the judge is not before the count.”
It is humbly submitted that the view taken by the Supreme Court is not right in this matter. It has
completely ignored the precedents of the same court in which “Truth as a defence” was stressed.
In Bathina Ramakrishna Reddy v. Madras,94 judges, Mukherjee said, “the article in questions is a
scurrilous attack on the integrity and honesty of a judicial officer. Specific instances have been
given where the officer is alleged to have taken bribes or behaved with impropriety to litigants
who did satisfy his dishonest demands. If the allegations were true, obviously it would be to the
benefit of the public to bring these matters into light. But if they were false, they cannot undermine
the confidence of the public in the administration of justice and bring the judiciary into disrepute.
92
P Krishnaswamy, Justice V. K. Krishna Iyer-A Living Legend, 1st ed., Universal Publication, New Delhi,
New Delhi, 2000 at 350.
93 (1996) 5 SCC 216.
94 AIR 1952 SC 76.
31
Also in R. v. Nicholls95 Griffith CJ observed: “ I am not prepared to accede to the proposition than
an imputation of want of impartiality to a judge is necessarily contempt of court. On the contrary, I
think that if any judge of this court on if any other court were to make a public utterance of such
character as to be likely to impair the confidences of the public, or of suitors or any class of
suitors in the impartiality of the court in any matter likely to be brought before it, any public
comment would so far from an utterance, if it were a fair comment, would so far from being a
contempt of court, be entitled to similar protection to that which comment upon matters of public
interest is entitled under the law of libel.96
Thus it is added that if a contemnor is prepared to go forward and prove the charges to the
extreme with all the required evidence then he must be permitted to do so. It would be desirable
to wrap up the argument with the reasons given by the noted Constitutional Law expert H. M.
Seervai “ A judge is a public servant and if he takes bribes he is not acting or purporting to act as
a judge he is committing a crime, and is liable to be punished for that crime. Since public
confidence in a fearless and judiciary is a vital public interest, it would be desirable if a public
spirited lawyer or lawyers Association conveyed in good faith and in sober language, the
allegations of corruptions, with supporting evidence, to the appropriate authorities with a view to
action being taken against the judge. However practicing lawyers may be unwilling to take such a
step, or persons in authority may turn a blind age or do nothing. The process of removal of a
judge by impeachment is cumbrous, and without a public outcry might not be resorted to. It then
falls to the press to expose, in good faith a corrupt judge in sober and dignified language, and
place relevant evidence, which can be proved, before the public. If true, the writing cannot be a
can be proved, before the public. If true, the writing cannot be a contempt of court, because
nothing brings the administration of justice into disrepute so much as corruption in the judiciary.” 97
95
(1911) 12 CLR 280.
This famous Australian case has been cited with approval in various Indian and subsequent Australian
cases. For eg. Fletcher Exp Kirch (1935) 52 CLR 248; Brett (1950) VLR 226; Foster Exp Gillies (1937) St.
Rqd 368; AG NSW v. Mundey, (1972) 2 NSWLR 887 etc.
97 Supra. n.77 at 754.
96
32
WHAT OUGHT TO BE CONTEMPT OF COURT- CONCLUDING REMARKS
In an adversarial system of litigation like ours there are always two parties, one must lose, the
other must win. And when it goes through three-tiers of litigation- again an unfortunate
characteristic of our law- the party who ultimately wins sometimes harbors inbuilt grievances
against one of more Judges down the line who may have decided against him.
People who propagate these grudges are often lawyers themselves. Top lawyers have big egos.
And egotistical lawyers never like to lose, and when they do, some of them are not averse to
blaming the Judge or suggesting to their clients that there was some ulterior motive.
Now, judging cases is a difficult business and the occupational hazards of judging are many- the
memory of a wrong decision (or what is ultimately found to be a wrong decision) sometimes
festers; it also gives rise to irresponsible sometimes scurrilous comment- first about the case
itself, and then inevitably about the judge or court which rendered judgment.
The law reports are strewn with cases of disgruntled litigants going to great lengths in making
charges, often unfounded, against the Judiciary.
The law of contempt that part of which is so colourfully described as “scandalizing the court” is
intended as a wall of protection against the vicissitudes of judging. Ours is a very litigious society
and there are a number of unreasonable people in the system, persons who will make any type of
allegation against anyone at the drop of a hat.
This is why I believe that this part of the Criminal Contempt Jurisdiction though now obsolete in
England, should remain in India.
But there are problems in this branch of the law the lines are thinly drawn and are not very clear:
and they depend very much on the perception of the Judge administering the Contempt
Jurisdiction in the name of the court. The public, the men and women of the media, and the
lawyers are content to accept constraints imposed by the “Rule of Law”, but are not prepared to
accept ad hoc rules imposed according to the whims, vagaries and idiosyncrasies of individual
judges.
This ad-hocism is typified in the V.C.Mishra case98
No one liked what V.C. Mishra said and did in Allahabad, but the three Judge Bench that decided
his case in their enthusiasm to teach him a lesson deviated from the law: ultimately, sobriety
98
1995 (2) SCC 584.
33
prevailed; the Constitution Bench of the Supreme Court 99 also did not like what Mishra said or did
and yet they overruled the punishment meted out to him and set out the true contours of the
penalties that can be imposed in contempt cases. This case has set an example and prompts a
word of advice to all: lawyers and judges. Never-never behave as Mishra did. And never, never
lose your temper as the three Judge Bench did in Mishra’s case: always keep your cool as the
five Judge Bench did, and so earned the admiration of all. Mishra’s case has established that the
contempt jurisdiction must not and cannot be used to discipline the lawyer in conduct of a case:
this must be left to the Bar Councils entrusted with disciplinary powers under the Advocates Act.
It was Jeremy Bentham who characterized the Common Law as “Dog Law”. “When your dog
does anything you want to break him off”, (he wrote in 1823), “you wait till he does it, and then
beat him for it. This is the way you make laws for your dog, and this is the way judges make laws
for you and me.”
The law of contempt of court in Anglo-Saxon jurisprudence both in England in the past, and in
India in the past and present has been no more, no less “Dog Law”. There are no rules, no
constraints- no precise circumstances when the administration of justice is brought into contempt.
The judgments are strewn with pious platitudes that give little guidance to the editor, to the
commentators, to lawyers, and to members of the public: this part of the law of contempt though
necessary, is a standing threat to free expression. It leaves too much to the discretion of the
particular judge. And at times decisions do give rise to a strange feeling that the status of the
status of the person who scandalizes the Court perhaps did affect the ultimate result.
In 1988 a sitting Cabinet Minister made wide and improper remarks against Judges of the
Supreme Court- he said:
“Zamindars like Golakhnath (he was speaking of Golakhnath’s Case) evoked a sympathetic cord
nowhere in the whole country except the Supreme Court of India. And the bank magnates, the
representatives of the elitist culture of this country ably supported by industrialists, the
beneficiaries of independence, got higher compensation by the intervention of the Supreme Court
in Cooper’s case (1970), Anti social elements, FERA violators, bride burners and a whole hoard
of reactionaries have found their heaven in the Supreme Court.” 100
The minister then went on to say that because the Judges of the highest Court had their
“unconcealed sympathy for the haves” (as opposed to the have nots) they had interpreted the
expression “compensation” in the manner they did: clearly attributing motives. And yet a Bench
of two Judges (in Duda’s case) exonerated him. Let me read to you what the Bench said:
99
Supreme Court Bar Association v. UOI, 1998 (4) SCC 409.
P.N.Duda v. P. Shivshanker, AIR 1988 SC 1208.
100
34
“Bearing in mind the trend in the law of contempt (they were speaking of the liberal trend)established by the Judgment of Justice Krishna Iyer in Mulgaokar’s case101 the speech of
the Minister has to be read in its proper perspective, and when so read it did not bring the
administration of justice into disrepute or impair administration of justice. The minister is
not guilty of contempt of the court”
Again when an important personage Mr. Mohd. Yunus, Chairman of the Trade Fair Authority of
India known at the time to be very close to the Prime Minister – had criticized a judgment
delivered by a Supreme Court Judge in the ‘Jehovah Witness’ case holding that the singing of the
National Anthem for a particular sect of Christians was not compulsory – Mr. Mohd. Yunus said
that the Judge
“has no right to be called either an Indian or a Judge”. An Association of
individuals called the Conscientious Group v. Mohd. Yunus & Ors102 filed a petition seeking a
direction that Mr. Yunus should be hauled up for contempt.
These examples are given not to deride our judges or criticize previous decisions. It is only to
illustrate very graphically – that the true nature of this aspect of contempt jurisdiction: is mercurial,
unpredictable – capable of being exercised (and therefore in fact exercised) differently in different
cases by different Judges in the same Court.
The origin of the branch of law known as “scandalizing the court’ is shrouded in antiquity – it has
been described in text books as both “dubious and controversial” 103. It originates from a
celebrated dictum of Justice Wilmot in his judgment in Wilkes Case way back in 1765, a judgment
which was never actually delivered, but meant to be delivered, and later published by Justice
Wilmot’s son when his father’s paper were edited. It was a judgment reserved after argument,
and when ready to be delivered it was discovered that the writ against Wilkes was incorrectly
titled and since an amendment of the Writ was not consented to, the case had to be abandoned.
This is the real ancestry of that part of the law of contempt known today as “scandalizing the
Court”: it is based on a judgment never delivered in a case, - a case which had already abated!
The Law of Contempt is an exception to the fundamental right of free speech and expression
guaranteed under Article 19(1)(a) of the Constitution, the law must then be justified on the ground
that it is a “reasonable restriction” under Article 19(2): otherwise it would be unconstitutional.
There is a judgment of the Division Bench of the Calcutta High Court 104 delivered some years
ago, which correctly appreciated this constitutional principle. It was not widely reported and
deserves grater publicity than it has so far received. It is a judgment of a Bench of two judges
S.C. Sen J. & U.C. Banerjee J. The fact that the law of contempt is an exception to the
101
AIR 1978 SC 727.
AIR 1987 SC 1451.
103 Borric and Lowe, Law of Contempt, 3rd Edn. at 331.
104 Archana Guha v. Rajneet Guha, 1989 Cal. HC Notes 252
102
35
fundamental right of the free speech has been nowhere more felicitously described than in this
judgment (delivered for the Bench by Justice Banerjee). In that case the Court was called upon to
decide whether an article in a Calcutta daily, which had condemned a prior judgment of the
Calcutta High Court, unread and by distorting facts, was contemptuous.
The article had the disquieting heading “Let the High Court save itself from Ignominy”. A suo moto
rule was issued by the High Court. When it came up for hearing no apology was called for or
tendered. But the newspaper was exonerated: the contempt notice discharged. The judges said:
“None of the articles can be defended as fair comment made in temperate language about a court
case. In fact the distorted version of the judgment given and the language employed in the
articles may have the effect of shaking the confidence of the people in the judiciary and thereby
lowering the dignity and majesty of the law.”
And yet, upholding the importance of freedom of speech the Calcutta High Court held that the
publication was not contempt – though the Judges did say that the language used could have
been better, polite and more sober. Freedom to criticize (even wrongly and obtusely) a judgment
of the court was upheld as part of the cherished freedom of speech. The judgment of the Calcutta
High Court make us recall what was said by Lord Denning in a famous contempt case: Quinton
Hogg, son of a Lord Chancellor and a future Lord Chancellor of England himself had written an
article in very critical and caustic tone about a decision of Denning in a game case. The litigant
Blackburn moved for contempt and that is what Lord Denning said.105
“This is the first case, so far I know, where this court has been called on to consider an allegation
of contempt against itself. 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. Let me
say at once that we will never use this jurisdiction as a means to uphold our own dignity. That
must rest on surer foundations. Nor will we use it to suppress those who speak against us. 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. It is the right of every man, in parliament or out of it, in the
Press or over the broadcast, to make a fair comment, even outspoken comment, on matters of
public interest. Those who comment can deal faithfully with all that is done in a court of justice.
They can say that we are mistaken, and our decisions erroneous, whether they are subject to
appeal or not. All we would ask is that those who criticize us will remember that, from the nature
of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still no
less in political controversy. We must rely on our conduct itself to be its own vindication.
Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing
which is written by this person or that, will deter us from doing what we believe is right; nor, I
would add, from saying what the occasion requires, provided that it is pertinent to the matter in
36
hand. Silence is not an option when things are ill done. So it comes to this. Mr. Quinton Hogg has
criticized the court, but in so doing he is exercising his undoubted right. The article contains an
error, no doubt, but errors do not make it a contempt of court. We must uphold his right to the
uppermost. I hold this not to be a contempt of court, and would dismiss the application.” Lord
Denning in England, like Justices Sen and Banerjee in India put free speech first – in a conflict
between this freedom and the contempt jurisdiction.
Shortly after the controversial decision in the Spycatcher Case106 which attracted worldwide
attention. Lord Templeman believed that Peter Wright who wrote to Spycatcher, and had it
published in the U.K., should be held fast to the undertaking by him, which was not to publish
confidential information obtained by him in his capacity as a member of the British Secret Service,
not withstanding that the information had, with lapse of time, percolated into the public domain.
Two of his colleagues (in the House of Lords) agreed with him, which put Lord Templeman in the
majority. The Press held them up to ridicule; the Daily Mirror published photographs of all three
Judges and below the photographs was written in capital letters “OLD FOOLS”.
It was asked of him why no contempt proceedings were initiated against the particular
newspaper. He apparently smiled, and without a trace of bitterness, said the Judges in England
did not take notice of personal insults, uttered without malice. After all, he said, he was old, and
though he believed he wasn’t a fool, someone else who sincerely thought he was, was entitled to
his opinion. He also added “But if they (the Editor and Publisher) – had said we were dishonest or
not true to our conscience, I would have promptly hauled them up”.
Here is a judge who was so conscious of his enormous power that he knew when not to use it: a
self-restraining quality which greatly enhances the prestige of all judicial power.
There is another disturbing aspect of this branch of the law. Unlike defamation truth, is not
considered to be a defence. Does the law of contempt then impose reasonable restrictions on
freedom of speech – if you are not permitted to speak and establish the truth? India’s note
constitutional historian H.M. Seervai had no doubt on the point. This is what he had to say in the
Fourth Edition of his famous book on the Constitution of India:
“a law relating to defamation, which provided that truth, spoken or written, for the public good
shall not be defence in a libel action would impose restrictions which would be unreasonable
.…….the position would be no different if a law were to enact that truth should not be a defence to
a charge of contempt of court, if it consists in scandalizing a judge.”
105
106
R.v Metropolitan Police Commissioner, 1968(2) AER 319.
Attorney General v. Guardian Newpaper, 1987 (3) AER 316.
37
“In a criminal prosecution for libel, the prosecution would fail if it were shown that specific charges
were true and it was for the public good that they should be made. But is there one law for a
corrupt Minister and another for a corrupt Judge?” The author then boldly says that no court in
India would say that there was one law for a corrupt Minister and another for a corrupt Judge, and
says quite confidently that no court would by any process of reasoning punish for contempt the
writer of an article who, in sober language sets out specific acts of bribery and is able to
successfully prove them.
For this view the author relies on a judgment of a Constitutional Bench of the Supreme Court
itself – in B. Ramakrishna Reddy v. State of Madras107 1952 SCR 425 where Justice B.K.
Mukherjea said:
“The article in question is a scurrilous attack on the integrity and honesty of a judicial office.
Specific instances have been given where the officer is alleged to have taken bribes or behaved
with impropriety to litigants who did not satisfy his dishonest demands. If the allegations were
true, obviously it would be to the benefit of the public to bring these matters into light. But if they
were false, they cannot but undermine the confidence of the public in the administration of justice
and bring the judiciary into disrepute.”
Unfortunately these observations were read in a later case in Perspective Publications Pvt. Ltd.,
& anr. V. State of Maharashtra108 as not laying down affirmatively that truth and good faith could
be set up as a defence in contempt proceedings; and ever since then the law in Perspective
Publications Case is the law that is followed. Wrongly, I would submit. Particularly since years
after the Perspective Publications Case another Bench of three Hon’ble Justices of the Supreme
Court (in August 1976) set aside a Full Bench decision of the High Court of Punjab, which held
that a prima facie case for contempt was made out. In that case 15 members of a Bar Association
made a complaint about observations of a High Court judge made during an inspection at the
District Court Bar the judge had said nasty things about politicians and the lawyers felt that the
judge was wrong to talk politics and they said so in the letter. The letter was addressed to the
Chief Justice but it was placed for consideration of a Bench of the Court and on perusal of the
contents the Bench that a prima facie of criminal contempt was made out. None of the allegations
in the matter against the judge were disputed or challenged.
Yet the High Court proceeded on the basis that even though the letters written correctly recorded
what had happened and commented adversely on the judge’s conduct, the authors were guilty of
contempt. The Supreme Court overruled and by so overruling emphasized that allegations when
true were not capable of sustaining a charge of contempt.
107
108
1952 SCR 425.
(1969) 2 SCR 779
38
The most recent endorsement of this view is the decision of the Privy Council (March 1999) in
which Lord Slynn (in an appeal from the Republic of Mauritius), whilst upholding the
constitutionality of the offence of scandalizing the court, under the Constitution of Mauritius,
emphasized two things: first, that the cope of offence was a narrow one and second, that
exposure and criticism of judicial misconduct plainly in the public interest would not necessarily
constitute contempt: that is to say truth and good faith would trump the Contempt law, which is as
it should be.
Our Constitution makes freedom of speech and expression a fundamental right, and the
exception to it is the law of contempt- not any law of contempt – but reasonable restrictions in the
law. The Contempt of Courts Act does not say that truth cannot be a defence and it is for the
Courts to interpret the meaning of the word “scandalize”.
If it is part of the law as understood that a person commits contempt if he truthfully
publishes as a fact that a particular Judge has accepted a bribe for giving a judgment in a
party’s favour – then such a law would be void as imposing unreasonable restrictions on
the freedom of speech and expression: the judge who took the bribe would be false to his
oath, to do justice without fear or favour; and it would be absurd to say that although
Article 124(4) provides for the removal of a judge for proved misbehaviour, no one can
offer proof for such misbehaviour except on pain of being sent to jail for contempt of
court.
This is a glaring defect in our judge-made law that needs to be remedied- hopefully by the Judges
themselves; if not, reluctantly then by Parliament. It is interesting to notice that when the Ontario
Court of Appeal some years ago considered the offence of scandalizing the Court in the light of
the Canadian Charter of Human Rights. The majority in the Court concluded that scandalizing the
court was no longer compatible with the fundamental freedom of speech and expression. 109 The
dictionary meaning of the word “scandalize” is “to utter false or malicious report of a person’s
conduct”. Therefore truth can never scandalize.
The decision of Supreme Court in Ravichandra Iyer v. Bhattacharji110 is a regrettable one
because the Bench in that case said that even Bar Associations can not take up matters and pan
resolutions with regard to allegations of corruption against sitting judges. They must take up the
matter first with the Chief Justice and await his response for a “reasonable period”. And what if
the Chief Justice does not respond – what after that? Their Lordships gave no answer. It is
Bahttacharji’s case, which quotes Harry Edwards, Chief Justice of the US Court of Appeals of the
109
110
R. v. Kopyto, 1987 (47) DLR 4th Series.
1995 (5)SSC 478
39
District of Columbia who was at one time Chairman of what is known as the Judicial Council in
the United States (a Council for disciplining federal judges in the US – judges who are appointed
for life).
In Bhattacharji’s case our courts quoted from an article by Harry Edwards in which he had said:
“Ideal of judicial independence is not compromised when judges are monitored and regulated by
their own peers. This limited system of judicial self-regulation present no constitutional dilemma
as long as the removal power remains with Congress. I argue that the judiciary alone should
monitor this bad behaviour through a system of self-regulation.
40
BIBLIOGRAPHY
Articles & Journals
A. G. Noorani, “A Disturbing Judgment”, Frontline, March 29 2002 at 34.
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2. K. K. Mathew, Chief Editor, Malayalam Manorama, A Talk on All India Radio on “ The
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Pradesh, 1993.
41
9. Krishna Iyer and V. Sethi, Essays on Press Freedom, 1st Edn., Capital Foundation Society,
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ALT Publications, Hyderabad, 1999.
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