The Supreme Court on August 31 imposed a nominal fine of Re 1 on activist-lawyer Prashant Bhushan after he was convicted of criminal contempt for his two tweets.

A bench headed by Justice Arun Mishra ordered that the fine be deposited with the apex court registry by September 15, failing which he would undergo a simple imprisonment of three months and debarred from practising in the apex court for three years.

Fair criticism of judgment is permissible in law but a person cannot exceed the right of freedom of speech and expression guaranteed under the Constitution to scandalise the institution, the SC noted.

Bhushan said that he will submit the token fine of Re 1, but also indicated he would file a review plea against the order.

What is contempt of court?

A contempt of court is a matter which concerns the administration of justice and the dignity and authority of judicial tribunals. The law dealing with contempt of court is for keeping the administration of justice pure and undefiled. 

A refusal to obey the final order of a court and/or attempt to overreach the same has been held by the Supreme Court to be a contempt of court with legal malice and arbitrariness as it is not permissible to scrutinise the order of court which has attained finality.

A contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to Rs 2,000, or with both. 

What is the significance of this law?

The Rule of Law is a basic feature of the Constitution. It entails the right to obtain judicial redress through administration of justice, which is the function of the courts, and is imperative for the functioning of a civilised society. 

To administer justice in an undefiled manner, the judiciary, as the guardian of Rule of Law, is entrusted with the extraordinary power to punish misconduct aimed at undermining its authority or bringing the institution into disrepute, whether outside or inside the courts.

The law for contempt, with power of imposing punishment, ensures respect for the courts in the eyes of the public by guaranteeing sanction against conduct which might assail the honour of the courts. The courts must be able to discharge their functions without fear or favour. 

The law of contempt can thus be considered to be the thread which holds together the basic structure of the Constitution. And, the maintenance of dignity of the court is one of the cardinal principles of Rule of Law. 

If browbeating the court, flagrant violation of professional ethics and uncultured conduct is tolerated that would result in destruction of a system. 

When there is a deliberate attempt to scandalise the court, it shakes the confidence of the litigant in the system, the damage is caused to the fair name of the judiciary. If a litigant or a lawyer is permitted to malign a judge with a view to get a favourable order, administration of justice would become a casualty and the rule of law could receive a setback.

‘Need to exercise with great care and caution’

The very nature of the power casts a sacred duty on the courts to exercise the same with the greatest care and circumspection. 

The law of contempt must be judiciously pressed into service, and can’t be used as a tool to seek retribution.

The power to punish for contempt is a rare species of judicial power which by the very nature calls for its exercise with great care and caution. Such power ought to be exercised only where “silence is no longer an option”, the SC has said in a ruling in 1970.

The contempt proceedings are intended to ensure compliance of the orders of the court and adherence to the Rule of Law. Once the essentials for initiation of contempt proceedings are satisfied, the court would initiate an action.

The power to punish for contempt is not meant for giving protection to individual judges. On the contrary, it intends to inspire confidence “in the sanctity and efficacy of the judiciary, though they do not and should not flow from the power to punish for contempt”, another ruling has said. 

How the law evolved in India?

The Contempt of Court Act, 1926 was the first statute in India with relation to law of contempt. Section 2 of this Act recognised the existing jurisdiction in all the High Courts to punish for contempt of themselves and conferred on the High Courts the power to punish for contempt of courts subordinate to it.

However, the princely states of Hyderabad, Madhya Bharat, Mysore, Rajasthan, Travancore-Cochin, Saurashtra and PEPSU had their own corresponding state enactments on contempt.

The Act of 1926 along with the state enactments were repealed and replaced by the Contempt of Courts Act, 1952. 

On April 1, 1960, a Bill was introduced in the Lok Sabha to consolidate and amend the law relating to contempt of court. Observing the law on the subject to be “uncertain, undefined and unsatisfactory”, and in the light of the constitutional changes in the country, the government appointed a special committee in 1961, under the chairmanship of H.N. Sanyal, the then Additional Solicitor General of India, to further study the Bill.

The Sanyal Committee examined the law relating to contempt of courts in general, and the law relating to the procedure for contempt proceedings including the punishment thereof in particular. 

The committee submitted its report in 1963, which defined and limited the powers of certain courts in punishing contempt of court and provided to regulate the procedure in relation thereto. 

The Committee in its report made specific mention of criminal contempt. 

After deliberations the Contempt of Courts Act, 1971 came to be enacted, which repealed and replaced the Act 1952. The said Act 1971 categorises contempt under two heads — civil contempt and criminal contempt. 

It also carved out a few exceptions, prescribing guidelines for reporting and commenting on judicial proceedings that would not attract the provisions of the Act.

Civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. 

The Contempt of Courts Act, 1971 has been amended twice — in 1976 and then in 2006.

On March 8, 2018, the government asked the Law Commission to examine if amendments can be made in the Contempt of Courts Act, 1971. The Law Commission, headed by former Supreme Court Justice B.S. Chauhan, in its 274th report suggested that it is not necessary to make any amendment to the Contempt of Court Act, 1971.

Criminal contempt 

Criminal contempt of court is disobedience of the court by acting in opposition to the authority, justice and dignity thereof. It can be defined as a conduct that is directed against the dignity and authority of the court.

The Supreme Court also laid down that “vilificatory criticism of a judge even in purely administrative or non-adjudicatory matters” amounts to criminal contempt.

The SC has held in its pronouncements that filing of false affidavit amounts to criminal contempt.

Criminal contempt in the most general sense of the term includes contemptuous actions that interfere or tend to with the due course of justice, in turn including any action that circumvents a judgment or order of the court.

Any speech or writing misrepresenting the proceedings of the court or prejudicing the public for or against a party amounts to contempt.

Constitutional provisions 

The Constitution of India grants the Supreme Court and every High Court the power to punish for contempt of itself. 

Article 129, dealing with the said power of the Supreme Court, provides that “the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”.

Article 215 vests similar power with the High Courts. It states that “every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.”

The High Courts are also entrusted with the supervisory control over the subordinate courts under Article 235 of the Constitution. In this manner, a High Court is the guardian of the subordinate judiciary under its jurisdiction. 

Additionally, Article 142(2) also enables the Supreme Court to investigate and punish any person for its contempt.

The Supreme Court has also consistently held and reaffirmed that the powers of the Supreme Court under Article 129 and that of the High Court under Article 215 could not be curtailed by a law made by the Parliament or by a State legislature.

Freedom of expression vs contempt of court

Freedom of speech and expression is regarded as the “lifeblood of democracy”. 

Article 19(1)(a) of the Constitution guarantees this freedom to the citizens of India. This right, however, is not absolute, and is subject to certain qualifications — reasonable restrictions on the grounds set out in Article 19(2). 

One such ground relates to the contempt of court. The Constitution, which has given its citizens right to freedom of speech and expression, has given certain powers to the judiciary to guard against the misuse of the same, to prevent the right to freedom of speech and expression being so exercised that it damages the dignity of the Courts or interferes with the ‘administration of justice’.

In ‘Aswini Kumar Ghose & Anr v. Arabinda Bose & Anr’ case in 1953, the Supreme Court held that while fair and reasonable criticism of a judicial act in the interest of public good would not amount to contempt, it would be gross contempt to impute that judges of the court acted on extraneous considerations in deciding a case.

What does not amount to contempt?

Section 13 of the Act 1971 postulates no punishment for contemptuous conduct in certain cases. As a general guideline, it provides for no punishment unless the court is satisfied that the contempt is of such a nature that “substantially interferes, or tends substantially to interfere with the due course of justice”. 

In fact, Section 13, as amended in 2006, under its sub-section (b) allows for justification by truth to be raised as a valid defence against contempt, if the court is satisfied that it is in public interest and the request for invoking the said defence is bona fide. 

The Supreme Court while striking a balance in relation to the invoking of provisions of contempt held that a mere allegation of social intimacy between a party in litigation and a judicial officer does not amount to an act of criminal contempt.

A non-compliance of an order, which can be interpreted in more than one way, raising a variety of consequences, has been held not to be a willful disobedience so as to make a case of contempt. 

Where an alleged contemnor is able to place before the court sufficient material to establish that it is impossible to obey an order, the court will not be justified in punishing such alleged contemnor.

Emphasising on initiating contempt proceedings with utmost reserve and greatest caution, courts have on various occasions distinguished between a mere technical contempt and a contempt of court which interferes or tends to interfere with the due course of justice. 

Contempt laws in other countries

In 2013, the United Kingdom abolished the offence of ‘scandalising the court’ as a ground for criminal contempt by an amendment to the Crime and Courts Bill. However, deleting the words ‘scandalising the court’ did not change the situation. Such offences continue to be punishable under other existing statutes — the Public Order Act, 1986, and the Communications Act, 2003. 

In many other countries like the US, Canada and Australia, contempt laws are used if there is a clear threat to the administration of justice.

Source: Report No.274, Law Commission of India

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