Criminal Contempt of Courts [What is contempt and what isn’t? Where falls the line?]

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note] 

Introduction

The issue of Criminal Contempt keeps rolling on the discussion table before citizens. It was not long back when the question of contempt came in controversy after the Supreme Court initiated suo motu contempt proceeding against Senior Advocate, Prashant Bhushan. Recently, contempt proceedings against Stand-up Comedian, Kunal Kamra and Cartoonist, Rachita Taneja have once again brought the matter of contempt in limelight.

On 12 November 2020, Kamra had posted a series of tweets criticising the Supreme Court for granting interim bail to Republic TV Editor-in-Chief Arnab Goswami in a suicide abetment case. Not only Kamra’s tweets received mixed responses from  netizens but also a few people found it problematic to the extent that they were persuaded to seek consent of the Attorney-General for India, K.K. Venugopal for intitiating contempt proceedings against Kunal Kamra. While granting consent, the AG wrote a letter to the complainant where he specifically pointed out certain statements from Kamra’s tweets [[1]] — “honour has left the building (Supreme Court) long back” and “Supreme Court of the country is the most Supreme joke of the country”. The AG noted that apart from these comments, Kamra had also posted a picture of the Supreme Court dressed in saffron colour with the flag of the ruling party, the BJP, which, the AG opined is a gross insinuation against the entirety of the Supreme Court of India that the Supreme Court is not an independent and impartial institution and so too its Judges but on the other hand is a Court of the ruling party, the BJP, existing for the BJP’s benefit. All this in the AG’s opinion constitutes criminal contempt of court.

Constitutional and Statutory Provisions for Contempt

 Amongst all the fundamental rights guaranteed by Part III of Indian Constitution, Article 19(1)(a), i.e., freedom of speech and expression is the most sensitive one and is prone to controversy. If exercised negligently, without abiding by the limitations prescribed under Article 19(2), a person, on one hand can be booked for defamation and on the other, hangs the probability of prosecution for “Criminal Contempt”.

Article 129 of the Constitution, makes the Supreme Court “a court of record” and confers power to punish for contempt of itself. Whereas, Article 142 empowers the Court to provide punishment for contempt, subject to any other law made in this behalf by the Parliament. Similar powers have been vested in the High Court by the virtue of Article 215 which makes the High Court “a court of record”, implying that only Supreme Court and High Courts are empowered to adjudicate criminal contempt proceedings.

Section 10 of the Contempt of Courts Act, 1971 specifically empowers the High Courts to punish contempt of subordinate courts. Similarly, Section 15(2) says even in the case of criminal contempt of subordinate court, proceedings for contempt are to be initiated by the High Court on a reference made to it by the subordinate court or on a motion made by the Advocate-General* (or Law officer in cases of Union Territory). It is pertinent to mention here, High Court, for the purpose of the Contempt of Courts Act, 1971 would include the Court of Judicial Commissioner.[[2]]

Contempt of Courts Act, 1971

Objective

In India, contempt proceedings are governed by Contempt of Courts Act, 1971. Contrary to the obvious conception, the objective of the Act as mentioned in the Act is:

“…to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto.”

The rationale behind this enactment can be best described by pronouncement of Justice Wilmot in Rex v. Almon[3]: 

“And whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and…calls out for a more rapid and immediate redress than any obstruction whatsoever, not for the sake of the Judges as private individuals but because they are the channels by which the King’s justice is conveyed to the people …”[[4]]

What is Criminal Contempt?

Section 2(c) defines criminal contempt in following manner:

” ‘Criminal Contempt’ means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which─

(i) scandalises or tends to scandalise, 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;”

Scandalising the Authority of Court

Scandalising in substance is an attack on individual Judges or the Court as a whole with or without referring to particular cases casting unwarranted and defamatory aspersions upon the character or the ability of the Judges. “Scandalising the Court” is a convenient way of describing a publication which, although it does not relate to any specific case either post or pending or any specific Judge, is a scurrilous attack on the judiciary as a whole which is calculated to undermine the authority of the Courts and public confidence in the administration of justice, Hari Singh Nagra v. Kapil Sibal, (2010) 7 SCC 502

However, it is to be borne in mind that the authority of Court shall not be confused with judges as individuals. Where the contemptuous comment is made on the judge in his individual capacity and not as an officer of the Court, the same may amount to defamation but charge of contempt cannot be invoked against such actions.

Prejudicing due Course of Judicial Proceedings

It is incumbent upon courts of justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard has pernicious consequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party amounts to contempt. To make a speech intending to influence the result of a pending trial, whether civil or criminal is a grave contempt. The question is not so much of the intention of contemnor as whether it is calculated to interfere with the administration of justice, P.C. Sen, In re, (1969) 2 SCR 649

Though a fair criticism of judgment after the judgment is pronounced is permissible in law, however, making any statement or giving press interviews during the pendency of the litigation is not permissible. Therefore, no lawyer or litigant should either give an interview, talk to the press or make any statement with regard to pending litigation before any Court, Prashant Bhushan, In re, (2021) 3 SCC 160 : 2020 SCC OnLine SC 698

Obstructing Administration of Justice

There is no comprehensive definition of the expression “administration of justice”. But historically, and in the minds of the people, administration of justice is exclusively associated with the Courts of justice constitutionally established, Baradakanta Mishra v. High Court of Orissa, (1974) 1 SCC 374

The Court 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 vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with. Any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognizance of such conduct, Delhi Judicial Services Assn. v. State of Gujarat, (1991) 4 SCC 406

Where is the Line?  

Kunal Kamra, in his defence, filed a 6-pages long affidavit and emphasised on not having any ill-intention to malign the judiciary, “the suggestion that my tweets could shake the foundations of the most powerful court in the world is an over-estimation of my abilities. … it (Supreme Court) should also trust the public not to form its opinions of the Court on the basis of few jokes on Twitter. The public’s faith in the judiciary is founded on the institution’s own actions, and not on any criticism or commentary about it.” While referring constitutional protection afforded to judiciary he further added, “I believe that constitutional offices-including judicial offices-know no protection from jokes.”

Section 13 of the Act 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”.[[5]] This section is an attempt by the framers of the Act to demonstrate a line between criticism and contempt:

“13. Contempts not punishable in certain cases.—Notwithstanding anything contained in any law for the time being in force,—

(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;

(b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.”

(emphasis supplied)

 

The offence of contempt is not absolute and act of contempt per se does not entail punishment (Exceptions—Sections 3 to 8).

“Exercise of powers under the Contempt of Courts Act shall have to be rather cautious and use of it rather sparingly after addressing itself to the true effect of the contemptuous conduct,” Mrityunjoy Das v. Sayed Hasibur Rahaman, (2001) 3 SCC 739

Defences Available

Innocent Publication – Section 3

      Section 3 shows that immunity attaches to certain statements or certain matter which may interfere or tend to interfere or obstruct or tend to obstruct the course of justice in connection with any civil or criminal proceedings pending at the time of the publication. However, if the persons so publishing had at the time of its publication no reasonable grounds for believing that the proceeding was pending, the publication is described by this section as “innocent”,   Prabhakar Laxman Mokashi v. Sadanand Trimbak Yardi, 1973 SCC OnLine Bom 79

Fair and Accurate Report of Judicial Proceeding – Section 4

Subject to the provisions contained in Section 7, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.

Section 7 refers to leakage of information whereas Section 4 refers to reporting of court proceedings. Leakage defeats very purpose of hearing in chambers or in camera, Sahara India Real Estate Corp. Ltd. v. SEBI, (2012) 10 SCC 603

Fair Criticism – Section 5

Kunal Kamra wrote in his defence, “…constitutional offices − including judicial offices − know no protection from jokes. I do not believe that any high authority, including judges, would find themselves unable to discharge their duties only on account of being the subject of satire or comedy.” What he was willing to imply by this defence was public accountability of judges.

It is the privileged right of the Indian citizen to believe what he considers to be true and to speak out his mind, though not, perhaps, always with the best of tastes; and speak, perhaps, with greatest courage than care for exactitude. Judiciary is not exempt from such criticism. But there is no justification to resort to this freedom and privilege to criticise the proceedings during their pendency by persons who are parities and participants. Sheela Barse v. Union of India, (1988) 4 SCC 226

Complaint against Presiding Officer – Section 6

A person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate court to—

(a) any other subordinate court, or

(b) the High Court, to which it is subordinate.

In addition to above mentioned defences, an accused can also seek defence of truth, apology and ignorance can serve as mitigating factors in some cases.

Truth as a Defence – Section 13

Section 13 of the Act enables the Court to permit justification by truth as a valid defence in any contempt proceedings if it satisfied that such a defence is in the public interest and the request for invoking the defence is bona fide. Truth should ordinarily be allowed as a defence unless the Court finds, that it is only a camouflage to escape the consequences of the deliberate attempt of scandalising the Court. However, for considering the truth as valid defence there is a twin requirement:

• defence is in public interest, and
• request for invoking the defence is bona fide, Prashant Bhushan, In re, (2021) 3 SCC 160 : 2020 SCC OnLine SC 698

Apology – Section 12(1), proviso

Proviso to Section 12(1) of the Act says that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.

The apology tendered should impress the court to be genuine and sincere. If the court,

on being impressed of his genuineness, accepts the apology then it could be said that the contemnor has purged himself of the guilt. Pravin C. Shah v. K.A. Mohd. Ali, (2001) 8 SCC 650

 Cognizance of Criminal Contempt  

Section 15 prescribes mode of cognizance in cases of contempt committed other than in the face of the Court:

“15.(1) In the case of a criminal contempt, the Supreme Court or the High Court may take action on its own motion or on a motion made by—

(a) the Advocate-General, or

(b) any other person, with the consent in writing of the Advocate-General,

* * *”

 Hence, if a private person intends to bring the proceedings of criminal contempt in motion, he must seek approval of the Advocate-General* to do so. However, in an event of denial by the AG to grant consent, the law does not leave one handicapped. In such an event, resort could be to approach the Court itself and urge for suo motu action.

This legal position was reaffirmed by Justice Arun Mishra in Prashant Bhushan, In re, (2021) 1 SCC 745:

“… as far as the suo motu petitions are concerned, there is no requirement for taking consent of anybody, including the learned Attorney General because the Court is exercising its inherent powers to issue a notice for contempt. It is equally well settled, that once the Court takes cognizance, the matter is purely between the Court and the contemnor. The only requirement is that the procedure followed is required to be just and fair and in accordance with the principles of natural justice. …”

 Notice to Contemnor – Section 17

 Every contemnor is entitled to be served with a personal notice unless the Court for reasons to be recorded directs otherwise. The notice shall be accompanied with copy of the motion as also copies of the affidavits in cases where proceedings commenced on a motion or in case of proceedings commenced on a reference by a subordinate court, by a copy of the reference.

Hearing to be by Benches – Section 18

Every case of criminal contempt shall be heard and determined by a Bench of not less than two judges. This, however, does not apply to the Court of Judicial Commissioner.

Limitation – Section 20

 No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.

Power to be Exercised with Caution

 Exercise of powers under the Contempt of Courts Act shall have to be rather cautious and use of it rather sparingly by the Court after addressing itself to the true effect of the contemptuous conduct. The Court must otherwise come to a conclusion that the conduct complained of tantamounts to obstruction of justice which if allowed, would even permeate in our society, Mrityunjoy Das v. Sayed Hasibur Rahaman, (2001) 3 SCC 739

In an endeavour to prevent frequent and prejudiced use of power in disgust or anguish, Justice Krishna Iyer, in S. Mulgaokar, In re (1978) 3 SCC 339, laid down certain checks to be born in mind by the Court while exercising the power to punish its contempt. Considering, to be gentle is to be just and the quality of mercy is not strained, emphasis was on to draw up the objective line of action. These are:

• Wise economy of the use of the contempt power by the Court.
• The constitutional values of free criticism and judiciary must be harmonised and a happy balance must be struck between the two.
• Difference between personal protection of a libelled Judge and obstruction of public justice must be clearly kept in mind.
• Press should be given free play within responsible limits when its focus of critical attention is on the Court.
• Judges should not be hypersensitive when distortions and criticisms overstep the limits but deflate such vulgar denunciations by dignified bearing.
• Lastly, when the attack on Judge(s) is scurrilous or malicious beyond condonable limits, the strong arm of the law must strike a blow in the name of public interest and public justice.

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† Editorial Assistant, EBC Publishing Pvt. Ltd.

[1] https://indianexpress.com/article/india/attorney-general-clears-contempt-proceedings-against-kunal-kamra-7049509/

* Ed.: For the purposes of Section 15 of the Contempt of Courts Act, 1971, the expression Advocate-General means:

“(a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;

(b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established;

(c) in relation to the court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.” [Explanation to Section 15, Contempt of Courts Act, 1971]

[2] Section 2(d), Contempt of Courts Act, 1971

[3] (1965) Wilm 243

[4] Law Commission of India, 274th  Report, Review of the Contempt of Courts Act, 1971, April 2018

[5]  Law Commission of India, 274th  Report, Review of the Contempt of Courts Act, 1971, April 2018

* Ed.: For the purposes of Section 15 of the Contempt of Courts Act, 1971, the expression Advocate-General means:

“(a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;

(b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established;

(c) in relation to the court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.” [Explanation to Section 15, Contempt of Courts Act, 1971]