Op EdsOP. ED.

“Democracy is a ceaseless endeavour. Democracy is a work in progress.”

— Nani Palkhivala

Introduction

Lawyers are frontline defenders of the Constitution of India and, more than anyone else, require the protection as whistleblowers in court. A contempt is to protect the institution and to prevent interference in the course of justice. Undermining the majesty of the institution or undermining the authority that is vested in Judges is a very important take away. I think that crosses a line from legitimate criticism of a ruling and goes into whole different area. Legitimate criticism of ruling is permissible but on the other hand we must draw the line where it becomes abusive, irrational, personal attacks on Judges that undermines the entire integrity of the institution.

Lord Denning, in 1968, Britain’s former master of rolls, had this to say to the law of contempt: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity nor we will 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 press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. We must rely on our own conduct itself to be its own vindication[1].

Brief history

The origin of the law of contempt of courts in India can be traced back from the period of Ramayana and Mahabharata, where the courts were called as sabha and the king was called as sabhapati. Here the judicial function was administered by the sabhapati and justice has to be delivered as per the dharma. And at that time whosoever vilify the decision of sabhapati, would be liable for punishment. In ancient times the said law of contempt was used to maintain the dignity and integrity of the sabha and sabhapati and is not in codified form. It varies from empire to empire and king to king. As it is not codified, the meaning of contempt carries different meanings and interpretations as per religion and dharma.

As today, we call it that the origin of contempt of courts in India can be traced from England law but India has developed this concept and can be traced back from history. In England the Supreme Courts of Record from early times exercising the power to punish the contemnors who scandalises the Courts or Judges. This right was first recognised by the judicial committee of the Privy Council which observed that the offence of the contempt of court and the powers of the Indian High Courts to punish it are same as in the Supreme Court in England. The first Indian statute on the law of contempt i.e. the Contempt of Courts Act was passed in 1926.

Contempt and its objective

The Contempt of Courts Act, 1971 comes into existence on 24-12-1971 with an objective to define and limit the powers of certain courts in punishing contempt of court and to regulate their procedure in relation thereto. Which means contempt jurisdiction enjoyed by the courts is only for the purpose of upholding the majesty of the judicial system that exists. While exercising this power, the court must not be hypersensitive or swung by emotions, but must act judiciously[2].

Contempt is defined under Section 2(a)[3] of the Contempt of Courts Act, 1971 which says “contempt of court” means civil contempt or criminal contempt. Whereas “civil contempt” is defined under Section 2(b) which means wilful disobedience to any judgment decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to court. And on the other hand, “criminal contempt” is defined under Section 2(c) which means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

  1. Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
  2. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
  3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner[4].

Any wilful disobedience of court order to do or abstain from doing any act is a civil contempt. Civil contempt arises when the power of the court is invoked or exercised to enforce obedience to court orders.[5] On the other hand, criminal contempt is criminal in nature. It includes defiant disobedience to the Judges in the court, outrages of Judges in open court, libels on Judges or courts or interfering with the course of justice or an act which tends to prejudice the course of justice.

A person is guilty of a criminal contempt when his conduct tends to bring the authority and administration of law into disrespect or tends to interfere with or prejudice litigants during litigation[6].

Let’s take an example for better understanding the concept of contempt of court. Let’s assume a situation where the impact of contempt is of that nature, where a common man lost his faith in the judiciary. Let’s say, otherwise for a common man, if the local MLA came and getup and abuse the court, what respect the common man will have for the institution because the said MLA effectively taken away one important pillar of democracy.

As per the observations of Justice Wilmot in R. v. Almon[7] made as early as in 1765:

“… 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 out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of Judges, as apricate individuals, but because they are the channels by which the King’s justice is conveyed to the people.”

Constitution of India and contempt of court

It is very conflicting in nature and difficult to understand that whether the law relating to the contempt of court is somewhere touches two important fundamental rights of the citizen, namely, the right to personal liberty and the right to freedom of speech and expression or not?

There is a very thin line between criticism and vilification. One of the basic principles of independence is that you are free to do anything which does not intervene in my independence. The same goes to determine whether it is a contempt or not? If you are criticising, it is valid but if you are vilifying or tried to degrade the integrity of the institution then it is a contempt.

  1. Article 129[8] – Grants Supreme Court of India, the power to punish for contempt of itself.
  2. Article 142(2)[9] – Enables the Supreme Court of India, to investigate and punish any person for its contempt.
  3. Article 215[10] – Grants every High Court the power to punish for contempt of itself.

Note: That the source of power of Supreme Court of India, to punish for its contempt is not from Section 15[11] of the Contempt of Courts Act, 1971 but it flows from Articles 129 and 142(2) of the Constitution of India.

The Supreme Court has emphasised upon the need for the contempt of court in the following words:

Availability of an independent judiciary and an atmosphere wherein Judges may act independently and fearless is the source of existence of civilisation in society. The writ issued by the court must be obeyed. It is the binding efficacy attaching with the commands of the court and the respect for the orders of the court which deter the aggrieved persons from taking the law into their own hands because they are assured of an efficacious civilised method of settlement of disputes being available to them wherein, they shall be heard and their legitimate grievances redeemed. Any act or omission which undermines the dignity of the court is therefore viewed with the concern of the society and the court treats it as an obligation to zealously guard against any onslaught on its dignity.[12]

The Supreme Court exercises this power to punish an act which tends to interfere with the course of administration of justice. The following inter alia have been held to constitute contempt of court: [13]

  1. Insinuations derogatory to the dignity of the court which are calculated to undermine the confidence of the people in the integrity of the Judges.
  2. An attempt by one party to prejudice the court against the other party to the action.
  3. To stir up public feelings on the question pending for decision before court and to try to influence the Judge in favour of himself.
  4. An attempt to affect the minds of the Judges and to deflect them from performing their duty by flattery or veiled threat.
  5. An act or publication which scandalises the court attributing dishonesty to a Judge in the discharge of his functions.
  6. Wilful disobedience or non-compliance of the court’s order.[14]

In several cases, private parties violating or flouting the Supreme Court orders have been held guilty of contempt of court:

  1. Gomti River water was being polluted due to discharge of effluents from the distillery of a company. The Supreme Court ordered the company to remove deficiencies in the effluent treatment plant by a certain due date. The company failed to do so and yet kept on running its plant. The Court ruled that violation of the court order by the company was deliberate and pre-planned indicating a defiant attitude on its part. The Court imposed a fine of Rs 5 lakhs on the company which amount was to be utilised for cleaning of the Gomti River.[15]
  2. An article in a newspaper, criticising a Supreme Court decision, attributing improper motives to the Judges and seeking to create an impression in the public mind that the Supreme Court Judges act on extraneous considerations in dealing cases has been held to constitute court’s contempt. The Court has stated that if an impression were created in public mind that the Judges in the highest court act on extraneous considerations in deciding cases, public confidence in the administration of justice would be undermined and no greater mischief than that could possibly be imagined.[16]

Note: Contempt of court is a matter between the court and contemnor and hence, held, third parties cannot intervene. Intervention applications are thus not maintainable.[17]

Supreme Court and the Contempt of Courts Act, 1971

As per the Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975[18]. In case of contempt other than the contempt referred to in Rule 2, the Court may take action:

  1. Suo motu; or
  2. On a petition made by Attorney General, or Solicitor General; or
  3. On a petition made by a person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General.

A bare reading of Rule 3 helps us understand that there are 3 ways for initiating contempt proceedings. The first is suo motu, the second is the petition made by the Attorney General or the Solicitor General, and the third is on the basis of a petition made by any person and where criminal contempt is involved then the consent of the Attorney General or the Solicitor General is necessary.

As in necessary to understand that the Supreme Court of India is the supreme authority and the powers for the contempt of itself is a constitutional power vested to this Court, such power cannot be abridged or taken away even by legislative enactment. Whereas on the other side the Contempt of Courts Act, 1971 is a legislative enactment.

Although the law of contempt is largely governed by the Contempt of Courts Act, 1971. It is now settled law in India that the Supreme Court and the High Courts derive their jurisdiction and power from Articles 129 and 215 of the Constitution of India. This situation results in giving scope to “judicial self-dealing”.

It is the saying of the Supreme Court of India that a scurrilous attack on a Judge, in respect of a judgment or past conduct has in our country the inevitable effect on undermining the confidence of the public in the judiciary; and if confidence in judiciary goes administration of justice will definitely suffers[19].

Permissible limit in the eyes of law

 Scandalising a Judge as a Judge is different from scandalising a Judge as an individual. The abovementioned assertions bring both freedom of speech and expression and contempt of court, in conflict, on one side of the coin, freedom of fairly and reasonably criticising judiciary increases its accountability but on the other side of the coin, the power of punishing contempt of court ensures free and non-obstructed administration of justice. When the proceedings are taken for vilification of the Judge, the question which the Court has to determine is whether the vilification is of the Judge as a Judge or it is a vilification of a Judge as an individual. That if the vilification of the Judge is as an individual, then he is left to his private remedies and the Court has no power to punish for contempt. In the former case, the Court will proceed to exercise the jurisdiction with scrupulous care and in cases which are clear and beyond reasonable doubt.[20]

A distinction is drawn between a mere libel or defamation of a Judge personally and what amounts to a contempt of court. A mere defamatory attack on a Judge is not actionable but it becomes punishable when it is calculated to interfere with the due course of justice, or the proper administration of law by the Court. Alternatively, the test is whether the wrong is done to the Judge personally, or it is done to the public.[21]

A fair, reasonable, temperate and legitimate criticism of the judiciary, or of the conduct of a Judge in his judicial capacity is permissible. A contempt is to protect the institution and to prevent interference in the course of justice. Undermining the majesty of the institution or undermining the authority vested in Judges is a very important take away. I think that crosses a line from legitimate criticism of a ruling and goes into a whole different area. Legitimate criticism of a ruling is permissible and on the other hand we must draw the line where it becomes abusive, irrational, personal attacks on Judges that undermines the entire integrity of the institution. That has to be where we stop, that is where the freedom of speech ends. Anything that/which undermines the institution rather than criticises the institution that is where you cross the bounds of legitimacy.

In Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago[22], the court said “… no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.

Although Section 5 of the said Act states that fair and reasonable criticism is not to be termed as a contempt of court. A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided[23]. Judgments are open to criticism that must be done without casting aspersions on the Judges and the courts and without adverse comments amounting to scandalising the courts[24]. Actual interference with the course of administration of justice is not necessary, it is enough if the offending publication is likely on if it tends in any way to interfere with the proper administration of law[25].

Note: That a contempt petition cannot be withdrawn by the petitioner as a matter of right. The matter is primarily between the court and the contemnor. It is, therefore, for the court to allow or to refuse withdrawal in the light of the broad facts of the case and more particularly whether respect for judicial process would be enhanced or reduced by the grant or refusal of withdrawal. It is for the court to determine whether the act complained of tending to scandalise the court if viewed with certain severity with a view to punishing the person would in the larger interest of the society enhance respect for the judicial process, or too sensitive attitude in such matter may even become counterproductive. The power to commit for contempt of court has to be exercised with greatest caution.

Conclusion

At last, I would like to conclude from the golden words of Lord Atkin in Andre Paul Terence Ambard v. Attoney General of Trinidad and Tobago[26] “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

In the free market place of ideas criticisms about the judicial system or the Judges should be welcomed, so long as criticisms do not impair or hamper the administration of justice. As one should know where to stop and when to stop, as there is a very thin line difference between criticism and vilification. If one has the right to freedom of speech and expression as their fundamental right on one side then he has the duty/obligation to maintain dignity and integrity of the institution on the other side, as the freedom of speech and expression is not an absolute right it can be taken away in case someone tries to cross the justifiable limit permitted by the law of land.

For instance, if I fight a case and I loose, I should have the confidence to accept that I tried my case but it went wrong. I should not go home thinking the Judge was worried about what newspaper would say and that is why he decided against me. The day I get that feeling you have eroded my faith in judiciary.


Advocate, e-mail: adv.nihitsinghal@gmail.com.

[1] Lord Denning in Reg. v. Commr. of Police of the Metropolis, ex p, Blackburn, (1968) 2 QB 150.

[2] W.B. Administrative Tribunal  v. S.K. Monobbor Hossain, (2012) 11 SCC 761.

[3] <http://www.scconline.com/DocumentLink/IB5rg5rZ>.

[4] The Contempt of Courts Act, 1971.

[5] DDA v. Skipper Construction, (1995) 3 SCC 507.

[6] DDA v. Skipper Construction, (1995) 3 SCC 507.

[7] 1765 Wilm 243 : 97 ER 94.

[8] <http://www.scconline.com/DocumentLink/aMeb67Y3>.

[9] <http://www.scconline.com/DocumentLink/z3Hfxsu4>.

[10] <http://www.scconline.com/DocumentLink/z3Hfxsu4>.

[11] <http://www.scconline.com/DocumentLink/Pu75QPE4>.

[12] Om Prakash Jaiswal v. D.K. Mittal, (2000) 3 SCC 171.

[13] Pritam Pal v. High Court of M.P., 1993 Supp (1) SCC 529.

[14] Rajiv Choudhary v. Jagdish Narain Khanna, (1996) 1 SCC 508.

[15] Vineet Kumar Mathur v. Union of India, (1996) 7 SCC 714.

[16] Aswini Kumar Ghose, In re v. Arabinda Bose, 1953 SCR 215.

[17] Bhushan Power and Steel Ltd. v. Rajesh Verma, (2014) 5 SCC 551.

[18] Vide G.S.R. 368(E), dated 27-5-2014, published in the Gazette of India, Extra., Pt. II, S. 3(i), No. 287, dated 29-5-2014 <http://www.scconline.com/DocumentLink/zMvdG5rb>.

[19] C.K. Daphtary v. O.P. Gupta, (1971) 1 SCC 626.

[20] Baradakanta Mishra v. Registrar of the Orissa High Court, (1974) 1 SCC 374.

[21] Rustom Cowasjee Cooper v. Union of India, (1970) 2 SCC 298.

[22] 1936 SCC OnLine PC 15 : (1936) All ER 704.

[23] S. 5, The Contempt of Courts Act, 1971.

[24] Advocate General v. Abraham George, 1975 SCC OnLine Ker 83 : 1976 Cri LJ 158, 161.

[25] Hira Lal Dixit v. State of U.P., (1955) 1 SCR 677.

[26] 1936 SCC OnLine PC 15 : (1936) All ER 704.

Case BriefsSupreme Court

“The raison d’etre of contempt jurisdiction is to maintain the dignity of the institution of judicial forums. It is not a vindictive exercise nor are inappropriate statements by themselves capable of lowering the dignity of a Judge. These are often ignored but where despite all latitude a perennial litigant seeks to justify his existence by throwing mud at all and sundry, the Court has to step in.”

Supreme Court: Coming down heavily upon a contemnor, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has held that the power to punish for contempt is a constitutional power vested in this Court which cannot be abridged or taken away even by legislative enactment.

Brief background

  • Exemplary costs of Rs. 25 lakhs were imposed on one Rajiv Daiya, the chairman of an NGO Suraz India Trust, for filing a series of frivolous petitions against judges, judicial officers and court staff. The Court had held that extremely important matters are taken up for consideration on a daily basis and judicial time gets wasted because individuals not competent to assist the Court insist without due cause to be granted a prolonged hearing.
  • The costs were not deposited and Daiya sought to submit unconditional apology with a prayer that the costs imposed on him be waived and that he be pardoned against charges of contempt.
  • Stating that he had no sufficient funds to make payment of the costs, he claimed to have regularly taken loans for meeting various requirements, which were being deducted from his emoluments. In the liabilities he sought to put forth the expenses towards his daughter’s study apart from the liability of marriage of his daughter.
  • The same was declined while permitting the Registry to take action for recovery. Since the recovery did not take place, the Registry had placed the matter before the Court.
  • The Court, however, noted that,
  • “The so-called unconditional apology is again a recital of his alleged grievances in the earlier proceedings. It seeks to canvas that the proceedings for recovery of costs had actually come to an end, which was factually not so as it was his endeavour to seek modification of the order of costs.”
  • Not only this, on 26.03.2021, an e-mail was addressed to the Assistant Registrar (PIL Section) stating that Justice Sanjay Kishan Kaul should recuse himself as he had moved for sanction of prosecution before the President of India against him.
  • On 02.04.2021, Daiya addressed a letter to the Chief Justice of India requesting information to take suo motu cognizance of the criminal complaint against the Assistant Registrar and officers/officials of the PIL (Writ) Section.
  • He also had not complied with the orders and was seeking to wriggle out of the proceedings by raising all kinds of objections, i.e., that the matter should not be heard by the Bench but by a bench headed by the Chief Justice of India.
  • Since Daiya was found to be bent upon violating the directions of the Court, the Court deemed it appropriate to issue notice of contempt to Daiya returnable on 12.04.2021.
  • The affidavit filed by the State of Rajasthan informed that Daiya was working in the office of the Government Advocate-cum-Additional Advocate General at Jodhpur, which was an office separate from the office of the Advocate General of the State. He had been issued show cause notice under relevant service rules applicable and had been suspended and transferred since his conduct before various courts as the Chairman of the Trust was in violation of the relevant service rules.

Analysis

“… the easier path is to recuse or give up the matter instead of inviting so much trouble. But then that is not the course for which the Judges have taken oath. Sometimes the task is unenviable and difficult but it must be performed for the larger good of the institution. Such litigants cannot be permitted to have their way only because they can plead and write anything they feel like and keep on approbating by sometimes apologising and then again bringing forth those allegations. We have thus chosen the more difficult path.”

Taking note of the fact that all kinds of pleadings were being made in an issue of what was simply of recovery of costs from the Trust/ Daiya and that letters were also written to scandalise the Court and prevent the Court from taking action to ensure recovery of costs, the Court noticed that it was clearly an endeavour to browbeat the Court which the Court would not countenance.

Noticing that the contemnor has apparently made a profession of filing public interest petitions of subjects of which he may not know much and then seeking to scandalise the Court to grant him relief failing which he will continue to scandalise the Court, the Court held that,

“… there is no absolute licence when appearing in person to indulge in making aspersions as a tendency to scandalise the Court in relation to judicial matters. Motivated and calculated attempts to bring down the image of the judiciary in estimation of public and impair the administration of justice must bester themselves to uphold their dignity and the majesty of law.”

It was held that the contemnor has apparently made a profession of filing public interest petitions of subjects of which he may not know much and then seeking to scandalise the Court to grant him relief failing which he will continue to scandalise the Court.

The Court further said that the contemnor’s actions to scandalise the Court cannot be countenanced. He continues with his contumacious behaviour. The apologies submitted by him are only endeavours to get out of the consequences again followed by another set of allegations, thus, a charade. The last apology can hardly be called an apology seeing the contents.

“We have little doubt that what the contemnor has been endeavouring is to have his way or, alternatively, I will throw mud at all and sundry, whether it be the Court, its administrative staff or the State Government so that people, apprehensive of this mud thrown, may back off. We refuse to back off and are clear in our view that we must take it to its logical conclusion.”

On the question of right to be heard on sentence, the Court said that though it is a contempt on the face of the Court by the reason of the pleadings filed by him and the Court is not mandated to give him a hearing on the issue of sentence, it would still give him one more chance and, thus, consider it appropriate to list the petition to hear the contemnor on the question of final sentence.

[Suraz India Trust v. Union of India, 2021 SCC OnLine SC 833, decided on 29.09.2021]


*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Law made Easy

[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 PublicationSection 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.

† 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]

Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., while addressing the several questions on reporting by electronic media, expressed that:

“The duty of the press/media to have news items printed/telecast based on true and correct version relating to incidents worth reporting accurately and without any distortion/embellishment as well as without taking sides, cannot, therefore, be overemphasized.”

Genesis of the Several Public Interest Litigations

In the instant matter, several PIL’s cropped from the unnatural death of the actor Sushant Singh Rajput on June 14, 2020.

Insensitive and Disparaging Comments by News Channels

On June 20, 2020, a complaint was lodged against one of the prominent news channels before the Secretary, Ministry of Information and Broadcasting seeking action for insensitive and disparaging comments against the Indian Army and the coverage of the death of the actor, stated to be in defiance with the Programme Code.

Further, it was said that no action against the media channel was taken in regard to the complaint made.

Media Trials

Since the time of death of the actor, several prominent media channels have been literally conducting ‘media trials’ and ‘parallel investigation’ by conducting and broadcasting debates, rendering opinions, exposing the material witnesses, examining and cross-examining the witnesses, chasing the officials of CBI who were investigating the case.

Petitioners added that the above-stated telecast and broadcast are available in the public domain.

Sensationalization and Scandalize the death of the Actor

It is said that the prominent news channels in their attempt to sensationalize the issues have gone as far as displaying the CDR records which is a vital piece of evidence, thereby resulting in the several threat calls and messages sent to the alleged accused.

The petitioners say that to scandalize and sensationalize the death of the actor, irresponsible reporting to implicate one of the prominent ministers of the State of Maharashtra and have been making derogatory, false and distasteful remarks against several ministers.

Further, it was also pointed that the news anchors and reporters were examining and cross-examining all the proposed witnesses exposing the probable evidence to the public which could be examined only by the investigating agency or by the competent courts during the course of the trial.

Press Council of India

PCI had also issued a statement wherein it was stated that the coverage of the alleged suicide of the actor by many media outlets was in contravention of the norms of journalistic conduct.

Undermining the concept of free and fair trial

Petitioners submitted that the freedom of the media, especially of the TV channels, cannot be allowed to super stretch to a point where, by outpouring reprobate information, begins to clog and cloud the pellucid comprehension of ‘facts/news’ in the people’s minds and impinges upon free and fair investigation.

Fundamental Question

Whether the media under the garb of reporting news, can serve their own opinions as facts/news?

Petitioner observed that media works to create or induce opinions by narrating and reporting opinionated and tailored facts as news, which is beyond the scope, power and privilege accorded to the proverbial fourth pillar and a blatant abuse and misuse thereof.

Petitioners assert that media is plagued with the affliction of disproportionate reporting, which may be seen from the undue coverage given to inconsequential and mindless matters, unrelated to the greater good of the people of the country, as opposed to issues of national and international importance which the people are grappling with such as the COVID 19 crisis, mass joblessness, economic downfall, starvation, medical and healthcare structural problems, farmers issues, domestic violence, etc.

Adding to the above, petitioners stated that it is not the media’s domain to prove someone guilty a definitely no question of calling out someone guilty or innocent until the investigation and trial is complete.

Petitioners referred to the Supreme Court decision in Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1, wherein the Supreme Court has commented on the danger of serious risk of prejudice if the media exercises unrestricted and unregulated freedom, and stated that people at the helm of affairs should ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the right of defence of the accused in any manner whatsoever.

Petitioners refer to the decision of the Supreme Court in R.K. Anand v. Delhi High Court, reported in (2009) 8 SCC 106, where the Supreme Court observed that it would be a sad day for the court to employ the media for setting its own house in order and the media too would not relish the role of being the snoopers of the court.

Observation

Contention that media houses have crossed the ‘Lakshman Rekha’

Bench opined that the petitions filed aimed at redressal of genuine public harm or public injury and involve substantial public interest.

Hence, the Court overruled the objections of the media houses to the maintainability of the writ petitions.

Important Legal Questions before the Court

  1. What does the expression “administration of justice in any other manner” in Section 2(c)(iii) of the Contempt of Courts Act, 1971 connote, and whether trial by media/pre-judgment while a police investigation is in progress could lead to interference with/obstruction to “administration of justice”, thereby constituting criminal contempt under the aforesaid section?
  2. Is it necessary to construe “judicial proceedings” in Section 3 of the Contempt of Courts Act, 1971 to have commenced with the registration of an FIR? Also, is it at all necessary to read Section 3 of the Contempt of Courts Act, 1971 in the manner the petitioner in PIL (St.) 2339 of 2020 urges us to read?
  3. Whether media trial in respect of matters pending investigation of a criminal complaint, fall within the restrictions as contained in the Programme Code as postulated under Section 5 of the Cable Television Networks (Regulation) Act, 1995 and the rules framed thereunder?
  4. Whether the regime of self-regulation adopted by the news channels would have any sanctity within the statutory framework?
  5. While emphasizing on the need to strike the right balance between freedom of speech and expression and fair investigation/right to fair trial, to what extent, if at all, should press/media reporting be regulated if the same interferes with or tends to interfere with, or obstructs or tends to obstruct, “administration of justice”?

Further, the Court also proposes to address the following incidental questions:

  1. Are the guidelines for reporting cases of deaths by suicide sufficient? If insufficient, should further guidelines be laid down for reporting cases of deaths by suicide?
  2. Has the media coverage complained of in these writ petitions interfered with/obstructed and/or tends to interfere with/obstruct “administration of justice”, and thus amounts to criminal contempt within the meaning of section 2(c)(iii) of the Contempt of Courts Act, 1971? and whether criticism of Mumbai Police by the electronic media is fair?
  3. Is the accusation that the Ministry of Information and Broadcasting, Government of India, being the Nodal Ministry, has abdicated its statutory functions [under the Cable Television Networks (Regulation) Act and the rules framed thereunder read with the Policy Guidelines of 2011 and the license executed with the broadcaster] of deciding complaints received in respect of offending programmes, by forwarding the same to private bodies like the News Broadcasting Authority (NBA) and the News Broadcasters Federation (NBF), justified?
  4. Should an order be made, on facts and in the circumstances, postponing reporting of events by the media in respect of investigation by the CBI into the FIR registered by it pursuant to the complaint of the actor’s father? Also, is it necessary for the Court to suggest measures for regulating media coverage of incidents such as the one under consideration to address the concerns expressed in these writ petitions?

Analysis

  • Investigative Journalism

The controversy in the instant matter raises questions of contemporary importance touching upon the right of the press/media to express views freely, the right of the deceased to be treated with respect and dignity after death, the need to ensure investigation of the crime to proceed on the right track without being unduly prejudiced by media reports based on “investigative journalism”, and the right of the accused to a free and fair trial as well as the right to not be prejudged by the media.

“Right guaranteed by Article 19(1)(a) of the Constitution is not merely a right of speech and expression but a right to freedom of speech and expression.”

 In Supreme Court’s decision of Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 the need to protect the ‘Freedom of Press’ was highlighted, which is the heart of social and political intercourse.

Further, the Court referred to in LIC v. Manubhai D. Shah (Prof.), (1992) 3 SCC 637, wherein the flavour of the right to freedom of free speech and expression was brought out by the Supreme Court.

 “What resonates in our ears now is whether the right guaranteed under Article 19(1)(a) is the most abused right in recent times?”

 To the above stated, Court answered in negative and expressed that “it is a reminder of what has at times been the unsavoury past of the press/media in India crossing the proverbial ‘Lakshman Rekha’.”

Rule of Law

There can be no two opinions that in a society governed by the rule of law, no price is too high to maintain the purity of administration of justice; and, as a Constitutional court, we have the power, nay the duty, to protect not only the Fundamental Rights of the citizens as well as the press/media in the judicious exercise of our jurisdiction under Article 226 of the Constitution but also to secure that the stream of administration of justice flows unsullied and unpolluted, uninfluenced by extraneous considerations.

 Supreme Court’s decision in Harijai Singh, In Re., (1996) 6 SCC 466 held that:

“10. But it has to be remembered that this freedom of press is not absolute, unlimited and unfettered at all times and in all circumstances as giving unrestricted freedom of speech and expression would amount to an uncontrolled licence. If it were wholly free even from reasonable restraints it would lead to disorder and anarchy. The freedom is not to be misunderstood as to be a press free to disregard its duty to be responsible. In fact, the element of responsibility must be present in the conscience of the journalists.”

PCI Guidelines

Electronic media should also be guided by the contents of the guidelines of the PCI on reporting of death cases by suicide for two reasons: first, the said guidelines have a statutory flavour and similar such binding guidelines on reporting cases of death by suicide are non-existent for the electronic media; and secondly, the absence of such guidelines could lead to the dignity of the dead being breached with impunity.

The death of the actor was followed by such crude, indecent and distasteful news reporting by a few of the TV channels that we do not consider it worthy of being referred to here and be a part of this judgment.

Court’s Ruling

“No report/discussion/debate/ interview should be presented by the press/media which could harm the interests of the accused being investigated or a witness in the case or any such person who may be relevant for any investigation, with a view to satiate the thirst of stealing a march over competitors in the field of reporting.”

High Court opined that the press/media ought to avoid/regulate certain reports/discussions/debates/interviews in respect of and/or touching upon any on-going inquiry/investigation into a criminal offence.

Hence, Bench directed the press/ media to exercise restraint and refrain from printing/displaying any news item and/or initiating any discussion/debate/interview of nature, as indicated hereunder:

  1. In relation to death by suicide, depicting the deceased as one having a weak character or intruding in any manner on the privacy of the deceased;
  2. That causes prejudice to an ongoing inquiry/investigation by:

(i)  Referring to the character of the accused/victim and creating an atmosphere of prejudice for both;

(ii)  Holding interviews with the victim, the witnesses and/or any of their family members and displaying it on screen;

(iii)  Analyzing versions of witnesses, whose evidence could be vital at the stage of trial;

(iv)  Publishing a confession allegedly made to a police officer by an accused and trying to make the public believe that the same is a piece of evidence which is admissible before a Court and there is no reason for the Court not to act upon it, without letting the public know the nitty-gritty of the Evidence Act, 1872;

(v)  Printing photographs of an accused and thereby facilitating his identification;

(vi)  Criticizing the investigative agency based on half-baked information without proper research;

(vii)  Pronouncing on the merits of the case, including pre-judging the guilt or innocence qua an accused or an individual not yet wanted in a case, as the case may be;

(viii)  Recreating/reconstructing a crime scene and depicting how the accused committed the crime;

(ix)  Predicting the proposed/future course of action including steps that ought to be taken in a particular direction to complete the investigation; and

(x)  Leaking sensitive and confidential information from materials collected by the investigating agency;

  1. Acting in any manner so as to violate the provisions of the Programme Code as prescribed under section 5 of the CTVN Act read with rule 6 of the CTVN Rules and thereby inviting contempt of court; and
  2. Indulging in character assassination of any individual and thereby mar his reputation.

Role of Media Houses

Bench advised media houses to inform, guide and advise the guest speakers to refrain from making public utterances which are likely to interfere with and/or obstruct the administration of justice and thereby attract contempt.

The role of the anchor, in such cases, is also important. It is for him/her to apply his/her mind and avoid the programme from drifting beyond the permissible limits. Muting the speaker if he flies off or shows the tendency of flying off at a tangent could be one of several ways to avoid embarrassment as well as contempt.

Investigative Agencies

Court also reminded the investigative agencies that they are entitled to maintain secrecy in the course of the investigation and are under no obligation to divulge materials thus collected.

Further, the Court added that:

If indeed there is leakage or disclosure of materials, which has the potential of stifling a proper investigation, it could pave the way for such information being laid before the competent court having powers to punish for cri6minal contempt under Section 2(c) of the CoC Act and in an appropriate case, for being dealt with in accordance with law.

Appointment of an Officer as a Link between the Investigator and Media Houses

Agreeing with Mr Datar’s suggestion Court observed that:

Mumbai Police, as well as the other investigating agencies, may consider the desirability of appointing an officer who could be the link between the investigator and the media houses for holding periodic briefings in sensitive cases or incidents that are likely to affect the public at large and to provide credible information to the extent such officer considers fit and proper to disclose and answer queries as received from the journalists/reporters but he must, at all times, take care to ensure that secret and confidential information/material collected during the investigation, the disclosure whereof could affect the administration of justice, is not divulged.

In case an officer as stated above would be appointed, he would be expected to bear in mind the Supreme Court’s decision in Rajendran Chingaraveluv. R.K. Mishra, (2010) 1 SCC 457.

“Every journalist/reporter has an overriding duty to the society of educating the masses with fair, accurate, trustworthy and responsible reports relating to reportable events/incidents and above all to the standards of his/her profession. Thus, the temptation to sensationalize should be resisted.”

Therefore, in light of the above discussions, the Court disposed of the PIL’s filed.[Nilesh Navalakha v. Union of India, 2021 SCC OnLine Bom 56, decided on 18-01-2021]


Advocates for the Parties:

Mr. Devadatt Kamat, Senior Advocate a/w Mr. Rajesh Inamdar with Mr.Shashwat Anand, Mr. Pankaj Kandhari, Ms. Smita Pandey, Mr.Amit Pai, Mr. Vishal Jagwani, Kevin Gala, Siddharth Naik, Pinky Chainani, Mr. Ankur Azad, Mr. Sarveshwari Prasad, Mr. Rahat Bansal, Mr. Faiz Ahmad. i/b Mr. Pankaj Kandhari for Petitioners.

Mr. Anil Singh, Additional Solicitor General a/w Mr. Sandesh Patil, Mr.Aditya Thakkar, Mr.Amogh Singh, Ms. Apurva Gute, Mr. Chintan, Mr. Mayur Prashant Rane, Mr. Sumedh Sahakari, Mr. D. P. Singh, Ms.Reshma Ravapati, Mr. Saurabh Prabhulkar and Medvita Trivedi for respondent Nos.1, 4, 12 and 13.

Mr. Arvind Datar, Senior Advocate i/by Mr. Bharat Manghani for respondent 3 (NBA)

Mr. P. P. Kakade, Govt. Pleader with Mrs. R. A. Salunkhe, AGP for respondent 5 -State.

Mr. Rajeev Pandey with Mr. Madhur Rai i/by PRS Legal for respondent No.6(The India Today Group).

Mr. Kunal Tandon a/w Ms. Prachi Pandya i/by Corporate Attorneys for respondent No.7 (Times Now).

Ms. Malvika Trivdei a/w Mr. Saket Shukla, Mr. Vasanth Rajshekharan, Mr. Mrinal Ojha, Mr. Debashri Datta, Mr.Rajat Pradhan, Ms. Madhavi Joshi and Mr. Siddhant Kumar i/by Phoenix Legal for respondent 8 (Republic TV).

Mr. Angad Dugal, Mr. Govind Singh Grewal, Shiva Kumar, Tanya Vershney, Raj Surana a/w Rishi Murarka for respondent 9 (NDTV Ltd.).

None for respondent  10 (News 18).

Mr. Ankit Lohiya a/w Mr. Hetal Thakore, Mr. Kunal Parekh, Ms. Bhavika Tiwari i/by Dua Associates AOR Mumbai for respondent 11 (Zee News).

Ms. Hetal Jobhanputra for respondent No. 14 (ABP News).

Mr. Jayant Mehta a/w Mr. Alankar Kirpekar a/w Mr. Tejveer Bhatia, Mr. Rohan Swarop, Mr. Shekhar Bhagat i/by MAG Legal for respondent 15 (India TV).

Mr. Siddhesh Bhole, Mr. Rishabh Dhanuka i/by Alba Law Offices for respondent No. 16 (News Nation).

Mr. Siddharth Bhatnagar, Senior Advocate a/w Mr. Pralhad Paranjape for respondent No. 17 (NBF).

Op EdsOP. ED.

The consent of the Attorney General to initiate criminal contempt proceedings against Kunal Kamra underlines a significant point – that the freedom of speech is subject to the law of contempt. Ubiquitous as it may seem, this fundamental norm appears to have been put into desuetude by the critics of the judiciary in recent times. This basic norm of Indian free speech jurisprudence may appear contrary to the American position where it was once believed that the law of contempt is limited by the first amendment.

Much has been said as to how the offence of scandalising the court is no longer relevant and should be done away with. Succour is sought from the unfair and not-so-lovely comments of the Privy Council in McLeod v.  St. Aubyn[1]:

…But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.

Coloured population we may be, but our Court in Perspective Publications[2]  has clearly held that it is not correct that committals for scandalising the court has become obsolete. Further, what the advocates of unqualified free speech undermine is what is pertinently said by our Court in Rama Dayal Markarha v. State of M.P.[3]:

“14 In this country justice at grass-root level is administered by courts set up in rural backward areas largely inhabitated by illiterate persons. It is they who bring their problems to the court for resolution and they are the litigants, or consumers of justice service. Their susceptibility is of a different type than the urban elite reading newspapers and exposed to wind of change or even wind of criticism. The people in rural backward areas unfortunately illiterate have different kinds of susceptibilities. A slight suspicion that the Judges pre-disposed or approaches the case with a closed mind or has no judicial disposition would immediately affect their susceptibilities and they would lose confidence in the administration of justice. There is no greater harm than infusing or instilling in the minds of such people a lack of confidence in the character and integrity of the Judge…”

True it may be that in that case the Court was concerned with a mofussil court, but it must not be lost sight of that the higher judiciary in our country, right up to the Supreme Court, is flooded with litigation emanating from rural areas. That includes a large number of criminal cases where the accused may be seeking bail or anticipatory bail. Proliferation of social media in rural India is well known. Unabated circulation of reckless comments is bound to create an impression in those susceptible minds, who unfortunately constitute the vast majority.

The Contempt of Courts Act has been enacted keeping in mind the developments and trends in other countries, without ignoring the ground realties and prevalent socio-economic conditions in India. (Arundhati Roy, In re[4]).

Critics of our courts have been vociferous as to how the power to punish for contempt is antithetical to the freedom of speech and expression and how the law of contempt has become anachronistic. Much has been said about how the law of contempt has been diluted even in a conservative country like the United Kingdom. Lord Templeman in the Daily Mirror case and the opinion of Lord Denning in the Blackburn case have been quoted ad nauseam.

It was generally believed that the approach of the American courts was that the contempt power of all courts is limited by the guarantee of the first amendment against interference with freedom of speech or of the press. This stems from the opinion of Justice Hugo Black in Bridges v.  California[5]. However, even in a country as liberal as the United States in terms of freedom of speech and expression, the necessity to have the power to punish for contempt and drawing lines distinguishing free-speech from interference with the course of justice has been recognised. In that very case of Bridges[6], Felix Frankfurter, J. penned his dissenting opinion which has gained currency in later times. He took the view that the summary power over contemptuous publications is deeply rooted in common law and that the power to punish for contempt is not a censorship in advance but a punishment for past conduct and, as such, like prosecution for criminal libel is not offensive either to first or to the fourteenth amendments. In Gentile v. State Bar of Nevada[7],  is an instance where  Rheinquist, C.J. took the view that “the substantial likelihood of material prejudice” standard is a constitutionally permissible balance between the first amendment right of attorneys in pending cases and the State’s interest in fair trials.

Vilification of Judges is also bound to affect the psyche of Judges. Felix Frankfurter, J. in Pennekamp[8], rightly observed:

Judges, however stalwart, are human and the delicate task of administering justice ought not to be made unduly difficult by irresponsible print.”

In Attorney General v. BBC[9], Lord Dilhorne, disagreeing with the opinion of Lord Denning who wrote from the Court of Appeals, held:

It is sometimes asserted that no Judge will be influenced in his judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting……

                                                                                      (emphasis supplied)

Borrie and Lowe in their commentary[10] on contempt of court state that Lord Denning’s view is “more a statement of policy rather than literal truth”. Cardozo, in his “Nature of the Judicial Process” referring to the forces which enter into the conclusions of Judges” observed that “the great tides and currents which engulf the rest of men, do not turn aside in their course and pass the Judges by”.

The bottom line, therefore, is fair criticism – for that is what is permissible in our law. A judgement can be criticised respectfully, and instances closer home are aplenty. Seervai has severely criticised the judgement of  Bhagawati, J.  in E.P. Royappa[11]. He says the judgment suffers from the logical fallacy of undistrbuted middle, but the criticism is benign and is a pleasure to read. Constructive criticism, without attacking any particular Judge or court, has also been held to be out of the ken of contempt. A contempt petition was filed against Chief Justice E.S. Venkataramaiah for his interview lamenting the state of the judiciary as such. The Court declined to proceed with contempt.[12]

Consent for criminal contempt has been granted. The speaker claims to be a comedian. But it is the Attorney General who is standing up for a free and fearless judiciary by exercising his discretion wisely.

Kunal Kamra claims to be a comedian, but it is the Attorney General who is standing up for a robust judiciary. Freedom of speech does not licence vilification of Judges and the judiciary. Irresponsible onslaught on Judges is bound to affect their psyche. ‘There can be no claim of judicial superiority over human frailty’ said Lord Dilhorne, disagreeing with Lord Denning. Benign humour/satire a la Daphtary is welcome; not calculated vituperation clothed as humour. The power of contempt is warranted to ensure the free and fair administration of justice-free speech jurisprudence under our Constitution.


* Advocate-on-Record, Supreme Court. Author can be contacted at raghavendra@srivatsa.com

[1] McLeod  v. St. Aubyn, (1899) AC 549

[2] Perspective Publications (P) Ltd. v. State of Maharashtra, (1969) 2 SCR 779

[3] (1978) 2 SCC 630

[4] (2002) 3 SCC 343

[5] 314 US 252 (1941)

[6] Ibid.

[7] 501 US 1030 (1991)

[8] 328 US 331 (1946)

[9] 1981 AC 303 (HL)

[10] Borrie and Lowe, The Law of Contempt, (3rd Edn., 1996)

[11] E.P. Royappa v. State of T.N., (1974) 4 SCC 3

[12]Vishwanath v. E.S. Venkatramiah, 1990 SCC OnLine Bom 441

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has issued notice to cartoonist Rachita Taneja and comedian Kunal Kamra in two separate cases relating contemptuous social media posts.

After obtaining Attorney General for India KK Venugopal’s consent a law student had filed a petition against Taneja for initiating proceedings for contempt for publishing contemptuous posts on her social media pages, Sanitary Panels, which allegedly scandalise and undermine the authority of the Supreme Court. The petitioner has filed this contempt petition.

Similarly, an advocate and 2 law students sought for initiation of criminal contempt proceedings against the Kamra for publishing contemptuous tweets on his twitter handle.

While giving consent in Kunal Kamra’s case, the Attorney General had noted,

“I find that today people believe that they can boldly and brazenly condemn the Supreme Court of India its judges by exercising what they believe is their freedom of speech. But under the Constitution, the freedom of speech is subject to the law of contempt and I believe that it is time that people understand that attacking the Supreme Court of India unjustifiedly and brazenly will attract punishment under the Contempt of Courts Act, 1972.”

The notices are returnable within six weeks and both the contemnors have been spared from appearing in person.

[Shrirang Katneshwarkar v. Kunal Kamra, 2020 SCC OnLine SC 1041, order dated 18.12.2020 and Aditya Kashyap v. Rachita Taneja, 2020 SCC OnLine SC 1042, order dated 18.12.2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal (CAT): A Division Bench of Justice L. Narasimha Reddy (Chairman) and A.K. Bishnoi (Administrative Member) took Suo Motu cognizance of the behaviour of an Advocate who made attempts to hoodwink the tribunal.

Background

Sanjiv Chaturvedi an IFS officer of Uttarakhand Cadre was on deputation to the All India Institute of Medical Sciences (AIIMS) Delhi for some period who filed different Applications with regard to recording of ACRs and was represented by Mehmood Paracha, Advocate.

On completion of his deputation, he was repatriated to his parent cadre.

Advocate stated that the Supreme Court dismissed the SLP filed by the AIIMS, by imposing the cost of Rs 25,000. He was also informed that the adjudication before the Uttarakhand High Court and the Supreme Court was only about the power of the Chairman under Section 25 of the Administrative Tribunals Act, 1985 to stay the proceedings while dealing with an application for transfer and that issue no longer subsists, with the adjudication by the Courts.

Sanjiv Chaturvedi was flamboyant in his approach and was in fact exhibiting triumphalism in getting the order of stay passed in the transfer petition, set aside.

Adjournment | Contempt of Court

Further, the applicant i.e. Sanjiv Chaturvedi was also informed that he can argue the PTs themselves so that the issue can be given a quietus. That did not appeal to him and he went on almost browbeating the Chairman and trying to explain as to how the Tribunal should function.

At that stage, he was informed that his conduct before the Tribunal touched the border of the Contempt of Court and it is for him to choose the course of action. Thereupon, he sought adjournment.

Counsel for the respondent, Mehmood Pracha, stated that the Supreme Court dismissed the SLP filed by the AIIMS. Taking note of the said fact, he was asked to proceed with the PTs and advance the arguments which did not appeal to him.

Humiliation

Instead, Counsel Mehmood Parcha who is the respondent in the present matter, started humiliating the other side’s counsel saying that the Supreme Court has shown them their place by the imposition of Rs 25,000 costs and hence they have no right to plead before the Tribunal.

Browbeating the Chairman | Personal attack on Chairman

He created an unfortunate situation in the Court and was browbeating the Chairman through his gestures and dramatics. Seeing that his provocation was not yielding the expected results, Advocate went on to make a personal attack on the Chairman.

Further, he went on to say that he has a lot to be said about the Chairman and the proceedings should be held in camera.

Scandalising the Chairman

He was informed that he can say in the open Court whatever he intends and if that is not done, it would amount to scandalizing the Chairman. His behaviour continued in the same manner and he did not reveal anything.

The Court was full of Advocates of different standings and repeated requests were made by them to pacify the respondent but nothing affected him.

Section 25 of the Administrative Tribunals Act

It was also informed that the PTs are heard only the Chairman under Section 25 of the Act and if he i.e. the Advocate has any other suggestion, he could make it.

Yet, he continued his tirade.

In view of the above occurrence, Advocate was sent a notice requiring him to explain as to why contempt proceedings should not be initiated against him.

Delhi High Court took up the matter of contempt and referring to the Supreme Court decision in T. Sudhakar Prasad v. Government of Andhra Pradesh (2001) 1 SCC 516, and held that the tribunal alone has jurisdiction to hear and decide the contempt case.

The Supreme Court affirmed order in the contempt matter by rejecting SLP (Crl) No. 7850 of 2019 after the draft charge as provided by the Contempt of Courts (CAT) Rules, 1992 were framed on 19-07-2019 on the basis of the remarks and statements made by the respondent herein, in his capacity as an Advocate.

The respondent filed MA. No. 2471/2019 with three prayers viz., (i) to decide certain MAs filed in PT. No. 288/2017; (ii) to decide whether the Chairman has jurisdiction to hear the contempt case; and (iii) to pass orders in respect of draft charge dated 19-07-2019. The MAs were disposed of on 02-08-2019.

Vikramjit Banerjee, Additional Solicitor General appeared to assist the Tribunal.

Decision

Tribunal expressed that the matter falls under Rule 13(b) of the Contempt of Courts (CAT) Rules, 1992.

Criminal Contempt

Solicitor General, Vikramjit Banerjee, stated that even where an Advocate becomes emotional, during the course of hearing, there is a method of setting the things right and persistent behaviour of challenging the very authority of the Tribunal or attempting to denigrate the Chairman would clearly amount to criminal contempt.

To the suggestion made by the learned Additional Solicitor General that the matter can be given a quietus in case the respondent expresses regrets, the latter stated that he will stand by whatever he said in the Tribunal and during the course of proceedings and that there is no question of expressing regrets.

It is not uncommon that a party or his counsel whose view point is not being accepted by the Court gets agitated. Howsoever strong such feeling may be, they have to stop at a particular stage, even while making effort to drive home, their point.

Upholding the dignity of the Institution

Attacking an adjudicator or attributing motives would cut at the very root of the system.

Once the dignity and status of the Institution are compromised, it loses its relevance. The concept of Contempt of Court is evolved inter alia to protect the dignity of the Institution.

Further, the bench stated that in all respects, result in the PTs was poised in favour of the applicant himself. However, what is discerned from the beginning is that his effort was to exhibit the IFS Officer’s personality than to get the relief in accordance with the law.

Tone & Tenor of pleas

The tone and tenor of the pleas are such that the target was certainly highly placed officers and authorities. In an application for transfer, all the above-stated was totally irrelevant.

The matter reached its pinnacle when in the Open Court counsel said that the proceedings be heard in the Chamber because he has to say something about the Chairman.

Though when he was asked to say whatever he wanted to in the Open Court, he went beating around the bush and did not spell out anything.

Hoodwinked the Tribunal

Counsel and his client have hoodwinked the Tribunal at every stage and in all possible manners.

Soon after the contempt notice was issued, a contempt case was filed against the Chairman, in the Uttarakhand High Court. A Single Judge bench entertaining it issued notice. The Supreme Court stayed it.

Tribunal noted that, the attempt in the present case made to add to the personality of the applicant and his counsel and for that purpose, Tribunal became an easy target.

Further, the bench stated that it may take decades of dedicated service for an officer to be recognised for his efficiency or honesty.

For a hardworking Advocate, it would take quite some time to get recognition or fame. Unfortunately, recourse is taken by some, to short cuts, without realising that the one who prefers short cuts is bound to be cut short.The only unfortunate part of it is that severe damage is done to the Institutions, in the meanwhile

In view of the above, the tribunal held the counsel i.e. respondent herein to be guilty of Contempt of Court under Section 14 of the Contempt of Court Act, 1971.

However, there would have been every justification for the tribunal, to impose the sentence, proportionate to the acts of contempt held proved against the respondent.

However, by treating this as a first instance, he has been let off with a severe warning to the effect that if he repeats such acts in future in the Tribunal, the finding that he is guilty of Contempt of Court, in this case, shall be treated as one of the factors in the proceedings, if any, that may ensue. [Tribunal on its own motion v. Mehmood Pracha, Cr. CP No. 290 of 2019, decided on 23-09-2020]

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Sonia Gokani and N.V. Anjaria, JJ., held that there may not be an actual interference with the course of administration of justice but it is enough if the offending publishing or act is likely or tends in any way to interfere with the administration of law.

Contempt Proceedings

Suo Motu contempt proceedings were initiated under Article 215 of the Constitution of India read with Section 15 of the Contempt of Courts Act, 1971 where this Court issued a notice under Section 17 of the Contempt of Courts Act to respondents/alleged contemner.

Since every case of criminal contempt under Section 15 is required to be heard and determined by the bench of not less than two judges which is as per Section 18 of the said Act, the matter was placed before the Chief Justice and the same has been placed before this Court by way of a roster.

Factual Matrix

Contemner-Respondent 1 filed an anticipatory bail under Section 438 of the Code of Criminal Procedure for the offences punishable under Sections 143, 145, 332, 504, 186, 147, 153, 269 of the Penal Code and Section 13(1) of the Gujarat Epidemic Disease-19 Regulations, 2020 and Section 3 of the Epidemic Diseases Act, 1897.

On 22-06-2020, a phone call was received by the Judge on her official mobile phone from a person who introduced himself as Niranjan Patel, MLA.

Phone Call

Further, the person inquired as to why he made a phone call, he said there was one criminal case listed before the Court on that day and the Judge immediately stopped him from talking further and clearly told him that he should not have called a Presiding Judge in the manner it was done and disconnected the phone.

The said person called thrice but the Judge did not answer the calls and laters it was noticed that the number belongs to Taufik Faiz Xerox having Vodafone number.

Bench was of the opinion that,

“…it was an act meant to prejudice or interfere with due course of Judicial proceeding, or an act which interfered or tended to interfere with the administration of Justice which would amount to criminal contempt with the meaning of Section 2(c) of Contempt of Courts Act, 1974.”

However, to ascertain as to who in fact was in the custody of the mobile phone number at those hours and who had called and sent the messages, the Superintendent of Police was directed to record the statement of Niranjan Patel, MLA and Tosif Vohra.

Malicious

Niranjan Patel indicated that he had no family relations with respondent 1. With regard to the call in question, he stated that he never had made any such call nor would he ever think to make any such call on behalf of anyone. His name is dragged maliciously.

Decision

In the present matter, on perusal of the submissions, High Court stated that the apology as may be tendered by the parties, the alleged contemners shall need to be regarded by the Court, where it is also to regard as to whether the apology tendered is at the first point of time without attempting to justify the actions and creating the defence or is it being used as an escape route.

Court also needs to regard, “Whether the same is in a case which has been committed the first time.”

The law is also clear that it is not necessary for the Court to accept such an apology, even if found to be unconditional and unqualified when the parameter of genuineness is not found satisfying.

Administration of Law

Further, the Court added that what is also required to be considered is that there may not be an actual interference with the course of administration of justice but it is enough if the offending publishing or act is likely or tends in any way to interfere with the administration of law.

If the Act if is so derogatory to the very dignity of the justice delivery system so as to undermine the confidence of the people, Court would not choose to overlook such a serious dimension.

Even an apology which is conditional but inspiring confidence, being full of contrition and remorse and which is also meant to be sincere, demonstrating clearly that the person concerned has out of repentance and remorse tendered the same and is not a design or manner to overreach the process, can also be accepted.

Section 12 of the Contempt of Court provides for the punishment of contempt.

Supreme Court’s decision in Bal Kishan Giri v. State of U.P., (2014) 7 SCC 280 considered as to when can an apology be considered, where the following was held:

”…apology cannot be a defence, justification or calculated strategy to avoid punishment for an act which tantamount to contempt of court, and is not to be accepted as a matter of course. However, apology can be accepted where conduct for which apology given is such that it can be ignored without compromising dignity of court, or evidences real contrition, and is sincere. Apology cannot be accepted where it is hollow, there is no remorse, no regret, no repentance, or if it is only a device to escape rigour of law that is it is merely paper apology.” On facts, it had been held that the High Court was justified in not accepting apology which was not bonafide.“ It also held that casting of bald, oblique unsubstantiated aspersions not only causes agony and anguish to judges concerned but also shakes confidence of public in judiciary.”

Decision rendered in case of Vishram Singh Raghubanshi v. State of U.P., (2011) 7 SCC 776  also reiterated that not necessarily, apology even if unconditional and unqualified needs acceptance.

Apart from being bonafide, if the conduct is serious which has caused damage to the dignity of the institution, the same need not be accepted.

High Court stated that when the conduct of both alleged respondent 1 and 2 are considered, it can be noticed that both tendered apology which they insisted to be unconditional and unqualified and at the first given opportunity.

Compromising with the dignity of the institution

Present case being an extremely gross case where there is a direct attempt to contact the Presiding Judge of the Court with a clear design to obtain an order in favour of the respondent 1 by camouflage and all possible efforts have been made to interfere with the administration of justice, even if the apology is termed as a qualified and unconditional, accepting the same would amount to compromising with the dignity of the institution.

Prima facie, it appears that with an intent to get the order in his favour, he had hired alleged contemner 2 who in his opinion was having all resources and was having more contact and he made arrangement in his meeting to get the number of Judge.

Apology

It is a very serious case and, in a time, where many litigants harbour a notion to win over and manoeuvre anything and everything by adopting even extra-legal means and whose only goal is the end result which they desire, regardless of the means adopted, the Court is of the clear opinion that acceptance of apology would vindicate such notion that one can get away with any outrageous conduct by merely tendering an apology.

It appears largely a design to procure liberty by an ill design and unpalatable means of contacting the sitting Judge of this Court right on the day when the matter is scheduled to get the order by hook or crook and the means adopted, as can be noticed, prima facie are such which would shake the edifice if permitted to go scot-free.

The glaring facts of the instant case would not permit this Court to accept the apology and discharge the notice as requested by the Counsels appearing for the parties as the Court cannot overlook the vital and fundamental aspect that such acceptance can mean this Court compromising the dignity of the institution and interference with the administration of justice.

Hence, Court is not persuaded in the totality of facts and circumstances, to accept such apology so tendered. [Suo Motu v. Vijay Arvindbhai Shah, 2020 SCC OnLine Guj 1274, decided on 31-08-2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has sentenced advocate Prashant Bhushan with a fine or Re.1/­ (Rupee one) to be deposited with the Registry by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years. It had found advocate Prashant guilty of criminal contempt on 14.08.2020 in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets.

In the 82-pages long verdict on sentence, the Court said that it not on one occasion but on several occasions, not only gave opportunity but also directly or indirectly pursuaded the contemnor to express regret. Further, the Attorney General had also suggested that it was in the fitness of things that a contemnor expresses regret and withdraws the allegation made in the affidavit in reply, however, the request was not heeded to by the contemnor and he gave wide publicity to the second statement submitted before the Court on 24.08.2020 prior to the same being tendered to the Court. He also gave various interviews with regard to sub judice matter, thereby further attempting to bring down the reputation of the Court.

“If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of  Re.1/­ (Rupee one).”

KEY HIGHLIGHTS FROM THE VERDICT

On Judges being the silent sufferers of allegations against them

The Judges have to express their opinion by their judgments, and they cannot enter into public debate or go to press. It is very easy to make any allegation against the Judges in the newspaper and media. Judges have to be the silent sufferer of such allegations, and they cannot counter such allegations publicly by going on public platforms, newspapers or media

“Thus, it is necessary that when they cannot speak out, they cannot be made to suffer the loss of their reputation and prestige, which is essential part of the right to live with dignity.”  

On the Press Conference dated 12.01.2018 of the then four senior-­most Judges of the Supreme Court

Concept of equality before law, what is permissible not as to what is impermissible. Truth can be the defence to the Judges also, but they are bound by their judicial norms, ethics, and code of conduct.

“We hope it was the first and the last occasion that the Judges have gone to press, and God gives wisdom to protect its dignity by internal mechanism, particularly, when allegations made, if any, publicly cannot be met by sufferer Judges.”

On Prashant Bhushan being actively involved pursuing various Public Interest Litigations

“Merely because a lawyer is involved in the filing of the public interest litigation for the public good it does not arm him to harm the very system of which he is a part.”

An advocate cannot forget his ethical duty and responsibility and cannot denigrate the very system of which he/she is an integral part. Fair criticism is not to be silenced, but an advocate has to remind himself/herself, where he/she crosses the zone of propriety, and the Court cannot continuously ignore it, and the system cannot be made to suffer

On the Statements made by retired Judges, journalists, and others in Press/Media

The Court cannot abdicate its duty and has to be uninfluenced by the statements published in various articles published in the media and opinions expressed therein. It has to decide the case uninfluenced by such opinions.

On the argument that the Court will be criticized, in case it inflicts any punishment upon Prashant Bhushan

“While exercising our judicial functions, we cannot take into consideration whether we will be praised or criticized for the judgment which we render.  We are required to decide the cases on the basis of the law as it correctly stands, in our perception and understanding.  We are not expected to decide the matter on the basis as to whether there will be criticism of the judgment or not. We have to be always ready for its fair criticism.”

On the lawyers and litigants going to press or media in a sub judice matter

Prashant Bhushan talked to the press and media and the statement which was pursuant to the order dated 20.08.2020, was also published well in advance in extenso, word to word, in the newspaper and media. If such kind of action is resorted to in a sub judice matter, that too by an advocate who is facing a criminal contempt, it virtually tantamount to using a forum or platform which is not supposed to be used ethically and legally.

“In a sub judice matter, releasing such statement to the press in advance is an act of impropriety and has the effect of interfering with the judicial process and the fair decision making and is clearly an attempt to coerce the decision of the Court by the influence of newspaper and media, which cannot be said to be conducive for the fair administration of justice and would further tantamount to undue interference in the independent judicial making process which is the very foundation of institution of administration of justice.”

On sentencing

  • The contention that he is a lawyer having of 35 years of standing and has also pursued various public interest litigations would no doubt  be a relevant factor while balancing the decision to be taken by the Court.  However, at the same time, the uncalled statements made in the affidavit for pursuing truth as a defence can also not be ignored.
  • Lawyers’ noble profession will lose all its significance and charm and dignity if the lawyers are permitted to make any malicious, scandalous and scurrilous allegations against the institution of which they are part. The lawyers are supposed to be fearlessly independent and robust but at the same time respectful to the institution.
  • It is apparent that in both the statements made by the contemnor, he is sticking to his ground, and he is not at all realizing that any wrong was done by him to the institution. At the same time, he has expressed the faith in the institution and he has submitted that an apology cannot be a mere incantation and an apology has to be as the Court itself put be sincerely made.  He has further stated that he made the statement bona fide and with truthful details which had not been dealt with by the Court.  He is insistent and has no remorse about what he has stated in the defence.
  • Bhushan not gone by the advice of the learned Attorney General to withdraw the same and to take if off the record. Being a person well versed with law, he ought to have given due weightage to the advice rendered by the learned Attorney General who has pleaded not to sentence him, at the same time maintained that the statements made in the affidavit in reply could not be taken into consideration for considering the case of Mr. Prashant Bhushan of truth as a defence.

“When senior most functionary in the legal profession of the stature of the learned Attorney General was giving an advice to express regret and withdraw the wild allegations a lawyer of such a long standing was expected to give due respect to it.  Even our request made to him has gone in vain.”

  • Simple issuance of warning is not going to suffice in the instant case.

“We are not afraid of sentencing the contemnor either with imprisonment or from debarring him from the practice. His conduct reflects adamance and ego, which has no place to exist in the system of administration of justice and in noble profession, and no remorse is shown for the harm done to the institution to which he belongs.  At the same time, we cannot retaliate merely because the contemnor has made a statement that he is neither invoking the magnanimity or the mercy of this Court and he is ready to submit to the penalty that can be lawfully be inflicted upon him for what the Court has determined to be an offence.”

Sentence 

A fine or Re.1/­ (Rupee one) to be deposited with the Registry by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years.

Background of the issue:

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ, in a 108-pages long verdictsaid that:

“The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing. In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest.”

Stating that in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly, the Court noticed that Advocate Bhushan has been practicing for last 30 years in the Supreme Court and the Delhi High Court and has consistently taken up many issues of public interest concerning the health of our democracy and its institutions and in particular the functioning of our judiciary and especially its accountability. Bhushan being part of the institution of administration of justice, instead of protecting the majesty of law has indulged into an act, which tends to bring disrepute to the institution of administration of justice.

[In re: Prashant Bhushan, 2020 SCC OnLine SC 698, decided on 31.08.2020]


Read more on the judgment here

Read Advocate Prashant Bhushan’s supplementary reply here

Hot Off The PressNews

Supreme Court: The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari has reserved its verdict on sentence after it found advocate Prashant guilty of criminal contempt on 14.08.2020 in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets.

Asking advocate Prashant Bhushan to tender an apology for his remarks, the Court said that there is “no harm in apologising if a mistake has been made”.

During the hearing, Senior Advocate Dr Rajeev Dhavan, appearing for Bhushan, argued

“This institution must have criticism and not just criticism but extreme criticism.” 

He further said that his client, Bhushan, had in his submissions stated that he has the highest regard for the institution but he has his opinion about last four Chief Justices of India (CJIs) about the way in which this court has gone wrong.

“We criticise this court when we feel sincere about this institution. We know our responsibility and our respect for the institution. Don’t make him a martyr,” 

To this, Justice Mishra said,

“If we are going to destroy each other, who will have faith in this institution? You have to be tolerant, see what the court is doing and why. Don’t just attack. Judges can’t go to press to defend themselves or explain. Whatever we have to say, we have to write in our judgments,” 

Expressing his displeasure over the way the tweets were written, Justice Arun Mishra, said, that judges are condemned, their families are humiliated and they can’t even speak.

“You are a leader of the bar. We expect you to be impartial. You may have love and affection for anyone but we want you to be fair. Don’t take sides,”

Yesterday Bhushan, in a supplementary reply in the suo motu contempt proceedings, submitted that if he retracts his statement before the court that he otherwise believes to be true would amount to the contempt of his conscience in his eyes.

“If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem,”

Background of the issue:

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ, in a 108-pages long verdictsaid that:

“The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing. In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest.”

Stating that in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly, the Court noticed that Advocate Bhushan has been practicing for last 30 years in the Supreme Court and the Delhi High Court and has consistently taken up many issues of public interest concerning the health of our democracy and its institutions and in particular the functioning of our judiciary and especially its accountability. Bhushan being part of the institution of administration of justice, instead of protecting the majesty of law has indulged into an act, which tends to bring disrepute to the institution of administration of justice.

(With inputs from ANI)


Read more on the judgment here

Read Advocate Prashant Bhushan’s supplementary reply here

Hot Off The PressNews

Advocate Prashant Bhushan, who has been held guilty of contempt of court for his contemptuous tweets has refused to retract his statements or tender an apology in the matter. Last week, the 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, jj has asked advocate Prashant Bhushan to take 2-3 days to reconsider his ‘defiant statement’.

Bhushan, in a supplementary reply in the suo motu contempt proceedings, submitted that if he retracts his statement before the court that he otherwise believes to be true would amount to the contempt of his conscience in his eyes.

“If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem,”

He said that he has nothing but the highest regard for the institution of the Supreme Court.

“I believe that the Supreme Court is the last bastion of hope for the protection of fundamental rights, the watchdog institutions and indeed for constitutional democracy itself. It has rightly been called the most powerful court in the democratic world, and often an exemplar for courts across the globe. … Today in these troubling times, the hopes of the people of India vest in this Court to ensure the rule of law and the Constitution and not an untrammeled rule of the executive,”

Bhushan said that this casts a duty, especially for an officer of this court like himself, to speak up, when he believes there is a deviation from its sterling record.

“Therefore I expressed myself in good faith, not to malign the Supreme Court or any particular Chief Justice, but to offer constructive criticism so that the court can arrest any drift away from its long-standing role as a guardian of the Constitution and custodian of peoples’ rights,”

He further said that his tweets represented this bonafide belief that he continues to hold and added that the public expression of these beliefs was in line with his higher obligations as a citizen and a loyal officer of the court.

“… an apology for expression of these beliefs, conditional or unconditional, would be insincere. An apology cannot be a mere incantation and any apology has to, as the court has itself put it, be sincerely made. … This is especially so when I have made the statements bonafide and pleaded truths with full details, which have not been dealt with by the Court,”

Reserving the order on sentence on August 20, 2020, the Court had said,

“In case, apology is submitted, the case to be posted for consideration on the same, on 25.08.2020.”

Background of the issue:

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ, in a 108-pages long verdictsaid that:

“The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing. In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest.”

Stating that in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly, the Court noticed that Advocate Bhushan has been practicing for last 30 years in the Supreme Court and the Delhi High Court and has consistently taken up many issues of public interest concerning the health of our democracy and its institutions and in particular the functioning of our judiciary and especially its accountability. Bhushan being part of the institution of administration of justice, instead of protecting the majesty of law has indulged into an act, which tends to bring disrepute to the institution of administration of justice.

(With inputs from ANI)

Read more on the judgment here

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, jj has asked advocate Prashant Bhushan to take 2-3 days to reconsider his ‘defiant statement’, refusing to apologise for his contemptuous tweets. Bhushan said that he will consult his lawyers and think over the Court’s suggestion in 2-3 days.

“We have given time to the contemnor to submit unconditional apology, if he so desires.”

When the Attorney General KK Venugopal urged the Court not to award any punishment to Prashant Bhushan in the contempt case, the Court said that it cannot consider the said request Bhushan reconsiders his earlier stand of not apologising for his tweets.

“The tone, tenor and content of Prashant Bhushan’s statement makes it worse; is it defence or aggravation.”

The bench said that it can be very lenient if there is realization of mistake.

At the outset of the hearing, Bhushan had submitted before the Court that the arguments on quantum of sentence in the contempt proceedings, in which he has been held guilty, be heard by another bench. The bench rejected the submission but gave assurance to Bhushan that no punishment will be acted upon till his review against the order convicting him in the case will be decided.

Reserving the order, the Court said,

“In case, apology is submitted, the case to be posted for consideration on the same, on 25.08.2020.”

Background of the issue:

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ, in a 108-pages long verdictsaid that:

“The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing. In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest.”

Stating that in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly, the Court noticed that Advocate Bhushan has been practicing for last 30 years in the Supreme Court and the Delhi High Court and has consistently taken up many issues of public interest concerning the health of our democracy and its institutions and in particular the functioning of our judiciary and especially its accountability. Bhushan being part of the institution of administration of justice, instead of protecting the majesty of law has indulged into an act, which tends to bring disrepute to the institution of administration of justice

[In re Prashant Bhushan, 2020 SCC OnLine SC 663, order dated 20.08.2020]

(With inputs from PTI)

Read more on the judgment here

Hot Off The PressNews

“Trenchant criticisim, commentary, satire and homour help build institutions in a free society.”

After a group of lawyers, released a Statement appealing the Supreme Court to not give effect to the judgment dated 14.08.2020 that found advocate Prashant Bhushan guilty of criminal contempt in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets, the Bar Association of India has also expressed dismay on the manner in which Suo Moto contempt jurisdiction was exercised by the Supreme Court against a member of legal profession.

“Judgments that curb the exercise of freedom of speech and expression by a member of the Bar by resort to suo motu powers is conspicuously old fashioned. The reputation of the Supreme Court of India cannot be dislodged by a couple of tweets.”

Stating that the stature of the Supreme Court would stand enhanced by allowing criticism rather than taking umbrage at such remarks, BAI writes that the exercise of contempt jurisdiction in this manner has potential for more self harm than the avowed purpose of safeguarding the prestige of the institution.

Yesterday, a battery of lawyers, appealed to the Supreme Court that,

“… the judgment must not be given effect to, until a larger bench, sitting in open court after the pandemic has the opportunity to review the standards of criminal contempt.”

The Statement went on to state that the judgment does not restore the authority of the court in the eyes of the public. Rather, it will discourage lawyers from being outspoken. From the days of the supersession of judges and the events thereafter, it has been the Bar that has been the first to stand in defence of the independence of the judiciary.

“A bar silenced under the threat of contempt, will undermine the independence and ultimately the strength of the Court. A silenced bar, cannot lead to a strong court.”

The Bar Association of India is Federation of the Supreme Court, High Court, District Court and other local Bar Associations, Law Societies in India and the Society of Indian Law Firms (SILF), cumulatively representing as a voluntary body almost the entire legal profession, apart from having a distinguished individual membership.

Background of the issue:

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ, in a 108-pages long verdict, said that:

“The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing. In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest.”


Read more on the judgment here

Read the Public Statement by Advocates on Prashant Bhushan’s contempt case here

Hot Off The PressNews

“An independent judiciary consisting of independent judges and lawyers, is the basis of the rule of law in a Constitutional democracy. Mutual respect and the absence of coercion, are the hallmarks of a harmonious relationship between the bar and bench. Any tilting of the balance, one way or the other, is deleterious both to the institution and the nation.”

A battery of lawyers, including Senior Advocates have released a Statement appealing the Supreme Court to not give effect to the judgment dated 14.08.2020 that found advocate Prashant Bhushan guilty of criminal contempt in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets. 

“… the judgment must not be given effect to, until a larger bench, sitting in open court after the pandemic has the opportunity to review the standards of criminal contempt.”

The Statement reads that an independent judiciary does not mean that judges are immune from scrutiny and comment. It is the duty of lawyers to freely bring any shortcomings to the notice of bar, bench and the public at large.

“While some of us may have divergent views on the advisability and content of Mr. Prashant Bhushan’s two tweets, we are unanimously of the view that no contempt of court was intended or committed especially when contrasted with the normal standard that “Justice is not a cloistered virtue… She must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men”.”

While Mr. Prashant Bhushan as a lawyer of good standing of the Supreme Court, may not be an ordinary man, his tweets do not say anything out of the ordinary, other than what is routinely expressed about the court’s working in recent years by many on public fora and on social media. Even some retired judges of the Supreme Court have expressed somewhat similar views.

The Statement goes on तो state that the judgment does not restore the authority of the court in the eyes of the public. Rather, it will discourage lawyers from being outspoken. From the days of the supersession of judges and the events thereafter, it has been the Bar that has been the first to stand in defence of the independence of the judiciary.

“A bar silenced under the threat of contempt, will undermine the independence and ultimately the strength of the Court. A silenced bar, cannot lead to a strong court.”

The lawyers also express a deep sense of disappointment about the Supreme Court’s disregard of the presence of the Attorney General KK Venugopal during the hearing and its refusal to seek his valuable opinion in the matter, which is mandated even as per contempt law.

The Statement concludes by saying that:

“We do believe that the Supreme Court will hear the Voice of the People expressed all around in last 72 hours on the subject and take corrective steps to prevent miscarriage of Justice and restore the confidence and respect that Citizens have generally reposed in it.”

Here’s the list of the Lawyers who have signed the Statement:

Background of the issue:

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ, in a 108-pages long verdict, said that:

“The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing. In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest.”


Read more on the judgment here

Read the Public Statement on Prashant Bhushan’s contempt case here

Case BriefsHigh Courts

Gujarat High Court: A Division Bench of Sonia Gokani and N.V. Anjaria, JJ., initiated suo motu contempt proceeding of an extremely unfortunate event, wherein fingers have been raised against the High Court, Administration of High Court and Registry by irresponsible, sensational and intemperate delivery in an interview by the President of Gujarat High Court Advocates’ Association — Senior Advocate Yatin Oza.

Senior Advocate Yatin Oza levelled false and contemptuous allegations of corruption, malpractices against the administration of the High Court.

President of GHCAA by calling journalists on a live press conference made serious allegations of corruption against the registry and also categorically alleged Forum shopping in no uncertain terms without any valid, significant or true basis.

Further Court noted that, he has questioned the very credibility of High Court Administration and raised fingers at some of the Honourable Judges indirectly with scandalous remarks of a few Advocates being successful in getting their matters circulated in three courts and also getting contemplated orders.

President in his “complete consciousness and with total responsibility“ as declared by him in his interview called this August Institution a ‘Gambling den’ and an Institute which caters only to the litigants with means and money power, smugglers and those who are traitors.

Broadly following are allegations made by the President in the live press conference held by him:

  1. corrupt practices being adopted by the registry of the High Court of Gujarat,
  2. undue favour is shown to high-profile industrialist and smugglers and traitors,
  3. The High Court functioning is for influential and rich people and their advocates,
  4. The billionaires walk away with order from the High Court in two days whereas the poor and non VIPs need to suffer,
  5. if the litigants want to file any matter in the High Court person has to be either Mr Khambhata or the builder or the company. This also was circulated in Gujarati daily Sandesh titled as ‘Gujarat HighCourt has become a gambling den – Yatin Oza’

Bench also observed that, the President without caring for the truth, riding on the wave of populism, appears to have crossed all limits by condemning recklessly the Institution.

Being aware of the consequences, he gave an open challenge to the authority of this Court in the very interview which is even worse than the very action.

Court emphasises that,

In the present times, Bench-and the Bar are duty bound to work together and discharge their respective obligations.

In times of such crisis and the need to have a coordinated functioning of the Courts, such demeaning utterances would indeed result in more aggravating and retrograding effects.

Through the framers of the Constitution, the people of this nation have given to themselves the Constitution and have reposed their faith in the courts of justice. Their confidence cannot be allowed to be diminished by contemptuous behaviour of any person.

 It is in these times when attempt to shake the foundation of Judiciary is done, that the Court exercises its extraordinary powers under Article 215 of the Constitution of India to initiate actions for contempt of courts against those who attempt to undermine the authority of law and bring disrespect and disrepute to this institution by scandalising the same.

Criminal Contempt of this Court

Bench noted that President by his scandalous expressions and indiscriminate as well as baseless utterances attempted to cause damage to the prestige of the High Court and attempted to lowering the image of Administration, thus Court found him responsible for committing the criminal contempt of thus Court under Section 2(c) of Contempt of Courts Act and took cognizance of the same under Section 15 of the said Act.

Following directions have been issued by the Court:

  • Office shall register the matter as Suo motu Contempt Proceedings under Article 215 of the Constitution of India read with Section 15 of the Contempt of Courts Act.
  • Notice to be issued under Section 17 of the Contempt of Courts Act to the President.
  • The case of criminal contempt under Section 15 of the said Act is statutorily permitted to be heard and decided by the Bench of not less than two Judges as provided under Section 18 of the said Act.
  • Court deemed it appropriate to place before the Chief Justice consideration at the hands of the full Court whether to divest the stature of respondent under contempt, of designation of a senior Counsel under the circumstances.

[Suo Motu v. Yatin Narendra Oza, 2020 SCC OnLine Guj 856 , decided on 09-06-2020]

Case BriefsCOVID 19High Courts

Calcutta High Court: Dipankar Datta, J., issued a suo motu Rule for contempt against Advocate Bijoy Adhikari while holding his conduct in the Court to be abominable and finding it prima facie to be criminal contempt within the meaning of Section 2(c) of the Contempt of Court’s Act, 1971.

Advocate Adhikari had mentioned a writ petition seeking urgent hearing  on the ground that the petitioner’s bus would be put up for auction on 25-3-2020 by the respondent Bank and therefore they should be immediately restrained by an interim order. The Court noted that the bus was seized on 15-1-2020. While refusing the prayer for urgent hearing, the Court went on to state that:

the petitioner cannot, by his own conduct, create an urgent like situation during the present disturbing times and seek a hearing in the absence of the respondent much after seizure of the bus was effected.”

While the order was being dictated by Justice Datta presiding the Court singly, Advocate Adhikari obstructed the course of administration of justice by not only interfering repeatedly in the course of dictation but also first thumped the addressing table and then banged the microphone on it more than once. Advocate Adhikari was warned but instead of heeding to such warning, he was heard saying that Justice Datta’s future shall be doomed by him and for such purpose he cursed that Justice Datta be infected by corona virus.

Curtly, Justice Datta told Advocate Adhikari:

[N]either do I fear dooming of my future nor being infected by the virus; the majesty of the Court is what is paramount in my mind and to uphold that a rule for contempt could be issued against him.     

However, Advocate Adhikari seemed not to care and was found to be unrelentingly shouting at the top of his voice. The Court observed that Advocate Adhikari’s conduct was not behoving a member of the noble profession and thereby undermining the dignity and prestige of the Court.

In Court’s opinion, conduct of Advocate Adhikari, apart from being abominable, prima facie amounts to criminal contempt within the meaning of Section 2(c) of the Contempt of Courts Act, 1971. It was accordingly ordered that a suo motu Rule for contempt against Advocate Adhikari be drawn up and served on him as early as possible. Advocate Adhikari was directed to answer to the Rule within a fortnight from the date of service thereof. The Rule is made returnable before the appropriate Division Bench having determination upon reopening of the Court after summer vacation. [Kalidas Datta v. Allahabad Bank, 2020 SCC OnLine Cal 687, decided on 23-3-2020]

High Courts

Allahabad High Court: While deciding the present contempt petition, where the contemnor via a Notice to the Supreme Court and the Chief Justice of India, had leveled serious allegations upon the present Chief Justice of this Court, the Division Bench of Sudhir Agarwal and Dinesh Gupta, JJ., held the contemnor guilty of criminal contempt of Court under Section 2(c) of Contempt of Courts Act, 1971, for scandalizing and lowering the authority of the Chief Justice of this Court by calling him a “pro- Government Chief Justice”, and sentenced him to simple imprisonment of four months, along with fine of Rs. 1500. The Court also prohibited the contemnor from entering the premises of District Judgeship of Allahabad and the Allahabad High Court (including Lucknow Bench) for a period of six months.

As per the facts of the present case, the contemnor had alleged that the Chief Justice of this Court (D.Y. Chandrachud) is a “pro-government Chief Justice unfit for administration” and accused him of indulging in rampant corruption, and that the Chief Justice of India is in cahoots with him. The contemnor further alleged that the Supreme Court has become a hub of corrupt persons who are now legalizing the illegal acts of men in power. The Notice in question issued on 21.08.2014, was placed before a Litigation Committee, who observed that the Notice tantamounts to ex-facie contempt. The contemnor, R.K. Singh, appearing in person, argued that the allegations made in the Notice pertain to the administrative functioning of the Chief Justice of this Court, therefore it is outside the purview of criminal contempt under Contempt of Courts Act, 1971.

On careful perusal of the facts and arguments the Court observed that the contemnor has made severe allegations demeaning not only the Chief Justice of this Court, but also the Supreme Court of India. Publication of any matter or doing of any other act whatsoever which scandalizes or tends to scandalize or lowers or tends to lower the authority of any Court comes under the ambit of criminal contempt under Section 2 (c) (i) of 1971 Act. The Court referring Rachapudi Subba Rao v. Advocate General, (1981) 2 SCC 577, observed that vilification of a Judge even in administrative matters amounts to criminal contempt. The Court also observed that the contemnor did not present any evidence to substantiate his allegations. The Court finally stated that the wild allegations of the contemnor against the Chief Justice cannot be justified in any manner, and with the contemnor not showing even the slightest amount of remorse, leniency in this matter would cause a serious damage to the authority of the Court. Ram Kumar Singh In Re, 2015 SCC OnLine All 1131, decided 07.05.2015