{"id":245602,"date":"2021-03-16T09:03:58","date_gmt":"2021-03-16T03:33:58","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=245602"},"modified":"2021-03-16T11:12:18","modified_gmt":"2021-03-16T05:42:18","slug":"criminal-contempt-of-courts","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2021\/03\/16\/criminal-contempt-of-courts\/","title":{"rendered":"Criminal Contempt of Courts [What is contempt and what isn\u2019t? Where falls the line?]"},"content":{"rendered":"

[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]<\/strong>\u00a0<\/strong><\/p>\n

Introduction <\/strong><\/span><\/h3>\n

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<\/em> contempt proceeding against Senior Advocate, Prashant Bhushan<\/em>. Recently, contempt proceedings against Stand-up Comedian, Kunal Kamra<\/em> and Cartoonist, Rachita Taneja<\/em> have once again brought the matter of contempt in limelight.<\/p>\n

On 12 November 2020, Kamra had posted a series of tweets criticising the Supreme Court for granting interim bail<\/a> to Republic TV Editor-in-Chief Arnab Goswami in a suicide abetment case. Not only Kamra\u2019s tweets received mixed responses from\u00a0 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\u2019s tweets [[1]<\/a>] \u2014 \u201chonour has left the building (Supreme Court) long back\u201d<\/em> and \u201cSupreme Court of the country is the most Supreme joke of the country\u201d. <\/em>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\u2019s benefit.<\/em> All this in the AG’s opinion constitutes criminal contempt of court.<\/em><\/p>\n

Constitutional and Statutory Provisions for Contempt<\/strong><\/span><\/h3>\n

\u00a0<\/strong>Amongst all the fundamental rights guaranteed by Part III of Indian Constitution, Article 19(1)(a)<\/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 \u201cCriminal Contempt\u201d.<\/p>\n

Article 129<\/a> of the Constitution, makes the Supreme Court \u201ca court of record\u201d and confers power to punish for contempt of itself. Whereas, Article 142<\/a> 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 \u201ca court of record\u201d, implying that only Supreme Court and High Courts are empowered to adjudicate criminal contempt proceedings.<\/p>\n

Section 10<\/a> of the Contempt of Courts Act, 1971 specifically empowers the High Courts to punish contempt of subordinate courts. Similarly, Section 15(2<\/a>) 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*<\/strong><\/a> (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]<\/a>]<\/p>\n

Contempt of Courts Act, 1971<\/strong><\/span><\/h3>\n

Objective <\/em><\/strong><\/p>\n

In India, contempt proceedings are governed by Contempt of Courts Act, 1971.<\/a> Contrary to the obvious conception, the objective of the Act as mentioned in the Act is:<\/p>\n

\u201c\u2026to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto.\u201d<\/em><\/p>\n

The rationale behind this enactment can be best described by pronouncement of Justice Wilmot in Rex <\/em>v. Almon<\/em>[3]<\/a>:\u00a0<\/em><\/p>\n

\u201cAnd whenever men\u2019s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and\u2026calls 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\u2019s justice is conveyed to the people …\u201d<\/em>[[4]<\/a>]<\/p>\n

What is Criminal Contempt?<\/strong><\/p>\n

Section 2(c)<\/a> defines criminal contempt in following manner:<\/p>\n

” ‘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\u2500<\/p>\n

(i<\/em>) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or<\/p>\n

(ii<\/em>) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or<\/p>\n

(iii<\/em>) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;”<\/p>\n

Scandalising the Authority of Court<\/strong><\/p>\n

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<\/em>\u00a0v.\u00a0Kapil Sibal<\/em>,\u00a0(2010) 7 SCC 502<\/a><\/p>\n

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.<\/p>\n

Prejudicing due Course of Judicial Proceedings<\/strong><\/p>\n

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<\/em>, (1969) 2 SCR 649<\/a><\/p>\n

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<\/em>, (2021) 3 SCC 160 : 2020 SCC OnLine SC 698<\/a><\/p>\n

Obstructing Administration of Justice<\/strong><\/p>\n

There is no comprehensive definition of the expression \u201cadministration of justice\u201d. But historically, and in the minds of the people, administration of justice is exclusively associated with the Courts of justice constitutionally established, Baradakanta Mishra <\/em>v. High Court of Orissa, <\/em>(1974) 1 SCC 374<\/a><\/p>\n

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. <\/em>v. State of Gujarat,<\/em> (1991) 4 SCC 406<\/a><\/p>\n

Where is the Line? <\/strong>\u00a0<\/strong><\/p>\n

Kunal Kamra, in his defence, filed a 6-pages long affidavit and emphasised on not having any ill-intention to malign the judiciary, \u201cthe 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\u2019s faith in the judiciary is founded on the institution\u2019s own actions, and not on any criticism or commentary about it.\u201d<\/em> While referring constitutional protection afforded to judiciary he further added, \u201cI believe that constitutional offices-including judicial offices-know no protection from jokes.\u201d<\/em><\/p>\n

Section 13<\/a> 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 \u201csubstantially interferes, or tends substantially to interfere with the due course of justice\u201d.[[5]<\/a>] This section is an attempt by the framers of the Act to demonstrate a line between criticism and contempt:<\/p>\n

\n

“<\/strong>13. Contempts not punishable in certain cases.\u2014<\/strong>Notwithstanding anything contained in any law for the time being in force,\u2014<\/p>\n

(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;<\/p>\n

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

(emphasis supplied)<\/p>\n

 <\/p><\/blockquote>\n

The offence of contempt is not absolute and act of contempt per se<\/em> does not entail punishment (Exceptions\u2014Sections 3 to 8).<\/p>\n

\u201cExercise 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,\u201d Mrityunjoy Das<\/em>\u00a0v.\u00a0Sayed Hasibur Rahaman<\/em>,\u00a0(2001) 3 SCC 739<\/a><\/p>\n

Defences Available <\/strong><\/p>\n

Innocent Publication<\/span> – Section 3<\/a><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 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 \u201cinnocent\u201d, \u00a0 Prabhakar Laxman Mokashi <\/em>v. Sadanand Trimbak Yardi,<\/em> 1973 SCC OnLine Bom 79<\/a><\/p>\n

Fair and Accurate Report of Judicial Proceeding – Section 4<\/a><\/p>\n

Subject to the provisions contained in Section 7<\/a>, 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.<\/p>\n

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. <\/em>v. SEBI<\/em>, (2012) 10 SCC 603<\/a><\/p>\n

Fair Criticism –<\/span> Section 5<\/a><\/p>\n

Kunal Kamra wrote in his defence, \u201c\u2026constitutional offices \u2212 including judicial offices \u2212 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.\u201d <\/em>What he was willing to imply by this defence was public accountability of judges.<\/p>\n

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.<\/em> 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<\/em> v. Union of India<\/em>, (1988) 4 SCC 226<\/a><\/p>\n

Complaint against Presiding Officer –<\/span> Section 6<\/a><\/p>\n

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\u2014<\/p>\n

(a<\/em>) any other subordinate court, or<\/p>\n

(b<\/em>) the High Court, to which it is subordinate.<\/p>\n

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.<\/p>\n

Truth as a Defence –<\/span> Section 13<\/a><\/p>\n

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:<\/p>\n