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Contempt of Court

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this

INTRODUCTION

Said the book
worm to the silverfish

I once tried a
law book

At first, it
refused to budge,

Then suddenly it
shook

And I fell on to
judge.

To tell you what
I felt there.

I won’t even
attempt.

Not because I
don’t dare

But there is
something called contempt.[1]

Contempt of
court is an offence, which by the common law of England was punishable by the
High Court, in a summary manner, by fine or imprisonment or both. The power to
punish for contempt of court was applied originally in England to contempt
committed in the presence of the court. In 1747, Thomas Martin, Mayor of Great
Yamouth, sent a banknote fundamental rights Pound 20 to lord Hardwicke, Lord
Chancellor, with a letter referring to a proposed chancery proceeding. The Lord
Chancellor ordered Martin to show cause why he should not be committed for
contempt. He sought pardon and the Lord Chancellor in consideration of this, his
public office, the payment of costs, and his willingness to the suggestion that
the bank note be sent to the warden of the Fleet Street prison for debtors for
their relief, did not take any action.[2]

In 1631, when a
prisoner threw a brickbat at the Judge and narrowly missed him, the prisoner’s
right hand was ordered to be cut off and hung on the gallows. In 1938, when the
disgruntled litigant threw tomatoes at the Court of Appeal, consisting of
Clauson and Goddard JJ.[3] He was immediately committed to prison, but released
after a few days of incarceration, because, he did not score a direct hit and
secondly Christmas was soon approaching. There are several instances of contempt
in the face of the Court in English Tradition and they would not end even if we
write a book on it. The development of contempt law in England did contribute
great principles to the law of contempt, which are presently followed by several
common law jurisdictions.

The Indian
Courts as guided by Common Law principles ought to have followed similar
principles as laid down by the common law courts. The law of contempt is well
developed under the English precedent system. With regard to other laws the
Indian Courts have blindly followed them but the law of contempt has been
exercised in an arbitrary and uncontrolled manner, as there was no limit to the
period of imprisonment that may be inflicted, or the fine that may be imposed.
Article 129 of the Constitution provides that the Supreme Court shall be a court
of record with all the powers of such a court; including the power to punish for
contempt of itself. Similarly, Article 215 provides that every High Court shall
be a Court of Record with all the powers of such a Court including the power to
punish for contempt of itself. Under Article 129 the Supreme Court has power to
deal with contempt committed vis-à-vis the High Courts.[4] Under Entry 77 of
List I of the Seventh Schedule to the Constitution, Parliament has the power to
make laws relating to the jurisdictions and powers of the Supreme Court,
including contempt of such court. Under Entry 14 List III, Parliament and a
State Legislature have power to make laws relating to contempt of court, but not
contempt of the Supreme Court. Sarthi in his book outline three basic principles
of contempt jurisdiction:

The power to punish for contempt of court is under Articles 129 and 215 of
the Constitution and not solely under the Contempt of Courts Act. The real
jurisdiction to try contempt is conferred upon the courts by the Constitution,
the basic document of all the laws.

But there should be wise economy in the use of this power, as in the case
of any other power. Judges should never use this jurisdiction as a means to
uphold their dignity, which must rest on better and stronger foundations. It
should never be used to suppress those who speak against them, because, good
judges do not fear criticism nor do they resent it. The freedom of speech is a
very important right and it is only when it is abused to the extent of
interfering with the administration of justice that the contempt jurisdiction
should be invoked.

The dichotomy between the personal protection of a libeled Judge and
prevention of obstruction of public Justice should be clearly kept in mind. It
is only when the court considers the attack on the Judge or Judges scurrilous,
offensive, intimidating or malicious beyond condonable limits, that the strong
arm of the law must strike a blow on him who challenges the supremacy of the
rule of law by fouling its source and stream.

The issue in
question has been if the statement made by the contemnor is the truth, then can
it still be considered contempt. It is submitted that in all cases the so-called
contemnor should be allowed to prove the truth of his statement. If he is able
to show some prima facie justification, the Judge should be left to his personal
remedy of invoking the criminal law of defamation. But if the contemnor fails to
show any justification, he must be severely punished.

In light of
these powers and principles laid down under our Constitution and common law, the
authors attempt to analyse the law on contempt of court in India. The position
of this principle seems to be arbitrary as far as the recent debates in media
portrayed it to be. This is an important tool in the hands of the court and
sometimes they need to be used as a sword and sometimes as a shield to protect
itself.

RESEARCH
METHODOLOGY

Aim

The aim of this
paper is to find out the concept of contempt of court. This paper seeks to
identify the development of contempt under different jurisdictions

Scope

The project
limits itself in understanding the concept of contempt of court. This paper
traces the historical jurisprudence of the concept and the latest developments
and the contempt as understood under both UK systems and US.

Research
Questions

What is contempt of court?

Why is there a necessity of this concept?

What is contempt understood in other jurisdictions?

Is the Contempt of Courts Act, 1971 a comprehensive legislation?

What is the response of Indian Judiciary to this concept?

What ought to be contempt of court?

Methodology

The approach has
been primarily descriptive and analytical.

Hypothesis

The law of
contempt, which developed under the common law system, has been clearly defined
by the English courts. Even though the Indian courts have deliberated a number
of times on contempt law, they have given different interpretations and still
the law of contempt is ambiguous under the Indian system.

Mode of
citation

A uniform mode
of citation has been adopted throughout the project. It is as follows:

Name of author,
Title of book, Place of Publication, Name of the Publishers, Year of
Publication, page number.

Name of the
Author, “Name of the Article”, Name of the Journal, Volume, Year, Page
Number.

Sources

Both primary and
secondary sources are used for the project.

Chapter-I

HISTORY AND
BACKGROUND TO THE CONTEMPT OF COURTS ACT

“Our Judges are
so honest as other men,

and not more so.
They have with others

The same
passions for party, far power

And privilege of
their corps”[5]

It is a great
question to every judicial system as to what “ contempt of court” is. James
Francis Oswald defines contempt of court as “ to speak generally contempt of
court may be said to be constituted of the law into disrespect or disregard, or
to interfere with or prejudice parties litigant or their witness during the
litigation”.[6] Lord Hadwick in 1742[7] made a three-fold classification of
contempt:

Scandalizing the court.

Abusing parties who are concerned in the causes, in the presence of
court.

Prejudicing the public against persons before the cause is heard.

The law of
contempt is as old as the concept of justice and judicial system. From the times
of Romans, this concept was used by the judicial officers of the state to
preserve the dignity of the justice system as a whole. But during those days
these concepts were used liberally by the sovereign. Oswald in his book provides
an illustration. T. of F went armed in the palace, which was shown to the
council of the King, by which he was taken and disarmed before Chief Justice
Shard, and committed to the prison of the Marshalsea and could not be bailed
till the king sent his will.[8] With the change in time, the concepts of
contempt also evolved. As the art of governance began to grow, the King yielded
his powers to the three organs[9] of the government, the Executive, the
Parliament/ Legislature and the Judiciary. The judges were deemed to have acted
in the name of the king. It was Kings justice and as such demanded all respect
and obedience. Any disrespect to the seat of justice was affront to the dignity
and majesty of law. It is apt to quote what Justice Wilmot states in Rex
v. Wilmot:[10] “ And whenever men’s allegiance to the law is so
fundamentally shaken, it is the most fatal and most dangerous obstruction of
justice and in my opinion calls for rapid and immediate action than any other
obstruction whatsoever not for the sake of the judges as private individuals but
as they are the channels by which the Kings justice is conveyed to people.”

Thus the
provision of contempt of court was first put forward and given a firm footing by
the English judges. Later the process of contempt of court was introduced into
India by the British following the establishment of the courts of record in the
19th Century. This was put on a firm basis in India by Contempt of
Courts Act, 1926. The need for contempt of Courts Act, 1926 was felt on account
of the difference of opinion between the madras and Bombay High Courts on the
one hand and Calcutta High Court on the other regarding the protection of
subordinate courts.[11] The attempt at a comprehensive legislation relating to
contempt of courts in India was the contempt of Courts Act, 1926. The Act did
not contain any provision with regard to contempt of courts subordinate to
courts other than High Courts, that is, the courts subordinate to Chief courts
and judicial commissioners. The Act also did not deal with the extra territorial
jurisdiction of High courts in matters of contempt.

The Act of 1926
was a short Act containing only three sections. The preamble mentions that it
was an act to define and limit the powers of certain courts in punishing for
contempt of courts and since doubts arose as to the powers of the High Court of
Judicature to punish for contempt, it was considered expedient to resolve these
doubts and limits the powers of the High Court in punishing for contempt of
courts. Section 3 of the Act laid down that a contemnor may be punished for
simple imprisonment for a term which may extend to 6 months or fine which may
extend to 2000 Rupees or with both.[12] The Contempt of Courts Act, 1926 was not
found adequate and as such the Contempt of Courts Act, 1952 was enacted. From
the statement of objects and reasons which led to the enactments of the contempt
of Courts Act, 1952, it is obvious that this law was made as there was no
specific provision of law which enabled a High Court to exercise this power in
respect of Contempt Committed beyond its territorial jurisdiction.[13]

The provisions
for punishment contained in the Contempt of Courts Act, 1926 and the Act of 1952
though valid and constitutional fell short of the expectations of the people and
interfered with their fundamental rights of freedom of speech and expression. It
was felt that the Act of 1952 did not contain sufficient safeguards for the
freedom of press particularly. Thus a committee was set up under the then
Additional Solicitor General of India, Sri H. N. Sanyal. The Sanyal Committee
submitted a very detailed and comprehensive report suggesting drastic changes in
the contempt law. The draft bill was referred to a select committee and the Bill
was finally introduced In the Rajya Sabha on 19th February 1968 and
the Contempt of Courts Act, 1952 was replaced by the 1971 Act.

It is generally
felt that the existing law relating to contempt of courts is somewhat uncertain,
undefined and unsatisfactory. The jurisdiction to punish for contempt touches
upon two important fundamental rights of citizen, namely, the right to personal
liberty and the right to freedom of expression. It was therefore, considered
advisable to have the entire law on the subject scrutinized by a special
committee. The Sanyal Committee was set up to look into this aspect, which made
recommendations and most of it were accepted by the Government. Contempt
proceedings do not partake the character of a traditional lis. In the legalistic
sense a contempt proceeding is not a dispute between two parties but is
primarily between the court and the person who alleged to have committed the
contempt of court.[14]

The individual
who brings to the notice of the court that contempt has been committed is not a
prosecutor but merely an assistant of the court or friend of the court. In
Supreme Court Bar Association v. Union of India[15]
a Constitution Bench described the special jurisdiction to punish for contempt
as an unusual type combining the Jury, the Judge and the Hangman and explained
this apparent anomaly on the ground that the Court was not adjudication upon any
claim between litigating parties. The power to commit for contempt is a punitive
power. This is to honor the dignity and integrity of the court and the orders
passed by them.

DEFINING
CONTEMPT OF COURT

Several jurists
and judges have defined contempt of court but there is no one single standard
definition of the phrase contempt of court. Pointing out the difficulties in
defining contempt the Sanyal Committee observed:

“In the law of
contempt, difficulty and vagueness start at the definition stage itself.
Contempt in its root sense signifies disrespect to that which is entitled to
respect or regard and the expression contempt of court has been a recognized
phrase in English law from the 12th century. If administration of
justice has to be effective, respect for its administration has to be fostered
and maintained and it is out of rules framed by courts in this behalf that the
law of contempt has grown. From rudimentary rules devised for the limited
purpose of securing obedience to the orders of courts, there evolved in the
course of time elaborate and far reaching doctrines and extraordinary
procedures. Right till the present century, these doctrines and procedures were
never subjected to legislative scrutiny with the result that the law of contempt
had, as it were, a wild growth. Each new precedent was not declaratory but
creative of the law. Each new type of attack on the administration of justice
received a corresponding elaboration or extension of the contempt law. As
Craries has said the ingenuity of the Judges and some of those who are concerned
to defeat or defy justice has rendered contempt almost protean in this
character. And even now, it may well be said the categories of contempt are not
closed. The result is that there are contempt, contempt’s ranging from mere
disobedience to orders of the court and involving only a wrong of a private
nature as between the parties to a suit at one end and contempt involving
physical violence or large scale blackmail or mudslinging by means of
publication on the judge at the other end. In view of the haphazard development
inherent in the process of development of law by judicial precedent, it is not
possible to attempt neat and clear cut classifications of various branches of
the law of contempt and, in view of the possibility of new types of contempt
arising in future, it is not possible to demarcate the area of operation of the
law of contempt arising in future, it is not possible to demarcate the area of
operation of the law of contempt. It is for these reasons that judges and
jurists have not succeeded in formulating a comprehensive and complete
definition of the concept of contempt of courts. The Shawcross Committee
observed: Not the least of the difficulties in this field (definition) is that
contempt, being growth of the common law, has no authoritative definition or
limitation…It can be defined in the most general terms. In the words of one of
our own judges, “It is indeed difficult and almost impossible to frame a
comprehensive and complete definition of contempt of court. The law of contempt
covers the whole field of litigation itself. The real end of a judicial
proceeding, civil or criminal, is to ascertain the true facts and dispense
justice…Anything that tends to curtail or impair the freedom of the limbs of the
judicial proceeding must sof necessity result in hampering the due
administration of law and in interfering with the course of justice.”[16]

The reasons
given by the Sanyal committee does not require any clarification or explanation
to the problem of defining the concept of contempt of court. It is the
discretion that is left to the judge to decide whether the contemnor has passed
the tests laid down by prior decision or has in any manner affected the dignity
or integrity of the court. If we provide with a concrete definition that would
limit the scope of contempt, hence it should be left to the courts to decide
whether any contempt has been done. But the fear that crops up with this
vagueness is the danger of misusing this power by the court and the judges. The
discretion of defining contempt is given to the judges with an assumption that
they are honest and would always be fair and just.

Chapter-II

COMPARATIVE
STUDY

Contempt
Under Common Law- Position In United Kingdom

Lord Justice
Otton gave an overview of the concept of contempt of court. In England, contempt
has inhered in the judicial power to run the courts and to prevent interference
with justice “since time immemorial”. Contempt protects the dignity of the
Court, not the individual judge.

Contempt can
be criminal or civil. Criminal contempt involves an intentional interference
with the administration of justice, while civil contempt is disobedience to
orders or judgments of a court, with only knowledge of the order or judgment,
not intent to interfere, being needed. Civil contempt requires only a
preponderance of the evidence while criminal contempt requires proof beyond
reasonable doubt. Another significant distinction arises from whether the
contempt occurs “in the fact of the court” or outside it; contempt beyond the
courtroom is much harder to prove.

English
contemnors are not entitled to a trial by jury. Parliament enacted the Contempt
of Court Act of 1981, which for the first time imposed a two-year maximum jail
sentence for civil and criminal contempt as well as maximum fines. The court can
use all its contempt powers but still suspend sentence if the contemnor promises
not to repeat the contumacious act and apologizes.

Lord Justice
Otton described a fine of £40,000 against The Evening Standard newspaper, which
had been sustained by the Court of Appeal a week earlier for publishing the
criminal records of defendants on trial for explosives offenses with IRA links.
England imposes limits with respect to reports of proceedings and publication of
material likely to interfere with the administration of justice. The result in
The Evening Standard case was very prejudicial, including a halt to the criminal
trial. He also noted a reluctance to use the contempt power for fear of creating
a cause that spurs public sympathy as, for example, in various English coal
strike orders.

The main aim of
contempt of court rules is to prevent potential jurors from being prejudiced for
or against a defendant because of what has been published in the media before or
during a trial.

A jury is supposed to reach their decision only on the evidence produced in
court. The jury must also presume that the accused is not only innocent but also
that he has no previous convictions.

Contempt of Court is governed by two sets of rules.

1. The Contempt of Court Act 1981 applies to individual
cases.

2. Common Law contempt can apply to individual cases and to the
administration of the law generally.

One of the
tests to determine contempt is whether the story creates a substantial risk that
the course of justice will be seriously impeded or prejudiced.

The important
words are ‘substantial’ and ‘serious’. These are the tests by which the court
decides whether the story would create a substantial risk of serious prejudice
the mind of anyone who read it and who was then was selected to serve on the
jury hearing the case.

Time: The
longer the time between the story being published and the jury retiring to reach
its verdict the less chance there is of the story being in contempt. News desks
should know the average time it takes in their Crown Court area for a case to go
from arrest to trial. If the story is published, say, on the night before the
trial opens then the risk of contempt is higher than if it were published months
previously.

Proximity: The court will weigh up the
chances of a juror having actually read the offending story. If the story is
published in the Northern Echo in Darlington and the trial is held in Cornwall
then there is plainly little chance of a substantial risk of serious prejudice
because a potential juror could never be expected to have read it.

Initial
Impact: Presuming, though, that the story is likely to have been read by a
potential juror then the court will try to assess the impact the story would
have had on him.
It does so by determining how novel was the way it was
presented. A screaming Page One lead in the local paper would plainly have more
impact than a down page three-par story on page 18 of a national. Then the court
would try to evaluate the:

Residual
Impact: The theory is that if a juror listens in court to all the evidence,
and hears all the witnesses cross-examined, and then is guided by the trial
judge on what is, and is not, important then any initial prejudicial impact the
story might have had will fade away as the juror concentrates on the actual
evidence.

The trend is
towards liberalization when it comes to applying the Contempt of Court Act 1981.
Judges seem to have accepted that most pre-trial coverage, while maybe
prejudicial, falls short of creating a substantial risk of being seriously
prejudicial. National tabloids have used lurid accounts of Geoff Knights beating
up a taxi driver and have been cleared of contempt.
But each case is
different. By using the above tests an editor can at least make his own
assessment of whether the particular story creates a substantial risk of serious
prejudice.

There is a particular danger in revealing that the
defendant has a previous conviction. A jury (which must presume that a defendant
has an unblemished past) would find that hard to forget.

The Contempt of Court Act 1981 ceases to be active when: The arrested person
is released without being charged – except when released on police bail. No
arrest is made within 12 months of the issue of the warrant the case is
discontinued the defendant is acquitted or sentenced the defendant is found
unfit to be tried, or unfit to plead or the court orders the charge to lie on
the file.

Newspapers are
safe when they use police appeals for help in tracing a wanted man for whom a
warrant has been issued even though the ‘Danger Man’ or ‘ Find this Monster’
type of headline would plainly create a substantial risk of serious prejudice
especially as most such stories reveal his past convictions. This is classic
contempt of court territory but the Attorney General has promised not to
prosecute because the public safety outweighs the fugitives right to a fair
trial. As soon as ‘Danger Man’ is arrested, however, the immunity ceases.

Section 3
of the Contempt of Court Act gives an editor a defence if, at the time of
publication, having taken all reasonable care, he did not know and had no reason
to suspect that proceedings in the particular case were active.

Section 5
of the Contempt of Court Act gives protection to stories, which are a discussion
of public affairs as long as the risk of prejudice to a particular case is
merely incidental to the wider discussion.

Civil proceedings: The Act states that civil proceedings become active
as far as contempt risk is involved when the case is set down for trial (put on
the waiting list) or when an actual date is fixed for the case to be heard.

Pictures: A picture can be in
contempt in the same way as a story if , for instance, the case hinged on
witnesses identifying the man in court or at an identity parade. And if you used
a picture of the defendant handcuffed and guarded by armed police it might also
prejudice a juror.

The risk of contempt under the 1981 Act only
starts when the Initial Step is taken – a person is arrested, charged, or has a
warrant or summons issued against him. Common Law contempt covers the time
before that initial step is taken but when a trial could plainly be seen to be
imminent or pending. If a known criminal, for instance, takes a group of people
hostage and a newspaper identifies him and his previous convictions before he is
arrested or charged or a warrant is issued then there is plainly going to be a
risk of contempt to proceedings which will almost certainly take place.

If the newspaper
is prosecuted under Common Law contempt the prosecution has to prove that the
editor intended to create prejudice. The court can infer intent by taking
account of all of the circumstances leading to publication. Common Law contempt
can also be used against articles prejudicial to the course of justice
generally, as distinct from the particular case governed by the 81
Act.

Position
Under the American Legal System

Contempt of
court is an act of disobedience or disrespect towards the judicial branch of the
government, or an interference with its orderly process. It is an offense
against a court of justice or a person to whom the judicial functions of the
sovereignty have been delegated.

The American
Jurisprudence defines contempt of court in Vol 17. It can be classified as
follows:

Despising the authority of the Judge or dignity of the court;

Any conduct which tends to bring the authority and administration of law
into disrespect or disregard;

Any conduct which interferes or prejudices the parties to a litigation or
their witnesses during a litigation;

Any conduct which otherwise tens to impede, embarrass, or obstruct a court
or a judge in the discharge of its or his duties;

A statute may define contempt but it can never be exhaustive.

In the United
States of America freedom of speech was originally protected by the doctrine
clear and present danger propounded in Schenk v. United
States[17] In that case the Supreme Court of USA passed
observations upon the military censorship provisions of the Espionage Act of
1917, which imposed certain limitations upon press and speech. Rejecting the
contention Justice Holmes wrote an opinion unanimously concurred by the court,
upholding the Constitutionality of the Espionage Act. The right of speech he
said “ had never been an absolute one at any time, in peace or in war. Free
speech would not protect a man in falsely shouting fire in a theatre, and
causing a panic. When a nation is at war he added many things that might be said
in time of peace are such a hindrance to its effort that their utterance will
not be endured so long as men fight and no court could regard them as protected
by any Constitutional Right.”

According to
this view freedom of speech could be abridged only if the Government could show
that there was a clear and present danger to the state arising from the abuses
of that freedom. This doctrine, however, was jettisoned in Dennis v.
United States.[18] In that case the validity of the Alien
Registration Act, 1940 was in question. Vinson C.J. observed as follows “ In
this case we are squarely presented with the application of the clear and
present danger test and must decide what the phrase imports.” The test of clear
and present danger was discarded and the test of clear and probable
danger has been substituted. The time factor has been thus eliminated from the
test. Judged by the new test it was held that the impugned statute was
constitutional, though it penalized even conspiring to advocate the future
overthrow of the state and no imminent danger is to be apprehended thereby. The
arm of the law has been lengthened thereby. No doubt Douglas J., in his
dissenting opinion bewails that free speech, the glory of our system of
government, had been eclipsed by the majority ruling in Dennis case.

In Yates
v. United States[19] while appearing to adhere to the
modification of the clear and present danger test, the Supreme Court has in a
measure really overruled the Dennis Case. In Yates case the Supreme Court
set aside the conviction of fourteen communists who had been convicted under
Smith Act. It was held that the advocacy of the overthrow of the Government as
an abstract principle did not constitute an offence under the Smith Act. It is
only when action to that end, though it may not be immediate action, has been
advocated, that the offence would be committed. The decision in Yates
case restored to some extent the protection to freedom of speech which had
been withdrawn in Dennis case. But his test is not applicable in India as
this principle was rejected by Justice Madhokar in 1961.[20]

Under the US law
of contempt, the courts have recognized both direct and indirect contempt.
Contempt is indirect when it occurs out of the presence of the court, thereby
requiring the court to rely on the testimony of third parties for proof of the
offense. It is direct when it occurs under the court’s own eye and within its
own hearing. See Matter of Heathcock, 696 F.2d 1362, 1365 (11th
Cir. 1983); United States v. Peterson, 456 F.2d 1135, 1139 (10th Cir.
1972). The requirement that direct contempt be committed in the presence of the
court does not limit direct contempts to those which take place in the
courtroom, but some degree of formality usually found in the courtroom setting
must accompany an exercise of the judicial function for the proceedings to be in
the actual presence of the court. Matter of Jaffree, 741 F.2d 133 (7th
Cir. 1984). Direct contempt for conduct in the court’s presence may be punished
summarily. McGuire v. Sigma Coatings, Inc., 48 F.3d 902 (5th Cir.
1995).

The law of
contempt cannot have a broad general principle applicable to the concept of
contempt in totality. The courts have made a distinction between civil and
criminal contempt. Because different substantive and procedural rules apply to
civil and criminal contempt, distinctions between the two forms of contempt are
important. “Criminal contempt is a crime in the ordinary sense,” Bloom v.
Illinois,[21], and “criminal penalties may not be imposed on someone who has
not been afforded the protections that the Constitution requires of such
criminal proceedings.” Hicks v. Feiock.[22] These constitutional
protections include the right (1) not to be subject to double jeopardy,
see United States v. Dixon[23]; In re Bradley,[24];
(2) to receive notice of the charges, (3) to receive assistance of counsel; (4)
to receive summary process; (5) to present a defense, Cooke v. United
States[25] (6) not to self-incriminate oneself, and (7) to proof
beyond a reasonable doubt, Gompers v. Bucks Stove & Range
Co.[26]. For serious criminal contempt involving imprisonment of more
than six months, these protections include the right to a jury trial.

By contrast,
civil contempt sanctions–which are designed to compel future compliance with a
court order–are coercive and avoidable through obedience, and “thus may be
imposed in an ordinary civil proceeding upon notice and an opportunity to be
heard. Neither a jury trial nor proof beyond a reasonable doubt is required.”
International Union, UMWA v. Bagwell[27].

Chapter-III

CONTEMPT OF
COURT AND THE INDIAN JUDICIARY

The Media and
the Judiciary share a need that neither can live without: you must have
journalistic independence and judges must have judicial independence. He further
elaborated “ Hitler’s Germany is still fresh in memory, so we can recall two of
his major steps to consolidate his power when he became the Chancellor. One was
to destroy the free press; the other was to control the courts and eliminate an
independent judiciary. Knew and we know that no dictation can survive with an
independent press and independent judiciary.[28]

The power of the
Supreme Court of India in dealing with the day-to-day affairs of the citizens
has increased many a fold during the past few decades. Looking at the pages of
Law Reports prior to lifting of emergency will reveal the irrelevance of the
courts to a large part of the Indian population. It is after the lifting of
emergency from the 1980’s that the Supreme Court fully realized its potential.
The failure of the Legislature and the Bureaucracy to live up to the
expectations in the eyes of the people put the Judiciary in a higher pedestal.
It was seen as the last resort for justice to the otherwise “justice starved”
citizens of India. The Supreme Court of India as well as other courts arose to
the occasion in helping the poor and down trodden section of the society.

But it was
precisely this magnanimous view taken up by the Supreme Court to look into
almost all the aspects of the other two wings that gave rise to criticisms. The
criticisms were from the public, from the press and the media. The view of the
Supreme Court towards these criticisms were not always static. It kept on
changing from the stating that the judiciary’s shoulders are broad and going to
the other extreme by punishing an individual who had made a contempt of court.
It is precisely those exercise of the contempt powers of the Supreme Court and
the Indian Judiciary in general over the past few decades, that will be dealt
with in these chapters. There is no better way to look at these exercise of
power but to examine the judgments passed by the Supreme Court and the High
Courts regarding this matter.

One of the first
and interesting cases regarding law of contempt arose in 1954.[29] In this case
the members of the Executive Committee of the District Bar Association at
Muzaffarnagar within the state of U.P made certain allegations against a
judicial officer Mr. Kanhaya Lal Mehra and a Revenue Officer Mr. Latta Prasad. A
resolution was passed in the meeting of the Bar Associations that complaints
should be filed to the superior authorities against the misconduct of these
judges. The allegations were in all”

The judicial officer does not record evidence in cases tried before him
properly, that in all the Criminal matters that are transferred to the court,
where the accused are already in bail, he does not give them time to furnish
fresh sureties with the result he is sent to jail. He is not accommodating to
lawyer as whole

The revenue officer follows the highly illegal procedure of leaving 2
cases at a time, wherein he records the evidence of one case and ask the court
clerk to do so with the other. Also he is highly temperamental and constantly
threatens the lawyers with contempt of court.

It is now our considered opinion that the two officers are thoroughly
incompetent in law, do not inspire confidence in their judicial work. They
state wrong facts when passing judgments and are overbearing and discourteous
to the litigant public and the lawyers alike.

The High Court
found the lawyers to be prima facie in contempt of court and fined them Rs.
300/-. The Supreme Court considered all the relevant facts including the fact
that the meeting was held in closed quarters. Only members were present, the
resolutions were typed by the president of the Bar itself and even the minutes
book didn’t have the record. After considering all the relevant facts and
circumstances the Supreme Court speaking through Justice Mukherjee held:

“We are unable
to agree with the learned counsel for the respondents that whether or not the
representation made by the appellants in the present case is calculated to
produce these results. It is to be kept in mind, when attacks or comments are
made on a judge or judges, disparaging in character and derogatory to their
dignity care should be taken to distinguish between what is libel on the judge
and what amounts to contempt of court. The fact that a statement is defamatory
so far as the judge is concerned does not really make it a contempt.”

More over the
judge said that the object of representations made by the appellant in the
present case were not for the purpose of exposing the public alleged short
comings of the officers concerned, the whole object was to have the grievance of
the lawyers and the litigating public really felt. The Supreme Court reversed
the decision and allowed the appeal.

One of the
excellent examples for the so-called “hyper sensitivity” of the Supreme Court is
the case of E.M.S. Namboodri v. T.N. Nambiar.[30] The case arose
out of a press conference that the then Chief Minister E.M.S Namboodripad
held.[31] During the press conference he made certain remarks:

“ Marx and Engel
considered the judiciary as an instrument of oppression…Judges are guided and
dominated by class hatred, class interests and class prejudices and where the
evidence is balanced between a well dressed, pot bellied rich man and a poor,
ill-dressed and illiterate person, the judge instinctively favors the
former…..Judiciary is part of the class rule of the ruling class. And there are
limits to the sanctity of the judiciary. The judiciary is weighed against
workers, peasants and other sections of the working class and the law and the
system of judiciary essentially serve the exploiting classes.”

Namboodripad was
convicted by the Kerala High Court for contempt of court and sentenced to a fine
of Rs 1000/-. This was a majority decision made by Justice Raman Nair, Justice
Krishnamoorthy Iyer and with Justice Mathew dissenting. Namboodripad appealed to
the Supreme Court pleading:

His observations did no more than give expressions to the Marxist
philosophy and what was contained in the programme of his party.

They contained a fair criticism of the judicial administration.

They did not contain criticism of any particular judge or his judgment or
conduct.

The law of contempt ought to be interpreted so as to cause no encroachment
upon the freedom of speech guaranteed by Article 19(1)(a) of the Constitution
of India.

The judges
Hidayatullah CJ, G. K. Mitter and A. N. Ray after looking deeply into the
teachings of Lenin and Marx came to the conclusion that no where in their
writings have they shown any direct attack on the judiciary. The court arrived
at the conclusion that in all their writings there is no mention of judges,
which the appellant had made. The court further states that “ either he does not
know or has deliberately distorted the writings of Marx. The Supreme Court hence
convicted Namboodripad for contempt of court but reduced the fine from Rs 1000/-
to Rs. 50/-.

Another case
which relates to Freedom of Press and contempt of court, and also which gave
rise to vehement criticism from both inside and outside legal circles is P. N
Duda v. P. Shivshanker.[32] The case arose out of a complaint filed
by P.N Duda against P. Shivshanker who was the Union law minister. According to
the petitioner the Union Law Minister had committed contempt of court during
speech made by P Shivshanker on the occasion of the silver jubilee of the Bar
Council of Andhra Pradesh. Even though the speech was addressed to Judges and
lawyers, a large number of press personnel were present. P. N. Duda complained
about 5 passages in his speech. The two main point were:

The Supreme Court composed of the element from the elite class had their
sympathy for the haves i.e. the Zamindars. As a result they interpreted the
word compensation in Article 31 contrary to the spirit and amendment of the
Constitution and rules the compensation must represent the price which a
willing seller is prepared to buy from a buyer. The entire programme of
Zamindari abolition suffered a set back. The Constitution as amended by the
1st 14th and 17th Amendments to remove this
oligarchic approach of the Supreme Court with little or no help. Ultimately
this rigid reactionary and traditional outlook of property, led to the
abolition of property as a fundamental right.

Anti social elements, i.e. FERA violators, bride burners and whole horde
of reactionaries have found their haven in the Supreme Court.

The case was
heard by a bench comprising of Justice Sabyasachi Mukherjee and S Ranganathan.
To the biggest surprise of everyone the Supreme Court took a liberal view.
Speaking through Justice Mukherjee, the SC held that: “ there was no imminent
danger of interference with the administration of justice, nor of bringing a
administration into disrepute. In that view the minister was not guilty of
contempt of the court. The speech of the Minister read in its proper
perspective, did not bring the administration of justice into disrepute or
impair administration of justice, though in some portions of the speech language
used could have been avoided by the minister having background of being former
judge of the High Court. The minister perhaps could have achieved his purpose by
making his language but his facts deadly. The petition was dismissed.

The Supreme
Court has not been the only court, which has issued contempt of court
proceedings. Many of the High Courts have also done the same. Recently the Delhi
High came into the limelight following what has been called as the “ Wah
India” case[33]. The case arose out of the publication by the
publishers of a magazine by the name of Wah India ! on their website, the
results of a purported survey grading the judges of Delhi High Court. Each of
the judges whose photos were also published were graded in a five column table
rating the inter alia, on their personal integrity, depth in law and quality of
judgments delivered. The publishers claimed that the grades were based on a
survey where fifty of the senior members of the Delhi Bar were consulted. The
publication was titled “ Judged out” and it also claimed that the survey is by
no means an attempt to cast any aspersion on the competence of the judiciary,
but is a small and humble attempt to hold a mirror to it. It might make some
Judges uncomfortable, but the truth sometimes does.

The Delhi High
Court passed an order summarily directing the confiscation of the unsold copies
of the issue of the news magazine barred its circulation and ordered the media
not to publish any thing that would lower the authority, dignity and prestige of
the members of the judiciary. The next day the court lifted the ban on reporting
of the contempt proceedings and directed that the reporting must be fair and
accurate.[34] But the court let the publishers off after the acceptance of an
apology by the publisher Rahul Mishra, editor Madhu Trehan and three
journalists.

Another case
that came up before the Supreme Court recently was Re: S K
Sundaram.[35] The case arose out of a suo motu action
in the Supreme Court. A Chennai based advocate had sent telegrams to the then CJ
of India Dr. A.S Anand, demanding his resignation on the ground that the latter
had exceeded the age of superannuation. Within three days of sending the
telegram, he filed a criminal complaint against the CJ under the IPC, 1860
alleging cheating, criminal breach of trust and falsification of records, that
Dr. Anand had usurped the office of Chief Justice of India and ‘caused loss to
the exchequer to the tune of Rs. 3 Crores’. The petitioner who had previously
filed a mandamus seeking the president of India to verify the age of Dr. Anand,
alleged that he was spurred into action by an article that appeared in The Hindu
on 3-11-2000, publishing a statement by Ram Jethmalani and an annexure published
in the book “ Big Egos Small Men”.

The Supreme
Court in this case held that ‘well if he is determined to sign that he would not
look at any one of those material as well as the final decision rendered by the
president of India regarding the age of Dr. Anand, and then decided to
persistently jump into the foray with the tirade, putting himself into the
outfit and chasuble of his proof insignia, it is only reminiscent of the Spanish
heir Don Quiescent of La Mancha. On the part of this court, we may observe that
if the contemnor had stopped with his telegram we would have persuaded ourselves
to ignore its as a case of ranting gibberish. But when he followed it up with
lodging of a criminal complaint before a criminal court in which the Chief
Justice of India was arrayed as an accused having committed the offence of
cheating, criminal breach of trust and falsification of records we realized that
he seriously meant to malign and undermine the dignity and authority of this
court.[36] Sundaram was sent to 6 months imprisonment.

The most recent
as well as the most controversial one was Arundhati Roy, In
Re.[37] The facts of this case arose from a former case
Narmada Bachao Andolan v. Union of India.[38] While
the case was pending before the Supreme Court Mrs. Arundhati Roy wrote an
article “ The Greater Common Good” which was published in outlook and Frontline
magazines. Two of the judges of the Supreme Court found that the comments made
by her were, prima facie, a misrepresentation of the proceedings of the Court.
The Court showed its discontent “ we are unhappy at the way leaders of NBA and
Mrs. Arundhati Roy have attempted to undermine the dignity of the court. We
expected better behaviour from them.[39] But the court let the matter lie in the
larger interest of the issues pending before them. But on 30-12-2000 Mrs.
Arundhati and Mrs. Medha Patkar led a huge protest rally in front of the Supreme
Court and shouted abusive slogans at the court. They also attacked the
petitioners to judges R Parashar advocate and others. Hence they filed a
petition stating that Mrs. Arundhati Roy is guilty of contempt of court.[40]
Moreover the respondent also stated in her affidavit; “ on the grounds that
judges of the Supreme Court are too busy, the CJ of India refused to allow a
sitting Judge to head the judicial enquiry into the Tehelka Scandal…

Yet when it
comes to an absurd, despicable entirely unsubstantiated petition in which all
the three respondents happen to be people, who have publicly- though in markedly
different ways questioned the policies of the Government and severely criticized
a recent judgment of the Supreme Court, the court displays a disturbing
willingness to issue notice. It indicates a disquieting inclination on the part
of the court to silence criticism and muzzle dissent, to harass and intimidate
those who disagree with it. By entertaining a petition based on an FIR that even
a local police station does not see fit to act upon, the Supreme Court is doing
its own reputation and credibility considerable harm.[41] The Bench comprising
of Justice G. B. Patnaik and R. P. Sethi allowed her to retract her averments.
But she stood her ground.

The court held
that “A fair criticism of the conduct of a judge the institution of the
judiciary and its functioning may not amount to contempt if made in good faith
and in public interest. To ascertain the good faith and the public interest, the
courts have to see all the surrounding circumstances including the person, his
knowledge in the field and the intended consequence. All citizens cannot be
permitted to comment upon the conduct of the courts in the name of fair
criticism which if not checked would destroy the institution itself.

More over the
Supreme Court stated these cannot come under the exception of P. N. Duda
v. Shiv Shanker[42], the court held that “it may be noticed that the
criticism of the judicial system was made by a person who himself had been the
judge of the High Court and was the Minister at the relevant time. He had made
studies about the system and expressed his opinions which, under the
circumstances was held to be not defamatory despite the fact that the court
found than in some portion of the speech the language used could have been
avoided by the Minister having the background of being a former judge.”[43] The
court here found that Mrs. Roy was devoid of any special knowledge of law and
hence was fined Rs. 2000/-.

Chapter-IV

CIVIL AND
CRIMINAL CONTEMPT

The concept of
contempt is a broad one, which has the capacity to encompass any act done in
detriment of the court. Contempt may range from disobedience to orders of the
court to throwing of tomatoes at the Judges. Broadly we can categorize contempt
into two types: Civil Contempt and Criminal Contempt.

CIVIL
CONTEMPT

It has been
defined under Section 2(b) of the Contempt of Courts Act, 1971.[44]The essential
ingredient is ‘willful’ disobedience and not any and every disobedience due to
various reasons such as delay due to unavoidable circumstances, or inadvertence.
It has to be proved that the disobedience was ‘willful’. It connotes a ‘clear
intention to flout’.   A civil contempt involves disobedience to a
Court’s order affecting the rights of other parties to that order basically
denying the rightful fruits of the suit to the other party. But Mens Rea
has been made an essential ingredient in the 1971 Act, which is a departure from
the pre-existing law with the introduction of the word ‘willful’. So Civil
contempt does not attract strict liability any more. It is sometimes supposed
that the ‘will’ being a party to the disobedience is not enough and that there
should further be an element of obstinacy, rebellion or defiance. In
Worthington v. Adlib Club Ltd.[45], the court held that the word
‘contumaciously’ as meaning was not different   from ‘willfully’. In
India also, the courts use the word ‘contumaciously’ in describing contempt and
invariably use it disjunctively with ‘willful’ or ‘deliberate’. In Deba Brata
Bandopadhyaya v. State of West Bengal. [46], The
Supreme Court observed that “if orders of stay, bail, injunction, received from
higher courts must be attended to promptly, and if there is a delay in
dispatching them or dealing with them the court may draw an inference of
indifference and even contumaciousness.” In Md.Ikram Hussain v. State
of U.P.[47], the court asked the appellant to produce his
daughter in a matter for habeas corpus. He made false excuses and did not
produce her. He was found guilty of contempt.  In Alligarh
Municipality v. E.T. Mazdoor Union [48], during
the pendency of the suit the trial court passed an order prohibiting the
appellant municipality from realizing any fees from the tongawallas for the use
of a stand, which they did not follow and it was held as ‘willful disobedience’
and amounted to contempt of court.   In Union of India v.
Oswal Wollen Mills[49],the court held that “When as
a result of an order of the High Court in  a writ petition, an application
for license was to be disposed of by the statutory authority, no contempt can be
said to be committed merely because there is a failure to dispose of the
petition.” Any order of the court should give sufficient time for compliance
before contempt proceedings can be initiated.  Regarding violation of an
undertaking given to a court it was held in M v Home
Office[50], that if a party or his advocate acts so as
to covey to the court the firm conviction that undertaking is being given the
party would be bound and it will be no answer that he did not think that he was
giving it or that he was misunderstood and he would be held for contempt. But an
undertaking, which runs counter to the statutory provisions or law is an
unauthorized undertaking and cannot be the basis of contempt proceedings for its
breach.[51]

In Md.
Idris v. Rustam Jehangir[52], where there was a clear breach
of the undertaking the court, held that it was entitled to give directions for
closing the breach in addition to imposing punishment.

CRIMINAL
CONTEMPT

It has been
defined under Section 2(c) of the Contempt of Courts Act, 1971.[53]It is thus
seen that scandalizing or prejudicing a Judge or interfering with the
administration of justice is Contempt. Even tending to scandalize or tending to
prejudice or tending to interfere or obstruct is enough to invoke action in
criminal contempt. In Naraindass v. State of
UP,[54]the Supreme Court held that, it is necessary to examine
whether any of the impugned statements do interfere or have a tendency to
interfere with due course of the proceedings by creating prejudice against
appellant or the writ petition. In N. Rajagopala Rao v. Murtaza
Mujtabbi,[55]the AP high court held that the
publication of an article casting aspersions on the integrity of the High Court
Judges while selecting and recommending candidates for appointment of District
judges was held to be criminal contempt.

All acts, which
bring the court into disrespect or disrepute or which offends its dignity, or
challenge its authority, certainly amount to contempt. In Delhi Judicial
Service Association v. State of Gujarat[56], the
Supreme Court observed that “the definition of criminal contempt is wide enough
to include any act by a person which would tend to interfere with the
administration of justice or which would lower the authority of the court. The
publics have a vital stake in effective and orderly administration of justice.
The court has the duty of protecting the community in the due administration of
justice and, so, it is entrusted with the power to commit for contempt of court,
not to protect the dignity of the court against insult or injury, but, to
protect and to vindicate the right of the public so that the administration of
justice is not perverted, prejudiced, obstructed or interfered with. In
Pratap Singh v. Gurbaksh Singh,[57] the court held that any kind
of threat or any action which may amount to a threat held out to a person who
has approached the civil court for redressal of his grievance with a view to
forgo the assistance of the civil court amounts to criminal contempt. A threat
held out to a judge with a view to obtain favourable order would amount to
criminal contempt as interference with the administration of justice in State
of A. P. v. V. Prakash Rao.[58] The threat need not be
a threat to the judge himself personally.

A false or
misleading or a wrong statement deliberately and willfully made by the party to
a proceeding to obtain a favourable order would prejudice or interfere with the
due course of judicial proceeding was held to be criminal contempt in Afzal
v. State of Haryana[59]

Distinction
between Civil and Criminal Contempt

Civil contempt
is basically wrong to the person who is entitled to the benefit of a court order
while criminal contempt involves defiance of the court revealed in conduct,
which amounts to obstruction or interference with the administration of justice.
A helpful illustration is a case where the person restrained commits a breach,
he is guilty of civil contempt but a third party aiding and abetting a breach
commits criminal contempt because he interferes with the administration of
justice. In A-G v. Times Newspapers Ltd.[60], the House of Lords,
on the rationale behind the distinction held that “A distinction is sometimes
drawn between what is described as ‘civil contempt’, that is to say contempt by
party to the proceeding in matter of procedure, and ‘criminal contempt’. One
particular form of contempt by party to proceedings is that constituted by an
intentional act, which is in breach of the order of a competent court. Where
this occurs as a result of the act of a party who is bound by the order or of
others acting at his direction or on his instigation, it constitutes a civil
contempt by him which is punishable by the court at the instance of the party
for whose benefit the order was made and can waived by him. The intention with
which the act was done will, of course, be of the highest relevance in the
determination of the penalty (if any) to be impose by the court, but the
liability here is a strict one in the sense that all requires to be proved its
service of the order and the subsequent doing by the party bound of that which
is prohibited. When, however, the prohibited act is done not by the party bound
himself but by third party, a stranger to the litigation, that person may also
be liable for contempt. There is, however, this essential distinction that his
liability is for criminal contempt and arises not because the contemnor is
himself affected by the prohibition contained in the order but because his act
constitutes a willful interference with the administration of justice by the
court in the proceedings in which the order was made. Here the liability is not
strict in the sense referred to, for their has to be shown not only knowledge of
the order but an intention to interfere with or impede the administration of
justice- an intention which can of course be inferred from circumstances.”

But a decision
of the Andhra Pradesh High Court[61] failed to appreciate this distinction where
the conduct of the contemnor in instituting a suit and obtain in interim order
of status quo and thereafter writing letters to the Advocate Commissioner to
stall a decree passed earlier were characterized as civil contempt in spite of
the express finding that the offending acts were deliberately intended to thwart
the earlier orders passed by the High Court.

Chapter-V

CONTEMPT OF
COURT AND FREEDOM OF SPEECH- CONSTITUTIONAL ASPECT

“Were it left to
me to decide whether we should have a government without newspapers or
newspapers without a government. I should not hesitate a moment to prefer the
latter.”[62]

Though the
concept of freedom of press is not a new one, it is very hard to find a suitable
definition. Abraham Lincoln has aptly put it when he said, “ the world has never
had a good definition of it.”[63] But people have defined the concept of Freedom
of Press and continue to do so. The concept was explained by William Blackstone
way back in 1769 “ The liberty of the press is indeed essential to the nature of
a free state; but this consists in laying no previous restraints upon
publications and not in the freedom from censure for criminal matter when
published. Every freeman has an undoubted right to lay what sentiment he pleases
before the public; to forbid this is to destroy the freedom of the press; but if
he publishes what is improper, mischievous, illegal he must take the consequence
of his own territory.”[64]

In 1977 the
royal Commission on Press has emphasized the importance of, and defined the
freedom of the press as “ that degree of freedom from restraint which is
essential to enable proprietors, editors ad journalist to advance the public
interest by publishing the facts and opinions without which a democratic
electorate cannot make responsible judgments.

Prof Chafee said
“the truth is, I think, that the framers had no very clear idea as to what they
meant by the freedom of speech or of the press, but we can say with reasonable
assurance that the freedom which congress was forbidden to abridge was not, for
them, some absolute concept which had never existed on the earth.”[65] Professor
Baxi says that freedom of press means two or three things. “First it implies the
freedom to have the infrastructure required to set up a newspaper and to run it
efficiently. Secondly, it means freedom to gather and report information.
Thirdly, it means freedom to express opinion.”[66]

But quite
adverse view has also been put in by K. K. Mathew[67] when he said “ the
question of the freedom of press has to be understood in the context of freedom
for whom the publisher who has put in the money; the worker who produces the
paper, the advertiser who sustains it, the politician who runs the
administration or the reader who reads it? Freedom of the press is the freedom
of the community, of society as a whole. It is not the exclusive privilege of
any of the four categories who are associated with the newspaper publication.
The reader who represents society, should have the ultimate freedom.

The eminent
Jurist and writer Mr. Krishna Iyer has summed up what is Freedom of Press.
According to him the major contents of the freedom of press are:[68]

Freedom to gather information from diverse and antagonistic sources, on a
competitive basis, free from any monopolistic control from the
government.

Freedom to inform the public true facts without fear or favor.

Right to have free access to sources of information.

The contempt of
freedom of press has come quite a long way. There was a time in U.K. When the
freedom of Press wasn’t encouraged. Sit William Scrogg who became Lord Chief
Justice in 1678, pronounced a judgment that to publish a newspaper was illegal
as, according to him, manifested an intention to commit breach of the peace.[69]
On 24th February 1703 Daniel Defoe was fined 200 Marks and condemned
to be pillared thrice to be imprisoned indefinitely and to find sureties for his
good behaviors during seven years for writing an anonymous pamphlet called “
shortest way with dissenters. Thus even though the church and state resorted to
all methods to suppress, corruption of youth or sedition. Such restraints
through licensing and censorship came to be accentuated after the invention of
printing and the appearance of newspapers in 17th century, which
demonstrated how powerful the press as a medium of expression is. It is in
protest to such governmental interference that the freedom of the press was
built up in England.

A classic
example for this situation would be John Milton’s[70] “Aeropagtica” which was a
protest addressed to the long Parliament which had taken up licensing, after the
abolition of star chamber. Milton Said: “Truth and understanding are not such
wars as to be monopolized and traded by tickets…give me the liberty to know to
utter and to argue freely according to conscience, above all liberties. Whoever
knew truth put to worse in a free and open encounter? Who knows not that truth
is strong next to almighty; she needs no policies, no strategies, no licensing
to make her victorious; these are the shifts and defines that error makes
against her power.”

It was result of
such agitation that the Licensing Act of 1662 was eventually refused to be
renewed by the House of Commons in 1694 though reasons given were technical.
Thus even though the concept of Press Freedom developed in United Kingdom,
Sweden was the first country in the world to recognize lawfully the freedom of
press. The Swedish press Law of 1756 guaranteed a clear protection or the press.
The law of freedom of press was first promulgated in 1810 in Sweden. It was
replaced in 1949 by a new Act, which enjoyed of being part of the Constitution
itself. Certain amendments were made to the Freedom of Press Act in 1976.[71] We
can see from Article 1 of Swedish Constitution that Swedish law expressly
provides for freedom of press. So is the case of United States. In America the
struggle for freedom of Press had its greatest triumph when it came to be
guaranteed by a written Constitutions, as a fundamental right. The First
Amendment declared: “ Congress shall make no law…abridging the freedom of
press.” In Bridges v. California[72], the American Supreme Court
held that freedom of press will include the freedom to possess those means and
equipment which are necessary for the achievement of the object or goal for
which freedom of the press is required.

The Indian
Constitution though has not recognized this right specifically under any of the
freedoms the Indian courts have read this freedom under freedom of speech and
expression under Article 19(1)(a).[73] Supreme Court in Maneka Gandhi v.
Union of India[74] observed that “to be a
fundamental right it is not necessary that a right must be specifically
mentioned in a particular article specifically, it may be a fundamental right if
it is an integral part of a named fundamental right or parties of the same basic
nature and character as that fundamental right. Every activity, which
facilitates the exercise of the named fundamental right, may be considered
integral part of that right and hence be a fundamental right-freedom of press in
Article 19.

But the freedom
of press impliedly provided under Article 19(1)(a) is not absolute. It is liable
to reasonable restrictions as imposed by an existing law or a law to be made by
a state on various grounds like a) sovereignty and integrity of India b) the
security of the state c) friendly relations with foreign states d) public order
e) decency or morality f) or in relation with contempt of court and g)
defamation or incitement to an offence.[75]

It is this nexus
between freedom of press as impliedly provided in Article 19(1)(a) and its
restriction based upon contempt of court that will be dealt in detail in the
coming chapters.

Contempt by
Lawyers and Contempt against Judges

In the case of
Brahma P. Sharma v. State of UP[76] the Supreme Court discussed in
very detail the concept of contempt and libel. The court held that in an
instance where the court is called upon the exercise the summary powers in cases
of contempt committed by scandalising the court, there are two primary
considerations.

The reflection on the conduct or character of a judge in reference to the
discharge is made in the exercise of the right of fair and reasonable
criticism.

When attacks/ comments are made against judge/ judges’ care should be
taken to distinguish between what is a libel on the judge and what amounts to
contempt. If the statement is defamatory so far as the judge is concerned,
then he can proceed against the libel or for libel.

The importance
of this case lies in the fact that the circumstances as a whole should be looked
into. It is one of the very 1st cases, which states the principle.
The fact that the meeting was held in a closed room, with only four members
present, the President himself typing the letter, and forwarding it to superiors
in letter marked “ confidential” all made the court think that whatever they did
was to seek an answer for the grievances faced by the Bar and the public and not
to inform the public about the so-called misdeeds of the judiciary and to
scandalize and lower the value of the court.

The Namboodripad
Case was one in which we believe that a more severe punishment ought to have
been imposed. The Supreme Court to a surprise penalized merely with a symbolic
fine. H M Seervai points out “ it is submitted that the judgment is correct in
the result but unsatisfactory when it tends to summarize.[77]But if we look into
it closely we can see that Namboodripads observations have to be seen in the
context of the circumstances they were made in. they were general in nature.
They pertained neither to a pending case nor were they in disobedience of court
order or in defamation for any judge. They contained a criticism of the judicial
system in general and were expressed at a press conference before press
correspondents so that they were not likely to cause even distantly, any
interference with the administration of justice. They were as you can see of
purely academic in nature, so far as their effect on the listeners are
concerned. The gravity of speech and the conviction did not seem to get along
together.

But whatever the
results were the methods by which the court arrived at the conclusion is nothing
but pitiable. In order to refute the arguments of Mr. Menon who appeared on
behalf of the Chief Minister, the Court went and examined the whole Marxian
ideology. Vehement criticisms were raised against this approach of the Court.
After the court decided, S. P. Sathe wrote, “ it is not clear. However, that
there was any need to undertake an examination of the writings. The Courts could
have told Mr. Menon that they were interpreting the Indian Constitution and not
Marx, Engel or Lenin. Whether they had learnt about communism only by reading
Miclellitan-Murray was irrelevant. If Namboodripad’s statement amounted to
contempt of court, he had to be punished no matter whose views he was voicing.”
The Supreme Court could have resorted to what justice Holmes stated in his
classic dissenting judgment in Lochner v. New York [78] “the case
is depended upon an economic theory which a large part of the country does not
entertain. If it were a question whether I agreed with that theory, I should
desire to study it further and long before making up my mind. But I do not
conceive that to be my duty, because I strongly believe that my agreement or
disagreement has nothing to do with the right of the majority to embody their
opinions in law…the 14th amendment doesn’t enact Mr. Herbert
Spencer’s social statistics.” This is what court ought to precisely have done.
Apart from the fact that their dwelling into history of Marxist ideology
sidetracks the main issues. It also unnecessarily involves the court in a
political controversy.

It comes to as a
surprise to many that the Supreme Court who convicted Namboodripad who was a
chief minister and widely acclaimed scholar, acquitted Shiv Shanker.[79] The
speech by Shiv Shanker is highly inflammatory and with complete disregard to his
position. If it was to be argued that the decision in Namboodripad’s case was
correct, because a person in such a high position should have taken more care
while making such statements before the press, that argument collapses when one
reads the ShivShanker judgment. Justice Mukherjee not only didn’t convict him
but even stated that the statement was a compliment to the judiciary.

Justice
Mukherjee applied the test of “imminent dangers” as laid down by Justice Holmes
in Schnenck v. U.S.[80] Justice Mukherjee
said “ with these observations, it must be held that there was no imminent
danger of interference with the administration of justice, nor of bringing
administration into disrepute. In that view it must be held that the minister
was guilty of contempt of court.”

Moreover the
judges should have looked into the consequence when the Union Law Minister
himself speaks to the gathering where the press is present, that Supreme Court
is comprised of the elite class…what will be the impression on the normal man;
will he have faith in the judicial system? H. M. Seervai remarks about that he
intended no disrespect to the Supreme Court and that he had high regard for the
Hon’ble court can only be compared to a man who slaps another person very hard
and then says that he had high regard for that person and was merely trying to
rouse him to a sense of his own shortcomings.[81]

The case of Wah
India where they were hauled up for contempt was a correct decision by the Apex
court. As put forward by Lord Simons in Attorney General v. Times
Newspaper[82] there are always 2 conflicting interests
before the court. One in the publics right to information and thus the freedom
of press and the other in uninterrupted administration of justice. Here I cannot
see how the public’s right to information is infringed. They were putting up
news item, which had no real and substantial basis at all. The publishers
claimed that the grades were based on a survey where fifty of the senior members
of Delhi Bar were consulted. But how far is this credible? Wouldn’t it happen
that a lawyer who lost an important case will have some grudge against that
particular judge? So the element of truth cannot be found out. The Wah India
case does no credit to the case for journalistic freedoms. If the media
demands greater freedom to criticize the administration of justice, there is
also a corresponding duty on the media to report with a much greater degree of
responsibility.[83] Also we should look at the facts that judges by the nature
of their office cannot respond to criticism or get embroiled in controversy in
the public arena.[84]Also in De Haes and Gijsels v. Belgium,[85]
the European Court while reiterating that the press plays an essential role in a
democratic society remarked that “the courts must be protected from destructive
attacks that are unfettered, specially in view of the fact that judges are
subject to a duty of discretion that precludes them from replying to
criticism.”

In the case of
Re. S K Sundaram[86] the distinction between libel and contempt is
almost completely blurred. The court while discussing the charges contained in
the telegram held that “anyone of those postulates would certainly scandalize
and at any rate would tend to scandalize and lower the authority of the courts
as a whole, and particularly the Supreme Court of India. The Chief Justice of
India by virtue of his Constitutional ranking is the head of the Indian
Judiciary. When threats of the above nature have been hurled at him, they would
unmistakably ten to undermine the positions, majesty and dignity of the courts
and the law.

Another
important aspect about this case was put forward by Madhavi Divan in an
article.[87] Divan stated “where the allegations ceased to be libel and when
they amounted to contempt is not explained. Also, although the court referred to
Jethmalani’s Book Big Ego Small men, it appears that the context of this book,
the apparent source of renewed attack by Sundaram were not examined. This book
in addition to containing material in support of the claim that the then chief
justice had passed the age of superannuation, also alludes to a controversial
land acquisition case involving members of Dr. Anand’s family. Yet those
writings of the former law minister of India and far more damaging than any “
ranting gibberish” by an unknown entity provoked no judicial response.

In Re
Arundhati Roy[88] the verdict of the Supreme Court,
which distinguishes this case from P. N. Duda v. Shivshanker is
utterly illogical. The court held that since Mr. Shivshanker was a retired High
Court Judge and Union Law Minister, he had made studies about the system and
expressed his opinion which, under the circumstances was held not to be
defamatory. But the courts also held that in the instant case the respondent has
not claimed to possess any special knowledge of law and the working of the
institution of judiciary. She has not made any studies regarding the working of
judiciary in this country and in these case, the benefit to which Mr Shivshanker
under the circumstances was held entitled is therefore not available to the
respndent in the present proceedings.

This however I
cannot grapple with. To say explicitly that only a person who has knowledge of
law and working of the judiciary can criticize the judiciary, is to saying that
only lawyers, jurists and academicians can criticize the judiciary. Then what
about the average and so called lay man to do?

In R. v.
Nicholls,[89] which is regarded as an Australian authority,
Griffith CJ held that “ the defence of fair comment is available to persons
charged with scandalizing the court”. The same case has been cited with approval
in many of the leading Indian decisions. If we follow this principle, Arundhati
Roy’s opinion should have been considered as a fair comment.

It has been
rightly held in M.R. Parashar v. Farooq Abdullah[90] by
Chandrachud CJ that “ the right of free speech is an important right of the
citizen, in the exercise of which he is entitled to bring to the notice of the
public at large the infirmities from which any institution suffers, including
institutions which administer justice. Thus it is clear from this statement that
every citizen has a right to healthy and constructive criticism. Here one cannot
differentiate the citizens by barriers of specialist knowledge of law and the
working of judiciary. A G Noorani writes a disturbing judgment has looked into
these aspects and commented “all men are equal before the law, one cannot but
wonder how the Supreme Court at last distinguish citizens into two
categories.”[91]

One cannot help
but wonder at the irregular pattern in which the Supreme Court gives its verdict
for contempt cases. In Namboodripads Case, the Supreme Court convicted him and
went to great lengths to check up the works of Marx and Engel to prove him
wrong. In P. N. Duda v. Shivshanker it went to the other extreme
and even said what he had said was a compliment and exonerated him. This was not
the only instance. Even the Kerala High Court hauled up Justice Krishna Iyer for
contempt of Court twice but exonerated him by stating “ he was an eminent jurist
author and judge, and has better and more thorough knowledge in the field of
law. In J. Subramanium Potti’s wards.[92] “There is an ocean of difference
between well-informed and ill-informed criticism. Those who have spent years and
perhaps life time as part of the institution or to study an institution may have
occasion to make a through objective assessment of that institution. What they
say in regard to a matter concerning that institution should be viewed
differently from a similar statement by an uninformed person.

One of the
important questions that arise in the specter of contempt power of the courts is
the right of the contemnor to go ahead and prove the truth of his allegations.
Or otherwise will truth be a defence in contempt in contempt proceedings?

A few years back
the honorable Supreme Court had the occasion to consider this question in
D.C. Saxena v. Hon’ble the Chief Justice of India.[93] In that
case a contemnor filed a writ petition against the then Chief Justice of India
was unfit to hold that office and hence he should be stripped of his
citizenship. He also sought for a direction to register an FIR against the then
CJI under different provisions of IPC and also to prosecute him under the
Prevention of Corruption Act.

Looking into the
relevant facts the 3 judges bench held that “ it tends to lower the dignity and
authority of the court and also sow seeds to persons with similar propensity to
undermine the authority of the court or the judiciary as whole, he crossed all
boundaries of reckless and indulges in wild accusations.

Speaking about
truth as a defence judges K Ramaswamy said “ it would not be open to the
contemnor to bring forward evidence or circumstances to justify on to show
whether and how fairly imputatious were justified because the judge is not
before the count.”

It is humbly
submitted that the view taken by the Supreme Court is not right in this matter.
It has completely ignored the precedents of the same court in which “Truth as a
defence” was stressed. In Bathina Ramakrishna Reddy v.
Madras,[94] judges, Mukherjee said, “the article in
questions is a scurrilous attack on the integrity and honesty of a judicial
officer. Specific instances have been given where the officer is alleged to have
taken bribes or behaved with impropriety to litigants who did satisfy his
dishonest demands. If the allegations were true, obviously it would be to the
benefit of the public to bring these matters into light. But if they were false,
they cannot undermine the confidence of the public in the administration of
justice and bring the judiciary into disrepute.

Also in
R. v. Nicholls[95] Griffith CJ observed: “ I am not
prepared to accede to the proposition than an imputation of want of impartiality
to a judge is necessarily contempt of court. On the contrary, I think that if
any judge of this court on if any other court were to make a public utterance of
such character as to be likely to impair the confidences of the public, or of
suitors or any class of suitors in the impartiality of the court in any matter
likely to be brought before it, any public comment would so far from an
utterance, if it were a fair comment, would so far from being a contempt of
court, be entitled to similar protection to that which comment upon matters of
public interest is entitled under the law of libel.[96]

Thus it is added
that if a contemnor is prepared to go forward and prove the charges to the
extreme with all the required evidence then he must be permitted to do so. It
would be desirable to wrap up the argument with the reasons given by the noted
Constitutional Law expert H. M. Seervai “ A judge is a public servant and if he
takes bribes he is not acting or purporting to act as a judge he is committing a
crime, and is liable to be punished for that crime. Since public confidence in a
fearless and judiciary is a vital public interest, it would be desirable if a
public spirited lawyer or lawyers Association conveyed in good faith and in
sober language, the allegations of corruptions, with supporting evidence, to the
appropriate authorities with a view to action being taken against the judge.
However practicing lawyers may be unwilling to take such a step, or persons in
authority may turn a blind age or do nothing. The process of removal of a judge
by impeachment is cumbrous, and without a public outcry might not be resorted
to. It then falls to the press to expose, in good faith a corrupt judge in sober
and dignified language, and place relevant evidence, which can be proved, before
the public. If true, the writing cannot be a can be proved, before the public.
If true, the writing cannot be a contempt of court, because nothing brings the
administration of justice into disrepute so much as corruption in the
judiciary.”[97]

WHAT OUGHT TO
BE CONTEMPT OF COURT- CONCLUDING REMARKS

In an
adversarial system of litigation like ours there are always two parties, one
must lose, the other must win. And when it goes through three-tiers of
litigation- again an unfortunate characteristic of our law- the party who
ultimately wins sometimes harbors inbuilt grievances against one of more Judges
down the line who may have decided against him.

People who
propagate these grudges are often lawyers themselves. Top lawyers have big egos.
And egotistical lawyers never like to lose, and when they do, some of them are
not averse to blaming the Judge or suggesting to their clients that there was
some ulterior motive.

Now, judging
cases is a difficult business and the occupational hazards of judging are many-
the memory of a wrong decision (or what is ultimately found to be a wrong
decision) sometimes festers; it also gives rise to irresponsible sometimes
scurrilous comment- first about the case itself, and then inevitably about the
judge or court which rendered judgment.

The law reports
are strewn with cases of disgruntled litigants going to great lengths in making
charges, often unfounded, against the Judiciary.

The law of
contempt that part of which is so colourfully described as “scandalizing the
court” is intended as a wall of protection against the vicissitudes of judging.
Ours is a very litigious society and there are a number of unreasonable people
in the system, persons who will make any type of allegation against anyone at
the drop of a hat.

This is why I
believe that this part of the Criminal Contempt Jurisdiction though now obsolete
in England, should remain in India.

But there are
problems in this branch of the law the lines are thinly drawn and are not very
clear: and they depend very much on the perception of the Judge administering
the Contempt Jurisdiction in the name of the court. The public, the men and
women of the media, and the lawyers are content to accept constraints imposed by
the “Rule of Law”, but are not prepared to accept ad hoc rules imposed according
to the whims, vagaries and idiosyncrasies of individual judges.

This ad-hocism
is typified in the V.C.Mishra case[98]

No one liked
what V.C. Mishra said and did in Allahabad, but the three Judge Bench that
decided his case in their enthusiasm to teach him a lesson deviated from the
law: ultimately, sobriety prevailed; the Constitution Bench of the Supreme
Court[99] also did not like what Mishra said or did and yet they overruled the
punishment meted out to him and set out the true contours of the penalties that
can be imposed in contempt cases. This case has set an example and prompts a
word of advice to all: lawyers and judges. Never-never behave as Mishra did. And
never, never lose your temper as the three Judge Bench did in Mishra’s case:
always keep your cool as the five Judge Bench did, and so earned the admiration
of all. Mishra’s case has established that the contempt jurisdiction must not
and cannot be used to discipline the lawyer in conduct of a case: this must be
left to the Bar Councils entrusted with disciplinary powers under the Advocates
Act.

It was Jeremy
Bentham  who characterized the Common Law as “Dog Law”. “When your dog does
anything you want to break him off”, (he wrote in 1823), “you wait till he does
it, and then beat him for it. This is the way you make laws for your dog, and
this is the way judges make laws for you and me.”

The law of
contempt of court in Anglo-Saxon jurisprudence both in England in the past, and
in India in the past and present has been no more, no less “Dog Law”. There are
no rules, no constraints- no precise circumstances when the administration of
justice is brought into contempt. The judgments are strewn with pious platitudes
that give little guidance to the editor, to the commentators, to lawyers, and to
members of the public: this part of the law of contempt though necessary, is a
standing threat to free expression. It leaves too much to the discretion of the
particular judge. And at times decisions do give rise to a strange feeling that
the status of the status of the person who scandalizes the Court perhaps did
affect the ultimate result.

In 1988 a
sitting Cabinet Minister made wide and improper remarks against Judges of the
Supreme Court- he said:

“Zamindars like
Golakhnath (he was speaking of Golakhnath’s Case) evoked a sympathetic cord
nowhere in the whole country except the Supreme Court of India. And the bank
magnates, the representatives of the elitist culture of this country ably
supported by industrialists, the beneficiaries of independence, got higher
compensation by the intervention of the Supreme Court in Cooper’s case (1970),
Anti social elements, FERA violators, bride burners and a whole hoard of
reactionaries have found their heaven in the Supreme Court.”[100]

The minister
then went on to say that because the Judges of the highest Court had their
“unconcealed sympathy for the haves” (as opposed to the have nots) they had
interpreted the expression “compensation” in the manner they did: clearly
attributing motives. And yet a Bench of two Judges (in Duda’s case) exonerated
him. Let me read to you what the Bench said:

“Bearing in mind
the trend in the law of contempt (they were speaking of the liberal trend)-
established by the Judgment of Justice Krishna Iyer in Mulgaokar’s
case[101] the speech of the Minister has to be read in its proper
perspective, and when so read it did not bring the administration of justice
into disrepute or impair administration of justice. The minister is not guilty
of contempt of the court”

Again when an
important personage Mr. Mohd. Yunus, Chairman of the Trade Fair Authority of
India known at the time to be very close to the Prime Minister – had criticized
a judgment delivered by a Supreme Court Judge in the ‘Jehovah Witness’
case holding that the singing of the National Anthem for a particular sect
of Christians was not compulsory – Mr. Mohd. Yunus said that the Judge
“has no right to be called either an Indian or a Judge”. An Association of
individuals called the Conscientious Group v. Mohd. Yunus &
Ors[102] filed a petition seeking a direction that Mr. Yunus should
be hauled up for contempt.

These examples
are given not to deride our judges or criticize previous decisions. It is only
to illustrate very graphically – that the true nature of this aspect of contempt
jurisdiction: is mercurial, unpredictable – capable of being exercised (and
therefore in fact exercised) differently in different cases by different Judges
in the same Court.

The origin of
the branch of law known as “scandalizing the court’ is shrouded in antiquity –
it has been described in text books as both “dubious and controversial”[103]. It
originates from a celebrated dictum of Justice Wilmot in his judgment in Wilkes
Case way back in 1765, a judgment which was never actually delivered, but meant
to be delivered, and later published by Justice Wilmot’s son when his father’s
paper were edited. It was a judgment reserved after argument, and when ready to
be delivered it was discovered that the writ against Wilkes was incorrectly
titled and since an amendment of the Writ was not consented to, the case had to
be abandoned. This is the real ancestry of that part of the law of contempt
known today as “scandalizing the Court”: it is based on a judgment never
delivered in a case, – a case which had already abated!

The Law of
Contempt is an exception to the fundamental right of free speech and expression
guaranteed under Article 19(1)(a) of the Constitution, the law must then be
justified on the ground that it is a “reasonable restriction” under Article
19(2): otherwise it would be unconstitutional. There is a judgment of the
Division Bench of the Calcutta High Court[104] delivered some years ago, which
correctly appreciated this constitutional principle. It was not widely reported
and deserves grater publicity than it has so far received. It is a judgment of a
Bench of two judges S.C. Sen J. & U.C. Banerjee J. The fact that the law of
contempt is an exception to the fundamental right of the free speech has been
nowhere more felicitously described than in this judgment (delivered for the
Bench by Justice Banerjee). In that case the Court was called upon to decide
whether an article in a Calcutta daily, which had condemned a prior judgment of
the Calcutta High Court, unread and by distorting facts, was contemptuous.

The article had
the disquieting heading “Let the High Court save itself from Ignominy”. A suo
moto rule was issued by the High Court. When it came up for hearing no apology
was called for or tendered. But the newspaper was exonerated: the contempt
notice discharged. The judges said:

“None of the
articles can be defended as fair comment made in temperate language about a
court case. In fact the distorted version of the judgment given and the language
employed in the articles may have the effect of shaking the confidence of the
people in the judiciary and thereby lowering the dignity and majesty of the
law.”

And yet,
upholding the importance of freedom of speech the Calcutta High Court held that
the publication was not contempt – though the Judges did say that the language
used could have been better, polite and more sober. Freedom to criticize (even
wrongly and obtusely) a judgment of the court was upheld as part of the
cherished freedom of speech. The judgment of the Calcutta High Court make us
recall what was said by Lord Denning in a famous contempt case: Quinton
Hogg, son of a Lord Chancellor and a future Lord Chancellor of England
himself had written an article in very critical and caustic tone about a
decision of Denning in a game case. The litigant Blackburn moved for contempt
and that is what Lord Denning said.[105]

“This is the
first case, so far I know, where this court has been called on to consider an
allegation of contempt against itself. It is a jurisdiction which undoubtedly
belongs to us, but which we will most sparingly exercise: more particularly as
we ourselves have an interest in the matter. Let me say at once that we will
never use this jurisdiction as a means to uphold our own dignity. That must rest
on surer foundations. Nor will we use it to suppress those who speak against us.
We do not fear criticism, nor do we resent it. For there is something far more
important at stake. It is no less than freedom of speech itself. It is the right
of every man, in parliament or out of it, in the Press or over the broadcast, to
make a fair comment, even outspoken comment, on matters of public interest.
Those who comment can deal faithfully with all that is done in a court of
justice. They can say that we are mistaken, and our decisions erroneous, whether
they are subject to appeal or not. All we would ask is that those who criticize
us will remember that, from the nature of our office, we cannot reply to their
criticisms. We cannot enter into public controversy. Still no less in political
controversy. We must rely on our conduct itself to be its own vindication.

Exposed as we
are to the winds of criticism, nothing which is said by this person or that,
nothing which is written by this person or that, will deter us from doing what
we believe is right; nor, I would add, from saying what the occasion requires,
provided that it is pertinent to the matter in hand. Silence is not an option
when things are ill done. So it comes to this. Mr. Quinton Hogg has criticized
the court, but in so doing he is exercising his undoubted right. The article
contains an error, no doubt, but errors do not make it a contempt of court. We
must uphold his right to the uppermost. I hold this not to be a contempt of
court, and would dismiss the application.” Lord Denning in England, like
Justices Sen and Banerjee in India put free speech first – in a conflict between
this freedom and the contempt jurisdiction.

Shortly after
the controversial decision in the Spycatcher Case[106] which
attracted worldwide attention. Lord Templeman believed that Peter Wright who
wrote to Spycatcher, and had it published in the U.K., should be held fast to
the undertaking by him, which was not to publish confidential information
obtained by him in his capacity as a member of the British Secret Service, not
withstanding that the information had, with lapse of time, percolated into the
public domain. Two of his colleagues (in the House of Lords) agreed with him,
which put Lord Templeman in the majority. The Press held them up to ridicule;
the Daily Mirror published photographs of all three Judges and below the
photographs was written in capital letters “OLD FOOLS”.

It was asked of
him why no contempt proceedings were initiated against the particular newspaper.
He apparently smiled, and without a trace of bitterness, said the Judges in
England did not take notice of personal insults, uttered without malice. After
all, he said, he was old, and though he believed he wasn’t a fool, someone else
who sincerely thought he was, was entitled to his opinion. He also added “But if
they (the Editor and Publisher) – had said we were dishonest or not true to our
conscience, I would have promptly hauled them up”.

Here is a judge
who was so conscious of his enormous power that he knew when not to use it: a
self-restraining quality which greatly enhances the prestige of all judicial
power.

There is another
disturbing aspect of this branch of the law. Unlike defamation truth, is not
considered to be a defence. Does the law of contempt then impose reasonable
restrictions on freedom of speech – if you are not permitted to speak and
establish the truth? India’s note constitutional historian H.M. Seervai had no
doubt on the point. This is what he had to say in the Fourth Edition of his
famous book on the Constitution of India:

“a law relating
to defamation, which provided that truth, spoken or written, for the public good
shall not be defence in a libel action would impose restrictions which would be
unreasonable .…….the position would be no different if a law were to enact that
truth should not be a defence to a charge of contempt of court, if it consists
in scandalizing a judge.”

“In a criminal
prosecution for libel, the prosecution would fail if it were shown that specific
charges were true and it was for the public good that they should be made. But
is there one law for a corrupt Minister and another for a corrupt Judge?” The
author then boldly says that no court in India would say that there was one law
for a corrupt Minister and another for a corrupt Judge, and says quite
confidently that no court would by any process of reasoning punish for contempt
the writer of an article who, in sober language sets out specific acts of
bribery and is able to successfully prove them.

For this view
the author relies on a judgment of a Constitutional Bench of the Supreme Court
itself – in B. Ramakrishna Reddy v. State of Madras[107]
1952 SCR 425 where Justice B.K. Mukherjea said:

“The article in
question is a scurrilous attack on the integrity and honesty of a judicial
office. Specific instances have been given where the officer is alleged to have
taken bribes or behaved with impropriety to litigants who did not satisfy his
dishonest demands. If the allegations were true, obviously it would be to the
benefit of the public to bring these matters into light. But if they were false,
they cannot but undermine the confidence of the public in the administration of
justice and bring the judiciary into disrepute.”

Unfortunately
these observations were read in a later case in Perspective Publications Pvt.
Ltd., & anr. V. State of Maharashtra[108] as not laying
down affirmatively that truth and good faith could be set up as a defence in
contempt proceedings; and ever since then the law in Perspective Publications
Case is the law that is followed. Wrongly, I would submit. Particularly since
years after the Perspective Publications Case another Bench of three
Hon’ble Justices of the Supreme Court (in August 1976) set aside a Full Bench
decision of the High Court of Punjab, which held that a prima facie case for
contempt was made out. In that case 15 members of a Bar Association made a
complaint about observations of a High Court judge made during an inspection at
the District Court Bar the judge had said nasty things about politicians and the
lawyers felt that the judge was wrong to talk politics and they said so in the
letter. The letter was addressed to the Chief Justice but it was placed for
consideration of a Bench of the Court and on perusal of the contents the Bench
that a prima facie of criminal contempt was made out. None of the allegations in
the matter against the judge were disputed or challenged.

Yet the High
Court proceeded on the basis that even though the letters written correctly
recorded what had happened and commented adversely on the judge’s conduct, the
authors were guilty of contempt. The Supreme Court overruled and by so
overruling emphasized that allegations when true were not capable of sustaining
a charge of contempt.

The most recent
endorsement of this view is the decision of the Privy Council (March 1999) in
which Lord Slynn (in an appeal from the Republic of Mauritius), whilst upholding
the constitutionality of the offence of scandalizing the court, under the
Constitution of Mauritius, emphasized two things: first, that the cope of
offence was a narrow one and second, that exposure and criticism of judicial
misconduct plainly in the public interest would not necessarily constitute
contempt: that is to say truth and good faith would trump the Contempt law,
which is as it should be.

Our Constitution
makes freedom of speech and expression a fundamental right, and the exception to
it is the law of contempt- not any law of contempt – but reasonable restrictions
in the law. The Contempt of Courts Act does not say that truth cannot be a
defence and it is for the Courts to interpret the meaning of the word
“scandalize”.

If it is part of
the law as understood that a person commits contempt if he truthfully publishes
as a fact that a particular Judge has accepted a bribe for giving a judgment in
a party’s favour – then such a law would be void as imposing unreasonable
restrictions on the freedom of speech and expression: the judge who took the
bribe would be false to his oath, to do justice without fear or favour; and it
would be absurd to say that although Article 124(4) provides for the removal of
a judge for proved misbehaviour, no one can offer proof for such misbehaviour
except on pain of being sent to jail for contempt of court.

This is a
glaring defect in our judge-made law that needs to be remedied- hopefully by the
Judges themselves; if not, reluctantly then by Parliament. It is interesting to
notice that when the Ontario Court of Appeal some years ago considered the
offence of scandalizing the Court in the light of the Canadian Charter of Human
Rights. The majority in the Court concluded that scandalizing the court was no
longer compatible with the fundamental freedom of speech and expression.[109]
The dictionary meaning of the word “scandalize” is “to utter false or malicious
report of a person’s conduct”. Therefore truth can never scandalize.

The decision of
Supreme Court in Ravichandra Iyer v. Bhattacharji[110] is a
regrettable one because the Bench in that case said that even Bar Associations
can not take up matters and pan resolutions with regard to allegations of
corruption against sitting judges. They must take up the matter first with the
Chief Justice and await his response for a “reasonable period”. And what if the
Chief Justice does not respond – what after that? Their Lordships gave no
answer. It is Bahttacharji’s case, which quotes Harry Edwards, Chief Justice of
the US Court of Appeals of the District of Columbia who was at one time Chairman
of what is known as the Judicial Council in the United States (a Council for
disciplining federal judges in the US – judges who are appointed for life).

In
Bhattacharji’s case our courts quoted from an article by Harry Edwards in which
he had said:

“Ideal of
judicial independence is not compromised when judges are monitored and regulated
by their own peers. This limited system of judicial self-regulation present no
constitutional dilemma as long as the removal power remains with Congress. I
argue that the judiciary alone should monitor this bad behaviour through a
system of self-regulation.

BIBLIOGRAPHY

Articles
& Journals

G. Noorani, “A Disturbing Judgment”, Frontline, March 29 2002 at
34.

Floyd Abrams, “Fair Trial- Free Press: A Legal overview”, Address
before Connecticut Bar Association, 1979

K. K. Mathew, Chief Editor, Malayalam Manorama, A Talk on All India Radio
on “ The Freedom of Press”, Vidura, Vol. 15, No. 5, October 1978 at
280.

Madhavi Divan, The Law of criminal Contempt: time to move on, The
Lawyers Collective, March 2002 at 8.

R. Dhavan, “The Press and the Constitutional Guarantee of Free Speech and
Expression”, 28 Journal of Indian Law Institute 292.

Raju Z Moray, “Conversation in a Court Room”, The Lawyers
Collective, July-August 1994 at 53.

S. P Sathe, “Freedom of Speech and Contempt of Court”, Economic and
Political Weekly, 17- October 1970 at 1749.

Upendra Baxi, “In an interview on the Freedom of Press,” Vidura,
Journal of the Press Institute of India, Vol. 12, No. 6, December 1974
at 4.

Usha Kamath, “Of Judicial Power”, Frontline, March 29 2002.

Z. Chafee, Book Review, “Free Speech: And its Relition to Self-Government
by Alexander Meiklojohn,” 62 Harvard Law Review, 1949 at 891
(898).

Books

E.S. Venkataramaih, Freedom of Press- Some recent Trends,
1st Edn., B.R. Publishing Corp, New Delhi, 1987.

H M Seervai, Constitutional Law of India, Vol. I, 4th
Edn., Universal Book Publishers, New Delhi, 1999.

J. Milton, “Aeropagiticia”, 1st Edn., 1644 at 23 as Cited in D.
S. Bogen, First Amendment Ancillary Doctrines, Maryland Law Review,
Vol. 37, No. 4, 1978.

James Francis Oswald, Contempt of Court, 3rd Edn.,
Hindustan Law Books, Calcutta, 1993.

Justice A. N. Grover, Press and the Law, 1st Edn., Vikas
Publishing House Ltd., New Delhi, 1990.

Justice V r Krishna Iyer ad V Sethi, Essays on Press Freedom,
1st Edn., Capital Foundation Society, 1996, New Delhi.

K. K. Mathew, On Democracy, Equality and Freedom, 1st
Edn., Universal books, 1978.

K. N. Goyal, Judicial Miscellany, 1st Edn., Institute of
Judicial Training and Research, Uttar Pradesh, 1993.

Krishna Iyer and V. Sethi, Essays on Press Freedom, 1st
Edn., Capital Foundation Society, New Delhi, 1996.

10.
Oxford Dictionary of Quatotations, 3rd Edition, Oxford
University Press, 1999.

11.  P
Krishnaswamy, Justice V. K. Krishna Iyer-A Living Legend, 1st
ed., Universal Publication, New Delhi, New Delhi, 2000.

12.  S. K.
Padover, Thomas Jefferson on Democracy, 2nd Edn., McMillan
Publishers, New York, 1956.

13.  S.
Pal, Law of Contempt, Law Research Institute, Calcutta, 2001.

14.  V. G
Ramachandran, Contempt of Court, 5th Edn., Eastern Book
Company, 1976.

15.  Vepa
P. Sarthi, G. C. V. Subba Rao’s Commentary on Contempt of Courts Act,
1971, ALT Publications, Hyderabad, 1999.

[1] Raju Z
Moray, “Conversation in a Court Room”, The Lawyers Collective,
July-August 1994 at 53.

[2] Vepa P.
Sarthi, G. C. V. Subba Rao’s Commentary on Contempt of Courts Act, 1971,
ALT Publications, Hyderabad, 1999 at 1.

[3]
Id.

[4] As explained
by Sawant J. in V.C. Mishra AIR 1995 SC 2348. “To discharge its
obligations as the custodian of the administration of justice in the country and
as the highest court imbued with supervisory and appellate jurisdiction over all
the lower courts and tribunals, it is inherently deemed to have been entrusted
with the power to see that the stream of justice in the tribunals are protected
while fear or favour and for that purpose all the courts and tribunals are
protected while discharging their legitimate duties. To discharge this
obligation, this court has to take cognizance of the deviation from the path of
justice in the tribunals of the land, and also of attempts to cause such
deviation and obstruct the course of justice. To hold otherwise would mean that
although this court is charged with the duties and responsibilities enumerated
in the Constitution, it is not equipped with the power to discharge them.”

[5] Thomas
Jefferson, as cited in Oxford Dictionary of Quatotations, 3rd
Edition, Oxford University Press, 1999.

[6] James
Francis Oswald, Contempt of Court, 3rd Edn., Hindustan Law
Books, Calcutta, 1993 at 6.

[7] St. James
Evening Post Case (1742) 2 A & K 469. Cited From, V. G Ramachandran,
Contempt of Court, 5th Edn., Eastern Book Company, 1976 at
2.

[8]
Supra. n. 6at1.

[9] Mosntesque’s
idea of separation of power divided the state governing bodies into three
organs. This model is followed by almost all the jurisdictions in the world.

[10] (1975) Wilm
243.

[11] Justice V.
C. Srivastava, Contempt of Court as Cited in K. N. Goyal, Judicial
Miscellany, 1st Edn., Institute of Judicial Training and Research
Uttar Pradesh, 1993 at 33.

[12] This amount
of fine was imposed in 1926 and even today under the 1971 Act we have
continuation of the same provision without taking into consideration of the time
elapsed and the value of money reduced.

[13] K. N.
Goyal, Judicial Miscellany, 1st Edn., Institute of Judicial
Training and Research Uttar Pradesh, 1993 at 34.

[14] State of
Maharashtra v. Mahboob S. Allibhoy, AIR 1996 SC 2131.

[15] 1998 (4)
SCC 409.

[16] S. Pal,
Law of Contempt, Law Research Institute, Calcutta, 2001 at 26.

[17] (1919) 249
U.S. 47. The case involved an appeal from a conviction in the lower Federal
Court on a charge of circulating antidraft leaflets among members of the US
armed forces. The Espionage Act made it a felony to attempt to obstruct the
enlistment in and recruiting to services of the United States or to convey false
statements with intent to interfere with military operations. Appellant’s
counsel contended that the Espionage Act violated the First Amendment
guaranteeing freedom of speech and of the press and was unconstitutional.

[18] (1951) 34
U.S. 494. The Statute made it unlawful for any person to advocate, advice or
teach duty, necessity desirability or propriety of overthrowing or destroying
the Government in the United States, by force or violence and penalized even a
conspiracy to commit such forbidden acts. The petitioners, leading members of
the Communist Party, were charged with a conspiracy to form a party for teaching
and advocating the overthrow of government by force. They contended that the
statute could not stand the Constitutional test of “clear and present danger”
and that their conviction by the court below was therefore liable to be set
aside.

[19] (1957) U.S.
298.

[20] Babu Lal
Parate v. State of Maharashtra, AIR 1961 SC 884.

[21] 391 U.S.
194, 201 (1968)

[22] 485 U.S.
624, 632 (1988).

[23] 509 U.S.
688, 695 (1993).

[24] 318 U.S. 50
(1943).

[25] 267 U.S.
515, 537 (1925).

[26] 221 U.S.
418, 444 (1911).

[27] 512 U.S.
821, 114 S.Ct. 2552, 2557 (1994)

[28] CHIEF
JUSTICE Warren Berger as cited in Floyd Abrams, “Fair Trial- Free Press: A Legal
overview”, Address before Connecticut Bar Association, 1979 as cited in Justice
V r Krishna Iyer ad V Sethi, Essays on Press Freedom, 1st
Edn., Capital Foundation Society, 1996, New Delhi at 13.

[29] Brahma
P. Sharma v. State of U.P. AIR 1954 Supreme Court 10.

[30] AIR 1970 SC
2015.

[31] This press
conference was held at Trivandrum on November 9th 1967 and the paper
which reported was the Indian Express.

[32] AIT 1988 SC
1208.

[33] Cited in
Madhavi Divan, The Law of criminal Contempt: time to move on, The Lawyers
Collective, March 2002 at 8.

[34] The Indian
Express, 2nd May 2001.

[35] (2001) 2
SCC 171.

[36] (2001) 2
SCC 171 at 176.

[37] (2002) 3
SCC 343.

[38] AIR 1999 SC
3345.

[39] NBA
v. Union of India (1999) 8 SCC 308 at 313.

[40] Judges R
Parasher v. Prashant Bhusan, (2001) 6 SCC 735.

[41] In re
Arundhati Roy, (2002) 3 SCC 346 at 354.

[42] AIR 1988 SC
1208.

[43] (2002) 3
SCC 343 at 372.

[44] Civil
contempt means-

(i)
wilful disobedience to any judgement, decree, direction, order, writ or other
process of a court;

(ii)
wilful breach of an undertaking given to a court.

[45] (1964) 3
All. ER 674

[46] AIR1969 SC
189

[47] AIR 1964 SC
1625

[48] AIR 1970 SC
1767

[49] AIR 1985 SC
1264

[50] (1992) 4
All. ER 97

[51] Babu Ram
Gupta v. Sudhir Bhasin , AIR 1979 SC 1528

[52] AIR 1984 SC
1826

[53] Criminal
contempt means-

The publication
(a) by words spoken or written; or (b) by signs; or (c) by visible
representations or otherwise of any matter; or (d) any other act whatsoever
which-

(i) scandalizes
or tends to scandalize, or lowers or tends to lower the authority of, any court;
or

(ii) prejudices,
or interferes or tends to interfere with, the due course of any judicial
proceeding; or

(iii) interferes
or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner.

[54] AIR 1974 SC
1252

[55] (1974) 1
ALT 170

[56] AIR 1991 SC
2176.

[57] AIR 1962 SC
1172.

[58] 1997 (5)
ALT 724.

[59] 1995
Supp.(2) SCC 388.

[60] (1991) 2
All ER 398

[61]
Kamalabai Nayak v. Dhananjoy Nayak, 1996 (3) ALT 404.

[62] Speech by
Thomas Jefferson, S. K. Padover, Thomas Jefferson on Democracy,
2nd Edn., McMillan Publishers, New York, 1956 at 93.

[63] K. K.
Mathew, On Democracy, Equality and Freedom, 1st Edn.,
Universal books, 1978 at 98.

[64]Blackstone
Commentaries, Vol. IV at 151-152 (Wendell ed.;1854) as Cited in Justice E.S.
Venkataramaiah, Freedom of Press- Some Recent Trends, 2nd Ed., B. R.
publishing Corp, Delhi, 1987 at 14.

[65] Z. Chafee,
Book Review, “Free Speech: And its Relation to Self Government by Alexander
Meiklojohn,” 62 Harvard Law Review, 1949 at 891 (898).

[66] Upendra
Baxi, “In an interview on the Freedom of Press,” Vidura, Journal of the Press
Institute of India, Vol. 12, No. 6, December 1974 at 4.

[67] K. K.
Mathew, Chief Editor, Malayalam Manorama, A Talk on All India Radio on “ The
Freedom of Press”, Vidura, Vol. 15, No. 5, October 1978 at 280.

[68] Justice
Krishna Iyer and V. Sethi, Essays on Press Freedom, 1st Edn.,
Capital Foundation Society, 1996, New Delhi at 13.

[69] Justice
E.S. Venkataramaih, Freedom of Press- Some recent Trends, 1st
Edn., B.R. Publishing Corp, New Delhi, 1987 at 13.

[70] J. Milton,
“Aeropagiticia”, 1st Edn., 1644 at 23 as Cited in D. S. Bogen,
First Amendment Ancillary Doctrines, Maryland Law Review, Vol. 37, No. 4,
1978 at 682.

[71] Justice A.
N. Grover, Press and the Law, 1st Edn., Vikas Publishing House
Ltd., New Delhi, 1990 at 8.

[72] (1941) 314
U.S. 252.

[73] In
Romesh Thappar v. State of Madras, AIR 1950 SC 124, the court
recognized the fact that freedom of speech and expression as given in Article
19(1)(a) impliedly gave rise to freedom of press.

[74] AIR 1978 SC
597.

[75] Article
19(2)

[76] AIR 1954 SC
10.

[77] H M
Seervai, Constitutional Law of India, Vol. I, 4th Edn.,
Universal Book Publishers, New Delhi, 1999 at 749.

[78] (1904) 198
U.S. 45, 49 L ed. 937.

[79] P. N.
Duda v. P. Shiv Shanker AIR 1988 SC 1212.

[80] (1918) 249
U.S. 47.

[81]
Supra. n77 at 759.

[82] [1973]1 ALL
E. R. 710.

[83] Re
Harijai Singh and Another and Re Vijay Kumar, (1996) 6 SCC 466.

[84] Lord
Denning in R. v. Metropolitan public Commissioner Exparte, (1968)
2 ALL E. R. 319.

[85] Application
19998/ 92, (1998) 25 EHRRI

[86] (2001) 2
SCC 171.

[87] Madhavi
Divan, “The Law of criminal Contempt: time to move on”, The Lawyers
Collective, March 2002 at 8.

[88] (2002) 3
SCC 346.

[89] (1911)12
CLR 280.

[90] AIR 1984 SC
615.

[91] A. G.
Noorani, “A Disturbing Judgment”, Frontline, March 29 2002 at 34.

[92] P
Krishnaswamy, Justice V. K. Krishna Iyer-A Living Legend, 1st
ed., Universal Publication, New Delhi, New Delhi, 2000 at 350.

[93] (1996) 5
SCC 216.

[94] AIR 1952 SC
76.

[95] (1911) 12
CLR 280.

[96] This famous
Australian case has been cited with approval in various Indian and subsequent
Australian cases. For eg. Fletcher Exp Kirch (1935) 52 CLR 248;
Brett (1950) VLR 226; Foster Exp Gillies (1937) St. Rqd 368; AG
NSW v. Mundey, (1972) 2 NSWLR 887 etc.

[97]
Supra. n.77 at 754.

[98] 1995 (2)
SCC 584.

[99] Supreme
Court Bar Association v. UOI, 1998 (4) SCC 409.

[100]
P.N.Duda v. P. Shivshanker, AIR 1988 SC 1208.

[101] AIR 1978
SC 727.

[102] AIR 1987
SC 1451.

[103] Borric and
Lowe, Law of Contempt, 3rd Edn. at 331.

[104] Archana
Guha v. Rajneet Guha, 1989 Cal. HC Notes 252

[105] R.v
Metropolitan Police Commissioner, 1968(2) AER 319.

[106]
Attorney General v. Guardian Newpaper, 1987 (3) AER 316.

[107] 1952 SCR
425.

[108] (1969) 2
SCR 779

[109] R.
v. Kopyto, 1987 (47) DLR 4th Series.

[110] 1995
(5)SSC 478

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