Criminal Contempt: A Legal Point of View
Miss. Vidhi Dugad, Mumbai University.
Contempt of Court is a phrase that should be understood by interpreting the word- ‘contempt’. Contempt in simple words means disgrace or disrespect. The Judiciary holds an esteemed position in law, especially in the Indian Legal System. The Indian Legal System is based upon the principle of Rule of Law which means that the law is supreme. In such a state the judiciary is given even more importance because it is considered to be the guardian of laws[i].
The laws for contempt of court exist not to protect the judges or courts but to protect the justice system itself[ii]. The powers to punish for contempt are provided to the courts by the Constitution of India under Article 129[iii] which states that “The Supreme Court of India shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” Furthermore, Article 215[iv] states “High Courts to be courts of record. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” Therefore, the High Courts and the Supreme Court, both have the powers to punish for contempt.
As stated in The Contempt of Courts Act, 1971 S.2(a), there are two major types of contempt:
- Civil Contempt[v]
Civil Contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. Therefore, violation of any directions ordered by the court may amount to civil contempt.
- Criminal Contempt[vi]
This type of contempt is a more serious one and it is more difficult to determine. There are three things that may constitute as criminal contempt- scandalizing or lowering the authority of a court, prejudicing a judicial proceeding, and obstructing or interfering with administration of justice[vii]. Doing any act or publishing anything which has the above mentioned results amounts to criminal contempt.
Even lawyers are not excused in cases of contempt. For better understanding, we can look at the case of Jaswant Singh v. Virender Singh[viii]. In this case, there was a transfer petition filed which set up a serious allegation on the learned judge and his discharge of judicial functions. The Honourable Supreme Court in this case held that the claims and language used was not only derogatory but it also interfered with the conduction of a fair trial. Therefore, the lawyer was held in contempt. A similar verdict has been upheld several other times in very recent cases where judges have taken suo motu action against advocates who make derogatory allegations against judges[ix].
Media is regarded as the medium that voices public opinion and at the same time brings knowledge of the routine world to the people. However, sometimes the phenomenon of media trial arises. This term- ‘media trial’ is the idea that before the court passes a judgement, the accused has already been tried by the media in a public sphere and has been declared guilty. The Supreme Court of India in certain cases has referred to ‘trial by press’ as a ‘miscarriage of justice’[x]. In the case of M.P. Lohia v. State of W.B[xi], the Supreme Court went as far as warning the editor and writers that their articles would affect the case. Media Trials not only hinder the administration of justice, they also violate the principle of ‘innocent until proven guilty’[xii].
Time and again several cases of criminal contempt have been initiated and most of them have been ruled against the accused. In the Arundhati Roy Case[xiii], based on a statement worded- “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” in Ms. Arundhati’s Affidavit, contempt of court proceedings were initiated against her. She responded to this by further criticising the court at several instances. Ms. Arundhati Roy was in the end punished for contempt. This case raised a lot of question on the contempt of court laws and their relevance today.
The most recent case of criminal contempt that has moved the minds of masses is the Prashant Bhushan Case[xiv]. Mr. Prashant Bhushan- a Senior Advocate practicing in the Supreme Court of India made two tweets on twitter. One was regarding the Chief Justice of India riding an expensive motorcycle without mask while the Supreme Court was closed due to the pandemic and a second one regarding how the democracy that is India was being destroyed with reference to the Supreme Court and past four CJIs. The Supreme Court took suo motu cognizance of this case. In the defence of Mr. Prashant Bhushan, it was argued that the first tweet was just a statement to show distress over the fact that the Supreme Court of India was not functioning which violates the citizen’s rights, where meanwhile the Chief Justice of India was enjoying without wearing a mask in times of Covid-19. It was said that if this was contempt the fundamental rights under Art. 19(1)(a)of the Constitution of India[xv] would be violated.
For the second tweet the defence argued that the tweet was a ‘bona fide opinion about the situation in the country’ by Mr. Bhushan. It was further argued that there was no basis for contempt of court accusation because all statements made were at the judge as a private individual. The defence further argued that the decision of the court be given after considering the situations and circumstances surrounding the facts and not only on the basis of the statements made. However, the final decision of this case came with a guilty verdict with a fine of Rs. 1/-.
There are certain exceptions to contempt of court. Most of them are mentioned in The Contempt of Courts Act, 1971:
- S. 3: Innocent publication and distribution of matter not contempt[xvi]. This means that if a person publishes something regarding a case or proceeding or interferes with the process of justice in an ongoing proceeding but has no reasonable grounds to believe that the proceeding is ongoing, they cannot be held in contempt for it,
- S. 4: Fair and accurate report of judicial proceeding not contempt[xvii]. and
- S. 5: Fair criticism of judicial acts not contempt[xviii]. Which means that comments or criticism on case, judgements, orders, or judicial decisions that have already been decided will not amount to contempt.
Contempt of court has become a controversial topic overtime; especially criminal contempt. We have observed this in the Arundhati Roy[xix] case where there was a lot of opposition towards the guilty judgement. Furthermore, the contempt of court law is becoming increasingly redundant in other nation states. In England itself, from where India has inherited this law, courts are refusing to peruse contempt cases[xx]. The effect that Contempt of Court has on Freedom of Speech and Expression should not be ignored either. Contempt of Court is a reasonable restriction that can be imposed on the fundamental right guaranteed under Art. 19(1)(a). Therefore, it is important to analyse contempt from the perspective of a restriction especially after the Prashant Bhushan case[xxi] where Mr. Bhushan seeks a right to appeal[xxii].
[i]Spadika Jayaraj, Judicial Accountability and Contempt of Court: Comparing India with U.K., the U.S.A. and Singapore, 1.1 CALQ (2013) 18.
[ii]Attorney General v. Times Newspapers,  3 W.L.R. 298.
[iii] INDIA CONST. art. 129.
[iv] INDIA CONST. art. 215.
[v] Contempt of Courts Act, 1971.
[vii] Id at 5
[viii] Jaswant Singh v. Virender Singh, 1995 Supp (1) SCC 384.
[ix] Re: Ajay Kumar Pandey, (1996) 6 SCC 510.
[x] State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386.
[xi] M.P. Lohia v. State of W.B, (2005) 2 SCC 686.
[xii] Anukul Chandra Pradhan v. Union of India, (1996) 6 SCC 354.
[xiii] Re Arundhati Roy, (2002) 3 SCC 343: AIR 2002 SC 1375.
[xiv] Re Prashant Bhushan, 2020 SCC OnLine SC 646.
[xv] INDIA CONST. art. 215, cl. 1(a).
[xvi] Id at 5
[xvii] Id at 5
[xviii] Id at 5
[xix] Id at 13
[xx] A.P. Shah, The chilling effect of criminal contempt, The Hindu (JULY 27, 2020 00:45 IST), https://www.thehindu.com/opinion/lead/the-chilling-effect-of-criminal-contempt/article32198138.ece.
[xxi] Id at 14.
[xxii] Legal Correspondent, Prashant Bhushan case | Plea to uphold right of appeal in contempt case, The Hindu (SEPTEMBER 13, 2020 08:28 IST), https://www.thehindu.com/news/national/prashant-bhushan-case-plea-to-uphold-right-of-appeal-in-contempt-case/article32589978.ece.