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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
Raju Z Moray, “Conversation in a Court Room”, The Lawyers Collective, July-August 1994 at 53. Vepa P. Sarthi, G. C. V. Subba Rao’s Commentary on Contempt of Courts Act, 1971, ALT Publications, Hyderabad, 1999 at 1. 3 Id.
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: 1. 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. 2. 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. 3. 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.
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.”
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 1. What is contempt of court? 2. Why is there a necessity of this concept? 3. What is contempt understood in other jurisdictions? 4. Is the Contempt of Courts Act, 1971 a comprehensive legislation? 5. What is the response of Indian Judiciary to this concept? 6. 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 17427 made a three-fold classification of contempt: 1. Scandalizing the court. 2. Abusing parties who are concerned in the causes, in the presence of court. 3. 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 organs9 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.”
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.
1926. 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. N. 1926 was not found adequate and as such 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. 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. 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. Sri H. 11 Justice V. 5 . 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. The Act also did not deal with the extra territorial jurisdiction of High courts in matters of contempt. Goyal. 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. Judicial Miscellany.13 The provisions for punishment contained in the Contempt of Courts Act. The Act of 1926 was a short Act containing only three sections. Goyal. The Sanyal Committee submitted a very detailed and comprehensive report suggesting drastic changes in the contempt law. The Act did not contain any provision with regard to contempt of courts subordinate to courts other than High Courts. Thus a committee was set up under the then Additional Solicitor General of India.12 The Contempt of Courts Act. it was considered expedient to resolve these doubts and limits the powers of the High Court in punishing for contempt of courts. 1993 at 34. 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. 1st Edn. the courts subordinate to Chief courts and judicial commissioners. 1952 was enacted. 11 The attempt at a comprehensive legislation relating to contempt of courts in India was the contempt of Courts Act. N. Institute of Judicial Training and Research Uttar Pradesh. that is. C. Institute of Judicial Training and Research Uttar Pradesh. 1952. 1952 was replaced by the 1971 Act.. 13 K. 1926. Sanyal. N. Judicial Miscellany.Thus the provision of contempt of court was first put forward and given a firm footing by the English judges.. The need for contempt of Courts Act. 1993 at 33. Contempt of Court as Cited in K. This was put on a firm basis in India by Contempt of Courts Act. It was felt that the Act of 1952 did not contain sufficient safeguards for the freedom of press particularly. 1st Edn. 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. From the statement of objects and reasons which led to the enactments of the contempt of Courts Act. Srivastava.
Each new precedent was not declaratory but creative of the law. 6 . Mahboob S. difficulty and vagueness start at the definition stage itself. 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. Union of India15 a Constitution Bench described the special jurisdiction to punish for contempt as an unusual type combining the Jury. considered advisable to have the entire law on the subject scrutinized by a special committee. AIR 1996 SC 2131. Each new type of attack on the administration of justice received a corresponding elaboration or extension of the contempt law. 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. The power to commit for contempt is a punitive power. 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. Contempt proceedings do not partake the character of a traditional lis. undefined and unsatisfactory. 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. it may well be said the categories of contempt are not closed. In Supreme Court Bar Association v. The Sanyal Committee was set up to look into this aspect. The jurisdiction to punish for contempt touches upon two important fundamental rights of citizen. namely. Pointing out the difficulties in defining contempt the Sanyal Committee observed: “In the law of contempt. there evolved in the course of time elaborate and far reaching doctrines and extraordinary procedures. Right till the present century. the right to personal liberty and the right to freedom of expression. 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.It is generally felt that the existing law relating to contempt of courts is somewhat uncertain. 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. Allibhoy.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. a wild growth. as it were. It was therefore. these doctrines and procedures were never subjected to legislative scrutiny with the result that the law of contempt had. And even now. The result is that there 14 15 State of Maharashtra v. If administration of justice has to be effective. which made recommendations and most of it were accepted by the Government. From rudimentary rules devised for the limited purpose of securing obedience to the orders of courts. 1998 (4) SCC 409.
If we provide with a concrete definition that would limit the scope of contempt. 2001 at 26. 7 . 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. Law of Contempt.”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. 16 S. The discretion of defining contempt is given to the judges with an assumption that they are honest and would always be fair and just. “It is indeed difficult and almost impossible to frame a comprehensive and complete definition of contempt of court.are contempt. Pal. being growth of the common law. In the words of one of our own judges. in view of the possibility of new types of contempt arising in future. civil or criminal. 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. In view of the haphazard development inherent in the process of development of law by judicial precedent. The real end of a judicial proceeding. it is not possible to demarcate the area of operation of the law of contempt arising in future. 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. it is not possible to demarcate the area of operation of the law of contempt. The Shawcross Committee observed: Not the least of the difficulties in this field (definition) is that contempt. The law of contempt covers the whole field of litigation itself. it is not possible to attempt neat and clear cut classifications of various branches of the law of contempt and. But the fear that crops up with this vagueness is the danger of misusing this power by the court and the judges. Law Research Institute. Calcutta. has no authoritative definition or limitation…It can be defined in the most general terms. hence it should be left to the courts to decide whether any contempt has been done. 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.
not the individual judge. Lord Justice Otton described a fine of £40.000 against The Evening Standard newspaper. Civil contempt requires only a preponderance of the evidence while criminal contempt requires proof beyond reasonable doubt. The jury must also presume that the accused is not only innocent but also that he has no previous convictions. He also noted a reluctance to use the contempt power for fear of creating a cause that spurs public sympathy as. The Contempt of Court Act 1981 applies to individual cases. England imposes limits with respect to reports of proceedings and publication of material likely to interfere with the administration of justice. contempt has inhered in the judicial power to run the courts and to prevent interference with justice "since time immemorial". Common Law contempt can apply to individual cases and to the administration of the law generally. Contempt of Court is governed by two sets of rules. 1. for example. English contemnors are not entitled to a trial by jury. with only knowledge of the order or judgment. 2. being needed. in various English coal strike orders. The court can use all its contempt powers but still suspend sentence if the contemnor promises not to repeat the contumacious act and apologizes. while civil contempt is disobedience to orders or judgments of a court. A jury is supposed to reach their decision only on the evidence produced in court. 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.Chapter-II COMPARATIVE STUDY Contempt Under Common Law. Contempt protects the dignity of the Court. 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. Criminal contempt involves an intentional interference with the administration of justice. Contempt can be criminal or civil. including a halt to the criminal trial. The result in The Evening Standard case was very prejudicial. 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.Position In United Kingdom Lord Justice Otton gave an overview of the concept of contempt of court. which for the first time imposed a two-year maximum jail sentence for civil and criminal contempt as well as maximum fines. In England. Parliament enacted the Contempt of Court Act of 1981. not intent to interfere. 8 .
and is not. Proximity: The court will weigh up the chances of a juror having actually read the offending story. say. A jury (which must presume that a defendant has an unblemished past) would find that hard to forget. It does so by determining how novel was the way it was presented. 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.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. 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. The trend is towards liberalization when it comes to applying the Contempt of Court Act 1981. while maybe prejudicial. falls short of creating a substantial risk of being seriously prejudicial. and then is guided by the trial judge on what is. 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. 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. and hears all the witnesses cross-examined. though. National tabloids have used lurid accounts of Geoff Knights beating up a taxi driver and have been cleared of contempt. Then the court would try to evaluate the: Residual Impact: The theory is that if a juror listens in court to all the evidence. The important words are ‘substantial’ and ‘serious’. on the night before the trial opens then the risk of contempt is higher than if it were published months previously. There is a particular danger in revealing that the defendant has a previous conviction. Judges seem to have accepted that most pre-trial coverage. If the story is published. The Contempt of Court Act 1981 ceases to be active when: The arrested person is released 9 . important then any initial prejudicial impact the story might have had will fade away as the juror concentrates on the actual evidence. 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. 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. News desks should know the average time it takes in their Crown Court area for a case to go from arrest to trial. But each case is different.
or unfit to plead or the court orders the charge to lie on the file. at the time of publication. the immunity ceases. 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. the case hinged on witnesses identifying the man in court or at an identity parade. Section 3 of the Contempt of Court Act gives an editor a defence if. As soon as ‘Danger Man’ is arrested. 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. 10 . 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. having taken all reasonable care. Pictures: A picture can be in contempt in the same way as a story if . he did not know and had no reason to suspect that proceedings in the particular case were active. charged. 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. Common Law contempt can also be used against articles prejudicial to the course of justice generally.a person is arrested. The risk of contempt under the 1981 Act only starts when the Initial Step is taken .without being charged . 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. for instance.except when released on police bail. If a known criminal. If the newspaper is prosecuted under Common Law contempt the prosecution has to prove that the editor intended to create prejudice. Section 5 of the Contempt of Court Act gives protection to stories. 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. for instance. however. or has a warrant or summons issued against him. as distinct from the particular case governed by the 81 Act. And if you used a picture of the defendant handcuffed and guarded by armed police it might also prejudice a juror. The court can infer intent by taking account of all of the circumstances leading to publication.
494.Position Under the American Legal System Contempt of court is an act of disobedience or disrespect towards the judicial branch of the government.18 In that case the validity of the 17 (1919) 249 U. which imposed certain limitations upon press and speech. The American Jurisprudence defines contempt of court in Vol 17. Any conduct which interferes or prejudices the parties to a litigation or their witnesses during a litigation. or an interference with its orderly process.” 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. 18 (1951) 34 U. 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. The Statute made it unlawful for any person to advocate. leading members of the Communist Party. 4. United States. 47. or obstruct a court or a judge in the discharge of its or his duties. It can be classified as follows: 1.S. 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. advice or teach duty. Free speech would not protect a man in falsely shouting fire in a theatre. however. by force or violence and penalized even a conspiracy to commit such forbidden acts. and causing a panic. 11 . Rejecting the contention Justice Holmes wrote an opinion unanimously concurred by the court.S. 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. Any conduct which tends to bring the authority and administration of law into disrespect or disregard. The petitioners. It is an offense against a court of justice or a person to whom the judicial functions of the sovereignty have been delegated. were charged with a conspiracy to form a party for teaching and advocating the overthrow of government by force. Appellant’s counsel contended that the Espionage Act violated the First Amendment guaranteeing freedom of speech and of the press and was unconstitutional. This doctrine. upholding the Constitutionality of the Espionage Act. 3. A statute may define contempt but it can never be exhaustive. United States17 In that case the Supreme Court of USA passed observations upon the military censorship provisions of the Espionage Act of 1917. necessity desirability or propriety of overthrowing or destroying the Government in the United States. in peace or in war. Any conduct which otherwise tens to impede. embarrass. 5. 2. Despising the authority of the Judge or dignity of the court. In the United States of America freedom of speech was originally protected by the doctrine clear and present danger propounded in Schenk v. The right of speech he said “ had never been an absolute one at any time. 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. was jettisoned in Dennis v.
” The test of clear and present danger was discarded and the test of clear and probable danger has been substituted. the courts have recognized both direct and indirect contempt. United States19 while appearing to adhere to the modification of the clear and present danger test. 19 20 (1957) U. Babu Lal Parate v. Sigma Coatings.. The decision in Yates case restored to some extent the protection to freedom of speech which had been withdrawn in Dennis case.Alien Registration Act. has been advocated. 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.J. But his test is not applicable in India as this principle was rejected by Justice Madhokar in 1961. that the offence would be committed. 1984). It is only when action to that end. Direct contempt for conduct in the court's presence may be punished summarily. It is direct when it occurs under the court's own eye and within its own hearing. The arm of the law has been lengthened thereby. 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. 1139 (10th Cir. 48 F. The time factor has been thus eliminated from the test. 298.S. 1365 (11th Cir. United States v. 12 . 696 F. Matter of Jaffree. 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. No doubt Douglas J.2d 1362. 1995).3d 902 (5th Cir.. Judged by the new test it was held that the impugned statute was constitutional. Inc.2d 133 (7th Cir. in his dissenting opinion bewails that free speech. 1940 was in question.2d 1135. the Supreme Court has in a measure really overruled the Dennis Case. 1972). AIR 1961 SC 884. 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. In Yates case the Supreme Court set aside the conviction of fourteen communists who had been convicted under Smith Act. had been eclipsed by the majority ruling in Dennis case. See Matter of Heathcock. Contempt is indirect when it occurs out of the presence of the court. Vinson C. Peterson. In Yates v. thereby requiring the court to rely on the testimony of third parties for proof of the offense.20 Under the US law of contempt. though it may not be immediate action. though it penalized even conspiring to advocate the future overthrow of the state and no imminent danger is to be apprehended thereby. McGuire v. State of Maharashtra. the glory of our system of government. 1983). 456 F. 741 F.
and (7) to proof beyond a reasonable doubt. 821. 515. The courts have made a distinction between civil and criminal contempt. 201 (1968) 485 U. 50 (1943). 418. Feiock. Gompers v. 632 (1988). By contrast. "Criminal contempt is a crime in the ordinary sense. Neither a jury trial nor proof beyond a reasonable doubt is required. (4) to receive summary process. Bagwell27. distinctions between the two forms of contempt are important. 23 509 U. 26 221 U.S.S." Bloom v. 25 267 U." Hicks v. Because different substantive and procedural rules apply to civil and criminal contempt. Cooke v.26. UMWA v. 695 (1993).S.24. 114 S. 21 22 391 U. 688. 2552. For serious criminal contempt involving imprisonment of more than six months." International Union.S. (3) to receive assistance of counsel. civil contempt sanctions--which are designed to compel future compliance with a court order--are coercive and avoidable through obedience. 2557 (1994) 13 .S. (5) to present a defense. 27 512 U. United States25 (6) not to self-incriminate oneself.22 These constitutional protections include the right (1) not to be subject to double jeopardy. 537 (1925).The law of contempt cannot have a broad general principle applicable to the concept of contempt in totality.S. In re Bradley. see United States v. 444 (1911). and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings. Illinois.S. (2) to receive notice of the charges. Bucks Stove & Range Co. Dixon23. and "thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. 624. 194.Ct.21. 24 318 U. these protections include the right to a jury trial.
1996. Sharma v. The view of the Supreme Court towards these criticisms were not always static. The allegations were in all” 28 CHIEF JUSTICE Warren Berger as cited in Floyd Abrams.P made certain allegations against a judicial officer Mr.P..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. “Fair Trial. Essays on Press Freedom. Kanhaya Lal Mehra and a Revenue Officer Mr. One was to destroy the free press. One of the first and interesting cases regarding law of contempt arose in 1954. The criticisms were from the public. Address before Connecticut Bar Association. 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. 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. 1979 as cited in Justice V r Krishna Iyer ad V Sethi. Capital Foundation Society. New Delhi at 13.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. that will be dealt with in these chapters. It is after the lifting of emergency from the 1980’s that the Supreme Court fully realized its potential. It is precisely those exercise of the contempt powers of the Supreme Court and the Indian Judiciary in general over the past few decades. 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. 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. 1st Edn. 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. from the press and the media. 29 In this case the members of the Executive Committee of the District Bar Association at Muzaffarnagar within the state of U. 14 . 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. Latta Prasad. so we can recall two of his major steps to consolidate his power when he became the Chancellor. 29 Brahma P. AIR 1954 Supreme Court 10. 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. State of U.Free Press: A Legal overview”. 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. It was seen as the last resort for justice to the otherwise “justice starved” citizens of India. He further elaborated “ Hitler’s Germany is still fresh in memory.
The Supreme Court considered all the relevant facts including the fact that the meeting was held in closed quarters. The High Court found the lawyers to be prima facie in contempt of court and fined them Rs.Judiciary is part of the class rule of the ruling 30 31 AIR 1970 SC 2015. do not inspire confidence in their judicial work. Only members were present.30 The case arose out of a press conference that the then Chief Minister E. Nambiar. The Supreme Court reversed the decision and allowed the appeal. The judicial officer does not record evidence in cases tried before him properly.M. the judge instinctively favors the former….S Namboodripad held.S..” 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 fact that a statement is defamatory so far as the judge is concerned does not really make it a contempt. The revenue officer follows the highly illegal procedure of leaving 2 cases at a time. It is now our considered opinion that the two officers are thoroughly incompetent in law.M. 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 2. It is to be kept in mind. when attacks or comments are made on a judge or judges.N. 15 . the whole object was to have the grievance of the lawyers and the litigating public really felt. pot bellied rich man and a poor. This press conference was held at Trivandrum on November 9th 1967 and the paper which reported was the Indian Express. 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. One of the excellent examples for the so-called “hyper sensitivity” of the Supreme Court is the case of E. the resolutions were typed by the president of the Bar itself and even the minutes book didn’t have the record. 300/-. class interests and class prejudices and where the evidence is balanced between a well dressed. Also he is highly temperamental and constantly threatens the lawyers with contempt of court.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. 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.1. ill-dressed and illiterate person. Namboodri v. 3. T. They state wrong facts when passing judgments and are overbearing and discourteous to the litigant public and the lawyers alike. that in all the Criminal matters that are transferred to the court. wherein he records the evidence of one case and ask the court clerk to do so with the other.
They contained a fair criticism of the judicial administration.to Rs. P. 2. which the appellant had made. 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 Zamindars. 4. Namboodripad appealed to the Supreme Court pleading: 1.class. And there are limits to the sanctity of the judiciary. and also which gave rise to vehement criticism from both inside and outside legal circles is P. N. The two main point were: 1. The Supreme Court hence convicted Namboodripad for contempt of court but reduced the fine from Rs 1000/. a large number of press personnel were present. Another case which relates to Freedom of Press and contempt of court. The judiciary is weighed against workers. 50/-. 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. 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. P. Shivshanker. They did not contain criticism of any particular judge or his judgment or conduct.” Namboodripad was convicted by the Kerala High Court for contempt of court and sentenced to a fine of Rs 1000/-. The entire programme of Zamindari abolition suffered a set back. The court arrived at the conclusion that in all their writings there is no mention of judges. G. 3. N Duda v. The judges Hidayatullah CJ. The Supreme Court composed of the element from the elite class had their sympathy for the haves i.N Duda against P. His observations did no more than give expressions to the Marxist philosophy and what was contained in the programme of his party. N. The court further states that “ either he does not know or has deliberately distorted the writings of Marx. K. Shivshanker who was the Union law minister. 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. Even though the speech was addressed to Judges and lawyers. 32 AIT 1988 SC 1208. led to the abolition of property as a fundamental right. This was a majority decision made by Justice Raman Nair. 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. Duda complained about 5 passages in his speech. Justice Krishnamoorthy Iyer and with Justice Mathew dissenting. 16 . Mitter and A. Ultimately this rigid reactionary and traditional outlook of property.e.32 The case arose out of a complaint filed by P. peasants and other sections of the working class and the law and the system of judiciary essentially serve the exploiting classes.
did not bring the administration of justice into disrepute or impair administration of justice. bride burners and whole horde of reactionaries have found their haven in the Supreme Court. It might make some Judges uncomfortable. The Lawyers Collective. Anti social elements. The publishers claimed that the grades were based on a survey where fifty of the senior members of the Delhi Bar were consulted. 17 . The Law of criminal Contempt: time to move on. but the truth sometimes does. Speaking through Justice Mukherjee. depth in law and quality of judgments delivered.2. editor Madhu Trehan and three journalists. but is a small and humble attempt to hold a mirror to it. 2nd May 2001. the SC held that: “ there was no imminent danger of interference with the administration of justice. 34 The Indian Express. The next day the court lifted the ban on reporting of the contempt proceedings and directed that the reporting must be fair and accurate. March 2002 at 8. To the biggest surprise of everyone the Supreme Court took a liberal view. FERA violators.35 The case arose out of a suo motu action in the Supreme Court. The case arose out of the publication by the publishers of a magazine by the name of Wah India ! on their website. The petition was dismissed. The case was heard by a bench comprising of Justice Sabyasachi Mukherjee and S Ranganathan. 35 (2001) 2 SCC 171.e. Each of the judges whose photos were also published were graded in a five column table rating the inter alia. The minister perhaps could have achieved his purpose by making his language but his facts deadly. The speech of the Minister read in its proper perspective. which has issued contempt of court proceedings.34 But the court let the publishers off after the acceptance of an apology by the publisher Rahul Mishra. Recently the Delhi High came into the limelight following what has been called as the “ Wah India” case33. i. nor of bringing a administration into disrepute. 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. the results of a purported survey grading the judges of Delhi High Court. 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. Another case that came up before the Supreme Court recently was Re: S K Sundaram. 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. on their personal integrity. A Chennai based advocate had sent 33 Cited in Madhavi Divan. dignity and prestige of the members of the judiciary. The Supreme Court has not been the only court. In that view the minister was not guilty of contempt of the court. Many of the High Courts have also done the same.
S Anand. We expected better behaviour from them. 3 Crores’. In Re. But on 30-12-2000 Mrs. Arundhati Roy wrote an article “ The Greater Common Good” which was published in outlook and Frontline magazines. Union of India. prima facie. Hence they filed a petition stating that Mrs. Prashant Bhusan. demanding his resignation on the ground that the latter had exceeded the age of superannuation. A. 18 . Medha Patkar led a huge protest rally in front of the Supreme Court and shouted abusive slogans at the court. criminal breach of trust and falsification of records. On the part of this court.telegrams to the then CJ of India Dr. he filed a criminal complaint against the CJ under the IPC. They also attacked the petitioners to judges R Parashar advocate and others. 38 AIR 1999 SC 3345. and then decided to persistently jump into the foray with the tirade. 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. 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. “ on the grounds that judges of the Supreme Court are too busy. Anand. (2002) 3 SCC 343. 39 NBA v. The most recent as well as the most controversial one was Arundhati Roy. Anand. Union of India (1999) 8 SCC 308 at 313.38 While the case was pending before the Supreme Court Mrs. the 36 37 (2001) 2 SCC 171 at 176. alleged that he was spurred into action by an article that appeared in The Hindu on 3-11-2000. 40 Moreover the respondent also stated in her affidavit. a misrepresentation of the proceedings of the Court. Arundhati and Mrs.36 Sundaram was sent to 6 months imprisonment. The petitioner who had previously filed a mandamus seeking the president of India to verify the age of Dr. 40 Judges R Parasher v. it is only reminiscent of the Spanish heir Don Quiescent of La Mancha. Anand had usurped the office of Chief Justice of India and ‘caused loss to the exchequer to the tune of Rs. that Dr. Arundhati Roy is guilty of contempt of court. Within three days of sending the telegram. 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. publishing a statement by Ram Jethmalani and an annexure published in the book “ Big Egos Small Men”.39 But the court let the matter lie in the larger interest of the issues pending before them. Two of the judges of the Supreme Court found that the comments made by her were. 1860 alleging cheating. 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. putting himself into the outfit and chasuble of his proof insignia. (2001) 6 SCC 735.37 The facts of this case arose from a former case Narmada Bachao Andolan v.
the Supreme Court is doing its own reputation and credibility considerable harm. 19 . the court displays a disturbing willingness to issue notice. his knowledge in the field and the intended consequence. 2000/-. Patnaik and R. P. He had made studies about the system and expressed his opinions which. Roy was devoid of any special knowledge of law and hence was fined Rs. who have publicly. But she stood her ground. By entertaining a petition based on an FIR that even a local police station does not see fit to act upon.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. 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. Shiv Shanker42. 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. To ascertain the good faith and the public interest. 41 42 In re Arundhati Roy. Sethi allowed her to retract her averments. 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. (2002) 3 SCC 346 at 354.though in markedly different ways questioned the policies of the Government and severely criticized a recent judgment of the Supreme Court. Duda v. the courts have to see all the surrounding circumstances including the person.”43 The court here found that Mrs. More over the Supreme Court stated these cannot come under the exception of P. AIR 1988 SC 1208. 43 (2002) 3 SCC 343 at 372. to harass and intimidate those who disagree with it. despicable entirely unsubstantiated petition in which all the three respondents happen to be people. N.41 The Bench comprising of Justice G. It indicates a disquieting inclination on the part of the court to silence criticism and muzzle dissent. B. 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.
Broadly we can categorize contempt into two types: Civil Contempt and Criminal Contempt. He made false excuses and did not produce her. decree.44The essential ingredient is ‘willful’ disobedience and not any and every disobedience due to various reasons such as delay due to unavoidable circumstances. CIVIL CONTEMPT It has been defined under Section 2(b) of the Contempt of Courts Act. direction. received from higher courts must be attended to promptly. Adlib Club Ltd. 1971. which they did not follow and it was held as ‘willful disobedience’ and amounted to contempt of court. which has the capacity to encompass any act done in detriment of the court. The Supreme Court observed that “if orders of stay. ER 674 46 AIR1969 SC 189 47 AIR 1964 SC 1625 48 AIR 1970 SC 1767 49 AIR 1985 SC 1264 20 . So Civil contempt does not attract strict liability any more. 45 (1964) 3 All. the court held that the word ‘contumaciously’ as meaning was not different from ‘willfully’. the courts use the word ‘contumaciously’ in describing contempt and invariably use it disjunctively with ‘willful’ or ‘deliberate’. 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. He was found guilty of contempt. But Mens Rea has been made an essential ingredient in the 1971 Act. E. State of U. 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. Oswal Wollen Mills49. In Union of India v. an application for 44 Civil contempt means(i) wilful disobedience to any judgement. rebellion or defiance.T. Mazdoor Union 48 . 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 India also. 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. Contempt may range from disobedience to orders of the court to throwing of tomatoes at the Judges. In Deba Brata Bandopadhyaya v. injunction. (ii) wilful breach of an undertaking given to a court. In Alligarh Municipality v.” In Md. It has to be proved that the disobedience was ‘willful’.45. order. which is a departure from the pre-existing law with the introduction of the word ‘willful’. It connotes a ‘clear intention to flout’. writ or other process of a court.Ikram Hussain v. or inadvertence. State of West Bengal.P.47.Chapter-IV CIVIL AND CRIMINAL CONTEMPT The concept of contempt is a broad one. 46 . the court asked the appellant to produce his daughter in a matter for habeas corpus. bail. In Worthington v.the court held that “When as a result of an order of the High Court in a writ petition.
But an undertaking. All acts. which runs counter to the statutory provisions or law is an unauthorized undertaking and cannot be the basis of contempt proceedings for its breach. or (b) by signs. 53It is thus seen that scandalizing or prejudicing a Judge or interfering with the administration of justice is Contempt. CRIMINAL CONTEMPT It has been defined under Section 2(c) of the Contempt of Courts Act. 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. 1971. or (c) by visible representations or otherwise of any matter. Sudhir Bhasin . or lowers or tends to lower the authority of. 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 50 51 (1992) 4 All. where there was a clear breach of the undertaking the court. Rustam Jehangir52. 54 AIR 1974 SC 1252 55 (1974) 1 ALT 170 56 AIR 1991 SC 2176. or obstructs or tends to obstruct. 21 . ER 97 Babu Ram Gupta v. Even tending to scandalize or tending to prejudice or tending to interfere or obstruct is enough to invoke action in criminal contempt. Rajagopala Rao v.55the 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. In Naraindass v. In N.54the Supreme Court held that. Idris v. Regarding violation of an undertaking given to a court it was held in M v Home Office50. or (ii) prejudices. or interferes or tends to interfere with. State of Gujarat56. or (d) any other act whatsoever which(i) scandalizes or tends to scandalize. or (iii) interferes or tends to interfere with. or challenge its authority.51 In Md. In Delhi Judicial Service Association v. no contempt can be said to be committed merely because there is a failure to dispose of the petition. AIR 1979 SC 1528 52 AIR 1984 SC 1826 53 Criminal contempt meansThe publication (a) by words spoken or written. the due course of any judicial proceeding. any court. certainly amount to contempt. held that it was entitled to give directions for closing the breach in addition to imposing punishment. 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.” Any order of the court should give sufficient time for compliance before contempt proceedings can be initiated. which bring the court into disrespect or disrepute or which offends its dignity. State of UP. the administration of justice in any other manner. Murtaza Mujtabbi.license was to be disposed of by the statutory authority.
State of Haryana59 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. In Pratap Singh v. v. so.(2) SCC 388. and ‘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. In A-G v. but. 59 1995 Supp. a stranger to the litigation. 1997 (5) ALT 724. The court has the duty of protecting the community in the due administration of justice and. prejudiced. Gurbaksh Singh. which amounts to obstruction or interference with the administration of justice. The intention with which the act was done will. 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. however. of course. A helpful illustration is a case where the person restrained commits a breach. which is in breach of the order of a competent court. however. 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.and orderly administration of justice. obstructed or interfered with. that person may also be liable for contempt.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. One particular form of contempt by party to proceedings is that constituted by an intentional act. it is entrusted with the power to commit for contempt of court. on the rationale behind the distinction held that “A distinction is sometimes drawn between what is described as ‘civil contempt’. There is. be of the highest relevance in the determination of the penalty (if any) to be impose by the court. the House of Lords. 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. Times Newspapers Ltd. P. 60 (1991) 2 All ER 398 22 .58 The threat need not be a threat to the judge himself personally. V.60. Prakash Rao. the prohibited act is done not by the party bound himself but by third party. When. not to protect the dignity of the court against insult or injury. 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. to protect and to vindicate the right of the public so that the administration of justice is not perverted. 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. that is to say contempt by party to the proceeding in matter of procedure. this essential distinction that his liability is for criminal contempt and arises not because 57 58 AIR 1962 SC 1172.
an intention which can of course be inferred from circumstances. Here the liability is not strict in the sense referred to. 1996 (3) ALT 404. 23 .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.” But a decision of the Andhra Pradesh High Court61 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. Dhananjoy Nayak. 61 Kamalabai Nayak v. for their has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice.
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. December 1974 at 4. that the framers had no very clear idea as to what they meant by the freedom of speech or of the press. but this consists in laying no previous restraints upon publications and not in the freedom from censure for criminal matter when published. October 1978 at 280. Book Review. Chafee. 15. mischievous.S. Journal of the Press Institute of India. 1978 at 98. Mathew.. it is very hard to find a suitable definition. 24 . illegal he must take the consequence of his own territory. Secondly.” 62 Harvard Law Review. K.CONSTITUTIONAL ASPECT “Were it left to me to decide whether we should have a government without newspapers or newspapers without a government.” Vidura. Every freeman has an undoubted right to lay what sentiment he pleases before the public.”62 Though the concept of freedom of press is not a new one. Vol.”63 But people have defined the concept of Freedom of Press and continue to do so. 12. but we can say with reasonable assurance that the freedom which congress was forbidden to abridge was not. K. for them. 63 K. Equality and Freedom..1854) as Cited in Justice E.”66 But quite adverse view has also been put in by K. K. Vidura. Venkataramaiah. the politician 62 Speech by Thomas Jefferson. Thomas Jefferson on Democracy.Chapter-V CONTEMPT OF COURT AND FREEDOM OF SPEECH. 1st Edn. 2nd Edn. Thirdly. K. I should not hesitate a moment to prefer the latter. the advertiser who sustains it. No. it means freedom to gather and report information. to forbid this is to destroy the freedom of the press. and defined the freedom of the press as “ that degree of freedom from restraint which is essential to enable proprietors. 1987 at 14. 64 Blackstone Commentaries. Delhi. “In an interview on the Freedom of Press. the worker who produces the paper. R. 67 K.. it means freedom to express opinion. some absolute concept which had never existed on the earth. I think.. “First it implies the freedom to have the infrastructure required to set up a newspaper and to run it efficiently. A Talk on All India Radio on “ The Freedom of Press”. “ the world has never had a good definition of it. Mathew67 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. Padover. editors ad journalist to advance the public interest by publishing the facts and opinions without which a democratic electorate cannot make responsible judgments.”64 In 1977 the royal Commission on Press has emphasized the importance of. Prof Chafee said “the truth is. but if he publishes what is improper. New York. Malayalam Manorama. Mathew. S. 66 Upendra Baxi. 6. 1949 at 891 (898). 2nd Ed. 1956 at 93. On Democracy. publishing Corp. No. “Free Speech: And its Relation to Self Government by Alexander Meiklojohn. 65 Z. Freedom of Press. IV at 151-152 (Wendell ed. Vol. B.”65 Professor Baxi says that freedom of press means two or three things. Universal books. 5. Chief Editor. Vol. Abraham Lincoln has aptly put it when he said. McMillan Publishers.Some Recent Trends.
Venkataramaih. these are the shifts and defines that error makes against her power.who runs the administration or the reader who reads it? Freedom of the press is the freedom of the community. pronounced a judgment that to publish a newspaper was illegal as. manifested an intention to commit breach of the peace. According to him the major contents of the freedom of press are:68 1. of society as a whole. The eminent Jurist and writer Mr. 1987 at 13. Krishna Iyer has summed up what is Freedom of Press. 25 . Sweden was the first 68 Justice Krishna Iyer and V. 70 J. corruption of youth or sedition. 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.. New Delhi. should have the ultimate freedom. The reader who represents society. Such restraints through licensing and censorship came to be accentuated after the invention of printing and the appearance of newspapers in 17th century. 1st Edn.S. Thus even though the church and state resorted to all methods to suppress.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. 2. 1996. Freedom of Press. Sit William Scrogg who became Lord Chief Justice in 1678. above all liberties. which demonstrated how powerful the press as a medium of expression is. The contempt of freedom of press has come quite a long way. Whoever knew truth put to worse in a free and open encounter? Who knows not that truth is strong next to almighty. It is not the exclusive privilege of any of the four categories who are associated with the newspaper publication. Freedom to inform the public true facts without fear or favor. 1st Edn. First Amendment Ancillary Doctrines. according to him. New Delhi at 13. “Aeropagiticia”. 3. Capital Foundation Society. A classic example for this situation would be John Milton’s70 “Aeropagtica” which was a protest addressed to the long Parliament which had taken up licensing. no strategies. 4. When the freedom of Press wasn’t encouraged. Thus even though the concept of Press Freedom developed in United Kingdom. Right to have free access to sources of information. she needs no policies.Some recent Trends. No. Maryland Law Review. 1st Edn. Milton.R. Freedom to gather information from diverse and antagonistic sources. S. 1978 at 682. on a competitive basis. There was a time in U.. after the abolition of star chamber. Publishing Corp. B. It is in protest to such governmental interference that the freedom of the press was built up in England.K. Vol. 37. Sethi. free from any monopolistic control from the government. Essays on Press Freedom.. 1644 at 23 as Cited in D. Bogen. no licensing to make her victorious.” 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. 69 Justice E.
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. The court held that in an instance where the court is called upon 71 72 Justice A. 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. State of UP76 the Supreme Court discussed in very detail the concept of contempt and libel. as a fundamental right. Every activity.. 75 Article 19(2) 76 AIR 1954 SC 10. The law of freedom of press was first promulgated in 1810 in Sweden. 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. State of Madras. which facilitates the exercise of the named fundamental right. So is the case of United States. The First Amendment declared: “ Congress shall make no law…abridging the freedom of press.. N. Contempt by Lawyers and Contempt against Judges In the case of Brahma P.73 Supreme Court in Maneka Gandhi v. Sharma v. Vikas Publishing House Ltd. 1990 at 8. Certain amendments were made to the Freedom of Press Act in 1976.country in the world to recognize lawfully the freedom of press. It was replaced in 1949 by a new Act. AIR 1950 SC 124. which enjoyed of being part of the Constitution itself. 26 . Grover. 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. In America the struggle for freedom of Press had its greatest triumph when it came to be guaranteed by a written Constitutions. Press and the Law.S.” In Bridges v. 1st Edn. 73 In Romesh Thappar v.71 We can see from Article 1 of Swedish Constitution that Swedish law expressly provides for freedom of press. (1941) 314 U. California72. Union of India74 observed that “to be a fundamental right it is not necessary that a right must be specifically mentioned in a particular article specifically. 74 AIR 1978 SC 597. But the freedom of press impliedly provided under Article 19(1)(a) is not absolute. The Swedish press Law of 1756 guaranteed a clear protection or the press. 252. New Delhi.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. may be considered integral part of that right and hence be a fundamental right-freedom of press in Article 19. 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).
The gravity of speech and the conviction did not seem to get along together. P. Whether they had learnt about communism only by reading Miclellitan-Murray was irrelevant. 2. In order to refute the arguments of Mr. 27 . Vehement criticisms were raised against this approach of the Court. Universal Book Publishers. I. they were general in nature. H M Seervai points out “ it is submitted that the judgment is correct in the result but unsatisfactory when it tends to summarize. 1. which states the principle.77But 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. It is one of the very 1st cases. so far as their effect on the listeners are concerned. 4th Edn. The Supreme Court to a surprise penalized merely with a symbolic fine. 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. “ it is not clear.” The Supreme Court could have resorted to what justice 77 H M Seervai. The fact that the meeting was held in a closed room. that there was any need to undertake an examination of the writings. The importance of this case lies in the fact that the circumstances as a whole should be looked into. Vol. with only four members present. Menon that they were interpreting the Indian Constitution and not Marx. Engel or Lenin. there are two primary considerations. Menon who appeared on behalf of the Chief Minister. S.the exercise the summary powers in cases of contempt committed by scandalising the court. 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. They pertained neither to a pending case nor were they in disobedience of court order or in defamation for any judge. The Namboodripad Case was one in which we believe that a more severe punishment ought to have been imposed. Sathe wrote. New Delhi. the President himself typing the letter. They were as you can see of purely academic in nature. any interference with the administration of justice.. 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. then he can proceed against the libel or for libel. But whatever the results were the methods by which the court arrived at the conclusion is nothing but pitiable. 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. the Court went and examined the whole Marxian ideology. 1999 at 749. If the statement is defamatory so far as the judge is concerned. Constitutional Law of India. he had to be punished no matter whose views he was voicing. After the court decided. However. If Namboodripad’s statement amounted to contempt of court. The Courts could have told Mr.
because a person in such a high position should have taken more care while making such statements before the press. In that view it must be held that the minister was guilty of contempt of court. If it were a question whether I agreed with that theory. Justice Mukherjee not only didn’t convict him but even stated that the statement was a compliment to the judiciary. Shiv Shanker AIR 1988 SC 1212.S. 80 (1918) 249 U. Times Newspaper82 there are always 2 conflicting interests before the court. New York 78 “the case is depended upon an economic theory which a large part of the country does not entertain. I should desire to study it further and long before making up my mind. 81 Supra. If it was to be argued that the decision in Namboodripad’s case was correct. U. P.” Moreover the judges should have looked into the consequence when the Union Law Minister himself speaks to the gathering where the press is present.80 Justice Mukherjee said “ with these observations.” This is what court ought to precisely have done. 79 The speech by Shiv Shanker is highly inflammatory and with complete disregard to his position.S.81 The case of Wah India where they were hauled up for contempt was a correct decision by the Apex court. Herbert Spencer’s social statistics. M. that Supreme Court is comprised of the elite class…what will be the impression on the normal man. 82 1 ALL E. acquitted Shiv Shanker. 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. 45. P. that argument collapses when one reads the ShivShanker judgment. It also unnecessarily involves the court in a political controversy. One in the publics right to information and thus the 78 79 (1904) 198 U. 47. As put forward by Lord Simons in Attorney General v. nor of bringing administration into disrepute.Holmes stated in his classic dissenting judgment in Lochner v. R. will he have faith in the judicial system? H. 49 L ed. It comes to as a surprise to many that the Supreme Court who convicted Namboodripad who was a chief minister and widely acclaimed scholar. 937. Duda v. 710. N. Justice Mukherjee applied the test of “imminent dangers” as laid down by Justice Holmes in Schnenck v. Apart from the fact that their dwelling into history of Marxist ideology sidetracks the main issues. n77 at 759. But I do not conceive that to be my duty.S. it must be held that there was no imminent danger of interference with the administration of justice. 28 . 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.
(1998) 25 EHRRI 86 (2001) 2 SCC 171.freedom of press and the other in uninterrupted administration of justice. 83 84 Re Harijai Singh and Another and Re Vijay Kumar. March 2002 at 8. v. they would unmistakably ten to undermine the positions. majesty and dignity of the courts and the law. there is also a corresponding duty on the media to report with a much greater degree of responsibility. They were putting up news item. Anand’s family. R. 29 . Here I cannot see how the public’s right to information is infringed. (1968) 2 ALL E. (1996) 6 SCC 466. although the court referred to Jethmalani’s Book Big Ego Small men. The Wah India case does no credit to the case for journalistic freedoms. The Lawyers Collective. also alludes to a controversial land acquisition case involving members of Dr.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. 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. Belgium. Also. If the media demands greater freedom to criticize the administration of justice. 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. Lord Denning in R. which had no real and substantial basis at all. 87 Divan stated “where the allegations ceased to be libel and when they amounted to contempt is not explained. 87 Madhavi Divan. it appears that the context of this book. 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. 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. The publishers claimed that the grades were based on a survey where fifty of the senior members of Delhi Bar were consulted.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. Metropolitan public Commissioner Exparte. 319. “The Law of criminal Contempt: time to move on”. Another important aspect about this case was put forward by Madhavi Divan in an article.” In the case of Re. 84Also in De Haes and Gijsels v. This book in addition to containing material in support of the claim that the then chief justice had passed the age of superannuation. the apparent source of renewed attack by Sundaram were not examined. 85 Application 19998/ 92. specially in view of the fact that judges are subject to a duty of discretion that precludes them from replying to criticism. When threats of the above nature have been hurled at him. S K Sundaram86 the distinction between libel and contempt is almost completely blurred.
March 29 2002 at 34. 30 . including institutions which administer justice. Farooq Abdullah90 by Chandrachud CJ that “ the right of free speech is an important right of the citizen. 88 89 (2002) 3 SCC 346. 91 A. In J. Frontline.R. N.”91 One cannot help but wonder at the irregular pattern in which the Supreme Court gives its verdict for contempt cases. which distinguishes this case from P. This was not the only instance. Parashar v. N. Duda v. 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. The court held that since Mr. The same case has been cited with approval in many of the leading Indian decisions. and has better and more thorough knowledge in the field of law. Thus it is clear from this statement that every citizen has a right to healthy and constructive criticism. It has been rightly held in M.89 which is regarded as an Australian authority. under the circumstances was held not to be defamatory. the Supreme Court convicted him and went to great lengths to check up the works of Marx and Engel to prove him wrong. G. Noorani. If we follow this principle. Duda v. A G Noorani writes a disturbing judgment has looked into these aspects and commented “all men are equal before the law. 90 AIR 1984 SC 615. jurists and academicians can criticize the judiciary. 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. he had made studies about the system and expressed his opinion which. To say explicitly that only a person who has knowledge of law and working of the judiciary can criticize the judiciary. Arundhati Roy’s opinion should have been considered as a fair comment. Then what about the average and so called lay man to do? In R. Shivshanker is utterly illogical. This however I cannot grapple with. In P. is to saying that only lawyers. v. “A Disturbing Judgment”. She has not made any studies regarding the working of judiciary in this country and in these case.In Re Arundhati Roy88 the verdict of the Supreme Court. Shivshanker it went to the other extreme and even said what he had said was a compliment and exonerated him. 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. Shivshanker was a retired High Court Judge and Union Law Minister. the benefit to which Mr Shivshanker under the circumstances was held entitled is therefore not available to the respndent in the present proceedings. In Namboodripads Case. Here one cannot differentiate the citizens by barriers of specialist knowledge of law and the working of judiciary. Nicholls. one cannot but wonder how the Supreme Court at last distinguish citizens into two categories. Griffith CJ held that “ the defence of fair comment is available to persons charged with scandalizing the court”. (1911)12 CLR 280.
Justice V. In Bathina Ramakrishna Reddy v. he crossed all boundaries of reckless and indulges in wild accusations.92 “There is an ocean of difference between well-informed and illinformed criticism.” It is humbly submitted that the view taken by the Supreme Court is not right in this matter. 31 .. 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. But if they were false. If the allegations were true.94 judges.C. 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. Madras. K. What they say in regard to a matter concerning that institution should be viewed differently from a similar statement by an uninformed person. 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. “the article in questions is a scurrilous attack on the integrity and honesty of a judicial officer. New Delhi. 93 (1996) 5 SCC 216.93 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. It has completely ignored the precedents of the same court in which “Truth as a defence” was stressed. New Delhi. Universal Publication. 92 P Krishnaswamy. 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. 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. 1st ed. Saxena v. Krishna Iyer-A Living Legend. 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. Hon’ble the Chief Justice of India. Mukherjee said. they cannot undermine the confidence of the public in the administration of justice and bring the judiciary into disrepute. 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.Subramanium Potti’s wards. obviously it would be to the benefit of the public to bring these matters into light. 2000 at 350. 94 AIR 1952 SC 76.
the allegations of corruptions. 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.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. Since public confidence in a fearless and judiciary is a vital public interest. to the appropriate authorities with a view to action being taken against the judge. If true. Mundey. If true. Fletcher Exp Kirch (1935) 52 CLR 248. be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel. and place relevant evidence. AG NSW v. it would be desirable if a public spirited lawyer or lawyers Association conveyed in good faith and in sober language. This famous Australian case has been cited with approval in various Indian and subsequent Australian cases. any public comment would so far from an utterance.77 at 754. because nothing brings the administration of justice into disrepute so much as corruption in the judiciary. For eg. M. in good faith a corrupt judge in sober and dignified language. if it were a fair comment. before the public. It then falls to the press to expose. would so far from being a contempt of court. or of suitors or any class of suitors in the impartiality of the court in any matter likely to be brought before it. 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.Also in R. The process of removal of a judge by impeachment is cumbrous. Foster Exp Gillies (1937) St. the writing cannot be a can be proved. or persons in authority may turn a blind age or do nothing. Rqd 368. the writing cannot be a contempt of court. On the contrary. 32 . Nicholls95 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. which can be proved. before the public. However practicing lawyers may be unwilling to take such a step. v. It would be desirable to wrap up the argument with the reasons given by the noted Constitutional Law expert H. and without a public outcry might not be resorted to. and is liable to be punished for that crime. with supporting evidence.”97 95 96 (1911) 12 CLR 280. n. 97 Supra. (1972) 2 NSWLR 887 etc. Brett (1950) VLR 226.
judging cases is a difficult business and the occupational hazards of judging are many.C. some of them are not averse to blaming the Judge or suggesting to their clients that there was some ulterior motive. The public. the men and women of the media. Mishra said and did in Allahabad. the other must win.WHAT OUGHT TO BE CONTEMPT OF COURT. This ad-hocism is typified in the V. And egotistical lawyers never like to lose. This is why I believe that this part of the Criminal Contempt Jurisdiction though now obsolete in England. often unfounded. Top lawyers have big egos.Mishra case98 No one liked what V. should remain in India.the party who ultimately wins sometimes harbors inbuilt grievances against one of more Judges down the line who may have decided against him. one must lose. And when it goes through three-tiers of litigation. and the lawyers are content to accept constraints imposed by the “Rule of Law”.first about the case itself. sobriety 98 1995 (2) SCC 584.again an unfortunate characteristic of our law. and when they do. People who propagate these grudges are often lawyers themselves. 33 . Now. and then inevitably about the judge or court which rendered judgment. persons who will make any type of allegation against anyone at the drop of a hat. Ours is a very litigious society and there are a number of unreasonable people in the system. but the three Judge Bench that decided his case in their enthusiasm to teach him a lesson deviated from the law: ultimately. 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.C.the memory of a wrong decision (or what is ultimately found to be a wrong decision) sometimes festers. against the Judiciary.CONCLUDING REMARKS In an adversarial system of litigation like ours there are always two parties. 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. vagaries and idiosyncrasies of individual judges. but are not prepared to accept ad hoc rules imposed according to the whims. The law reports are strewn with cases of disgruntled litigants going to great lengths in making charges. it also gives rise to irresponsible sometimes scurrilous comment.
Anti social elements.” The law of contempt of court in Anglo-Saxon jurisprudence both in England in the past.N. And never. Let me read to you what the Bench said: 99 100 Supreme Court Bar Association v. 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. to lawyers. the representatives of the elitist culture of this country ably supported by industrialists.”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. FERA violators. P. AIR 1988 SC 1208. no constraints. In 1988 a sitting Cabinet Minister made wide and improper remarks against Judges of the Supreme Court. There are no rules.prevailed. Never-never behave as Mishra did. 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. and in India in the past and present has been no more. The judgments are strewn with pious platitudes that give little guidance to the editor. bride burners and a whole hoard of reactionaries have found their heaven in the Supreme Court. 34 . and this is the way judges make laws for you and me. to the commentators. “When your dog does anything you want to break him off”. got higher compensation by the intervention of the Supreme Court in Cooper’s case (1970). Shivshanker. is a standing threat to free expression.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. (he wrote in 1823). and then beat him for it. never lose your temper as the three Judge Bench did in Mishra’s case: always keep your cool as the five Judge Bench did.no precise circumstances when the administration of justice is brought into contempt. the Constitution Bench of the Supreme Court99 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. It was Jeremy Bentham who characterized the Common Law as “Dog Law”. 1998 (4) SCC 409.Duda v. the beneficiaries of independence. P. And the bank magnates. “you wait till he does it. It leaves too much to the discretion of the particular judge. And yet a Bench of two Judges (in Duda’s case) exonerated him. no less “Dog Law”. and so earned the admiration of all. UOI. and to members of the public: this part of the law of contempt though necessary. This case has set an example and prompts a word of advice to all: lawyers and judges. This is the way you make laws for your dog.
Yunus should be hauled up for contempt. and later published by Justice Wilmot’s son when his father’s paper were edited. Mohd. Law of Contempt. 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.“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 case101 the speech of the Minister has to be read in its proper perspective. These examples are given not to deride our judges or criticize previous decisions. and when so read it did not bring the administration of justice into disrepute or impair administration of justice. 3rd Edn. 104 Archana Guha v. 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. Banerjee J. It was a judgment reserved after argument. 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. Rajneet Guha. the case had to be abandoned. Mohd. Yunus & Ors102 filed a petition seeking a direction that Mr. It is a judgment of a Bench of two judges S.C. AIR 1987 SC 1451.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. There is a judgment of the Division Bench of the Calcutta High Court 104 delivered some years ago. unpredictable – capable of being exercised (and therefore in fact exercised) differently in different cases by different Judges in the same Court. It is only to illustrate very graphically – that the true nature of this aspect of contempt jurisdiction: is mercurial. Sen J. The fact that the law of contempt is an exception to the 101 102 AIR 1978 SC 727. HC Notes 252 35 . Yunus said that the Judge “has no right to be called either an Indian or a Judge”. The minister is not guilty of contempt of the court” Again when an important personage Mr. It originates from a celebrated dictum of Justice Wilmot in his judgment in Wilkes Case way back in 1765. Yunus. the law must then be justified on the ground that it is a “reasonable restriction” under Article 19(2): otherwise it would be unconstitutional. at 331. Mohd.C. 103 Borric and Lowe. which correctly appreciated this constitutional principle. but meant to be delivered. . 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 was not widely reported and deserves grater publicity than it has so far received. & U. An Association of individuals called the Conscientious Group v. a judgment which was never actually delivered. 1989 Cal.
so far I know. was contemptuous. in the Press or over the broadcast. whether they are subject to appeal or not. Exposed as we are to the winds of criticism. A suo moto rule was issued by the High Court. It is no less than freedom of speech itself. where this court has been called on to consider an allegation of contempt against itself. 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. but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. But the newspaper was exonerated: the contempt notice discharged. For there is something far more important at stake. unread and by distorting facts. We cannot enter into public controversy. 36 . The judgment of the Calcutta High Court make us recall what was said by Lord Denning in a famous contempt case: Quinton Hogg. The litigant Blackburn moved for contempt and that is what Lord Denning said. nothing which is said by this person or that. All we would ask is that those who criticize us will remember that. We must rely on our conduct itself to be its own vindication.v Metropolitan Police Commissioner. nothing which is written by this person or that. and our decisions erroneous. Nor will we use it to suppress those who speak against us. The article had the disquieting heading “Let the High Court save itself from Ignominy”. from saying what the occasion requires.fundamental right of the free speech has been nowhere more felicitously described than in this judgment (delivered for the Bench by Justice Banerjee). Those who comment can deal faithfully with all that is done in a court of justice. on matters of public interest. even outspoken comment. from the nature of our office. will deter us from doing what we believe is right. in parliament or out of it. In that case the Court was called upon to decide whether an article in a Calcutta daily. 1968(2) AER 319. 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. nor do we resent it. When it came up for hearing no apology was called for or tendered. provided that it is pertinent to the matter in 105 R. nor. Freedom to criticize (even wrongly and obtusely) a judgment of the court was upheld as part of the cherished freedom of speech. to make a fair comment.” And yet. It is a jurisdiction which undoubtedly belongs to us. We do not fear criticism. The judges said: “None of the articles can be defended as fair comment made in temperate language about a court case. 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. Still no less in political controversy. I would add. It is the right of every man.105 “This is the first case. polite and more sober. That must rest on surer foundations. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. which had condemned a prior judgment of the Calcutta High Court. we cannot reply to their criticisms. They can say that we are mistaken.
” “In a criminal prosecution for libel. he was old.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. not withstanding that the information had. It was asked of him why no contempt proceedings were initiated against the particular newspaper. which put Lord Templeman in the majority. spoken or written. but in so doing he is exercising his undoubted right. and though he believed he wasn’t a fool. with lapse of time. for the public good shall not be defence in a libel action would impose restrictions which would be unreasonable . But is there one law for a 106 Attorney General v. like Justices Sen and Banerjee in India put free speech first – in a conflict between this freedom and the contempt jurisdiction.hand. 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. 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. the Daily Mirror published photographs of all three Judges and below the photographs was written in capital letters “OLD FOOLS”. should be held fast to the undertaking by him. and had it published in the U. which provided that truth. 37 . 1987 (3) AER 316. He apparently smiled. if it consists in scandalizing a judge. Shortly after the controversial decision in the Spycatcher Case106 which attracted worldwide attention. ……. 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. Two of his colleagues (in the House of Lords) agreed with him. I hold this not to be a contempt of court. The Press held them up to ridicule. The article contains an error.. which was not to publish confidential information obtained by him in his capacity as a member of the British Secret Service. is not considered to be a defence. Quinton Hogg has criticized the court.K. After all. Unlike defamation truth.M. He also added “But if they (the Editor and Publisher) – had said we were dishonest or not true to our conscience. Guardian Newpaper. and without a trace of bitterness. Lord Templeman believed that Peter Wright who wrote to Spycatcher. Mr. We must uphold his right to the uppermost. uttered without malice. and would dismiss the application. was entitled to his opinion. 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. said the Judges in England did not take notice of personal insults.” Lord Denning in England. percolated into the public domain. There is another disturbing aspect of this branch of the law. Silence is not an option when things are ill done. no doubt. So it comes to this. Seervai had no doubt on the point. but errors do not make it a contempt of court. I would have promptly hauled them up”. someone else who sincerely thought he was. he said.
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. Wrongly. 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. Ramakrishna Reddy v. For this view the author relies on a judgment of a Constitutional Bench of the Supreme Court itself – in B. 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.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.” Unfortunately these observations were read in a later case in Perspective Publications Pvt. State of Madras107 1952 SCR 425 where Justice B. 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. they cannot but undermine the confidence of the public in the administration of justice and bring the judiciary into disrepute. The Supreme Court overruled and by so overruling emphasized that allegations when true were not capable of sustaining a charge of contempt. (1969) 2 SCR 779 38 . the authors were guilty of contempt. If the allegations were true. I would submit. State of Maharashtra108 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. which held that a prima facie case for contempt was made out.. None of the allegations in the matter against the judge were disputed or challenged. Ltd. 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. 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. V.K. obviously it would be to the benefit of the public to bring these matters into light. But if they were false. 107 108 1952 SCR 425. & anr. Mukherjea said: “The article in question is a scurrilous attack on the integrity and honesty of a judicial office.
109 The dictionary meaning of the word “scandalize” is “to utter false or malicious report of a person’s conduct”. 1987 (47) DLR 4th Series.not any law of contempt – but reasonable restrictions in the law. and the exception to it is the law of contempt. which quotes Harry Edwards. reluctantly then by Parliament. no one can offer proof for such misbehaviour except on pain of being sent to jail for contempt of court. that the cope of offence was a narrow one and second. Our Constitution makes freedom of speech and expression a fundamental right. 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 109 110 R. 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”. They must take up the matter first with the Chief Justice and await his response for a “reasonable period”.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). emphasized two things: first. This is a glaring defect in our judge-made law that needs to be remedied. 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. which is as it should be. v. 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. under the Constitution of Mauritius. if not. whilst upholding the constitutionality of the offence of scandalizing the court. and it would be absurd to say that although Article 124(4) provides for the removal of a judge for proved misbehaviour. The majority in the Court concluded that scandalizing the court was no longer compatible with the fundamental freedom of speech and expression. 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. The decision of Supreme Court in Ravichandra Iyer v. It is Bahttacharji’s case. Kopyto. And what if the Chief Justice does not respond – what after that? Their Lordships gave no answer.hopefully by the Judges themselves. to do justice without fear or favour. 1995 (5)SSC 478 39 . Therefore truth can never scandalize. Bhattacharji110 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.
the United States (a Council for disciplining federal judges in the US – judges who are appointed for life). I argue that the judiciary alone should monitor this bad behaviour through a system of self-regulation. 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. 40 . This limited system of judicial self-regulation present no constitutional dilemma as long as the removal power remains with Congress.
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