Understanding criminal contempt of court

Tracing the development of criminal contempt in India

Section 2(c) of The Contempt of Court Act, 1971 states: “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which -(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or; (ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or; (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Section 5 states: "Fair criticism of judicial act not contempt".— a person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided.

The contempt power of courts has been mainly traced back to the power of sovereign i.e. the king. Courts, in ancient times were the actors of the sovereign and thus going again the court, scandalising the court, disobeying the court was tantamount to going against the king, scandalising the king, disobeying the king and so forth. The power of contempt was instituted in the institution itself. Thus to punish those who did so, contempt of courts was established as a legal philosophy. Lord Clyde, in Johnson v. Grant (1923 SC at 790), explained: “The offence consists in interfering with the administration of law; in impending and perverting the course of justice… It is not the dignity of the court which is offended – it is the fundamental supremacy of the law which is challenged".

In India, after the regulating act of 1773, mayor’s court at Calcutta was replaced by Supreme Court of Judicature at Fort Williams, Calcutta and mayor’s courts of Madras and Bombay were replaced by courts of record, which subsequently were replaced by supreme courts under government of India act, 1800. In various judgements, it was affirmed that courts of record have the ‘summary power’ to punish for their contempt. The Contempt of court act, 1926 was the first statute in India regarding contempt, and provided that high courts have the power to punish for their own contempt and those of subordinate courts too. In 1961, under the chairmanship of then ASG H. N. Sanyal a committee was formed to consolidate and change the law regarding contempt. After deliberations, the contempt of courts act 1971 was enacted that defined contempt as ‘civil’ and ‘criminal’ even though this distinction has been called artificial by many. It is important to note that these subsequent acts did not ‘confer’ the contempt power onto the courts of record, but merely ‘defined the limits’ or ‘restricted’ the contempt power. 

The courts also trace their contempt power under the constitution. Article 129 established the Supreme Court as a court of record and gives it the power to punish for its contempt. Article 142 also confers similar powers onto the apex court. However what is the true origin of the contempt of court is an interesting juridical question. The common law case cited as the foundation of contempt of court is R v. Almon, in which Justice Wilmot said (regarding contempt of court) “And whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any obstruction whatsoever, not for the sake of the Judges as private individuals but because they are the channels by which the King’s justice is conveyed to the people”. What is interesting in that this judgment was never delivered due to some technical issues, and thus Justice Wilmot’s remarks were later published separately. The law of contempt is essentially concerned with interference with the administration of justice. It was clearly defined by Lord Diplock in a relatively modern case in the following way: “Although criminal contempt of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is attempting to administer it". Halsbury’s Law of England defining “contempt of court” states: “Any act done or writing published which is calculated to bring a court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court, is a contempt of court. Any episode in the administration of justice may, however be publicly or privately criticised, provided that the criticism is fair and temperate and made in good faith. The absence of any intention to refer to a court is a material point in favour of a person alleged to be in contempt.”

Contempt and other rights

The Law commission in its 2018 paper on contempt of court argued, "A powerful judicial system is a condition precedent sine qua non for a healthy democracy. If browbeating the court, flagrant violation of professional ethics and uncultured conduct is tolerated that would result in ultimate destruction of a system without which no democracy can survive. When there is deliberate attempt to scandalise the court, it shakes the confidence of the litigant public in the system, the damage is caused to the fair name of the judiciary. If a litigant or a lawyer is permitted to malign a Judge with a view to get a favourable order, administration of justice would become a casualty and the rule of law could receive a setback. The judge has to act without any fear thus no one can be allowed to terrorise or intimidate the judges with a view to secure orders of one’s choice. In no civilised system of administration of justice, this can be permitted".

However the juridical question of when did the source of contempt power transfer from the sovereign i.e. the king to lie inherently within the institution of courts has still not been coherently answered. Moreover, since we no longer live under kings, and live in a democracy, the courts do derive their power from the people and in some sense they should also be answerable to people and their criticism. Silencing the criticism of the people does appear devoid of logic. Ronald Goldfarb in his paper argues against contempt with respect to an American ethos when he says, “The American ideology is one based upon recognition of the rights and liberties of the individual. This concept was ensured by the architects of our government when they created this republic, one in which all men are, at least philosophically, sovereign, while government is but the vehicle of their sovereignty. The manifestation of this dream was encouraged by bitter memories of monarchical experience-the hope for individual liberation. How can it then be that man can be contumacious to a sovereign which is, theoretically at least, the ultimate extension of himself; or inversely, should government, created by, of, and for man be allowed to punish the exercise of the will of its constituent self?”

The Supreme Court of Canada, like the European Court on Human Rights, set out the crux of the issue as being whether a restriction on freedom of expression was “necessary in a democratic society”. Lamer J stated: [T]he common law must be adapted so as to require a consideration of both the objectives of the publication ban, and the proportionality of the ban to its effect on protected Charter rights. The modified rule may be stated as follows: A publication ban should only be ordered when: (a) Such ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) The salutary effects of the publication ban outweigh the deleterious effects to freedom of expression of those affected by the ban. Closer home, in India the issue of reforming contempt law is a tricky one. Since the courts derive their power of contempt from the constitution (which does not specifically limit the right or defines its contours), abolishing or amending any other legislation cannot take away this inherent power in courts. The Sanyal Committee did, however, proceed on the assumption that no major reforms in the law of contempt could take place because the constitutionally guaranteed power of contempt of the High Courts and Supreme Court could not be taken away by legislation. A constitutional amendment was necessary. Moreover, the Act does not recognise one of the basic principles of natural justice, viz, nemo debet esse judex in propia causa, i.e, no man shall be a judge in his own cause. Thus, in contempt proceedings, the court arrogates to itself the powers of a judge, jury and executioner which often leads to perverse outcomes. Truth as a defence was added as late as 2006 and it still is not an absolute defence as it is caveated by if that truth is in ‘public interest’.

Gautam Bhatia in his blog defines the inherent faulty logic behind contempt as, “if people are allowed to criticise state institutions in derogatory terms, then they can influence their fellow-citizens who, in turn, will lose respect for those institutions. Consequently, the authority of those institutions will be diminished, and they will be unable to effectively perform their functions. Hence, we prevent that eventuality by prohibiting certain forms of speech when it concerns the functioning of the government (seditious libel) or the Courts (scandalising the Court). This, of course, often ties the judges into knots, in determining the exact boundary between strident – but legitimate – criticism, and sedition/scandalising the Court. The assumption implicit in this – that the people need to be protected from certain forms of speech, because they are incompetent at making up their own minds, in a reasonable manner, about it is highly paternalistic and problematic”.

Lord Pannick in Dhoorika v Public Prosecutor (Supreme court of Mauritius) opined as to why the provision of ‘scandalising the court” should be abolished by arguing - First, the crime is based on dubious assumptions as to its necessity; for example that if confidence in the judiciary is so low that statements by critics would resonate with the public, such confidence is not going to be restored by a criminal prosecution in which judges find the comments to be scandalous or in which the defendant apologises. Second, the existence of the offence will deter people from speaking out on perceived judicial errors and freedom of expression helps to expose error and injustice and promotes debate on issues of public importance. Third, the modern offence recognises that some criticism of the judiciary is lawful. Fourth, where criticism deserves a response, there are other methods of answering it. Similar reasoning was given in the 2012 UK law commission report that abolished the provision of ‘scandalising the court’ as contempt of court. The Australian High Court has gone so far as to rule in 1992 that, in the words of Chief Justice Mason, “So long as the defendant is genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice he or she is immune”. All these attempts at reform cannot just be considered in analytic isolation. They arise out of an explicitly stated and otherwise implicit understanding of each of the reformers in respect of what they believe to be the actual needs of the judiciary in the context of the reliability of the press in that society. It is for this reason that while the ideas put forward in many of these proposals should be considered by courts and policy makers in India, they do not necessarily admit of a simple and easy transplant from one jurisdiction and society into another.

Conclusion 

The power of criminal contempt of court suffers from a self confirming bias. In the Indian Law commission report, the number of convictions under the provision was treated as evidence for the continuance for the same law. This logic is inherently flawed. Imagine a law that punishes people for saying the phrase 'Indian can do better'. Assuming there are enough dissatisfied people in India who say this phrase in public quite often, such a provision will lead to many convictions. But trying to find the validity of any such law in the number of convictions itself is a self affirming logic. "This law is valid because this generates many convictions" is not the standard by which we judge the validity of any law. This does not analyze the attributes of law inter alia - the fairness, reasonableness or justness of the law. Thus to break away from this faulty logic, we have to accept and treat citizens as autonomous individuals who can decide for themselves and have the right to a free exchange of ideas.