Dr S. Saraswathi
Controversies over the contempt of court law will go on irrespective of the final scene in the Supreme Court in the Prashant Bhushan case. For, the case has raised the crucial question of the need for a relook into the law, which is more important than the proceedings of this particular case.
If there is a law, courts have to apply the law and judge according to the merits of the case. Lay public can debate whether such a law in relevant today, and if considered necessary, review the details and provide suggestions for amendments to make it specific, clearer, and appropriate to our times. Bhushan may be doing a service in reopening the debate.
Contempt of court is the offence of being disobedient to or disrespectful towards a court of law and its officers by behaviour that opposes or defies the authority, justice, and dignity of the court. Same behaviour towards a legislative body is treated as contempt of Parliament.
Law of contempt may be traced to ancient kingdoms and treatises like Arthashastra; but in its present form, it is rooted in a common perception of holding justice, judges, and judicial institutions beyond reproach. The law is intended to prevent indignities to a court of justice and to maintain and uphold the dignity and respect of courts in the eyes of the public.
Public confidence and trust in courts is very important for the justice system. Justice Marshall has elucidated this in the US by his observation that the “power of judiciary lies neither in deciding cases, nor in imposing sentences, nor in giving punishments for its contempt, but in the trust, confidence and faith of the general public”.It is this trust and confidence that is targeted in contempt cases.
Contempt of court is different from criminal defamation increasingly occurring today which can be initiated by an aggrieved person against the accused. Contempt of court can be initiated suo motu by the Supreme Court or any high court or on a motion by Advocate-General/Law Officers or on a reference made to High Court by a subordinate court.
Article 129 of the Constitution provides powers to the Supreme Court to punish an offence aimed at tarnishing its image. The victim is the judge. Similar power is given to High Courts under Article 215. Article 142(2) grants the Supreme Court power to issue any order for securing the attendance of any person or discovery and production of any documents, or investigation or punishment of any contempt of itself. Contempt law has its roots in the Constitution itself.
In India, there is a specific Contempt of Court Act of 1971, which recognises three types of contempt. Civil contempt is disobedience to any judgement, decree, direction, or order of a court. Criminal contempt is publication of any matter which scandalises or lowers the authority of any court, or interferes in due course of judicial proceedings, or obstructs administration of justice in any other manner. Even if the publication tends to scandalise, or interfere, or obstruct judicial process, it may be treated as contempt
of court.
The first Contempt of Courts Act was passed in India during British rule in 1926 and was amended in 1937. After independence, the first contempt law was adopted in 1952. The existing Act was made in 1971 and amended in 2006 which accepts truth as a valid defence if made in public interest. The preamble to the 1971 Act is clear that it is not the dignity of individual judges that the Act seeks to protect, but the administration of justice and judicial proceedings. Rendering justice is always respected as a sacred responsibility.
The Law Commission’s Review on Amendment to Contempt of Court Act in its 274th Report in 2018 refers to the constitutional provisions and has declared that any amendment to the law will not impact the power of the SC to punish for contempt of court as these powers are independent of statutory provisions. A relook into the law is needed to protect freedom and prevent scandal. —-INFA
The writer is a former director, ICSSR, New Delhi.