Contempt of Court

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This article is based on “Scandalising as contempt” which was published in The Hindu on
27/07/2020. It talks about the arguments, in favour and against, for retaining Contempt of
Court law in India.

Recently, the Supreme Court of India initiated the proceedings for criminal contempt of
court against lawyer-activist Prashant Bhushan. The contempt charges were lodged in the
context of the comment made on social media, targeting the current Chief Justice of India.

The contempt power is needed to punish wilful disobedience to court orders (civil
contempt), as well as interference in the administration of justice and overt threats to
judges.

The reason why the concept of contempt exists is to insulate the institution from unfair
criticism and prevent a fall in the judiciary’s reputation in the public eye.

However, this raises the dilemma between the part of contempt law that criminalises
anything that “scandalises or tends to scandalise” the judiciary and freedom of speech and
expression (under the article 19), especially in the era of social media.

Thus, the current issue has once again brought under focus on the need for reviewing the
law on Contempt of Courts.

Note:

Contempt of Court refers to the offence of showing disrespect to the dignity or

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 The Contempt of Court Act, 1971, outlines the procedure in relation to investigation
and punishment for contempt.
The Act divides contempt into civil and criminal contempt.
Civil contempt refers to the willful disobedience of an order of any court.
Criminal contempt includes any act or publication which:
Scandalises the court,
Prejudices any judicial proceeding
Interferes with the administration of justice in any other manner.
‘Scandalising the Court’ broadly refers to statements or publications which have the
effect of undermining public confidence in the judiciary.

Arguments Against
Against Civil Liberties: A law for criminal contempt gets in conflict with India’s
democratic system which recognises freedom of speech and expression as a
fundamental right.
In this manner, the judiciary draws resemblance with the executive, in using
laws for a chilling effect on freedom of speech.
Former Justice of Supreme Court, V.R. Krishna Iyer, famously termed the law
of contempt as “having a vague and wandering jurisdiction, with uncertain
boundaries; contempt law, regardless of the public good, may unwittingly
trample upon civil liberties”.
Wide Scope of Contempt: The definition of criminal contempt in India is
extremely wide, and can be easily invoked. Also, suo motu powers of the Court to
initiate such proceedings only serve to complicate matters.
Further, the Contempt of Courts Act was amended in 2006, to add truth and
good faith as valid defences for contempt, but they are seldom entertained by
the judiciary.
International Disuse of Contempt Doctrine: Already, contempt has practically
become obsolete in foreign democracies, with jurisdictions recognising that it is an
archaic law. For example:
England abolished the offence of “scandalising the court” in 2013.
Canada ties its test for contempt to real, substantial and immediate dangers to
the administration.
American courts also no longer use the law of contempt in response to
comments on judges or legal matters.

Arguments in Favour

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 High Number of Contempt Cases: There still exists a high number of civil and
criminal contempt cases pending in various High Courts and the Supreme Court.
The high number of cases justify the continuing relevance of the contempt of
court law.
Affecting Judiciary’s Reputation: Amendment in the definition of contempt may
reduce the overall impact of the law and lessen the respect that people have for courts
and their authority and functioning.
Also by abolishing the offence in India would leave a legislative gap.
Constitutional Source of Contempt Power: Supreme Court and High Courts
derive their contempt powers from the Constitution. The Contempt of Court Act,
1971, Act only outlines the procedure in relation to investigation and punishment for
contempt.
Therefore, deletion of the offence from the Act will not impact the inherent
constitutional powers of the superior courts to punish anyone for its contempt.
These powers will continue to remain, independent of the 1971 Act.
Impact on Subordinate Courts: The Constitution allows superior courts to
punish for their contempt. The Contempt of Court Act additionally allows the High
Court to punish for contempt of subordinate courts.
Thus, if the definition of contempt is removed, subordinate courts will suffer as
there will be no remedy to address cases of their contempt.
Adequate Safeguards: The Commission noted that there are several safeguards
built into the Act to protect against its misuse.
For instance, the Act contains provisions which lay down cases that do not
amount to contempt and cases where contempt is not punishable.
These provisions suggest that the courts will not prosecute all cases of
contempt.

Conclusion
The Law Commission of India held that there is a need to retain the provision
regarding the contempt of courts. However, it also recommended the definition of
contempt in the Contempt of Court Act should be restricted to civil contempt, i.e., willful
disobedience of judgments of the court.

Further, in the era of social media, besides the need to revisit the law on criminal
contempt, even the test for contempt needs to be evaluated.

Drishti Mains Question

“Judiciary in India should not really be expanding its time and energy invoking its power
to punish for contempt of itself”. Critically analyze.

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 Watch Video At:

https://youtu.be/V7IQLf3A0X0

This editorial is based on “House Vs Court” which was published in The Indian Express on
July 27th, 2020. Now watch this on our Youtube Channel.

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