When we read the concept of Democracy, we talk about freedom which is mainly related to having a free and independent judiciary, executive and legislative along with having some basic fundamental rights by birth. One such right that is often expressed or rather questioned is the right to freedom of speech under article 19(1)(a).

Some people at times use it for the purpose it has been given to us in a fair way while many at times it is seen that certain people question this right when it is expressed in relation to violation of other laws at hand. One such instance is the act of contempt of court wherein it is said that nothing should be said which disrespects the prestige of the court.

Now if one reads the right of freedom of speech, he/she may interpret that they have the right to say anything which they feel if understood in layman's terms but that is not the case. This research paper focuses on what the act pertains to and how other countries from where our law is taken perceive it in their own region.

Before going into the objectives or purposes of the act, I would first discuss the articles which talk about Contempt of court in our Constitution, Article 129 & 142(2) which are as follows: -

Art. 129- The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself[1]

Art. 142(2)- Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself[2]

Article 129 talks about court of record which means that the courts who are empowered under this are the ones which are given the right to keep a record of its judgements which will act as precedents over sub-ordinate courts and shall be available for an everlasting period and anything against such piece of record will amount to contempt of court. While Article 142(2) talks about that the Supreme court, which is the highest court of law in the country and wont in any way attack the attack the personal liberty of a person belonging to its territory which is India in the name of contempt of court.[3]

The History of the Act
Contempt laws are not a product of the British rule or thereafter. In earlier, medieval times, The members of the Royal family and their sub-ordinates were the utmost superior authority in a country, who were responsible for providing justice and forming the laws of the land. In such an era, if a question was raised against the ruling monarch or his associated members which included the judges and justice providers by him, it was as if, you had questioned the God himself as the monarch was considered to be the man of God. Hence punishment could be given for the said offence the by the Monarch.[4] So, in other words, the Monarch was equivalent to the Highest court of law as of today in any given country.

In Indian scenario, the Britishers introduced various contempt laws and broadened their scope. Before current act of 1971 came into existence, there were many other statutory laws that governed the offence of contempt in British-India time. To begin with, we had the Charter of 1726 which brought in the concept of having some authority to check on powers in various presidency towns. This was followed by the formation of Supreme court of Judicature in Calcutta in 1774 which was governed by the Regulation Act of 1773.

This further led to the formation of Supreme Courts in the current 3 metros of India namely Bombay, Madras (Chennai) and Calcutta along by the year 1824 under various acts and charter which were further appointed as High Courts of the country along with Allahabad under the Indian High Courts Act of 1861 which were bestowed with duty of looking after the contempt laws and the punishment in respect to the offence.

Finally in 1926, The Contempt of Court act came into existence after various legislation were passed which found flaws in the above statutes and it was recommended that the 1926 act would look after and have the laws of contempt in it and as per Section 2 of this Act, the High courts mentioned above got the recognition of the authority to punish for contempt of court to all other sub-ordinate courts.

However, the position of contempt laws wasn't settled here. There were many other princely states which did not come under the ambit of the 1926 act as they stuck to their own laws and enactments in relation to contempt and thus after various debates and post-independence, the contempt of courts act of 1952 with amendments was formed. It provided for various powers of the High Court in regard to Contempt and inclusion of various Judicial Commissioner courts within its Definition.[5]

However, the debate did not end here. In the case of B. R. Reddy vs. State of Madras it was observed by the Supreme court that by just saying the truth did not in anyway, attract a contempt of court charge on the person in question. In the following case, an editor wrote an article against a Magistrate accusing him of bribery, etc. and upon questioning did not hesitate in saying that he spoke the truth even though he did not have facts to support it.[6]
Thus Justice Mukherjee quoted in his Judgement that,

If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute.. As the appellant did not act with reasonable care and caution, he cannot be said to have acted bona fide, even if good faith can be held to be a defence at all in a proceeding for contempt.[7]

Thus following this case, many concerns were raised regarding an even broader definition of contempt of courts act especially in criminal matters which was also a point raised in this case and other constitutional changes that were brought in since the 1952 act which led to the introduction of a bill in 1960 and further the formation of the Sanyal committee. The focus on the committee was on the issue of laws regarding contempt and its punishment and on how to expand its ambit and to provide recommendation and amendments required in order to fulfil the idea of a broadened law. [8]

Based on this report and the changes further recommended by the House of Parliament, the Contempt of Courts Act 1971 was enacted which is the current legislation on matters related to Contempt laws and which divided the matters reported into two heads namely, Criminal Contempt and Civil Contempt.[9]

Two of the acts main section are Section 2 & 12 which are as follows:

Section 2- Definitions-In this Act, unless the context otherwise requires:
(b) civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;
(c) criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

1. scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
3. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;

Section 12- Punishment for contempt of court.

1. Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Explanation. ? An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
2. Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.....[10]

Objectives of the act also included leaving no ambiguity or doubts on the powers of the various High Courts in regard to punishing for the offence of contempt of court and also on what was the limit or extent till which they could use such powers.[11]

The Position of Contempt of court in UK & US

Since most of our laws have been derived from common law countries and since the Contempt of Court act has had its fair share of history with common law, the position is somewhat different in UK and US.

In UK, the case of Attorney-General v. Times Newspapers Ltd[12] changed the way the laws of contempt would be defined in the country. In the following case, restrictions were put on the newspaper agency against publishing any content regarding a drug being sold and promoted by a certain company.

The article criticized the cases that rose because of the drug and questioned the company's integrity and market position to which attorney general put unreasonable restrictions on the publication. The decision in this case by the House of Lords pointed towards the fact that such a publication was not done in the spirit of a positive cause but rather it was done to purposely decline the position of the firm and hence it was an intentional contempt and thus required proceeding under contempt of the laws by the media.[13]

Lord Reid quoted:
"The law on this subject is and must be founded entirely on public policy. It is not there to protect the private rights of parties to a litigation or prosecution…. Freedom of speech should not be limited to any greater extent than is necessary, but it cannot be allowed where there would be real prejudice to the administration of justice.[14]

In the scenario of the US, the case of Mayberry v. Pennsylvania[15] paved the way for broaden and expanded understanding of contempt laws. In the following case, Mayberry was charged with various number of violations of contempt laws as she tried to disrupt the proceedings of her case by constantly accusing the judge for his comments. On such a note, the Judge extended the proceedings and thus gave a decision which was seen as one coming out of a state of displeasure.

The US Supreme Court, however, reconsidered the case and concluded that such a judge should not be part of proceedings as the decision was one which would not be in the spirit of law and thus a different judge should decide the case and may use various tools of contempt to proceed with the charges. There were many cases based on which this case relied on while coming to a conclusion. The case however only pointed towards the tools a Judge has towards contempt proceedings and thus questioned the law makers on a clear position of Contempt of Court in the country.[16]

To conclude, in the UK, the attorney general case led to the formation of the contempt of court act of 1981 which later on in 2013 repealed the Scandalizing the Court ground as the punishment for such a contempt was prescribed in various other acts in the country. On the other the hand, in US, the Mayberry case made sure that new reforms come in for contempt proceedings and that this was subject to having to prove that the offence was beyond a reasonable doubt.[17]

Conclusion (With respect to Indian Scenario)
In India, E. M. S. Namboodiripad v. T. Narayanan Nambiyar[18] & the case of In Re. V. C. Mishra[19] reiterated the point I discussed at the start of the paper on Article 19(1)(a). The judgements said that although we do have a right to freedom of speech and carry on trade, all this is subjected to contempt laws and that violation under section of Scandalising the court in relation to pointing fingers at the judgement of judiciary and passing off comments against it, will be treated as a criminal contempt and will be subjected to contempt proceedings.

However, there is still a clear distinction that needs to be given to criminal and civil contempt as the act still lacks a certain degree of distinction. There are instances wherein, disobeying of a certain order leads to a case of civil contempt even though there was a willful conduct behind it and the persons responsible for such conduct are charged under criminal contempt.[20]

The law commission does feel a need to remove such a distinction which was part of 1971 act but feels that bringing in a further change may hamper the cases that have been decided till now under the current act and would lead to retrospectivity in many of them and thus the progression that the 1971 act brought in as against the prevailing acts before it would count as a lost cause.[21] Looking at the scenario of US and UK, what one could do is to bring in reforms and other legislation to strengthen and bring the contempt laws under the ambit of various other acts which would add up to removing this distinction in a better way.

End-Notes:

1. Article 129 In The Constitution Of India 1949 ( Indian Kanoon ) < https://indiankanoon.org/doc/927019/> accessed 15 May 2020
2. Article 142 In The Constitution Of India 1949 ( Indian Kanoon ) < https://indiankanoon.org/doc/500307/> accessed 15 May 2020
3. Amanat Raza, Contempt of Court ( iPleaders 2019) < https://blog.ipleaders.in/contempt-of-court-2/> accessed 12 May 2020
4. M.S. Dutta and A.U. Kak, Contempt of Court: Finding the Limit (2009) 2 NUJS L Rev 55
5. Law Commission Of India, Report No. 274, Review of the Contempt of Courts Act, 1971 (Limited to Section 2 of the Act) ( Law Commission of India 2018) < http://lawcommissionofindia.nic.in/reports/Report274.pdf> accessed 10 May 2020
6. All Answers ltd, Object of Law of Contempt (Lawteacher.net, May 2020) accessed 15 May 2020
7. B.R. Reddy Vs State of Madras [ Feb, 1952] AIR 1952 (SC) 149
8. H.N. Sanyal, Report of the Committee on Contempt of Courts (1963) < https://dspace.gipe.ac.in/xmlui/bitstream/handle/10973/33748/GIPE-096171.pdf?sequence=2&isAllowed=y> accessed 16 May 2020
9. Law Commission Of India, Report No. 274, Review of the Contempt of Courts Act, 1971 (Limited to Section 2 of the Act) ( Law Commission of India 2018) < http://lawcommissionofindia.nic.in/reports/Report274.pdf> accessed 10 May 2020
10. Ministry of Law, The Contempt of Courts Act, 1971 (Department of Justice 1971) accessed 10 May 2020
11. M. Rahar, ALL ABOUT CONTEMPT OF COURTS ACT, 1971 [ 2018] 1, 2
12. Attorney-General v. Times Newspapers Ltd. [1973] 3 All E.R. 54; [1973] 3 W.L.R. 298.
13. D. Maule & Z. Niu, CONTEMPT OF COURT [ 2010] EUP 27, 31
14. Contempt of Court- England & Wales in The International and Comparative Law Quarterly (eds), Contempt of Court (1st, Cambridge University Press, Cambridge 1975).
15. Mayberry v. Pennsylvania, 400 U.S. 455 (1971), (SCP)
16. Northwestern University Pritzker School of Law, Contempt [ 1971] JCL 525, 530
17. Law Commission Of India, Report No. 274, Review of the Contempt of Courts Act, 1971 (Limited to Section 2 of the Act) (Law Commission of India 2018) < http://lawcommissionofindia.nic.in/reports/Report274.pdf> accessed 10 May 2020
18. E. M. S. Namboodiripad v. T. Narayanan Nambiyar [Jul, 1970] AIR 1970 (SC )2015
19. In Re. V. C. Mishra [Mar, 1995] AIR 1995 (SC) 2348
20. B. Chand, Contempt of Court in India (1942) 40 Allahabad LJ 1
21. Law Commission Of India, Report No. 274, Review of the Contempt of Courts Act, 1971 (Limited to Section 2 of the Act) (Law Commission of India 2018) accessed 10 May 2020