India is touted as one of the greatest democracies of the world. The supremacy of the Constitution is fortified and protected by an independent judiciary. Judicial institutions have always been the sentinel on qui vive especially the constitutional courts to the rights of the people of India. In this paradigm, what will happen if The Independent Judiciary becomes despotic? Rather than guarding the rights of the people, it abridges them. This article aims at answering this question.

Contempt of court is any action which aims at defying the authority of the court, which hampers the regular working of court and interferes with the process of imparting of justice. It may include any disrespect and disregard to any judge, or judicial court, or both.

In India, it is the Constitution which provides power to courts, for their administration of justice. Article 129, Supreme Court to be a court of record- 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. Article 215, High Court shall be a court of record-Every High Court shall be a court of record and shall have the powers of such a court including the power to punish for contempt of itself.

Article 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.

The Contempt Of Court Act, 1971, defines two different types of contempt of court, one is civil contempt defined under section, 2(b) as means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court; and the other is criminal contempt defined under section, 2(c) as 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. scandalizes, or tends to scandalize, 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.

There is a limitation period for initiating contempt of court proceeding, which is defined under section 20 of the Act that is within one year from the date on which the contempt is alleged to have been committed. Section 12 defined the punishment for contempt of court as, simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.

Main Purpose Of Contempt Of Court Provision

The major the objective of the provision of contempt of court in any country is to provide a tool to the judiciary that can be used against such parties, lawyers and those people who obstruct in the proceedings of court. It is a very useful and important tool in the hands of judiciary, to ensure that the orders given by court in exercise of the power vested in them shall be obeyed and enforced.

If such a provision would not be with courts then, it would be a situation of right, without a mechanism to redress in case of breach of such right. Contempt of court is, mechanism of last resort, it is the sword in the hands of judiciary, to punish for noncompliance with its orders. There many been many instances, when the integrity and honor of the court has been disdained, and when the punishment for contempt of court was given by the judiciary.

In Delhi Judicial Service Association vs. State of Gujarat[1], the Chief Judicial Magistrate, Nadiad, Gujarat, N.L. Patel filed complaint against the police officer of Nadiad, for delaying the process of judicial proceedings as he was not co-operating with the court. The CJM was then Assaulted, arrested on flimsy grounds, handcuffed, tied with rope, photographs taken and published by Police Officers.

The Supreme Court took this matter very seriously as it involved the matter of public importance and huge disregard to judiciary. Supreme Court awarded Police officer with the imprisonment of 6 months and fine of 2000 rupees for criminal contempt of court and ordered removal of the police officer and also issued some guidelines while making an arrest of a judicial officer.

Even the speaker of the State Assembly may be ordered to be produced before the court for contempt.[2]  Under section 12 of the Contempt Of Court Act, the proviso states, the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. It is upon the satisfaction of the court whether to accept the apology or not.

In L.D. Jaikwal v. State of U.P[3], it has been observed that, We do not think that merely because the appellant has tendered his apology we should set aside the sentence and allow him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making the grossest imputations against him has to do, is to go ahead and scandalize him, and later on tender a formal empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule, and not as an exception, we would in fact be virtually issuing a license to scandalize courts and commit contempt of court with impunity.

Exceeding The Contours Of Power Contempt Of Court

As ideal it sounds, the provision of contempt of court has been has been heavily misused by The Independent Judiciary. In a large democracy as India, citizens should not only have the right to freely criticize government or the Parliament but judiciary too.

Contempt of court is a power with judiciary to protect certain interest, but in recent times it has been used by judiciary to curtail the right and more specifically voice of people. Article 19(1)(a) provides right to freedom of speech and expression to all citizens, it is not absolute right, under Article 19(2) reasonable restriction includes contempt of court.

This tool of contempt of court is unjustly used by the judiciary to curb the freedom of speech and expression of citizens. Although section 5 of the Contempt Of Court Act, 1971 provides for Fair Criticism of judicial act not contempt but, in reality how far such Fair Criticism can be considered as contempt or not, is in hands of judiciary itself, and no person gives away their own interest. At the end judges are also individuals, and are not free from personal feelings and bias, even every judgment differs from different judge to judge, while using a tool especially carved for them, their feelings intervene. There have been many cases wherein, judges just to avenge their own personal dissatisfaction, applies contempt of court.

In P.N. Duda vs. V. P. Shiv Shankar & Others[4], the Supreme Court observed that the provision of contempt of court should not be used by judges to uphold their own dignity. In a free democracy, as India, ideas, criticisms about the judicial system or the judges should be welcomed, so long as criticisms do not impair or hamper the administration of justice. Disapproving of the tendency among judges to treat even technical violations or unintended acts as contempt, a bench headed by Justice R V Raveendran said:
It is possible that it is done to uphold the majesty of courts, and to command respect. But judges, like everyone else, will have to earn respect. They cannot demand respect by demonstration of power (of contempt).[5]

The power of contempt of court is not to avenge, vengeance is justice gone wild.

In Supreme Court Bar Association v. Union of India[6], In an earlier case the Supreme Court found Vinay Chandra Mishra, an Advocate, guilty of committing criminal contempt of court for having interfered with and obstructing the course of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language. The Supreme Court invoked its power under article 129 read with article 142 of the Constitution and awarded the condemner a suspended sentence of imprisonment together with suspension of his practice as an advocate.

The punishment awarded, suspension of license of the advocate was not valid punishment as of contempt of court. The Supreme Court cannot in exercise of its jurisdiction under article 142 read with article 129 of the Constitution, while punishing a condemner for committing contempt of court, also impose a punishment of suspending his license to practice, where the condemner happens to be an Advocate.

Court exceeded its power under contempt of court, which is not Judicial Activism rather Judicial Overreach. The line between judicial activism and judicial overreach is very thin, and contempt of court is a grey area where this line is easily crossed by judges.

It is an area of thought for the judiciary, whether contempt of court as a law should be used a frequently as it is used now and should it be used a revenge mechanism by judges or a tool protection court’s authority. To quote US Supreme Court Chief Justice John Marshall, who had warned two centuries ago that the power of Judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man".

End-Notes:

1. Judicial Service Association v. State of Gujarat AIR 1991 SC 2176, 406 (1991)
2. I. Manilal Singh v. H. Borobabu Singh, Supp (1) SCC 718: AIR 1994 SC, 505 (1994)
3. L.D. Jaikwal v. State of U.P  AIR 1374, SCR, 833 (1984)
4. P.N. Duda vs. V. P. Shiv Shankar & Others AIR 1208, SCR (3) 547 (1988)
5. Satya Prakash, Don’t Misuse Contempt Law, say SC, The Hindustan Times (Jun 11, 2007), www.hindustantimes.com/india
6. Supreme Court Bar Association v. Union of India AIR 1998 SC 1895: 1998 (2) SCALE 745: (1998) 4 SCC 409: (1998) 2 SCR 795

Written By: Divyanshi Maheshwari: B.A. LLB Specialization in Energy Laws, Third year : University Of Petroleum And Energy Studies, Dehradun (UPES)