We do not fear criticism, nor do we resent it.-Lord Denning
The recent Supreme Court verdict in the Prashant Bhushan Contempt case has resuscitated debates on the law governing Contempt of Court in India. While on the one hand, it is considered a panacea to thwart attempts that may affect the integrity of the courts; on the other hand, rights activists often view it as a dampener on the freedom to exercise the right to free speech and expression in the country. The conflict between the two notions has existed since the law has found its normative application.

The approach of the courts in deciding cases involving contempt has evinced the interest of law practitioners and academicians alike. The present study aims at identifying the broad contours underlying the application of the provision while embarking on a rational analysis of the urgency to consider reforms in the mechanism.

Contempt of Court is an offence of wilful disobedience or disrespect towards a court of law and its officers in the form of conduct that opposes or challenges the court's authority, justice, and dignity. In India, the power of constitutional courts to punish for contempt enjoys constitutional sanction under Article 129 and Article 215 of the Constitution. The procedural aspects of the provision are embodied within the Contempt of Courts Act, 1971.

While under the Act, the ambit of civil contempt is limited to wilful disobedience of court orders or breach of undertakings given to a court,criminal contempt seeks to punish attempts at scandalizing the court, bringing its authority to disrepute or acts hampering due judicial process. Making discredited allegations against the judiciary or individual judges, attributing motives to judgements and judicial functioning, or launching spurious verbal attacks on the conduct of judges are usually considered as acts that scandalize the court.

Often, a significant chunk of cases charged under the Act falls within Criminal Contempt. From convicting renowned personalities who have occupied high judicial offices to prominent social activists, the imposition of criminal contempt has had a blindfolded approach in India. While such judicious approaches receive general approbation, it is also vital to ensure equitableness in judicial interpretation.

This essentially forms the basis of an upright and integrous judicial institution. Unfortunately, the recent incidents narrate quite disappointing instances of anomalies in judicial interpretation of the provision. The power has come to be visualized as an arbitrary power reposed in the judiciary, which can be used for purposes other than facilitating justice administration. As both forms of contempt have been phrased in extensive language, they often fall prey to the predilections of the judges, defeating the very purpose of the existence of such powers.

Through an amendment in 2006, truth was introduced as a defence to the charge of defamation. Albeit, with a caveat, that it can be taken as a defence only if it is raised bonafide and in "public interest.

The power of constitutional courts to punish for contempt touches upon two basic fundamental rights of citizens, the right to personal liberty under Article 21, and the right to freedom of speech and expression under Article 19. Thus, the application of the provision must rest on a delicate balance between the two conflicting interests. The Supreme Court by itself has recognized the need for restraint in invoking its powers of punishing for contempt.

In Re: S Mulgaolkar v. Unknown, the Supreme Court has maintained that the judiciary cannot be immune from fair criticism. The contempt action is to be used only when an obvious misstatement with malicious intent seeks to bring down public confidence in the courts or seeks to influence the courts. J.Beg's remark in the case is of particular importance. It was opined that at times, the judiciary may adopt a magnanimously charitable attitude even when blatantly disparaging and unfair criticism of its operations is made out of a genuine concern for improvement. The assertion essentially underlines the need for a liberal interpretation of constructive criticisms on the judiciary.

In DDA v. Skipper Construction Co., it was categorically held that only an abuse of the process of court intended to impinge the due course of judicial proceeding or the orderly administration of justice can be considered as contempt of court.

Even when major jurisdictions across the world have systematically abolished the offence of contempt of court, the obliviousness of the Indian system to reforms is particularly alarming. Though the imposition of a nominal fine on Prashant Bhushan marks a partial victory of the cause raised by the lawyer-activist, much has to be done to achieve a fair balance in the judicial approach to contempt proceedings.

The amenability to progressive standards is highly merited for upholding the dignity of the institution. As Lord Denning has rightfully remarked, 'a judge's dignity should be upheld on surer foundations than recourse to contempt of court proceedings.' A review on the contempt powers of constitutional courts in India has thus, undisputedly become the need of the hour.
 
End-Notes:

1. The Contempt of Court Act, 1971
2. Ujjaini Chatterji, Contempt, dignity, and fair criticism: What do they mean to courts, The Leaflet (Aug.18,2020), https://www.theleaflet.in/contempt-dignity-and-fair-criticism-what-do-they-mean-to-courts/#.
3. K Venkataraman, What is contempt of court?, The Hindu (Aug. 2, 2020), https://www.thehindu.com/news/national/the-hindu-explains-what-is-contempt-of-court/article32249810.ece.
4. K D Singh, Book Review, 47 JILI 582 (2005).
5. Rahul Donde, Uses and Abuses of the Potent Power of Contempt, 42 Economic & Political Weekly, 3920-3921 (2007).
6. Rituj Chopra, The Concept of the Contempt of Court, Legal Services India, http://www.legalserviceindia.com/article/l255-Contempt-of-Court.html.
7. Vinod Vyasulu, On Contempt, Contemners, and Courts, 30 Economic & Political Weekly, 2859-2860 (1995).
8. Re: S. Mulgaokar v. Unknown, (1978) 3SCC 339.
9. Gautam Raman, What is criticism and what is Contempt?, The Hindu (Aug.18, 2020), https://www.thehindu.com/opinion/op-ed/what-is-criticism-and-what-is-contempt/article32378502.ece.
10. Re: S. Mulgaokar v. Unknown, (1978) 3SCC 339.
11. DDA v. Skipper Construction, 1996 AIR 2005.
12. Joseph Minnatur, Book Review, 18 JILI 362-363 (1976).
    
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