ABOUT THE AUTHOR
This article has been written by Shambhavi Kant, a Law student at
Rajiv Gandhi National University of Law, Patiala.
Recently, advocate Prashant Bhushan was found to be guilty of contempt of Court. The supreme court of India instituted “suo motto proceedings” against the advocate for his tweets and held that the remarks made by Mr Bhushan amount to contempt of court. This raised various questions regarding the concept of freedom of speech and contempt of court. Our constitution grants certain rights to the citizens of India. It grants the freedom of speech and expression to the citizens of India. However, it is not an absolute right. It is subject to certain restrictions. Contempt of court is an offense committed by a person who, by way of any disparaging or defamatory statement, tries to lower the authority of the judicial institution. The article intents to, analyze the concept of contempt of court.
RATIONALE BEHIND THE CONCEPT OF CONTEMPT OF COURT
Concept of court is a concept that attempts to protect judicial institutes from aggravated attacks and gratuitous denunciation. The underlying principle behind the offence is the susceptibility of such a statement to cause harm to the authority and prestige of the judicial institutes, along with the stature of the judges. Such statements are capable of undermining the position of judges and judicial institutions in the eyes of the public at large.
CONTEMPT OF COURT IN INDIA
India’s contempt law is based on the “monarchical legal system of England”. In England, initially, this principle was there to protect the judicial power of the King. Later on, the king started delegating his powers to the judges. Any attack on the “authority and integrity of the judiciary” was considered to be equivalent in seriousness to an attack on the king’s intelligence.
Article 129 of the Indian constitution empowers the Supreme Court, to punish a person for contempt. Similarly, the constitution, under Article 215, confers the same power on high courts as well. The Contempt of Court Act, 1971 is the primary legal framework that regulates the laws regarding contempt of courts in India. The report submitted by the “Sanyal Committee” resulted in the formation of this act. The act divides contempt into two categories, which are
· Civil contempt
· Criminal contempt
Civil contempt deals with any intentional noncompliance with any order of a court. It is committed when a person intentionally disobeys an order or judgment of the court.
On the order hand, Criminal contempt refers to any act which “scandalizes the court” or “prejudices any judicial proceeding” or “interferes with the administration of justice”.[i]
THE PRINCIPLE OF “SCANDALISING THE COURT”
On 14th August 2020, the apex court in its judgment, held Mr. Bhusham guilty of criminal contempt for his tweets. This raised various questions regarding “fair criticism” and the concept of scandalizing the court.
The Contempt of Courts Act, 1971 doesn’t define the phrase “scandalizing the court”. In the absence of any proper definition, the phrase is generally interpreted as any intentional act that lowers or tries to lower the “integrity and ability” of judicial institutes or of any judge. Any remark or statement which is not done with the intention of demeaning the judiciary or the judges will not be considered to be contempt. A fair criticism of any judicial art or the judiciary is allowed.
However, it is very difficult to determine whether a statement would be considered as fair criticism or not. Fair criticism is a subjective term; there is no clear understanding of what amounts to fair criticism. It is at the discretion of the court to decide whether the said act or remark amounts to fair criticism or it is done with an intention to scandalize the court.
In 2018, the “Law Commission of India” in its report said that there is no need to for any amendments in the Contempt of Courts Act, 1971. It also recommended that any amendment to section 2(c) of the act would not be in the best interest of the general public.
The necessity of a law, which acts as a deterrent, against any act done with the intention of causing obstruction in the administration of justice can’t be denied. However, without an appropriate definition, it is very difficult to determine up to what extent can a person criticism a judicial action or an institute and in what manner. It is necessary to limit the scope of the phase scandalizing a court, as the current interpretation provides a wide scope. The integrity and ability of judicial institutions and courts should be based exclusively on the righteousness of the judgments. Any criticism that is made in good faith, without any malicious intention to demean a court or causing obstruction in the administration of justice should be allowed.
There is a need to revisit the concept of contempt of court. The “Prashant Bhushan “case provides ample evidence for the same. A tweet on a social networking platform is being considered to be contempt creates a high possibility that people might fear voicing their views and opinions against a judge, a court, or any judicial action. A person might believe that a criminal proceeding can be initiated against him even if he didn’t have any malicious intention. The absence of any clear point of distinction between fair criticism and scandalous comments discourages people to raise their voices because of the fear of proceedings. In a democracy, a person has the ability to criticize, raise queries and ask questions, however, the current law places an unreasonable restriction on a person’s freedom of speech because of an extreme action that can be taken against a person. Opposing views that are raised in good faith should be encouraged. Therefore, it is necessary to make certain amendments in present laws that govern the concept of contempt of court.
[i] The Contempt of Courts Act, 1971, S 2(c).