Section 2(c)(i) of the Contempt of Courts Act and the plethora of dilemmas revolving recent judicial developments – An Outdated Provision in a changing legal system?

By Rachana Marda, Intern, Law Student, Symbiosis Law School Pune

Contempt is the legal recognition of disregard. Contempt of Court was recognized as a cardinal principle of rule of law by the framers of the constitution to maintain the dignity of the judiciary in a democratic set up. It came into existence through the English law in 1883 wherein the Privy Council held that Chartered High Courts in India have summary jurisdiction to commit for the offence of contempt for scandalizing courts or their judges. As per Article 129 and 215 of the Constitution of India, the Supreme Court and High Court of States respectively have been empowered to punish people for their contempt.

Contempt of Court then received legal identification under the statutory provision under Contempt of Court Act, 1926 which was then repealed and replaced with a more comprehensive legislation in 1952, in 1971 since the earlier legislations did not define “contempt” and contemporary version of “scandalous” and most recently in 2006 to include truth and good faith as a defense considering the moto of the judiciary in the country was “Satyameva Jayate” which was due since 1971. The definition of contempt of court is exhaustive and can be broadly interpreted by the courts. The significance of contempt power is to enable the functioning of the court without fear and effectively and not to protect the dignity of individual judges. 

The right to free expression and speech are envisaged in Article19(1) (a) of Constitution of India specifying the right to hold and express opinions and ideas subject however the provisions under Section 2(c)(i) of Contempt of Court Act, 1971 that makes the publishing of criticism of judiciary that scandalises it or tends to lower its authority is a criminal contempt. In Ambard v. Att Gen of Trinidad and Tobago, [1] Lord Atkin while considering a contempt case wherein two different judgement given by the court in two similar case facts were criticised in a newspaper observed that: 

“But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticizing, in good faith, in private or public, the public act done in the seat of Justice. The path of criticism is . a public way: the wrong-headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of Justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of Justice, they are immune, Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary man.”

Jordon C.J in Ex-P Bread Manufacturers Ltd; Re Truth & Sportsman Ltd.[2] took the view that in matters of contempt the Court has to balance two public interests, freedom of speech and expression in matters of public interest and concern in one hand and public interest in preventing the incorrect influence on litigants or cause prejudice in the administration of justice due to publication of opinions. Further in a case Sunday Times v. U.K[3] where matters were taken to the European Court of Human Rights claiming breach of articles wherein the House of Lords:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of order, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 

Justice Mukherjea in the Bathina Ramakrishna Reddy v. The State of Madras [4] stated that there are two primary considerations while taking into account scandalization, first, the reflection on the conduct or character of the judge is within the limits of fair and reasonable criticism and Second, whether it is a mere libel or defamation of the judge or amounts to a contempt of court. If it was prima facie an inculcated defamatory attack that does not interfere with due course of justice, then contempt cannot be claimed.

Recently, a plea has been moved in the apex court challenging the constitutionality of Section (c)(i) [5] of the Contempt of Court Act, 1972 by Senior Journalist N Ram, former Union Minister Arun Shourie and Advocate Prashant Bhushan. The provision violates the right to free speech when it is not covered under the reasonable restrictions under Article 19(2) of the Constitution as it would be highly vague and disproportionate, the petition states. It is contended that “scandalising the court” cannot be said to be covered under the ground of “contempt of court” under Article 19(2).

The Supreme Court in the case of Shreya Singhal v. Union of India [6] had struck down Section 66A [7] of the Information Technology Act as it was violative of Article 19(1)(a). The Court observed that information may be grossly offensive, which may cause annoyance or inconvenience but these terms are undefined and would blanket a large amount of protected and innocent speech. The U.S Courts have repeatedly held which was reiterated in Shreya Singhal’s Case that a Section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable [8]. The Court held that the prohibition against the dissemination of information by means of a computer resource or a communication device intended to cause annoyance, inconvenience or insult did not fall within any reasonable exceptions to the exercise of the right to freedom of expression.

The petition was filed in light of the two contempt cases filed against Advocate Prashant Bhushan first for his interview with a magazine and second his tweet against the CJI. It is contended that such a clause does not belong in a democracy and it outright arbitrary and a violation of Article 14 and fails the test of proportionality laid down in the KS Puttuswamy case. Over 130 dignitaries, former Supreme Court Judge Justice M B Lokur and even Arundhati Roy has urged the Court to reconsider and withdraw the Suo Moto contempt proceedings. 

“By criminalising criticism of the court in sweeping and absolute terms, the impugned sub-section raises a prior restraint on speech on matters of public and political importance,” the petition said. Criminal defamation needs to go while civil defamation laws need to be strengthened. 

Furthermore, the contempt of court rulings have been very extreme for example in P N Dua v. P Shiv Shankar [9], the accused was not found guilty of scandalising when it mentioned that Supreme Court judges to be antisocial elements i.e FERA violators, bride burners and other such defamatory comments but in D.C Saxena v. CJI [10], the accused was found guilty for alleging that CJI was corrupt.

In countries like U.S, U.K, Australia contempt either does not exists or exists to the extent of disobedience of court or disrespect of judicial process. Not all criticism amounts to contempt of court. The very fact that criticism is defended with contempt is problematic. A democratic state requires transparency at all levels. When the judiciary is questioned it should be able to defend itself with facts to instigate rational thinking and not get offended and manifest contempt to silence criticism. 

While it is intended that there should be freedom of speech and expression, it is also intended that in exercise of the right, contempt of court shall not be committed. Freedom of speech and expression, observed the court, will always prevail except where contempt is manifest, mischievous or substantial. The question always is on which side of the line the case falls.  It is imperative to realise that that India is a democratic nation and people are supreme. Most of our contempt law is an inheritance from British law. But under British rule India was not free and democratic. There was no Constitution containing rights and freedoms like the provisions such as Article 19(l)(a). How then can a law criminalising the same can still be applicable today? 

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References :

[1] (1936) A.C.322 (P.C)

[2] (1937) 37 S.R (N.S.W) 242

[3] (1979)2 E.H.R.R. 245

[4] 1952 SCR 425

[5] 2.(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— (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court

[6] (2013) 12 SCC 73

[7] Section 66A: “any person who sends, by means of a computer resource or a communication device, – (a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine”.

[8] Musser v. Utah (92)L. Ed. 562

[9]  1988 AIR 1208

[10] 1996 SCC (7) 216

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