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  • Anchal

AN OVERVIEW ON CONTEMPT OF COURT ACT

Updated: Jan 16

Author: Anchal,

Chanakya National Law University, Patna


INTRODUCTION

In India, contempt of court, also known as "contempt," is classified into two types: civil and criminal. Contempt of court is any act that is disrespectful to the authority, justice, or dignity of a court.

In a statute: The Contempt of Courts Act, 1971, Parliament established the definition and cases that would be considered contempt.[i] The same stops judges with power from misusing their power and punishing any person who condemns the judiciary or the court of law. Yet, contempt of court has a tumultuous history, where judges had frequently used it as a weapon, as we will see in a moment. Importantly, in India, lower courts do not have the authority to sentence anybody for contempt; only the high courts do.


STATUTORY DEFINITION

The Civil and Criminal Contempt of Courts Act of 1971 (hereafter "the 1971 Act") defines civil and criminal contempt.

Civil contempt is defined as “willful disobedience to any judgment, decree, direction, order, writ or other processes of a court or wilful breach of an undertaking given to a court.”[ii] As a result, anybody who willfully disobeys a court's direction or process will be charged with contempt of court.

On the other hand, criminal contempt is held to a higher standard. “The publishing (whether by words, spoken or written, or by signs, or by visual representations, or otherwise) of anything or the performance of any other act whatever” is defined in the 1971 Act.

  1. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

  2. Interferes or threatens to interfere with the administration of justice, or obstructs or threatens to obstruct the administration of justice in any other way.

  3. scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or[iii]

As a result, criminal contempt entails not only disobeying a court order, but also scandalizing, prejudicing, undermining, or interfering with the authorities and the administration of justice.


HISTORICAL BACKDROP

Contempt of court is a long-standing practice in India, going back to the British Raj. The colonial government granted the ability to sentence contemnors to "tribunals of record," which were courts where the proceedings were documented, generally high courts.

The Contempt of Courts Act, 1926, was a significant piece of law governing contempt of court during British Raj System.[iv] The high courts were specifically given permission by this act to penalize persons for contempt of lower courts.

The Indian Constitution acknowledged the Supreme Court’s and several high court’s authority to punish persons or lower courts for contempt after India gained independence from the British. More important, Article 19 of the Constitution of India recognizes contempt as an exception to free speech:

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause […] in relation to contempt of court…”[v]


OVERVIEW OF THE NEW CONTEMPT OF COURT ACT

Contempt of Courts (Amendment) Act, 2006:

The Contempt of Courts (Amendment) Act, 2006 updated the 1971 statute to add the defense of truth under Section 13 of the original legislation.

The amendment also states that the court must allow "justification by truth as a valid defense if it is satisfied that it is in the public interest and the request for invoking the said defense is bonafide." Section 13 already limited the court's powers by stating that they could not hold anyone in contempt unless it would substantially interfere with the due process of justice.


CONSTITUTIONAL BACKGROUND

Article 142(2): It allows the SC to conduct investigate and punish any person for its contempt.

Article 215: This Article grants every High Court the power to punish for contempt of itself.

Article 129: Under Grants Supreme Court the power to punish for contempt of itself.

The Government of India entrusted the Law Commission of India in March 2018 with revisiting Section 2 of the Contempt of Courts Act 1971, which defines contempt. The Commission was requested to look at a suggestion that claimed contempt of court should be restricted to civil contempt, or disobedience of court orders, and not include the crime of “scandalizing the court,” or criminal contempt. The Commission suggested that the charge of 'criminal contempt' be retained in India, citing the fact that it is still regularly used in Indian courts, unlike in other nations where offences like 'scandalizing the court' have become obsolete. The Commission also said that courts had inherent power to punish contempt, which would continue to exist even if the Act was changed or repealed entirely.

A court has the inherent power to penalize anybody who obstructs the normal functioning of the legal system in any way. “In applying the law of contempt of court a balance should be made between the freedom of expression and the need to maintain the authority of the court” [vi]

Justice Dr Quazi Reza-ul Hoque and Justice ABM Altaf Hossain of the High Court Division imposed rule on the authorities involved, requesting them to explain the reason for inserting the eight provisions of the Contempt of Court Act, 2013 should not be considered ultra vires of the Constitution.


LAWS RELATING TO CONTEMPT OF COURT

  • Article 129 of the Constitution provides power to SC to punish for its contempt.

  • Article 215 of the Constitution provides power to HC to punish for its contempt.

  • Section 2(b) states civil contempt and Section 2(c) states criminal contempt.

  • The power to punish for contempt rests with the Judges under the Contempt of Courts Act, 1971.

This statute was enacted in an era when submissive deference for authority was the norm, but things have changed dramatically now that there is a human rights network defending individual civil freedoms and holding institutions of power accountable.


CONTROVERSIES

Kunal Kamra Case

Kunal Kamra was charged with criminal contempt for his tweets criticizing the Chief Justice of India and the Supreme Court of India. The Indian stand-up comedian Kunal Kamra, on the other hand, has refused to apologies for his comments.

Even in 2017, comedian Kunal Kamra made fun of university students by making anti-national jokes. The Attorney General of India recently agreed to continue with contempt of court charges against Kunal Kamra. Some of his tweets that sparked debate and were deemed to be in contempt of the Supreme Court were:

  • “The Supreme Court of this country is the most Supreme joke of this country.

  • Given the speed with which the Supreme Court handles "National Interests" cases, it's time to swap Mahatma Gandhi's portrait for Harish Salve's.

  • DY Chandrachud is a flight attendant who serves champagne to first-class passengers after they've been fast-tracked through security, while the rest of the passengers aren't sure if they'll be boarded or seated, let alone served.

  • All attorneys with a spine must cease referring to the Supreme Court or its justices with the prefix "Hon'ble." Honour has long since departed the building.”

Prashant Bhushan Case

Following are the two tweets which were made by eminent lawyer: Prashant Bhushan.

1. On the 29th of July, there will be one. That was said in response to a photo of CJI Bobde sat on a Harley Davidson motorcycle, which allegedly showed him enjoying pricey bike trips while putting the Supreme Court under lockdown

Sec 15[vii] allows the High Court or Supreme Court to take cognizance suo-moto or on the application of the Attorney General or the Solicitor General. As a result, the court cannot transform the petition under Sec 15(1) (b) into a suo-motu petition under this act.

2. On the 27th of June 2020, another tweet was sent concerning the work of the previous four Chief Justices of the United States and trust in judicial transparency. On July 22, 2020, the day the Mahek petition was listed in the Supreme Court, it resurfaced in the press. Under Section 3(a) of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, the Supreme Court took Suo-motu cognizance of the second tweet, which is a legal procedure.

The 108-page ruling goes over several excerpts from English and Indian rulings before deciding to assess the tweets in light of precedence.

Finally, on August 31st, the apex court released Prashant Bhushan after ordering him to pay a fine of Rs. 1 by September 15th. Mr. Bhushan provided more clarification on the tweets, claiming that they were sent in good faith and that nothing was said to prejudice the court's position. On November 12th, the Attorney General of India consented to contempt of court proceedings against Kamra's tweets in the Kunal Kamra Contempt case.


CONCLUSION

In a democracy, the contempt authority aims to allow the court to function effectively, not to protect any individual judge's pride. The foundation of the judiciary is the public's faith and confidence in its ability to provide brave and fair justice. In a democracy, the aim of the contempt authority is to allow the court to function effectively, not to protect any individual judge's pride. The foundation of the judiciary is the public's faith and confidence in its ability to provide brave and fair justice. In the former’s case the Madras HC Judge C.S.Karnan, the Supreme Court’s Constitutional bench declared, “The law of contempt is not established for the protection of judges who may be sensitive to the winds of public opinion. Judges are meant to be strong guys who can survive in a harsh environment.”


REFERENCES: [i] The Contempt of Courts Act, 1971 [ii] Id. at 1 [iii] The Contempt of Courts Act, 1971 [iv] Id. at 3 [v] The Constitution of India, art. 19 [vi] Moinul Hosein v Sheikh Hasian Wazed, [2001] 53 DLR 138 [vii] Contempt of Courts Act 1971

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