A Law Student’s View on where to draw the line on Contempt of Court

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“No doubt, any citizen can comment or criticize the judgment of this court ……No litigant has a right to attribute motives to a Judge”

 –Supreme Court

On 27th April 2020, the Supreme Court Division Bench of Justice Deepak Gupta and Justice Aniruddha Bose held 3 people guilty for Contempt of Court as they made ‘Scurrilous and Scandalous’ allegations against Justices RF Nariman and Vineet Saran over the order delivered by them in March 2019 punishing Adv. Mathews Nedumpara for contempt.

The bench observed that-

“Both the complaints were ex facie contemptuous. Highly scurrilous and scandalous allegations have been levelled against the two Judges of this Court. In our view, the entire content of the complaints amounts to contempt.”

Before dealing with the pertinent highlights of the order it is essential to know the answers to a few basic questions, such as-

What amounts to contempt of court?

In layman’s terms, contempt means disobedience or disgrace. When viewed from a legal perspective, contempt means disrespect to that which is entitled to legal regard; but as a wrong purely moral or affecting an object not possessing a legal status, it has in the eyes of the law, no existence.

However, the definition of contempt cannot be exhaustive. In India, section 2(a) of the Contempt of Courts Act, 1971 states ‘contempt of court means civil contempt or criminal contempt.’ Although no legislature provides for the definition of the same the terms civil and criminal contempt have been defined under section 2(b) and 2(c) of the Contempt of Courts Act, 1971.

The object of the contempt proceedings is not to afford protection to judges personally from imputations to which they are exposed as an individual but is intended as a protection to the public whose interests would be very much affected.”

What are the types of Contempt of Courts?

Thus, broadly speaking there are two types of Contempt of Courts-

Civil Contempt

As per the definition given under section 2(b) of the Act, civil contempt can be sub-divided into two categories for better understanding-

  1. wilful disobedience to any judgment, decree, direction, order, writ or other processes of Court;
  2. wilful breach of an undertaking given to a Court.

The word ‘willful’ is of relevance in case of civil contempt, in other words, an act of civil contempt, whether by way of disobedience or breach must be an intentional act or omission.

Criminal Contempt

As per the definition given under section 2(c) of the Act. criminal contempt means the publication (whether by word, 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 obstruct or tends to obstruct, the administration of justice in any other manner.

Thus, scandalizing or prejudicing any court or interfering with the administration of justice would amount to criminal contempt. This contempt as per the definition should be committed either by way of publication or by doing any act which leads to any of the consequences mentioned under sub-clauses, (i),(ii),(iii) of sub-section(c) of section 2.

What amounts to scandalizing or lowering the authority of the court?

What needs to be kept in mind is that there is an underline difference between an act or publication which scandalizes a judge in his capacity and an act which scandalizes in his official capacity. Only if the act falls under the latter case, it is said to amount to scandalizing or lowering the authority of the court. The test laid down over the years by the judiciary, is that whether the publication in question is a mere defamatory attack on the judges, or can it be said to be an interference with the due course of justice.

What does not fall within the ambit of contempt under the Act?

On a combined reading of Sections 3-7, it can be stated that few instances do not amount to contempt of court in India. These include-

  1. A publication which tends to interfere or obstruct with justice in either civil or criminal case, is published while the proceeding is still pending but the person doing so has no reasonable ground to believe; in a case where the proceeding is complete and publication is made after completion, the publisher had no reason to believe that it contained any matter that amounts to contempt.
  2. Publishing a fair and accurate report of a judicial proceeding or any stage thereof.
  3. Publication of fair comment on the merits of a case which has been heard and finally decided.
  4. A statement made in good faith concerning a presiding officer of any subordinate court to any other subordinate court, or High court, or to which it is subordinate.
  5. Publication of any information related to an in-camera proceeding except in certain cases.

Important highlights of the order

The three contemnors Vijay Kurle (State President, Maharashtra & Goa, Indian Bar Association), Rashid Khan Pathan (National Secretary, Human Rights Security Council), and Nilesh Ojha (National President, Indian Bar Association) were held to be fighting a ‘proxy battle’ for Adv. Mathews Nedumpara.

Contemnors Vijay Kurle and Rashid Khan Pathan did not deny sending the said letters while the third contemnor Nilesh Ojha stated that the letters sent by the other two were sent with his knowledge and consent.

In March 2019 notices were issued against these 3 contemnors along with Adv. Nedumpara by the Supreme Court for their letters against the judges. However, Adv. Nedumpara was discharged in September 2019 in a separate proceeding where he claimed that he barely knew Vijay Kurle and Nilesh Ojha and had no acquaintance whatsoever with Rashid Khan Pathan.

While emphasizing upon the need to maintain cordial relations between the Bar and the Bench the Supreme Court stated that-

No litigant has a right to attribute motives to a Judge. No litigant has a right to question the integrity of a Judge. No litigant has even a right to question the ability of a Judge. When the ability, integrity, and dignity of the Judges are questioned, this is an attack on the institution. It is an attack on the majesty of law and lowers the impression of the Courts in the public eye. The allegations in the complaints are scurrilous and scandalous.”

Senior Advocate Siddharth Luthra had been appointed as the amicus curiae in the said proceeding.

Rejecting the defence of truth taken by the accused persons the court held them guilty of contempt of court and listed the matter to be heard by the court on May 1, 2020, through video conferencing wherein the contemnors will be heard on the issue of sentence.

Author’s Note

Unlike the UK, India is far to strike off the provision of ‘scandalizing the court’ from the Contempt of Courts Act, 1971. Taking reference from the PRS article on contempt of courts it can be due to two-fold reasons- first, the shooting number of cases of criminal contempt in India as recent as the one discussed above, whereas the last reported in the UK for the same was as back as in 1931. Second, this offence is still covered under other statutes in the UK, which is not the case in India, thus repealing this provision would only lead to ambiguity and an increase in a legislative gap.

In light of the above-discussed provisions and highlights of the order, it can be said that though ‘contempt of courts’ is too exhaustive a term to be encompassed in a definition, the laws in India by way of the mentioned Act and article 129 and 215 of the Constitution of India which empowers the Supreme Court and the High Court respectively to punish for their respective contempts, are in line with the international jurisprudence to deal with this issue.

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