CONTEMPT OF COURT
In a democracy people should have right to criticize judges. The purpose of should not be to upheld the majesty and dignity of the court but only to enable it to function.
This project is about contempt of court. It concerns the constitutional provisions empowering the Supreme Court (Art. 129) and the High Courts (Art. 215) to punish for contempt of themselves (and declaring them to be courts of record). The relation of these provisions (primarily Article 129) with the Contempt of Courts Act, 1971 has been discussed. This legislation was enacted by virtue of the power vested in the Parliament under entry 77 of list I. I shall advance arguments for the reviewing of this relationship.
The Supreme Court has held that the power to punish for contempt is an inherent power of the court of record. This power cannot be curtailed by any law made by the Parliament. It cannot be taken away or conferred afresh by virtue of entry 77, list I.
In this light, the relationship between the Contempt of Courts Act and the contempt powers contained in the constitution assumes significance. The bearings of this relationship on separation of powers and judicial independence are pivotal to the existence of a healthy democracy. I shall be discussing this as well as the conflict between the fundamental right of speech and expression and the courts’ power of punishing for criminal contempt.
Contempt may be civil or criminal. Civil contempt as defined in the Act means “wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court”.
Thus it is essential that civil contempt of a court may be punishable in order that the judiciary is able to perform its functions in a democratic state. The power of civil contempt is the only weapon in the court’s hand to enforce its writ. Art. 141 lays down that law declared by Supreme Court shall be binding on all courts and hence will be the law of the land. For this law to be forced, civil contempt powers are essentials. It is easy to see then that the power to punish for civil contempt is of great essence towards the maintenance of judicial independence.
DECISION IN ARUDHATI ROY AND P.N.DUDA
Criminal contempt, on the other hand, is problematic. The definition provided in the Act is too wide in my opinion and can cover a wide variety of actions. In the case of In re Arundhati Roy
the court discussed the question of fundamental rights vis-à-vis criminal contempt of the Court and said that reasonable restrictions could be imposed in view of Article 19(2). It observed that since Arundhati Roy was connected with the Narmada Bachao Andolan, she was an interested party and hence her actions could not be accepted as having been undertaken for a public cause. Though she was punished for using contumacious language in her showcause reply, yet her action of protesting against the Supreme Court verdict in the Narmada case was also seen as contumacious-which the court magnanimously chose to let go unpunished. The court also seemed to suggest that fair criticism could flow only from a person qualified to make that criticism and hence Arundhati Roy, who had no training or research in law, could not make a fair criticism. This is how the court distinguished the situation from the case of P.N. Duda
v. P. Shiv Shankar
. Here the alleged contemnor was minister for law and a former Chief Justice of a High Court so his words were held not amounting to contempt though he had suggested a class bias in the Supreme Court’s decisions.
The striking contrast between these two cases poses a looming question. If an uneducated poor citizen (say for example a tribal affected by the Sardar Sarovar dam) wants to protest against the Supreme Court, how, if at all, can he do it? A dharna outside the Supreme Court will most definitely be regarded as contempt, it seems. This attitude is against the fundamental right of speech and expression. There should be some clear definition of criminal contempt so that the common citizen knows how to protest without running the gauntlet! Seervai is highly critical of the Supreme Court on the issue of contempt powers being in contradiction with fundamental rights and the markedly harsh stand of the Indian Supreme Court as compared to the position taken by the House of Lords.
JUDGEMENT IN ZAHIRA HUBIBULLA SEKH’S CASE
Coming to the relationship between the inherent powers of a court of record and the Contempt of Courts Act, as mentioned above Parliament cannot take away this inherent power or confer it afresh by legislation. However, the procedure for a contempt of court proceeding and the extent of punishment can be prescribed by Parliament under Article 142(2). This was observed in the Supreme Court Bar Association case.
Section 12(1) of the Contempt of Courts Act prescribes the maximum punishment for contempt of court which is a fine of two thousand rupees or simple imprisonment of six months or both. The catch is that the Supreme Court has interpreted the Act as being applicable to High Courts but not to the Supreme Court.
This was reiterated and clearly put down in the case of Zahira Habibullah Sheikh
v. State of Gujarat
. The judgment of Justice Arijit Pasayat, in paragraph 19 contains the following lines
“Since, no such law has been enacted by Parliament, the nature of punishment prescribed under the Contempt of Courts Act, 1971 may act as a guide for the Supreme Court but the extent of punishment as prescribed under that Act can apply only to the High Courts, because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the Supreme Court…”
The judgment also states that the case of Sukhdev Singh Sodhi
v. Chief Justice and Judges of the PEPSU High Court
concerning the maximum punishment which a contemnor may get deals with the High Courts and not the Supreme Court.
In my opinion, the Act is ambiguous about this aspect but still does not clearly afford such an interpretation. Nowhere is it mentioned in the Act that it is not applicable to the Supreme Court. This interpretation effectively means that the Supreme Court may award any punishment to a contemnor! This obviously could not have been the intention of Parliament when it enacted this legislation. The doctrine of separation of powers means (so far as the judiciary and the legislature are concerned) that the legislature’s domain is to make laws while it is the job of the judiciary to interpret these laws and to administer justice in accordance with those laws. The interpretation that the Supreme Court has given to the Contempt of Courts Act upsets this principle because it means that there is no law in accordance with which the Supreme Court shall punish for contempt.
Zahira Sheikh was awarded a sentence of simple imprisonment for one year and a fine of fifty thousand rupees. It is needless to say that this is too harsh a punishment for contempt of court. In this light I suggest that the relationship between Article 129 and the Contempt of Courts Act must be reviewed and clarified.
Judicial independence requires that the judiciary be free from any interference by the other two branches of government in the administering of justice and the enforcement of law. As far as the determination of what constitutes contempt which will lower the dignity of a court and affect adversely the administration of justice, it is a highly subjective affair. The doctrine of judicial independence demands that this is best left to be interpreted by the courts and herein the definitions laid down by Parliament in the Contempt of Courts Act should indeed serve merely as a guide to the Supreme Court which is the apt forum to determine the matter. In this respect my suggestion is that the Supreme Court should itself clarify the exact nature and definition of criminal contempt (which I have mentioned is problematic) as far as possible.
This is also in the fitness of things since Article 142(2) requires that the contempt power be exercised in accordance with law made by Parliament concerning the ‘investigation and punishment’ of contempt of the Supreme Court. Read with Article 129, it then follows that determining what exactly constitutes contempt is the preserve of the Supreme Court.
Now coming back to the quanta of punishments that the Supreme Court may award for contempt of itself; as is clear from the Zahira Sheikh
if at all there is a legislation which neatly lays down the nature and extent of punishment for contempt of court which is explicitly applicable to the Supreme Court, the Court will then be bound by it. Hence it is advisable that the Contempt of Courts Act be amended and clearly be made applicable to the apex court as well in order that excessive punishments as handed out to Zahira Sheikh are not handed out in the future.
The very fundamental logic behind arming courts of record with the contempt power is that they may be able to uphold and preserve the majesty of the law, that justice may be sincerely administered and that the respect with which citizens view the judiciary be perpetuated. If this weapon itself is used in such a harsh manner, then it shall defeat its own purpose.
The common citizen shall view the Court not with awe and respect, but with fear, which is the last thing intended by either the Court or the legislature. The contempt power must be used temperately. In the Merchant of Venice, Portia says:
“Mercy is not strain’d, it droppeth like gentle rain from heaven….”
The Supreme has over the years has not always been particularly merciful and has displayed an overly sensitive and unbecoming attitude in this regard. Who knows for these very words I might be held guilty of criminal contempt! The position is so unclear.
I have primarily tried to understand the relationship between Article 129 and the Contempt of Courts Act, 1971 and to test it on the principles of separation of powers and judicial independence. I have suggested that the Supreme Court should be petitioned to clarify the issues discussed above concerning criminal contempt in light of its significant relationship with a free exercise of a citizen’s right to peacefully protest and the freedom of speech and expression. I have also highlighted how the construed inapplicability of the Contempt of Courts Act to the Supreme Court is an undesirable state of affairs and must be dealt with by Parliament so that we do not see a repeat of Zahira Sheikh’s sentence, with however, the onus of delineating the exact nature of contempt of court being left on the Supreme Court, reading Articles 129 and 142(2) together.
The Supreme Court must use the contempt power to preserve the respect and faith that it enjoys and not in a manner that derogates its status in the eyes of the people. Citizens must continue to respect the law and the weapon for defending this respect must not be used so counter-productively that one is forced to recall Seervai’s famous lines-“lawlessness be thou our lord.”
the best shield and the amour of a judge in his reputation of integrity , impossibility, and learning. Any judge will hardly need to use the contempt power. I would like to say that the law of contempt of court can be made certain once it is accepted that the purpose of the contempt of court not to vindicate and upheld by the majesty and dignity of the court. not threat of the using but only be used in a rare and exceptional situation where, without using it, it becomes extremely difficult for the court to function . In such situation, the contempt power must not be used if a mere threat to use it suffices.
 Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 406; In re Vinay Chandra Mishra, (1995) 2 SCC 584; Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409.
 Criminal contempt is defined in the Act as 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; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
 H.M. Seervai Constitutional Law of India 723 (Vol. 1, 4th edition, F.H. Seervai and N.H. Seervai, Universal Law Publishing Co., 1991).
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Tags :Constitutional Law