Object of Law of Contempt

Early man was free to act in any manner he liked and his will to do an act depended upon the strength of his limbs strengthened by the use of his arms which he developed day by day. The society was formed by our first ancestors to bring peace without which no development is possible. If a man is in constant fear of losing his limb, life or livelihood, the creative spirit in him remains dormant.

Therefore it was agreed that individual liberties be curtailed to some extent and disputes between warring groups be settled by an independent agency. This agency came to be known as the king. It was for the king to decide disputes arising between men who chose him to be the king. The King formulated certain guidelines which were termed laws. Every one in the society was expected to act in such a manner as not to come in conflict with these laws. In those times, the flouting of the authority of a ruler or King or the disrespect was never tolerated and such acts were visited with barbarous and sometimes inhuman punishments. [1]

As the society expanded, disputes increased in number. It was not possible for the king to personally to settle all the disputes. He therefore, appointed persons to perform his duties. This is how courts came into existence. Most of the disputes were settled by the courts on the basis of guidelines, given by the king. Still the king retained his right to hear any dispute himself.

In this way the decision given by the court was the decision given by the king himself. If the king’s authority could not be questioned, the courts authority could not be questioned too. If the king could not be abused or scandalized, so the courts could not be abused and scandalized. Just as the proceedings before the king could not be prejudiced, so the proceedings before the Court could not be prejudiced or obstructed.

If any one interfered in the administration of justice was liable to be punished. It is the genesis of the law of contempt of court. King’s word was Law.

As an area of law, contempt of court is endlessly fascinating and has been aptly described as the Proteus of the legal world, assuming an almost infinite diversity of forms. Its central concern is to protect the administration of justice in criminal and civil cases, addressing, for example, the perennial conflict between the requirements of a fair and unprejudiced trial and those of freedom of expression. It is also concerned to protect witnesses from being victimised and courts being subjected to destructive criticism in the press, or disruptive conduct during their proceedings. Similarly, it provides the ultimate sanction to secure the enforcement of court orders, including orders which call on journalists to reveal their confidential sources of information. A further major clash of interests is between the demands of open justice and the numerous restrictions on reporting which now exist, for example to confer anonymity on children and on complainants in sexual cases, the hearing of cases in camera or in private, and orders postponing the reporting of trials.

WHAT IS CONTEMPT?

Contempt may be defined as any act which derogates the dignity and authority of courts. Oswald, in his celebrated treatise-‘Contempt of Court’ says that ‘Contempt of Court is so manifold in its aspects that it is difficult to lay down any exact definition of the offence’. The word has been defined in the Chamber’s Twentieth Century Dictionary as scorn, disgrace (law), disregard of the rule, or an offence against the dignity of a court (with, of, for). Thus, any act which significantly derogates the dignity and authority of the court or which tends to impede or frustrate the administration of Justice, may be Contempt of Court.

Purpose and object of law of contempt

The purpose of the law of contempt is to protect the machinery of justice [2] and the interests of the public. It provides a mechanism to prevent interference in the course of justice and to maintain the authority of the law, but it is a weapon that must be used sparingly. The object of contempt proceedings is not to protect judges personally from criticism but to protect the public by preserving the authority of the court and the administration of justice from undue attack; however, judges cannot use it to wreck personal vengeance. In the case of contempt which is not committed in the face of the court, which may be described as constructive contempt, and which depends upon the interference of an intention to obstruct the course of justice, guidelines for the exercise of the jurisdiction to commit for contempt have been laid down as follows:

Economical use of jurisdiction is desirable.

Harmonisation between free criticism and the judiciary should be the goal.

Confusion between the personal protection of a libelled judge and the prevention of obstruction of public justice should be avoided.

The press should be given free play within responsible limits, even when the focus of its critical attention is the court.

Judges should not be hyper sensitive, even where distortions and criticism overstep the limits.

If, after taking into account all these considerations, the court finds contempt of court beyond condonable limits, then the strong arm of the law must be used in the name of public interest and public justice. [3]

History of the act

English authors trace the history or the origin of the law of contempt of court to kingship and sovereignty as the judges administering justice derived the authority from the King and sat in the courts to administer justice in King’s name. Thus disgrace or disregard of the rule of law or offence against the dignity of a court or a judge commonly known as Contempt of Court was considered an insult to the King himself.

From the year 1250 onwards, the rolls and year books contain references to contempt of court [4] . These usually relate to some disturbance or hostile reaction in or near the court affecting its business, or to some violent or insulting reaction to service of the court’s process.

It appears to have been recognized at an early stage that contempt could consist merely of words. It was contempt to insult a judge in open court or in the presence of his fellow judges as they were going to hold pleas or abuse of judiciary, even publication of out of court of matter scandalizing the court was contempt. In 1344 John de Northampton, an attorney, confessed that he had written a letter to one of the King’s Council reflecting in the judges of the King’s Bench. It was adjudged by that Court that the letter was a scandal upon the court and John was committed to the Marshal before sureties were found for his good behavior. [5]

It was seen that such misconduct must be summarily punished by courts because without this power of punishment they could not perform, and the kingdom would stand still if ‘justice’ was not immediate. Sometimes barbarous punishments were awarded.

In 1631, a person after he had thrown a stone was convicted for a felony threw a brickbat at Chief Justice Richardson which narrowly missed him. He was indicted, his hand which had thrown the stone was cut-off and he was immediately hanged in the presence of court.

In 1634, a similar occurrence took place. Here the offender James Williamson had thrown a stone on the judges in the Bench. His right hand was cut off by way of punishment and the hand was then fixed at the entrance of the gate of the court where it remained for a number of years. [6] Such was the barbarous punishment for defying or disrespecting the King.

Writ of attachment became ordinary procedure besides compelling performance

In the seventeenth century an important development in the law of contempt took place in the Court of Chancery. The writ of attachment began to be used not merely in the case of those flagrant abuses of the administration of justice which the common law courts were not to punish, but also to compel performance as between parties in a particular suit. The writ of attachment and its summary process became part of ordinary procedure of the Court. This development led eventually to the uneasy assimilation of the procedural means of dealing with the two forms of misconduct which came to be called criminal and civil contempt. While the following treatment is categorized in accordance with the terminology, it should be remembered that in the seventeenth and eighteenth centuries the distinction was not made as clearly as it was from the nineteenth century. [7]

It was in the eighteenth century that the press and pamphleteers flourished, and it was in that period that it became clearly established that contempt could be committed by publishing matter calculated to interfere with the due administration of justice. It developed in three stages. First, there are examples of persons being punished for speaking disrespectfully of the court on service of process. Then the stage was reached where matter scandalising the court constituted contempt whenever published matter calculated to prejudice the fair trail of a pending case. [8]

Lord Hardwicke recognized that scandalizing the court was an identifiable category of contempt. [9]

The indictment of eight leaders of radical, pacifist, and anti-war groups for conspiring to and traveling inter-state intending to incite a riot at the Democratic National Convention in Chicago in the summer of 1968 led to the country’s most notorious and celebrated series of contempt cases. In the case of ‘Black Panther’ leader Bobby Seale, his lawyer could not appear for the trial because of major surgery, and attorney William Kwestler assumed Seale’s defence. Both Seale and Kwestler soon protested the arrangement, but the judge insisted they maintain it, and the trial proceeded. Seale persistently claimed that he wanted either his chosen lawyer or the right to handle his own case whenever the trial touched him personally. Eventually, provoked by the defendant’s constant protestations and criticisms, judge Julius Hoffman had Seale gagged and bound to his chair. He finally severed him from the main case altogether and found him in Contempt of Court. Judge Hoffman charged Seale with contempt based on his disrespect to the court for being ‘contumacious’ and disruptive, for misbehavior to his presence. He adjudicated the contempt and sentenced Seale allowing Seale to represent himself at this point incidentally to four years in prison.

It was the longest contempt sentence in the records of the Anglo-American law. After Seale was served and the trial concluded Judge Hoffman also served each of the defendants and both of the defense lawyers to four years sentences for series of disorderly conduct, insulting behavior in the immediate vicinity of the court, or acts of violence which interrupt its proceedings, interference with property in the custody of law, misconduct of the officer’s of the court etc.

Yet for a long time, the law on the subject remained in a confused state. Different Judges describe contempt of court in different ways. For the first time it was Wilmot, J., who pronounced the law on the subject with precision. [10]

In the case of R. v Almon [11] , the facts were that one John Almon a book seller, published a libel on Lord Mansfield, the Chief Justice. An attachment of the warrant of John Almon was obtained but in the warrant of attachment by mistake, instead of writing R v Almon; R v Wilkes was written. Mr. Justice Wilmot urged Sergeant Glyn to accept the amendment, but he as a man of honour, did not agree. The mistake was fatal and the proceedings were dropped. Justice Wilmot could not deliver the judgment which he had written out but it came to light when his son published it in the year 1802.

The judgment reads-

“The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their foundation and institution; it is a necessary incident to every Court of Justice, whether of record or not to fine and imprison for contempt to court, acted in the fact of it. [12] And the issue of attachments by the Supreme Courts of Justice in Westminster Hall, for contempt out of court, stands upon the same immemorial usage, as supports the whole fabric of the common law; it is as much the lex terrae, and within the exception of Magna Carta, as the issuing of any other legal process whatsoever.

The first attempt at a comprehensive legislature relating to contempt of courts in India was the Contempt of Courts Act, 1926. It introduced the concept of limiting the punishment which could be awarded in contempt cases.

‘The act did not contain any provision with regard to the powers of contempt of courts of judicial commissioner’s courts It was equally silent with regard to the powers of contempt of courts of judicial commissioners. It was obvious that the courts in other areas also required a like protection, The Act also did not deal with the extra territorial jurisdiction of the High Courts in matters of contempt. [13]

Contempt of Court in Indian context

Contempt by ‘scandalizing’ the Court owes its origin to the medieval ages in Britain, when the courts were considered representatives of the monarch and were called King’s Courts or Queen’s Courts. Thus, any imputation against the courts was considered an imputation against the sovereign and therefore punishable. The United States has a more liberal dispensation, where only something that presents a clear and present danger to the administration of justice is considered contempt. Although the British origin of contempt law in India has absolutely no relevance today, the judiciary has continued this jurisdiction and gone on to declare that even truth cannot be a valid defense against a charge of contempt.

It is also contended that if the courts are not able to punish scandalous allegations leveled against judges, public confidence in courts will evaporate. This view suggests that the only basis of public confidence in courts is the power to stifle criticism by using the power of contempt.

Obviously, this is an absurd view, since if this were correct, there should be no public confidence in any other institution or individual, for the simple reason that no one other than judges has the power of contempt [14]

Contempt of Courts Act 1926 :-

The law relating to Contempt of Court has developed over the centuries as a means whereby the courts may act to prevent or punish a conduct which tends to obstruct, prejudice or abuse the administration of Justice, either in relation to a particular case or generally.

The rules embodied in the law of contempt of court are intended to uphold and ensure the effective administration of justice. As Lord Simon said in A-G v. Times Newspapers Ltd., they are the means by which the law vindicates the public interest in due administration of justice. The law does not exist, as the phrase ‘contempt of court’ might misleadingly suggest, to protect the personal dignity of the judiciary, nor does it exist to protect private rights of the parties or the litigants. Lord President Clyde commented in Johnson v. Grant :

‘The phrase ‘contempt of court’ does not in the least describe the true nature of the class of offence with which we are here concerned. The offence consists in interfering with the administration of the law; in impeding and perverting the course of justice. It is not the dignity of the Court which is offended – a petty and misleading view of the issues involved – it is the fundamental supremacy of the law which is challenged.’

.         The present day conception of contempt of court is derived from  the English Law. In India, the codified law on this subject was first enacted in 1926 as Act No. 12 of 1926. Though the Act could be regarded as a step in the right direction, yet it suffered from certain limitations. The Act imposed specific limits as to the punishment which could be awarded in contempt cases. The intention, no doubt, was to make these limits applicable, irrespective of whether the contempt was that of a High Court itself or of a Court-subordinate to it. The Act, however, did not contain any provision with regard to contempt of courts, subordinate to courts other than High Courts, that is, the Courts subordinate to chief courts and Judicial Commissioners’ courts. It was equally silent with regard to powers of contempt of court of Judicial Commissioners. The Act also did not deal with the extra-territorial jurisdiction of High Courts in matters of contempt.

In recent years, the Law of Contempt has been liberalized in both U.K. and the U.S.A. In U.K. the statute has been amended on the recommendation of the Phillimore Committee to provide for truth as a defence to a charge of contempt by scandalizing. In the U.S.A., the courts have evolved a more liberal standard of ‘clear and present danger’. to the administration of justice. Recently, the New York Times characterized the judgment of the U.S. Supreme Court on the recounting of Florida votes in the recent Presidential elections as ‘corrupt’ and one, which ‘stole the election’. But no action was initiated for contempt because there was no clear and present danger to the administration of Justice.

In India, the law on contempt has been codified since 1926. The contempt of courts act 1926 was repealed by the Act of 1952. The scope of the said act having required considerable widening, the act of 1971 was brought into existence, which is mainly based on the recommendations of the Sanyal Committee. The committee made a comprehensive examination of the law and problems relating to contempt of court in the light of the position obtaining in our own country and various foreign countries. The recommendations which the committee made took note of the importance given to freedom of speech in the constitution and of the need for safeguarding the status and dignity of courts and interests of administration of justice. [15]

Contempt of Courts Act, 1952

The 1926 Act was repealed and replaced by the Contempt of Courts Act, 1952(the 1952 Act). It explicitly gave the definition of ‘High Court’ to include the courts of the judicial commissioner which had been excluded from the purview of the 1926 Act. It also gave the power to the High Court to inquire into and try a contempt of itself or of any court subordinate to it, irrespective of whether the contempt of itself or of any court subordinate to it, irrespective of whether the contempt was alleged to have been committed within or outside the local limits of its jurisdiction and irrespective of whether the person alleged to be guilty of the contempt was outside such limits. [16]

After achievement of independence, the Contempt of Courts Act of 1952 was enacted in India. The Act repealed and replaced the 1926 Act. The Act of 1952 made two important changes, by defining the expression ‘High Court’ to include Courts of Judicial Commissioners, making it clear that those courts had power to punish contempt of Subordinate Courts also. Secondly, the Act made it clear that the High Courts (including the Court of Judicial Commissioners) would have jurisdiction to inquire into and try a contempt of itself or of any court Subordinate to it, irrespective of whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and irrespective of whether the person alleged to be guilty of the contempt is within or outside such limits. But this Act also did not give any definite or clear definition of the term ‘contempt’. This omission on the part of the legislative body was deliberate and the reason behind it was to maintain the elastic character of the law, to enable it to cover a wide field for its application by the courts.

It has been well said that the law of contempt is of ancient origin, yet of fundamental contemporary importance. Traditionally, contempt is classified as being either criminal or civil. They all share the common characteristic of constituting interference with the due administration of justice, either in a particular case, or more generally as a continuing process.

One aspect of contempt deserves special mention, which ultimately restricts the constitutional freedom of free speech. The preservation of free speech is also of the highest importance in a democracy. The needs of fair administration of justice have to be reconciled with the citizens freedom of speech and expression.

The pre-independence law of contempt was derived from the English Law which, however, was coloured by the ancient institution of Monarchy and the courts being the Royal Courts of Justice. After the advent of the Constitution, the prevalent law of contempt was increasingly perceived as an anachronism.

The reflection of the new liberty of the citizens found its reflection in a Constitution Bench judgment in B. R. Reddy vs. State of Madras reported in AIR 1952 SC 149. The public dissatisfaction with the rule that truth is not a defence to a charge of contempt attracted the attention of the Judges. Of course, the facts of the case were rather gross. The accused was the publisher and the Managing Editor of a newspaper. In an Article he had attacked the integrity of a City Magistrate, who was described as a bribe taker and being in the habit of harassing litigants in various ways. He was said to have a broker through whom he negotiated the bribes. Even some specific instances were cited. However, when charged with contempt, he made no attempt, either to establish the truth of what he had stated or even to show that he had made the statement after due care and caution. He admitted that he had acted on pure hearsay.

5.5.      Mr. Justice Mukherjee had this to say –

‘If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring judiciary into disrepute.. As the appellant did not act with reasonable care and caution, he cannot be said to have acted bona fide, even if good faith can be held to be a defense at all in a proceeding for contempt.’

It is obvious that the Constitution Bench did assume that truth was a complete defence, though mere belief in truth was not expressly accepted as a defence. The court did not decide this because the facts disclosed absence of good faith.

It is true that later decisions have stuck to the traditional pre-constitution view. Eminent text book writers like Mr. Seervai have criticised these later judgments as erroneous and per incuriam.

It must be borne in mind, however, that a powerful judgment of the High Court of Australia had ruled decades ago that truth and bona fide belief in truth are doubtless valid defences to a charge of contempt. This view of the law taken by the highest courts in Australia has worked well and no damage has been caused to the administration of justice in that country.

Contempt of Courts Act, 1971

On 1st April, 1960, Sri Bibhuti Bhushan Das Gupta introduced in the Lok Sabha a bill to consolidate and amend the law relating to Contempt of Courts Act. The government after examining the bill realized the need to reform the existing Act, and set up a special committee for scrutinizing the Act. The Sanyal committee submitted its report on the 28th of February, 1963. The contempt of courts Act, 1971 is mainly based on the recommendations of the Sanyal Committee. [17] The committee was set up in 1961 under the chairmanship of Late Shri H.N. Sanyal, the then additional solicitor general. The committee made a comprehensive study of the law and the problems relating to contempt of courts in the light of the position obtaining in our own country and various countries. The recommendations took note of the importance given to freedom of speech in the Constitution and of the need for safeguarding the status and dignity of courts and interests of administration of justice.

Sanyal Committee went into almost every aspect and examined various judgments of the High Courts and the Supreme Court and also of Foreign Courts, on the Subject. The recommendations which the Committee made, took due note of the importance given to freedom of speech in the Constitution and of the need for safeguarding the status and dignity of courts and the interests of administration of justice. The recommendations of that Committee were generally accepted by Government, after considering the views expressed on those recommendations by the State Governments, Union Territory Administrations, the Supreme Court, the High Courts and the Judicial Commissioners. Based on those recommendations, Government brought the Contempt of Courts Bill to replace and repeal the Act of 1952. The Objects and Reasons of the Bill read as under :-

‘It is generally felt that the existing law relating to Contempt of Courts is somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two important fundamental rights of the citizens, namely, the right to personal liberty and the right to freedom of expression. It was, therefore, considered advisable to have the entire law on the subject scrutinized by a special committee. The Contempt of Courts Act, 1971 (70 of 1971) is the product of the Report of that Committee.’

The Act of 1971 effected significant changes in procedure as well as in application of the enactment. ‘Contempt of Court’ has been segregated into ‘Civil’ and ‘Criminal’ contempt with their respective definitions, which the old Act did not contain. Though the old Act could not be held ineffective in the absence of the definition of the term ‘Contempt’, this Act modified the definition of ‘Contempt’ to a considerable extent.

Instances of publishing and distributing any matter, interfering or tending to interfere with or obstructing or tending to obstruct the course of justice during pendency of the proceedings, if there are reasonable grounds for believing that the proceedings were pending; fair and accurate reporting of a judicial proceedings; fair criticism on merits of any case which has been heard and finally decided, complaint or statement made in good faith against the presiding officer; fair and accurate report of judicial proceedings held in chambers or in camera, have been excluded from the definition. [18]

Contempt of Courts- Criticism and Suggestions

While studying the history of the Contempt f courts in India, one has to remember that this law originated in pre-independence India, where the British looked to stifle the criticism of the judicial system by the public. Though the Contempt of Court Act, 1952 and 1971 have since repealed many of the stifling provisions of the pre-independence act, some lacunae remain in the law.

The Law of Contempt of Court has to balance the Freedom of right to speech and expression granted to the citizens of India as well as the provisions made to enable the judicial system to function without obstruction of any kind.

Looking at it from this angle one can immediately realize that in a democracy the purpose of the Contempt of Court power can only be to enable the Court to function. The power is not to prevent the people from criticizing the Judges if the latter do not function properly or commit misconduct. The power given is to prevent obstruction of justice.

The Contempt of Court Act and various proceedings have invited criticism of the public for being in violation of the provisions of the Constitution. The main suggestions that have been made in the course of the development of the law are ,in the first place, the correct procedure to punish for offences against the due administration of justice is to punish such offences as ordinary offences through the ordinary procedure – as far as practicable. No doubt, this would alter the balance of power between the higher judiciary and the lower courts as well as the High Courts and the people. Secondly, it is not the case, that Indian High Courts even possessed the full plenitude of the power of Courts of Record. Indian Courts of Record had a much more limited power which both before and after the Constitution could, and can, be disciplined by reasonable restrictions made by the legislature. Thirdly, there is no impediment to a law being made by the legislature which could cut down the powers of the High Court to punish for contempt as well as in respect of the procedure to be followed. No doubt, any such law could not leave the judiciary wholly powerless and vulnerable. But, ‘reasonable restrictions’ can be imposed both on the contempt power as well as on the free speech it seeks to control. Fourthly, India needs to move away from archaic powers inherited from the common law and try to view the justice system in such a way that those who promise justice agree to deliver what they promise. It is time that the shadow on the reform of the law of contempt, to the effect that wide ranging reforms cannot be made, is lifted.

One of the main problems with the law of Contempt of Court was that it did not allow truth to be a defence. Due to this, constructive criticism as well as real revelation of corruption in the judidciary could also be held to be contempt of court.

In this connection reference may be made to the recent amendment to the Contempt of Courts Act (the contempt of Courts Amendment Act, 2006)