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COMPARATIVE ANALYSIS OF LAW OF CONTEMPT AND THE FREEDOM OF SPEECH

Updated: May 30

Author: Katyayani Jha, LL.M from Chanakya National Law University.


Introduction

Origin and History of Contempt of Court

Society is considered as the fundamental support system for the survival of any types of institution in the society. Earlier, a man was free to do or act in any manner according to his strength of limbs and arms. In order to bring peace and development of society, an agency was appointed by the people known as King.


Earlier, King was responsible for maintaining the law and order in the society so that peace can prevail among the people. He formulated various rules and guidelines which are basically known as the law. Every member of the society was expected to act in the manner as the rules and a guideline prescribed by the King, and if anyone causes any disobedience to such laws and to the King the punishment was awarded to him.


In any democratic civilised society, rule of law is considered as the basic rules formulated for the administration and governance of rule in the society. Rule of law is considered as the founding roots of the constitution and judicial review is considered as the part of its basic structure. Freedom and protection to the administration of justice is very important factor of a civilised society with free and egalitarian social order. Therefore, the law of contempt was evolved to secure public respect and confidence in the judicial order and thus, it provides sanctioning and punishment to any act of anyone which in turn attempts to fade away such confidence and respect.


In Rex vs. Almon, Wilmont opined that during the normal procedure require to deal with the of criminal contempt very slow process, thus court assumed the jurisdiction themselves regarding such contempt’s and start disposing the cases of their own so that cases might be fairly heard and the process of administration of justice should not be compromised.


In Brahma Prakash Sharma vs. State of UP, the court laid down that the contempt of court does not provide protection to the judges as an individual, basically it protects the society as a whole so that social interest of the public would not be affected and if by any act or any conduct of anyone the authority and reputation of the court is lowered down, then the confidence of the people in administration of justice or judiciary is weekend. The Judiciary has the inherent power to anyone who contempt or tries to lower down the reputation of the courts in the eyes of people.


Originally, the concept of contempt of court is originated from the England and, developed over several years in order to enforce orders of the court. In India, the origin of contempt of court can is traced back to the pre independent period that is to the British era. Since, after the East India Company took the control of the Indian territories, a Charter of 17 was issued for the establishment of corporation in each presidency town that is Madras, Bombay and Calcutta.


This marked the evolution of the legal system in India as English laws were introduced in the country. Mayor courts were established in each presidency town, and also made as the courts of records, which is authorised to decide all the civil cases coming from that town and subordinate areas. The Contempt of Court Act, 1926 is enacted in the year 1926 to deal with cases relating to its contempt. The Act provides power to the High caught to punish for the contempt of them and also the contempt related to the subordinate courts. The act also provides for the upper limit of the punishment for the said contempt.


The Act of 1926 was only applicable to the British states of India at that time, princely states have their own separate act which especially deals with contempt proceeding. In, 1952 the Act of 1926 along with other several Acts of states that was enacted in every state were, replaced and repealed by the new Contempt of Court Act, 1952.


This Act made significant changes in the contempt proceedings. But, in the year 1960, a bill was introduced in the Lok Sabha to consolidate and amend the earlier Act of 1952, due to its uncertain, unsatisfied and unsatisfactory response in contempt cases. Therefore, a committee was appointed to look after the previous acts and the changes and modification required to be made, under the chairmanship of HN Sanyal, the then Additional Solicitor General of India.


The committee examined the proceedings of contempt cases, laws relating to the contempt case, the jurisdiction of the courts and the punishment provided under the Act, and finally submitted its report in 1963, which was accepted by the government. Thus, in 1971, the Contempt of Court Act, 1952 was repealed and replaced by the new Contempt of Courts Act, 1971. Sec. 2 of the act, classified the contempt into two heads, that is civil contempt and criminal contempt, and also provides the definition of the same. The Act also provides for the exception which will not attract under the Act for punishment for the contempt. The earlier Acts of 1926, 1952 provided the uncontrolled and unlimited powers to the courts to punish anyone for its contempt, but the Act of 1972 made some significant changes and made it little flexible with the contempt proceedings.


Contempt of Court

The concept contempt is court is not very easy to define within the four walls of definition because if there are fixed parameters which are already laid down in the act that which may or may not amount to the contempt of court. In 1742, Lord Hardwicke L. C, provided that there are three types of action which would qualify as the contempt of court, in which first he laid down that kind of contempt action which scandalise the court itself, secondly he referred to the abusing of parties who are basically involved in the causes or the judicial proceedings, and lastly the action which contempt the court against the person before the judicial proceedings or causes is heard. According to the Halsbury Law of England, contempt of court is defined as any ct done or any writing published to bring the proceedings of courts or a judge into the contempt or lower down its authority, or due to such acts the due course of justice and the lawful proceedings of the court is hampered or disturbed, such act or writing is called as the contempt of court. However, as per Corpus juris secondum, contempt of court refers to the any act which is caused to disrespect and disobedience the court or to bring the court or judges into the contempt and lower down its dignity, authority and justice.In A. Ramalingam vs. V. V. Mahalinga Nadar, the court observed that contempt refers to any act or any matters which concerns the fair and impartial administration of justice, the dignity and authority of the judicial courts or the tribunals. The main objectives of the law which provides protection against the contempt is to keep the administration of justice pure and undefiled, and in cases regarding the contempt, the parties can’t invoke the jurisdiction for the redressed of their grievances in the contempt proceeding cases.


Constitutional Provisions

Rule of law is considered as the basic feature of the constitution of India and hence, it is considered as the supreme in the constitution. Judiciary is considered as the guardian of the rule of law, so that the administration of justice in the society is maintained and it should be free from any defects. The judiciary, therefore, is entrusted with extraordinary power to punish anyone who is responsible for the misconduct down with the intention of undermining the dignity of the authorities and bringing down the reputation of the institution, whether outside or inside the jurisdiction of the courts.


In India, the Supreme Court and High Courts are considered as the courts of record, thus the constitution provides them the power to punish anyone for its contempt. The Supreme Court is granted power under Art. 129 and the similar powers are granted to the High Court under the Art.215 of the constitution. The constitution does not provide the definition of the contempt, but through judicial pronouncements the meaning of contempt is well understood by all the jurisdictions. In DJSA, Tis Hazari Court, Delhi vs. State of Gujarat, the apex court held that once a court is declared as the courts of record by a statute, it derives the power to punish anyone for its contempt and also the contempt of any tribunals or subordinate courts to them. Art.19 (1) (a) of the constitution provides the freedom of speech and expression and this freedom is also considered as the lifeblood of a democracy. But, this freedom is not absolute and it is subjected to the reasonable restriction provided under Art.19 (2) of the constitution.


The constitution which provides the power to its citizen of the freedom of speech and expression also provided the powers to the judiciary so that the freedom of speech and expression can’t be misused and it should not be exercised in such a manner that damages the dignity of the courts or judges thus affecting or interfering with the administration of the justice.


In, Aswini Kumar Ghose &Anr. vs. Arabinda Bose, the apex court observed that the fair and reasonable criticism of a court or judicial proceedings does not amount to the contempt rather it is considered as the act done in the interest of public good. Art. 142 (2) also provides the power to the apex court to investigate or punish any contempt act. However, the power of apex court under Art. 142(2) is outside the ambit of the Contempt of Court Act, 1971 and it is not affected by the limitation granted under Sec. 20 the Act. Jurisdiction of courts to punish the contempt is different from the jurisdiction of the court to punish any advocate for its professional misconduct and for that Art. 142 can be also invoked for such proceedings.


Classification under Contempt of Court Act

The Contempt of Court Act, 1971 was enacted with the recommendation given under the Sanyal Committee which submitted its report in 1963. The object of this Act clearly states that, the earlier existing law related to the contempt of court act were uncertain, undefined and unsatisfactory in their provisions.


Sec. 2 (a) of the act provides the definition of the contempt of court and thus, classified the contempt in two heads that is civil contempt and criminal contempt.


Civil contempt is defined under the Sec. 2 (b) of the Act and the criminal contempt is defined under the Sec. 2 (c) of the Act. Civil contempt as the name suggest means the wilful disobedience of any judgement passed by the court, decree, order, writ or any other judicial proceedings by taking willful breach of an undertaking given the court during the administration of justice.


Criminal contempt refers to any publication of any words spoken or written by any signs or any representation by which the authority of the court is scandalised or interfere with the judicial proceedings or interfere or tend to interfere or malign the process of administration of justice, is considered as the criminal contempt under the Act. There are various instances which lead to the contempt of court such as using insulting and bad language against the judge and his decision, the act of suppressing the facts so that favourable orders can be obtained in a particular case, allegation of any partially and unfairness against any judge or against his judgement given.


In Re Ajay Kumar Pandey Case, it was held that the advocate who used the foul language against the judge during the judicial proceedings is charged with the offence of contempt of court, and as a result of this he was punished by the fine of rupees one thousand and an imprisonment for four months.


Civil Contempt

Under the Contempt of Courts Act, the person who is guilty of contempt does not only punish the offender, but also to exercise the enforcement and obedience to the orders or decrees passed by the court in the judicial proceedings. The court in, Vidya Sagar vs. Third Additional District Judge, Dehradun, provided that the there are basically two main objectives of the contempt of court act, firstly, it protects and safeguards the public interest by punishing the person who is guilty of contempt of court and secondly, it compels the person to do or act in such a manner which is prescribed by the court in the due course of judicial proceedings.


There are basically two main essential ingredients of the civil contempt of court, first, there is a disobedience cause with regard to the decree, orders given by the court and the other most important factor is the, the disobedience and breach of the court proceedings must be wilful in nature.


The court in Courts on its Own Motion v. N.S. Kumar, held that if the court is satisfied that the order made by the court is not wilfully followed or considered by the person against whom the order was passed, he shall be considered as guilty under the contempt of the court.


However, the court in Babu Ram Gupta v. Sudhir Bhasin, the Court provides a clear distinction between the compromise arrived by the parties to the suit or the consent order passed by the court during the proceedings.


Further, it was provided that the breach of the undertaking recorded or forming the part of the compromise degree by the any party does not amount to the guilty of contempt of the court. In, civil contempt, mere disobedience to the orders of court does not amount to the civil contempt. The disobedience must be wilful, deliberate, and intentional.


In, C. Elumalai v. A.G.L. Arudayaraj, the provided that for the offence of the civil contempt the court must be satisfied that person has caused wilful and intentional disobedience to the orders passed by the court and thus violated such order.


Criminal Contempt

Criminal contempt is defined under Sec. 2 (c) of the contempt of court act. Criminal contempt refers to any publication of any words spoken or written by any signs or any representation by which the authority of the court is scandalised or interfere with the judicial proceedings or interfere or tend to interfere or malign the process of administration of justice, is considered as the criminal contempt under the Act.


The court in the case of, DJSA v. State of Gujarat, provided the concept of criminal contempt is very wide in nature and it also consists of any which interfere with the proceedings of the courts thus lowering down the authority and dignity of the court.


The court has been given wide powers to protect and preserve the rule of law. There are some essential ingredient of the criminal contempt of court such as, there should be publication by the way of written, spoken or any visible representation made so that the proceedings of the court is scandalised, secondly, such publication must have scandalised or lowered the authority and dignity of court by interfering in the judicial proceedings or with the administration of justice, thirdly, the interference with or any prejudice to the ongoing judicial proceedings in the courts, fourthly, it refers to when there is interference in the administration of justice in other manners.


The court in the case of Legal Remembrancer v. Motilal Ghose, explained the difference between the civil contempt and criminal contempt. The held that the difference between the civil and criminal contempt is of a fundamental character. In criminal contempt, the interest of the public is offended with undermining and interfering with the dignity of the court, on the other hand, civil contempt refers to the wilful violation of the orders, decrees, writs, directions or judgements passed by the court.


Punishment for the contempt of court

Punishment for the contempt of court is provided under the Sec. 12 of the Contempt of Court Act, 1971. If a person is found guilty of the contempt of court should be punished with the simple imprisonment for a term which may extend to the six months, or, with fine which may extend to two thousand rupees, or, both.


Further, clause 3 of Sec. 12, provides that in case of civil contempt if the court thinks fit that the fine imposed as the punishment is not sufficient in accordance with the offence, then the court may direct him to the detention under the civil prison for such period not exceeding the six months or the court as may think fits. Clause four of the Sec. 12 deals with the contempt of court committed by a Company. It provides that if a person who is found guilty of contempt is a company then every person who is in charge of or responsible to the company at the time when the contempt was committed shall be guilty for the offence of contempt and provided the punishment by the court such as the detention in civil prison of each such person who is involved in this offence.


Further, Clause five deals with the offence which is committed under Sec. 12 (4), and if is provided that the offence is committed with the consent or neglect on the part of any director, , manager, secretary, or others, such officer shall also be held to be guilty of contempt and liable for the punishment under the Act.


Freedom of Speech and Expression

Indian Constitution from clause (a) to (g) of Art.19 guarantees sex freedoms to the Indian citizens, such as freedom of speech and expression, peaceful assembly, association, free movements, residents and practice of any profession and carrying of any business. These basic rights do not only provide the democratic freedoms to the citizens but at the same time it also promotes democratic values, oneness and unity in the country.


Art. 19(1)(a) of the Constitution of India deals with the right of freedom of speech and expression. However, Art.19(2), imposes various “reasonable restrictions” on the exercise of right of freedom of speech and expression.


Freedom of speech and expression under Art.19(1)(a) means that freedom to express his views or opinions on any matter by the way of a medium such as by words of mouth, writing, painting, picture, film, movie, etc. It includes the freedom of the communication and the right of propagation of the one’s own views and opinion. But, such right is subject to restriction mentioned under Art.19(2). Freedom of speech and expression cannot consider as a license to make unfounded and irresponsible allegations against the judiciary.


Contempt of Court vs. Freedom of Speech

Freedom of speech and expression is considered as one of the prized privilege to the people in a democratic society. But at the same time independence of judiciary is also considered as the one of the essential constituents of the democracy.


The contempt law has an overriding effect on the fundamental rights of freedom of speech and expression and the supporters of the freedom of speech and expressions argues that they should be allowed to write and publish the criticism of judiciary which is true and fair in nature. Lord Atkin provided that justice should not be considered as the cloistered virtue, it must be allowed to suffer the scrutiny of respectful, even though outspoken comments of an ordinary men. Therefore, law of contempt and freedom of speech and expression has been a burning issue among jurists and policy makers.


Therefore, it becomes very important to draw a balance between the both features of democracy. The Constitution of India provides the power to both the Supreme Court and High Court to punish for its contempt under Art.129 and Art.215 respectively.


Thus, it is very clear that the freedom of speech and expression provides as a fundamental right is subject to the provisions of Art.19(2), Art.129 and Art.215. The Supreme Court and the High Court punish for the contempt according to the provisions of the Contempt of Court Act, 1952.


In CK Daphtary vs. OP Gupta, the court held that the Supreme Court’s power to punish for the contempt under Art.129 is reasonable under Art.19(2). While the constitution guarantees the fundamental right of freedom of speech and expression, it also provides that while exercising such right, contempt of court cannot be committed. The main objective behind this right is that the authority of the courts can be preserved and obstruction to the due administration of justice removed. The Supreme Court in the matter of contempt of court held that: “We wish to emphasise that under the cover of freedom of speech of expression no party can be given a license to misrepresent the proceedings and orders of the court and deliberately paint an absolutely wrong and incomplete picture which has the tendency to scandalise the Courts and bring it into dispute or ridicule ...Indeed, freedom of speech and expression is “life blood democracy” but this freedom is subject to certain qualification. An offence of scandalising the court per se not one such qualification.”


Conclusion

Freedom of speech and expression and independence of judiciary is considered as the essential component of a democracy. Part III of the Indian Constitution confers the Fundamental Right to the citizens and these rights are not absolute in nature. Art. 19(1)(a) confers the freedom of right and expression and it is subject to other restrictions such as defamation, decency and morality, contempt of court and incitements of offences.


In Constitutional Assembly Debates, it was made clear that these restrictions are very important for maintain balance and proper functioning of constitutional machinery. It is very essential to maintain balance for the interest of public and welfare of society in a democratic setup. In western countries such as USA, the First Amendment specifically protects the freedom of press and unlike the Indian Constitution it contains two notable features such as freedom of press and secondly, it provides no restriction on the freedom of speech and expression.


Further, it provides that the contempt jurisdiction should be based on the fair and constructive criticism. Thus India should also do away its conservative view on contempt laws and liberal approach should be adopted for the freedom of speech and expression.