AN INTRODUCTION TO CONTEMPT OF COURT
“Satyameva jayate”(may truth be victorious) is the sublime national motto, And yet every political or judicial philosophy, to the contrary is bete noire. In India, truth cannot be used as a defence in contempt of Court cases even though the Constitution holds truth as paramount. Despite many discourses and commissions recommending allowing truth as a defence in view of public interest, the legislators have remained silent and the Contempt of Courts Act, 1971 has remained unchanged.
The Contempt of Courts Act, 1971 basically separates contempt of Court into 2 categories, namely, Civil Contempt (ex facie curiae) and Criminal Contempt (in facie curiae).
Civil contempt occurs when a person disobeys a Court order and is subject to sanctions, such as a fine or imprisonment. The purpose of civil contempt is not only to enforce the law, but also to maintain public confidence in the judicial system, since the administration of justice would be undermined if the order of any Court of law could be disregarded with impunity.
Criminal contempt is when there is interference with or disruption of criminal or civil proceedings. Examples include yelling in the Courtroom, publishing matters which may prejudice the right to a fair trial (“trial by media”), or criticisms of courts or judges, which may undermine public confidence in the judicial system (“scandalizing the Court”).
Judges often use criminal contempt, indiscriminately at times against persons of the media who print matter about the judicial system’s workings and judges holding constitutionally high positions and corruption within the judiciary. This brings us to the issues that go along with contempt of Court. They are
• Does criminal contempt tread on the toes of Freedom of Press?
• Does it impinge upon the Freedom of Expression?
• Is there scope for misuse in the hands of judges?
All these questions lead back to the same question- why cannot truth be used as a defence? We who price truth above all are holding the judiciary above this sublime thought. No one is above the law. Not even the judiciary.
CRIMINAL CONTEMPT AND FREEDOM OF PRESS
The Press is considered as one of the pillars of democracy. It has always gone hand in hand with the judiciary. The Freedom of the Press is a very important right for the protection of democracy. In the Constitution of the United States of America, Freedom of the Press is a fundamental right guaranteed under the First Amendment. This means that the Press can print anything, as long as it is not untrue and defamatory, thus making criminal contempt a difficult thing to prove.
This is not an exclusive right under the Constitution of India, but it may be taken as a right falling under the Freedom of Speech and Expression under Article 19(1)(a).
This makes us wonder again why Freedom of the Press has not been made a Right under the constitution but is to be understood as an expansion of Article 19(1)(a). The press is a very important tool and is a symbol of freedom. It was during the time of the British that there was curb on free press, by the Vernacular Press Act. Putting a curb on free press is only reverting back to those archaic times.
Even in England, the phrase “scandalizing the Court” has become obsolete. Truth is allowed as a defence in the interest of the public. Since our laws are based closely along the lines of the English law, such a change could also be implemented in India.
Due to the said Act, there has been troubled waters between the judiciary and the press.
In the landmark judgement, Perspective Publications v. State of Maharashtra , the Supreme Court said,
“… No attempt was made before the High Court to substantiate that the facts stated in the article were true or founded on correct data. It may be that truthfullness or factual correctness is a good defence in an action for libel, but in the law of contempt there are hardly any English or Indian cases in which such a defence has been recommended.
In Bathina Ramakrishna Reddy case there was discussion about the bona fides of the person responsible for the publication but that was done to dispose of the contention which had been raised on that point. The words,
“even if good faith can be held to be a defence at all in a proceeding for contempt shows that the cCourtdid not lay down affirmatively that good faith can be set up as a defence in contempt proceedings.
The importance of truth as defence in these cases was shown in cases involving Karnataka High Court judges being involved in sex scandals. Several publications reported it, and were held in contempt. It was held that during contempt proceeding, truth is not a defence.
However, apart from cases of contempt, the Supreme Court has always upheld the freedom of the press. A constitutional bench of the Supremem Court is going in to a plea of allowing truth as a defence.
On an appeal, the Supreme Court, then presided by Chief Justice V.N. Khare had openly observed that “truth is a defence”. Justice Khare also stated in open Court proceedings that “truth is a defence but nobody comes forward with the truth.”
CONTEMPT OF COURT AND FREEDOM OF EXPRESSION
It is generally felt that the existing law relating to criminal contempt is somewhat ambiguous and uncertain, giving major scope for indiscriminate use.
The jurisdiction to punish for contempt touches upon 2 important fundamental rights namely, Right to Personal Liberty and Right to Freedom of Expression. In a democracy such as India, these rights are everything. This country is not a dictatorshop. Therefore, when a right is guarenteed under the Constitution, everything else falls beneath it.
Then how can such liberties be blatantly be taken away by the courts, by saying that “truth is not a defence” as was stated in many many cases.
Many major international and regional human rights instruments on civil and political rights – all protect both freedom of speech and expression and the administration of justice. Freedom of expression is protected in Article 19 of ICCPR as-
Everyone shall have the right to hold opinions without interference.
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas regardless of frontiers through any media of his choic.
It was therefore considered advisable to have the entire law on this subject reviewed by a special committee. In pursuance of this, a committee was\set up in 1961 under the chairmanship of H.N. Sanyal, the then solicitor general. the recommendations made by the committee, in light of the legislation of other countries as well took note of the importance given to freedom of speech given in the constitution and the need for safeguarding the status and dugnity of courts and interests of the administration of justice. The recommendations of the committee have been generally accepted by the state governments, union territory administrations, the Supreme Court, the high courts and the judicial commissioners.
An amending Bill seeks to amend S. 13 of the Act to allow, “justification by truth as a valid defence in any proceedings for contempt of Court.” Once this Bill is passed a person accused of contempt of Court can place on record the truth as a defence- a course the defendant cannot take now. Such an amendment was made in English law, giving the Press the freedom to tell people the truth.
There is a significant tension between the freedom of expression and the administration of justice because of the high public interest in maintaining and protecting both principles.
MISUSE OF CRIMINAL CONTEMPT BY THE JUDICIARY.
The Supreme Court issued notices to Arundathi Roy, Medha Patkar and Prashant Bhushan for criminal contempt following a dharna organized by the Narmada Bachao Andolan outside the Supreme Court on December 13, 2000. The bench comprising Ruma Pal and G.B. Pattnaik J.J., which heard the case concluded that the petition did not contain allegations that the participants in the dharna had picketed the gates of the Court complex preventing lawyers and litigants from entering or leaving the Court complex.
Such allegations, if made and substantiated, could have constituted criminal contempt under sub section 2 (c )(ii) and (iii) of the Act. The bench also agreed that procedurally the petition was deeply flawed and should not have come up before the Court for this reason. But all this did not stop the Supreme Court from issuing a fresh notice for criminal contempt on Arundathi Roy for three paragraphs in her affidavit, sentencing her to a day’s imprisonment and Rs. 2000 as fine.
“It can be said without fear of contradiction that no apex Court in any democracy in the world, governed by the rule of law would have held anyone guilty of contempt of Court for what she said in her affidavit.”
The Court took a contrary view while dealing with Shiv Sena chief Bal Thackeray, against whom it had initiated Court proceedings for his mouthpiece, Samna Thackeray quetioned the right of the judges who were hearing petitions alleging electoral corupt practises by him. He said that it was beyond the jurisdiction of th higest Court to judge his case, and he called muslims names. The Court asked him to apologise. Instead, his lawyr told the Court not to resort to the extreme step of preison, as it would cause national unrest. Later, the Court proceedings were dropped.
Such is the scope for misuse. Yet another flaw, is the fact that the judge in question has the power to sit in the proceedings for contempt himself. This is another serious anomaly that the Constitutional Review Commission (CRC) has asked to do away with.
It has taken a long time for the Union government to brave the resistance of thejudiciary and attempt to amend the anomalous clauses in The Contempt of Courts Act, 1971.
The phrase, “scandalising the Court” has been greatly misusd by the judiciary, as illustrated above. With the amendment, in the government’s eye, it will make the judiciary more accountable.
Justice must be done. It must also be seen to have been done. Thus, higher constitutional obligattions now vestes on these judges to do complete justice which must be seen to have been done, no matter if the members of their own professions are in the thick of the controversies.
Truth is a very important objective. Our very own freedom struggle was based on this concept. Thus, the aim must be to discover the truth, even at the cost of uncovering corruption in the judiciary or causing mass unrest, for no doctrine in the law is above the doctrine of truth.