Scrap criminal
contempt of court?
Contempt of court is a court order which, in the context of a court
trial or hearing,
declares a person or organization to have disobeyed or been
disrespectful of
the court's authority. A finding of contempt of court may result from a
failure
to obey a lawful order of a court, showing disrespect for the judge,
disruption
of the proceedings through poor behavior, or publication of material
deemed
likely to jeopardize a fair trial. In many countries, we have different
forms
of contempt laws. To quote a few, in Australia a judge may impose a
fine, fixed
jail term or hold a person at the pleasure of Her Majesty, in Canada
contempt
of court is the only remaining common law offence, in England law on
contempt
is partly set out in case law, and partly specified in the Contempt of
Court
Act 1981, in USA we have direct contempt and indirect contempt and so
on.
The origin of the law of contempt in India can be traced to the English
law. The
high courts in India have exercised the jurisdiction inherent in a court
of
record. The Contempt of Courts Act was passed in 1926. Later there was
the
Contempt of Courts Act, 1971, along with Contempt of Courts (Amendment)
Act,
1976. Under section 2(a) Contempt of court has been defined as civil
contempt
or criminal contempt. Under section 2(b), Civil contempt means willful
disobedience to any judgement, decree, direction, order, writ or other
process
of a court or willful breach of an undertaking given to a court, while
section
2 (c) deals with Criminal contempt related with the publication of any
matter to
lower the authority of any court or interferes with due course of any
judicial
proceeding. Section 3 deals with Innocent publication and distribution
of
matter calling it not a contempt. Section 4 says fair and accurate
report of
judicial proceeding is not contempt, though interestingly an Apex court
verdict
says that while reproducing the court proceedings, no words may be
added,
omitted or substituted ( E T Sen v E Narayanan, AIR 1969 Del 201).
Similarly
section 5 says that Fair criticism of judicial act is not contempt. Here
it is
relevant to quote two important decisions. In Advocate general v Abraham
George,
1976 Cr. LJ 158 (161) was said that Judgments are open to criticism that
must
be done without casting aspersions on the judges and the courts and
without
adverse comments amounting to scandalising the courts, while in State of
Uttar
Pradesh v Brahma Prakash, AIR 1950 All 556 says that the criticism of a
judge must
be free from the imputation of improper motives. At the same time,
Section 13
says that no court shall impose a sentence under this Act unless it is
satisfied that the contempt is of such a nature that it substantially
interferes, or tends substantially to interfere with the due course of
justice.
The same spirit is seen in Shakuntala Sahadevram Tewari v. Hemchand
M.Singhania, (1990) 3 Bom CR 82 Bom which says that the contempt
jurisdiction, which is of a special nature, should be sparingly used.
This is the legal background for the discussion that I want to present
before
you. We all know that Contempt of Court is a much used term in our
social life
and has come to acquire a place even in daily parlance. One can often
hear the
journalists saying that they shall be unable to publish particular news
related
to Judiciary since it will land him/her and the newspaper in trouble
because of
the contempt of courts Act. There is no doubt that Court’s authority and
integrity must be preserved at all costs, but at the same time in the
changing circumstances,
there are many who have started questioning the relevance, importance
and need
of this Act. The reasons are simple. There was a time when judiciary and
the
possible reasons and intentions behind judicial decisions were seldom
discussed. Whatever was uttered by the judicial bodies was taken almost
like a
gospel truth. All the concerned parties, including those who got
adversely
affected by the judicial decisions, accepted them with equanimity. The
Judge’s
persona or individuality never came in question. But then some
unfortunate things
started happening. It might have begun with the lower judiciary where
people
started talking of judgments and decisions being based on extraneous
factors. A
few people, including a few advocates as well, were now being perceived
as
being capable of delivering desired judicial decisions and orders. The
uproar
was heard particularly in the field of civil orders regarding
maintenance of
Status quo (popularly called Stay orders) and grant of bails in criminal
offences. People started quoting instances with seemingly adequate
evidences
for the decisions they perceived as being unfounded on law and facts.
But then
the fear of the Contempt of Courts Act as defined above came in the way
of
people openly blaming the courts or the media taking up the cause. There
were
very few people who could muster courage and register a complaint
against judicial
officers.
Somehow the discussions did not stop here. 1991 saw the first unsavoury
incidence of impeachment motion against a Supreme Court justice V.
Ramaswamy signed
by 108 members of Parliament, who in a high-profile inquiry was found
"guilty
of willful and gross misuses of office . . . and moral turpitude ". He
survived the impeachment proceedings but had already dent a visible blow
in the
prestige of Judiciary. Former Justice of Calcutta High Court Soumitra
Sen's
impeachment was recommended by the Chief Justice of India himself. Then
we had
the cash in bag case in Chandigarh where the name of a serving Judge
came prominently
leading even to CBI investigation. The case of elevation of Justice
Dinakaran
from Karnataka High Court also hit the headlines for seemingly
unfavourable
reasons. These instances are perceived as being symptomatic of all not
being
well in judiciary. As per a survey
conducted in 2005 by the Centre for Media Studies, a very high 77
percent of
respondents believe the Indian judiciary is corrupt.
And it is exactly in this reference and context that the Contempt of
Courts Act
comes in renewed discussion. More and more people are feeling and
sincerely
believing that with the situation no longer being what it used to be
once,
there is a very sincere and immediate need to look into the provisions
of this
Act. There is a feeling that the time has now come where people
(including the
media) shall be allowed to discuss the bare facts related with Judiciary
and
judicial decisions in as much depth and with as much freedom as has been
assigned in regards to the other pillars of democratic setup. Thus while
we see
the executive and legislative bodies being discussed in open, the same
should
be true for judiciary. Transparency is supposed to be a panacea for
system
improvement and hence no organ of the State shall be kept away from
this. With
this kind of thought gaining more and more momentum, there are people
who feel
that while the civil contempt under section 2(a) is quite a need as we
must
have a mechanism to enforce the judicial decisions, we could do without
the
criminal contempt part. I also personally strongly seem to agree with
the logic
put by people believing in this stream of thought, who say that let all
the
facts and information regarding judiciary and judicial decisions be
brought in
open in the public foray so that there is a suitable check and balance
on the
judicial system and any erring member of the judiciary does not take
undue
advantage of the provisions of this Act. This might also include a
massive expansion of the applications of the Right to Information Act in
the judicial process in a suitanle manner.
Niels Bohr, the great Danish
physicist
who took us in the fascinating world of quantum mechanics had once said-
““The
best weapon of a dictatorship is secrecy, but the best weapon of a
democracy
should be the weapon of openness””. Amen
Amitabh Thakur
IPS,
Currently at IIM Lucknow
# 94155-34526
