Understanding the Law on Criminal Contempt in India

The term ‘Contempt of Courts’ has managed to find its way back into our daily discussions after the controversies regarding Prashant Bhushan and his tweets. While the controversy has now ended and we have moved on to other headlines, some of us would still be curious to know more about the law and the limits it imposes on our freedom of speech.

The law of Contempt has been recognized under the laws of England from the twelfth century itself, as a measure to uphold the dignity of the Court. Since then, the law has traveled out of England to its various colonies, including India, and has evolved with changing times. In India, the Contempt of Courts Act of 1971 governs the law of Contempt. Hereunder let’s briefly look at the concept of Criminal Contempt under the Contempt of Courts Act.

What is Contempt of Court?

Instead of defining what exactly is contempt of court, the Indian Law says that contempt of court consists of two prongs, civil contempt, and criminal contempt, and then goes on to define those two terms.

Civil Contempt 

Civil contempt can be defined as any wilful disobedience of an existing court order or an undertaking made to the court. This provision is narrow in its scope when compared to its sibling, criminal contempt.

Criminal Contempt

Criminal contempt can arise either from your actions or from publishing a matter which:

(i) scandalizes or tends to scandalize, 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;

When the law speaks of ‘publication’, it means publication through any method. This will include words (spoken or written), signs, visible representation, among other methods. Unlike civil contempt, there is no need for a pre existing court order in criminal contempt and as Prashant Bhushan’s case has shown us, even a tweet could be the basis to initiate proceedings against your name.

A statement will not amount to criminal contempt merely on the ground that it is made against a judge. If the statements are made with respect to the private life of a judge, the proper remedy against such an action would be a case of defamation, and not contempt proceedings. However, if such a statement is related to the acts of a judge in their official capacity, it will be considered as criminal contempt. Such statements are considered to interfere with the administration of justice, and denigrate the perception of the public towards the Court.

How are proceedings initiated against you?

Under the scheme of the Act, only the Supreme Court, High Courts, and the Judicial Commissioner of a Union Territory is empowered to initiate contempt proceedings. Subordinate courts do not have the power to initiate contempt proceedings and they can only refer the matter to their respective High Courts. The law envisages two different scenarios where contempt of proceedings can be initiated against a person:

1. When the alleged act happens in the presence of the Court

In such a case, the court can take a person into custody and try his case on the very same day or at the earliest possible opportunity. The person will be informed of the charges against them, and be given an opportunity to make their defense and submit evidence to the same. They can also apply to have their case heard by any other Judge(s) other than the Judge(s) in whose presence the alleged contempt was committed. The Court shall accept such an application as long as it is practicable and in the interests of the proper administration of justice.

2. When the alleged act does not happen in the presence of the Court

In such a case, upon information of such an act, the Court can take up a case on its own or take up such a case on a reference by the legal officer specified in the Act. Moreover, any person can apply to the Courts to initiate contempt proceedings against a third party. However, such an application can only be made with the written consent of:

• Attorney General or Solicitor General, in case of the Supreme Court,

• Advocate General, in case of High Courts,

• The specified Law Officer, in case of the court of Judicial Commissioner.

This provision is there to ensure that the courts are not flooded with frivolous matters that will just take up their time. This provision had also been in the limelight recently as the Attorney General and Solicitor General had refused to give their consent to a private person’s plea to initiate contempt proceedings against actress Swara Bhaskar on her comments regarding the Ayodhya verdict.

Defenses Against Charges of Contempt

Fair Comment

The Act provides that a fair and accurate report of a judicial proceeding or a fair criticism of a judicial act will not amount to contempt. Even the Judiciary cannot be immune from fair criticism. However, such criticism should not be in the form of distortion of facts meant to maliciously tarnish the image of the institution in front of the public.

Innocent Publication

If a person is being tried on the allegation that their publication prejudices pending proceedings, they can plead that at the time of publication:

• They could not reasonably know that such a proceeding was pending, or

• Such a proceeding is, in fact, not pending, or

• They could not reasonably know that their actions would be prejudicial to the pending proceedings.

Truth

This is a new addition to the list of defenses available as it was only added in 2006. However, truth merely will not be a defense. One should also prove that the statement made was in the public interest and was made with good intentions.

Complaint against the presiding officer of a subordinate court

If a complaint is made against such an officer, with good intentions, to either the High Court or any other subordinate court, it will not be contempt.

Punishment for Contempt

When one is held guilty of contempt, it will be open for the guilty party to apologize to the court and save themselves from any other punishments. However, such an apology should be genuine and not merely a ruse to save yourself from punishment. If you are unwilling to apologize, or the court is not satisfied with your apology, they can punish you with a fine of up to Rs 2,000, or simple imprisonment for up to 6 months, or with both. However, this limit is only applicable to the High Courts and not for the Supreme Courts. For the latter, this limit will only serve as a guide to the punishments that can be given.

Appealing Against an Order of Contempt

An aggrieved party has the right to appeal against the decision of a single judge of a High Court to a bench of two or more judges of the same High Court. If the case was tried and decided by a Bench of two or more judges of a High Court, the appeal can be made only to the Supreme Court. If the decision was made by the court of the Judicial Commissioner of a Union Territory, the appeal can be made only to the Supreme Court. Here, the appeal can only be made by a person who has been found guilty by the Court. If the Court decides to drop the proceedings, or find him not guilty of the charges, the informant cannot appeal against that decision.

The Act only gives a person one shot at an appeal. If the appeal against that decision fails, there is no further right under the statute. However, a person can always appeal to the Supreme Court against a decision of the High Court under Article 136 of the Constitution which is commonly known as a special leave petition. The Act also does not provide for an appeal against the decision of the Supreme Court. However, it will be possible for a party to apply for a review of the judgment under Article 137 of the Constitution.

Have any more questions on the law on contempt in India? Ask Nyaaya.

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Abin Alex is a student at NUJS, Kolkata and a member of Kautilya Society, an initiative of Vidhi Centre for Legal Policy. Views are personal.