Contempt Of Court Is A Special Jurisdiction To Be Exercised Sparingly And With Caution

Introduction

When proceedings in contempt are taken for vilification of the judge, the question which the court has to ask is whether the vilification is of the judge as a judge or it is the vilification of the judge as an individual. If the vilification of the judge is as an individual, then he is left to his private remedies and the Court has no power to punish for contempt. In the former case, the Court will proceed to exercise the jurisdiction with scrupulous care and in cases which are clear and beyond reasonable doubt. In the present case, the vilification, if any, is against the CJI as an individual and not as a CJI of the Supreme Court and as such, the proceedings of the Court would not be tenable.


The court should be willing to ignore, by a majestic liberalism, trifling and venial offences. Freedom of expression, fairly exercised, subserves public interest in reasonable measure, public justice cannot gag it or manacle it.
In the case of P.N. Duda v. P. Shiv Shanker & Others, (1988) 3 SCC 167, the then Minister of Law, Justice and Company Affairs P. Shiv Shankar had made a speech making fierce allegations to the effect, that the Supreme Court was composed of elements from the elite class, that because they had their `unconcealed sympathy for the haves’ they interpreted the expression

`compensation’ in the manner they did. He submitted, that the Supreme Court held, that the said was an expression of opinion about an institutional pattern. It was submitted, that even in spite of such serious allegations made, the Court found that the case of proceeding for contempt was not made out.
Contempt of Court:
The source of power of Supreme Court for proceeding for an action of contempt is under Article 129 of Constitution of India. That power of Supreme Court to initiate contempt is not in any manner limited by the provisions of the Contempt of Courts Act, 1971. The Court is vested with the constitutional powers to deal with the contempt and Section 15 of contempt of court act is not the source of the power to issue notice for contempt. It only provides the procedure in which such contempt is to be initiated.
It is equally well settled, that once the Court takes cognizance, the matter is purely between the Court and the contemnor. The only requirement is that, the procedure followed is required to be just and fair and in accordance with the principles of natural justice.


In Pritam Pal v. High Court of Madhya Pradesh, AIR 1992 SC 904, Jabalpur through Registrar, a 2 Judge Bench of Supreme Court held as follows:


“Prior to the Contempt of Courts Act, 1971, it was held that the High Court has inherent power to deal with a contempt of itself summarily and to adopt its own procedure, provided that it gives a fair and reasonable opportunity to the contemnor to defend himself. But the procedure has now been prescribed by Section 15 of the Act in exercise of the powers conferred by Entry 14, List III of the Seventh Schedule of the Constitution. Though the contempt jurisdiction of the Supreme Court and the High Court can be regulated by legislation by appropriate Legislature under Entry 77 of List I and Entry 14 of List III in exercise of which the Parliament has enacted the Act of 1971, the contempt jurisdiction of the Supreme Court and the High Court is given a constitutional foundation by declaring to be `Courts of Record’ under Articles 129 and 215 of the Constitution and, therefore, the inherent power of the Supreme Court and the High Court cannot be taken away by any legislation short of constitutional amendment. In fact, Section 22 of the Act lays down that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law relating to Contempt of Courts. It necessarily follows that the constitutional jurisdiction of the Supreme Court and the High Court under Articles 129 and 215 cannot be curtailed by anything in the Act of 1971…”

Consent of Attorney General in Contempt Cases:


In P.N. Duda v. P. Shiv Shanker, (1988) 3 SCC 167 the respondent, Shri P. Shiv Shiv Shanker, who was a former judge of the High Court and was the Minister for Law, Justice and Company Affairs delivered a speech which was said to be contemptuous. A petition was filed by the petitioner P. N. Duda who was an advocate but Court declined to initiate contempt proceedings. It was held that Shri P. Shiv Shanker was not guilty of contempt of Court. Having held so, the Court went on to decide whether the petition could have been entertained on behalf of Shri Duda. In the said petition, Shri Duda had written a letter to the Attorney General seeking consent for initiating contempt proceedings against Shri P. Shiv Shanker. A copy of the said letter was also sent to the Solicitor General of India. While seeking consent, the petitioner had also stated that the Attorney General may be embarrassed to give consent for prosecution of the Law Minister and in view of the said allegations, the Attorney General felt that the credibility and authority of the office of the Attorney General was undermined and therefore did not deny or grant sanction for prosecution. The Court held that the petitioner could not move the Court for initiating contempt proceedings against the respondent without consent of the Attorney General and the Solicitor General.
Scandalizing the Court:


A publication which attacks on individual judges or the court as a whole with or without reference to particular case, casting unwarranted and defamatory aspersions upon the character or ability of the judges, would come within the term of scandalizing the Court.
Such a conduct tends to create distrust in the popular mind and impair the confidence of the people in the courts, which are of prime importance to the litigants in the protection of their rights and liberties. C.J. Hidayatullah observed that, when the conduct of a person tends to bring the authority and administration of the law into disrespect or disregard, the same would amount to scandalising the Court. This conduct includes all acts which bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority.
Hindering or obstructing the due administration of justice


In re Hira Lal Dixit and two others, (1955) 1 SCR 677, the Constitution Bench was considering a leaflet distributed in the court premises printed and published by the said Hira Lal Dixit. He was the applicant in one of the writ petitions which had been filed in the Supreme Court challenging the validity of U.P. Road Transport Act, 1951. The leaflet though contained a graphic account of the harassment and indignity said to have been meted out to the writer by the State Officers and the then State Minister of Transport in connection with the cancellation and eventual restoration of his license in respect of a passenger bus, also contained the following passage:
“The public has full and firm faith in the Supreme Court, but sources that are in the know say that the Government acts with partiality in the matter of appointment of those Hon’ble Judges as Ambassadors, Governors, High Commissioners, etc., who give judgments against Government but this has so far not made any difference in the firmness and justice of the Hon’ble Judges”.

It will be relevant to refer to the following observation of the Constitution Bench in the said case: “Learned counsel for the respondent, Hira Lal Dixit, maintained that the passage in question was perfectly innocuous and only expressed a laudatory sentiment towards the Court and that such flattery could not possibly have the slightest effect on the minds of the Judges of this august tribunal. We do not think flattery was the sole or even the main object with which this passage was written or with which it was published at the time when the hearing of the appeals was in progress. It no doubt begins with a declaration of public faith in this Court but this is immediately followed by other words connected with the earlier words by the significant conjunction “but”. The words that follow are to the effect that sources that are in the know say that the Government acts with partiality in the matter of appointment of those Judges as Ambassadors, Governors, High Commissioners, etc., who give judgments against the Government. The plain meaning of these words is that the Judges who decide against the Government do not get these high appointments. The necessary implication of these words is that the Judges who decide in favour of the Government are rewarded by the Government with these appointments. The attitude of the Government is thus depicted surely with a purpose and that purpose cannot but be to raise in the minds of the reader a feeling that the Government, by holding out high hopes of future employment, encourages the Judges to give decisions in its favour.

This insinuation is made manifest by the words that follow, namely, “this has so far not made any difference in the firmness and justice of the Hon’ble Judges”. The linking up of these words with the preceding words by the conjunction “but” brings into relief the real significance and true meaning of the earlier words. The passage read as a whole clearly amounts to this: “Government disfavours Judges who give decisions against it but favours those Judges with high appointments who decide in its favour: that although this is calculated to tempt Judges to give judgments in favour of the Government it has so far not made any difference in the firmness and justice of the Judges”. The words “so far” are significant. What, we ask, was the purpose of writing this passage and what was the object of the distribution of the leaflet in the Court premises at a time when the Court was in the midst of hearing the appeals?

Surely, there was hidden in the offending passage a warning that although the Judges have “so far” remained firm and resisted the temptation of deciding cases in favour of Government in expectation of getting high appointments, nevertheless, if they decide in favour of the Government on this occasion knowledgeable people will know that they had succumbed to the temptation and had given judgment in favour of the Government in expectation of future reward in the shape of high appointments of the kind mentioned in the passage. The object of writing this paragraph and particularly of publishing it at the time it was actually done was quite clearly to affect the minds of the Judges and to deflect them from the strict performance of their duties. The offending passage and the time and place of its publication certainly tended to hinder or obstruct the due administration of justice and is a contempt of Court.”
A perusal of the aforesaid observation of the Constitution Bench would reveal, that though the said passage/paragraph begins with a statement, that `the public has full and firm faith in the Supreme Court…’ and ends with, `but this has so far not made any difference in the firmness and justice of the Hon’ble Judges’, the Court found, that if the statement in the said passage/paragraph was read in entirety and the timing and the manner in which it was published, it was clear, that it was done to affect the minds of the judges and to deflect them from the strict performance of their duties.
The Court came to the conclusion, that the offending passage and the time and place of its publication certainly tended to hinder or obstruct the due administration of justice and was a contempt of Court.

In the case of C.K. Daphtary & Ors. V. O.P. Gupta & Ors., (1971) 1 SCC 626 Court was considering a motion made under Article 129 of the Constitution by the President of the Bar Association and some other Advocates. By the said motion, the petitioners therein had brought to the notice of Court the pamphlet printed and published by the respondent No.1 therein, wherein scurrilous aspersions were made against the judges of this Court. It will be relevant to refer to the following observations of Court: “We are unable to agree with him that a scurrilous attack on a Judge in respect of a judgment or past conduct has no adverse effect on the due administration of justice. This sort of attack in a country like ours has the inevitable effect of undermining the confidence of the public in the Judiciary. If confidence in the Judiciary goes, the due administration of justice definitely suffers.”
It could thus be seen, that it has been clearly held by the Constitution Bench, that a scurrilous attack on a judge in respect of a judgment or past conduct has an adverse effect on the due administration of justice. The Constitution Bench has unambiguously held, that this sort of attack in a country like ours has the inevitable effect of undermining the confidence of the public in the Judiciary and if the confidence in the Judiciary goes, the due administration of justice definitely suffers. In the said case, after holding the contemnor O.P. Gupta guilty for contempt, Court refused to accept the apology tendered by him finding that the apology coupled with fresh abuses can hardly be taken note of. However, taking a lenient view, Court sentenced him to suffer simple imprisonment for two months.


In the case of Pritam Pal v. High Court of Madhya Pradesh, Jabalpur through Registrar, 1993 Supp (1) SCC 529, Court was considering an appeal filed by an Advocate, who after failing to get a favourable judgment in his own writ petition had moved a contempt petition against the judges of the High Court, who had dismissed his petition, therein casting scurrilous aspersions against their conduct in the discharge of their judicial function which bore reflections on their integrity, honesty and judicial impartiality. The High Court invoking the jurisdiction under Article 215 of the Constitution had initiated suo motu proceedings against him and had convicted him for having committed criminal contempt. While dismissing the appeal, this Court observed thus:


60. The maxim “salus populi suprema lex”, that is “the welfare of the people is the supreme law” adequately enunciates the idea of law. This can be achieved only when justice is administered lawfully, judicially, without fear or favour and without being hampered and thwarted, and this cannot be effective unless respect for it is fostered and maintained.

61. To punish an advocate for contempt of court, no doubt, must be regarded as an extreme measure, but to preserve the proceedings of the courts from being deflected or interfered with, and to keep the streams of justice pure, serene and undefiled, it becomes the duty of the Court, though painful, to punish the contemnor in order to preserve its dignity. No one can claim immunity from the operation of the law of contempt, if his act or conduct in relation to court or court proceedings interferes with or is calculated to obstruct the due course of justice.”

Court held, that the welfare of the people is the supreme law and this can be achieved only when justice is administered lawfully, judicially, without fear or favour and without being hampered and thwarted and this cannot be effective unless respect for it is fostered and maintained. It has been held, that to punish an Advocate for Contempt of court must be regarded as an extreme measure, but to preserve the proceedings of the Courts from being deflected or interfered with, and to keep the streams of justice pure, serene and undefiled, it becomes the duty of the Court to punish the contemnor in order to preserve its dignity.
In the case of Dr. D.C. Saxena v. Hon’ble the Chief Justice of India, (1996) 5 SCC 216, a writ petition was filed under Article 32 by way of a PIL making scurrilous imputations against the CJI. Court observed thus:
“33. A citizen is entitled to bring to the notice of the public at large the infirmities from which any institution including the judiciary suffers from. Indeed, the right to offer healthy and constructive criticism which is fair in spirit must be left unimpaired in the interest of the institution itself. Critics are instruments of reform but not those actuated by malice but those who are inspired by public weal. Bona fide criticism of any system or institution including the judiciary is aimed at inducing the administration of the system or institution to look inward and improve its public image. Courts, the instrumentalities of the State are subject to the Constitution and the laws and are not above criticism. Healthy and constructive criticism are tools to augment its forensic tools for improving its functions. A harmonious blend and balanced existence of free speech and fearless justice counsel that law ought to be astute to criticism. Constructive public criticism even if it slightly oversteps its limits thus has fruitful play in preserving democratic health of public institutions. Section 5 of the Act accords protection to such fair criticism and saves from contempt of court. The best way to sustain the dignity and respect for the office of judge is to deserve respect from the public at large by fearlessness and objectivity of the approach to the issues arising for decision, quality of the judgment, restraint, dignity and decorum a judge observes in judicial conduct off and on the bench and rectitude.”

It has been held, that a citizen is entitled to bring to the notice of the public at large the infirmities from which any institution including judiciary suffers from. It has been further held, that the right to offer healthy and constructive criticism, which is fair in spirit must be left unimpaired in the interest of the institution itself. It has been held, that critics are instruments of reform but not those actuated by malice but those who are inspired by public weal. It has also been held, that constructive public criticism even if it slightly oversteps its limits thus has fruitful play in preserving democratic health of public institutions.


The Constitution Bench of Supreme Court in the case of Supreme Court Bar Association v. Union of India and another, (1998) 4 SCC 409, held thus:
“42. The contempt of court is a special jurisdiction to be exercised sparingly and with caution whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely affects the majesty of law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. It is an unusual type of jurisdiction combining “the jury, the judge and the hangman” and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned. In the general interest of the community it is imperative that the authority of courts should not be imperilled and there should be no unjustifiable interference in the administration of justice. It is a matter between the court and the contemner and third parties cannot intervene. It is exercised in a summary manner in aid of the administration of justice, the majesty of law and the dignity of the courts. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice.”

The observations of the Constitution Bench reiterate the legal position that the contempt jurisdiction, which is a special jurisdiction has to be exercised sparingly and with caution, whenever an act adversely affects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised, when the act complained of adversely affects the majesty of law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law. This jurisdiction is not to be exercised to protect the dignity of an individual judge, but to protect the administration of justice from being maligned. It is reiterated, that in the general interest of the community, it is imperative that the authority of courts should not be imperilled and there should be no unjustifiable interference in the administration of justice. It has been reiterated, that no such act can be permitted, which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice.


Freedom of Speech and Expression:


It is well settled that a citizen while exercising right under Article 19(1) is entitled to make a fair criticism of a judge, judiciary and its functioning. However, the right under Article 19(1) is subject to restriction under clause (2) of Article 19. An attempt has to be made to properly balance the right under Article 19(1) and the reasonable restriction under clause (2) of Article 19. If a citizen while exercising his right under Article 19(1) exceeds the limits and makes a statement, which tends to scandalize the judges and institution of administration of justice, such an action would come in the ambit of contempt of court. If a citizen makes a statement which tends to undermine the dignity and authority of this Court, the same would come in the ambit of `criminal contempt’. When such a statement tends to shake the public confidence in the judicial institutions, the same would also come within the ambit of `criminal contempt’.
No doubt, that when a statement is made against a judge as an individual, the contempt jurisdiction would not be available. However, when the statement is made against a judge as a judge and which has an adverse effect in the administration of justice, the Court would certainly be entitled to invoke the contempt jurisdiction. No doubt, that while exercising the right of fair criticism under Article 19(1), if a citizen bonafidely exceeds the right in the public interest, this Court would be slow in exercising the contempt jurisdiction and show magnanimity. However, when such a statement is calculated in order to malign the image of judiciary, the Court would not remain a silent spectator. When the authority of Supreme Court is itself under attack, the Court would not be a onlooker.
The rule of law is the foundation of a democratic society


The rule of law is the foundation of a democratic society. The Judiciary is the guardian of the rule of law. Hence judiciary is not only the third pillar, but the central pillar of the democratic State. In a democracy like ours, where there is a written Constitution which is above all individuals and institutions and where the power of judicial review is vested in the superior courts, the judiciary has a special and additional duty to perform, viz., to oversee that all individuals and institutions including the executive and the legislature act within the framework of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the disputes between the parties which is essential to peaceful and orderly development of the society. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the courts are entrusted with the extraordinary power of punishing those who indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalising them and obstructing them from discharging their duties without fear or favour. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.
The judiciary is the guardian of the rule of law and is the central pillar of the democratic State. In our country, the written Constitution is above all individuals and institutions and the judiciary has a special and additional duty to perform i.e. to oversee that all individuals and institutions including the executive and the legislature, act within the framework of not only the law but also the fundamental law of the land.
If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. The courts are entrusted with the extra-ordinary power of punishing those who indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalising them and obstructing them from discharging their duties without fear or favour. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.


Conclusion:


Indian judiciary is considered by the citizens in the country with the highest esteem. The judiciary is considered as a last hope when a citizen fails to get justice anywhere. The Supreme Court is the epitome of the Indian judiciary. An attack on the Supreme Court does not only have the effect of tending an ordinary litigant of losing the confidence in the Supreme Court but also may tend to lose the confidence in the mind of other judges in the country in its highest court. A possibility of the other judges getting an impression that they may not stand protected from malicious attacks, when the Supreme Court has failed to protect itself from malicious insinuations, cannot be ruled out. As such, in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly. No doubt, that the Court is required to be magnanimous, when criticism is made of the judges or of the institution of administration of justice. However, such magnanimity cannot be stretched to such an extent, which may amount to weakness in dealing with a malicious, scurrilous, calculated attack on the very foundation of the institution of the judiciary and thereby damaging the very foundation of the democracy.
The Indian Constitution has given a special role to the constitutional courts of this country. The Supreme Court is a protector of the fundamental rights of the citizens, as also is endowed with a duty to keep the other pillars of democracy i.e. the Executive and the Legislature, within the constitutional bounds. If an attack is made to shake the confidence that the public at large has in the institution of judiciary, such an attack has to be dealt with firmly.

No doubt, that it may be better in many cases for the judiciary to adopt a magnanimously charitable attitude even when utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement. However, when there appears some scheme and design to bring about results which have the tendency of damaging the confidence in our judicial system and demoralize the Judges of the highest court by making malicious attacks, those interested in maintaining high standards of fearless, impartial and unbending justice will have to stand firmly. If such an attack is not dealt with, with requisite degree of firmness, it may affect the national honour and prestige in the comity of nations. Fearless and impartial courts of justice are the bulwark of a healthy democracy and the confidence in them cannot be permitted to be impaired by malicious attacks upon them.

The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is sought to be shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded. The Indian judiciary is not only one of pillars on which the Indian democracy stands but is the central pillar. The Indian Constitutional democracy stands on the bedrock of rule of law. The trust, faith and confidence of the citizens of the country in the judicial system is sine qua non for existence of rule of law. An attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand .

Aishwarya Says:

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