INTRODUCTION Said the book worm to the silverfish I once tried a law book At first, it refused to budge, Then

suddenly it shook And I fell on to judge. To tell you what I felt there. I wont even attempt. Not because I dont dare But there is something called contempt.1 Contempt of court is an offence, which by the common law of England was punishable by the High Court, in a summary manner, by fine or imprisonment or both. The power to punish for contempt of court was applied originally in England to contempt committed in the presence of the court. In 1747, Thomas Martin, Mayor of Great Yamouth, sent a banknote fundamental rights Pound 20 to lord Hardwicke, Lord Chancellor, with a letter referring to a proposed chancery proceeding. The Lord Chancellor ordered Martin to show cause why he should not be committed for contempt. He sought pardon and the Lord Chancellor in consideration of this, his public office, the payment of costs, and his willingness to the suggestion that the bank note be sent to the warden of the Fleet Street prison for debtors for their relief, did not take any action.2 In 1631, when a prisoner threw a brickbat at the Judge and narrowly missed him, the prisoners right hand was ordered to be cut off and hung on the gallows. In 1938, when the disgruntled litigant threw tomatoes at the Court of Appeal, consisting of Clauson and Goddard JJ. 3 He was immediately committed to prison, but released after a few days of incarceration, because, he did not score a direct hit and secondly Christmas was soon approaching. There are several instances of contempt in the face of the Court in English Tradition and they would not end even if we write a book on it. The development of contempt law in England did contribute great principles to the law of contempt, which are presently followed by several common law jurisdictions. The Indian Courts as guided by Common Law principles ought to have followed similar principles as laid down by the common law courts. The law of contempt is well developed under the English precedent system. With regard to other laws the Indian Courts have blindly followed them but the law of contempt has been exercised in an arbitrary and uncontrolled manner, as there was no limit to the period of imprisonment that may be inflicted, or the fine that may be imposed. Article 129 of the Constitution provides that the Supreme Court shall be a court of record with all the powers of such a court; including the power to punish for contempt of itself. Similarly, Article 215 provides that every High Court shall be a Court of Record with all the powers of such a Court including the power to punish for contempt of itself. Under Article 129 the Supreme Court has
1 2

Raju Z Moray, Conversation in a Court Room, The Lawyers Collective, July-August 1994 at 53. Vepa P. Sarthi, G. C. V. Subba Raos Commentary on Contempt of Courts Act, 1971, ALT Publications, Hyderabad, 1999 at 1. 3 Id.

power to deal with contempt committed vis--vis the High Courts.4 Under Entry 77 of List I of the Seventh Schedule to the Constitution, Parliament has the power to make laws relating to the jurisdictions and powers of the Supreme Court, including contempt of such court. Under Entry 14 List III, Parliament and a State Legislature have power to make laws relating to contempt of court, but not contempt of the Supreme Court. Sarthi in his book outline three basic principles of contempt jurisdiction: 1. The power to punish for contempt of court is under Articles 129 and 215 of the Constitution and not solely under the Contempt of Courts Act. The real jurisdiction to try contempt is conferred upon the courts by the Constitution, the basic document of all the laws. 2. But there should be wise economy in the use of this power, as in the case of any other power. Judges should never use this jurisdiction as a means to uphold their dignity, which must rest on better and stronger foundations. It should never be used to suppress those who speak against them, because, good judges do not fear criticism nor do they resent it. The freedom of speech is a very important right and it is only when it is abused to the extent of interfering with the administration of justice that the contempt jurisdiction should be invoked. 3. The dichotomy between the personal protection of a libeled Judge and prevention of obstruction of public Justice should be clearly kept in mind. It is only when the court considers the attack on the Judge or Judges scurrilous, offensive, intimidating or malicious beyond condonable limits, that the strong arm of the law must strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream. The issue in question has been if the statement made by the contemnor is the truth, then can it still be considered contempt. It is submitted that in all cases the so-called contemnor should be allowed to prove the truth of his statement. If he is able to show some prima facie justification, the Judge should be left to his personal remedy of invoking the criminal law of defamation. But if the contemnor fails to show any justification, he must be severely punished. In light of these powers and principles laid down under our Constitution and common law, the authors attempt to analyse the law on contempt of court in India. The position of this principle seems to be arbitrary as far as the recent debates in media portrayed it to be. This is an important tool in the hands of the court and sometimes they need to be used as a sword and sometimes as a shield to protect itself.
4

As explained by Sawant J. in V.C. Mishra AIR 1995 SC 2348. To discharge its obligations as the custodian of the administration of justice in the country and as the highest court imbued with supervisory and appellate jurisdiction over all the lower courts and tribunals, it is inherently deemed to have been entrusted with the power to see that the stream of justice in the tribunals are protected while fear or favour and for that purpose all the courts and tribunals are protected while discharging their legitimate duties. To discharge this obligation, this court has to take cognizance of the deviation from the path of justice in the tribunals of the land, and also of attempts to cause such deviation and obstruct the course of justice. To hold otherwise would mean that although this court is charged with the duties and responsibilities enumerated in the Constitution, it is not equipped with the power to discharge them.

RESEARCH METHODOLOGY Aim The aim of this paper is to find out the concept of contempt of court. This paper seeks to identify the development of contempt under different jurisdictions Scope The project limits itself in understanding the concept of contempt of court. This paper traces the historical jurisprudence of the concept and the latest developments and the contempt as understood under both UK systems and US. Research Questions 1. What is contempt of court? 2. Why is there a necessity of this concept? 3. What is contempt understood in other jurisdictions? 4. Is the Contempt of Courts Act, 1971 a comprehensive legislation? 5. What is the response of Indian Judiciary to this concept? 6. What ought to be contempt of court? Methodology The approach has been primarily descriptive and analytical. Hypothesis The law of contempt, which developed under the common law system, has been clearly defined by the English courts. Even though the Indian courts have deliberated a number of times on contempt law, they have given different interpretations and still the law of contempt is ambiguous under the Indian system.

Mode of citation A uniform mode of citation has been adopted throughout the project. It is as follows: Name of author, Title of book, Place of Publication, Name of the Publishers, Year of Publication, page number. Name of the Author, Name of the Article, Name of the Journal, Volume, Year, Page Number. Sources Both primary and secondary sources are used for the project.

Chapter-I HISTORY AND BACKGROUND TO THE CONTEMPT OF COURTS ACT Our Judges are so honest as other men, and not more so. They have with others The same passions for party, far power And privilege of their corps5 It is a great question to every judicial system as to what contempt of court is. James Francis Oswald defines contempt of court as to speak generally contempt of court may be said to be constituted of the law into disrespect or disregard, or to interfere with or prejudice parties litigant or their witness during the litigation.6 Lord Hadwick in 17427 made a three-fold classification of contempt: 1. Scandalizing the court. 2. Abusing parties who are concerned in the causes, in the presence of court. 3. Prejudicing the public against persons before the cause is heard. The law of contempt is as old as the concept of justice and judicial system. From the times of Romans, this concept was used by the judicial officers of the state to preserve the dignity of the justice system as a whole. But during those days these concepts were used liberally by the sovereign. Oswald in his book provides an illustration. T. of F went armed in the palace, which was shown to the council of the King, by which he was taken and disarmed before Chief Justice Shard, and committed to the prison of the Marshalsea and could not be bailed till the king sent his will.8 With the change in time, the concepts of contempt also evolved. As the art of governance began to grow, the King yielded his powers to the three organs9 of the government, the Executive, the Parliament/ Legislature and the Judiciary. The judges were deemed to have acted in the name of the king. It was Kings justice and as such demanded all respect and obedience. Any disrespect to the seat of justice was affront to the dignity and majesty of law. It is apt to quote what Justice Wilmot states in Rex v. Wilmot:10 And whenever mens allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and in my opinion calls for rapid and immediate action than any other obstruction whatsoever not for the sake of the judges as private individuals but as they are the channels by which the Kings justice is conveyed to people.
5

Thomas Jefferson, as cited in Oxford Dictionary of Quatotations, 3rd Edition, Oxford University Press, 1999. 6 James Francis Oswald, Contempt of Court, 3rd Edn., Hindustan Law Books, Calcutta, 1993 at 6. 7 St. James Evening Post Case (1742) 2 A & K 469. Cited From, V. G Ramachandran, Contempt of Court, 5th Edn., Eastern Book Company, 1976 at 2. 8 Supra. n. 6at1. 9 Mosntesques idea of separation of power divided the state governing bodies into three organs. This model is followed by almost all the jurisdictions in the world. 10 (1975) Wilm 243.

Thus the provision of contempt of court was first put forward and given a firm footing by the English judges. Later the process of contempt of court was introduced into India by the British following the establishment of the courts of record in the 19th Century. This was put on a firm basis in India by Contempt of Courts Act, 1926. The need for contempt of Courts Act, 1926 was felt on account of the difference of opinion between the madras and Bombay High Courts on the one hand and Calcutta High Court on the other regarding the protection of subordinate courts. 11 The attempt at a comprehensive legislation relating to contempt of courts in India was the contempt of Courts Act, 1926. The Act did not contain any provision with regard to contempt of courts subordinate to courts other than High Courts, that is, the courts subordinate to Chief courts and judicial commissioners. The Act also did not deal with the extra territorial jurisdiction of High courts in matters of contempt. The Act of 1926 was a short Act containing only three sections. The preamble mentions that it was an act to define and limit the powers of certain courts in punishing for contempt of courts and since doubts arose as to the powers of the High Court of Judicature to punish for contempt, it was considered expedient to resolve these doubts and limits the powers of the High Court in punishing for contempt of courts. Section 3 of the Act laid down that a contemnor may be punished for simple imprisonment for a term which may extend to 6 months or fine which may extend to 2000 Rupees or with both.12 The Contempt of Courts Act, 1926 was not found adequate and as such the Contempt of Courts Act, 1952 was enacted. From the statement of objects and reasons which led to the enactments of the contempt of Courts Act, 1952, it is obvious that this law was made as there was no specific provision of law which enabled a High Court to exercise this power in respect of Contempt Committed beyond its territorial jurisdiction.13 The provisions for punishment contained in the Contempt of Courts Act, 1926 and the Act of 1952 though valid and constitutional fell short of the expectations of the people and interfered with their fundamental rights of freedom of speech and expression. It was felt that the Act of 1952 did not contain sufficient safeguards for the freedom of press particularly. Thus a committee was set up under the then Additional Solicitor General of India, Sri H. N. Sanyal. The Sanyal Committee submitted a very detailed and comprehensive report suggesting drastic changes in the contempt law. The draft bill was referred to a select committee and the Bill was finally introduced In the Rajya Sabha on 19th February 1968 and the Contempt of Courts Act, 1952 was replaced by the 1971 Act.

11

Justice V. C. Srivastava, Contempt of Court as Cited in K. N. Goyal, Judicial Miscellany, 1st Edn., Institute of Judicial Training and Research Uttar Pradesh, 1993 at 33. 12 This amount of fine was imposed in 1926 and even today under the 1971 Act we have continuation of the same provision without taking into consideration of the time elapsed and the value of money reduced. 13 K. N. Goyal, Judicial Miscellany, 1st Edn., Institute of Judicial Training and Research Uttar Pradesh, 1993 at 34.

It is generally felt that the existing law relating to contempt of courts is somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two important fundamental rights of citizen, namely, the right to personal liberty and the right to freedom of expression. It was therefore, considered advisable to have the entire law on the subject scrutinized by a special committee. The Sanyal Committee was set up to look into this aspect, which made recommendations and most of it were accepted by the Government. Contempt proceedings do not partake the character of a traditional lis. In the legalistic sense a contempt proceeding is not a dispute between two parties but is primarily between the court and the person who alleged to have committed the contempt of court.14 The individual who brings to the notice of the court that contempt has been committed is not a prosecutor but merely an assistant of the court or friend of the court. In Supreme Court Bar Association v. Union of India15 a Constitution Bench described the special jurisdiction to punish for contempt as an unusual type combining the Jury, the Judge and the Hangman and explained this apparent anomaly on the ground that the Court was not adjudication upon any claim between litigating parties. The power to commit for contempt is a punitive power. This is to honor the dignity and integrity of the court and the orders passed by them. DEFINING CONTEMPT OF COURT Several jurists and judges have defined contempt of court but there is no one single standard definition of the phrase contempt of court. Pointing out the difficulties in defining contempt the Sanyal Committee observed: In the law of contempt, difficulty and vagueness start at the definition stage itself. Contempt in its root sense signifies disrespect to that which is entitled to respect or regard and the expression contempt of court has been a recognized phrase in English law from the 12th century. If administration of justice has to be effective, respect for its administration has to be fostered and maintained and it is out of rules framed by courts in this behalf that the law of contempt has grown. From rudimentary rules devised for the limited purpose of securing obedience to the orders of courts, there evolved in the course of time elaborate and far reaching doctrines and extraordinary procedures. Right till the present century, these doctrines and procedures were never subjected to legislative scrutiny with the result that the law of contempt had, as it were, a wild growth. Each new precedent was not declaratory but creative of the law. Each new type of attack on the administration of justice received a corresponding elaboration or extension of the contempt law. As Craries has said the ingenuity of the Judges and some of those who are concerned to defeat or defy justice has rendered contempt almost protean in this character. And even now, it may well be said the categories of contempt are not closed. The result is that there
14 15

State of Maharashtra v. Mahboob S. Allibhoy, AIR 1996 SC 2131. 1998 (4) SCC 409.

are contempt, contempts ranging from mere disobedience to orders of the court and involving only a wrong of a private nature as between the parties to a suit at one end and contempt involving physical violence or large scale blackmail or mudslinging by means of publication on the judge at the other end. In view of the haphazard development inherent in the process of development of law by judicial precedent, it is not possible to attempt neat and clear cut classifications of various branches of the law of contempt and, in view of the possibility of new types of contempt arising in future, it is not possible to demarcate the area of operation of the law of contempt arising in future, it is not possible to demarcate the area of operation of the law of contempt. It is for these reasons that judges and jurists have not succeeded in formulating a comprehensive and complete definition of the concept of contempt of courts. The Shawcross Committee observed: Not the least of the difficulties in this field (definition) is that contempt, being growth of the common law, has no authoritative definition or limitationIt can be defined in the most general terms. In the words of one of our own judges, It is indeed difficult and almost impossible to frame a comprehensive and complete definition of contempt of court. The law of contempt covers the whole field of litigation itself. The real end of a judicial proceeding, civil or criminal, is to ascertain the true facts and dispense justiceAnything that tends to curtail or impair the freedom of the limbs of the judicial proceeding must sof necessity result in hampering the due administration of law and in interfering with the course of justice.16 The reasons given by the Sanyal committee does not require any clarification or explanation to the problem of defining the concept of contempt of court. It is the discretion that is left to the judge to decide whether the contemnor has passed the tests laid down by prior decision or has in any manner affected the dignity or integrity of the court. If we provide with a concrete definition that would limit the scope of contempt, hence it should be left to the courts to decide whether any contempt has been done. But the fear that crops up with this vagueness is the danger of misusing this power by the court and the judges. The discretion of defining contempt is given to the judges with an assumption that they are honest and would always be fair and just.

16

S. Pal, Law of Contempt, Law Research Institute, Calcutta, 2001 at 26.

Chapter-II COMPARATIVE STUDY Contempt Under Common Law- Position In United Kingdom Lord Justice Otton gave an overview of the concept of contempt of court. In England, contempt has inhered in the judicial power to run the courts and to prevent interference with justice "since time immemorial". Contempt protects the dignity of the Court, not the individual judge. Contempt can be criminal or civil. Criminal contempt involves an intentional interference with the administration of justice, while civil contempt is disobedience to orders or judgments of a court, with only knowledge of the order or judgment, not intent to interfere, being needed. Civil contempt requires only a preponderance of the evidence while criminal contempt requires proof beyond reasonable doubt. Another significant distinction arises from whether the contempt occurs "in the fact of the court" or outside it; contempt beyond the courtroom is much harder to prove. English contemnors are not entitled to a trial by jury. Parliament enacted the Contempt of Court Act of 1981, which for the first time imposed a two-year maximum jail sentence for civil and criminal contempt as well as maximum fines. The court can use all its contempt powers but still suspend sentence if the contemnor promises not to repeat the contumacious act and apologizes. Lord Justice Otton described a fine of 40,000 against The Evening Standard newspaper, which had been sustained by the Court of Appeal a week earlier for publishing the criminal records of defendants on trial for explosives offenses with IRA links. England imposes limits with respect to reports of proceedings and publication of material likely to interfere with the administration of justice. The result in The Evening Standard case was very prejudicial, including a halt to the criminal trial. He also noted a reluctance to use the contempt power for fear of creating a cause that spurs public sympathy as, for example, in various English coal strike orders. The main aim of contempt of court rules is to prevent potential jurors from being prejudiced for or against a defendant because of what has been published in the media before or during a trial. A jury is supposed to reach their decision only on the evidence produced in court. The jury must also presume that the accused is not only innocent but also that he has no previous convictions. Contempt of Court is governed by two sets of rules. 1. The Contempt of Court Act 1981 applies to individual cases. 2. Common Law contempt can apply to individual cases and to the administration of the law generally.

One of the tests to determine contempt is whether the story creates a substantial risk that the course of justice will be seriously impeded or prejudiced. The important words are substantial and serious. These are the tests by which the court decides whether the story would create a substantial risk of serious prejudice the mind of anyone who read it and who was then was selected to serve on the jury hearing the case. Time: The longer the time between the story being published and the jury retiring to reach its verdict the less chance there is of the story being in contempt. News desks should know the average time it takes in their Crown Court area for a case to go from arrest to trial. If the story is published, say, on the night before the trial opens then the risk of contempt is higher than if it were published months previously. Proximity: The court will weigh up the chances of a juror having actually read the offending story. If the story is published in the Northern Echo in Darlington and the trial is held in Cornwall then there is plainly little chance of a substantial risk of serious prejudice because a potential juror could never be expected to have read it. Initial Impact: Presuming, though, that the story is likely to have been read by a potential juror then the court will try to assess the impact the story would have had on him. It does so by determining how novel was the way it was presented. A screaming Page One lead in the local paper would plainly have more impact than a down page three-par story on page 18 of a national. Then the court would try to evaluate the: Residual Impact: The theory is that if a juror listens in court to all the evidence, and hears all the witnesses cross-examined, and then is guided by the trial judge on what is, and is not, important then any initial prejudicial impact the story might have had will fade away as the juror concentrates on the actual evidence. The trend is towards liberalization when it comes to applying the Contempt of Court Act 1981. Judges seem to have accepted that most pre-trial coverage, while maybe prejudicial, falls short of creating a substantial risk of being seriously prejudicial. National tabloids have used lurid accounts of Geoff Knights beating up a taxi driver and have been cleared of contempt. But each case is different. By using the above tests an editor can at least make his own assessment of whether the particular story creates a substantial risk of serious prejudice. There is a particular danger in revealing that the defendant has a previous conviction. A jury (which must presume that a defendant has an unblemished past) would find that hard to forget. The Contempt of Court Act 1981 ceases to be active when: The arrested person is released 9

without being charged - except when released on police bail. No arrest is made within 12 months of the issue of the warrant the case is discontinued the defendant is acquitted or sentenced the defendant is found unfit to be tried, or unfit to plead or the court orders the charge to lie on the file. Newspapers are safe when they use police appeals for help in tracing a wanted man for whom a warrant has been issued even though the Danger Man or Find this Monster type of headline would plainly create a substantial risk of serious prejudice especially as most such stories reveal his past convictions. This is classic contempt of court territory but the Attorney General has promised not to prosecute because the public safety outweighs the fugitives right to a fair trial. As soon as Danger Man is arrested, however, the immunity ceases. Section 3 of the Contempt of Court Act gives an editor a defence if, at the time of publication, having taken all reasonable care, he did not know and had no reason to suspect that proceedings in the particular case were active. Section 5 of the Contempt of Court Act gives protection to stories, which are a discussion of public affairs as long as the risk of prejudice to a particular case is merely incidental to the wider discussion. Civil proceedings: The Act states that civil proceedings become active as far as contempt risk is involved when the case is set down for trial (put on the waiting list) or when an actual date is fixed for the case to be heard. Pictures: A picture can be in contempt in the same way as a story if , for instance, the case hinged on witnesses identifying the man in court or at an identity parade. And if you used a picture of the defendant handcuffed and guarded by armed police it might also prejudice a juror. The risk of contempt under the 1981 Act only starts when the Initial Step is taken - a person is arrested, charged, or has a warrant or summons issued against him. Common Law contempt covers the time before that initial step is taken but when a trial could plainly be seen to be imminent or pending. If a known criminal, for instance, takes a group of people hostage and a newspaper identifies him and his previous convictions before he is arrested or charged or a warrant is issued then there is plainly going to be a risk of contempt to proceedings which will almost certainly take place. If the newspaper is prosecuted under Common Law contempt the prosecution has to prove that the editor intended to create prejudice. The court can infer intent by taking account of all of the circumstances leading to publication. Common Law contempt can also be used against articles prejudicial to the course of justice generally, as distinct from the particular case governed by the 81 Act. 10

Position Under the American Legal System Contempt of court is an act of disobedience or disrespect towards the judicial branch of the government, or an interference with its orderly process. It is an offense against a court of justice or a person to whom the judicial functions of the sovereignty have been delegated. The American Jurisprudence defines contempt of court in Vol 17. It can be classified as follows: 1. Despising the authority of the Judge or dignity of the court; 2. Any conduct which tends to bring the authority and administration of law into disrespect or disregard; 3. Any conduct which interferes or prejudices the parties to a litigation or their witnesses during a litigation; 4. Any conduct which otherwise tens to impede, embarrass, or obstruct a court or a judge in the discharge of its or his duties; 5. A statute may define contempt but it can never be exhaustive. In the United States of America freedom of speech was originally protected by the doctrine clear and present danger propounded in Schenk v. United States17 In that case the Supreme Court of USA passed observations upon the military censorship provisions of the Espionage Act of 1917, which imposed certain limitations upon press and speech. Rejecting the contention Justice Holmes wrote an opinion unanimously concurred by the court, upholding the Constitutionality of the Espionage Act. The right of speech he said had never been an absolute one at any time, in peace or in war. Free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. When a nation is at war he added many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no court could regard them as protected by any Constitutional Right. According to this view freedom of speech could be abridged only if the Government could show that there was a clear and present danger to the state arising from the abuses of that freedom. This doctrine, however, was jettisoned in Dennis v. United States.18 In that case the validity of the
17

(1919) 249 U.S. 47. The case involved an appeal from a conviction in the lower Federal Court on a charge of circulating antidraft leaflets among members of the US armed forces. The Espionage Act made it a felony to attempt to obstruct the enlistment in and recruiting to services of the United States or to convey false statements with intent to interfere with military operations. Appellants counsel contended that the Espionage Act violated the First Amendment guaranteeing freedom of speech and of the press and was unconstitutional. 18 (1951) 34 U.S. 494. The Statute made it unlawful for any person to advocate, advice or teach duty, necessity desirability or propriety of overthrowing or destroying the Government in the United States, by force or violence and penalized even a conspiracy to commit such forbidden acts. The petitioners, leading members of the Communist Party, were charged with a conspiracy to form a party for teaching and advocating the overthrow of government by force. They contended that the statute could not stand the Constitutional test of clear and present danger and that their conviction by the court below was therefore liable to be set aside.

11

Alien Registration Act, 1940 was in question. Vinson C.J. observed as follows In this case we are squarely presented with the application of the clear and present danger test and must decide what the phrase imports. The test of clear and present danger was discarded and the test of clear and probable danger has been substituted. The time factor has been thus eliminated from the test. Judged by the new test it was held that the impugned statute was constitutional, though it penalized even conspiring to advocate the future overthrow of the state and no imminent danger is to be apprehended thereby. The arm of the law has been lengthened thereby. No doubt Douglas J., in his dissenting opinion bewails that free speech, the glory of our system of government, had been eclipsed by the majority ruling in Dennis case. In Yates v. United States19 while appearing to adhere to the modification of the clear and present danger test, the Supreme Court has in a measure really overruled the Dennis Case. In Yates case the Supreme Court set aside the conviction of fourteen communists who had been convicted under Smith Act. It was held that the advocacy of the overthrow of the Government as an abstract principle did not constitute an offence under the Smith Act. It is only when action to that end, though it may not be immediate action, has been advocated, that the offence would be committed. The decision in Yates case restored to some extent the protection to freedom of speech which had been withdrawn in Dennis case. But his test is not applicable in India as this principle was rejected by Justice Madhokar in 1961.20 Under the US law of contempt, the courts have recognized both direct and indirect contempt. Contempt is indirect when it occurs out of the presence of the court, thereby requiring the court to rely on the testimony of third parties for proof of the offense. It is direct when it occurs under the court's own eye and within its own hearing. See Matter of Heathcock, 696 F.2d 1362, 1365 (11th Cir. 1983); United States v. Peterson, 456 F.2d 1135, 1139 (10th Cir. 1972). The requirement that direct contempt be committed in the presence of the court does not limit direct contempts to those which take place in the courtroom, but some degree of formality usually found in the courtroom setting must accompany an exercise of the judicial function for the proceedings to be in the actual presence of the court. Matter of Jaffree, 741 F.2d 133 (7th Cir. 1984). Direct contempt for conduct in the court's presence may be punished summarily. McGuire v. Sigma Coatings, Inc., 48 F.3d 902 (5th Cir. 1995).

19 20

(1957) U.S. 298. Babu Lal Parate v. State of Maharashtra, AIR 1961 SC 884.

12

The law of contempt cannot have a broad general principle applicable to the concept of contempt in totality. The courts have made a distinction between civil and criminal contempt. Because different substantive and procedural rules apply to civil and criminal contempt, distinctions between the two forms of contempt are important. "Criminal contempt is a crime in the ordinary sense," Bloom v. Illinois,21, and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Hicks v. Feiock.22 These constitutional protections include the right (1) not to be subject to double jeopardy, see United States v. Dixon23; In re Bradley,24; (2) to receive notice of the charges, (3) to receive assistance of counsel; (4) to receive summary process; (5) to present a defense, Cooke v. United States25 (6) not to self-incriminate oneself, and (7) to proof beyond a reasonable doubt, Gompers v. Bucks Stove & Range Co.26. For serious criminal contempt involving imprisonment of more than six months, these protections include the right to a jury trial. By contrast, civil contempt sanctions--which are designed to compel future compliance with a court order--are coercive and avoidable through obedience, and "thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required." International Union, UMWA v. Bagwell27.

21 22

391 U.S. 194, 201 (1968) 485 U.S. 624, 632 (1988). 23 509 U.S. 688, 695 (1993). 24 318 U.S. 50 (1943). 25 267 U.S. 515, 537 (1925). 26 221 U.S. 418, 444 (1911). 27 512 U.S. 821, 114 S.Ct. 2552, 2557 (1994)

13

Chapter-III CONTEMPT OF COURT AND THE INDIAN JUDICIARY The Media and the Judiciary share a need that neither can live without: you must have journalistic independence and judges must have judicial independence. He further elaborated Hitlers Germany is still fresh in memory, so we can recall two of his major steps to consolidate his power when he became the Chancellor. One was to destroy the free press; the other was to control the courts and eliminate an independent judiciary. Knew and we know that no dictation can survive with an independent press and independent judiciary.28 The power of the Supreme Court of India in dealing with the day-to-day affairs of the citizens has increased many a fold during the past few decades. Looking at the pages of Law Reports prior to lifting of emergency will reveal the irrelevance of the courts to a large part of the Indian population. It is after the lifting of emergency from the 1980s that the Supreme Court fully realized its potential. The failure of the Legislature and the Bureaucracy to live up to the expectations in the eyes of the people put the Judiciary in a higher pedestal. It was seen as the last resort for justice to the otherwise justice starved citizens of India. The Supreme Court of India as well as other courts arose to the occasion in helping the poor and down trodden section of the society. But it was precisely this magnanimous view taken up by the Supreme Court to look into almost all the aspects of the other two wings that gave rise to criticisms. The criticisms were from the public, from the press and the media. The view of the Supreme Court towards these criticisms were not always static. It kept on changing from the stating that the judiciarys shoulders are broad and going to the other extreme by punishing an individual who had made a contempt of court. It is precisely those exercise of the contempt powers of the Supreme Court and the Indian Judiciary in general over the past few decades, that will be dealt with in these chapters. There is no better way to look at these exercise of power but to examine the judgments passed by the Supreme Court and the High Courts regarding this matter. One of the first and interesting cases regarding law of contempt arose in 1954. 29 In this case the members of the Executive Committee of the District Bar Association at Muzaffarnagar within the state of U.P made certain allegations against a judicial officer Mr. Kanhaya Lal Mehra and a Revenue Officer Mr. Latta Prasad. A resolution was passed in the meeting of the Bar Associations that complaints should be filed to the superior authorities against the misconduct of these judges. The allegations were in all

28

CHIEF JUSTICE Warren Berger as cited in Floyd Abrams, Fair Trial- Free Press: A Legal overview, Address before Connecticut Bar Association, 1979 as cited in Justice V r Krishna Iyer ad V Sethi, Essays on Press Freedom, 1st Edn., Capital Foundation Society, 1996, New Delhi at 13. 29 Brahma P. Sharma v. State of U.P. AIR 1954 Supreme Court 10.

14

1. The judicial officer does not record evidence in cases tried before him properly, that in all the Criminal matters that are transferred to the court, where the accused are already in bail, he does not give them time to furnish fresh sureties with the result he is sent to jail. He is not accommodating to lawyer as whole 2. The revenue officer follows the highly illegal procedure of leaving 2 cases at a time, wherein he records the evidence of one case and ask the court clerk to do so with the other. Also he is highly temperamental and constantly threatens the lawyers with contempt of court. 3. It is now our considered opinion that the two officers are thoroughly incompetent in law, do not inspire confidence in their judicial work. They state wrong facts when passing judgments and are overbearing and discourteous to the litigant public and the lawyers alike. The High Court found the lawyers to be prima facie in contempt of court and fined them Rs. 300/-. The Supreme Court considered all the relevant facts including the fact that the meeting was held in closed quarters. Only members were present, the resolutions were typed by the president of the Bar itself and even the minutes book didnt have the record. After considering all the relevant facts and circumstances the Supreme Court speaking through Justice Mukherjee held: We are unable to agree with the learned counsel for the respondents that whether or not the representation made by the appellants in the present case is calculated to produce these results. It is to be kept in mind, when attacks or comments are made on a judge or judges, disparaging in character and derogatory to their dignity care should be taken to distinguish between what is libel on the judge and what amounts to contempt of court. The fact that a statement is defamatory so far as the judge is concerned does not really make it a contempt. More over the judge said that the object of representations made by the appellant in the present case were not for the purpose of exposing the public alleged short comings of the officers concerned, the whole object was to have the grievance of the lawyers and the litigating public really felt. The Supreme Court reversed the decision and allowed the appeal. One of the excellent examples for the so-called hyper sensitivity of the Supreme Court is the case of E.M.S. Namboodri v. T.N. Nambiar.30 The case arose out of a press conference that the then Chief Minister E.M.S Namboodripad held.31 During the press conference he made certain remarks: Marx and Engel considered the judiciary as an instrument of oppressionJudges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well dressed, pot bellied rich man and a poor, ill-dressed and illiterate person, the judge instinctively favors the former..Judiciary is part of the class rule of the ruling
30 31

AIR 1970 SC 2015. This press conference was held at Trivandrum on November 9th 1967 and the paper which reported was the Indian Express.

15

class. And there are limits to the sanctity of the judiciary. The judiciary is weighed against workers, peasants and other sections of the working class and the law and the system of judiciary essentially serve the exploiting classes. Namboodripad was convicted by the Kerala High Court for contempt of court and sentenced to a fine of Rs 1000/-. This was a majority decision made by Justice Raman Nair, Justice Krishnamoorthy Iyer and with Justice Mathew dissenting. Namboodripad appealed to the Supreme Court pleading: 1. His observations did no more than give expressions to the Marxist philosophy and what was contained in the programme of his party. 2. They contained a fair criticism of the judicial administration. 3. They did not contain criticism of any particular judge or his judgment or conduct. 4. The law of contempt ought to be interpreted so as to cause no encroachment upon the freedom of speech guaranteed by Article 19(1)(a) of the Constitution of India. The judges Hidayatullah CJ, G. K. Mitter and A. N. Ray after looking deeply into the teachings of Lenin and Marx came to the conclusion that no where in their writings have they shown any direct attack on the judiciary. The court arrived at the conclusion that in all their writings there is no mention of judges, which the appellant had made. The court further states that either he does not know or has deliberately distorted the writings of Marx. The Supreme Court hence convicted Namboodripad for contempt of court but reduced the fine from Rs 1000/- to Rs. 50/-. Another case which relates to Freedom of Press and contempt of court, and also which gave rise to vehement criticism from both inside and outside legal circles is P. N Duda v. P. Shivshanker.32 The case arose out of a complaint filed by P.N Duda against P. Shivshanker who was the Union law minister. According to the petitioner the Union Law Minister had committed contempt of court during speech made by P Shivshanker on the occasion of the silver jubilee of the Bar Council of Andhra Pradesh. Even though the speech was addressed to Judges and lawyers, a large number of press personnel were present. P. N. Duda complained about 5 passages in his speech. The two main point were:

1. The Supreme Court composed of the element from the elite class had their sympathy for the
haves i.e. the Zamindars. As a result they interpreted the word compensation in Article 31 contrary to the spirit and amendment of the Constitution and rules the compensation must represent the price which a willing seller is prepared to buy from a buyer. The entire programme of Zamindari abolition suffered a set back. The Constitution as amended by the 1st 14th and 17th Amendments to remove this oligarchic approach of the Supreme Court with little or no help. Ultimately this rigid reactionary and traditional outlook of property, led to the abolition of property as a fundamental right.
32

AIT 1988 SC 1208.

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2. Anti social elements, i.e. FERA violators, bride burners and whole horde of reactionaries have found their haven in the Supreme Court. The case was heard by a bench comprising of Justice Sabyasachi Mukherjee and S Ranganathan. To the biggest surprise of everyone the Supreme Court took a liberal view. Speaking through Justice Mukherjee, the SC held that: there was no imminent danger of interference with the administration of justice, nor of bringing a administration into disrepute. In that view the minister was not guilty of contempt of the court. The speech of the Minister read in its proper perspective, did not bring the administration of justice into disrepute or impair administration of justice, though in some portions of the speech language used could have been avoided by the minister having background of being former judge of the High Court. The minister perhaps could have achieved his purpose by making his language but his facts deadly. The petition was dismissed. The Supreme Court has not been the only court, which has issued contempt of court proceedings. Many of the High Courts have also done the same. Recently the Delhi High came into the limelight following what has been called as the Wah India case33. The case arose out of the publication by the publishers of a magazine by the name of Wah India ! on their website, the results of a purported survey grading the judges of Delhi High Court. Each of the judges whose photos were also published were graded in a five column table rating the inter alia, on their personal integrity, depth in law and quality of judgments delivered. The publishers claimed that the grades were based on a survey where fifty of the senior members of the Delhi Bar were consulted. The publication was titled Judged out and it also claimed that the survey is by no means an attempt to cast any aspersion on the competence of the judiciary, but is a small and humble attempt to hold a mirror to it. It might make some Judges uncomfortable, but the truth sometimes does. The Delhi High Court passed an order summarily directing the confiscation of the unsold copies of the issue of the news magazine barred its circulation and ordered the media not to publish any thing that would lower the authority, dignity and prestige of the members of the judiciary. The next day the court lifted the ban on reporting of the contempt proceedings and directed that the reporting must be fair and accurate.34 But the court let the publishers off after the acceptance of an apology by the publisher Rahul Mishra, editor Madhu Trehan and three journalists. Another case that came up before the Supreme Court recently was Re: S K Sundaram.35 The case arose out of a suo motu action in the Supreme Court. A Chennai based advocate had sent
33

Cited in Madhavi Divan, The Law of criminal Contempt: time to move on, The Lawyers Collective, March 2002 at 8. 34 The Indian Express, 2nd May 2001. 35 (2001) 2 SCC 171.

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telegrams to the then CJ of India Dr. A.S Anand, demanding his resignation on the ground that the latter had exceeded the age of superannuation. Within three days of sending the telegram, he filed a criminal complaint against the CJ under the IPC, 1860 alleging cheating, criminal breach of trust and falsification of records, that Dr. Anand had usurped the office of Chief Justice of India and caused loss to the exchequer to the tune of Rs. 3 Crores. The petitioner who had previously filed a mandamus seeking the president of India to verify the age of Dr. Anand, alleged that he was spurred into action by an article that appeared in The Hindu on 3-11-2000, publishing a statement by Ram Jethmalani and an annexure published in the book Big Egos Small Men. The Supreme Court in this case held that well if he is determined to sign that he would not look at any one of those material as well as the final decision rendered by the president of India regarding the age of Dr. Anand, and then decided to persistently jump into the foray with the tirade, putting himself into the outfit and chasuble of his proof insignia, it is only reminiscent of the Spanish heir Don Quiescent of La Mancha. On the part of this court, we may observe that if the contemnor had stopped with his telegram we would have persuaded ourselves to ignore its as a case of ranting gibberish. But when he followed it up with lodging of a criminal complaint before a criminal court in which the Chief Justice of India was arrayed as an accused having committed the offence of cheating, criminal breach of trust and falsification of records we realized that he seriously meant to malign and undermine the dignity and authority of this court.36 Sundaram was sent to 6 months imprisonment. The most recent as well as the most controversial one was Arundhati Roy, In Re.37 The facts of this case arose from a former case Narmada Bachao Andolan v. Union of India.38 While the case was pending before the Supreme Court Mrs. Arundhati Roy wrote an article The Greater Common Good which was published in outlook and Frontline magazines. Two of the judges of the Supreme Court found that the comments made by her were, prima facie, a misrepresentation of the proceedings of the Court. The Court showed its discontent we are unhappy at the way leaders of NBA and Mrs. Arundhati Roy have attempted to undermine the dignity of the court. We expected better behaviour from them.39 But the court let the matter lie in the larger interest of the issues pending before them. But on 30-12-2000 Mrs. Arundhati and Mrs. Medha Patkar led a huge protest rally in front of the Supreme Court and shouted abusive slogans at the court. They also attacked the petitioners to judges R Parashar advocate and others. Hence they filed a petition stating that Mrs. Arundhati Roy is guilty of contempt of court. 40 Moreover the respondent also stated in her affidavit; on the grounds that judges of the Supreme Court are too busy, the

36 37

(2001) 2 SCC 171 at 176. (2002) 3 SCC 343. 38 AIR 1999 SC 3345. 39 NBA v. Union of India (1999) 8 SCC 308 at 313. 40 Judges R Parasher v. Prashant Bhusan, (2001) 6 SCC 735.

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CJ of India refused to allow a sitting Judge to head the judicial enquiry into the Tehelka Scandal Yet when it comes to an absurd, despicable entirely unsubstantiated petition in which all the three respondents happen to be people, who have publicly- though in markedly different ways questioned the policies of the Government and severely criticized a recent judgment of the Supreme Court, the court displays a disturbing willingness to issue notice. It indicates a disquieting inclination on the part of the court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it. By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm.41 The Bench comprising of Justice G. B. Patnaik and R. P. Sethi allowed her to retract her averments. But she stood her ground. The court held that A fair criticism of the conduct of a judge the institution of the judiciary and its functioning may not amount to contempt if made in good faith and in public interest. To ascertain the good faith and the public interest, the courts have to see all the surrounding circumstances including the person, his knowledge in the field and the intended consequence. All citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism which if not checked would destroy the institution itself. More over the Supreme Court stated these cannot come under the exception of P. N. Duda v. Shiv Shanker42, the court held that it may be noticed that the criticism of the judicial system was made by a person who himself had been the judge of the High Court and was the Minister at the relevant time. He had made studies about the system and expressed his opinions which, under the circumstances was held to be not defamatory despite the fact that the court found than in some portion of the speech the language used could have been avoided by the Minister having the background of being a former judge.43 The court here found that Mrs. Roy was devoid of any special knowledge of law and hence was fined Rs. 2000/-.

41 42

In re Arundhati Roy, (2002) 3 SCC 346 at 354. AIR 1988 SC 1208. 43 (2002) 3 SCC 343 at 372.

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Chapter-IV CIVIL AND CRIMINAL CONTEMPT The concept of contempt is a broad one, which has the capacity to encompass any act done in detriment of the court. Contempt may range from disobedience to orders of the court to throwing of tomatoes at the Judges. Broadly we can categorize contempt into two types: Civil Contempt and Criminal Contempt. CIVIL CONTEMPT It has been defined under Section 2(b) of the Contempt of Courts Act, 1971.44The essential ingredient is willful disobedience and not any and every disobedience due to various reasons such as delay due to unavoidable circumstances, or inadvertence. It has to be proved that the disobedience was willful. It connotes a clear intention to flout. A civil contempt involves disobedience to a Courts order affecting the rights of other parties to that order basically denying the rightful fruits of the suit to the other party. But Mens Rea has been made an essential ingredient in the 1971 Act, which is a departure from the pre-existing law with the introduction of the word willful. So Civil contempt does not attract strict liability any more. It is sometimes supposed that the will being a party to the disobedience is not enough and that there should further be an element of obstinacy, rebellion or defiance. In Worthington v. Adlib Club Ltd.45, the court held that the word contumaciously as meaning was not different from willfully. In India also, the courts use the word contumaciously in describing contempt and invariably use it disjunctively with willful or deliberate. In Deba Brata Bandopadhyaya v. State of West Bengal.
46

, The Supreme Court observed that if orders of stay, bail, injunction, received from higher

courts must be attended to promptly, and if there is a delay in dispatching them or dealing with them the court may draw an inference of indifference and even contumaciousness. In Md.Ikram Hussain v. State of U.P.47, the court asked the appellant to produce his daughter in a matter for habeas corpus. He made false excuses and did not produce her. He was found guilty of contempt. In Alligarh Municipality v. E.T. Mazdoor Union
48

, during the pendency of the suit the

trial court passed an order prohibiting the appellant municipality from realizing any fees from the tongawallas for the use of a stand, which they did not follow and it was held as willful disobedience and amounted to contempt of court. In Union of India v. Oswal Wollen Mills49,the court held that When as a result of an order of the High Court in a writ petition, an application for
44

Civil contempt means(i) wilful disobedience to any judgement, decree, direction, order, writ or other process of a court; (ii) wilful breach of an undertaking given to a court. 45 (1964) 3 All. ER 674 46 AIR1969 SC 189 47 AIR 1964 SC 1625 48 AIR 1970 SC 1767 49 AIR 1985 SC 1264

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license was to be disposed of by the statutory authority, no contempt can be said to be committed merely because there is a failure to dispose of the petition. Any order of the court should give sufficient time for compliance before contempt proceedings can be initiated. Regarding violation of an undertaking given to a court it was held in M v Home Office50, that if a party or his advocate acts so as to covey to the court the firm conviction that undertaking is being given the party would be bound and it will be no answer that he did not think that he was giving it or that he was misunderstood and he would be held for contempt. But an undertaking, which runs counter to the statutory provisions or law is an unauthorized undertaking and cannot be the basis of contempt proceedings for its breach.51 In Md. Idris v. Rustam Jehangir52, where there was a clear breach of the undertaking the court, held that it was entitled to give directions for closing the breach in addition to imposing punishment. CRIMINAL CONTEMPT It has been defined under Section 2(c) of the Contempt of Courts Act, 1971. 53It is thus seen that scandalizing or prejudicing a Judge or interfering with the administration of justice is Contempt. Even tending to scandalize or tending to prejudice or tending to interfere or obstruct is enough to invoke action in criminal contempt. In Naraindass v. State of UP,54the Supreme Court held that, it is necessary to examine whether any of the impugned statements do interfere or have a tendency to interfere with due course of the proceedings by creating prejudice against appellant or the writ petition. In N. Rajagopala Rao v. Murtaza Mujtabbi,55the AP high court held that the publication of an article casting aspersions on the integrity of the High Court Judges while selecting and recommending candidates for appointment of District judges was held to be criminal contempt. All acts, which bring the court into disrespect or disrepute or which offends its dignity, or challenge its authority, certainly amount to contempt. In Delhi Judicial Service Association v. State of Gujarat56, the Supreme Court observed that the definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of the court. The publics have a vital stake in effective
50 51

(1992) 4 All. ER 97 Babu Ram Gupta v. Sudhir Bhasin , AIR 1979 SC 1528 52 AIR 1984 SC 1826 53 Criminal contempt meansThe publication (a) by words spoken or written; or (b) by signs; or (c) by visible representations or otherwise of any matter; or (d) any other act whatsoever 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. 54 AIR 1974 SC 1252 55 (1974) 1 ALT 170 56 AIR 1991 SC 2176.

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and orderly administration of justice. The court has the duty of protecting the community in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the court against insult or injury, but, to protect and to vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with. In Pratap Singh v. Gurbaksh Singh,57 the court held that any kind of threat or any action which may amount to a threat held out to a person who has approached the civil court for redressal of his grievance with a view to forgo the assistance of the civil court amounts to criminal contempt. A threat held out to a judge with a view to obtain favourable order would amount to criminal contempt as interference with the administration of justice in State of A. P. v. V. Prakash Rao.58 The threat need not be a threat to the judge himself personally. A false or misleading or a wrong statement deliberately and willfully made by the party to a proceeding to obtain a favourable order would prejudice or interfere with the due course of judicial proceeding was held to be criminal contempt in Afzal v. State of Haryana59 Distinction between Civil and Criminal Contempt Civil contempt is basically wrong to the person who is entitled to the benefit of a court order while criminal contempt involves defiance of the court revealed in conduct, which amounts to obstruction or interference with the administration of justice. A helpful illustration is a case where the person restrained commits a breach, he is guilty of civil contempt but a third party aiding and abetting a breach commits criminal contempt because he interferes with the administration of justice. In A-G v. Times Newspapers Ltd.60, the House of Lords, on the rationale behind the distinction held that A distinction is sometimes drawn between what is described as civil contempt, that is to say contempt by party to the proceeding in matter of procedure, and criminal contempt. One particular form of contempt by party to proceedings is that constituted by an intentional act, which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and can waived by him. The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be impose by the court, but the liability here is a strict one in the sense that all requires to be proved its service of the order and the subsequent doing by the party bound of that which is prohibited. When, however, the prohibited act is done not by the party bound himself but by third party, a stranger to the litigation, that person may also be liable for contempt. There is, however, this essential distinction that his liability is for criminal contempt and arises not because
57 58

AIR 1962 SC 1172. 1997 (5) ALT 724. 59 1995 Supp.(2) SCC 388. 60 (1991) 2 All ER 398

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the contemnor is himself affected by the prohibition contained in the order but because his act constitutes a willful interference with the administration of justice by the court in the proceedings in which the order was made. Here the liability is not strict in the sense referred to, for their has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice- an intention which can of course be inferred from circumstances. But a decision of the Andhra Pradesh High Court61 failed to appreciate this distinction where the conduct of the contemnor in instituting a suit and obtain in interim order of status quo and thereafter writing letters to the Advocate Commissioner to stall a decree passed earlier were characterized as civil contempt in spite of the express finding that the offending acts were deliberately intended to thwart the earlier orders passed by the High Court.

61

Kamalabai Nayak v. Dhananjoy Nayak, 1996 (3) ALT 404.

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Chapter-V CONTEMPT OF COURT AND FREEDOM OF SPEECH- CONSTITUTIONAL ASPECT Were it left to me to decide whether we should have a government without newspapers or newspapers without a government. I should not hesitate a moment to prefer the latter.62 Though the concept of freedom of press is not a new one, it is very hard to find a suitable definition. Abraham Lincoln has aptly put it when he said, the world has never had a good definition of it.63 But people have defined the concept of Freedom of Press and continue to do so. The concept was explained by William Blackstone way back in 1769 The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications and not in the freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiment he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, illegal he must take the consequence of his own territory.64 In 1977 the royal Commission on Press has emphasized the importance of, and defined the freedom of the press as that degree of freedom from restraint which is essential to enable proprietors, editors ad journalist to advance the public interest by publishing the facts and opinions without which a democratic electorate cannot make responsible judgments. Prof Chafee said the truth is, I think, that the framers had no very clear idea as to what they meant by the freedom of speech or of the press, but we can say with reasonable assurance that the freedom which congress was forbidden to abridge was not, for them, some absolute concept which had never existed on the earth.65 Professor Baxi says that freedom of press means two or three things. First it implies the freedom to have the infrastructure required to set up a newspaper and to run it efficiently. Secondly, it means freedom to gather and report information. Thirdly, it means freedom to express opinion.66 But quite adverse view has also been put in by K. K. Mathew67 when he said the question of the freedom of press has to be understood in the context of freedom for whom the publisher who has put in the money; the worker who produces the paper, the advertiser who sustains it, the politician
62

Speech by Thomas Jefferson, S. K. Padover, Thomas Jefferson on Democracy, 2nd Edn., McMillan Publishers, New York, 1956 at 93. 63 K. K. Mathew, On Democracy, Equality and Freedom, 1st Edn., Universal books, 1978 at 98. 64 Blackstone Commentaries, Vol. IV at 151-152 (Wendell ed.;1854) as Cited in Justice E.S. Venkataramaiah, Freedom of Press- Some Recent Trends, 2nd Ed., B. R. publishing Corp, Delhi, 1987 at 14. 65 Z. Chafee, Book Review, Free Speech: And its Relation to Self Government by Alexander Meiklojohn, 62 Harvard Law Review, 1949 at 891 (898). 66 Upendra Baxi, In an interview on the Freedom of Press, Vidura, Journal of the Press Institute of India, Vol. 12, No. 6, December 1974 at 4. 67 K. K. Mathew, Chief Editor, Malayalam Manorama, A Talk on All India Radio on The Freedom of Press, Vidura, Vol. 15, No. 5, October 1978 at 280.

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who runs the administration or the reader who reads it? Freedom of the press is the freedom of the community, of society as a whole. It is not the exclusive privilege of any of the four categories who are associated with the newspaper publication. The reader who represents society, should have the ultimate freedom. The eminent Jurist and writer Mr. Krishna Iyer has summed up what is Freedom of Press. According to him the major contents of the freedom of press are:68 1. Freedom to gather information from diverse and antagonistic sources, on a competitive basis, free from any monopolistic control from the government. 2. Freedom to inform the public true facts without fear or favor. 3. Right to have free access to sources of information. The contempt of freedom of press has come quite a long way. There was a time in U.K. When the freedom of Press wasnt encouraged. Sit William Scrogg who became Lord Chief Justice in 1678, pronounced a judgment that to publish a newspaper was illegal as, according to him, manifested an intention to commit breach of the peace.69 On 24th February 1703 Daniel Defoe was fined 200 Marks and condemned to be pillared thrice to be imprisoned indefinitely and to find sureties for his good behaviors during seven years for writing an anonymous pamphlet called shortest way with dissenters. Thus even though the church and state resorted to all methods to suppress, corruption of youth or sedition. Such restraints through licensing and censorship came to be accentuated after the invention of printing and the appearance of newspapers in 17th century, which demonstrated how powerful the press as a medium of expression is. It is in protest to such governmental interference that the freedom of the press was built up in England. A classic example for this situation would be John Miltons70 Aeropagtica which was a protest addressed to the long Parliament which had taken up licensing, after the abolition of star chamber. Milton Said: Truth and understanding are not such wars as to be monopolized and traded by ticketsgive me the liberty to know to utter and to argue freely according to conscience, above all liberties. Whoever knew truth put to worse in a free and open encounter? Who knows not that truth is strong next to almighty; she needs no policies, no strategies, no licensing to make her victorious; these are the shifts and defines that error makes against her power. It was result of such agitation that the Licensing Act of 1662 was eventually refused to be renewed by the House of Commons in 1694 though reasons given were technical. Thus even though the concept of Press Freedom developed in United Kingdom, Sweden was the first
68

Justice Krishna Iyer and V. Sethi, Essays on Press Freedom, 1st Edn., Capital Foundation Society, 1996, New Delhi at 13. 69 Justice E.S. Venkataramaih, Freedom of Press- Some recent Trends, 1st Edn., B.R. Publishing Corp, New Delhi, 1987 at 13. 70 J. Milton, Aeropagiticia, 1st Edn., 1644 at 23 as Cited in D. S. Bogen, First Amendment Ancillary Doctrines, Maryland Law Review, Vol. 37, No. 4, 1978 at 682.

25

country in the world to recognize lawfully the freedom of press. The Swedish press Law of 1756 guaranteed a clear protection or the press. The law of freedom of press was first promulgated in 1810 in Sweden. It was replaced in 1949 by a new Act, which enjoyed of being part of the Constitution itself. Certain amendments were made to the Freedom of Press Act in 1976.71 We can see from Article 1 of Swedish Constitution that Swedish law expressly provides for freedom of press. So is the case of United States. In America the struggle for freedom of Press had its greatest triumph when it came to be guaranteed by a written Constitutions, as a fundamental right. The First Amendment declared: Congress shall make no lawabridging the freedom of press. In Bridges v. California72, the American Supreme Court held that freedom of press will include the freedom to possess those means and equipment which are necessary for the achievement of the object or goal for which freedom of the press is required. The Indian Constitution though has not recognized this right specifically under any of the freedoms the Indian courts have read this freedom under freedom of speech and expression under Article 19(1)(a).73 Supreme Court in Maneka Gandhi v. Union of India74 observed that to be a fundamental right it is not necessary that a right must be specifically mentioned in a particular article specifically, it may be a fundamental right if it is an integral part of a named fundamental right or parties of the same basic nature and character as that fundamental right. Every activity, which facilitates the exercise of the named fundamental right, may be considered integral part of that right and hence be a fundamental right-freedom of press in Article 19. But the freedom of press impliedly provided under Article 19(1)(a) is not absolute. It is liable to reasonable restrictions as imposed by an existing law or a law to be made by a state on various grounds like a) sovereignty and integrity of India b) the security of the state c) friendly relations with foreign states d) public order e) decency or morality f) or in relation with contempt of court and g) defamation or incitement to an offence.75 It is this nexus between freedom of press as impliedly provided in Article 19(1)(a) and its restriction based upon contempt of court that will be dealt in detail in the coming chapters.

Contempt by Lawyers and Contempt against Judges In the case of Brahma P. Sharma v. State of UP76 the Supreme Court discussed in very detail the concept of contempt and libel. The court held that in an instance where the court is called upon

71 72

Justice A. N. Grover, Press and the Law, 1st Edn., Vikas Publishing House Ltd., New Delhi, 1990 at 8. (1941) 314 U.S. 252. 73 In Romesh Thappar v. State of Madras, AIR 1950 SC 124, the court recognized the fact that freedom of speech and expression as given in Article 19(1)(a) impliedly gave rise to freedom of press. 74 AIR 1978 SC 597. 75 Article 19(2) 76 AIR 1954 SC 10.

26

the exercise the summary powers in cases of contempt committed by scandalising the court, there are two primary considerations. 1. The reflection on the conduct or character of a judge in reference to the discharge is made in the exercise of the right of fair and reasonable criticism. 2. When attacks/ comments are made against judge/ judges care should be taken to distinguish between what is a libel on the judge and what amounts to contempt. If the statement is defamatory so far as the judge is concerned, then he can proceed against the libel or for libel. The importance of this case lies in the fact that the circumstances as a whole should be looked into. It is one of the very 1st cases, which states the principle. The fact that the meeting was held in a closed room, with only four members present, the President himself typing the letter, and forwarding it to superiors in letter marked confidential all made the court think that whatever they did was to seek an answer for the grievances faced by the Bar and the public and not to inform the public about the so-called misdeeds of the judiciary and to scandalize and lower the value of the court. The Namboodripad Case was one in which we believe that a more severe punishment ought to have been imposed. The Supreme Court to a surprise penalized merely with a symbolic fine. H M Seervai points out it is submitted that the judgment is correct in the result but unsatisfactory when it tends to summarize.77But if we look into it closely we can see that Namboodripads observations have to be seen in the context of the circumstances they were made in. they were general in nature. They pertained neither to a pending case nor were they in disobedience of court order or in defamation for any judge. They contained a criticism of the judicial system in general and were expressed at a press conference before press correspondents so that they were not likely to cause even distantly, any interference with the administration of justice. They were as you can see of purely academic in nature, so far as their effect on the listeners are concerned. The gravity of speech and the conviction did not seem to get along together. But whatever the results were the methods by which the court arrived at the conclusion is nothing but pitiable. In order to refute the arguments of Mr. Menon who appeared on behalf of the Chief Minister, the Court went and examined the whole Marxian ideology. Vehement criticisms were raised against this approach of the Court. After the court decided, S. P. Sathe wrote, it is not clear. However, that there was any need to undertake an examination of the writings. The Courts could have told Mr. Menon that they were interpreting the Indian Constitution and not Marx, Engel or Lenin. Whether they had learnt about communism only by reading Miclellitan-Murray was irrelevant. If Namboodripads statement amounted to contempt of court, he had to be punished no matter whose views he was voicing. The Supreme Court could have resorted to what justice
77

H M Seervai, Constitutional Law of India, Vol. I, 4th Edn., Universal Book Publishers, New Delhi, 1999 at 749.

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Holmes stated in his classic dissenting judgment in Lochner v. New York 78 the case is depended upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of the majority to embody their opinions in lawthe 14th amendment doesnt enact Mr. Herbert Spencers social statistics. This is what court ought to precisely have done. Apart from the fact that their dwelling into history of Marxist ideology sidetracks the main issues. It also unnecessarily involves the court in a political controversy. It comes to as a surprise to many that the Supreme Court who convicted Namboodripad who was a chief minister and widely acclaimed scholar, acquitted Shiv Shanker. 79 The speech by Shiv Shanker is highly inflammatory and with complete disregard to his position. If it was to be argued that the decision in Namboodripads case was correct, because a person in such a high position should have taken more care while making such statements before the press, that argument collapses when one reads the ShivShanker judgment. Justice Mukherjee not only didnt convict him but even stated that the statement was a compliment to the judiciary. Justice Mukherjee applied the test of imminent dangers as laid down by Justice Holmes in Schnenck v. U.S.80 Justice Mukherjee said with these observations, it must be held that there was no imminent danger of interference with the administration of justice, nor of bringing administration into disrepute. In that view it must be held that the minister was guilty of contempt of court. Moreover the judges should have looked into the consequence when the Union Law Minister himself speaks to the gathering where the press is present, that Supreme Court is comprised of the elite classwhat will be the impression on the normal man; will he have faith in the judicial system? H. M. Seervai remarks about that he intended no disrespect to the Supreme Court and that he had high regard for the Honble court can only be compared to a man who slaps another person very hard and then says that he had high regard for that person and was merely trying to rouse him to a sense of his own shortcomings.81 The case of Wah India where they were hauled up for contempt was a correct decision by the Apex court. As put forward by Lord Simons in Attorney General v. Times Newspaper82 there are always 2 conflicting interests before the court. One in the publics right to information and thus the
78 79

(1904) 198 U.S. 45, 49 L ed. 937. P. N. Duda v. P. Shiv Shanker AIR 1988 SC 1212. 80 (1918) 249 U.S. 47. 81 Supra. n77 at 759. 82 [1973]1 ALL E. R. 710.

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freedom of press and the other in uninterrupted administration of justice. Here I cannot see how the publics right to information is infringed. They were putting up news item, which had no real and substantial basis at all. The publishers claimed that the grades were based on a survey where fifty of the senior members of Delhi Bar were consulted. But how far is this credible? Wouldnt it happen that a lawyer who lost an important case will have some grudge against that particular judge? So the element of truth cannot be found out. The Wah India case does no credit to the case for journalistic freedoms. If the media demands greater freedom to criticize the administration of justice, there is also a corresponding duty on the media to report with a much greater degree of responsibility.83 Also we should look at the facts that judges by the nature of their office cannot respond to criticism or get embroiled in controversy in the public arena. 84Also in De Haes and Gijsels v. Belgium,85 the European Court while reiterating that the press plays an essential role in a democratic society remarked that the courts must be protected from destructive attacks that are unfettered, specially in view of the fact that judges are subject to a duty of discretion that precludes them from replying to criticism. In the case of Re. S K Sundaram86 the distinction between libel and contempt is almost completely blurred. The court while discussing the charges contained in the telegram held that anyone of those postulates would certainly scandalize and at any rate would tend to scandalize and lower the authority of the courts as a whole, and particularly the Supreme Court of India. The Chief Justice of India by virtue of his Constitutional ranking is the head of the Indian Judiciary. When threats of the above nature have been hurled at him, they would unmistakably ten to undermine the positions, majesty and dignity of the courts and the law. Another important aspect about this case was put forward by Madhavi Divan in an article. 87 Divan stated where the allegations ceased to be libel and when they amounted to contempt is not explained. Also, although the court referred to Jethmalanis Book Big Ego Small men, it appears that the context of this book, the apparent source of renewed attack by Sundaram were not examined. This book in addition to containing material in support of the claim that the then chief justice had passed the age of superannuation, also alludes to a controversial land acquisition case involving members of Dr. Anands family. Yet those writings of the former law minister of India and far more damaging than any ranting gibberish by an unknown entity provoked no judicial response.

83 84

Re Harijai Singh and Another and Re Vijay Kumar, (1996) 6 SCC 466. Lord Denning in R. v. Metropolitan public Commissioner Exparte, (1968) 2 ALL E. R. 319. 85 Application 19998/ 92, (1998) 25 EHRRI 86 (2001) 2 SCC 171. 87 Madhavi Divan, The Law of criminal Contempt: time to move on, The Lawyers Collective, March 2002 at 8.

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In Re Arundhati Roy88 the verdict of the Supreme Court, which distinguishes this case from P. N. Duda v. Shivshanker is utterly illogical. The court held that since Mr. Shivshanker was a retired High Court Judge and Union Law Minister, he had made studies about the system and expressed his opinion which, under the circumstances was held not to be defamatory. But the courts also held that in the instant case the respondent has not claimed to possess any special knowledge of law and the working of the institution of judiciary. She has not made any studies regarding the working of judiciary in this country and in these case, the benefit to which Mr Shivshanker under the circumstances was held entitled is therefore not available to the respndent in the present proceedings. This however I cannot grapple with. To say explicitly that only a person who has knowledge of law and working of the judiciary can criticize the judiciary, is to saying that only lawyers, jurists and academicians can criticize the judiciary. Then what about the average and so called lay man to do? In R. v. Nicholls,89 which is regarded as an Australian authority, Griffith CJ held that the defence of fair comment is available to persons charged with scandalizing the court. The same case has been cited with approval in many of the leading Indian decisions. If we follow this principle, Arundhati Roys opinion should have been considered as a fair comment. It has been rightly held in M.R. Parashar v. Farooq Abdullah90 by Chandrachud CJ that the right of free speech is an important right of the citizen, in the exercise of which he is entitled to bring to the notice of the public at large the infirmities from which any institution suffers, including institutions which administer justice. Thus it is clear from this statement that every citizen has a right to healthy and constructive criticism. Here one cannot differentiate the citizens by barriers of specialist knowledge of law and the working of judiciary. A G Noorani writes a disturbing judgment has looked into these aspects and commented all men are equal before the law, one cannot but wonder how the Supreme Court at last distinguish citizens into two categories.91 One cannot help but wonder at the irregular pattern in which the Supreme Court gives its verdict for contempt cases. In Namboodripads Case, the Supreme Court convicted him and went to great lengths to check up the works of Marx and Engel to prove him wrong. In P. N. Duda v. Shivshanker it went to the other extreme and even said what he had said was a compliment and exonerated him. This was not the only instance. Even the Kerala High Court hauled up Justice Krishna Iyer for contempt of Court twice but exonerated him by stating he was an eminent jurist author and judge, and has better and more thorough knowledge in the field of law. In J.
88 89

(2002) 3 SCC 346. (1911)12 CLR 280. 90 AIR 1984 SC 615. 91 A. G. Noorani, A Disturbing Judgment, Frontline, March 29 2002 at 34.

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Subramanium Pottis wards.92 There is an ocean of difference between well-informed and illinformed criticism. Those who have spent years and perhaps life time as part of the institution or to study an institution may have occasion to make a through objective assessment of that institution. What they say in regard to a matter concerning that institution should be viewed differently from a similar statement by an uninformed person. One of the important questions that arise in the specter of contempt power of the courts is the right of the contemnor to go ahead and prove the truth of his allegations. Or otherwise will truth be a defence in contempt in contempt proceedings? A few years back the honorable Supreme Court had the occasion to consider this question in D.C. Saxena v. Honble the Chief Justice of India.93 In that case a contemnor filed a writ petition against the then Chief Justice of India was unfit to hold that office and hence he should be stripped of his citizenship. He also sought for a direction to register an FIR against the then CJI under different provisions of IPC and also to prosecute him under the Prevention of Corruption Act. Looking into the relevant facts the 3 judges bench held that it tends to lower the dignity and authority of the court and also sow seeds to persons with similar propensity to undermine the authority of the court or the judiciary as whole, he crossed all boundaries of reckless and indulges in wild accusations. Speaking about truth as a defence judges K Ramaswamy said it would not be open to the contemnor to bring forward evidence or circumstances to justify on to show whether and how fairly imputatious were justified because the judge is not before the count. It is humbly submitted that the view taken by the Supreme Court is not right in this matter. It has completely ignored the precedents of the same court in which Truth as a defence was stressed. In Bathina Ramakrishna Reddy v. Madras,94 judges, Mukherjee said, the article in questions is a scurrilous attack on the integrity and honesty of a judicial officer. Specific instances have been given where the officer is alleged to have taken bribes or behaved with impropriety to litigants who did satisfy his dishonest demands. If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot undermine the confidence of the public in the administration of justice and bring the judiciary into disrepute.

92

P Krishnaswamy, Justice V. K. Krishna Iyer-A Living Legend, 1st ed., Universal Publication, New Delhi, New Delhi, 2000 at 350. 93 (1996) 5 SCC 216. 94 AIR 1952 SC 76.

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Also in R. v. Nicholls95 Griffith CJ observed: I am not prepared to accede to the proposition than an imputation of want of impartiality to a judge is necessarily contempt of court. On the contrary, I think that if any judge of this court on if any other court were to make a public utterance of such character as to be likely to impair the confidences of the public, or of suitors or any class of suitors in the impartiality of the court in any matter likely to be brought before it, any public comment would so far from an utterance, if it were a fair comment, would so far from being a contempt of court, be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel.96 Thus it is added that if a contemnor is prepared to go forward and prove the charges to the extreme with all the required evidence then he must be permitted to do so. It would be desirable to wrap up the argument with the reasons given by the noted Constitutional Law expert H. M. Seervai A judge is a public servant and if he takes bribes he is not acting or purporting to act as a judge he is committing a crime, and is liable to be punished for that crime. Since public confidence in a fearless and judiciary is a vital public interest, it would be desirable if a public spirited lawyer or lawyers Association conveyed in good faith and in sober language, the allegations of corruptions, with supporting evidence, to the appropriate authorities with a view to action being taken against the judge. However practicing lawyers may be unwilling to take such a step, or persons in authority may turn a blind age or do nothing. The process of removal of a judge by impeachment is cumbrous, and without a public outcry might not be resorted to. It then falls to the press to expose, in good faith a corrupt judge in sober and dignified language, and place relevant evidence, which can be proved, before the public. If true, the writing cannot be a can be proved, before the public. If true, the writing cannot be a contempt of court, because nothing brings the administration of justice into disrepute so much as corruption in the judiciary.97

95 96

(1911) 12 CLR 280. This famous Australian case has been cited with approval in various Indian and subsequent Australian cases. For eg. Fletcher Exp Kirch (1935) 52 CLR 248; Brett (1950) VLR 226; Foster Exp Gillies (1937) St. Rqd 368; AG NSW v. Mundey, (1972) 2 NSWLR 887 etc. 97 Supra. n.77 at 754.

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WHAT OUGHT TO BE CONTEMPT OF COURT- CONCLUDING REMARKS

In an adversarial system of litigation like ours there are always two parties, one must lose, the other must win. And when it goes through three-tiers of litigation- again an unfortunate characteristic of our law- the party who ultimately wins sometimes harbors inbuilt grievances against one of more Judges down the line who may have decided against him. People who propagate these grudges are often lawyers themselves. Top lawyers have big egos. And egotistical lawyers never like to lose, and when they do, some of them are not averse to blaming the Judge or suggesting to their clients that there was some ulterior motive. Now, judging cases is a difficult business and the occupational hazards of judging are many- the memory of a wrong decision (or what is ultimately found to be a wrong decision) sometimes festers; it also gives rise to irresponsible sometimes scurrilous comment- first about the case itself, and then inevitably about the judge or court which rendered judgment. The law reports are strewn with cases of disgruntled litigants going to great lengths in making charges, often unfounded, against the Judiciary. The law of contempt that part of which is so colourfully described as scandalizing the court is intended as a wall of protection against the vicissitudes of judging. Ours is a very litigious society and there are a number of unreasonable people in the system, persons who will make any type of allegation against anyone at the drop of a hat. This is why I believe that this part of the Criminal Contempt Jurisdiction though now obsolete in England, should remain in India. But there are problems in this branch of the law the lines are thinly drawn and are not very clear: and they depend very much on the perception of the Judge administering the Contempt Jurisdiction in the name of the court. The public, the men and women of the media, and the lawyers are content to accept constraints imposed by the Rule of Law, but are not prepared to accept ad hoc rules imposed according to the whims, vagaries and idiosyncrasies of individual judges. This ad-hocism is typified in the V.C.Mishra case98 No one liked what V.C. Mishra said and did in Allahabad, but the three Judge Bench that decided his case in their enthusiasm to teach him a lesson deviated from the law: ultimately, sobriety
98

1995 (2) SCC 584.

33

prevailed; the Constitution Bench of the Supreme Court99 also did not like what Mishra said or did and yet they overruled the punishment meted out to him and set out the true contours of the penalties that can be imposed in contempt cases. This case has set an example and prompts a word of advice to all: lawyers and judges. Never-never behave as Mishra did. And never, never lose your temper as the three Judge Bench did in Mishras case: always keep your cool as the five Judge Bench did, and so earned the admiration of all. Mishras case has established that the contempt jurisdiction must not and cannot be used to discipline the lawyer in conduct of a case: this must be left to the Bar Councils entrusted with disciplinary powers under the Advocates Act. It was Jeremy Bentham who characterized the Common Law as Dog Law. When your dog does anything you want to break him off, (he wrote in 1823), you wait till he does it, and then beat him for it. This is the way you make laws for your dog, and this is the way judges make laws for you and me. The law of contempt of court in Anglo-Saxon jurisprudence both in England in the past, and in India in the past and present has been no more, no less Dog Law. There are no rules, no constraints- no precise circumstances when the administration of justice is brought into contempt. The judgments are strewn with pious platitudes that give little guidance to the editor, to the commentators, to lawyers, and to members of the public: this part of the law of contempt though necessary, is a standing threat to free expression. It leaves too much to the discretion of the particular judge. And at times decisions do give rise to a strange feeling that the status of the status of the person who scandalizes the Court perhaps did affect the ultimate result. In 1988 a sitting Cabinet Minister made wide and improper remarks against Judges of the Supreme Court- he said: Zamindars like Golakhnath (he was speaking of Golakhnaths Case) evoked a sympathetic cord nowhere in the whole country except the Supreme Court of India. And the bank magnates, the representatives of the elitist culture of this country ably supported by industrialists, the beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in Coopers case (1970), Anti social elements, FERA violators, bride burners and a whole hoard of reactionaries have found their heaven in the Supreme Court.100 The minister then went on to say that because the Judges of the highest Court had their unconcealed sympathy for the haves (as opposed to the have nots) they had interpreted the expression compensation in the manner they did: clearly attributing motives. And yet a Bench of two Judges (in Dudas case) exonerated him. Let me read to you what the Bench said:

99

100

Supreme Court Bar Association v. UOI, 1998 (4) SCC 409. P.N.Duda v. P. Shivshanker, AIR 1988 SC 1208.

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Bearing in mind the trend in the law of contempt (they were speaking of the liberal trend)established by the Judgment of Justice Krishna Iyer in Mulgaokars case101 the speech of the Minister has to be read in its proper perspective, and when so read it did not bring the administration of justice into disrepute or impair administration of justice. The minister is not guilty of contempt of the court Again when an important personage Mr. Mohd. Yunus, Chairman of the Trade Fair Authority of India known at the time to be very close to the Prime Minister had criticized a judgment delivered by a Supreme Court Judge in the Jehovah Witness case holding that the singing of the National Anthem for a particular sect of Christians was not compulsory Mr. Mohd. Yunus said that the Judge has no right to be called either an Indian or a Judge. An Association of individuals called the Conscientious Group v. Mohd. Yunus & Ors102 filed a petition seeking a direction that Mr. Yunus should be hauled up for contempt. These examples are given not to deride our judges or criticize previous decisions. It is only to illustrate very graphically that the true nature of this aspect of contempt jurisdiction: is mercurial, unpredictable capable of being exercised (and therefore in fact exercised) differently in different cases by different Judges in the same Court. The origin of the branch of law known as scandalizing the court is shrouded in antiquity it has been described in text books as both dubious and controversial 103. It originates from a celebrated dictum of Justice Wilmot in his judgment in Wilkes Case way back in 1765, a judgment which was never actually delivered, but meant to be delivered, and later published by Justice Wilmots son when his fathers paper were edited. It was a judgment reserved after argument, and when ready to be delivered it was discovered that the writ against Wilkes was incorrectly titled and since an amendment of the Writ was not consented to, the case had to be abandoned. This is the real ancestry of that part of the law of contempt known today as scandalizing the Court: it is based on a judgment never delivered in a case, - a case which had already abated! The Law of Contempt is an exception to the fundamental right of free speech and expression guaranteed under Article 19(1)(a) of the Constitution, the law must then be justified on the ground that it is a reasonable restriction under Article 19(2): otherwise it would be unconstitutional. There is a judgment of the Division Bench of the Calcutta High Court 104 delivered some years ago, which correctly appreciated this constitutional principle. It was not widely reported and deserves grater publicity than it has so far received. It is a judgment of a Bench of two judges S.C. Sen J. & U.C. Banerjee J. The fact that the law of contempt is an exception to the
101 102

AIR 1978 SC 727. AIR 1987 SC 1451. 103 Borric and Lowe, Law of Contempt, 3rd Edn. at 331. 104 Archana Guha v. Rajneet Guha, 1989 Cal. HC Notes 252

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fundamental right of the free speech has been nowhere more felicitously described than in this judgment (delivered for the Bench by Justice Banerjee). In that case the Court was called upon to decide whether an article in a Calcutta daily, which had condemned a prior judgment of the Calcutta High Court, unread and by distorting facts, was contemptuous. The article had the disquieting heading Let the High Court save itself from Ignominy. A suo moto rule was issued by the High Court. When it came up for hearing no apology was called for or tendered. But the newspaper was exonerated: the contempt notice discharged. The judges said: None of the articles can be defended as fair comment made in temperate language about a court case. In fact the distorted version of the judgment given and the language employed in the articles may have the effect of shaking the confidence of the people in the judiciary and thereby lowering the dignity and majesty of the law. And yet, upholding the importance of freedom of speech the Calcutta High Court held that the publication was not contempt though the Judges did say that the language used could have been better, polite and more sober. Freedom to criticize (even wrongly and obtusely) a judgment of the court was upheld as part of the cherished freedom of speech. The judgment of the Calcutta High Court make us recall what was said by Lord Denning in a famous contempt case: Quinton Hogg, son of a Lord Chancellor and a future Lord Chancellor of England himself had written an article in very critical and caustic tone about a decision of Denning in a game case. The litigant Blackburn moved for contempt and that is what Lord Denning said.105 This is the first case, so far I know, where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in parliament or out of it, in the Press or over the broadcast, to make a fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still no less in political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this person or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in
105

R.v Metropolitan Police Commissioner, 1968(2) AER 319.

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hand. Silence is not an option when things are ill done. So it comes to this. Mr. Quinton Hogg has criticized the court, but in so doing he is exercising his undoubted right. The article contains an error, no doubt, but errors do not make it a contempt of court. We must uphold his right to the uppermost. I hold this not to be a contempt of court, and would dismiss the application. Lord Denning in England, like Justices Sen and Banerjee in India put free speech first in a conflict between this freedom and the contempt jurisdiction. Shortly after the controversial decision in the Spycatcher Case106 which attracted worldwide attention. Lord Templeman believed that Peter Wright who wrote to Spycatcher, and had it published in the U.K., should be held fast to the undertaking by him, which was not to publish confidential information obtained by him in his capacity as a member of the British Secret Service, not withstanding that the information had, with lapse of time, percolated into the public domain. Two of his colleagues (in the House of Lords) agreed with him, which put Lord Templeman in the majority. The Press held them up to ridicule; the Daily Mirror published photographs of all three Judges and below the photographs was written in capital letters OLD FOOLS. It was asked of him why no contempt proceedings were initiated against the particular newspaper. He apparently smiled, and without a trace of bitterness, said the Judges in England did not take notice of personal insults, uttered without malice. After all, he said, he was old, and though he believed he wasnt a fool, someone else who sincerely thought he was, was entitled to his opinion. He also added But if they (the Editor and Publisher) had said we were dishonest or not true to our conscience, I would have promptly hauled them up. Here is a judge who was so conscious of his enormous power that he knew when not to use it: a self-restraining quality which greatly enhances the prestige of all judicial power. There is another disturbing aspect of this branch of the law. Unlike defamation truth, is not considered to be a defence. Does the law of contempt then impose reasonable restrictions on freedom of speech if you are not permitted to speak and establish the truth? Indias note constitutional historian H.M. Seervai had no doubt on the point. This is what he had to say in the Fourth Edition of his famous book on the Constitution of India: a law relating to defamation, which provided that truth, spoken or written, for the public good shall not be defence in a libel action would impose restrictions which would be unreasonable . .the position would be no different if a law were to enact that truth should not be a defence to a charge of contempt of court, if it consists in scandalizing a judge. In a criminal prosecution for libel, the prosecution would fail if it were shown that specific charges were true and it was for the public good that they should be made. But is there one law for a
106

Attorney General v. Guardian Newpaper, 1987 (3) AER 316.

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corrupt Minister and another for a corrupt Judge? The author then boldly says that no court in India would say that there was one law for a corrupt Minister and another for a corrupt Judge, and says quite confidently that no court would by any process of reasoning punish for contempt the writer of an article who, in sober language sets out specific acts of bribery and is able to successfully prove them. For this view the author relies on a judgment of a Constitutional Bench of the Supreme Court itself in B. Ramakrishna Reddy v. State of Madras107 1952 SCR 425 where Justice B.K. Mukherjea said: The article in question is a scurrilous attack on the integrity and honesty of a judicial office. Specific instances have been given where the officer is alleged to have taken bribes or behaved with impropriety to litigants who did not satisfy his dishonest demands. If the allegations were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring the judiciary into disrepute. Unfortunately these observations were read in a later case in Perspective Publications Pvt. Ltd., & anr. V. State of Maharashtra108 as not laying down affirmatively that truth and good faith could be set up as a defence in contempt proceedings; and ever since then the law in Perspective Publications Case is the law that is followed. Wrongly, I would submit. Particularly since years after the Perspective Publications Case another Bench of three Honble Justices of the Supreme Court (in August 1976) set aside a Full Bench decision of the High Court of Punjab, which held that a prima facie case for contempt was made out. In that case 15 members of a Bar Association made a complaint about observations of a High Court judge made during an inspection at the District Court Bar the judge had said nasty things about politicians and the lawyers felt that the judge was wrong to talk politics and they said so in the letter. The letter was addressed to the Chief Justice but it was placed for consideration of a Bench of the Court and on perusal of the contents the Bench that a prima facie of criminal contempt was made out. None of the allegations in the matter against the judge were disputed or challenged. Yet the High Court proceeded on the basis that even though the letters written correctly recorded what had happened and commented adversely on the judges conduct, the authors were guilty of contempt. The Supreme Court overruled and by so overruling emphasized that allegations when true were not capable of sustaining a charge of contempt.

107 108

1952 SCR 425. (1969) 2 SCR 779

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The most recent endorsement of this view is the decision of the Privy Council (March 1999) in which Lord Slynn (in an appeal from the Republic of Mauritius), whilst upholding the constitutionality of the offence of scandalizing the court, under the Constitution of Mauritius, emphasized two things: first, that the cope of offence was a narrow one and second, that exposure and criticism of judicial misconduct plainly in the public interest would not necessarily constitute contempt: that is to say truth and good faith would trump the Contempt law, which is as it should be. Our Constitution makes freedom of speech and expression a fundamental right, and the exception to it is the law of contempt- not any law of contempt but reasonable restrictions in the law. The Contempt of Courts Act does not say that truth cannot be a defence and it is for the Courts to interpret the meaning of the word scandalize. If it is part of the law as understood that a person commits contempt if he truthfully publishes as a fact that a particular Judge has accepted a bribe for giving a judgment in a partys favour then such a law would be void as imposing unreasonable restrictions on the freedom of speech and expression: the judge who took the bribe would be false to his oath, to do justice without fear or favour; and it would be absurd to say that although Article 124(4) provides for the removal of a judge for proved misbehaviour, no one can offer proof for such misbehaviour except on pain of being sent to jail for contempt of court. This is a glaring defect in our judge-made law that needs to be remedied- hopefully by the Judges themselves; if not, reluctantly then by Parliament. It is interesting to notice that when the Ontario Court of Appeal some years ago considered the offence of scandalizing the Court in the light of the Canadian Charter of Human Rights. The majority in the Court concluded that scandalizing the court was no longer compatible with the fundamental freedom of speech and expression. 109 The dictionary meaning of the word scandalize is to utter false or malicious report of a persons conduct. Therefore truth can never scandalize. The decision of Supreme Court in Ravichandra Iyer v. Bhattacharji110 is a regrettable one because the Bench in that case said that even Bar Associations can not take up matters and pan resolutions with regard to allegations of corruption against sitting judges. They must take up the matter first with the Chief Justice and await his response for a reasonable period. And what if the Chief Justice does not respond what after that? Their Lordships gave no answer. It is Bahttacharjis case, which quotes Harry Edwards, Chief Justice of the US Court of Appeals of the District of Columbia who was at one time Chairman of what is known as the Judicial Council in
109 110

R. v. Kopyto, 1987 (47) DLR 4th Series. 1995 (5)SSC 478

39

the United States (a Council for disciplining federal judges in the US judges who are appointed for life). In Bhattacharjis case our courts quoted from an article by Harry Edwards in which he had said: Ideal of judicial independence is not compromised when judges are monitored and regulated by their own peers. This limited system of judicial self-regulation present no constitutional dilemma as long as the removal power remains with Congress. I argue that the judiciary alone should monitor this bad behaviour through a system of self-regulation.

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BIBLIOGRAPHY Articles & Journals A. G. Noorani, A Disturbing Judgment, Frontline, March 29 2002 at 34. 1. 2. 3. 4. 5. 6. 7. 8. 9. Floyd Abrams, Fair Trial- Free Press: A Legal overview, Address before Connecticut Bar Association, 1979 K. K. Mathew, Chief Editor, Malayalam Manorama, A Talk on All India Radio on The Freedom of Press, Vidura, Vol. 15, No. 5, October 1978 at 280. Madhavi Divan, The Law of criminal Contempt: time to move on, The Lawyers Collective, March 2002 at 8. R. Dhavan, The Press and the Constitutional Guarantee of Free Speech and Expression, 28 Journal of Indian Law Institute 292. Raju Z Moray, Conversation in a Court Room, The Lawyers Collective, July-August 1994 at 53. S. P Sathe, Freedom of Speech and Contempt of Court, Economic and Political Weekly, 17- October 1970 at 1749. Upendra Baxi, In an interview on the Freedom of Press, Vidura, Journal of the Press Institute of India, Vol. 12, No. 6, December 1974 at 4. Usha Kamath, Of Judicial Power, Frontline, March 29 2002. Z. Chafee, Book Review, Free Speech: And its Relition to Self-Government by Alexander Meiklojohn, 62 Harvard Law Review, 1949 at 891 (898).

Books 1. 2. 3. 4. 5. 6. 7. 8. E.S. Venkataramaih, Freedom of Press- Some recent Trends, 1st Edn., B.R. Publishing Corp, New Delhi, 1987. H M Seervai, Constitutional Law of India, Vol. I, 4th Edn., Universal Book Publishers, New Delhi, 1999. J. Milton, Aeropagiticia, 1st Edn., 1644 at 23 as Cited in D. S. Bogen, First Amendment Ancillary Doctrines, Maryland Law Review, Vol. 37, No. 4, 1978. James Francis Oswald, Contempt of Court, 3rd Edn., Hindustan Law Books, Calcutta, 1993. Justice A. N. Grover, Press and the Law, 1 st Edn., Vikas Publishing House Ltd., New Delhi, 1990. Justice V r Krishna Iyer ad V Sethi, Essays on Press Freedom, 1st Edn., Capital Foundation Society, 1996, New Delhi. K. K. Mathew, On Democracy, Equality and Freedom, 1st Edn., Universal books, 1978. K. N. Goyal, Judicial Miscellany, 1st Edn., Institute of Judicial Training and Research, Uttar Pradesh, 1993.

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9.

Krishna Iyer and V. Sethi, Essays on Press Freedom, 1st Edn., Capital Foundation Society, New Delhi, 1996.

10. Oxford Dictionary of Quatotations, 3rd Edition, Oxford University Press, 1999. 11. P Krishnaswamy, Justice V. K. Krishna Iyer-A Living Legend, 1st ed., Universal Publication, New Delhi, New Delhi, 2000. 12. S. K. Padover, Thomas Jefferson on Democracy, 2nd Edn., McMillan Publishers, New York, 1956. 13. S. Pal, Law of Contempt, Law Research Institute, Calcutta, 2001. 14. V. G Ramachandran, Contempt of Court, 5th Edn., Eastern Book Company, 1976. 15. Vepa P. Sarthi, G. C. V. Subba Raos Commentary on Contempt of Courts Act, 1971, ALT Publications, Hyderabad, 1999.

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