Criminal contempt? Not now, My Lords

The law of contempt has direct relation with the common law jurisdiction of England. Can the same contempt powers emanating from the absolute powers of monarchs be vested with judges appointed in a democratic system where the Constitution is supreme?

Justice John Eardley Wilmot, in Rex vs Almon (1765), opined that the power of contempt “is a necessary incident to every court of justice whether of record or not, to find and imprison for contempt to the court, acted in the face of it.”

The Supreme Court has found lawyer Prashant Bhushan guilty of criminal contempt of court for two tweets. It has recorded that “the tweet has the effect of destabilising the very foundation of this important pillar of the Indian democracy”, it “tends to shake the public confidence in the institution of judiciary” and undermines the dignity and authority of the institution of the Supreme Court of India.

Origin of Contempt Jurisdiction

At present contempt jurisdiction of higher courts is understood to be a matter of discharging administration of justice and jurisdiction of a court to punish the person who seeks to scandalise or lower the dignity of the court. The ancient origins of contempt jurisdictions, including its roots in the Pre-Historic Divine Era Theory, is an academic exercise for law majors. For the purpose of the present discussion, suffice it to say that the modern concept, as practised today, emerges out of monarchies. Further, not following a court order is civil contempt of court, which again is beyond the scope of the present discussion.

A monarch would administer justice and, generally, the power and authority of the monarch could not be questioned. Thus, if the decision of a king could not be questioned, then his representative, who discharged judicial function, was also infallible and could not be questioned. Those who questioned were dealt with swiftly and severely.

Accordingly, the concept of criminal contempt started to evolve. Further on in history, the power to punish those lowering the dignity or scandalising the court was understood to be commonly inherent with court systems in democracies. Jurists relate this theory of common law contempt powers with the opinion of Justice John Eardley Wilmot in Rex vs Almon (1765), where he opined that this power of contempt “is a necessary incident to every court of justice whether of record or not, to find and imprison for contempt to the court, acted in the face of it. It is as ancient as any other part of common law”. He further stated that if resistance to the minister of a court is punishable then “libelling a judge in his judicial capacity is also punishable” . However, the actual expression appears to have been used first by Lord Chancellor Hardwicke in Roach vs Garven (1742) in a judgment commonly cited as the St. James Evening Post Case. The jurist Sir John Fox described his understanding of Rex vs Almon (1765) thus: “If the King is the fountain of justice and he delegates the power to judges… arraignment of justice of judges is arraigning the King’s justice”. Much later, contempt jurisdiction was made statutory in the United Kingdom.

In 1814, Andrew Jackson, a major general of the United States Military (who later on became the seventh President of the U.S.), arrested a judge who allowed a habeas corpus petition and released the author of an article that was critical of Jackson’s conduct. Jackson appearing in court after a show-cause motion was granted for the attachment of his property for contempt, pleaded that “summary power of contempt” violated his rights under the U.S. Constitution. He argued that “the necessity, which allowed circumvention of constitutional privileges in contempt cases, was a lesser one than the necessity which prompted his conduct”. Although Jackson was found guilty of contempt, he was let off with a fine of $1,000. This, again, was an exercise of power under the common law power considered to be inherent in the jurisdiction of the court.

In 1831, in some manner, contempt power was made statutory in the U.S. However, in Bridges vs California (1941) , the U.S. Supreme Court raised the question as to whether the court should still exercise its powers to punish by contempt, out of court publications, on the basis of a practice that was “deeply rooted under English common law at the time the constitution was adopted” and adopting English common law in this field was to deny the generally accepted historical belief that the objects of the American Revolution was to get rid of English common law on liberty of speech and of press”. The court sought to dispel the concept of wide contempt jurisdiction developed through common law, if it affected the right of free speech.

Immediately, thereafter, in Pennekamp vs Florida (1946), the court discharged the contempt in relation to publications that criticised its handling of cases, making allegations of bench hunting and prioritisation of hearing of cases. The publication stated that the matter, which otherwise remained pending for long for technical reasons, all of a sudden, before a particular judge, became urgent. It further stated that “there you have the legal paradox; working two ways... Speed, when needed. Month after month of delay when that serves the better”.

In relation to fair administration of justice, the U.S. Supreme Court stated: “No definition could give an answer. Certainly this criticism of the judge’s inclinations or actions in these pending non-jury proceedings could not directly affect such administration. This criticism of their actions could not affect their ability to decide the issues.... For such injuries, when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants” and also stated that “free discussion of the problems of society is a cardinal principle of Americanism”.

This remnant of the colonial Raj may possibly no longer have a place in a post-modern society. In fact, the U.K. has taken steps in this regard. The U.K. Law Commission Report, 2012, reached the conclusion that the offence of scandalising the court, was, in principle, an infringement of freedom of expression that should not be retained without strong principled or practical justification and the offence was no longer in keeping with current social attitudes. Accordingly, this category of contempt was abolished in the U.K. in 2013. However, in the U.S., in the Justice Manual (previously known as the USAM), “contempt of court” is still defined as “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”.

Contempt Jurisdiction in India

In India, the law of contempt has direct relation with the common law jurisdiction of England. The “courts of record” in England exercised contempt powers to convict persons who scandalised the court or the judges. The courts of record have been indicative of a superior status rather than a court that is regulated through procedure. A court that is such a high and super eminent authority that its truth is not to be called in question. The Judicial Committee of Privy Council recognised that the Indian High Courts shall have the same inherent power to punish for contempt, especially the three Charter High Courts—Calcutta, Bombay and Madras. The other High Courts of British India, by virtue of being courts of record, started exercising this power. Over a period of time, various States such as Hyderabad, Madhya Bharat and Rajasthan brought contempt laws. In the interregnum British India passed the Contempt of Courts Act, 1926, which was replaced by the Contempt of Courts Act, 1952. There were various efforts to improve this 1952 law. Finally, the H.N. Sanyal Committee was set up to examine the law relating to contempt of courts in the light of the position obtaining in India and various other countries. The committee gave its report in 1963. It recorded the principle underlying the law of contempt as expounded in the Almon case: “the power of committing contempt was the emanation of royal authority, for any contempt of court would be contempt of the sovereign.” Pursuant to this report, the Contempt of Courts Act, 1971, was passed.

Before that, when the Constitution of India was framed, Articles 129 and 215 of the Constitution empowered the Supreme Court and the High Courts respectively “to punish for contempt of itself”. The power to make law relating to contempt was set out in Entry 14, List III of the Constitution. While framing Article 19, to protect freedom of speech, in Article 19(2), certain exceptions were carved out in relation to law-making powers, which may affect the rights guaranteed under Article 19(1). One of the exceptions was the power to make law imposing reasonable restrictions on freedom of speech and expression “in relation to contempt of courts ”. The issue was discussed in the Constituent Assembly in some detail. Many favoured it, hence it was added in Article 19(2). However, a few members stood strongly against this addition.

One R.K. Sidhwa on October 17, 1949, opposed it by saying: “After all, Judges have not got two horns; they are also human beings. They are liable to commit mistakes. Why should we show so much leniency to them? We must safeguard the interest of the public". He further stated that “... Even there, I say the High Court judges are not infallible; they have also committed so many mistakes. They do not want any comment to be made against a High Court judge when comment was necessary in the interest of the public life .” Another member, B. Dass, also opposed.

Today, our legislatures are vested with the powers to make laws on contempt. We have a statute called the Contempt of Courts Act, 1971, which defines “civil contempt” and “criminal contempt ” in addition to the procedure to be followed. Civil contempt is wilful disobedience of the court orders whereas criminal contempt is to “scandalise or lower the authority of court”, “prejudicing or interfering with the administration of judicial proceedings and or administration of justice”. If somebody “tends” to do any of such things, without actually doing it, shall also be liable. The definition is remarkably wide.

Seemingly, we are at a crossroads to see whether the same contempt powers emanating from the absolute powers of monarchs can be vested with wide discretionary powers to judges appointed in the modern-day democratic system where the Constitution is supreme. The judiciary is a strong pillar of our constitutional scheme. It has settled the principle of “basic structure” of the Constitution, which cannot be taken away even by Parliament, the direct representatives of the people of India. It has been strong. It has all safeguards to remain strong, mainly to protect the rights of citizens against mighty executives and the administration. Using the strength of the judiciary against a citizen who criticises it may project it as a court exercising powers on the basis of the principle laid down in the Almon case.

Lastly, can the subjective opinion recorded in the tweets of a lawyer, placed on social media, in relation to the role of the Chief Justice of India have a “ destabilising ” effect on “the very foundation of judiciary in the Indian democracy”? Respectfully, I would say “No”.

M.R. Shamshad, formerly Standing Counsel for the Government of Uttar Pradesh, is an advocate in the Supreme Court of India.