16 NOV 2020

Contempt of Court– Then and NowBy SkillxPro

‘Contempt of Court’ – the legal concept has garnered a new wave of importance and media coverage in the recent times, that may be in relation to Prashant Bhushan case or the Kunal Kamra case. Where did this concept originate and how did it evolve over the years, we explain.

The administration of justice sits at the very heart of any democratic system. However, this justice system requires its own safeguards to protect its dignity and value. The same was also envisaged by the Constitution of India itself, through Articles 129 and 215, by empowering the courts to punish for its contempt.

However, the roots of the law of contempt in India can be traced back to the pre-independence era. In case of In Re: Abdool and Mahtab [(1867) 8 W.R. (Cr.) 32], Peacock C.J, speaking for the High Court of Allahabad in 1867 laid down the law of contempt through the following words,

“There can be no doubt that every court of record has the power of summarily punishing for contempt”

The law was further broadened and discussed by courts till the onset of the Contempt of Courts Act, 1926 [“Act of 1926”] and subsequently by Contempt of Courts Act, 1952 [“Act of 1952”]. The Act of 1952 brought about major changes to the existing Act by broadening its scope, which now included Courts of Judicial Commissioner and extended the power to punish beyond such court’s territorial jurisdiction.

However, post-independence, questions were raised on the discretionary nature of the Act and after due deliberations, the Contempt of Courts Act, 1971 [“Act of 1971”] was passed by the parliament, which stood in consonance to our constitutional principles. The Act bifurcated the issue of contempt into Criminal and Civil contempt matters. By virtue of Section 2(b) of the Act, Civil contempt aims at prosecuting and punishing disobedience of any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. However, Criminal contempt, through Section 2(c), aims at safeguarding the dignity of the courts of justice by penalising any such act or publication which tends to lower the repute or majesty of such courts.

In recent years, the courts have judiciously used Criminal contempt to uphold their dignity and majesty. The Supreme Court in the case of Re Arundhati Roy, took a bold stance and observed that “No person can flout the mandate of law of respecting the courts for establishment of rule of law under the cloak of freedoms of speech and expression guaranteed by the Constitution of India”

While freedom of speech and expression under the Constitution stands as a pillar of a democracy, but the safeguarding the dignity of the courts too becomes essential to ensure law and justice. Striking a balance between these two essential issues have time and again been debated rigorously. However, the era of internet has opened new doors to the flow of information and thus has given birth to more vocal and critical citizen.

The recent case against Senior Advocate Prashant Bhusan stands as an example of contempt in this new era. Mr. Bhushan was charged with criminal contempt for two of his tweets, which included stark criticism of the Supreme Court for its inactions during COVID-19 pandemic and another comment on a picture of Chief Justice of India where he was posing with a Harley Davidson, without proper gears. Similarly, a popular comedian Mr. Kunal Kamra too has been questioned for his tweets, which criticised the Court’s decision in the Arnab Goswami case. The case is still in its preliminary stage and yet to be heard and decided upon by the Supreme Court.

However, it now becomes important to see, how the Courts and Legislature of India approach the growing critical over-the-internet posts, which are generally seen as a constitutional right to dissent and express under Article 19(1)(a).

We trust you will find this an interesting read. For any queries or comments on this update, please feel free to contact us at [email protected]

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