Power of Contempt: Divine Origin, Colonial Evolution, and Judicial Devolution

Introduction

On 10-12-2021, in a televised interview, the former Chief Justice of India (hereinafter “CJI”), Justice Ranjan Gogoi, when asked about whether there exists corruption in the Supreme Court of India (hereinafter “the Court”), he was quoted as saying, “corruption is as old as society. It has become a way of life, an acceptable way of life. And Judges do not fall from heaven.” This statement invited comments, which criticised the former CJI. There has also been a call for initiation of contempt proceeding against him for the comments he made, because if that is not done, the ultimate result could be the eternal erosion of public faith in the institution of the judiciary.²

This incident is but one manifestation of the problem that permeates through the exercise of the power of contempt, and it is the power of contempt that is the subject of this article, which is structured as follows: the author will first elucidate the meaning of the term “contempt”, and trace the origin of the power; second, the author shall briefly mention the characteristics of the pre-independence statute and why the provision of contempt of court was incorporated as a reasonable restriction in Article 19(2) of the Constitution of India³ (hereinafter, “the Constitution”); third, the author shall discuss the Report of the Sanyal Committee and the provisions of the existing statute, and why a challenge thereto would not have made much of a difference; fourth, the author shall enumerate the conditions, as laid down by the Court, to determine the validity of a reasonable restriction, and show that the statutory status quo criminalising contempt of court cannot be reasonably accommodated in the present constitutional scheme; and finally, the author shall discuss that one of the important purpose which is sought to be achieved through contempt proceedings can and has always been achieved by another method.

Comprehending the meaning and tracing the origin

Judiciary has been considered the custodian of the Constitution and is entrusted with deciding disputes arising from adverse claims. To effectively perform the duties entrusted to the sentinel, the dignity and authority of the court as an institution must be respected and protected. However, juxtaposed with the other two branches of the Government, the courts appear to be the weakest, as they control neither the sword nor the purse. And thus, to compel obedience where it is not otherwise forthcoming but is nevertheless necessary, the courts have been vested with the power to punish those recalcitrant entities who flout the directions (of the court), referred to as power to punish for contempt.⁴

In general parlance, contempt is either a feeling or an act manifesting that feeling through which one does not respect someone or something.⁵ A perusal of legal literature gives us the following meaning of contempt of court, as understood in common law:

An act or omission calculated to interfere with the due administration of justice. This covers criminal contempt (that is, acts which so threaten the administration of justice that they require punishment) and civil contempt (disobedience of an order made in a civil cause.⁶

Reference to common law is necessary because if one traces the origin of the concept of contempt of court, leading back to the annals of the House of Lords and the alleyways of England. The phrase contemptus curiae has been used in English Law for eight centuries.⁷ Law conferred the power to enforce discipline within its precincts and punish those who failed to comply with its orders. In other words, the contempt jurisdiction was evolved to meet the need of tackling intheface contempt. In the twelfth century, the contempt of the king’s writ was mentioned as an offence in the laws of King Henry I. In the same laws, there was mention of pecuniary punishment for contempt or disregard of orders. In England, for centuries, contempt of court has been a recognised expression and initially applied to defaults and wrongful acts.⁸ Because of the increase in the number and the complexity of disputes, the judiciary took over the role as the final arbiter of justice from the sovereign. The courts thus came to be considered representatives of the king. And in the same way that the king could not be abused or scandalised because the king was understood to have been an incarnation of God and wielder of divine justice, and no one would have the thought of obstructing a proceeding with impunity, the same considerations applied to the courts.⁹

Justification of contempt of court in modern times is found in the observations of Wilmot, J. in Rexv. Almon¹⁰. In that case, Almon was a bookseller who was tried in 1765 for publishing an alleged libel about Lord Mansfield. One of the charges Almon made against Lord Mansfield related to a court action involving Wilkes. Due to some confusion, the action was abandoned, and the opinion was never delivered. However, at a later point in time, Wilmot, J.’s son got his father’s opinion published, which has become one of the most crucial pieces of observation on the topic:

The power which the courts in Westminster Hall have of vindicating their own authority is coeval with their first foundation and institution; it is a necessary incident to every court of justice, whether of record or not, to fine and imprison for a contempt to the court acted in the face of it… and the issuing attachments by the Supreme Courts of Justice in Westminster Hall for contempt out of court stands upon the same immemorial usage as supports the whole fabric of the common law; it is as much the lex terrae and within the exception of Magna Carta as the issuing [sic] any other legal process whatsoever. I have examined very carefully to see if I could find out any vestiges or traces of its introduction but can find none. It is as ancient as any other part of the common law; there is no priority or posteriority to be discovered about it and therefore (it) cannot be said to invade the common law, but to act in an alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society.¹¹

The present position in England is reflected by Spycatcher case¹². The Daily Mirror levelled criticism in the harshest manner against the Judges when they had imposed an embargo on the memoir of a former intelligence officer on the ground that it revealed sensitive information. The paper wasnot held in contempt, despite calling Judges old foolsand posting a photo of them upside-down to represent that they were not thinking straight. When asked about it, Lord Templeman said that Judges in England took no notice of personal insults unless it was done with malice. Recently, in the fallout of the Brexit case, The Daily called the Judges enemy of the people and still wasnot held in contempt.¹³

Unfortunate incorporation of a colonial practice as reasonable restriction

In an unfortunate, albeit not an unexpected development, while elsewhere, there was discussion about tackling the arbitrariness in power to punish for contempt,¹⁴ in colonial India, it was given a new lease of life through the Contempt of Courts Act, 1926. One of the avowed objectives of this legislation was to address the issue of uncertainty and ambiguity concerning the exercise of contempt jurisdiction with respect to subordinate courts to the respective High Courts.¹⁵ However, the Act did not merely clear (some) confusion concerning contempt of subordinate courts, it also provided a legislative base for officers of the British Raj to curtail criticisms, irrespective of merits of same, which were being levelled against the malfunctioning judiciary. Despite certain inherent infirmities in the language of the 1926 Act,¹⁶ it remained in force till the framing of the Constitution.

This led to a potentially conflictingsituation. The Constitution contains the fundamental right to freedom of speech and expression. In addition, Article 13(1) of the Constitution¹⁷mentions that if there were to be any existing law (immediately before the commencement of the Constitution), insofar as they are inconsistent with the provisions of Part III of the Constitution (fundamental rights), that law would be unconstitutional to the extent of the inconsistency. It is self-explanatory that criminalising contempt of court curtails the right contained in Article 19(1)(a) of the Constitution. To avoid this conflict, a suggestion was put forth that the phrase “contempt of court” must be added as a reasonable restriction in Article 19(2) so that the 1926 Act remains constitutionally permissible.¹⁸ Moreover, under Articles 129¹⁹ and 215²⁰ of the Constitution, both the Supreme Court and the High Courts were given the status of a court of record. Once a court is made a court of record, it is a legal necessity which flows from the fact of its being a court of record, that both will have the power to punish for contempt of itself.²¹

However, apprehensions were raised by members of the Constituent Assembly, with one member questioning the prudence behind the incorporation of contempt of court as a restriction in the following words:

First of all, let me state that this is not a consequential amendment. This is a fundamental proposition…. We know about this contempt of court, how the Judges have been exercising their powers in the past, as if they are infallible, as if they do not commit mistakes…. I cannot understand why my lawyer friends are very lenient to the Judges. After all, Judges do not have 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.²²

The last statement is most significant. India was ushering into a new era in which we, the people,gave the Constitution to ourselves. But the Constitution incorporated a colonial practice that restricted the most cherished liberty, and how the courts have interpreted the provisions has only accentuated an already existing problem.

Exacerbating the problem

After the Constitution came into force, the Contempt of Courts Act, 1952²³ was enacted to repeal and replace the 1926 Act. The 1952 Act, while largely re-enacting the provisions in the 1926 Act, made two critical changes: first, by defining the expression “High Court” to include courts of Judicial Commissioners, the 1952 Act cleared the ambiguity regarding the power of High Courts to punish the contempt of subordinate courts; second, the 1952 Act gave more teeth to the courts by making it clear that the High Court (including the courts of Judicial Commissioners) would have jurisdiction to inquire into and try contempt of itself or any court subordinate to it, irrespective of whether the person alleged to be guilty of contempt was within or outside such limits.²⁴

In July of 1961, a committee was set up under the chairpersonship of H.N. Sanyal, the then Additional Solicitor General, to submit a report, inter alia, on whether the provision relating to power for punishing for contempt of court was in accordance with constitutional limitations and if not, how the same can be achieved. The Committee, in its report, mentioned that the law of contempt must be harmonised with the constitutional guarantee of freedom of expression and personal liberty. To ensure that provisions relating to the same complied with constitutional requirements, the Committee focused on procedural propriety, specifically regarding doing away with summary proceedings with respect to contempt of courts, which wasnot done in the face of courts.²⁵

As per the Contempt of Courts Act, 1971²⁶, contempt of court has been segregated into two categories, civil and criminal. With respect to the former, the author humbly agrees with the views of the Sanyal Committee in which it is mentioned that insofar as civil contempt pure and simple is concerned, it does not attract any considerations affecting the fundamental right of freedom of speech because it is obvious that the courts should be clothed with adequate powers to enforce their orders.²⁷ Also, even a bare reading of Section 2(b) of the 1971 Act²⁸ is enough to suggest that not only elements of what is required to constitute civil contempt are categorically laid down, but the element of even mens rea is also present. Unfortunately, the same is not the case concerning criminal contempt in which, as per the definition given in the Section 2(c) of the 1971 Act²⁹, the element of mens rea is not necessary. The definition is couched in broad terms, for which the Committee envisaged that the broad terms would be used as a guide by both the public as well as the courts.³⁰

In 2020, a petition was filed challenging the constitutional validity of Section 2(c)(i) of the 1971 Act³¹, which criminalises the act of someone if that act scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court.Even assuming the provision was held to be unconstitutional, it wouldnot have made much difference. The Act only outlines the procedure in relation to investigation and punishment for contempt, and deletion of the offence from the Act will not impact the inherent constitutional powers of the superior courts to punish anyone for its contempt.³² The constitutional courts, both the Supreme Court and the High Courts, will still have the power to punish for contempt by virtue of their being a court of record, a power which also extends with respect to subordinate courts, which in turn signifies that any substantive change in the provisions of the Act will not impact the power of the constitutional courts to punish for contempt.³³

Furthermore, while exercising this power, it can only be governed by broad guidelines that will help to determine whether the contempt has been committed or not because, according to the Supreme Court, laying down exhaustive considerations for determination would be a complex and baffling exercise.³⁴ This, the author submits, is the most problematic part of the power to punish for criminal contempt and why it must be deemed unconstitutional, in the present state in which it exists. Because there are no specific guidelines in this regard, there is a considerable discrepancy between what constitutes contempt and what doesnot. For example, a former law minister who says that antisocial elements, bride-burners, and a whole horde of reactionaries have found their haven in the Supreme Court didnot constitute contempt. Still, when an author levelled criticisms, which continued in affidavits, she was denied the benefit of the previous precedent as she lacked special knowledge in the subject, despite her tone being more reverential than the former.³⁵

Finding a (non-existent) justification

Any restriction, in order to be considered reasonable and thus constitutionally permissible within the scope of Article 19(2) must meet a few prerequisites. In this chapter, the author will enumerate those prerequisites and explain why the status quo regarding the contempt of court needs revamping:

• Nature of right alleged to be infringed: In the present case, the right which is being affected the most is the right of freedom of speech and expression, which according to Justice Benjamin Cardozo, is thematrix, the indispensable condition of nearly every other form of freedom. And without it … the end result would be that the spirit of man would be mutilated and become enslaved.³⁶
• The underlying purpose of the action: Through criminal contempt, the object is not only to punish but also to preserve the sanctity of administration of justice and integrity of proceedings.³⁷ Also, it has to bekept in mind that no Judge shall be scandalised in that capacity, meaning that any hostile criticism of the Judge as a Judge will be constituted as scandalising that court.³⁸Justice Brewer had said, in 1898, that time is past in the history of the world when any living man or body of men can be set on a pedestal and decorated with a halo. The life and character of the Justices should be the object of constant watchfulness by all….³⁹ According to the author, the separation of the two capacities (judicial and non-judicial), particularly when the two cannot be reasonably separated, is an exercise in futility.
• Proportionality: If one analyses the effect of the provisions relating to contempt, it leads to something which is in judicial discourse referred to as producing chilling effect — a doctrine that was used first in the United States of America and applies to cases where governmental laws and governmental (or private) activities are of a nature that while not directly censoring free speech, nonetheless have the impact of self-censorship. The classic example is that of excessively vaguely worded libel laws.⁴⁰Justice V.R. Krishna Iyer famously remarked that the law of contempt has a vague and wandering jurisdictionwith uncertain boundaries. Regardless of the public good, it may unwittingly trample upon civil liberties.⁴¹ The opinion of Justice Iyer suggests that a step (contempt jurisdiction), which might or might not have a relation between objective sought to be achieved (respect for and ensuring due administration of justice), is permitted even when it is admittedly trampling down the most cherished freedom in a democracy. Resultantly, if the relationship between the measure taken and the objective sought to be achieved by that measure is questionable, it logically follows that the adverse impact on the exercise of the right will be clouded with the question of disproportionality.
• Prevailing conditions: There have been a couple of unprecedented developments — four Judges conducting a press conference criticising the then CJI for not fulfilling his duties as master of rolls; and a former CJI becoming a Member of Parliament immediately after retirement.⁴² The author humbly argues that unprecedented developments which have the potential to alter the constitutional landscape of a country must be followed by unprecedented scrutiny of that institution and individuals who constitute it. In other words, the contempt provisions must be adjusted to accommodate these changes.

The Court laid down the above factors for an act of State which could be classified as law within the meaning of Article 13.⁴³ Since the superior courts of justice are not State within the meaning of Article 12⁴⁴, and consequently, their judgments not a law within the scope of Article 13,⁴⁵ they are effectively doing something, which would in all probability be deemed to be unconstitutional had it been done by either of the two other branches of the State.

A question therefore arises is the legal acumen of Judges a strong enough safeguard to not be concerned about vesting in them the power of Judge, jury, and executioner as far as contempt proceeding is concerned, or exempting them from the free, sometimes uninhibited criticism, which is levelled against legislators and executives? In the words of Mr David Pannick, this criticism is rather necessary because the judiciary enjoys a security of tenure rightly denied to politicians and unique to public servants.⁴⁶ Since provisions of Part III in general and Article 19(1)(a) of our Constitution in particular draw inspiration from the American Bill of Rights,⁴⁷ the author will quote Frankfurter, J.:

50. … Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other person or institutions. Just because the holders of judicial office are identified with the interest of justice, they may forget their common frailties and fallibilities… Judges must be kept mindful of their limitations and their ultimate responsibility by a vigorous stream of criticism expressed with candour, however blunt.⁴⁸

(emphasis supplied)

The final vindication

According to Justice H.R. Khanna:

The strongest weapon in the armoury of the judiciary is its unsullied image, the esteem it evokes and the confidence it enjoys. Reference is sometimes made to the contempt of court power of the Judges to command respect. This, perhaps, is not correct and is apt to mislead. Contempt of court, as observed by a great jurist, shouldnot be used as a means to uphold our own dignity. This must rely on surer foundation …. We must rely on our conduct itself to be its own vindication.⁴⁹

(emphasis supplied)

For example, the Court’s conduct during the Covid-19 Pandemic has not been considered its own vindication.⁵⁰ By listing a pending suo motupetition of an issue which took place 10 years ago,⁵¹ after the Supreme Court didnot (for a period of multiple months) intervene to address the plight of migrant workers,⁵² and was conducting its proceeding through virtual hearings and listing urgent matters,⁵³ the Court only fanned the flames of apprehensions which were raised in the Constituent Assembly, apprehensions which have persisted, and apprehensions which, with the passage of time, are gradually being affirmed.

The assertion of Justice Khanna receives still further backing by a contrasting example. One of the major criticisms against judiciary is the opaqueness in its modus operandi. Recently, the High Courts across the country have started to livestream their courtroom proceedings. This step has received almost⁵⁴unanimousapproval from every section of the society, as the High Courts have allowed the sunlight, now both literally and figuratively, to enter the courtrooms, which has been considered to bethe best disinfectant.⁵⁵

Thus, it would appear that the judiciary has two diverging routes to the same destination: either endeavouring to compel the citizenry to respect it by the threat of the sword of Damocles,⁵⁶ which is the power of criminal contempt, and which, at best, is not always effective; or in the alternative, to place its reliance on a much surer foundation.⁵⁷