Introduction
Recently the ‘contempt of courts’ issue has drawn widespread attention, debate, and discussion in the media, and among different politically conscious circles. But the matter is not a new one; earlier incidents involving the issue of contempt of courts have taken place which have raised several questions on this constitutional provision. The issue involves two major concerns—the role of Attorney General of India (AGI) in deciding contempt, and thereafter the subsequent course of action by the Supreme Court. The issue bears significance due to some recent developments pertaining to the matter of contempt of court including charge of contempt of court against some influential persons, the volume of punishment, and granting of complete pardon in certain cases.
Recent Developments
In 2020, a charge of contempt of court was initiated against senior lawyer Prashant Bhushan, stand-up comedian Kunal Kamra, and a webcomic creator Rachita Taneja. In the latest development, the AGI, K.K. Venugopal granted his consent for contempt of court proceedings to be initiated against artist Rachita Taneja for tweets that were considered an ‘audacious assault and insult to the institution’ of the Supreme Court. The AGI took note of Taneja’s tweet which appeared to suggest that the apex court was biased towards the ruling Bhartiya Janata Party (BJP) party, in the context of the Supreme Court’s decision in granting bail to Republic TV editor-in-chief Arnab Goswami who was arrested for abetting a suicide. In this regard, a law student wrote a letter to the AGI seeking permission to initiate contempt proceedings against the cartoonist.
Back in November 2009, the apex court issued contempt notices to senior lawyer Prashant Bhushan and editor of Tehelka magazine, Tarun Tejpal, for allegedly casting aspersions on some sitting and former top court judges. The 2009 case against Bhushan was filed by senior advocate Harish Salve in connection with an interview published in Tehelka magazine, in which Prashant Bhushan had made allegations of corruption in the judiciary. Apart from Bhushan, Tarun Tejpal was also charged with contempt of court.
The fresh case against Prashant Bhushan involved two tweets posted by him, in June 2020, about the functioning of the Supreme Court and the Chief Justice of India. A Supreme Court bench held him guilty in August 2020 and finally a token fine of ₹ 1 was imposed on him after he refused to apologise for his tweets.
In September 2020, the Supreme Court deferred a hearing in the 2009 contempt case against Prashant Bhushan, and reserved its verdict on the quantum of sentencing in the contempt case initiated against him in 2020.
Evolution of the Concept of Contempt of Court
The concept of contempt of court is several centuries old. India’s contempt of court law is derived from the British law. In England, it is a common law principle that seeks to protect the judicial power of the monarch, initially exercised by the monarch, and later by a panel of judges who acted in his/her name. Violation of the judges’ orders was considered an affront to the monarch. Over time, any kind of disobedience to judges, or obstruction of the implementation of their directives, or comments and actions that showed disrespect towards them came to be punishable. In 2013, the United Kingdom abolished ‘scandalising the judiciary’ as a form of contempt of court on the grounds that this went against freedom of expression, though other forms of contempt like behaviour causing disruption or interference with court proceedings were retained. The constitutional aim of the concept of contempt is to protect judicial institutions from motivated attacks and unwarranted criticism, and as a legal mechanism to punish those who lower its authority.
In India, there were pre-independence laws of contempt; the early high courts, as well as the courts of some princely states had such laws. When the Constitution was adopted, contempt of court was made one of the restrictions on freedom of speech and expression. Article 129 of the Constitution conferred on the Supreme Court the power to punish contempt of itself and Article 215 conferred a corresponding power on the high courts.
Contempt of Court Act, 1971: The Contempt of Courts Act, 1971, section 15 gives statutory backing to the idea of contempt of court.
The Contempt of Court Act, 1971, Section 2 (c) states that contempt can be of two types, civil and criminal. Civil contempt is committed when someone wilfully disobeys a court order or wilfully breaches an undertaking given to court. Criminal contempt is seen to occur when words, written or spoken, signs and actions that (a) ‘scandalise’, ‘tend to scandalise’, ‘lower’ or ‘tend to lower’ the authority of any court; (b) prejudice or interfere with any judicial proceeding and; (c) interfere with or obstruct the administration of justice.
However, innocent publication, distribution of matter, and reasonable and fair criticism of judicial acts and comments on the administrative side of the judiciary does not amount to contempt of the court. It is clear that fair and accurate reporting of judicial proceedings will not amount to contempt of court.
Making allegations against the judiciary or individual judges, attributing motives to judgments and judicial functioning, and any defamatory attack on the conduct of judges are normally considered matters that scandalise the judiciary. The rationale for this provision is that courts must be protected from unfair attacks that lower its authority, defame its public image, and make the public lose faith in its impartiality.
The 1971 Act describes the procedure for a case for contempt of court to be initiated. In the case of the Supreme Court, the attorney general or the solicitor general, and in the case of a high court, the advocate general of the state concerned may bring a motion before the court for initiating a case of criminal contempt. The act also mentions that if the motion of contempt is brought up by any other person, the consent in writing of the attorney general or the advocate general, as the case may be, is mandatory. While initiating the case the person has to specify the contempt of which the person charged is allegedly guilty.
The objective behind the requirement of the attorney general’s consent before taking cognizance of a complaint is to save the time of the court. The consent of the attorney general is a way to prevent frivolous petitions from reaching the court. As an officer of the court, the attorney general independently ascertains whether the complaint is genuine or not. However, Article 129 empowers the apex court to initiate contempt cases on its own, independent of the motion brought before it by the attorney general or with the consent of the attorney general. The article also empowers the Supreme Court over the attorney general. So, when the court itself initiates contempt of court case, the consent of the attorney general is not required.
In case the attorney general denies consent, (as it denied initiation of criminal contempt of court proceedings against Swara Bhaskar in August 2020, and Shefali Vaidya in November, 2020 as their tweets were one year old), the complaintant can separately bring the issue to the notice of the court and urge the court to take suo motu cognizance. It has to be remembered here that law has a limitation period of one year for bringing in action against an individual.
When the attorney general gives his consent in writing, a notice under the Contempt of Courts Act is served personally to the person against whom the proceedings are sought to be initiated by the court. If the court decides not to serve the notice personally, the court has to record the reason for it. When the court is satisfied that the alleged contemnor is likely to abscond or evade judicial proceedings, it can order attachment of property of a value that it deems reasonable. When the notice is served to the person charged with contempt, he/she may file an affidavit in support of his/her defence, explaining the nature and circumstances of his/her remarks. The contempt case in this context is required to be heard by a bench of at least two judges. The court then takes into consideration any evidence available to check the affidavit, and passes appropriate orders.
The punishment for contempt of court is simple imprisonment for a term up to six months and/or a fine of up to ₹ 2,000.
For many years, truth was seldom considered a defence against a charge of contempt. There was an impression that the judiciary tended to hide any misconduct among its individual members in the name of protecting the image of the institution. The 1971 Act was amended in 2006 to introduce truth as a valid defence, if it was in public interest and was invoked in a bona fide manner.
Analysis
Freedom of speech is a fundamental right guaranteed to every Indian citizen under Article 19(1)(a) of the Constitution, albeit subject to reasonable restrictions under Article 19(2). In C.K. Daphtary vs O.P. Gupta (1971), the Supreme Court held that the existing law of criminal contempt is one such reasonable restriction. That does not mean that one cannot express one’s anger against the judiciary for fear of contempt. Some recent developments have created a sense of doubt on the role of the attorney general in granting consent. The appointment and function of the attorney general of India, though a constitutional body, at times creates an illusion of favouring the government in power.
However, calling the apex court partial and saying it is working to please the ruling government because a decision goes against certain political groups is not a healthy sign for Indian democracy and goes against the very spirit of the Constitution.
The Attorney General of India, as per Article 76 of the Indian Constitution, is the highest law officer of India. He/she is the chief legal advisor to the Government of India. He/she is also the primary lawyer who represents the union government in the Supreme Court of India. The Attorney General of India is not supposed to be a political appointee, in spirit, but this is often not the case in practice.
There is no fixed tenure to the office, so the attorney general holds office during the pleasure of the president. He/she can be removed by the president at any time, but there is no procedure or ground mentioned in the Constitution for such removal.