Date: 05/09/2022

Relevance: GS-2: Structure, organization and functioning of the Judiciary, Statutory, regulatory and various quasi-judicial bodies, Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies.

Key Phrases: Supreme Court of India, Contempt Of Court, Attorney General, Contempt of Court Act 1971

Context:

• Recently, the Attorney General of India has declined to give consent to a lawyer to initiate criminal contempt proceedings against a Senior Advocate of the Supreme Court of India.

Background:

• A Senior Advocate in a talk in Delhi recently criticized a Supreme Court’s decision which was related to 2002 Gujarat riots.
• The Senior Advocate was of the view that the Supreme Court’s verdict upholding amendments made to the Prevention of Money Laundering Act virtually provided unbridled powers to the Enforcement Directorate which might affect the delivery of justice.

What is Contempt of Court?

• Contempt of court, is a judicial concept which seeks to protect judicial institutions from motivated attacks and unwarranted criticism, and as a legal mechanism to punish those who lower its authority.
• This follows the initiation of contempt proceedings by the Supreme Court of India, on its own motion.

What is the role of the Attorney General in contempt proceedings?

• Usually the courts require the consent of the Attorney General (AG) before taking cognizance of a complaint because:
  • It saves time of courts because judicial time is squandered if frivolous petitions are made and the court is the first forum for bringing them in.
  • The AG’s consent is meant to be a safeguard against frivolous petitions, as it is deemed that the AG, as an officer of the court, will independently ascertain whether the complaint is indeed valid.
• The AG’s consent is mandatory when a private citizen wants to initiate a case of contempt of court against a person.
  • If the AG denies consent, the matter all but ends; however the complainant can separately, bring the issue to the notice of the court and urge the court to take suo motu cognizance.
• When the court itself initiates a contempt of court case the AG’s consent is not required because in this case the court is exercising its inherent powers under the Constitution to punish for contempt.
  • Article 129 of the Constitution gives the Supreme Court the power to initiate contempt cases on its own, independent of the motion brought before it by the AG or with the consent of the AG.

Is there any statutory backing to contempt of court?

• When the Constitution of India was adopted, contempt of court was made one of the restrictions on freedom of speech and expression.
• Separately, Article 129 of the Constitution conferred on the Supreme Court the power to punish contempt of itself.
• Article 215 conferred a corresponding contempt power on the High Courts.
• The Contempt of Courts Act, 1971, gives statutory backing to the idea of contempt.

Why should the Judiciary not allow contempt?

• While the judiciary issues orders, they are implemented by the government or private parties. If the courts are unable to enforce their orders, then the rule of law itself will come to grinding halt.
• Thus the courts should not allow the contempt for the following reasons:
• Increasing instances of Contempt and scandalizing demand the need of contempt law.
• Maintained supremacy of law: is essential for a nation such as India which is based on the concept of rule of law
• Constitutional Source of Contempt Power:
  • Supreme Court and High Courts derive their contempt powers from the Constitutional Articles 129 and 215 thus deletion of offense will violate the constitutional provisions
• Impact on Subordinate Courts:
  • The Contempt of Court Act allows the High Court to punish for contempt of subordinate courts and removal of the provision will make subordinate courts to suffer.
• Maintain administration of judiciary:
  • Civil contempt is necessary as willful disobedient litigants who ignore the orders of the court cannot be let-off otherwise it would seriously affect the administration of justice and trust of people in the judiciary

Criticism of Contempt

• Against Civil Rights and Liberties:
  • A law for criminal contempt gets in conflict with India’s democratic system which recognizes freedom of speech and expression as a fundamental right (Article 19 and 21).
• Wide Scope of Contempt:
  • The definition of criminal contempt in India is extremely wide, and can be easily invoked.
  • Further, the Contempt of Courts Act was amended in 2006, to add truth and good faith as valid defenses for contempt, but it is seldom entertained by the judiciary.
• Violating the Doctrine of Overbreadth:
  • The language defining criminal contempt is vague enough to encompass within its sweep legitimate criticism as well.
• Violates Principles of natural justice:
  • It does not recognize one of the basic principles of natural justice, i.e., no man shall be a judge in his own cause.
  • Thus, in contempt proceedings, the court arrogates to itself the powers of a judge, jury and executioner which often leads to perverse outcomes.

Way forward

• Freedom of speech is the most vital underlying element of fundamental rights and the restrictions there upon have to be minimal.
• The law of contempt of court can impose only such restrictions as are needed to sustain the legitimacy of the judicial institutions.
• Therefore, rules and guidelines must be framed defining the process that superior courts must employ while taking criminal contempt action, keeping in mind principles of natural justice and fairness.

Source: The Hindu

Mains Question:

Q. “The Judiciary being the creation of the Constitution should not be immune to criticism.” Critically examine the law of Contempt of Court in India and comment on its significance. (250 words).