Contempt of Court

INTRODUCTION

Said = the book=20 worm to the silverfish

I = once tried a=20 law book

At = first, it=20 refused to budge,

Then = suddenly it=20 shook

And = I fell on to=20 judge.

To = tell you what=20 I felt there.

I = won=E2=80=99t even=20 attempt.

Not = because I=20 don=E2=80=99t dare

But = there is=20 something called contempt.[1]

Contempt of=20 court is an offence, which by the common law of England was punishable = by the=20 High Court, in a summary manner, by fine or imprisonment or both. The = power to=20 punish for contempt of court was applied originally in England to = contempt=20 committed in the presence of the court. In 1747, Thomas Martin, Mayor of = Great=20 Yamouth, sent a banknote fundamental rights Pound 20 to lord Hardwicke, = Lord=20 Chancellor, with a letter referring to a proposed chancery proceeding. = The Lord=20 Chancellor ordered Martin to show cause why he should not be committed = for=20 contempt. He sought pardon and the Lord Chancellor in consideration of = this, his=20 public office, the payment of costs, and his willingness to the = suggestion that=20 the bank note be sent to the warden of the Fleet Street prison for = debtors for=20 their relief, did not take any action.[2]

In = 1631, when a=20 prisoner threw a brickbat at the Judge and narrowly missed him, the = prisoner=E2=80=99s=20 right hand was ordered to be cut off and hung on the gallows. In 1938, = when the=20 disgruntled litigant threw tomatoes at the Court of Appeal, consisting = of=20 Clauson and Goddard JJ.[3] He was immediately committed to prison, but = released=20 after a few days of incarceration, because, he did not score a direct = hit and=20 secondly Christmas was soon approaching. There are several instances of = contempt=20 in the face of the Court in English Tradition and they would not end = even if we=20 write a book on it. The development of contempt law in England did = contribute=20 great principles to the law of contempt, which are presently followed by = several=20 common law jurisdictions.

The = Indian=20 Courts as guided by Common Law principles ought to have followed similar = principles as laid down by the common law courts. The law of contempt is = well=20 developed under the English precedent system. With regard to other laws = the=20 Indian Courts have blindly followed them but the law of contempt has = been=20 exercised in an arbitrary and uncontrolled manner, as there was no limit = to the=20 period of imprisonment that may be inflicted, or the fine that may be = imposed.=20 Article 129 of the Constitution provides that the Supreme Court shall be = a court=20 of record with all the powers of such a court; including the power to = punish for=20 contempt of itself. Similarly, Article 215 provides that every High = Court shall=20 be a Court of Record with all the powers of such a Court including the = power to=20 punish for contempt of itself. Under Article 129 the Supreme Court has = power to=20 deal with contempt committed vis-=C3=A0-vis the High Courts.[4] Under = Entry 77 of=20 List I of the Seventh Schedule to the Constitution, Parliament has the = power to=20 make laws relating to the jurisdictions and powers of the Supreme Court, = including contempt of such court. Under Entry 14 List III, Parliament = and a=20 State Legislature have power to make laws relating to contempt of court, = but not=20 contempt of the Supreme Court. Sarthi in his book outline three basic = principles=20 of contempt jurisdiction:

The power to punish for contempt of court is under Articles 129 = and 215 of=20 the Constitution and not solely under the Contempt of Courts Act. The = real=20 jurisdiction to try contempt is conferred upon the courts by the = Constitution,=20 the basic document of all the laws.
But there should be wise economy in the use of this power, as in = the case=20 of any other power. Judges should never use this jurisdiction as a = means to=20 uphold their dignity, which must rest on better and stronger = foundations. It=20 should never be used to suppress those who speak against them, = because, good=20 judges do not fear criticism nor do they resent it. The freedom of = speech is a=20 very important right and it is only when it is abused to the extent of = interfering with the administration of justice that the contempt = jurisdiction=20 should be invoked.
The dichotomy between the personal protection of a libeled Judge = and=20 prevention of obstruction of public Justice should be clearly kept in = mind. It=20 is only when the court considers the attack on the Judge or Judges = scurrilous,=20 offensive, intimidating or malicious beyond condonable limits, that = the strong=20 arm of the law must strike a blow on him who challenges the supremacy = of the=20 rule of law by fouling its source and stream.

The = issue in=20 question has been if the statement made by the contemnor is the truth, = then can=20 it still be considered contempt. It is submitted that in all cases the = so-called=20 contemnor should be allowed to prove the truth of his statement. If he = is able=20 to show some prima facie justification, the Judge should be left to his = personal=20 remedy of invoking the criminal law of defamation. But if the contemnor = fails to=20 show any justification, he must be severely punished.

In = light of=20 these powers and principles laid down under our Constitution and common = law, the=20 authors attempt to analyse the law on contempt of court in India. The = position=20 of this principle seems to be arbitrary as far as the recent debates in = media=20 portrayed it to be. This is an important tool in the hands of the court = and=20 sometimes they need to be used as a sword and sometimes as a shield to = protect=20 itself.

RESEARCH=20 METHODOLOGY

Aim

The = aim of this=20 paper is to find out the concept of contempt of court. This paper seeks = to=20 identify the development of contempt under different jurisdictions

Scope

The = project=20 limits itself in understanding the concept of contempt of court. This = paper=20 traces the historical jurisprudence of the concept and the latest = developments=20 and the contempt as understood under both UK systems and US.

Research=20 Questions

What is contempt of court?
Why is there a necessity of this concept?
What is contempt understood in other jurisdictions?
Is the Contempt of Courts Act, 1971 a comprehensive = legislation?
What is the response of Indian Judiciary to this concept?
What ought to be contempt of court?

Methodology

The = approach has=20 been primarily descriptive and analytical.

Hypothesis

The = law of=20 contempt, which developed under the common law system, has been clearly = defined=20 by the English courts. Even though the Indian courts have deliberated a = number=20 of times on contempt law, they have given different interpretations and = still=20 the law of contempt is ambiguous under the Indian system.

Mode of=20 citation

A = uniform mode=20 of citation has been adopted throughout the project. It is as = follows:

Name = of author,=20 Title of book, Place of Publication, Name of the Publishers, Year = of=20 Publication, page number.

Name = of the=20 Author, =E2=80=9CName of the Article=E2=80=9D, Name of the = Journal, Volume, Year, Page=20 Number.

Sources

Both = primary and=20 secondary sources are used for the project.

Chapter-I

HISTORY AND=20 BACKGROUND TO THE CONTEMPT OF COURTS ACT

=E2=80=9COur Judges are=20 so honest as other men,

and = not more so.=20 They have with others

The = same=20 passions for party, far power

And = privilege of=20 their corps=E2=80=9D[5]

It = is a great=20 question to every judicial system as to what =E2=80=9C contempt of = court=E2=80=9D is. James=20 Francis Oswald defines contempt of court as =E2=80=9C to speak generally = contempt of=20 court may be said to be constituted of the law into disrespect or = disregard, or=20 to interfere with or prejudice parties litigant or their witness during = the=20 litigation=E2=80=9D.[6] Lord Hadwick in 1742[7] made a three-fold = classification of=20 contempt:

Scandalizing the court.
Abusing parties who are concerned in the causes, in the presence = of=20 court.
Prejudicing the public against persons before the cause is = heard.

The = law of=20 contempt is as old as the concept of justice and judicial system. From = the times=20 of Romans, this concept was used by the judicial officers of the state = to=20 preserve the dignity of the justice system as a whole. But during those = days=20 these concepts were used liberally by the sovereign. Oswald in his book = provides=20 an illustration. T. of F went armed in the palace, which was shown to = the=20 council of the King, by which he was taken and disarmed before Chief = Justice=20 Shard, and committed to the prison of the Marshalsea and could not be = bailed=20 till the king sent his will.[8] With the change in time, the concepts of = contempt also evolved. As the art of governance began to grow, the King = yielded=20 his powers to the three organs[9] of the government, the Executive, the=20 Parliament/ Legislature and the Judiciary. The judges were deemed to = have acted=20 in the name of the king. It was Kings justice and as such demanded all = respect=20 and obedience. Any disrespect to the seat of justice was affront to the = dignity=20 and majesty of law. It is apt to quote what Justice Wilmot states in = Rex=20 v. Wilmot:[10] =E2=80=9C And whenever men=E2=80=99s allegiance to = the law is so=20 fundamentally shaken, it is the most fatal and most dangerous = obstruction of=20 justice and in my opinion calls for rapid and immediate action than any = other=20 obstruction whatsoever not for the sake of the judges as private = individuals but=20 as they are the channels by which the Kings justice is conveyed to = people.=E2=80=9D

Thus = the=20 provision of contempt of court was first put forward and given a firm = footing by=20 the English judges. Later the process of contempt of court was = introduced into=20 India by the British following the establishment of the courts of record = in the=20 19^th Century. This was put on a firm basis in India by = Contempt of=20 Courts Act, 1926. The need for contempt of Courts Act, 1926 was felt on = account=20 of the difference of opinion between the madras and Bombay High Courts = on the=20 one hand and Calcutta High Court on the other regarding the protection = of=20 subordinate courts.[11] The attempt at a comprehensive legislation = relating to=20 contempt of courts in India was the contempt of Courts Act, 1926. The = Act did=20 not contain any provision with regard to contempt of courts subordinate = to=20 courts other than High Courts, that is, the courts subordinate to Chief = courts=20 and judicial commissioners. The Act also did not deal with the extra = territorial=20 jurisdiction of High courts in matters of contempt.

The = Act of 1926=20 was a short Act containing only three sections. The preamble mentions = that it=20 was an act to define and limit the powers of certain courts in punishing = for=20 contempt of courts and since doubts arose as to the powers of the High = Court of=20 Judicature to punish for contempt, it was considered expedient to = resolve these=20 doubts and limits the powers of the High Court in punishing for contempt = of=20 courts. Section 3 of the Act laid down that a contemnor may be punished = for=20 simple imprisonment for a term which may extend to 6 months or fine = which may=20 extend to 2000 Rupees or with both.[12] The Contempt of Courts Act, 1926 = was not=20 found adequate and as such the Contempt of Courts Act, 1952 was enacted. = From=20 the statement of objects and reasons which led to the enactments of the = contempt=20 of Courts Act, 1952, it is obvious that this law was made as there was = no=20 specific provision of law which enabled a High Court to exercise this = power in=20 respect of Contempt Committed beyond its territorial = jurisdiction.[13]

The = provisions=20 for punishment contained in the Contempt of Courts Act, 1926 and the Act = of 1952=20 though valid and constitutional fell short of the expectations of the = people and=20 interfered with their fundamental rights of freedom of speech and = expression. It=20 was felt that the Act of 1952 did not contain sufficient safeguards for = the=20 freedom of press particularly. Thus a committee was set up under the = then=20 Additional Solicitor General of India, Sri H. N. Sanyal. The Sanyal = Committee=20 submitted a very detailed and comprehensive report suggesting drastic = changes in=20 the contempt law. The draft bill was referred to a select committee and = the Bill=20 was finally introduced In the Rajya Sabha on 19^th February = 1968 and=20 the Contempt of Courts Act, 1952 was replaced by the 1971 Act.

It = is generally=20 felt that the existing law relating to contempt of courts is somewhat = uncertain,=20 undefined and unsatisfactory. The jurisdiction to punish for contempt = touches=20 upon two important fundamental rights of citizen, namely, the right to = personal=20 liberty and the right to freedom of expression. It was therefore, = considered=20 advisable to have the entire law on the subject scrutinized by a special = committee. The Sanyal Committee was set up to look into this aspect, = which made=20 recommendations and most of it were accepted by the Government. Contempt = proceedings do not partake the character of a traditional lis. In the = legalistic=20 sense a contempt proceeding is not a dispute between two parties but is=20 primarily between the court and the person who alleged to have committed = the=20 contempt of court.[14]

The = individual=20 who brings to the notice of the court that contempt has been committed = is not a=20 prosecutor but merely an assistant of the court or friend of the court. = In=20 Supreme Court Bar Association v. Union of = India[15]=20 a Constitution Bench described the special jurisdiction to punish for = contempt=20 as an unusual type combining the Jury, the Judge and the Hangman and = explained=20 this apparent anomaly on the ground that the Court was not adjudication = upon any=20 claim between litigating parties. The power to commit for contempt is a = punitive=20 power. This is to honor the dignity and integrity of the court and the = orders=20 passed by them.

DEFINING=20 CONTEMPT OF COURT

Several jurists=20 and judges have defined contempt of court but there is no one single = standard=20 definition of the phrase contempt of court. Pointing out the = difficulties in=20 defining contempt the Sanyal Committee observed:

=E2=80=9CIn the law of=20 contempt, difficulty and vagueness start at the definition stage itself. = Contempt in its root sense signifies disrespect to that which is = entitled to=20 respect or regard and the expression contempt of court has been a = recognized=20 phrase in English law from the 12^th century. If = administration of=20 justice has to be effective, respect for its administration has to be = fostered=20 and maintained and it is out of rules framed by courts in this behalf = that the=20 law of contempt has grown. From rudimentary rules devised for the = limited=20 purpose of securing obedience to the orders of courts, there evolved in = the=20 course of time elaborate and far reaching doctrines and extraordinary=20 procedures. Right till the present century, these doctrines and = procedures were=20 never subjected to legislative scrutiny with the result that the law of = contempt=20 had, as it were, a wild growth. Each new precedent was not declaratory = but=20 creative of the law. Each new type of attack on the administration of = justice=20 received a corresponding elaboration or extension of the contempt law. = As=20 Craries has said the ingenuity of the Judges and some of those who are = concerned=20 to defeat or defy justice has rendered contempt almost protean in this=20 character. And even now, it may well be said the categories of contempt = are not=20 closed. The result is that there are contempt, contempt=E2=80=99s = ranging from mere=20 disobedience to orders of the court and involving only a wrong of a = private=20 nature as between the parties to a suit at one end and contempt = involving=20 physical violence or large scale blackmail or mudslinging by means of=20 publication on the judge at the other end. In view of the haphazard = development=20 inherent in the process of development of law by judicial precedent, it = is not=20 possible to attempt neat and clear cut classifications of various = branches of=20 the law of contempt and, in view of the possibility of new types of = contempt=20 arising in future, it is not possible to demarcate the area of operation = of the=20 law of contempt arising in future, it is not possible to demarcate the = area of=20 operation of the law of contempt. It is for these reasons that judges = and=20 jurists have not succeeded in formulating a comprehensive and complete=20 definition of the concept of contempt of courts. The Shawcross Committee = observed: Not the least of the difficulties in this field (definition) = is that=20 contempt, being growth of the common law, has no authoritative = definition or=20 limitation=E2=80=A6It can be defined in the most general terms. In the = words of one of=20 our own judges, =E2=80=9CIt is indeed difficult and almost impossible to = frame a=20 comprehensive and complete definition of contempt of court. The law of = contempt=20 covers the whole field of litigation itself. The real end of a judicial=20 proceeding, civil or criminal, is to ascertain the true facts and = dispense=20 justice=E2=80=A6Anything that tends to curtail or impair the freedom of = the limbs of the=20 judicial proceeding must sof necessity result in hampering the due=20 administration of law and in interfering with the course of = justice.=E2=80=9D[16]

The = reasons=20 given by the Sanyal committee does not require any clarification or = explanation=20 to the problem of defining the concept of contempt of court. It is the=20 discretion that is left to the judge to decide whether the contemnor has = passed=20 the tests laid down by prior decision or has in any manner affected the = dignity=20 or integrity of the court. If we provide with a concrete definition that = would=20 limit the scope of contempt, hence it should be left to the courts to = decide=20 whether any contempt has been done. But the fear that crops up with this = vagueness is the danger of misusing this power by the court and the = judges. The=20 discretion of defining contempt is given to the judges with an = assumption that=20 they are honest and would always be fair and just.

Chapter-II

COMPARATIVE=20 STUDY

Contempt=20 Under Common Law- Position In United Kingdom

Lord = Justice=20 Otton gave an overview of the concept of contempt of court. In England, = contempt=20 has inhered in the judicial power to run the courts and to prevent = interference=20 with justice =E2=80=9Csince time immemorial=E2=80=9D. Contempt protects = the dignity of the=20 Court, not the individual judge.

Contempt can=20 be criminal or civil. Criminal contempt involves an intentional = interference=20 with the administration of justice, while civil contempt is disobedience = to=20 orders or judgments of a court, with only knowledge of the order or = judgment,=20 not intent to interfere, being needed. Civil contempt requires only a=20 preponderance of the evidence while criminal contempt requires proof = beyond=20 reasonable doubt. Another significant distinction arises from whether = the=20 contempt occurs =E2=80=9Cin the fact of the court=E2=80=9D or outside = it; contempt beyond the=20 courtroom is much harder to prove.

English=20 contemnors are not entitled to a trial by jury. Parliament enacted the = Contempt=20 of Court Act of 1981, which for the first time imposed a two-year = maximum jail=20 sentence for civil and criminal contempt as well as maximum fines. The = court can=20 use all its contempt powers but still suspend sentence if the contemnor = promises=20 not to repeat the contumacious act and apologizes.

Lord = Justice=20 Otton described a fine of =C2=A340,000 against The Evening Standard = newspaper, which=20 had been sustained by the Court of Appeal a week earlier for publishing = the=20 criminal records of defendants on trial for explosives offenses with IRA = links.=20 England imposes limits with respect to reports of proceedings and = publication of=20 material likely to interfere with the administration of justice. The = result in=20 The Evening Standard case was very prejudicial, including a halt to the = criminal=20 trial. He also noted a reluctance to use the contempt power for fear of = creating=20 a cause that spurs public sympathy as, for example, in various English = coal=20 strike orders.

The = main aim of=20 contempt of court rules is to prevent potential jurors from being = prejudiced for=20 or against a defendant because of what has been published in the media = before or=20 during a trial.

A jury is supposed to reach their decision only on the evidence = produced in=20 court. The jury must also presume that the accused is not only innocent = but also=20 that he has no previous convictions.

Contempt of Court is governed by two sets of rules.

1. The Contempt of Court Act 1981 applies to individual=20 cases.
2. Common Law contempt can apply to individual cases and = to the=20 administration of the law generally.

One of the=20 tests to determine contempt is whether the story creates a substantial = risk that=20 the course of justice will be seriously impeded or prejudiced.

The important=20 words are =E2=80=98substantial=E2=80=99 and =E2=80=98serious=E2=80=99. = These are the tests by which the court=20 decides whether the story would create a substantial risk of serious = prejudice=20 the mind of anyone who read it and who was then was selected to serve on = the=20 jury hearing the case.

Time: The=20 longer the time between the story being published and the jury retiring = to reach=20 its verdict the less chance there is of the story being in contempt. = News desks=20 should know the average time it takes in their Crown Court area for a = case to go=20 from arrest to trial. If the story is published, say, on the night = before the=20 trial opens then the risk of contempt is higher than if it were = published months=20 previously.

Proximity: The court will = weigh up the=20 chances of a juror having actually read the offending story. If the = story is=20 published in the Northern Echo in Darlington and the trial is held in = Cornwall=20 then there is plainly little chance of a substantial risk of serious = prejudice=20 because a potential juror could never be expected to have read it.

Initial=20 Impact: Presuming, though, that the story is likely to have been = read by a=20 potential juror then the court will try to assess the impact the story = would=20 have had on him.
It does so by determining how novel was the way it = was=20 presented. A screaming Page One lead in the local paper would plainly = have more=20 impact than a down page three-par story on page 18 of a national. Then = the court=20 would try to evaluate the:

Residual=20 Impact: The theory is that if a juror listens in court to all the = evidence,=20 and hears all the witnesses cross-examined, and then is guided by the = trial=20 judge on what is, and is not, important then any initial prejudicial = impact the=20 story might have had will fade away as the juror concentrates on the = actual=20 evidence.

The = trend is=20 towards liberalization when it comes to applying the Contempt of Court = Act 1981.=20 Judges seem to have accepted that most pre-trial coverage, while maybe=20 prejudicial, falls short of creating a substantial risk of being = seriously=20 prejudicial. National tabloids have used lurid accounts of Geoff Knights = beating=20 up a taxi driver and have been cleared of contempt.
But each case is=20 different. By using the above tests an editor can at least make his own=20 assessment of whether the particular story creates a substantial risk of = serious=20 prejudice.

There is a particular danger in revealing that = the=20 defendant has a previous conviction. A jury (which must presume that a = defendant=20 has an unblemished past) would find that hard to forget.

The Contempt of Court Act 1981 ceases to be active when: The arrested = person=20 is released without being charged =E2=80=93 except when released on = police bail. No=20 arrest is made within 12 months of the issue of the warrant the case is=20 discontinued the defendant is acquitted or sentenced the defendant is = found=20 unfit to be tried, or unfit to plead or the court orders the charge to = lie on=20 the file.

Newspapers are=20 safe when they use police appeals for help in tracing a wanted man for = whom a=20 warrant has been issued even though the =E2=80=98Danger Man=E2=80=99 or = =E2=80=98 Find this Monster=E2=80=99=20 type of headline would plainly create a substantial risk of serious = prejudice=20 especially as most such stories reveal his past convictions. This is = classic=20 contempt of court territory but the Attorney General has promised not to = prosecute because the public safety outweighs the fugitives right to a = fair=20 trial. As soon as =E2=80=98Danger Man=E2=80=99 is arrested, however, the = immunity ceases.

Section 3=20 of the Contempt of Court Act gives an editor a defence if, at the time = of=20 publication, having taken all reasonable care, he did not know and had = no reason=20 to suspect that proceedings in the particular case were active.

Section 5=20 of the Contempt of Court Act gives protection to stories, which are a = discussion=20 of public affairs as long as the risk of prejudice to a particular case = is=20 merely incidental to the wider discussion.

Civil proceedings: The Act states that civil proceedings = become active=20 as far as contempt risk is involved when the case is set down for trial = (put on=20 the waiting list) or when an actual date is fixed for the case to be = heard.

Pictures: A picture can = be in=20 contempt in the same way as a story if , for instance, the case hinged = on=20 witnesses identifying the man in court or at an identity parade. And if = you used=20 a picture of the defendant handcuffed and guarded by armed police it = might also=20 prejudice a juror.

The risk of contempt under the 1981 Act = only=20 starts when the Initial Step is taken =E2=80=93 a person is arrested, = charged, or has a=20 warrant or summons issued against him. Common Law contempt covers the = time=20 before that initial step is taken but when a trial could plainly be seen = to be=20 imminent or pending. If a known criminal, for instance, takes a group of = people=20 hostage and a newspaper identifies him and his previous convictions = before he is=20 arrested or charged or a warrant is issued then there is plainly going = to be a=20 risk of contempt to proceedings which will almost certainly take = place.

If = the newspaper=20 is prosecuted under Common Law contempt the prosecution has to prove = that the=20 editor intended to create prejudice. The court can infer intent by = taking=20 account of all of the circumstances leading to publication. Common Law = contempt=20 can also be used against articles prejudicial to the course of justice=20 generally, as distinct from the particular case governed by the = 81=20 Act.

Position=20 Under the American Legal System

Contempt of=20 court is an act of disobedience or disrespect towards the judicial = branch of the=20 government, or an interference with its orderly process. It is an = offense=20 against a court of justice or a person to whom the judicial functions of = the=20 sovereignty have been delegated.

The = American=20 Jurisprudence defines contempt of court in Vol 17. It can be classified = as=20 follows:

Despising the authority of the Judge or dignity of the court;
Any conduct which tends to bring the authority and administration = of law=20 into disrespect or disregard;
Any conduct which interferes or prejudices the parties to a = litigation or=20 their witnesses during a litigation;
Any conduct which otherwise tens to impede, embarrass, or obstruct = a court=20 or a judge in the discharge of its or his duties;
A statute may define contempt but it can never be = exhaustive.

In = the United=20 States of America freedom of speech was originally protected by the = doctrine=20 clear and present danger propounded in Schenk v. United=20 States[17] In that case the Supreme Court of = USA passed=20 observations upon the military censorship provisions of the Espionage = Act of=20 1917, which imposed certain limitations upon press and speech. Rejecting = the=20 contention Justice Holmes wrote an opinion unanimously concurred by the = court,=20 upholding the Constitutionality of the Espionage Act. The right of = speech he=20 said =E2=80=9C had never been an absolute one at any time, in peace or = in war. Free=20 speech would not protect a man in falsely shouting fire in a theatre, = and=20 causing a panic. When a nation is at war he added many things that might = be said=20 in time of peace are such a hindrance to its effort that their utterance = will=20 not be endured so long as men fight and no court could regard them as = protected=20 by any Constitutional Right.=E2=80=9D

According to=20 this view freedom of speech could be abridged only if the Government = could show=20 that there was a clear and present danger to the state arising from the = abuses=20 of that freedom. This doctrine, however, was jettisoned in Dennis = v.=20 United States.[18] In that case the validity of the = Alien=20 Registration Act, 1940 was in question. Vinson C.J. observed as follows = =E2=80=9C In=20 this case we are squarely presented with the application of the clear = and=20 present danger test and must decide what the phrase imports.=E2=80=9D = The test of clear=20 and present danger was discarded and the test of clear and = probable=20 danger has been substituted. The time factor has been thus eliminated = from the=20 test. Judged by the new test it was held that the impugned statute was=20 constitutional, though it penalized even conspiring to advocate the = future=20 overthrow of the state and no imminent danger is to be apprehended = thereby. The=20 arm of the law has been lengthened thereby. No doubt Douglas J., in his=20 dissenting opinion bewails that free speech, the glory of our system of=20 government, had been eclipsed by the majority ruling in Dennis = case.

In = Yates=20 v. United States[19] while appearing to adhere = to the=20 modification of the clear and present danger test, the Supreme Court has = in a=20 measure really overruled the Dennis Case. In Yates case the = Supreme Court=20 set aside the conviction of fourteen communists who had been convicted = under=20 Smith Act. It was held that the advocacy of the overthrow of the = Government as=20 an abstract principle did not constitute an offence under the Smith Act. = It is=20 only when action to that end, though it may not be immediate action, has = been=20 advocated, that the offence would be committed. The decision in Yates = case restored to some extent the protection to freedom of speech = which had=20 been withdrawn in Dennis case. But his test is not applicable in = India as=20 this principle was rejected by Justice Madhokar in 1961.[20]

Under the US law=20 of contempt, the courts have recognized both direct and indirect = contempt.=20 Contempt is indirect when it occurs out of the presence of the court, = thereby=20 requiring the court to rely on the testimony of third parties for proof = of the=20 offense. It is direct when it occurs under the court=E2=80=99s own eye = and within its=20 own hearing. See Matter of Heathcock, 696 F.2d 1362, 1365 = (11th=20 Cir. 1983); United States v. Peterson, 456 F.2d 1135, 1139 (10th = Cir.=20 1972). The requirement that direct contempt be committed in the presence = of the=20 court does not limit direct contempts to those which take place in the=20 courtroom, but some degree of formality usually found in the courtroom = setting=20 must accompany an exercise of the judicial function for the proceedings = to be in=20 the actual presence of the court. Matter of Jaffree, 741 F.2d 133 = (7th=20 Cir. 1984). Direct contempt for conduct in the court=E2=80=99s presence = may be punished=20 summarily. McGuire v. Sigma Coatings, Inc., 48 F.3d 902 (5th Cir. = 1995).

The = law of=20 contempt cannot have a broad general principle applicable to the concept = of=20 contempt in totality. The courts have made a distinction between civil = and=20 criminal contempt. Because different substantive and procedural rules = apply to=20 civil and criminal contempt, distinctions between the two forms of = contempt are=20 important. =E2=80=9CCriminal contempt is a crime in the ordinary = sense,=E2=80=9D Bloom v.=20 Illinois,[21], and =E2=80=9Ccriminal penalties may not be imposed on = someone who has=20 not been afforded the protections that the Constitution requires of such = criminal proceedings.=E2=80=9D Hicks v. Feiock.[22] These = constitutional=20 protections include the right (1) not to be subject to double jeopardy,=20 see United States v. Dixon[23]; In re = Bradley,[24];=20 (2) to receive notice of the charges, (3) to receive assistance of = counsel; (4)=20 to receive summary process; (5) to present a defense, Cooke v. United = States[25] (6) not to self-incriminate oneself, and (7) to = proof=20 beyond a reasonable doubt, Gompers v. Bucks Stove & Range=20 Co.[26]. For serious criminal contempt involving imprisonment = of more=20 than six months, these protections include the right to a jury = trial.

By = contrast,=20 civil contempt sanctions=E2=80=93which are designed to compel future = compliance with a=20 court order=E2=80=93are coercive and avoidable through obedience, and = =E2=80=9Cthus may be=20 imposed in an ordinary civil proceeding upon notice and an opportunity = to be=20 heard. Neither a jury trial nor proof beyond a reasonable doubt is = required.=E2=80=9D=20 International Union, UMWA v. Bagwell[27].

Chapter-III

CONTEMPT OF=20 COURT AND THE INDIAN JUDICIARY

The = Media and=20 the Judiciary share a need that neither can live without: you must have=20 journalistic independence and judges must have judicial independence. He = further=20 elaborated =E2=80=9C Hitler=E2=80=99s Germany is still fresh in memory, = so we can recall two of=20 his major steps to consolidate his power when he became the Chancellor. = One was=20 to destroy the free press; the other was to control the courts and = eliminate an=20 independent judiciary. Knew and we know that no dictation can survive = with an=20 independent press and independent judiciary.[28]

The = power of the=20 Supreme Court of India in dealing with the day-to-day affairs of the = citizens=20 has increased many a fold during the past few decades. Looking at the = pages of=20 Law Reports prior to lifting of emergency will reveal the irrelevance of = the=20 courts to a large part of the Indian population. It is after the lifting = of=20 emergency from the 1980=E2=80=99s that the Supreme Court fully realized = its potential.=20 The failure of the Legislature and the Bureaucracy to live up to the=20 expectations in the eyes of the people put the Judiciary in a higher = pedestal.=20 It was seen as the last resort for justice to the otherwise = =E2=80=9Cjustice starved=E2=80=9D=20 citizens of India. The Supreme Court of India as well as other courts = arose to=20 the occasion in helping the poor and down trodden section of the = society.

But = it was=20 precisely this magnanimous view taken up by the Supreme Court to look = into=20 almost all the aspects of the other two wings that gave rise to = criticisms. The=20 criticisms were from the public, from the press and the media. The view = of the=20 Supreme Court towards these criticisms were not always static. It kept = on=20 changing from the stating that the judiciary=E2=80=99s shoulders are = broad and going to=20 the other extreme by punishing an individual who had made a contempt of = court.=20 It is precisely those exercise of the contempt powers of the Supreme = Court and=20 the Indian Judiciary in general over the past few decades, that will be = dealt=20 with in these chapters. There is no better way to look at these exercise = of=20 power but to examine the judgments passed by the Supreme Court and the = High=20 Courts regarding this matter.

One = of the first=20 and interesting cases regarding law of contempt arose in 1954.[29] In = this case=20 the members of the Executive Committee of the District Bar Association = at=20 Muzaffarnagar within the state of U.P made certain allegations against a = judicial officer Mr. Kanhaya Lal Mehra and a Revenue Officer Mr. Latta = Prasad. A=20 resolution was passed in the meeting of the Bar Associations that = complaints=20 should be filed to the superior authorities against the misconduct of = these=20 judges. The allegations were in all=E2=80=9D

The judicial officer does not record evidence in cases tried = before him=20 properly, that in all the Criminal matters that are transferred to the = court,=20 where the accused are already in bail, he does not give them time to = furnish=20 fresh sureties with the result he is sent to jail. He is not = accommodating to=20 lawyer as whole
The revenue officer follows the highly illegal procedure of = leaving 2=20 cases at a time, wherein he records the evidence of one case and ask = the court=20 clerk to do so with the other. Also he is highly temperamental and = constantly=20 threatens the lawyers with contempt of court.
It is now our considered opinion that the two officers are = thoroughly=20 incompetent in law, do not inspire confidence in their judicial work. = They=20 state wrong facts when passing judgments and are overbearing and = discourteous=20 to the litigant public and the lawyers alike.

The = High Court=20 found the lawyers to be prima facie in contempt of court and fined them = Rs.=20 300/-. The Supreme Court considered all the relevant facts including the = fact=20 that the meeting was held in closed quarters. Only members were present, = the=20 resolutions were typed by the president of the Bar itself and even the = minutes=20 book didn=E2=80=99t have the record. After considering all the relevant = facts and=20 circumstances the Supreme Court speaking through Justice Mukherjee = held:

=E2=80=9CWe are unable=20 to agree with the learned counsel for the respondents that whether or = not the=20 representation made by the appellants in the present case is calculated = to=20 produce these results. It is to be kept in mind, when attacks or = comments are=20 made on a judge or judges, disparaging in character and derogatory to = their=20 dignity care should be taken to distinguish between what is libel on the = judge=20 and what amounts to contempt of court. The fact that a statement is = defamatory=20 so far as the judge is concerned does not really make it a = contempt.=E2=80=9D

More = over the=20 judge said that the object of representations made by the appellant in = the=20 present case were not for the purpose of exposing the public alleged = short=20 comings of the officers concerned, the whole object was to have the = grievance of=20 the lawyers and the litigating public really felt. The Supreme Court = reversed=20 the decision and allowed the appeal.

One = of the=20 excellent examples for the so-called =E2=80=9Chyper sensitivity=E2=80=9D = of the Supreme Court is=20 the case of E.M.S. Namboodri v. T.N. Nambiar.[30] The case = arose=20 out of a press conference that the then Chief Minister E.M.S = Namboodripad=20 held.[31] During the press conference he made certain remarks:

=E2=80=9C Marx and Engel=20 considered the judiciary as an instrument of oppression=E2=80=A6Judges = are guided and=20 dominated by class hatred, class interests and class prejudices and = where the=20 evidence is balanced between a well dressed, pot bellied rich man and a = poor,=20 ill-dressed and illiterate person, the judge instinctively favors the=20 former=E2=80=A6..Judiciary is part of the class rule of the ruling = class. And there are=20 limits to the sanctity of the judiciary. The judiciary is weighed = against=20 workers, peasants and other sections of the working class and the law = and the=20 system of judiciary essentially serve the exploiting = classes.=E2=80=9D

Namboodripad was=20 convicted by the Kerala High Court for contempt of court and sentenced = to a fine=20 of Rs 1000/-. This was a majority decision made by Justice Raman Nair, = Justice=20 Krishnamoorthy Iyer and with Justice Mathew dissenting. Namboodripad = appealed to=20 the Supreme Court pleading:

His observations did no more than give expressions to the Marxist=20 philosophy and what was contained in the programme of his party.
They contained a fair criticism of the judicial = administration.
They did not contain criticism of any particular judge or his = judgment or=20 conduct.
The law of contempt ought to be interpreted so as to cause no = encroachment=20 upon the freedom of speech guaranteed by Article 19(1)(a) of the = Constitution=20 of India.

The = judges=20 Hidayatullah CJ, G. K. Mitter and A. N. Ray after looking deeply into = the=20 teachings of Lenin and Marx came to the conclusion that no where in = their=20 writings have they shown any direct attack on the judiciary. The court = arrived=20 at the conclusion that in all their writings there is no mention of = judges,=20 which the appellant had made. The court further states that =E2=80=9C = either he does not=20 know or has deliberately distorted the writings of Marx. The Supreme = Court hence=20 convicted Namboodripad for contempt of court but reduced the fine from = Rs 1000/-=20 to Rs. 50/-.

Another case=20 which relates to Freedom of Press and contempt of court, and also which = gave=20 rise to vehement criticism from both inside and outside legal circles is = P. N=20 Duda v. P. Shivshanker.[32] The case arose out of a complaint = filed=20 by P.N Duda against P. Shivshanker who was the Union law minister. = According to=20 the petitioner the Union Law Minister had committed contempt of court = during=20 speech made by P Shivshanker on the occasion of the silver jubilee of = the Bar=20 Council of Andhra Pradesh. Even though the speech was addressed to = Judges and=20 lawyers, a large number of press personnel were present. P. N. Duda = complained=20 about 5 passages in his speech. The two main point were:

The Supreme Court composed of the element from the elite class had = their=20 sympathy for the haves i.e. the Zamindars. As a result they = interpreted the=20 word compensation in Article 31 contrary to the spirit and amendment = of the=20 Constitution and rules the compensation must represent the price which = a=20 willing seller is prepared to buy from a buyer. The entire programme = of=20 Zamindari abolition suffered a set back. The Constitution as amended = by the=20 1^st 14^th and 17^th Amendments to = remove this=20 oligarchic approach of the Supreme Court with little or no help. = Ultimately=20 this rigid reactionary and traditional outlook of property, led to the = abolition of property as a fundamental right.
Anti social elements, i.e. FERA violators, bride burners and whole = horde=20 of reactionaries have found their haven in the Supreme = Court.

The = case was=20 heard by a bench comprising of Justice Sabyasachi Mukherjee and S = Ranganathan.=20 To the biggest surprise of everyone the Supreme Court took a liberal = view.=20 Speaking through Justice Mukherjee, the SC held that: =E2=80=9C there = was no imminent=20 danger of interference with the administration of justice, nor of = bringing a=20 administration into disrepute. In that view the minister was not guilty = of=20 contempt of the court. The speech of the Minister read in its proper=20 perspective, did not bring the administration of justice into disrepute = or=20 impair administration of justice, though in some portions of the speech = language=20 used could have been avoided by the minister having background of being = former=20 judge of the High Court. The minister perhaps could have achieved his = purpose by=20 making his language but his facts deadly. The petition was = dismissed.

The = Supreme=20 Court has not been the only court, which has issued contempt of court=20 proceedings. Many of the High Courts have also done the same. Recently = the Delhi=20 High came into the limelight following what has been called as the = =E2=80=9C Wah=20 India=E2=80=9D case[33]. The case arose out of the = publication by the=20 publishers of a magazine by the name of Wah India ! on their = website, the=20 results of a purported survey grading the judges of Delhi High Court. = Each of=20 the judges whose photos were also published were graded in a five column = table=20 rating the inter alia, on their personal integrity, depth in law and = quality of=20 judgments delivered. The publishers claimed that the grades were based = on a=20 survey where fifty of the senior members of the Delhi Bar were = consulted. The=20 publication was titled =E2=80=9C Judged out=E2=80=9D and it also claimed = that the survey is by=20 no means an attempt to cast any aspersion on the competence of the = judiciary,=20 but is a small and humble attempt to hold a mirror to it. It might make = some=20 Judges uncomfortable, but the truth sometimes does.

The = Delhi High=20 Court passed an order summarily directing the confiscation of the unsold = copies=20 of the issue of the news magazine barred its circulation and ordered the = media=20 not to publish any thing that would lower the authority, dignity and = prestige of=20 the members of the judiciary. The next day the court lifted the ban on = reporting=20 of the contempt proceedings and directed that the reporting must be fair = and=20 accurate.[34] But the court let the publishers off after the acceptance = of an=20 apology by the publisher Rahul Mishra, editor Madhu Trehan and three=20 journalists.

Another case=20 that came up before the Supreme Court recently was Re: S K=20 Sundaram.[35] The case arose out of a suo motu = action=20 in the Supreme Court. A Chennai based advocate had sent telegrams to the = then CJ=20 of India Dr. A.S Anand, demanding his resignation on the ground that the = latter=20 had exceeded the age of superannuation. Within three days of sending the = telegram, he filed a criminal complaint against the CJ under the IPC, = 1860=20 alleging cheating, criminal breach of trust and falsification of = records, that=20 Dr. Anand had usurped the office of Chief Justice of India and = =E2=80=98caused loss to=20 the exchequer to the tune of Rs. 3 Crores=E2=80=99. The petitioner who = had previously=20 filed a mandamus seeking the president of India to verify the age of Dr. = Anand,=20 alleged that he was spurred into action by an article that appeared in = The Hindu=20 on 3-11-2000, publishing a statement by Ram Jethmalani and an annexure = published=20 in the book =E2=80=9C Big Egos Small Men=E2=80=9D.

The = Supreme=20 Court in this case held that =E2=80=98well if he is determined to sign = that he would not=20 look at any one of those material as well as the final decision rendered = by the=20 president of India regarding the age of Dr. Anand, and then decided to=20 persistently jump into the foray with the tirade, putting himself into = the=20 outfit and chasuble of his proof insignia, it is only reminiscent of the = Spanish=20 heir Don Quiescent of La Mancha. On the part of this court, we may = observe that=20 if the contemnor had stopped with his telegram we would have persuaded = ourselves=20 to ignore its as a case of ranting gibberish. But when he followed it up = with=20 lodging of a criminal complaint before a criminal court in which the = Chief=20 Justice of India was arrayed as an accused having committed the offence = of=20 cheating, criminal breach of trust and falsification of records we = realized that=20 he seriously meant to malign and undermine the dignity and authority of = this=20 court.[36] Sundaram was sent to 6 months imprisonment.

The = most recent=20 as well as the most controversial one was Arundhati Roy, In=20 Re.[37] The facts of this case arose from a = former case=20 Narmada Bachao Andolan v. Union of = India.[38] While=20 the case was pending before the Supreme Court Mrs. Arundhati Roy wrote = an=20 article =E2=80=9C The Greater Common Good=E2=80=9D which was published = in outlook and Frontline=20 magazines. Two of the judges of the Supreme Court found that the = comments made=20 by her were, prima facie, a misrepresentation of the proceedings of the = Court.=20 The Court showed its discontent =E2=80=9C we are unhappy at the way = leaders of NBA and=20 Mrs. Arundhati Roy have attempted to undermine the dignity of the court. = We=20 expected better behaviour from them.[39] But the court let the matter = lie in the=20 larger interest of the issues pending before them. But on 30-12-2000 = Mrs.=20 Arundhati and Mrs. Medha Patkar led a huge protest rally in front of the = Supreme=20 Court and shouted abusive slogans at the court. They also attacked the=20 petitioners to judges R Parashar advocate and others. Hence they filed a = petition stating that Mrs. Arundhati Roy is guilty of contempt of = court.[40]=20 Moreover the respondent also stated in her affidavit; =E2=80=9C on = the grounds that=20 judges of the Supreme Court are too busy, the CJ of India refused to = allow a=20 sitting Judge to head the judicial enquiry into the Tehelka = Scandal=E2=80=A6

Yet = when it=20 comes to an absurd, despicable entirely unsubstantiated petition in = which all=20 the three respondents happen to be people, who have publicly- though in = markedly=20 different ways questioned the policies of the Government and severely = criticized=20 a recent judgment of the Supreme Court, the court displays a disturbing=20 willingness to issue notice. It indicates a disquieting inclination on = the part=20 of the court to silence criticism and muzzle dissent, to harass and = intimidate=20 those who disagree with it. By entertaining a petition based on an FIR = that even=20 a local police station does not see fit to act upon, the Supreme Court = is doing=20 its own reputation and credibility considerable harm.[41] The Bench = comprising=20 of Justice G. B. Patnaik and R. P. Sethi allowed her to retract her = averments.=20 But she stood her ground.

The = court held=20 that =E2=80=9CA fair criticism of the conduct of a judge the institution = of the=20 judiciary and its functioning may not amount to contempt if made in good = faith=20 and in public interest. To ascertain the good faith and the public = interest, the=20 courts have to see all the surrounding circumstances including the = person, his=20 knowledge in the field and the intended consequence. All citizens cannot = be=20 permitted to comment upon the conduct of the courts in the name of fair=20 criticism which if not checked would destroy the institution itself.

More = over the=20 Supreme Court stated these cannot come under the exception of P. N. = Duda=20 v. Shiv Shanker[42], the court held that =E2=80=9Cit may be = noticed that the=20 criticism of the judicial system was made by a person who himself had = been the=20 judge of the High Court and was the Minister at the relevant time. He = had made=20 studies about the system and expressed his opinions which, under the=20 circumstances was held to be not defamatory despite the fact that the = court=20 found than in some portion of the speech the language used could have = been=20 avoided by the Minister having the background of being a former = judge.=E2=80=9D[43] The=20 court here found that Mrs. Roy was devoid of any special knowledge of = law and=20 hence was fined Rs. 2000/-.

Chapter-IV

CIVIL AND=20 CRIMINAL CONTEMPT

The = concept of=20 contempt is a broad one, which has the capacity to encompass any act = done in=20 detriment of the court. Contempt may range from disobedience to orders = of the=20 court to throwing of tomatoes at the Judges. Broadly we can categorize = contempt=20 into two types: Civil Contempt and Criminal Contempt.

CIVIL=20 CONTEMPT

It = has been=20 defined under Section 2(b) of the Contempt of Courts Act, 1971.[44]The = essential=20 ingredient is =E2=80=98willful=E2=80=99 disobedience and not any and = every disobedience due to=20 various reasons such as delay due to unavoidable circumstances, or = inadvertence.=20 It has to be proved that the disobedience was =E2=80=98willful=E2=80=99. = It connotes a =E2=80=98clear=20 intention to flout=E2=80=99. A civil contempt involves = disobedience to a=20 Court=E2=80=99s order affecting the rights of other parties to that = order basically=20 denying the rightful fruits of the suit to the other party. But Mens = Rea=20 has been made an essential ingredient in the 1971 Act, which is a = departure from=20 the pre-existing law with the introduction of the word = =E2=80=98willful=E2=80=99. So Civil=20 contempt does not attract strict liability any more. It is sometimes = supposed=20 that the =E2=80=98will=E2=80=99 being a party to the disobedience is not = enough and that there=20 should further be an element of obstinacy, rebellion or defiance. In=20 Worthington v. Adlib Club Ltd.[45], the court held that = the word=20 =E2=80=98contumaciously=E2=80=99 as meaning was not = different from =E2=80=98willfully=E2=80=99. In=20 India also, the courts use the word =E2=80=98contumaciously=E2=80=99 in = describing contempt and=20 invariably use it disjunctively with =E2=80=98willful=E2=80=99 or = =E2=80=98deliberate=E2=80=99. In Deba Brata=20 Bandopadhyaya v. State of West Bengal. [46], = The=20 Supreme Court observed that =E2=80=9Cif orders of stay, bail, = injunction, received from=20 higher courts must be attended to promptly, and if there is a delay in=20 dispatching them or dealing with them the court may draw an inference of = indifference and even contumaciousness.=E2=80=9D In Md.Ikram = Hussain v. State=20 of U.P.[47], the court asked the appellant to produce = his=20 daughter in a matter for habeas corpus. He made false excuses and = did not=20 produce her. He was found guilty of contempt. In Alligarh=20 Municipality v. E.T. Mazdoor Union [48], = during=20 the pendency of the suit the trial court passed an order prohibiting the = appellant municipality from realizing any fees from the tongawallas for = the use=20 of a stand, which they did not follow and it was held as = =E2=80=98willful disobedience=E2=80=99=20 and amounted to contempt of court. In Union of India = v.=20 Oswal Wollen Mills[49],the court held that = =E2=80=9CWhen as=20 a result of an order of the High Court in a writ petition, an = application=20 for license was to be disposed of by the statutory authority, no = contempt can be=20 said to be committed merely because there is a failure to dispose of the = petition.=E2=80=9D Any order of the court should give sufficient time = for compliance=20 before contempt proceedings can be initiated. Regarding violation = of an=20 undertaking given to a court it was held in M v Home=20 Office[50], that if a party or his advocate = acts so as=20 to covey to the court the firm conviction that undertaking is being = given the=20 party would be bound and it will be no answer that he did not think that = he was=20 giving it or that he was misunderstood and he would be held for = contempt. But an=20 undertaking, which runs counter to the statutory provisions or law is an = unauthorized undertaking and cannot be the basis of contempt proceedings = for its=20 breach.[51]

In = Md.=20 Idris v. Rustam Jehangir[52], where there was a clear = breach=20 of the undertaking the court, held that it was entitled to give = directions for=20 closing the breach in addition to imposing punishment.

CRIMINAL=20 CONTEMPT

It = has been=20 defined under Section 2(c) of the Contempt of Courts Act, 1971.[53]It is = thus=20 seen that scandalizing or prejudicing a Judge or interfering with the=20 administration of justice is Contempt. Even tending to scandalize or = tending to=20 prejudice or tending to interfere or obstruct is enough to invoke action = in=20 criminal contempt. In Naraindass v. State of=20 UP,[54]the Supreme Court held that, it is necessary to = examine=20 whether any of the impugned statements do interfere or have a tendency = to=20 interfere with due course of the proceedings by creating prejudice = against=20 appellant or the writ petition. In N. Rajagopala Rao v. = Murtaza=20 Mujtabbi,[55]the AP high court held that the=20 publication of an article casting aspersions on the integrity of the = High Court=20 Judges while selecting and recommending candidates for appointment of = District=20 judges was held to be criminal contempt.

All = acts, which=20 bring the court into disrespect or disrepute or which offends its = dignity, or=20 challenge its authority, certainly amount to contempt. In Delhi = Judicial=20 Service Association v. State of Gujarat[56], = the=20 Supreme Court observed that =E2=80=9Cthe definition of criminal contempt = is wide enough=20 to include any act by a person which would tend to interfere with the=20 administration of justice or which would lower the authority of the = court. The=20 publics have a vital stake in effective and orderly administration of = justice.=20 The court has the duty of protecting the community in the due = administration of=20 justice and, so, it is entrusted with the power to commit for contempt = of court,=20 not to protect the dignity of the court against insult or injury, but, = to=20 protect and to vindicate the right of the public so that the = administration of=20 justice is not perverted, prejudiced, obstructed or interfered with. In=20 Pratap Singh v. Gurbaksh Singh,[57] the court held that = any kind=20 of threat or any action which may amount to a threat held out to a = person who=20 has approached the civil court for redressal of his grievance with a = view to=20 forgo the assistance of the civil court amounts to criminal contempt. A = threat=20 held out to a judge with a view to obtain favourable order would amount = to=20 criminal contempt as interference with the administration of justice in = State=20 of A. P. v. V. Prakash Rao.[58] The threat need = not be=20 a threat to the judge himself personally.

A = false or=20 misleading or a wrong statement deliberately and willfully made by the = party to=20 a proceeding to obtain a favourable order would prejudice or interfere = with the=20 due course of judicial proceeding was held to be criminal contempt in = Afzal=20 v. State of Haryana[59]

Distinction=20 between Civil and Criminal Contempt

Civil contempt=20 is basically wrong to the person who is entitled to the benefit of a = court order=20 while criminal contempt involves defiance of the court revealed in = conduct,=20 which amounts to obstruction or interference with the administration of = justice.=20 A helpful illustration is a case where the person restrained commits a = breach,=20 he is guilty of civil contempt but a third party aiding and abetting a = breach=20 commits criminal contempt because he interferes with the administration = of=20 justice. In A-G v. Times Newspapers Ltd.[60], the House of = Lords,=20 on the rationale behind the distinction held that =E2=80=9CA distinction = is sometimes=20 drawn between what is described as =E2=80=98civil contempt=E2=80=99, = that is to say contempt by=20 party to the proceeding in matter of procedure, and =E2=80=98criminal = contempt=E2=80=99. One=20 particular form of contempt by party to proceedings is that constituted = by an=20 intentional act, which is in breach of the order of a competent court. = Where=20 this occurs as a result of the act of a party who is bound by the order = or of=20 others acting at his direction or on his instigation, it constitutes a = civil=20 contempt by him which is punishable by the court at the instance of the = party=20 for whose benefit the order was made and can waived by him. The = intention with=20 which the act was done will, of course, be of the highest relevance in = the=20 determination of the penalty (if any) to be impose by the court, but the = liability here is a strict one in the sense that all requires to be = proved its=20 service of the order and the subsequent doing by the party bound of that = which=20 is prohibited. When, however, the prohibited act is done not by the = party bound=20 himself but by third party, a stranger to the litigation, that person = may also=20 be liable for contempt. There is, however, this essential distinction = that his=20 liability is for criminal contempt and arises not because the contemnor = is=20 himself affected by the prohibition contained in the order but because = his act=20 constitutes a willful interference with the administration of justice by = the=20 court in the proceedings in which the order was made. Here the liability = is not=20 strict in the sense referred to, for their has to be shown not only = knowledge of=20 the order but an intention to interfere with or impede the = administration of=20 justice- an intention which can of course be inferred from = circumstances.=E2=80=9D

But = a decision=20 of the Andhra Pradesh High Court[61] failed to appreciate this = distinction where=20 the conduct of the contemnor in instituting a suit and obtain in interim = order=20 of status quo and thereafter writing letters to the Advocate = Commissioner to=20 stall a decree passed earlier were characterized as civil contempt in = spite of=20 the express finding that the offending acts were deliberately intended = to thwart=20 the earlier orders passed by the High Court.

Chapter-V

CONTEMPT OF=20 COURT AND FREEDOM OF SPEECH- CONSTITUTIONAL ASPECT

=E2=80=9CWere it left to=20 me to decide whether we should have a government without newspapers or=20 newspapers without a government. I should not hesitate a moment to = prefer the=20 latter.=E2=80=9D[62]

Though the=20 concept of freedom of press is not a new one, it is very hard to find a = suitable=20 definition. Abraham Lincoln has aptly put it when he said, =E2=80=9C the = world has never=20 had a good definition of it.=E2=80=9D[63] But people have defined the = concept of Freedom=20 of Press and continue to do so. The concept was explained by William = Blackstone=20 way back in 1769 =E2=80=9C The liberty of the press is indeed essential = to the nature of=20 a free state; but this consists in laying no previous restraints upon=20 publications and not in the freedom from censure for criminal matter = when=20 published. Every freeman has an undoubted right to lay what sentiment he = pleases=20 before the public; to forbid this is to destroy the freedom of the = press; but if=20 he publishes what is improper, mischievous, illegal he must take the = consequence=20 of his own territory.=E2=80=9D[64]

In = 1977 the=20 royal Commission on Press has emphasized the importance of, and defined = the=20 freedom of the press as =E2=80=9C that degree of freedom from restraint = which is=20 essential to enable proprietors, editors ad journalist to advance the = public=20 interest by publishing the facts and opinions without which a democratic = electorate cannot make responsible judgments.

Prof = Chafee said=20 =E2=80=9Cthe truth is, I think, that the framers had no very clear idea = as to what they=20 meant by the freedom of speech or of the press, but we can say with = reasonable=20 assurance that the freedom which congress was forbidden to abridge was = not, for=20 them, some absolute concept which had never existed on the = earth.=E2=80=9D[65] Professor=20 Baxi says that freedom of press means two or three things. = =E2=80=9CFirst it implies the=20 freedom to have the infrastructure required to set up a newspaper and to = run it=20 efficiently. Secondly, it means freedom to gather and report = information.=20 Thirdly, it means freedom to express opinion.=E2=80=9D[66]

But = quite=20 adverse view has also been put in by K. K. Mathew[67] when he said = =E2=80=9C the=20 question of the freedom of press has to be understood in the context of = freedom=20 for whom the publisher who has put in the money; the worker who produces = the=20 paper, the advertiser who sustains it, the politician who runs the=20 administration or the reader who reads it? Freedom of the press is the = freedom=20 of the community, of society as a whole. It is not the exclusive = privilege of=20 any of the four categories who are associated with the newspaper = publication.=20 The reader who represents society, should have the ultimate freedom.

The = eminent=20 Jurist and writer Mr. Krishna Iyer has summed up what is Freedom of = Press.=20 According to him the major contents of the freedom of press are:[68]

Freedom to gather information from diverse and antagonistic = sources, on a=20 competitive basis, free from any monopolistic control from the=20 government.
Freedom to inform the public true facts without fear or = favor.
Right to have free access to sources of information.

The = contempt of=20 freedom of press has come quite a long way. There was a time in U.K. = When the=20 freedom of Press wasn=E2=80=99t encouraged. Sit William Scrogg who = became Lord Chief=20 Justice in 1678, pronounced a judgment that to publish a newspaper was = illegal=20 as, according to him, manifested an intention to commit breach of the = peace.[69]=20 On 24^th February 1703 Daniel Defoe was fined 200 Marks and = condemned=20 to be pillared thrice to be imprisoned indefinitely and to find sureties = for his=20 good behaviors during seven years for writing an anonymous pamphlet = called =E2=80=9C=20 shortest way with dissenters. Thus even though the church and state = resorted to=20 all methods to suppress, corruption of youth or sedition. Such = restraints=20 through licensing and censorship came to be accentuated after the = invention of=20 printing and the appearance of newspapers in 17^th century, = which=20 demonstrated how powerful the press as a medium of expression is. It is = in=20 protest to such governmental interference that the freedom of the press = was=20 built up in England.

A = classic=20 example for this situation would be John Milton=E2=80=99s[70] = =E2=80=9CAeropagtica=E2=80=9D which was a=20 protest addressed to the long Parliament which had taken up licensing, = after the=20 abolition of star chamber. Milton Said: =E2=80=9CTruth and understanding = are not such=20 wars as to be monopolized and traded by tickets=E2=80=A6give me the = liberty to know to=20 utter and to argue freely according to conscience, above all liberties. = Whoever=20 knew truth put to worse in a free and open encounter? Who knows not that = truth=20 is strong next to almighty; she needs no policies, no strategies, no = licensing=20 to make her victorious; these are the shifts and defines that error = makes=20 against her power.=E2=80=9D

It = was result of=20 such agitation that the Licensing Act of 1662 was eventually refused to = be=20 renewed by the House of Commons in 1694 though reasons given were = technical.=20 Thus even though the concept of Press Freedom developed in United = Kingdom,=20 Sweden was the first country in the world to recognize lawfully the = freedom of=20 press. The Swedish press Law of 1756 guaranteed a clear protection or = the press.=20 The law of freedom of press was first promulgated in 1810 in Sweden. It = was=20 replaced in 1949 by a new Act, which enjoyed of being part of the = Constitution=20 itself. Certain amendments were made to the Freedom of Press Act in = 1976.[71] We=20 can see from Article 1 of Swedish Constitution that Swedish law = expressly=20 provides for freedom of press. So is the case of United States. In = America the=20 struggle for freedom of Press had its greatest triumph when it came to = be=20 guaranteed by a written Constitutions, as a fundamental right. The First = Amendment declared: =E2=80=9C Congress shall make no = law=E2=80=A6abridging the freedom of=20 press.=E2=80=9D In Bridges v. California[72], the American = Supreme Court=20 held that freedom of press will include the freedom to possess those = means and=20 equipment which are necessary for the achievement of the object or goal = for=20 which freedom of the press is required.

The = Indian=20 Constitution though has not recognized this right specifically under any = of the=20 freedoms the Indian courts have read this freedom under freedom of = speech and=20 expression under Article 19(1)(a).[73] Supreme Court in Maneka = Gandhi v.=20 Union of India[74] observed that =E2=80=9Cto = be a=20 fundamental right it is not necessary that a right must be specifically=20 mentioned in a particular article specifically, it may be a fundamental = right if=20 it is an integral part of a named fundamental right or parties of the = same basic=20 nature and character as that fundamental right. Every activity, which=20 facilitates the exercise of the named fundamental right, may be = considered=20 integral part of that right and hence be a fundamental right-freedom of = press in=20 Article 19.

But = the freedom=20 of press impliedly provided under Article 19(1)(a) is not absolute. It = is liable=20 to reasonable restrictions as imposed by an existing law or a law to be = made by=20 a state on various grounds like a) sovereignty and integrity of India b) = the=20 security of the state c) friendly relations with foreign states d) = public order=20 e) decency or morality f) or in relation with contempt of court and g)=20 defamation or incitement to an offence.[75]

It = is this nexus=20 between freedom of press as impliedly provided in Article 19(1)(a) and = its=20 restriction based upon contempt of court that will be dealt in detail in = the=20 coming chapters.

Contempt by=20 Lawyers and Contempt against Judges

In = the case of=20 Brahma P. Sharma v. State of UP[76] the Supreme Court = discussed in=20 very detail the concept of contempt and libel. The court held that in an = instance where the court is called upon the exercise the summary powers = in cases=20 of contempt committed by scandalising the court, there are two primary=20 considerations.

The reflection on the conduct or character of a judge in reference = to the=20 discharge is made in the exercise of the right of fair and reasonable=20 criticism.
When attacks/ comments are made against judge/ judges=E2=80=99 = care should be=20 taken to distinguish between what is a libel on the judge and what = amounts to=20 contempt. If the statement is defamatory so far as the judge is = concerned,=20 then he can proceed against the libel or for libel.

The = importance=20 of this case lies in the fact that the circumstances as a whole should = be looked=20 into. It is one of the very 1^st cases, which states the = principle.=20 The fact that the meeting was held in a closed room, with only four = members=20 present, the President himself typing the letter, and forwarding it to = superiors=20 in letter marked =E2=80=9C confidential=E2=80=9D all made the court = think that whatever they did=20 was to seek an answer for the grievances faced by the Bar and the public = and not=20 to inform the public about the so-called misdeeds of the judiciary and = to=20 scandalize and lower the value of the court.

The = Namboodripad=20 Case was one in which we believe that a more severe punishment ought to = have=20 been imposed. The Supreme Court to a surprise penalized merely with a = symbolic=20 fine. H M Seervai points out =E2=80=9C it is submitted that the judgment = is correct in=20 the result but unsatisfactory when it tends to summarize.[77]But if we = look into=20 it closely we can see that Namboodripads observations have to be seen in = the=20 context of the circumstances they were made in. they were general in = nature.=20 They pertained neither to a pending case nor were they in disobedience = of court=20 order or in defamation for any judge. They contained a criticism of the = judicial=20 system in general and were expressed at a press conference before press=20 correspondents so that they were not likely to cause even distantly, any = interference with the administration of justice. They were as you can = see of=20 purely academic in nature, so far as their effect on the listeners are=20 concerned. The gravity of speech and the conviction did not seem to get = along=20 together.

But = whatever the=20 results were the methods by which the court arrived at the conclusion is = nothing=20 but pitiable. In order to refute the arguments of Mr. Menon who appeared = on=20 behalf of the Chief Minister, the Court went and examined the whole = Marxian=20 ideology. Vehement criticisms were raised against this approach of the = Court.=20 After the court decided, S. P. Sathe wrote, =E2=80=9C it is not clear. = However, that=20 there was any need to undertake an examination of the writings. The = Courts could=20 have told Mr. Menon that they were interpreting the Indian Constitution = and not=20 Marx, Engel or Lenin. Whether they had learnt about communism only by = reading=20 Miclellitan-Murray was irrelevant. If Namboodripad=E2=80=99s statement = amounted to=20 contempt of court, he had to be punished no matter whose views he was = voicing.=E2=80=9D=20 The Supreme Court could have resorted to what justice Holmes stated in = his=20 classic dissenting judgment in Lochner v. New York [78] = =E2=80=9Cthe case=20 is depended upon an economic theory which a large part of the country = does not=20 entertain. If it were a question whether I agreed with that theory, I = should=20 desire to study it further and long before making up my mind. But I do = not=20 conceive that to be my duty, because I strongly believe that my = agreement or=20 disagreement has nothing to do with the right of the majority to embody = their=20 opinions in law=E2=80=A6the 14^th amendment doesn=E2=80=99t = enact Mr. Herbert=20 Spencer=E2=80=99s social statistics.=E2=80=9D This is what court ought = to precisely have done.=20 Apart from the fact that their dwelling into history of Marxist ideology = sidetracks the main issues. It also unnecessarily involves the court in = a=20 political controversy.

It = comes to as a=20 surprise to many that the Supreme Court who convicted Namboodripad who = was a=20 chief minister and widely acclaimed scholar, acquitted Shiv Shanker.[79] = The=20 speech by Shiv Shanker is highly inflammatory and with complete = disregard to his=20 position. If it was to be argued that the decision in = Namboodripad=E2=80=99s case was=20 correct, because a person in such a high position should have taken more = care=20 while making such statements before the press, that argument collapses = when one=20 reads the ShivShanker judgment. Justice Mukherjee not only = didn=E2=80=99t convict him=20 but even stated that the statement was a compliment to the = judiciary.

Justice=20 Mukherjee applied the test of =E2=80=9Cimminent dangers=E2=80=9D as laid = down by Justice Holmes=20 in Schnenck v. U.S.[80] Justice = Mukherjee=20 said =E2=80=9C with these observations, it must be held that there was = no imminent=20 danger of interference with the administration of justice, nor of = bringing=20 administration into disrepute. In that view it must be held that the = minister=20 was guilty of contempt of court.=E2=80=9D

Moreover the=20 judges should have looked into the consequence when the Union Law = Minister=20 himself speaks to the gathering where the press is present, that Supreme = Court=20 is comprised of the elite class=E2=80=A6what will be the impression on = the normal man;=20 will he have faith in the judicial system? H. M. Seervai remarks about = that he=20 intended no disrespect to the Supreme Court and that he had high regard = for the=20 Hon=E2=80=99ble court can only be compared to a man who slaps another = person very hard=20 and then says that he had high regard for that person and was merely = trying to=20 rouse him to a sense of his own shortcomings.[81]

The = case of Wah=20 India where they were hauled up for contempt was a correct decision by = the Apex=20 court. As put forward by Lord Simons in Attorney General v. = Times=20 Newspaper[82] there are always 2 conflicting = interests=20 before the court. One in the publics right to information and thus the = freedom=20 of press and the other in uninterrupted administration of justice. Here = I cannot=20 see how the public=E2=80=99s right to information is infringed. They = were putting up=20 news item, which had no real and substantial basis at all. The = publishers=20 claimed that the grades were based on a survey where fifty of the senior = members=20 of Delhi Bar were consulted. But how far is this credible? = Wouldn=E2=80=99t it happen=20 that a lawyer who lost an important case will have some grudge against = that=20 particular judge? So the element of truth cannot be found out. The = Wah India=20 case does no credit to the case for journalistic freedoms. If the = media=20 demands greater freedom to criticize the administration of justice, = there is=20 also a corresponding duty on the media to report with a much greater = degree of=20 responsibility.[83] Also we should look at the facts that judges by the = nature=20 of their office cannot respond to criticism or get embroiled in = controversy in=20 the public arena.[84]Also in De Haes and Gijsels v. = Belgium,[85]=20 the European Court while reiterating that the press plays an essential = role in a=20 democratic society remarked that =E2=80=9Cthe courts must be protected = from destructive=20 attacks that are unfettered, specially in view of the fact that judges = are=20 subject to a duty of discretion that precludes them from replying to=20 criticism.=E2=80=9D

In = the case of=20 Re. S K Sundaram[86] the distinction between libel and = contempt is=20 almost completely blurred. The court while discussing the charges = contained in=20 the telegram held that =E2=80=9Canyone of those postulates would = certainly scandalize=20 and at any rate would tend to scandalize and lower the authority of the = courts=20 as a whole, and particularly the Supreme Court of India. The Chief = Justice of=20 India by virtue of his Constitutional ranking is the head of the Indian=20 Judiciary. When threats of the above nature have been hurled at him, = they would=20 unmistakably ten to undermine the positions, majesty and dignity of the = courts=20 and the law.

Another=20 important aspect about this case was put forward by Madhavi Divan in an=20 article.[87] Divan stated =E2=80=9Cwhere the allegations ceased to be = libel and when=20 they amounted to contempt is not explained. Also, although the court = referred to=20 Jethmalani=E2=80=99s Book Big Ego Small men, it appears that the context = of this book,=20 the apparent source of renewed attack by Sundaram were not examined. = This book=20 in addition to containing material in support of the claim that the then = chief=20 justice had passed the age of superannuation, also alludes to a = controversial=20 land acquisition case involving members of Dr. Anand=E2=80=99s family. = Yet those=20 writings of the former law minister of India and far more damaging than = any =E2=80=9C=20 ranting gibberish=E2=80=9D by an unknown entity provoked no judicial = response.

In = Re=20 Arundhati Roy[88] the verdict of the Supreme = Court,=20 which distinguishes this case from P. N. Duda v. = Shivshanker is=20 utterly illogical. The court held that since Mr. Shivshanker was a = retired High=20 Court Judge and Union Law Minister, he had made studies about the system = and=20 expressed his opinion which, under the circumstances was held not to be=20 defamatory. But the courts also held that in the instant case the = respondent has=20 not claimed to possess any special knowledge of law and the working of = the=20 institution of judiciary. She has not made any studies regarding the = working of=20 judiciary in this country and in these case, the benefit to which Mr = Shivshanker=20 under the circumstances was held entitled is therefore not available to = the=20 respndent in the present proceedings.

This = however I=20 cannot grapple with. To say explicitly that only a person who has = knowledge of=20 law and working of the judiciary can criticize the judiciary, is to = saying that=20 only lawyers, jurists and academicians can criticize the judiciary. Then = what=20 about the average and so called lay man to do?

In = R. v.=20 Nicholls,[89] which is regarded as an Australian = authority,=20 Griffith CJ held that =E2=80=9C the defence of fair comment is available = to persons=20 charged with scandalizing the court=E2=80=9D. The same case has been = cited with approval=20 in many of the leading Indian decisions. If we follow this principle, = Arundhati=20 Roy=E2=80=99s opinion should have been considered as a fair comment.

It = has been=20 rightly held in M.R. Parashar v. Farooq Abdullah[90] = by=20 Chandrachud CJ that =E2=80=9C the right of free speech is an important = right of the=20 citizen, in the exercise of which he is entitled to bring to the notice = of the=20 public at large the infirmities from which any institution suffers, = including=20 institutions which administer justice. Thus it is clear from this = statement that=20 every citizen has a right to healthy and constructive criticism. Here = one cannot=20 differentiate the citizens by barriers of specialist knowledge of law = and the=20 working of judiciary. A G Noorani writes a disturbing judgment has = looked into=20 these aspects and commented =E2=80=9Call men are equal before the law, = one cannot but=20 wonder how the Supreme Court at last distinguish citizens into two=20 categories.=E2=80=9D[91]

One = cannot help=20 but wonder at the irregular pattern in which the Supreme Court gives its = verdict=20 for contempt cases. In Namboodripads Case, the Supreme Court convicted = him and=20 went to great lengths to check up the works of Marx and Engel to prove = him=20 wrong. In P. N. Duda v. Shivshanker it went to the other = extreme=20 and even said what he had said was a compliment and exonerated him. This = was not=20 the only instance. Even the Kerala High Court hauled up Justice Krishna = Iyer for=20 contempt of Court twice but exonerated him by stating =E2=80=9C he was = an eminent jurist=20 author and judge, and has better and more thorough knowledge in the = field of=20 law. In J. Subramanium Potti=E2=80=99s wards.[92] =E2=80=9CThere is an = ocean of difference=20 between well-informed and ill-informed criticism. Those who have spent = years and=20 perhaps life time as part of the institution or to study an institution = may have=20 occasion to make a through objective assessment of that institution. = What they=20 say in regard to a matter concerning that institution should be viewed=20 differently from a similar statement by an uninformed person.

One = of the=20 important questions that arise in the specter of contempt power of the = courts is=20 the right of the contemnor to go ahead and prove the truth of his = allegations.=20 Or otherwise will truth be a defence in contempt in contempt = proceedings?

A = few years back=20 the honorable Supreme Court had the occasion to consider this question = in=20 D.C. Saxena v. Hon=E2=80=99ble the Chief Justice of = India.[93] In that=20 case a contemnor filed a writ petition against the then Chief Justice of = India=20 was unfit to hold that office and hence he should be stripped of his=20 citizenship. He also sought for a direction to register an FIR against = the then=20 CJI under different provisions of IPC and also to prosecute him under = the=20 Prevention of Corruption Act.

Looking into the=20 relevant facts the 3 judges bench held that =E2=80=9C it tends to lower = the dignity and=20 authority of the court and also sow seeds to persons with similar = propensity to=20 undermine the authority of the court or the judiciary as whole, he = crossed all=20 boundaries of reckless and indulges in wild accusations.

Speaking about=20 truth as a defence judges K Ramaswamy said =E2=80=9C it would not be = open to the=20 contemnor to bring forward evidence or circumstances to justify on to = show=20 whether and how fairly imputatious were justified because the judge is = not=20 before the count.=E2=80=9D

It = is humbly=20 submitted that the view taken by the Supreme Court is not right in this = matter.=20 It has completely ignored the precedents of the same court in which = =E2=80=9CTruth as a=20 defence=E2=80=9D was stressed. In Bathina Ramakrishna Reddy v.=20 Madras,[94] judges, Mukherjee said, = =E2=80=9Cthe article in=20 questions is a scurrilous attack on the integrity and honesty of a = judicial=20 officer. Specific instances have been given where the officer is alleged = to have=20 taken bribes or behaved with impropriety to litigants who did satisfy = his=20 dishonest demands. If the allegations were true, obviously it would be = to the=20 benefit of the public to bring these matters into light. But if they = were false,=20 they cannot undermine the confidence of the public in the administration = of=20 justice and bring the judiciary into disrepute.

Also = in=20 R. v. Nicholls[95] Griffith CJ observed: =E2=80=9C = I am not=20 prepared to accede to the proposition than an imputation of want of = impartiality=20 to a judge is necessarily contempt of court. On the contrary, I think = that if=20 any judge of this court on if any other court were to make a public = utterance of=20 such character as to be likely to impair the confidences of the public, = or of=20 suitors or any class of suitors in the impartiality of the court in any = matter=20 likely to be brought before it, any public comment would so far from an=20 utterance, if it were a fair comment, would so far from being a contempt = of=20 court, be entitled to similar protection to that which comment upon = matters of=20 public interest is entitled under the law of libel.[96]

Thus = it is added=20 that if a contemnor is prepared to go forward and prove the charges to = the=20 extreme with all the required evidence then he must be permitted to do = so. It=20 would be desirable to wrap up the argument with the reasons given by the = noted=20 Constitutional Law expert H. M. Seervai =E2=80=9C A judge is a public = servant and if he=20 takes bribes he is not acting or purporting to act as a judge he is = committing a=20 crime, and is liable to be punished for that crime. Since public = confidence in a=20 fearless and judiciary is a vital public interest, it would be desirable = if a=20 public spirited lawyer or lawyers Association conveyed in good faith and = in=20 sober language, the allegations of corruptions, with supporting = evidence, to the=20 appropriate authorities with a view to action being taken against the = judge.=20 However practicing lawyers may be unwilling to take such a step, or = persons in=20 authority may turn a blind age or do nothing. The process of removal of = a judge=20 by impeachment is cumbrous, and without a public outcry might not be = resorted=20 to. It then falls to the press to expose, in good faith a corrupt judge = in sober=20 and dignified language, and place relevant evidence, which can be = proved, before=20 the public. If true, the writing cannot be a can be proved, before the = public.=20 If true, the writing cannot be a contempt of court, because nothing = brings the=20 administration of justice into disrepute so much as corruption in the=20 judiciary.=E2=80=9D[97]

WHAT OUGHT TO=20 BE CONTEMPT OF COURT- CONCLUDING REMARKS

In = an=20 adversarial system of litigation like ours there are always two parties, = one=20 must lose, the other must win. And when it goes through three-tiers of=20 litigation- again an unfortunate characteristic of our law- the party = who=20 ultimately wins sometimes harbors inbuilt grievances against one of more = Judges=20 down the line who may have decided against him.

People who=20 propagate these grudges are often lawyers themselves. Top lawyers have = big egos.=20 And egotistical lawyers never like to lose, and when they do, some of = them are=20 not averse to blaming the Judge or suggesting to their clients that = there was=20 some ulterior motive.

Now, = judging=20 cases is a difficult business and the occupational hazards of judging = are many-=20 the memory of a wrong decision (or what is ultimately found to be a = wrong=20 decision) sometimes festers; it also gives rise to irresponsible = sometimes=20 scurrilous comment- first about the case itself, and then inevitably = about the=20 judge or court which rendered judgment.

The = law reports=20 are strewn with cases of disgruntled litigants going to great lengths in = making=20 charges, often unfounded, against the Judiciary.

The = law of=20 contempt that part of which is so colourfully described as = =E2=80=9Cscandalizing the=20 court=E2=80=9D is intended as a wall of protection against the = vicissitudes of judging.=20 Ours is a very litigious society and there are a number of unreasonable = people=20 in the system, persons who will make any type of allegation against = anyone at=20 the drop of a hat.

This = is why I=20 believe that this part of the Criminal Contempt Jurisdiction though now = obsolete=20 in England, should remain in India.

But = there are=20 problems in this branch of the law the lines are thinly drawn and are = not very=20 clear: and they depend very much on the perception of the Judge = administering=20 the Contempt Jurisdiction in the name of the court. The public, the men = and=20 women of the media, and the lawyers are content to accept constraints = imposed by=20 the =E2=80=9CRule of Law=E2=80=9D, but are not prepared to accept ad hoc = rules imposed according=20 to the whims, vagaries and idiosyncrasies of individual judges.

This = ad-hocism=20 is typified in the V.C.Mishra case[98]

No = one liked=20 what V.C. Mishra said and did in Allahabad, but the three Judge Bench = that=20 decided his case in their enthusiasm to teach him a lesson deviated from = the=20 law: ultimately, sobriety prevailed; the Constitution Bench of the = Supreme=20 Court[99] also did not like what Mishra said or did and yet they = overruled the=20 punishment meted out to him and set out the true contours of the = penalties that=20 can be imposed in contempt cases. This case has set an example and = prompts a=20 word of advice to all: lawyers and judges. Never-never behave as Mishra = did. And=20 never, never lose your temper as the three Judge Bench did in = Mishra=E2=80=99s case:=20 always keep your cool as the five Judge Bench did, and so earned the = admiration=20 of all. Mishra=E2=80=99s case has established that the contempt = jurisdiction must not=20 and cannot be used to discipline the lawyer in conduct of a case: this = must be=20 left to the Bar Councils entrusted with disciplinary powers under the = Advocates=20 Act.

It = was Jeremy=20 Bentham who characterized the Common Law as =E2=80=9CDog = Law=E2=80=9D. =E2=80=9CWhen your dog does=20 anything you want to break him off=E2=80=9D, (he wrote in 1823), = =E2=80=9Cyou wait till he does=20 it, and then beat him for it. This is the way you make laws for your = dog, and=20 this is the way judges make laws for you and me.=E2=80=9D

The = law of=20 contempt of court in Anglo-Saxon jurisprudence both in England in the = past, and=20 in India in the past and present has been no more, no less =E2=80=9CDog = Law=E2=80=9D. There are=20 no rules, no constraints- no precise circumstances when the = administration of=20 justice is brought into contempt. The judgments are strewn with pious = platitudes=20 that give little guidance to the editor, to the commentators, to = lawyers, and to=20 members of the public: this part of the law of contempt though = necessary, is a=20 standing threat to free expression. It leaves too much to the discretion = of the=20 particular judge. And at times decisions do give rise to a strange = feeling that=20 the status of the status of the person who scandalizes the Court perhaps = did=20 affect the ultimate result.

In = 1988 a=20 sitting Cabinet Minister made wide and improper remarks against Judges = of the=20 Supreme Court- he said:

=E2=80=9CZamindars like=20 Golakhnath (he was speaking of Golakhnath=E2=80=99s Case) evoked a = sympathetic cord=20 nowhere in the whole country except the Supreme Court of India. And the = bank=20 magnates, the representatives of the elitist culture of this country = ably=20 supported by industrialists, the beneficiaries of independence, got = higher=20 compensation by the intervention of the Supreme Court in = Cooper=E2=80=99s case (1970),=20 Anti social elements, FERA violators, bride burners and a whole hoard of = reactionaries have found their heaven in the Supreme = Court.=E2=80=9D[100]

The = minister=20 then went on to say that because the Judges of the highest Court had = their=20 =E2=80=9Cunconcealed sympathy for the haves=E2=80=9D (as opposed to the = have nots) they had=20 interpreted the expression =E2=80=9Ccompensation=E2=80=9D in the manner = they did: clearly=20 attributing motives. And yet a Bench of two Judges (in Duda=E2=80=99s = case) exonerated=20 him. Let me read to you what the Bench said:

=E2=80=9CBearing in mind=20 the trend in the law of contempt (they were speaking of the liberal = trend)-=20 established by the Judgment of Justice Krishna Iyer in = Mulgaokar=E2=80=99s=20 case[101] the speech of the Minister has to be read in its = proper=20 perspective, and when so read it did not bring the administration of = justice=20 into disrepute or impair administration of justice. The minister is not = guilty=20 of contempt of the court=E2=80=9D

Again when an=20 important personage Mr. Mohd. Yunus, Chairman of the Trade Fair = Authority of=20 India known at the time to be very close to the Prime Minister =E2=80=93 = had criticized=20 a judgment delivered by a Supreme Court Judge in the =E2=80=98Jehovah = Witness=E2=80=99=20 case holding that the singing of the National Anthem for a = particular sect=20 of Christians was not compulsory =E2=80=93 Mr. Mohd. Yunus said that the = Judge =20 =E2=80=9Chas no right to be called either an Indian or a Judge=E2=80=9D. = An Association of=20 individuals called the Conscientious Group v. Mohd. Yunus = &=20 Ors[102] filed a petition seeking a direction that Mr. Yunus = should=20 be hauled up for contempt.

These examples=20 are given not to deride our judges or criticize previous decisions. It = is only=20 to illustrate very graphically =E2=80=93 that the true nature of this = aspect of contempt=20 jurisdiction: is mercurial, unpredictable =E2=80=93 capable of being = exercised (and=20 therefore in fact exercised) differently in different cases by different = Judges=20 in the same Court.

The = origin of=20 the branch of law known as =E2=80=9Cscandalizing the court=E2=80=99 is = shrouded in antiquity =E2=80=93=20 it has been described in text books as both =E2=80=9Cdubious and = controversial=E2=80=9D[103]. It=20 originates from a celebrated dictum of Justice Wilmot in his judgment in = Wilkes=20 Case way back in 1765, a judgment which was never actually delivered, = but meant=20 to be delivered, and later published by Justice Wilmot=E2=80=99s son = when his father=E2=80=99s=20 paper were edited. It was a judgment reserved after argument, and when = ready to=20 be delivered it was discovered that the writ against Wilkes was = incorrectly=20 titled and since an amendment of the Writ was not consented to, the case = had to=20 be abandoned. This is the real ancestry of that part of the law of = contempt=20 known today as =E2=80=9Cscandalizing the Court=E2=80=9D: it is based on = a judgment never=20 delivered in a case, =E2=80=93 a case which had already abated!

The = Law of=20 Contempt is an exception to the fundamental right of free speech and = expression=20 guaranteed under Article 19(1)(a) of the Constitution, the law must then = be=20 justified on the ground that it is a =E2=80=9Creasonable = restriction=E2=80=9D under Article=20 19(2): otherwise it would be unconstitutional. There is a judgment of = the=20 Division Bench of the Calcutta High Court[104] delivered some years ago, = which=20 correctly appreciated this constitutional principle. It was not widely = reported=20 and deserves grater publicity than it has so far received. It is a = judgment of a=20 Bench of two judges S.C. Sen J. & U.C. Banerjee J. The fact that the = law of=20 contempt is an exception to the fundamental right of the free speech has = been=20 nowhere more felicitously described than in this judgment (delivered for = the=20 Bench by Justice Banerjee). In that case the Court was called upon to = decide=20 whether an article in a Calcutta daily, which had condemned a prior = judgment of=20 the Calcutta High Court, unread and by distorting facts, was = contemptuous.

The = article had=20 the disquieting heading =E2=80=9CLet the High Court save itself from = Ignominy=E2=80=9D. A suo=20 moto rule was issued by the High Court. When it came up for hearing no = apology=20 was called for or tendered. But the newspaper was exonerated: the = contempt=20 notice discharged. The judges said:

=E2=80=9CNone of the=20 articles can be defended as fair comment made in temperate language = about a=20 court case. In fact the distorted version of the judgment given and the = language=20 employed in the articles may have the effect of shaking the confidence = of the=20 people in the judiciary and thereby lowering the dignity and majesty of = the=20 law.=E2=80=9D

And = yet,=20 upholding the importance of freedom of speech the Calcutta High Court = held that=20 the publication was not contempt =E2=80=93 though the Judges did say = that the language=20 used could have been better, polite and more sober. Freedom to criticize = (even=20 wrongly and obtusely) a judgment of the court was upheld as part of the=20 cherished freedom of speech. The judgment of the Calcutta High Court = make us=20 recall what was said by Lord Denning in a famous contempt case: = Quinton=20 Hogg, son of a Lord Chancellor and a future Lord Chancellor of = England=20 himself had written an article in very critical and caustic tone about a = decision of Denning in a game case. The litigant Blackburn moved for = contempt=20 and that is what Lord Denning said.[105]

=E2=80=9CThis is the=20 first case, so far I know, where this court has been called on to = consider an=20 allegation of contempt against itself. It is a jurisdiction which = undoubtedly=20 belongs to us, but which we will most sparingly exercise: more = particularly as=20 we ourselves have an interest in the matter. Let me say at once that we = will=20 never use this jurisdiction as a means to uphold our own dignity. That = must rest=20 on surer foundations. Nor will we use it to suppress those who speak = against us.=20 We do not fear criticism, nor do we resent it. For there is something = far more=20 important at stake. It is no less than freedom of speech itself. It is = the right=20 of every man, in parliament or out of it, in the Press or over the = broadcast, to=20 make a fair comment, even outspoken comment, on matters of public = interest.=20 Those who comment can deal faithfully with all that is done in a court = of=20 justice. They can say that we are mistaken, and our decisions erroneous, = whether=20 they are subject to appeal or not. All we would ask is that those who = criticize=20 us will remember that, from the nature of our office, we cannot reply to = their=20 criticisms. We cannot enter into public controversy. Still no less in = political=20 controversy. We must rely on our conduct itself to be its own = vindication.

Exposed as we=20 are to the winds of criticism, nothing which is said by this person or = that,=20 nothing which is written by this person or that, will deter us from = doing what=20 we believe is right; nor, I would add, from saying what the occasion = requires,=20 provided that it is pertinent to the matter in hand. Silence is not an = option=20 when things are ill done. So it comes to this. Mr. Quinton Hogg has = criticized=20 the court, but in so doing he is exercising his undoubted right. The = article=20 contains an error, no doubt, but errors do not make it a contempt of = court. We=20 must uphold his right to the uppermost. I hold this not to be a contempt = of=20 court, and would dismiss the application.=E2=80=9D Lord Denning in = England, like=20 Justices Sen and Banerjee in India put free speech first =E2=80=93 in a = conflict between=20 this freedom and the contempt jurisdiction.

Shortly after=20 the controversial decision in the Spycatcher Case[106] = which=20 attracted worldwide attention. Lord Templeman believed that Peter Wright = who=20 wrote to Spycatcher, and had it published in the U.K., should be held = fast to=20 the undertaking by him, which was not to publish confidential = information=20 obtained by him in his capacity as a member of the British Secret = Service, not=20 withstanding that the information had, with lapse of time, percolated = into the=20 public domain. Two of his colleagues (in the House of Lords) agreed with = him,=20 which put Lord Templeman in the majority. The Press held them up to = ridicule;=20 the Daily Mirror published photographs of all three Judges and below the = photographs was written in capital letters =E2=80=9COLD = FOOLS=E2=80=9D.

It = was asked of=20 him why no contempt proceedings were initiated against the particular = newspaper.=20 He apparently smiled, and without a trace of bitterness, said the Judges = in=20 England did not take notice of personal insults, uttered without malice. = After=20 all, he said, he was old, and though he believed he wasn=E2=80=99t a = fool, someone else=20 who sincerely thought he was, was entitled to his opinion. He also added = =E2=80=9CBut if=20 they (the Editor and Publisher) =E2=80=93 had said we were dishonest or = not true to our=20 conscience, I would have promptly hauled them up=E2=80=9D.

Here = is a judge=20 who was so conscious of his enormous power that he knew when not to use = it: a=20 self-restraining quality which greatly enhances the prestige of all = judicial=20 power.

There is another=20 disturbing aspect of this branch of the law. Unlike defamation truth, is = not=20 considered to be a defence. Does the law of contempt then impose = reasonable=20 restrictions on freedom of speech =E2=80=93 if you are not permitted to = speak and=20 establish the truth? India=E2=80=99s note constitutional historian H.M. = Seervai had no=20 doubt on the point. This is what he had to say in the Fourth Edition of = his=20 famous book on the Constitution of India:

=E2=80=9Ca law relating=20 to defamation, which provided that truth, spoken or written, for the = public good=20 shall not be defence in a libel action would impose restrictions which = would be=20 unreasonable .=E2=80=A6=E2=80=A6.the position would be no different if a = law were to enact that=20 truth should not be a defence to a charge of contempt of court, if it = consists=20 in scandalizing a judge.=E2=80=9D

=E2=80=9CIn a criminal=20 prosecution for libel, the prosecution would fail if it were shown that = specific=20 charges were true and it was for the public good that they should be = made. But=20 is there one law for a corrupt Minister and another for a corrupt = Judge?=E2=80=9D The=20 author then boldly says that no court in India would say that there was = one law=20 for a corrupt Minister and another for a corrupt Judge, and says quite=20 confidently that no court would by any process of reasoning punish for = contempt=20 the writer of an article who, in sober language sets out specific acts = of=20 bribery and is able to successfully prove them.

For = this view=20 the author relies on a judgment of a Constitutional Bench of the Supreme = Court=20 itself =E2=80=93 in B. Ramakrishna Reddy v. State of = Madras[107]=20 1952 SCR 425 where Justice B.K. Mukherjea said:

=E2=80=9CThe article in=20 question is a scurrilous attack on the integrity and honesty of a = judicial=20 office. Specific instances have been given where the officer is alleged = to have=20 taken bribes or behaved with impropriety to litigants who did not = satisfy his=20 dishonest demands. If the allegations were true, obviously it would be = to the=20 benefit of the public to bring these matters into light. But if they = were false,=20 they cannot but undermine the confidence of the public in the = administration of=20 justice and bring the judiciary into disrepute.=E2=80=9D

Unfortunately=20 these observations were read in a later case in Perspective = Publications Pvt.=20 Ltd., & anr. V. State of Maharashtra[108] as not = laying=20 down affirmatively that truth and good faith could be set up as a = defence in=20 contempt proceedings; and ever since then the law in Perspective = Publications=20 Case is the law that is followed. Wrongly, I would submit. Particularly = since=20 years after the Perspective Publications Case another Bench of = three=20 Hon=E2=80=99ble Justices of the Supreme Court (in August 1976) set aside = a Full Bench=20 decision of the High Court of Punjab, which held that a prima facie case = for=20 contempt was made out. In that case 15 members of a Bar Association made = a=20 complaint about observations of a High Court judge made during an = inspection at=20 the District Court Bar the judge had said nasty things about politicians = and the=20 lawyers felt that the judge was wrong to talk politics and they said so = in the=20 letter. The letter was addressed to the Chief Justice but it was placed = for=20 consideration of a Bench of the Court and on perusal of the contents the = Bench=20 that a prima facie of criminal contempt was made out. None of the = allegations in=20 the matter against the judge were disputed or challenged.

Yet = the High=20 Court proceeded on the basis that even though the letters written = correctly=20 recorded what had happened and commented adversely on the = judge=E2=80=99s conduct, the=20 authors were guilty of contempt. The Supreme Court overruled and by so=20 overruling emphasized that allegations when true were not capable of = sustaining=20 a charge of contempt.

The = most recent=20 endorsement of this view is the decision of the Privy Council (March = 1999) in=20 which Lord Slynn (in an appeal from the Republic of Mauritius), whilst = upholding=20 the constitutionality of the offence of scandalizing the court, under = the=20 Constitution of Mauritius, emphasized two things: first, that the cope = of=20 offence was a narrow one and second, that exposure and criticism of = judicial=20 misconduct plainly in the public interest would not necessarily = constitute=20 contempt: that is to say truth and good faith would trump the Contempt = law,=20 which is as it should be.

Our = Constitution=20 makes freedom of speech and expression a fundamental right, and the = exception to=20 it is the law of contempt- not any law of contempt =E2=80=93 but = reasonable restrictions=20 in the law. The Contempt of Courts Act does not say that truth cannot be = a=20 defence and it is for the Courts to interpret the meaning of the word=20 =E2=80=9Cscandalize=E2=80=9D.

If = it is part of=20 the law as understood that a person commits contempt if he truthfully = publishes=20 as a fact that a particular Judge has accepted a bribe for giving a = judgment in=20 a party=E2=80=99s favour =E2=80=93 then such a law would be void as = imposing unreasonable=20 restrictions on the freedom of speech and expression: the judge who took = the=20 bribe would be false to his oath, to do justice without fear or favour; = and it=20 would be absurd to say that although Article 124(4) provides for the = removal of=20 a judge for proved misbehaviour, no one can offer proof for such = misbehaviour=20 except on pain of being sent to jail for contempt of court.

This = is a=20 glaring defect in our judge-made law that needs to be remedied- = hopefully by the=20 Judges themselves; if not, reluctantly then by Parliament. It is = interesting to=20 notice that when the Ontario Court of Appeal some years ago considered = the=20 offence of scandalizing the Court in the light of the Canadian Charter = of Human=20 Rights. The majority in the Court concluded that scandalizing the court = was no=20 longer compatible with the fundamental freedom of speech and = expression.[109]=20 The dictionary meaning of the word =E2=80=9Cscandalize=E2=80=9D is = =E2=80=9Cto utter false or malicious=20 report of a person=E2=80=99s conduct=E2=80=9D. Therefore truth can never = scandalize.

The = decision of=20 Supreme Court in Ravichandra Iyer v. = Bhattacharji[110] is a=20 regrettable one because the Bench in that case said that even Bar = Associations=20 can not take up matters and pan resolutions with regard to allegations = of=20 corruption against sitting judges. They must take up the matter first = with the=20 Chief Justice and await his response for a =E2=80=9Creasonable = period=E2=80=9D. And what if the=20 Chief Justice does not respond =E2=80=93 what after that? Their = Lordships gave no=20 answer. It is Bahttacharji=E2=80=99s case, which quotes Harry Edwards, = Chief Justice of=20 the US Court of Appeals of the District of Columbia who was at one time = Chairman=20 of what is known as the Judicial Council in the United States (a Council = for=20 disciplining federal judges in the US =E2=80=93 judges who are appointed = for life).

In=20 Bhattacharji=E2=80=99s case our courts quoted from an article by Harry = Edwards in which=20 he had said:

=E2=80=9CIdeal of=20 judicial independence is not compromised when judges are monitored and = regulated=20 by their own peers. This limited system of judicial self-regulation = present no=20 constitutional dilemma as long as the removal power remains with = Congress. I=20 argue that the judiciary alone should monitor this bad behaviour through = a=20 system of self-regulation.

BIBLIOGRAPHY

Articles=20 & Journals

G. Noorani, =E2=80=9CA Disturbing Judgment=E2=80=9D, = Frontline, March 29 2002 at=20 34.
Floyd Abrams, =E2=80=9CFair Trial- Free Press: A Legal = overview=E2=80=9D, Address=20 before Connecticut Bar Association, 1979
K. K. Mathew, Chief Editor, Malayalam Manorama, A Talk on All = India Radio=20 on =E2=80=9C The Freedom of Press=E2=80=9D, Vidura, Vol. 15, = No. 5, October 1978 at=20 280.
Madhavi Divan, The Law of criminal Contempt: time to move on, = The=20 Lawyers Collective, March 2002 at 8.
R. Dhavan, =E2=80=9CThe Press and the Constitutional Guarantee of = Free Speech and=20 Expression=E2=80=9D, 28 Journal of Indian Law Institute = 292.
Raju Z Moray, =E2=80=9CConversation in a Court Room=E2=80=9D, = The Lawyers=20 Collective, July-August 1994 at 53.
S. P Sathe, =E2=80=9CFreedom of Speech and Contempt of = Court=E2=80=9D, Economic and=20 Political Weekly, 17- October 1970 at 1749.
Upendra Baxi, =E2=80=9CIn an interview on the Freedom of = Press,=E2=80=9D Vidura,=20 Journal of the Press Institute of India, Vol. 12, No. 6, = December 1974=20 at 4.
Usha Kamath, =E2=80=9COf Judicial Power=E2=80=9D, = Frontline, March 29 2002.
Z. Chafee, Book Review, =E2=80=9CFree Speech: And its Relition to = Self-Government=20 by Alexander Meiklojohn,=E2=80=9D 62 Harvard Law Review, 1949 = at 891=20 (898).

Books

E.S. Venkataramaih, Freedom of Press- Some recent Trends,=20 1^st Edn., B.R. Publishing Corp, New Delhi, 1987.
H M Seervai, Constitutional Law of India, Vol. I, = 4^th=20 Edn., Universal Book Publishers, New Delhi, 1999.
J. Milton, =E2=80=9CAeropagiticia=E2=80=9D, 1^st Edn., = 1644 at 23 as Cited in D.=20 S. Bogen, First Amendment Ancillary Doctrines, Maryland Law = Review,=20 Vol. 37, No. 4, 1978.
James Francis Oswald, Contempt of Court, 3^rd = Edn.,=20 Hindustan Law Books, Calcutta, 1993.
Justice A. N. Grover, Press and the Law, 1^st Edn., = Vikas=20 Publishing House Ltd., New Delhi, 1990.
Justice V r Krishna Iyer ad V Sethi, Essays on Press Freedom,=20 1^st Edn., Capital Foundation Society, 1996, New = Delhi.
K. K. Mathew, On Democracy, Equality and Freedom, = 1^st=20 Edn., Universal books, 1978.
K. N. Goyal, Judicial Miscellany, 1^st Edn., = Institute of=20 Judicial Training and Research, Uttar Pradesh, 1993.
Krishna Iyer and V. Sethi, Essays on Press Freedom, = 1^st=20 Edn., Capital Foundation Society, New Delhi, 1996.

10. =20 Oxford Dictionary of Quatotations, 3^rd Edition, Oxford = University Press, 1999.

11. P=20 Krishnaswamy, Justice V. K. Krishna Iyer-A Living Legend, = 1^st=20 ed., Universal Publication, New Delhi, New Delhi, 2000.

12. S. K.=20 Padover, Thomas Jefferson on Democracy, 2^nd Edn., = McMillan=20 Publishers, New York, 1956.

13. S.=20 Pal, Law of Contempt, Law Research Institute, Calcutta, 2001.

14. V. G=20 Ramachandran, Contempt of Court, 5^th Edn., Eastern = Book=20 Company, 1976.

15. Vepa=20 P. Sarthi, G. C. V. Subba Rao=E2=80=99s Commentary on Contempt of = Courts Act,=20 1971, ALT Publications, Hyderabad, 1999.

[1] = Raju Z=20 Moray, =E2=80=9CConversation in a Court Room=E2=80=9D, The Lawyers = Collective,=20 July-August 1994 at 53.

[2] = Vepa P.=20 Sarthi, G. C. V. Subba Rao=E2=80=99s Commentary on Contempt of Courts = Act, 1971,=20 ALT Publications, Hyderabad, 1999 at 1.

[3]=20 Id.

[4] = As explained=20 by Sawant J. in V.C. Mishra AIR 1995 SC 2348. =E2=80=9CTo = discharge its=20 obligations as the custodian of the administration of justice in the = country and=20 as the highest court imbued with supervisory and appellate jurisdiction = over all=20 the lower courts and tribunals, it is inherently deemed to have been = entrusted=20 with the power to see that the stream of justice in the tribunals are = protected=20 while fear or favour and for that purpose all the courts and tribunals = are=20 protected while discharging their legitimate duties. To discharge this=20 obligation, this court has to take cognizance of the deviation from the = path of=20 justice in the tribunals of the land, and also of attempts to cause such = deviation and obstruct the course of justice. To hold otherwise would = mean that=20 although this court is charged with the duties and responsibilities = enumerated=20 in the Constitution, it is not equipped with the power to discharge = them.=E2=80=9D

[5] = Thomas=20 Jefferson, as cited in Oxford Dictionary of Quatotations, = 3^rd=20 Edition, Oxford University Press, 1999.

[6] = James=20 Francis Oswald, Contempt of Court, 3^rd Edn., Hindustan = Law=20 Books, Calcutta, 1993 at 6.

[7] = St. James=20 Evening Post Case (1742) 2 A & K 469. Cited From, V. G = Ramachandran,=20 Contempt of Court, 5^th Edn., Eastern Book Company, = 1976 at=20 2.

[8]=20 Supra. n. 6at1.

[9] = Mosntesque=E2=80=99s=20 idea of separation of power divided the state governing bodies into = three=20 organs. This model is followed by almost all the jurisdictions in the = world.

[10] = (1975) Wilm=20 243.

[11] = Justice V.=20 C. Srivastava, Contempt of Court as Cited in K. N. Goyal, Judicial=20 Miscellany, 1^st Edn., Institute of Judicial Training and = Research=20 Uttar Pradesh, 1993 at 33.

[12] = This amount=20 of fine was imposed in 1926 and even today under the 1971 Act we have=20 continuation of the same provision without taking into consideration of = the time=20 elapsed and the value of money reduced.

[13] = K. N.=20 Goyal, Judicial Miscellany, 1^st Edn., Institute of = Judicial=20 Training and Research Uttar Pradesh, 1993 at 34.

[14] = State of=20 Maharashtra v. Mahboob S. Allibhoy, AIR 1996 SC 2131.

[15] = 1998 (4)=20 SCC 409.

[16] = S. Pal,=20 Law of Contempt, Law Research Institute, Calcutta, 2001 at = 26.

[17] = (1919) 249=20 U.S. 47. The case involved an appeal from a conviction in the lower = Federal=20 Court on a charge of circulating antidraft leaflets among members of the = US=20 armed forces. The Espionage Act made it a felony to attempt to obstruct = the=20 enlistment in and recruiting to services of the United States or to = convey false=20 statements with intent to interfere with military operations. = Appellant=E2=80=99s=20 counsel contended that the Espionage Act violated the First Amendment=20 guaranteeing freedom of speech and of the press and was = unconstitutional.

[18] = (1951) 34=20 U.S. 494. The Statute made it unlawful for any person to advocate, = advice or=20 teach duty, necessity desirability or propriety of overthrowing or = destroying=20 the Government in the United States, by force or violence and penalized = even a=20 conspiracy to commit such forbidden acts. The petitioners, leading = members of=20 the Communist Party, were charged with a conspiracy to form a party for = teaching=20 and advocating the overthrow of government by force. They contended that = the=20 statute could not stand the Constitutional test of =E2=80=9Cclear and = present danger=E2=80=9D=20 and that their conviction by the court below was therefore liable to be = set=20 aside.

[19] = (1957) U.S.=20 298.

[20] = Babu Lal=20 Parate v. State of Maharashtra, AIR 1961 SC 884.

[21] = 391 U.S.=20 194, 201 (1968)

[22] = 485 U.S.=20 624, 632 (1988).

[23] = 509 U.S.=20 688, 695 (1993).

[24] = 318 U.S. 50=20 (1943).

[25] = 267 U.S.=20 515, 537 (1925).

[26] = 221 U.S.=20 418, 444 (1911).

[27] = 512 U.S.=20 821, 114 S.Ct. 2552, 2557 (1994)

[28] = CHIEF=20 JUSTICE Warren Berger as cited in Floyd Abrams, =E2=80=9CFair Trial- = Free Press: A Legal=20 overview=E2=80=9D, Address before Connecticut Bar Association, 1979 as = cited in Justice=20 V r Krishna Iyer ad V Sethi, Essays on Press Freedom, = 1^st=20 Edn., Capital Foundation Society, 1996, New Delhi at 13.

[29] = Brahma=20 P. Sharma v. State of U.P. AIR 1954 Supreme Court 10.

[30] = AIR 1970 SC=20 2015.

[31] = This press=20 conference was held at Trivandrum on November 9^th 1967 and = the paper=20 which reported was the Indian Express.

[32] = AIT 1988 SC=20 1208.

[33] = Cited in=20 Madhavi Divan, The Law of criminal Contempt: time to move on, The = Lawyers=20 Collective, March 2002 at 8.

[34] = The Indian=20 Express, 2^nd May 2001.

[35] = (2001) 2=20 SCC 171.

[36] = (2001) 2=20 SCC 171 at 176.

[37] = (2002) 3=20 SCC 343.

[38] = AIR 1999 SC=20 3345.

[39] = NBA=20 v. Union of India (1999) 8 SCC 308 at 313.

[40] = Judges R=20 Parasher v. Prashant Bhusan, (2001) 6 SCC 735.

[41] = In re=20 Arundhati Roy, (2002) 3 SCC 346 at 354.

[42] = AIR 1988 SC=20 1208.

[43] = (2002) 3=20 SCC 343 at 372.

[44] = Civil=20 contempt means-

(i) = =20 wilful disobedience to any judgement, decree, direction, order, writ or = other=20 process of a court;

(ii) = ; =20 wilful breach of an undertaking given to a court.

[45] = (1964) 3=20 All. ER 674

[46] = AIR1969 SC=20 189

[47] = AIR 1964 SC=20 1625

[48] = AIR 1970 SC=20 1767

[49] = AIR 1985 SC=20 1264

[50] = (1992) 4=20 All. ER 97

[51] = Babu Ram=20 Gupta v. Sudhir Bhasin , AIR 1979 SC 1528

[52] = AIR 1984 SC=20 1826

[53] = Criminal=20 contempt means-

The = publication=20 (a) by words spoken or written; or (b) by signs; or (c) by visible=20 representations or otherwise of any matter; or (d) any other act = whatsoever=20 which-

(i) = scandalizes=20 or tends to scandalize, or lowers or tends to lower the authority of, = any court;=20 or

(ii) = prejudices,=20 or interferes or tends to interfere with, the due course of any judicial = proceeding; or

(iii) interferes=20 or tends to interfere with, or obstructs or tends to obstruct, the=20 administration of justice in any other manner.

[54] = AIR 1974 SC=20 1252

[55] = (1974) 1=20 ALT 170

[56] = AIR 1991 SC=20 2176.

[57] = AIR 1962 SC=20 1172.

[58] = 1997 (5)=20 ALT 724.

[59] = 1995=20 Supp.(2) SCC 388.

[60] = (1991) 2=20 All ER 398

[61] = Kamalabai Nayak v. Dhananjoy Nayak, 1996 (3) ALT 404.

[62] = Speech by=20 Thomas Jefferson, S. K. Padover, Thomas Jefferson on Democracy,=20 2^nd Edn., McMillan Publishers, New York, 1956 at 93.

[63] = K. K.=20 Mathew, On Democracy, Equality and Freedom, 1^st Edn.,=20 Universal books, 1978 at 98.

[64]Blackstone=20 Commentaries, Vol. IV at 151-152 (Wendell ed.;1854) as Cited in Justice = E.S.=20 Venkataramaiah, Freedom of Press- Some Recent Trends, 2nd Ed., B. = R.=20 publishing Corp, Delhi, 1987 at 14.

[65] = Z. Chafee,=20 Book Review, =E2=80=9CFree Speech: And its Relation to Self Government = by Alexander=20 Meiklojohn,=E2=80=9D 62 Harvard Law Review, 1949 at 891 = (898).

[66] = Upendra=20 Baxi, =E2=80=9CIn an interview on the Freedom of Press,=E2=80=9D Vidura, = Journal of the Press=20 Institute of India, Vol. 12, No. 6, December 1974 at 4.

[67] = K. K.=20 Mathew, Chief Editor, Malayalam Manorama, A Talk on All India Radio on = =E2=80=9C The=20 Freedom of Press=E2=80=9D, Vidura, Vol. 15, No. 5, October 1978 = at 280.

[68] = Justice=20 Krishna Iyer and V. Sethi, Essays on Press Freedom, = 1^st Edn.,=20 Capital Foundation Society, 1996, New Delhi at 13.

[69] = Justice=20 E.S. Venkataramaih, Freedom of Press- Some recent Trends, = 1^st=20 Edn., B.R. Publishing Corp, New Delhi, 1987 at 13.

[70] = J. Milton,=20 =E2=80=9CAeropagiticia=E2=80=9D, 1^st Edn., 1644 at 23 as = Cited in D. S. Bogen,=20 First Amendment Ancillary Doctrines, Maryland Law Review, Vol. = 37, No. 4,=20 1978 at 682.

[71] = Justice A.=20 N. Grover, Press and the Law, 1^st Edn., Vikas = Publishing House=20 Ltd., New Delhi, 1990 at 8.

[72] = (1941) 314=20 U.S. 252.

[73] = In=20 Romesh Thappar v. State of Madras, AIR 1950 SC 124, the = court=20 recognized the fact that freedom of speech and expression as given in = Article=20 19(1)(a) impliedly gave rise to freedom of press.

[74] = AIR 1978 SC=20 597.

[75] = Article=20 19(2)

[76] = AIR 1954 SC=20 10.

[77] = H M=20 Seervai, Constitutional Law of India, Vol. I, 4^th = Edn.,=20 Universal Book Publishers, New Delhi, 1999 at 749.

[78] = (1904) 198=20 U.S. 45, 49 L ed. 937.

[79] = P. N.=20 Duda v. P. Shiv Shanker AIR 1988 SC 1212.

[80] = (1918) 249=20 U.S. 47.

[81] = Supra. n77 at 759.

[82] = [1973]1 ALL=20 E. R. 710.

[83] = Re=20 Harijai Singh and Another and Re Vijay Kumar, (1996) 6 SCC 466.

[84] = Lord=20 Denning in R. v. Metropolitan public Commissioner Exparte, = (1968)=20 2 ALL E. R. 319.

[85] = Application=20 19998/ 92, (1998) 25 EHRRI

[86] = (2001) 2=20 SCC 171.

[87] = Madhavi=20 Divan, =E2=80=9CThe Law of criminal Contempt: time to move on=E2=80=9D, = The Lawyers=20 Collective, March 2002 at 8.

[88] = (2002) 3=20 SCC 346.

[89] = (1911)12=20 CLR 280.

[90] = AIR 1984 SC=20 615.

[91] = A. G.=20 Noorani, =E2=80=9CA Disturbing Judgment=E2=80=9D, Frontline, = March 29 2002 at 34.

[92] = P=20 Krishnaswamy, Justice V. K. Krishna Iyer-A Living Legend, = 1^st=20 ed., Universal Publication, New Delhi, New Delhi, 2000 at 350.

[93] = (1996) 5=20 SCC 216.

[94] = AIR 1952 SC=20 76.

[95] = (1911) 12=20 CLR 280.

[96] = This famous=20 Australian case has been cited with approval in various Indian and = subsequent=20 Australian cases. For eg. Fletcher Exp Kirch (1935) 52 CLR 248;=20 Brett (1950) VLR 226; Foster Exp Gillies (1937) St. Rqd = 368; AG=20 NSW v. Mundey, (1972) 2 NSWLR 887 etc.

[97] = Supra. n.77 at 754.

[98] = 1995 (2)=20 SCC 584.

[99] = Supreme=20 Court Bar Association v. UOI, 1998 (4) SCC 409.

[100]=20 P.N.Duda v. P. Shivshanker, AIR 1988 SC 1208.

[101] AIR 1978=20 SC 727.

[102] AIR 1987=20 SC 1451.

[103] Borric and=20 Lowe, Law of Contempt, 3^rd Edn. at 331.

[104] Archana=20 Guha v. Rajneet Guha, 1989 Cal. HC Notes 252

[105] R.v=20 Metropolitan Police Commissioner, 1968(2) AER 319.

[106]=20 Attorney General v. Guardian Newpaper, 1987 (3) AER = 316.

[107] 1952 SCR=20 425.

[108] (1969) 2=20 SCR 779

[109] R.=20 v. Kopyto, 1987 (47) DLR 4^th Series.

[110] 1995=20 (5)SSC 478

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Contributed papers are papers whose authors are either unknown or=20 anonymous.

Contempt of Court

INTRODUCTION

Methodology

Chapter-I

HISTORY AND=20 BACKGROUND TO THE CONTEMPT OF COURTS ACT

=E2=80=9COur Judges are=20 so honest as other men,

DEFINING=20 CONTEMPT OF COURT

CIVIL=20 CONTEMPT

CRIMINAL=20 CONTEMPT

WHAT OUGHT TO=20 BE CONTEMPT OF COURT- CONCLUDING REMARKS

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