Context

The Supreme Court has warned the law enforcement agencies that there can be no clampdown on citizens right to communicate their grievances on social media platforms regarding COVID-19, otherwise it will be treated as contempt of court.

Background

• There have been acute shortages of COVID-19 resources like- oxygen cylinders, hospital beds, Remdesivir etc. as India is grappled under second wave of COVID-19
• A large number of citizens are seeking help on social media in their personal capacity because apparently the state has failed to deliver those welfare goods
• States think it will create a wrong perception in masses and can create a panic situation

Analysis

What is contempt of court?

• Contempt of Court is disobedience to the court whether wilfully or accidentally, by acting in defiance to the authority, justice and dignity.
• The power to punish for Contempt can be duly exercised by the court to up hold the dignity of the court of law and protect its proper functioning whenever an any person or body adversely affects the administration of justice by its act or tends to impede the course of justice, or shake public confidence in a judicial institution.

Genesis of contempt of court

• The law concerning contempt of court in India has its roots in the British Raj.
• An undelivered judgment of J Wilmot in 1765 lead to the genesis of this act, where the judge said the power of court was necessary to maintain the dignity and majesty of judges and vindicate their authority
• Henceforth, the Contempt of Court Act, 1971 was enacted to bring transparency and more clarity in the concept of contempt of court and the power to punish for the contempt of subordinate courts.
• This Act was replaced by Contempt of Court Act, 1952 which was again replaced by Contempt of Court Act, 197on the recommendations of H.N. Sanyal committee.

What are criminal and civil contempt?

The expression ‘contempt of court’ in the Contempt of Courts Act, 1971 is divided into two categories:

Civil Contempt means whenever a person wilfully disobeys to any judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking given to a court, which is mentioned under Section 2(b) of the Contempt of Court Act, 1971

Another type of contempt called Criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which

• scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court
• prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding
• interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner is any behaviour or wrongdoing that conflicts with or challenges the authority, integrity, and superiority of the court.

Why does the Contempt of Court Act should be retained?

• As per the Law Commission report 274, there were a high number of civil (96,993) and criminal (583) contempt cases pending in various High Courts and the Supreme Court. The Commission observed that such high number of cases vindicates the claim of relevancy of the contempt of court in present scenario
• Even if the concerned act is repealed but the offence of Scandalising the Court continues to be punishable in UK under other laws
• Supreme Court and High Courts derive their contempt powers from the Constitution. The procedure in relation to investigation and punishment for contempt are only mentioned in the Contempt of Court Act, 1971. Therefore, repeal of relevant sections of the offence from the Act will not impact the constitutional powers of the constitutional courts to punish anyone for its contempt.
• if the definition of contempt is narrowed, subordinate courts will suffer as there will be no remedy to address cases of their contempt, as they cannot punish for their contempt as per the constitution
• The Act had passed judicial scrutiny at various levels and hence it is justified to retain the law in the stature books

Why the provisions regarding contempt of court are unwarranted?

• The Contempt Law in England has now been abolished after the last contempt proceedings occurred in 1930.
• If the courts are to preserve their duty using this archaic law, the dignity of court will not be established and respected if it impedes fundamental rights of the citizens.
• A law for criminal contempt is completely standing apartfrom our democratic system which recognises freedom of speech and expression as a fundamental right.
• It violates the principle of natural justice, where a party to the case can not be its adjudicator
• In the Namboodiripad’s case, the court observed that the Freedom to Speech and expression should always prevail except where contempt is manifest, mischievous or substantial.
• If citizens are free to voice their opinion, then certain structural inefficiency like the opaque system of appointment of Judges in the Higher Judiciary adds to the argument against retaining this provision of contempt of court.

Conclusion

The offence of criminal contempt in India needs to be revisited after the famous Prashant Bhushan case, where judiciary took suo moto cognizance. The fact that social media comments, tweets, posts etc by citizens are being considered as contempt of court pose the risk of chilling effect on freedom of speech to avoid any criminal proceedings. In light of such proceedings, scandalising the court must be re-evaluated in terms of its rationale. The fact that the philosophy behind contempt of court considers public criticism to have a greater impact on judicial integrity than the judge’s conduct and quality of judgements they will pronounce is questionable.