By-Adeeba Hussain.
The concept of contempt originated in Britain where the perceived notion that King can do no wrong. King was considered as fountain of justice. Therefore any verdict, order or decree passed by King's council was considered to be absolute and authoritative and if any person questioned or criticized it would be considered as contempt.The judges of equity court in England were considered as ministers of the king and therefore their disobedience amounted to contempt of the Monarchy. It's a relic of past. 2013 Britain abolished criminal contempt of scandalising the court.
In India there are 2 types of contempt civil and criminal. The contempt of courts act 1971 defines what amounts to civil or criminal contempt of court. Section 2(b) defines civil contempt as wilful disobedience to any judgement decree direction order writ or other process if court or wilful breach of an undertaking given to a court. Criminal contempt includes . However if we look through a rational approach we find that civil contempt is more grave than criminal contempt because in case of civil contempt there is willful disobedience of the order of which is itself like questioning the power and integrity of court. Non implementation of judgement or order of court not only challenges the authority of court but also hampers the rule of law and administration of justice. What is the use of giving judgement and orders when they are wilfully or intentionally not implemented. Whereas as in criminal contempt it there is question of integrity and scandalizing the court. But there are no definite parameters of what amounts to scandalising the court. Even a fair and just criticism of court or judges of courts can amount to contempt if the court feels so. This provision of scandalising is totally archaic and should not be allowed to operate in a liberal democracy. Contempt of court is been used like others laws such as sedition and defamation to silence the opposition.
The provision of scandalising the court under section 2(b)(i) It's like curbing of dissent by judiciary. There are 3 concepts which differentiate The Contempt of court from other laws. There is a kind of violation of principles of natural justice and judges will judge their own case. Cases of contempt of court there is presumption of guilt as opposed to presumption of Innocence which is the basic principle of criminal law. The concept of strict liability is applied in the cases of contempt. The most striking point is that the court which means that it can from following certain formalities of Legal procedure. In The preamble of Contempt of courts Act 1971 it is mentioned to define and limit the power of courts in punishing for contempt of court. However it seems paradoxical as it gives enormous of powers in the hands of judiciary in addition to Article 129 of the Constitution of India which there is no implied or Express limitations on the inherent powers of the supreme court and therefore no limitations can be read into it. Both of these laws together give an enormous and invisible power to the court to determine as what amounts to contempt of it.
This seems to give support to the contention that judges in India are not accountable both in their personal capacity as well as in judiciary capacity. In the face of this enormous power the judges will indeed act like emperors as there is no one to judge the judges. This is particularly alarming in a scenario where the government in the centre has authoritarian tendencies. The natural and healthy friction which used to be maintained between the Judiciary and the executive has been set aside especially in the case of Supreme court which is acting more like a executive court. Using the power of contempt to punish those who criticise it. According to the 274th Law Commission report review of contempt of Courts Act 1971 under chairmanship of Justice B S Chauhan reported that 96,993 civil and 568 criminal cases pending before the Supreme Court and various High Courts. This huge number of cases pending can tell us about the loopholes within the system. This commission also pointed out the fact that there is no need to amend and bring any changes in the existing law of contempt.
The court must introspect the existing law itself as the upholder of liberties and freedom of the Citizens. It is for the court to decide whether it wants to use it's enormous power to uphold the rule of law and to make sure that it judgement, decree and order are implemented without any delay or wants to punish citizens for criticizing the conduct of the judges. Supreme Court has itself emphasised in the case of Aslam v. UOI AIR 1994 SCC 442 that government of laws and not of men as exists in India the Executive branch of Government bears a grave responsibility for upholding and obeying judicial orders. However now Supreme Court attitude towards the government is lenient.The Supreme Courts dignity and respect in minds of citizens is upheld more by the kind of judgements it gives rather than by what fellow Citizens say about the judiciary.
Justice Gajendragadkarhas said “Wise judges never forget that the best way to sustain the dignity and respect to their office is to deserve respect from the public at large by the quality of their judgements the fearlessness fairness and objectivity of their approach and by restraint , dignity and decorum which they observe in their judicial conduct.
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