Contempt, Criticism and Accountability

In one line

The power that protects a court from interference is also the power it uses against its critics, and the four systems have drawn the line in four places.

In the wording a student can write in an exam: the contempt power is the sharpest question of judicial accountability, because contempt of court is conduct that interferes with the administration of justice, comprising civil contempt, being wilful disobedience of a court's order, and criminal contempt, which in India includes scandalising or lowering the authority of a court, prejudicing a pending proceeding, and obstructing the administration of justice.

The Indian power

Article 129. The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Article 215. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Article 142(2) gives the Supreme Court power, subject to any law made by Parliament, to make orders for securing the attendance of persons and the investigation or punishment of contempt of itself.

Article 19(2) lists contempt of court as one of the grounds on which a reasonable restriction may be placed on freedom of speech, so the restriction is written into the rights chapter.

The power is constitutional, not statutory. The Contempt of Courts Act 1971 regulates its exercise and prescribes limits, and the settled position is that the Act cannot take away a power the Constitution confers, though the Court applies its safeguards.

The 1971 Act, and what changed in 2006

Civil contempt is wilful disobedience of a judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking given to a court.

Criminal contempt is the publication of any matter or the doing of any act which scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or prejudices or interferes with the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

The defences. Innocent publication and distribution; fair and accurate reporting of judicial proceedings; and fair criticism of a decided case.

Truth. Until 2006 truth was not a defence to a charge of scandalising. The Contempt of Courts (Amendment) Act 2006 made it one, provided the court is satisfied that it is in the public interest and that the request to invoke the defence is bona fide. A book that says truth is no defence in India is stating the pre-2006 law.

Punishment. Simple imprisonment up to six months, or a fine up to two thousand rupees, or both, with a discharge on apology.