In the wake of the recent incident of hurling shoe against the Chief Justice of India it is time to revisit the Contempt procedure of the Supreme Court. Contempt is a procedure that evolved to preserve the integrity of the Court as an Institution which upholds Justice, as in the words of Krishna Iyer J – A Cynosure Institution (Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi). It is the authority of the Court to penalize or punish anyone who looks down to that extent of offending or disobeying the Court. This could be sourced back from the time of Kautilya known for his political book ‘Arthashastra’ regarding the sanctity of the King and his council and the later Colonizers who crystallized this procedure through legislations such as Contempt of Courts Act, 1926 which got repealed and re-enacted after independence in 1952 being replaced by the 1971 Act.
The 1971 enactment addressed for the first time the definition of ‘Contempt’ under Section 2 (a) which remained ambiguous since the inception of contempt procedure. However, the definition is categorical in nature than explanative which segregates “civil contempt and Criminal Contempt”. While ‘Willful breach’ of the Court’s decision amounts to civil contempt, criminal contempt involves deliberate publication intending to insult the institution or doing an Act that damage the reputation of the Institution resulting in lowering the authority of the Court.
Besides, the authority to penalize or punish for the contempt of the Supreme Court originates from the Constitution of India under Article 129 and Article 142(2) indicating that Constitution recognizes the significance of the Contempt Authority to be given to the highest Forum of the country which would ultimately reflect on the belief system that citizens hold on the judiciary as an institution with its capacity to give justice (Dr. D.C. Saxena v. CJI). However, the exercise of this constitutional authority should be sparingly used (Supreme Court Bar Association v. UOI) by the Supreme Court as reiterated in the Preamble of the legislation as “to define and limit the powers of certain Courts” as contempt is a reasonable restriction on the right to speech and expression and liberty which should be interpreted strictly (E.M.S. Namboodiripad v. T.N. Nambiar).
Although in the implementation of contempt authority one has to differentiate whether the alleged statement or act was against the Court or the judge in his individual capacity as contempt proceedings could be initiated only in the former and not the latter case, in practice the Judge’s identity is so intertwined with the reputation of the Institution itself that it is difficult the differentiate it (Prashant Bhushan case). So the determining test to differentiate is whether an insult on the Judge is during the course of the time when he is acting in his judicial capacity, if not the contempt proceedings could not be initiated.
Crimes are generally inexcusable at the hands of the victim as it is presumed to be against the State. Similarly, Criminal Contempt is an offence and through the lens of the above mentioned general principle of Criminal Law it is presumed it is not excusable at the hands of the individual judges as it is done against the Judiciary as an Institution which is an organ of the State. Keeping these cues in mind, the recent act of CJI to excuse the Act done against him which is an act of “contempt on its face” is not in terms with the legislation as well as the Constitution. The Bench led by Surya Kant J in hearing the contempt proceedings should take into consideration the test whether the act affects the Integrity of the Court and the act deserves the criminal proceedings for Contempt irrespective of CJI’s opinion to excuse it or not.
Uphold the Justice system with its integrity!
by:
Adhirai Devi S
Assistant Professor of Law
Asian Law College (AEG)