The law relating to contempt of courts is once again in focus. Supreme Court lawyer Prashant Bhushan is facing contempt proceedings in the apex court for making allegations of corruption against some Supreme Court judges in an interview in September 2009. Tarun Tejpal, Managing Editor of Tehelka is also facing charges for publishing this interview. In a recent development, former Union Law Minister Shanti Bhushan - Prashant's father - has also attempted to implead himself in the case by repeating the same allegations.

The law in question, The Contempt of Courts Act, 1971 defines 'contempt', allows for a summary trial, and prescribes the maximum punishment for those found guilty - imprisonment up to six months together with a fine. Disobeying court orders, interfering with judicial proceedings, or obstructing the administration of justice all amount to contempt of court. If those three are fairly easy to understand, there is a fourth provision which leaves great room for discretion - scandalising or lowering the authority of the court - and this has been the problem provision in many cases.

Courts need the power to see that their directives are implemented, that the functioning of the courts is not disrupted, that parties in a trial are not threatened, that witnesses or court officials are not offered inducements and so on; in short, the power is needed to ensure that the judicial process works. This is an objective of the law of contempt. However, Dr Rajeev Dhavan, an eminent lawyer who has written extensively on contempt and the press explains, "(t)he overall purpose of the law of contempt is not just to make the judicial process work, but to protect, sustain and enhance the majesty of courts and the justice system." The contempt of 'scandalising the court', it seems, has much to do with this purpose.

Pre-independence law

The Act of 1971 does not clarify what constitutes scandalising the court. Its predecessors, the Act of 1952 and the Act of 1926, did not even define contempt. However, courts in colonial India had adopted the idea of contempt even earlier from English common law and assumed powers for punishing it following the precedent of English courts. A couple of examples will illustrate the sensitivity of the colonial courts to any public criticism of judges and the judiciary.

The Bengalee published an article in 1883 after the conclusion of a case criticising the zubberdasti (high handedness) of a judge of the Calcutta High Court in ordering a sacred Hindu Saligram to be physically produced in court. The court found the article to be contemptuous and defamatory of the judge, and sentenced the editor of the newspaper, Surendra Nath Banerjee, to prison.

The Amrit Bazar Patrika reported a speech made in 1935 in the Legislative Council, which contained some general criticism of the judges of the Calcutta High Court. The following extract from the report came in for scrutiny by the Court:

"We are glad to find that in the Bengal Legislative Council yesterday there was a discussion about administration of the Calcutta High Court. Every word of Mr. N.K. Basu was true. It is so unfortunate and regrettable that at the present day the Chief Justice and the Judges find a peculiar delight in hobnobbing with the Executive, with the result that the judiciary is robbed of its independence, which at one time attracted the admiration of the whole country. The old order of things has vanished away. We wish the Chief Justice and the Judges appreciate the sentiments of the public. The generation that has gone by should be an ideal to them."

While the Court could not take any action on the proceedings in the legislative council, it determined that the article in the Amrit Bazar Patrika was capable of "great public mischief" and sentenced the editor to prison for contempt of court.

The promise of the Constitution

Article 19 of the Constitution of India guaranteed the right to freedom of speech and expression, but also allowed restrictions on this right to be imposed by law, including any Law of Contempt, provided only that the restrictions were reasonable. Articles 129 and 215 of the Constitution explicitly spelt out the power of the Supreme Court and High Courts to punish someone for contempt.

The law, when it was ready - The Contempt of Courts Act, 1952 that replaced the Act of 1926 - did not define 'contempt'. This omission on the part of the legislature was apparently deliberate, and designed to maintain the elastic character of the law, to enable its application over a wide field by the courts. Clearly, the immediate concern of the legislature of that period was to preserve continuity in the powers of the judiciary.

An interesting contempt prosecution from this period is that of the Telugu weekly, Praja Rajyam, published at Nellore, for an article it carried under the caption: "Is the Sub-Magistrate, Kovvur, corrupt?" The article stated that the person in question was known in the locality as a bribe taker, cited instances where he had either taken bribes or put parties to undue harassment and concluded with the appeal: "Will the Collector enquire into the matter and allay the public of their fears?"

The Publisher and Managing Editor of the weekly appealed to the Supreme Court against a Madras High Court judgment finding him guilty of contempt. Dismissing the appeal (heard in 1952), a Constitution bench of the Supreme Court explained why the editor was indeed guilty of contempt:

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

The Government acknowledged, under pressure of public opinion, that the law of contempt is "somewhat uncertain, undefined, and unsatisfactory" and impinged upon the fundamental rights of the citizens.

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The appellant, though he took sole responsibility regarding the publication of the article, was not in a position to substantiate by evidence any of the allegations made therein. He admitted that the statement was based on hearsay. Rumours may have reached him from various sources, but before he published the article, it was incumbent upon him as a reasonable man to attempt to verify the information he received and ascertain, as far as he could whether the facts were true or mere concocted lies. He does not appear to have made any endeavor in this direction. As the appellant did not act with reasonable care and caution, he cannot be said to have acted bona fide, even if good faith can be held to be a defense at all in a proceeding for contempt."

The judgment identified the issues that were important in the defense against contempt of scandalizing the court - 'public interest', 'truth', and 'good faith'.

It took a decade for the Government to acknowledge, under pressure of public opinion, that the law of contempt was "somewhat uncertain, undefined, and unsatisfactory" and impinged upon the fundamental rights of the citizens - the right to personal liberty and the right to freedom of expression. The Sanyal Committee was set up in 1961 to examine the law and suggest reforms. It took another decade for the recommendations of this committee to be implemented in the Contempt of Courts Act, 1971.

The Act of 1971 offered some guidelines for reporting and comment on judicial proceedings that would not attract contempt charges. For example, "fair and accurate report of a judicial proceeding" and "fair comment on the merits of any case which has been heard and finally decided" would not be contempt. The Act also provided that contempt would not be punishable unless it "substantially interferes, or tends substantially to interfere with the due course of justice". Notwithstanding these improvements, the definitions of contempt did not do away with the uncertainty. 'Scandalising the Court' was contempt, but what constituted 'scandalising the Court'?

Justice Krishna Iyer captured the problems inherent in the contempt law, in a 1974 judgment, in these colourful phrases: "A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and public good and permits a process of brevi manu conviction, may unwittingly trench upon civil liberties ..."

These problems, he argued, imposed a special responsibility on the higher judiciary to be vigilant and protect free speech "even against judicial umbrage". The subsequent judgment of Justice Krishna Iyer in the Mulgaonkar case in 1978 (where contempt charges against the Indian Express were withdrawn) has been seen as the beginning of a liberal trend in the treatment of contempt by scandalizing the court. However, this is not the only or even dominant trend.

"Truth" as defense

The most recent attempts to reform the contempt law started with the recommendation of the National Commission to Review the Working of the Constitution (NCRWC) in 2002 to allow 'truth' as defense in matters of Contempt of Court. While making this recommendation, the Commission observed:

"Judicial decisions have been interpreted to mean that with the law as it now stands, even truth cannot be pleaded as a defense to a charge of contempt of court. This is not a satisfactory state of law. It would, indeed be ironical if, in spite of the emblems hanging prominently in the court halls, manifesting the motto of Satyameva Jayate, in the High Courts and Yatho dharma statho jaya in the Supreme Court, the courts could rule out the defence of justification by truth."

The NCRCW recommendation was not particularly revolutionary. In the UK and Australia, truth as defense to a charge of contempt by scandalising had been available for several decades. The recommendation eventually resulted in a bill to amend the law related to contempt.

The Parliamentary Standing Committee on Personal, Public grievances, Law and Justice (Standing Committee) examined the Contempt of Courts (Amendment) Bill, 2004 and provided several interesting insights in its report. The Government had proposed to amend the 1971 Act by adding the clause: "The Court may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defense is bona fide". However, the Standing Committee felt that the requirement that the 'truth' used as justification should be in public interest was an additional burden imposed on a person accused of contempt and would "virtually defeat the objective of the proposed legislation"; therefore, it recommended that the term 'in public interest' be deleted.

The law today

The Government however did not accept this demand and the contempt law was amended in 2006 in line with the above proposal. In the law as it now stands, while a person accused of contempt can seek his defense in "truth", he must get the permission of court for this defense after satisfying it that this truth will be in public interest and that he is acting bona fide, that is, with reasonable care and caution.

Other countries have progressed to a more liberal regime. In UK, prosecuting a person for contempt for scandalising the court is considered virtually obsolescent and the Courts have rarely used this power for several decades. In the US, the offense of scandalizing the court is unknown and US Courts initiate action for contempt only when they determine that there is 'clear and present danger' to the administration of justice.

In our country, it is still too early to assess the impact of the recent changes in the law. However, what is clear is that only the judiciary, of its own accord, can make the move towards a more liberal interpretation of contempt that allows healthy criticism that can aid its own development as an institution.