Context: Judgement against Prashant Bhushan in Contempt of Court case has opened the pandora’s box regarding unbridled power of Court.
About Contempt of Court
According to Section 2 of the Contempt of Courts Act, 1971-

• “Contempt of court”means civil contempt or criminal contempt;
• “Civil contempt”means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;

“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; or
• prejudices, or interferes or tends to interfere 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.

Article 129 of the Constitution of India

• It provides that the Supreme Court of is a “court of record” and it has all the powers of such a court including power to punish for contempt of itself. Therefore, it is a constitutional power which cannot be taken away. Even the constituent power of judiciary itself may not do so otherwise basic structure of constitution will be offended.

Defense available against Contempt of Court

• Fair criticism: If a person publishes any fair comment on the merits of any case which has been heard and finally decided then it does not amount to contempt of court.
• Accurate report: If a person publishes a fair and accurate report of a judicial proceeding or any stage thereof then it does not amount to contempt of court..

Raising voice against the Judiciary: Criticism or Contempt

• People believe that the right to free speech is near absolute. However, there is a thin line separating criticism and contempt. Freedom of speech is a fundamental right guaranteed to every Indian citizen under Article 19(1) (a) of the Constitution which is also subject to reasonable restrictions under Article 19(2).

Supreme Court’s Judgement

• The Supreme Court has held that if a comment is made against the functioning of a judge, it would have to be seen whether the comment is fair or malicious.
• If the comment is made against the judge as an individual, the Court would consider whether the comment seeks to interfere with the judge’s administration or is simply in the nature of libel or defamation.
• The Court would have to determine whether the statement is fair, bona fide, defamatory or contemptuous. If statements which affect the functioning of courts amount to criminal contempt since public perception of the judiciary plays a vital role in the rule of law.

Landmark Judgments
S Mugolkar  v. Unknown (1978): The Supreme Court held that the judiciary cannot be immune from fair criticism and contempt action is to be used only when an obvious misstatement with malicious intent seeks to bring down public confidence in the courts or seeks to influence the courts.
Justice Sabyasachi Mukherjee (1988): Speaking for the Supreme Court, Justice Sabyasachi Mukherjee said if antisocial elements and criminals have benefited by decisions of the Supreme Court, the fault rests with the laws and the loopholes in the legislation. The Courts are not deterred by such criticisms.
Indirect Tax Practitioners Association  v. R.K. Jain (2010): The Supreme Court held that truth is also a defense in matters of criminal contempt if is bona fide and made in public interest.
Arundhati Roy  vs.  Unknown (2002): The Supreme Court held that a statement that the court willingly issued notice on an unsubstantiated petition affected the reputation and credibility of the court before the public and therefore held her guilty of contempt.
Road Ahead

• Judiciary should consider the contempt proceedings carefully and only conclude after examining its facts and the circumstances.