Author: Akash Dey Bhowmick; a student at St. Xavier’s University, Kolkata
ABSTRACT:
The constitutional validity of contempt of court is a very challenging yet interesting aspect. Contempt of court is held as a serious legal offence in India. Any action or behaviour that challenges, disobeys, or interferes with the authority or dignity of a court is considered as a contempt of court.
The law of contempt aims at maintaining the integrity and sanctity of the judicial system ensuring that the court’s orders and judgments are respected and followed.
INTRODUCTION:
The Indian Constitution under its 7th Schedule gives exclusive power to the Parliament to make laws in regards to matters mentioned under List I and the power to make laws with respect to matters under List III is shared by both the Parliament and State legislatures, however in cases of conflicts, the law made by the Parliament prevails. An exception to this rule is under Article 254(2) where it is stated that a law made by the State legislature having the Presidential assent containing provisions not repugnant to the existing laws made by the Parliament may prevail.
Now, contempt of court falls under Entry 77 of List I and Entry 14 of List III namely, thereby, showing that both the Parliament as well as the state legislatures are empowered or competent to legislate on the subjects individually as well as in a shared manner, the Parliament can do so individually, while the state legislatures can do so too sharing the power with the Parliament.
However, it is to be noted that the Supreme Court and High Courts must retain the power to punish for contempt, and this power cannot be transferred to any other court. Articles 129 and 215 of the Constitution emphasise the need for effective powers in the Supreme Court and High Courts to deal with contempt cases. The Parliament’s power to legislate in this regard must not impede the constitutional provision’s purpose.
Moreover, Article 142(2) and Article 144 endows more such power and aid to the Supreme Court where the former enables the Supreme Court to investigate and punish any person for contempt and the latter advises all civil and judicial authorities to act in the aid of the Supreme Court.
In the case that is going to be analysed herein i.e. Noordeen Mohammed v. A.K. Gopalan, the constitutional validity of contempt of court was challenged. This case established that the Contempt of Courts Act, 1971 was valid as it did not contravene the existing law of contempt when enacted. Several cases have raised concerns whether the Act satisfies the twin test that resides in Article 14 which requires that the law must be fair, reasonable, and not arbitrary, fanciful or evasive. Along with that, what was furthermore necessitated was that the classification must satisfy the test and there must be a nexus between the classification done and the objective to be attained.
The existing law relating to contempt of court is considered reasonable and therefore does not violate the fundamental right of freedom of speech and expression guaranteed under Article 19(1)(2) of the Constitution.
ANALYSIS OF THE A.K. GOPALAN V. NOORDEEN MOHAMMED CASE:
In A.K. Gopalan v. Noordeen: (AIR 1969(2) SCC 734) (decided in 1969 before the 1971 Act), the Supreme Court held that a criminal proceeding is imminent only when an arrest had taken place.
If a prejudicial publication is made regarding a person who has been arrested by the police, then the right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution must give way to the right of the person to a fair trial without any prejudice and any prejudicial publication in the press after arrest.
In this case what unfolded was that a statement was published in a newspaper subsequent to the arrest of the respondent i.e. Noordeen Mohammed against which he moved the High Court for contempt of court. The appellant i.e. A.K. Gopalan along with the editor, the printer and the publisher of the newspaper were the ones against whom the respondent brought the charges of contempt of court under section 2(c) of the Contempt of Court Act, 1971. Section 2(c) of the Act states that any such act which scandalises, prejudices and interferes in the authority of the court through any sort of publication while the due course of the judicial proceeding and the administration of justice is still to attain its entirety or completion is an instance of criminal contempt.
The High Court held all of them guilty of contempt of court on the ground that the publication was made after the filing of the first information report; however, the Supreme Court while allowing the appeal of the first appellant A.K. Gopalan to stand, dismissed the appeals of the editor, the printer and the publisher respectively.
The reason why the Supreme Court held that the first appellant did not commit criminal contempt was that the day when he made the statement, there was no imminent criminal proceeding since merely a first information report was lodged and the accused was not arrested yet. Hence, the first appellant by no means carried any potential instrumentality to prejudice a sub-judice matter and there was no evidence either that the first appellant had any role or contribution in getting the statement published after the arrest.
On the other hand, the editor along with the publisher and the printer were held liable of criminal contempt because criminal proceeding was already imminent with the arrest of the accused being already made and their publication coming subsequent to it; thereby carrying the potential to prejudice the interest of the accused since there still remains a remote possibility of him being released later on. Even though the newspaper publication did not mention the name of the accused, it did indicate the material fact that the person who committed the murder was acting in pursuance to a conspiracy. This particular aspect in itself carried with it the grave prospect of putting the public against the accused in a matter that is still under trial and is under consideration by a judge or a court.
It is also important to note that a dissenting opinion was given by Judge Mitter J., who referred to the case of Smt. Padmavatti Devi v. R.K. Karanjia, AIR 1963 MP 61 to establish that the law of contempt should be available in cognisable offences from the time when the first information report is filed; therefore this case dealing with a murder which in turn is a cognisable offence calls for the law of contempt to be applicable from the time of filing of the first information report itself. However, this view went on to be superseded by the Supreme Court decision in A.K. Gopalan v. Noordeen.
The Supreme Court judgment in A.K. Gopalan lays down the following two essentials –
(1) a criminal proceeding is deemed imminent once an arrest has been made
(2) if a prejudicial publication is made regarding a person who has been arrested by the police, then the right to free and fair trial as guaranteed under Article 21 of the Indian Constitution overrides the right to free speech and expression guaranteed under Article 19(1)(a)
CONCLUSION
Article 255 of the Indian Constitution ensures the continuity of the Contempt of Court Act, 1971. Additionally, Section 10 of the Contempt of Court Act, 1971 further clarifies that High Courts too shall have the power and authority to exercise its jurisdiction for contempt cases.
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