The issue of criminal contempt of court has been the subject of intense debate in recent times. It has been taken up for utterances by eminent people like ex-Supreme Court judge Markanday Katju while blogging about the apex court judgment in the Soumya rape case and again when he referred to a judge as Mister during the court hearing. It has also been taken up when plaintiffs, defendants or their lawyers have either made written or oral derogatory remarks against the court. But the Delhi High Court, in the case Kuldeep Kapoor vs Sushanta Sengupta, had initiated contempt proceedings against the accused for not answering questions posed by the court.

The matter came up before the Supreme Court in Court on its Own Motion vs Kuldeep Kapoor and ors. recently. The Supreme Court ordered that there can be no contempt in the instant case as “the behaviour of the appellants was not contemptuous.”

In the Delhi High Court, the order was written by Justice Swatanter Kumar (now retired) who had in the case Court on its own Motion vs Gulshan Bajwa had earlier held forth on contempt thus, “the meaning of the expression ‘contempt’ in normal parlance is an act of state of despising, the conduct that defies the authority or dignity of a Court. It is so because such conduct interferes with the administration of justice and is liable to be punished. Even in its liberal construction, it conveys a strong feeling of combined dislike and lack of respect. In order to protect the dignity of Court and ensure proper administration of justice, the Legislature has enacted ‘the Contempt of Courts Act’, which deals with the various situations and varied conduct of parties, counsel or any person to ensure that the orders of the court are implemented and administration of justice is not hampered.

“Every citizen has a Fundamental Right of personal liberty and freedom of expression. Despite such Right, this Act granted jurisdiction to the court to punish for contemptuous behaviour made in writing or verbally. While reasonably protecting these rights and circumventing the Court’s jurisdiction to punish for contempt, the initial Contempt of Courts Act, 1926 was replaced by the 1971 Act. The Legislature intended to caution the Courts that even where prima facie a contempt was committed, it still may not punish such a contempt if it had not substantially interfered with due course of justice and the defence was bona fide. Whatever be the enactment or the situation neither the Legislature is intended nor the courts vested with the duties of administration or dispensation of justice can condone acts of substantial interference with the administration of justice coupled with contempt in the face of the Court.

“These acts of contempt may be attempted by the party, their counsel and for that matter any person. The mode of committing such offence may be by filing applications, affidavits or submissions etc. Whosoever including an Advocate for a party, who are also called Officers of the Court, commits grave offences of contempt with the feeling of impunity and repeatedly, then there can hardly be any scope left for any Court to hold that they are entitled to the benefit of the provisions of Section 13 of the Act.”

While the above lucidly describes situations where contempt can be applied, the judge perhaps forgot to consider sub-section 3 of Article 20 of the Constitution while ordering contempt proceedings against Kuldeep Kapoor in the instant case. The sub-section states that “no person accused of any offence shall be compelled to be a witness against himself.” It is a well established principle of law that no one can be forced answer questions in court that can be used later to incriminate him in another case.

Kuldeep Kapoor and others were accused of submitting forged documents and affidavits in court and for providing false addresses in them. When the court asked him why he had provided false addresses in the papers submitted in court, the accused refused to answer the question. Taking this as an affront to the court that lowered its dignity and impeded justice, the court ordered contempt proceedings. But if the accused refused to answer the question, he was protected by sub-section 3 of Article 20 of the Constitution. He had allegedly submitted fabricated documents in court. If he answered the question about the address, whether in the affirmative or not, he could have been pulled up under Section 191 of the Indian Penal Code (IPC). So in refusing to be a witness against himself, the accused was protected under Article 20 and no contempt proceedings could be initiated for that reason alone.

The Supreme Court was clear about this and hence dismissed the case in Kuldeep Kapoor and ors. vs Court on its own Motion in very short order. While stating that the accused did not behave in a manner that could be construed as contemptuous, it also stated that proper notice was also not served on them under Section 15 of the Contempt of Courts Act, 1971. While the apex court did not refer to the right under Article 20, it is implicit in the manner in which the court chose to set aside the contempt order.

The court said “we feel that the entire exercise done under the Contempt of Courts Act, 1971 was not proper and therefore we set aside the impugned order imposing punishment upon the appellants.” Judges have been initiating contempt proceedings very liberally. This will have the effect of diluting the real reason for which the contempt section exists in the statute books. While thinking of contempt, judges should keep only one thing in mind – whether the accused has behaved in a manner that is likely to lower the prestige and dignity of the court, thereby making a mockery of the legal process, rule of law and the laws of the country. To pull up anyone for contempt just because he refuses to answer questions put to him by the court is not correct, especially if he or she has the right to remain silent under sub-section 3 of Article 20.

The writer is Editor-in-Chief of www.indiacommentary.com