India: Criminal Contempt Of Court And Criminal Defamation – Initiation Of Simultaneous Proceedings : Yes Or No

Last Updated: 5 December 2016
Article by Vijay Pal Dalmia, Partner and Rajat Jain

A question is often asked, can action for Criminal Contempt of Court and Criminal Defamation, be initiated simultaneously. A tricky question, the answer of which will depend upon the facts and circumstances of each case.

In order to understand the nuances between Criminal Contempt of Court and Criminal Defamation, it is necessary to understand the concept of criminal contempt of Court and criminal defamation, as provided under the Indian Laws and the precedents.

Under The Contempt of Courts Act, 1971, the definition of criminal contempt of Court has been provided under Section 2(c), which states as under:

"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-

  1. Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or
  2. Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding , or
  3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner."

The principle and purpose of the Contempt Law is to maintain and uphold the dignity and respect of the Courts, in the eyes of the public and to deter men from offering any indignities to a court of justice. Therefore, if any person makes any statement (written or spoken) which tends to obstruct the administration of justice or scandalizes or lower the authority of any Court, it will amount to criminal Contempt of Court. The definition of criminal contempt includes within its folds remarks and allegations made against judges. The rationale behind this is that it raises questions about the integrity and authority of the judiciary and thus obstructs public confidence in it as an institution, thereby disrupting the administration of justice. The law of contempt is intended to preserve the authority of the judicial process, judiciary and the Courts reputation.

In the case of Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Ors., MANU/SC/0478/1991: 1991CriLJ3086, a three Judge Bench of the Hon'ble Supreme Court observed as under:

"The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of court. The public have a vital stake in effective and orderly administration of justice. The Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with."

The definition of Defamation has been provided under Section 499 of the Indian Penal Code, 1860:

"Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

  • First Exception.—Imputation of truth which public good requires to be made or published.
  • Second Exception.—Public conduct of public servants.
  • Third Exception.—Conduct of any person touching any public question.
  • Fourth Exception.—Publication of reports of proceedings of Courts.
  • Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned."

The aim and purpose of law of Criminal Defamation, on the other hand, is to prevent the person from maligning or harming the reputation of other person, with malafide intentions, as right to reputation is an important facet of right to life guaranteed under Article 21 of the Constitution of India. To constitute the offence of criminal defamation, there has to be imputation and it must have made in the manner as provided in the provision with the intention of causing harm or having reason to believe that such imputation will harm the reputation of the person about whom it is made. Causing harm to the reputation of a person is the basis on which the offence is founded and mens rea is a condition precedent to constitute the said offence.

In Jeffrey J. Diermeier and Anr. Vs. State of West Bengal and Anr., MANU/SC/0390/2010:(2010) 6 SCC 243, a two-Judge Bench of the Hon'ble Supreme Court deliberated on the aspect as to what constitutes defamation Under Section 499 of Indian Penal Code and in that context, held that there must be an imputation and such imputation must have been made with the intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged.

Recently, the Hon'ble Supreme Court in the case of, Dr. Subramanian Swamy vs. Union of India (UOI), Ministry of Law and Ors., MANU/SC/0621/2016, has upheld the constitutional validity of the criminal defamation under the provisions of Sections 499 and 500 Indian Penal Code, 1860.

The action for criminal defamation can be initiated by an aggrieved person against the accused, whereas for contempt of Court, action can be initiated suo moto by Supreme Court or High Court, or on a motion made by the Advocate-General/ Law Officer, or on a reference made to High Court by the subordinate court, as the case may be.

The Constitutional Bench of the Hon'ble Supreme Court while deciding the case titled as Brahma Prakash Sharma and Ors. Vs. The State of Uttar Pradesh, MANU/SC/0020/1953, held that:

"The position therefore is that a defamatory attack on a judge may be a libel so far as the judge is concerned and it would be open to him to proceed against the libelor in a proper action if he so chooses. If, however, the publication of the disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such court, it can be punished summarily as contempt. One is a wrong done to the judge personally while the other is a wrong done to the public. It will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court's administration of justice, or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties. It is well established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely, or tends in any way, to interfere with the proper administration of law"

The Hon'ble Supreme Court in the case of In Re: S. Mulgaokar, AIR1978SC727: MANU/SC/0067/1977, observed as under:

"The third principle is to avoid confusion between personal protection of a libeled judge and prevention of obstruction of public justice and the community's confidence in that great process. The former is not contempt, the latter is, although overlapping spaces abound.

30. Because the law of contempt exists to protect public confidence in the administration of justice, the offence will not be committed by attacks upon the personal reputation of individual judges as such. As Professor Good hart has put it:

Scandalising the court means any hostile criticism of the " judge as judge; any personal attack upon him, unconnected with the office he holds, is dealt with under the ordinary rules of slander and libel.

Similarly, Griffith, C. J. has said in the Australian case of Nicholls (1911) 12 C.L.R. 280 that:

In one sense, no doubt, every defamatory publication concerning a judge may be said to bring him into contempt as that term is used in the law of libel, but it does not follow that everything said of a judge calculated to bring him into contempt in that sense amounts to contempt of Court."

The Supreme Court in the case of Bathina Ramakrishna Reddy v. State of Madras, AIR1952SC149: MANU/SC/0074/1952, stated as under:

"A libelous reflection upon the conduct of a judge in respect of his judicial duties may certainly come under section 499 of the Indian Penal Code and it may be open to the judge to take steps against the libeler in the ordinary way for indication of his character and personal dignity as a judge; but such libel may or may not amount to contempt of court. As the Privy Council observed in Surendra Nath Banerjee v. The Chief Justice and Judges of the High Court,I.L.R. 10 Cal. 109 "although contempt may include defamation, yet an offence of contempt is something more than mere defamation and is of a different character".

(The aforesaid case has been overruled by the Hon'ble Supreme Court but the above observation was left untouched.)

Further, the Hon'ble Supreme Court in the case of Haridas Das vs. Smt. Usha Rani Banik and Ors. and Apu Banik, MANU/SC/3005/2007, observed that though certain imputations against the Judge may be only libelous against that particular individual, it may at times amount to contempt also depending upon the gravity of the allegations, therefore, apart from the fact that a particular statement is libelous, it can constitute criminal contempt if the imputation is such that the same is capable of lowering the authority of the Court. The gravity of the aforesaid statement is that the same would scandalize the court.

From the above, it is clear that the contempt of court jurisdiction is not exercised to protect the dignity of an individual Judge, but to protect the administration of justice from being maligned and with respect to a defamatory attack on a Judge is concerned, it would be open to him to proceed against the libeler in a proper action, if he so chooses. Judiciary is an indispensable tier in the administration of justice. Judiciary has Special role in the society. It deserves protection against baseless criticisms against itself. Thus, although defamatory allegations made against a judge may constitute contempt of court, the two are still distinguishable. The presence and extent of mens rea will play an important role in determining that whether the offence of defamation or the Contempt of Court is criminal or not.

That since these two concepts coincide, it is possible to initiate proceedings for both where the facts of case allow, and when the effects of the act committed overlap in that regard. Thus, the facts that constitute defamation may amount to contempt of court as well in certain situations. Hence, there can be simultaneous proceedings of Criminal Defamation and Criminal Contempt of Court, considering the facts of each case.

Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

© 2016, Vaish Associates Advocates,
All rights reserved
Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy Marg New Delhi-110001 (India).

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