Contempt of court Contempt of court is one of the exceptions mentioned in Article 19(2) of the Constitution. The Contempt of Courts Act, 1971, is the legislation which details what may be considered an offence. The civil offence of contempt is defined in section 2(b) as “wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.” The criminal offence of contempt is defined in section 2(c) as: 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 (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. Cases on contempt of court related to the internet are mostly filed under the criminal offence section, as the civil offence pertains to simple wilful disobedience towards a specific direction given by a court. As pointed out by constitutional scholar Gautam Bhatia,53 the section on the criminal offence of contempt can be interpreted either to mean that subsections (i), (ii) and (iii) have to be fulfilled, or that if merely sub-section (i) is fulfilled, the offence is made out. The court has over the years favoured the latter interpretation. There is no requirement that such scandalising or tendency to scandalise has to prejudice, interfere with or obstruct the administration of justice. The court has also not provided any guidelines to determine what constitutes scandalising the courts. This has led to charges being filed for, among others, content that is criticism of judgment. For example, a man was sentenced to a month’s jail time for “not only making scandalous statements against the judiciary, but also posting them on social networking websites”54 – as if the latter action compounds the offence. In this case, the accused had simply made statements to the effect that he 53 Bhatia, G. (2016). Offend, Shock, or Disturb. Free Speech under the Indian Constitution. New Delhi: Oxford University Press. 54 Mumbai Mirror. (2014, 2 December). Man gets one month in jail for contempt of court. Mumbai Mirror. www.mumbaimirror.indiatimes. com/mumbai/crime//articleshow/45342096.cms had lost faith in the judiciary, after a dispute over real estate was not working out in his favour. Similarly, a notice of contempt was sent to a former judge of the Supreme Court, Justice Katju, after he criticised the Supreme Court for its judgment on a case of rape and murder. The charges against the former judge were dropped after he delivered an apology.55 In February 2017, the Bombay High Court issued a suo moto order against comments made by a person in a Facebook post against the court’s order banning cell phones within the courtroom.56 This is criticism of a policy of the Court which has implications for access to judicial process and, arguably, to justice. Parody is affected as well. For example, “Bombay High Court” is a parody account on Facebook, offering a humorous take on goings-on in the Court. The creator of this account is reported to have been threatened for contempt.57 According to a news report, the Ministry of Law and Justice similarly forwarded a complaint about certain Facebook pages to the Secretary General of the Supreme Court and the Registrar General of the Delhi High Court, with a request to take “further appropriate action”. The complaint concerned satirical pages carrying the names of the Supreme Court and Delhi High Court: the pages were allegedly posting defamatory and contemptuous content that showed the judges and the judiciary in a poor light.58 In still another instance, the Bombay High Court, in response to a petition filed by the Bombay Bar Association and the Advocates Association of Western India, ordered the takedown of videos of court proceedings on YouTube and directed YouTube to not allow such content to be posted.59 This raises issues of intermediary liability, apart from whether criticism of the court’s orders itself is enough to “scandalise” a court. 55 Indian Express. (2017, 6 January). Supreme Court accepts Justice Markandey Katju’s apology, closes contempt proceedings. Indian Express. www.indianexpress.com/article/india/justice-markandeykatju-tenders-unconditional-apology-to-supreme-court-4461887 56 Chaudhari, K. (2016, 23 February). Facebook may face contempt motion in case on secretly shot Bombay high court video. Hindustan Times. www.hindustantimes.com/mumbai-news/ facebook-may-face-contempt-motion-in-case-on-secretly-shotbombay-high-court-video/story-vhuYUU2oQSBYUSzlhkQ2JK.html 57 Shukla, A. (2016, 31 December). Meet the man behind ‘Bombay High Court’ parody account on Facebook. Midday. www.mid-day. com/articles/meet-man-behind-bombay-high-court-parodyaccount-on-facebook-mumbai-news/17873159 58 Nair, H. (2016, 23 January). Centre presses dislike on anti-court facebook pages. India Today. www.indiatoday.intoday.in/story/ centre-presses-dislike-on-anti-court-facebook-pages/1/577672. html 59 Ibid. INDIA / 59