Does Burning the Effigy of a Judge amount to Contempt? Discussing the law in light of the infamous Odisha Saga

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Recently, the Odisha State Bar Association was in the news for an alleged offence of the contempt of court. The lawyers of the High Court blocked the cars of the judges from entering the High Court, shouted derogatory slogans  and even burnt the effigy of the then Chief Justice of India, Justice Dipak Misra along with the Chief Justice of the High Court. This protest was in response to a Supreme Court verdict wherein the Court directed the High Court Bar Association to resume court work and refrain from going on strike. This verdict did not sit well with the association, which decided to protest.

This protest raises two important questions. First, given that contempt of court is an offence in India, whether burning the effigy of Judge amounts to the same. Second, whether lawyers have a right to go on strike. To answer these queries, this I shall through this post briefly explain the concept of contempt of court and the provisions governing the same. Subsequently, the Odisha incident shall be tested on the touchstone of the law.

What is Contempt of Court?

Contempt of Court [“contempt”] in common parlance stands for any act which defies the authority or dignity of the court. Any act in furtherance of the above is prohibited in law as it is believed that doing so ensures respect for the courts in the eyes of the public by guaranteeing sanction against conduct which might assail the honor of the courts. Furthermore, it allows the courts to discharge their functions without fear or favor.[1]

The Constitution of India under Article 129/215 empowers the appellate courts i.e. Supreme Court[2] and the High Courts as Courts of Record respectively.[3] The Articles also empower these courts to punish those responsible for its  contempt. In case contempt of a subordinate court has been committed, the High Court is empowered to initiate the same under Article 235 of the Constitution, which entrusts it with a supervisory control over subordinate courts.

It is to be noted that Contempt of Court also finds a mention in Schedule VII of the Constitution, which lays down the particulars/subject matters on which Parliament/State legislatures can make laws. List I (which lists down subject matters exclusive for the Parliament) has contempt of court of the Supreme Court under Entry 77 whereas Entry 14 of the List III (which lists down subject matters on which both the Parliament and state legislature can legislate) discusses Contempt of other Courts except the Supreme Court.

In furtherance thereof, the Parliament has passed the Contempt of Courts Act, 1971 which regulates the offence in detail.

Contempt of Courts Act, 1971:

The Contempt of Courts Act [‘Act’] was passed because it was felt that the existing law on contempt was uncertain and undefined.

A. What is Contempt under the Act-
The Act enunciates on the idea of contempt in two categories –  civil and criminal contempt. Civil contempt is defined as 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. In simpler words, if a person directed by a Court to act/refrain from acting in a certain manner, refuses to do so, he/she commits a civil contempt. The punishment for a civil contempt is a penalty or in rare cases detention in a civil prison for a maximum period of six months. [§ 12 (3)].

Criminal contempt on the other hand is defined as the publication, which may be in the form of words (spoken or written), signs or any visible representation which:

a. scandalizes or tends to scandalise, or lowers or tends to lower the authority of, any court; or
The term ‘scandalizes the court’ which is the most contentious and relied upon sub-part of the section has been interpreted to mean an attack on individual judges of the Court without referring to particular cases. If an attack on the Court/Judge is unwarranted and aimed at casting defamatory aspersions on the character/ability of the Judge it amounts to criminal contempt. The test that can be culled out is:

  • The act undermines the authority of the Courts and public confidence in the administration of justice;
  • The act is aimed at defaming the Judge/Court by attacking their character or ability. [Hari Singh Nagra v. Kapil Sibbal & Ors.]

b. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding;
A person may prejudice or interfere with judicial proceedings by inter alia prejudicing fair trial, obstructing officers of Courts etc.

c. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
A person may obstruct or interfere with the administration of Justice by tampering witnesses, abusing the process of Courts etc.

The punishment of criminal contempt is imprisonment of six months or fine or both [§ 12].

One should note however, that fair criticism of a judgment/order (§ 5) , fair reporting (§4) and even an act of defaming a Judge in his personal capacity (i.e. not in relation to his office) are not acts of contempt [Baradakanta Mishra v. The Registrar of Orissa High Court & Anr.]

The words of Justice Douglas should be remembered while dealing with an alleged case of contempt:
the law of contempt is not made for the protection of Judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.”[Craig v. Harney, 331 US 367 (1947)]

B. Who may institute a contempt case?
A case of contempt can be initiated in three ways:

  • By SC/HC on its own motion
  • On a motion by the Advocate General/ any other designated law officer (for a HC of a Union Territory)
  • On a motion by any other person with the consent of the Advocate General (for the HC)/ any other designated law officer (for a HC of a Union Territory)

C. Constitutional Validity of the Act:
A follow up question that might arise after reading the above is regarding the impact of Contempt of Court on the freedom of speech and expression which is a protected fundamental right. I have discussed previously in my posts that India does not guarantee an absolute right to freedom of speech to its citizens and the same can be reasonably restricted on certain grounds. One such ground relates to the contempt of court.

Therefore, one should remember that the Constitution which gives a citizen the right to freedom of speech and expression also gives the Judiciary the power to check the misuse of the said right. Therefore, any speech that damages the dignity of the Courts or interferes with the ‘administration of justice’ is punishable.

The Orissa High Court controversy:

I began this post with a brief description  of the recent events which unfolded at the premises of the Orissa HC wherein the effigies of Chief Justice Dipak Misra (retired) and the Chief Justice HC were burnt and the lawyers went on a strike protesting against a Supreme Court order. The looming question that arises is whether such an act amounts to contempt. The answer is in the affirmative.

a. Burning the effigy of Judges-
As mentioned earlier, if an act scandalizes the Court, it amounts to contempt. Scandalizes the Court here meant any act that undermines the authority of the Court or public confidence in the Judiciary. The act of burning the effigy would fall  in this category.

A similar situation arose in 2017 before the Bombay High Court in On its Own Motion v. State of Maharashtra, wherein the Kolhapur Bar Association had burnt the effigy of the HC Chief Justice. The Court categorically held that acts of burning the effigy aggravates contempt and lowers the dignity of the Court. It should also be noted that the instant act lowers the dignity of the legal profession as well, as the perpetrators were lawyers themselves.

The trend of the Courts has been to come down heavily when acts of illegality are especially committed by members of the Bar.

b. Can lawyers go on strike?
An interesting question this particular controversy raises is the legality of strikes undertaken by lawyers. Strike has been recognized as a protected right of several classes of people namely industrial workers, government employees etc. However, there are certain classes of people that do not enjoy this right given the special nature of their profession. Lawyers/Advocates fall in this category.

The law on this regard is covered squarely in the decision of Ex-Captain Harish Uppal v. Union of India wherein the Court categorically held that lawyers have no right to strike or call for a boycott. The justification for the above is the duty of the lawyers towards the Court and their Client involves their assistance in administration of justice and by refraining to work that duty is unfulfilled.

However, there is a rare exception in cases where the dignity, integrity and independence of the Bar/Bench are at stake. In such cases, a strike/protest to abstain from work can be called for, however only for a day. The final decision on whether the issue was bona fide and grave, shall be taken by the Court.

A brief summary of the law on strike by lawyers is provided below*:

Table

Therefore, given the position of law it becomes clear that the incidents in Odisha amount to a clear case of Contempt of Court. The Courts in the past have held accountable the office bearers of the Bar Association that called the strike; however penalty or imprisonment has been avoided if an unequivocal apology has been tendered.

Interestingly, no case of contempt has been filed yet in the concerned Court neither has the Court taken up the issue suo moto (on its own accord). I sincerely hope that before the issue escalates, the Bar Association renders an apology and the matter is put to rest, as the only outcome of this incident is disrepute, that which the legal profession must be bereft of.

[The opinions expressed in the article are solely of the author.]

[1] In Re : Vinay Chandra Misra, AIR 1995 SC 2348

[2] The Supreme Court has the power to punish for contempt even under its inherent jurisdiction under Article 142.

[3] The HC & SC are called a ‘Court of Record’ because their proceedings and judgments are recorded and stay in existence forever.

* The table is based on the law as laid down in Ex-Captain Harish Uppal v. Union of India

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