Contempt of Court

The contempt of Court has been defined as any conduct that that tends to bring the authority of law into
disrespect and administration into disregard.

Section 2(a) of the Contempt of Courts Act, 1971 defines contempt as either civil contempt or criminal
contempt. And it is generally felt that existing law as regards to contempt is uncertain, undefined and
unsatisfactory. The entire jurisdiction of punishment for contempt touches upon two important fundamental
rights of the citizens, namely, the right to personal liberty and the freedom of expression. It is therefore,
essential to analyse it correctly.

The Committee under the Chairmanship of Late H N Sanyal, the then additional Solicitor General was
constituted to examine the law and problems related to it in India in line with other foreign countries. The
committee took note of the importance given to freedom of speech and expression in the Constitution of India
and need for safeguarding status and dignity of Courts in administration of justice.

Article 129 and 215 of the Constitution of India empowers the SC and HC respectively to punish for their
contempt. The power is not subjective to Article 19(1) (a).

There are two types of contempt in India:

Civil Contempt: It is defined under Section 2(b) of the Act, as wilful disobedience to any judgement, decree,
order, direction, writ or other process of the Court or wilful breach of an undertaking given to the Court.

Criminal Contempt: It is defined under Section 2(c) of the Act, as any publication (whether by words, spoken or
written, or by signs, or visible representation, or otherwise) of any matter or the doing of any other which:

i. Scandalises or tends to scandalise, or lowers or tends to lower the authority of the court,
ii. Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding,
iii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice
in any other manner.

In the case of Arundhati Roy, the Court has clearly stated that, the criticism which undermines the dignity of
the Court can’t be said to be a fair criticism and does not fall under the ambit of freedom of speech and
expression as is guaranteed by Article 19(1)(a) of Constitution of India. Thus prosecution of persons for
scandalising the Court is not prohibited by Constitutional right of freedom of speech and expression under
Article 19(1)(a). However, Justice Bharucha has marked that Ms Roy had brought disrepute to the Court and
nothing further was done. The Court’s shoulders were broad enough to shrug off these comments.

Punishment: The person may be punished with simple imprisonment for a term which may extend to six
months or with fine which may extend to 2000/- or with both.

Limitation period: Section 20 provides that no Court shall initiate the contempt proceedings on its own motion
or otherwise after the expiry of 1 year from the date on which the contempt is alleged to have been committed.

Remedy: The contemnor may submit an apology before the Court and if the Court is satisfied that it has been
made with real sense of repentance, the Court may accept it. In case of MC Mehta v/s UOI, the SC had
clarified that apology should not be used as a weapon of defence in case of contempt. The apology must be
tendered at earliest opportunity and not at the time when Court id going to impose a punishment.

Proceedings: The contempt proceedings are neither civil nor criminal. They are sui generis. Consequently,
contempt proceedings will neither be governed by Civil Procedure Code nor by Code of Criminal Procedure.
The cognizance of criminal contempt outside the court can be taken under Section 15(1) as:

i. On its own motion

ii. On the motion of the Advocate General
 iii. On the motion of any other person, with the consent, in writing, of the Advocate General
iv. On the motion of such law officer in relation to the High Court for the UT of Delhi as the Central
government may notify.

In Hari Kishan v/s Narutham Das Shashtri, the SC held that the purpose of barring private person from
filing criminal contempt is to prevent the Courts from being flooded with frivolous motions in order to
serve personal interest or grudge.

Prashant Bhushan Case: The SC has initiated suo moto proceedings against the lawyer and social activist
for his two tweets which according to the institution brought the administration of justice in disrepute and
are capable of undermining the dignity and authority of the institution. The objective for contempt is to
safeguard the interests of the public and suo motu powers of the Court to initiate such proceedings only
serve to complicate the matters. Justice V R Krishna Iyer has famously termed the law of contempt as
having vague and wandering jurisdiction, with uncertain boundaries. Contempt has practically become
obsolete in foreign democracies regarding it as an archaic law. After the famous Spycatcher judgement of
1980s by House of Lords, the Daily Mirror, published an upside down photograph of the Law Lords with
caption, “You Old Fools”. Refusing to initiate the contempt action against the newspaper, one judge, Lord
Templeton, reportedly said, “I cannot deny that I am old, It’s the truth and whether I am a fool or not is a
matter of perception of someone else.” The question which arose in Prashant Bhushan case is, “Is the Court
being needlessly reactive?” There has been much liberal interpretation in foreign institutions and even in
some of the Indian cases. The Constitution Bench in contempt case against former Madras HC judge C S
Karnan, laid that, “law of contempt is not made for the protection of judges who may be sensitive to the
winds of the public opinion. Judges are supposed to be man of fortitude, able to thrive in hardy climate.”

The landmark judgement is S Mulgaonkar v/s Unknown, 1978, which has been invoked by Bhushan’s
counsel urging Court to show restraint. The Court ruled Mulgaonkar, the then editor of The Indian Express
not guilty of contempt by 2:1 although the same bench has initiated the proceedings. Justice P Kaliasam and
Krishna Iyer formed majority against then CJI M H Beg. Justice Iyer’s counsel of caution in exercising
contempt jurisdiction came to be known as Mulgaonkar principles. He wrote “the dogs may bark, the
caravan will pass”.

Justice Arun Mishra, reading out the operative portions of the order of the
sentence, observed that the statements made by the judges in the 2018
press conference, and the various opinions expressed by retired judges and
academicians are irrelevant for consideration.

"We put a question to ourselves, as to whether the Court can be guided by

such opinions expressed on the public platform and as to whether the Court
while exercising its judicial duties render its decision on the basis of the trial
made by the media and public opinion. Answer to both the questions is
found firmly in the negative. The Court cannot abdicate its duty and has to
be uninfluenced by the statements published in various articles published in
the media and opinions expressed therein. It has to decide the case
uninfluenced by such opinions", the bench said.
.

Court cannot suspend the license of the advocate as a punishment for contempt:

In 1998, the Constitution bench of the SC in case of Supreme Court Bar Association v/s
Union of India (1998) held that Courts cannot order the suspension or revocation of the
enrolment of an advocate as a punishment for contempt of Court. The Bench held that the
enrolment of an advocate can be suspended or revoked only by the Bar Council in a
disciplinary proceeding initiated under the Advocates Act, 1961 with respect to professional
misconduct. The Court cannot usurp the statutory power of the Bar Council while exercising
contempt jurisdiction, the Court clarified.

"The suspension of an Advocate from practice and his removal from the State roll

of advocates are both punishments specifically provided for under the Advocates

Act, 1961, for proven "professional misconduct' of an advocate. While exercising

its contempt jurisdiction under Article 129, the only cause or matter before this

Court is regarding commission of contempt of court. There is no cause of

professional misconduct, properly so called, pending before the Court. This Court,

therefore, in exercise of its jurisdiction under Article 129 cannot take over the

jurisdiction of the disciplinary committee of the Bar Council of the State or the Bar

Council of India to punish an advocate by suspending his licence, which

punishment can only be imposed after a finding of 'professional misconduct' is

recorded in the manner prescribed under the Advocates Act and the Rules framed

thereunder", the Cout said.

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This decision came in a writ petition filed by the Supreme Court Bar Association

under Article 32 of the Constitution seeking a declaration that Bar Councils under

the Advocates Act alone have the jurisdiction to remove an advocate from the rolls

and that either the Supreme Court or the High Court cannot make any such

direction to suspend the practise of an advocate as a punishment for contempt of

court. The petition was filed in the backdrop of the SC decision in In Re: Vinay

Chandra Mishra, (1995) 2 SCC 58, where the SC suspended the practice of an

advocate, who was found guilty of contempt of court, for a period of three years.

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Agreeing with the SCBA's contention, the Constitution Bench overruled In Re:

Vinay Chandra Mishra stating that suspension of practice could not have been

ordered invoking powers under Article 142 of the Constitution.

"The power of the Supreme Court to punish for contempt of court, though quite

wide, is yet limited and cannot be expanded to include the power to determine

whether an advocate is also guilty of "Professional misconduct" in a summary

manner, giving a go bye to the procedure prescribed under the Advocates Act".

"It must be remembered that wider the amplitude of its power under Article 142,

the greater is the need of care for this Court to see that the power is used with

restraint without pushing back the limits of the constitution so as to function within

the bounds of its own jurisdiction. To the extent, this Court makes the statutory
authorities and other organs of the State perform their duties in accordance with

law, its role is unexceptionable but it is not permissible or the Court to "take over"

the role of the statutory bodies or other organs of the State and "perform" their

functions".

But the court may debar the appearance of an advocate found guilty of

contempt

The Court in SCBA vs Union of India also clarified that the Supreme Court or the

High Court can prevent the contemnor-advocate from appearing before it. The

Court added that such an action was different from the suspension of the practise of

the advocate.

"In a given case it may be possible, for this Court or the High Court, the prevent

the contemner advocate to appear before it till he purges himself of the contempt

but that is much different from suspending or revoking his licence or debarring

him to practice as an advocate. In a case of contemptuous, contumacious,

unbecoming or blameworthy conduct of an Advocate-on-Record, this court

possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his

privilege to practice as an Advocate-an-Record because that privilege is conferred

by this court and the power to grant the privilege includes the power to revoke or

suspend it. The withdrawal of that privilege, however, does not amount to

suspending or revoking his licence to practice as an advocate in other courts or

Tribunals", the Court said.

The Court observed that in a given case, an Advocate found guilty of committing

contempt of court may at the same time be guilty of committing "professional

misconduct" but the two jurisdictions are separate, distinct and exercisable by

different fora by following different procedures. Exclusive power for punishing an

Advocate for professional misconduct is with Bar Councils.

In this regard, it is relevant to refer to the decision of the apex court in Bar Council

of India vs High Court of Kerala (2004) 6 SCC 311.

There, the Bar Council of India had challenged the constitutionality of Rule 11

of the Rules framed by the High Court of Kerala forbidding a lawyer from

"appearing, acting or pleading in any court till he got himself purged of the

Contempt by an order of the appropriate court". The BCI contended that the Rule

amounted to an usurpation of the powers of the Bar Council.

While upholding the validity of Rule 11, a 2-judge bench of the SC referred to the

precedent laid down by a coordinate bench in Pravin C. Shah vs K.A. Mohd. Ali

(2001) 8 SCC 650, which had approved the Rule. There, the Court was considering

the legality of disciplinary action taken by the Bar Council of Kerala, relying on

Rule 11, to debar an advocate from appearing in Courts after he was punished for

contempt.

Finding fault with the Bar Council for debarring an advocate from appearing in

courts by referring to a Rule framed by the High Court, the judgment authored by

Justice K T Thomas in Pravin C Shah stated :

"Rule 11 has nothing to do with all the acts done by an advocate during his

practice except his performance inside the court. Conduct in court is a matter

concerning the court and hence the Bar Council cannot claim that what should

happen inside the court could also be regulated by the Bar Council in exercise of

its disciplinary powers. The right to practice, no doubt, is the genus of which the

right to appear and conduct cases in the court may be a specie. But the right to

appear and conduct cases in the court is a matter on which the court must have the

major supervisory power. Hence the court-cannot be divested of the control or

supervision of the court merely because it may involve the right of an advocate".

The judgment also held that the power of contempt of the court and the

disciplinary authority of the Bar Council were distinct jurisdictions and that the

Court's action of debarring a contemnor-advocate from appearing before it does not

amount to interference with the disciplinary powers of Bar Council.

In Ex-Captian Harish Uppal vs Union of India (2003) 2 SCC 45, the SC explained

that appearing in court was only one of the several aspects of a legal practise, and

debarring the advocate from appearing in courts does not amount to complete

suspension of practise.

"...Courts may now have to consider framing specific rules debarring Advocates,

guilty of contempt and/or unprofessional or unbecoming conduct, from appearing

before the Courts. Such a rule if framed would not have anything to do with the

disciplinary jurisdiction of Bar Councils. It would be concerning the dignity and

orderly functioning of the Courts. The right of the advocate to practise envelopes a

lot of acts to be performed by him in discharge of his professional duties. Apart

from appearing in the Courts he can be consulted by his clients, he can give his

legal opinion whenever sought for, he can draft instruments, pleadings, affidavits

or any other documents, he can participate in any conference involving legal

discussions, he can work in any office or firm as a legal officer, he can appear for

clients before an arbitrator or arbitrators etc. Such a rule would have nothing to

do with all the acts done by an advocate during his practice. He may even file

Vakalat on behalf of client even though his appearance inside the Court is not

permitted. Conduct in Court is a matter concerning the Court and hence the Bar

Council cannot claim that what should happen inside the Court could also be

regulated by them in exercise of their disciplinary powers".

Examples of Court invoking contempt power to debar appearance of advocates for

a specified period can be found in the cases of R.K. Anand v. Registrar, Delhi High

Court Court (2009) 8 SCC 106, In Re : Mr. Mathews Nedumpara(2019) etc.

Court can debar advocate's appearance only in exercise of contempt power

and not otherwise

In R Muthukrishnan vs The Registrar General of High Court of Judicature at

Madras and others(2019), the Supreme Court held that the High Court can debar

an advocate from appearing in courts only in the exercise of its contempt powers,

and cannot do so for any other acts of professional misconduct.

Holding thus, the Supreme Court quashed Rules 14A, 14B, 14C and 14D inserted

in the Rules of High Court of Madras in 2016 empowering the High Court and the

District Courts from debarring an advocate from practice on committing actions

such as :

 accepting money in the name of a Judge or on the pretext of influencing

him; or

 tampering with the Court record or Court order; or

 browbeating or abusing a Judge or Judicial Officer; or

 spreading unfounded and unsubstantiated allegations/petitions against a

Judicial Officer or a Judge to the Superior Court; or

 participating in a procession inside the Court campus and/or involves in

gherao inside the Court Hall or holds placard inside the Court Hall; or

 appearing in the Court under the influence of liquor;

The Supreme Court held that Section 34 of the Advocates Act, which gives rule-

making power to the High Court Act, intends to regulate the practice of the

advocate in the High Court and subordinate courts. But, it does not empower it to

frame the rules for disciplinary control.

The Court observed :

"Advocates Act has never intended to confer the disciplinary powers upon the

High Court or upon this Court except to the extent dealing with an appeal under

Section 38".

"The High Court has no power to exercise the disciplinary control. It would

amount to usurpation of the power of Bar Council conferred under Advocates Act.

However, the High Court may punish advocate for contempt and then debar him

from practicing for such specified period as may be permissible in accordance

with law, but without exercising contempt jurisdiction by way of disciplinary

control no punishment can be imposed"

"The debarment cannot be ordered by the High Court until and unless advocate is

prosecuted under the Contempt of Courts Act. It cannot be resorted to by

undertaking disciplinary proceedings as contemplated under the Rules 14A to 14D

as amended in 2016", the SC explained.

The conclusions from the SC precedents can be summed up as below :

1. Suspension or revocation of the enrollment of an advocate is the exclusive power of

the Bar Councils exercising disciplinary jurisdiction under the Advocates Act, 1961,
with respect to acts of professional misconduct.
2. The Courts cannot suspend the enrollment of an advocate as a punishment for
contempt of court.
3. However, the Courts can order that an advocate found guilty of contempt of court will
be debarred from appearing in courts.
4. The power to debar due to contempt of court is a different aspect than suspension of
enrolment or debarment by way of disciplinary measure.
5. The Courts can debar the appearance of an advocate only for contempt of court and
not for any other misconduct.
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