TOPIC

JUDGING THE JUDGE - SEDITION IN DISGUISE OF

THE DRACONIC CONTEMPT LAW?

CLINICAL-III ASSIGNMENT

Submitted by

Name: Mohd Arshaan Afaq

B.A. LL.B. ( IX th Semester) (Regular)

Faculty of Law, Jamia Millia Islamia

Submitted to: Office of Dean, Faculty of Law, Jamia

Millia Islamia, New Delhi.

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ACKNOWLEDGMENT
I am using this opportunity to express my gratitude to everyone who supported me throughout
the course of this assignment. I am thankful for their aspiring guidance, invaluably constructive
criticism, and friendly advice during the project work. I am sincerely grateful to them for sharing
their truthful and illuminating views on a number of issues related to the project.

Firstly, I would like to thank my Clinical law teacher ADV. Rajesh Sharda Sir for giving me the
opportunity to take on this assignment, imparting valuable insights about the subject and paving
the way towards the completion of the assignment. To be able to impart knowledge and help us
during this tough pandemic phase by taking regular classes without fail and providing us with all
the relevant materials for every class, Ma’am has immensely put in a lot of effort.

Secondly, I would like to thank my parents whose constant support helps me through everything
I do and who are there to appreciate what is right and rightfully criticize what needs to be
improved.

Lastly, I would like to thank my friends for helping me sort out any confusion I had during the
course of this assignment. I am extremely grateful to all my friends and all my well wishers who
have helped in the completion of this project in this pandemic.

This assignment would not have been possible without the help and support of the
aforementioned people.

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TABLE OF CONTENTS

I. Introduction……………………………………………………………….5 II.

Contempt of Power: The Historical Evolution………………………..6-12

 A. The Development of Law of Contempt in Anglo-Saxon Jurisprudence…………………..7 B.
The Development of Law of Contempt in Indian Jurisprudence…………....…………...11 III.
Concept, Classification and Definition of “Contempt of Court………………….13-22 A.
Defining Contempt………………………………………………………………………..13
B. Classification of Contempt of Court: Civil and Criminal Contempt…………………….16
1. Civil and criminal Contempt…………..…………………………………………………….16
2. Differences between Civil and Criminal Contempt…………………………………..…...18
3. Definition of “Contempt of Court” under the Contempts of Court Act, 1971………..21
IV. INDIAN CONSTITUTION AND CONTEMPT OF COURT……………………….23 A.
Article 129 of the Constitution……………………………………………………..24 B.
Contempt Proceeding under Article 129 of the Constitution………………………25
V. Criminal Contempt of Court- Jurisprudence and Punishment……………….…28-43 VI.
Contempt Powers: Judicial Interpretations and Accountability ……………..…44-50 VII.
Recent strife with Judiciary Regarding Contempt…………..……………………51-55
1. Adv. Prashant Bhushan’s Case………………………………………………..……….51
2. Contempt badge on Comedian Kunal Kamra………………………………………..53
VIII. Conclusion……………………………………………………………………………....56
IX. SUGGESTIONS…………………………………………………………………......58-6 1
X. Bibliography………………………………………………………………………...62-65 XI.

ANNEXURE I (Google form Questions)..................................................................66-67 XII.

ANNEXURE II (Google form Responses)................................................................68-72

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“a word is not a crystal, transparent and unchanged, it is a skin of living thought
and may vary in colour and content according to the circumstances and the time in
which it is used.”

― Justice Asok Kumar Ganguly, Landmark Judgments That Changed India

Which is ideology? Which not? You shall know them by their assertion of truth,
their contempt for considered reflection, and their fear of debate."

-- John Ralston Saul

“In this country, the Jesuses are getting crucified and the Barbases are very
much upheld, thanks perhaps to the judiciary. Our whole judicial approach has
a certain independence from all civilised behaviour.” “In fact to speak very
frankly, the Indian judiciary is non est.”

-- V.R. Krishna Iyer, former judge of the Supreme Court

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I. INTRODUCTION

ABSTRACT: This assignment dwells deep into the vague and indeterminate pool of contempt
law and how it continues to be ruthless in the name of “non-interference in the judicial
administration” or “shaking public confidence” especially after the recent incidents in this year
itself which have sparked a different pandemic for anyone who would ever question the
infallibility of the judiciary and while we may have a mask to protect ourselves from the current
pandemic and can hope for a vaccine, this “contempt pandemic” seems to be reluctant in order
to offer us any consolation as “freedom of speech” and “democracy” have now been reduced to
mere myths directing us all towards anarchy and all of us assuming blind eyes and deaf ears and
mouth as we have all entered the Lockdown phase of Judicial Contempt where you need to
quarantine your criticisms in your thoughts closet with a vaccine of fine and imprisonment in
case you criticise the Supreme Gods of the Court.

KEYWORDS: judges, contempt, judiciary, court, criticism, democracy

Research Methodology

For the following assignment, a deep insight of history along with current episodes of contempt
have been preferred to look in order to compare the strict approach and aim of the contempt law
and does it end up shaking more public confidence than what is proposed to protect in the name
of an infallible judiciary.

The following study was then coupled with a catena of questions through a google form which
was filled by 20 individuals (mostly composed of young law students, law graduates and as of
late tuned legal advisors in order to find out how they view this contempt strife as they are an
important spectacle to judge the prism of judicial contempt.

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HISTORICAL PREMISE OF THE CONTEMPT LAW

Early man was allowed to act in any way he enjoyed and his will to do a demonstration relied on
the quality of his appendages, fortified by the utilization of arms, which he created step by step.
That impulse to beat another endures even right up 'til today, both in public activity and global
circles. Indeed, even today, there is a competition to control the world by utilization of weapons,
yet in addition by the control of monetary conditions. The general public was framed by our first
predecessors to bring harmony, without which no advancement is conceivable. In the event that a
man is in consistent dread of losing his appendage, life or job, the innovative soul in him stays
torpid. Subsequently, it was concurred that singular freedoms be reduced somewhat and debates
between the fighting gatherings be settled by an autonomous organization.

This office came to be known as the 'Lord'. It was for the King to choose debates emerging
between men, who picked him to be King. The King defined certain rules which were named
laws. Everybody in the general public was relied upon to act in such a way so as not to come in
struggle with these laws.

If there was disobedience to the laws, punishment was awarded for the same. In early stages of
society, the King' personally disposed of the disputes. 1 As the society expanded, disputes
increased in number. It was not possible for the King personally to settle all the disputes. He,
therefore, appointed persons to perform his duties. This is how “Courts” came into existence.
Most of the disputes were settled by the Courts on the basis of guidelines given by the King. Still
the King retained his right to hear any dispute himself., In this way, the decisions given by the
Courts were the decisions of the King in law. If the King’s authority could not be questioned,
then authority of the Courts could not be questioned, too. If the King could not be abused or
scandalized, so also the Courts could not be abused or scandalized. Just as the proceedings before
the King could not be prejudiced, or obstructed similarly the proceedings before the Court could
not be prejudiced or obstructed.2

1
Joseph H. Beale’s, Contempt of Court Criminal and Civil, 21 Harv. L. R. 161, (1908)
2
Joseph H. Beale’s, Ibid

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II. CONTEMPT OF POWER- HISTORICAL EVOLUTION

A. The Development of Law of Contempt in Anglo-Saxon Jurisprudence

The power of courts to punish contempt is one which wends historically back to the early days of
England and the crown. A product of the days of kingly rule, it began as a natural vehicle for
assuring the efficiency and dignity of, and respect for the governing sovereign. Viewed as a legal
doctrine which was articulated and immersed in the common law, it is generally a product of
Anglo-American society. Whatever informal groups ruled, the primitive associations of men
undoubtedly looked to some pagan, religious, or divine and natural right to enforce their systems.
There is some evidence that schemes akin to contempt were at least thought of in more antiquated
societies. One author reported that the Theodosian Code considered the subject of contempt of a
governmental authority, and concluded that it should not be punishable; "for if it arose from
madness, it was to be pitied; if from levity, to be despised; and if from malice, to be forgiven."' '

Such Taoistic reasoning, if not practical in the complex societies of our age, at least recognizes
that respect by compulsion is a contradiction in terms, and the least ideal means to a free,
libertarian government. Respect can be more firmly based upon moral rightness than artificial
might.3With the multi-millenary growth of organized societies, the sophistication of governing
systems, and the inter-complexity of the relation-ships between sovereigns and men, some power
force within a rule-of-law scheme became necessary to replace the caveman's club as a means of
enforcing obedience and respect. Though centuries later men were to accept the self-righting
process, recommended by the writings of men like Locke and Milton, as the more democratic
way to resolve individual-governmental conflict, 4 The contempt power was more suited to the
early English rulers and their style of government.

3
Ronald Goldfarb, The History of the Contempt Power, 22 Wash. U. L. Q. 8 (1961)
http://openscholarship.wustl.edu/law_lawreview/vol1961/iss1/6
4
Ronald Goldfarb, Ibid

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The law of contempt is not the law of men, it is the law of kings. It is not law which
representative legislators, responsibly reflecting the vox populi originally wrote, but is rather
evolved from the divine law of kings, and its aspects of obedience, cooperation, and respect
toward government bodies. Though this is not the only source of the power, it is the seed from
which the power grew, if later adopted and cultivated by men not adverse to its exercise. These
later institutions agreeably accepted it, less as adjuncts of the King than to protect their own
dignity and supremacy.

The idea that the headman must be obeyed, at the risk of committing unnatural and punishable
offense, cannot be traced with scientific exactness to precise moment and place. It is agreed
though that authority for that premise can be traced in part to concepts of government, both
secular and religious. The idea that obedience to divine commands was good, and disobedience
sinful, has been traced to the assertions of the early Popes, as well as the emperors."' It was
probably not new with them. In enjoining obedience to civil government resort was often had to
the Scripture. The king was called, early in English history, the Vicar of God.5"'

The contempt power is understandable when seen through the perspectives of its age of
inception, an age of alleged divinely ordained monarchies, ruled by a king totally invested with
all sovereign legal powers and accountable only to God. Under any circumstances resistance to
the king was a sin which would bring damnation.-As society became more diverse and extensive,
the English kings found it necessary to have their kingly governmental powers exercised by
representatives. The courts, then, of early England acted for the king throughout the realm. And
their exercise of contempt powers derived from a presumed contempt of the king's authority.'
Violation of their writ, or disobedience to their officers, violated the peace and flouted the king
they represented.
Under the Norman kings, an offender's personal property was forfeited to the king's mercy. Later,
this was changed to a fine, which in turn was later refined into a procedure whereby the offender
was imprisoned until the fine was paid.6 This is akin to the current practices with contempt. For
civil contempt, the offender is imprisoned until he purges his act of contempt.

5
ANTHONY ARLIDGE AND DAVID EADY, THE LAW OF CONTEMPT 1 (Sweet & Maxwell London 1982) 6
Joseph H. Beale’s, Supra note 1

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Originally, contempt of Congress was used merely to coerce cooperation, at which time the
imprisonment ended.

For criminal contempt, the offender of today may be fined, imprisoned, or both, and non-
conditionally. Gradually, any questions about the right of the judiciary to punish disobedience,
obstruction, or disrespect (and they were few) were answered with the claim that this was an
inherent right of English courts. Necessity then became with maturity the mother of this claimed
innate, natural right of courts. The natural inclination to claim this power as one innate in judicial
institutions was but one step in the rise in power of the courts, and later title Parliament, in Eng-
land. The King had pointed the way.

The roots of English law, from which the contemporary contempt doctrine sprouts, are thin but
deep in history. The theory then offered for its being was that the law became irritated by
contumacy, and instead of saying to the contemnor "I Don't care," it set its will against his will,
and ordered him. This theory was rationalized in Bracton's De Legibus on the ground that there is
no greater crime than contempt because all within the realm mought to obey the King and be part
of his peace.7 Here we see the true assumption by courts of a power originally based upon their
peculiar position as adjuncts to the King, and administrators of his will. This is a characteristic no
longer prevalent in England, and never accepted in America. Yet, this assumption seeped into a
court frame-of-reference, and has welled and risen, not as a force rooted in kingly relations, but
as a necessary, and inherent, characteristic of courts independently. He wrote: Thus from the
earliest laws of the kingdom, through the records of the Curia Regis and the Parliament, the Year
Books, and the first treatises on law, the development of "contempt" in the legal sense can be
traced until by the fourteenth century the principles upon which punishment is inflicted to restrain
disobedience to the commands of the King and his courts as well as other acts which tend to
obstruct the course of justice, have become firmly established.
A Scottish jurist traced the cases up to the time of Henry V, and concluded that criminal
contempt cases in the King's Bench until that time were dealt with by procedures not summary.8

7
Fox, The Summary Process to Punish Contempt, 25 L.Q. Rev. 238, 241(1909).
8
Fox, The Nature of Contempt of Court, 37 L.Q. Rev. 191, 194 (1921)

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With the Star Chamber came non-jury procedures, and the treatment of contempt by
interrogatories of the court. This latter procedure was cited by Justice Wilmot in the Almon case9
as the nub of due process, far better than capricious juries. Yet with the abolition of the Star
Chamber,10it was legislated that all matters therefore handled by that court would be treated "by
the common law of the land and in the ordinary course of justice ... ." Summary process was
exercised to enforce the King's writs or to preserve discipline among the officers of the court.

The Contempt of Court Act 1981 brought substantial changes in the contempt law of England.
The Act specifically limited the maximum punishment which could be imposed for proven
contempt. Under the 1981 Act, though there is no limit regarding fines which could be imposed
by the superior courts, the amount of fine which could be imposed by the inferior courts is limited
to a maximum of £ 2,500. The Act also brought changes in other respects. The Act incorporated
strict liability principle under which a conduct is to be treated as contempt if it leads to interfere
with the course of justice in particular legal proceeding regardless of intent to do so. Generally
common law offences require a mental element in the form of intention or some other form of
mens rea. Thus it is necessary to establish either intent to interfere with administration of justice,
or at least recklessness as to whether such interference would occur or not.

Thus where a publication is intended to interfere with administration of justice, there is no

difficulty to initiate contempt proceeding under common law. But the confusing area in this
regard was pertaining to publications, which were not intended to interfere with
administration of justice. Generally speaking no contempt proceeding was maintainable under
common law for these types of conducts, even if it interfered with administration of justice. But
observations were made in some cases suggesting that in common law such an intention was not
required when summary proceedings for contempt were based on publication, which prejudice
fair trial of particular proceeding whether pending or imminent.

Thus in Oldham’s Press Ltd, exp. A. G11, it was opined that where a person knowingly published
something which when viewed objectively created a substantial risk of prejudice, no further mens
rea was required to sustain liability. It seems that the element of intention operated at a
9
The King v. Almon, 24 L.Q. Rev. 184, 194 (1908).
10
Ibid
11
Ronald Oswald, The Contempt of Court Act 1981, 8 BJLS 243, 243 (1981).

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different level. The only question in this regard was whether the publication was intentional or
not. If the publication was intentional, whether it was intended to interfere with administration of
justice was treated as unnecessary. Thus the liability was found to be strict. However, such a
dilution of mens rea was made applicable only if the interference with administration of justice
was through publication, and that too which affected fair trial of a particular judicial proceeding.
With regard to all other conducts affecting administration of justice, mens rea in its full plentitude
was necessary. However, the observation made in these cases cannot be treated as a general rule.
The general rule even after these judgments was that, being a common law offence, contempt of
court even by publications prejudicing fair trials requires mens rea to interfere with
administration of justice.12

The strict liability rule incorporated under the 1981 Act was the principle recognized in Odhams
Press and Griffith’s cases.13 Under the Act, a conduct may be treated as contempt of court, as
tending to interfere with the course of justice in particular legal proceeding regardless of intent to
do so. Thus, primarily, the doubt in common law regarding mens rea about publications
interfering with particular legal proceeding affecting fair trial is clarified under the Act.
Further, strict liability rule applies only in relation to publications which interfere with the
course of justice in particular legal proceeding. If the interference with regard to a particular
legal proceeding is by any other method other than by publication, the strict liability rule will not
apply.14Thirdly, strict liability rule applies only to publications, which creates substantial risk that
the course of justice in particular legal proceedings has been seriously prejudiced. Lastly, the
strict liability rule will apply to publications where proceeding in question is ‘active’ within
meaning of the statute.

B. The Law of Contempt in India

The ancient legal system in India treated administration of justice with paramount importance.
The system set out various rules and regulations regarding administration of the kingdom, the
cherished values of the King and his duties and responsibilities as salient features of
12
Eric Fleisig, Greene, Why Contempt is Dif erent: Agency Costs and "Petty Crime" in Summary Contempt
Proceedings, 112 Yale L J 1223, 1246 (2003).
13
Ibid
14
William R. Worth, Punishment for Direct Contempt of Court, 47 MICH L REV, 1218, 1219 (1949). 11 |

Page

Rajadharma.15 Rajadharma begins with eulogizing the King as an incarnation of God, in the
words Raja Pratyaksha Devata . Thus the divine origin of kingship was accepted in India also
and the King was not governed by any legislature and was not answerable to any court of law.
However, the King was also subject to law.

In spite of all this, it is to be noted in this regard that, the contempt of court as a necessary power
of the court as such was not recognized in the ancient legal system. The concept of contempt of
court was brought to Indian law by the advent of British rule 16 and the law of contempt of courts
in India is nothing but the offspring of British administration of justice in India. 17 Thus the
contempt power of courts in India is having only a short history and is linked with common law
and courts of record, established under English legal system in India. The first such courts in
India were the Court of Mayor established under the East India Company’s Charter of 1687 and
Admiralty Court established under the Royal Charter of 1683. Though the courts were conferred
with the status of court of record, the Charters were silent about the contempt powers. Later
Mayor’s Court was created by the Charter of 1727. This was the first court in India specifically
vested with power to punish for contempt. Later on, in pursuance of the Regulating Act, 1773, the
Mayor's Court at Calcutta was succeeded by the Supreme Court under the Charter granted in
1774 and the Mayor’s Court at Bombay and Madras were superseded by the Recorders Court at
Madras. It was abolished by the Government of India Act, 1800 and the Supreme Court was
established in its place by the Charter of 1801.

Subsequently a Supreme Court was established in the place of Recorders Court at Bombay by the
Charter granted under the statute of 1823. 18 Both the Recorders Court and the Supreme Court had
the same powers for punishing contempt as superior courts of England. The Supreme Courts
were in turn succeeded by the High Courts under the High Court’s Act of 1861. 19The High
Court’s Act recognized the power of High Courts as superior courts and the power to punish for
contempt. Thus the High Court of Calcutta was established as a court of record with the power to

15
RAMA JOIS, LEGAL AND CONSTITUTIONAL HISTORY OF INDIA 575 – 590 (2006) 16 DR. S.C TRIPATHI,
INDIAN LEGAL & CONSTITUTIONAL HISTORY(Central Law Publications, 2015) 65 17 DR. S.C TRIPATHI Ibid
18
V.D.KULSHRESHTHA, LANDMARKS IN INDIAN LEGAL & CONSTITUTIONAL HISTORY (11 TH ed, Eastern
Book Company, 2016), 123
19
DR. S.C TRIPATHI, Supra note 18

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commit for contempt. In 1879 the Calcutta High Court considering its contempt jurisdiction in
Martin v Lawrence,20 held that the contempt jurisdiction of the High Court was inherited from
the old Supreme Court and was conferred upon that Court by the Charters of the authority of
the then Court of Kings Bench and the High Court of Chancery in Great Britain.

By virtue of section 106 of the Government of India Act, 1915, the jurisdiction powers and
authority of the High Courts then in existence were allowed to be continued. Section 113 of the
Act authorized the establishment of new High Courts by letters patent with the same authority and
jurisdiction. This is how the common law concept of courts of record and contempt power
became applicable in India. The Privy Council in Surendranath Banerjee v C.J. and Judges of
the High Court of Bengal,21tracing out the origin and history of contempt power in India
observed as follows: Contempt of court is an offence which by the common law of England is
punishable by the High Court in a summary manner by fine or imprisonment or both. That
part of the common law of England was introduced into the Presidency Towns when the late
Supreme Courts were respectively established by the charters of justice. The High Courts in the
presidencies are superior courts of record and the offence of contempt and the powers of High
Court for punishing it are the same there as in this country, not by virtue of Penal Code for
British India and the Code of Criminal Procedure, 1882 but by virtue of common law of
England. Thus the contempt powers of courts of record are the byproduct of British
administration of justice in India and are closely linked with common law.

C. The Concept, Classification and Definition of “Contempt of Court

A. Defining Contempt

Contempt in its simple literal meaning is disgrace, scorn or disobedience. Contempt in its legal
conception means disrespect to that which is entitled to legal regard.22The difficulty and

20
ILR 4 Cal.444.
21
Surendranath Banerjee v C.J. and Judges of the High Court of Bengal, AIR 1883 PC 109 22 K. BALAKRISHNAN NAIR,
LAW OF CONTEMPT OF COURT IN INDIA 27 (Atlantic Publishers and Distributors New Delhi 2004).

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vagueness start at the definition stage itself. It is in fact the feeling of a person towards another
person or thing that he considers despicable. The contempt is disrespect to the court or legislative
body or the persons connected with courts or parties to the proceedings or legislative body. 23The
expression “contempt of court” has been “a recognized phrase in English law from the 12 th
century”.

If administration of justice has to be effective, respect for its administration has to be fostered and
maintained and it is out of rules framed by court on this behalf that the law of contempt has
grown. From rudimentary rules devised for the limited purpose of securing obedience to the
orders of courts, there evolved in the course of time to elaborate and far reaching doctrines and
extraordinary procedures. Right till the present century, these doctrines and procedures were
never subjected to legislative scrutiny with the result that the law of contempt had, as it were, a
wild growth. Each new precedent was not declaratory but creative of law. Each new type of
attack on the administration of justice received a corresponding elaboration or extension of the
contempt law.

As Craies has said, “the ingenuity of the judges and of those who are concerned to defeat or
defy justice has rendered contempt almost protean in its character”.24And even now it may
well be said the categories of contempt are not closed. The result is that there are contempts and
contempts ranging from mere disobedience to orders of court and involving only a wrong of a
private nature as between the parties to a suit at one end and contempts involving physical
violence or large-scale blackmail or mudslinging by means of publication on the judge at other
end. Contempt of court may include conduct, which while, it cannot influence the judges‟ mind
is calculated to effect the conduct of parties to proceedings e.g. by causing them to
discontinue or compromise existing actions or to abstain from commencing actions in which
they are entitled to succeed.8In view of the haphazard development inherent in the process
of development of law by judicial precedent; it is not possible to attempt neat and clear cut
classifications of the various branches of the law of contempt and, in view of the possibility
of new types of contempt arising in future, it is not possible to demarcate the

23
TEKCHAND J., THE LAW OF CONTEMPT OF COURT AND OF LEGISLATURE (4 th ed., 1997), The University
Book Agency, Allahabad.
24
V.D.KULSHRESHTHA, Supra note 23
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area of operation of the law of contempt. It is for these reasons that judges and jurists have
not succeeded in formulating a comprehensive and complete definition of the concepts of
contempt of courts.”

The definition of contempt cannot be exhaustive. The fortiori what is contumacious is for the
court to decide. Its discretion cannot be confined within the four walls of a definition. 25In the
words of one of our own judges, it is indeed difficult and almost impossible to frame a
comprehensive and complete definition of contempt of court. The law of contempt covers the
whole field of litigation itself. The real end of judicial proceeding, civil or criminal, is to ascertain
the true facts and dispense justice. Anything that tends to curtail or impair the freedom of the
limbs of judicial proceeding must of necessity result in hampering the due administration of law
and in interfering with the course of justice. Contempt of court is not defined anywhere with
precision.

To quote Oswald‟s Contempt of courts

“Contempt of court is so manifold in its aspects that it is difficult to lay down any exact
definition of the offence. 26
As it appears from the old cases, the term “Contempt” in its legal
acceptance, primarily signifies disrespect to that which is entitled to legal regard; but as a
wrong purely moral or affecting an object not possessing a legal status, it has in the eyes of the
law, no existence. In its origin, all legal contempt will be found to consist in an offence more
or less direct against the sovereign himself, as the fountain-head of law and justice or against
his Palace, where justice was administered.” 27

Further he says:

It is not that it was not possible to define, but the definition cannot be exhaustive. Contempt of
court may be said to be constituted by any conduct that tends to bring the authority and
administration of the law into disrespect or disregard, or to interfere with or prejudice parties,
litigant or their witnesses during the litigation. The court may be scandalised or humiliated in

25
Ahmed Ali v. Superintendent, District Jail, Tezpur, 1987 Cr.L.J. 1845 (Gau.).
26
Miller v. Knox, (1878) Bing N.C. 574, p.589,Per William J
27
Oswald's Contempt of Court: Committal, Attachment, and Arrest Upon Civil Process: With an Appendix of Forms (3rd
ed MOML) 2010

15 | Page
a number of ways sometimes intentionally, sometimes unknowingly. Hence, except for general
guidelines, no exhaustive definition has been attempted; judicial decisions are the only guide
in deciding the question, as to whether the act complained of amounts to “contempt of
court”.28

B. Classification of Contempt of Court: Civil and Criminal Contempt

Originally contempt of court was treated under a single head where there was no classification.
Subsequently in common law the contempts were classified under various heads, 29 such as civil
and criminal heads. The criminal contempts are again classified into scandalizing the court,
interfering with sub judice proceedings, and miscellaneous contempts. Another classification is
direct and indirect contempt. While the classification under civil and criminal heads is based on
the nature of the act and procedure followed, the direct and indirect classification is based on the
manner of commission of contempt.30 Though the classifications under all these heads are
important and serve different purposes, these classifications are under constant challenge also.

4. Civil and Criminal Contempt

Though the origin of classification into civil and criminal is not based on any clear principle, now
it is well recognized that the philosophy and underlying rationale behind these two categories are
different. The distinction is important in the areas of rules of appeal, privilege from arrest, power
to pardon, punishment and execution, rules of evidence and procedure, and settlement of the
dispute and discharge or release upon compliance. 31 The prominent distinction is based on the
fact that civil contempt proceedings are generally intended to enforce a court order or to
ensure obedience to an undertaking given to court whereas criminal contempt is intended to
uphold dignity of courts and proper administration of justice. 32In this regard civil contempt
involves an element of private injury. It is traditionally

28
Oswald's, Supra note 27
29
State of Bihar vs. Shree Kuernand Kishore Singh, 1986, PLJR 933
30
Legal Remembrancer v. Matilal Ghose, ILR 41 Cal 173, 252
31
TEKCHAND J, Supra note 30
32
Harshita Tomar, Nayan Jain, Contempt of Court: A Challenge To Rule Of Law –A Critical Analysis, 7 Journal on
Contemporary Issues of Law, 6 (2010)

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viewed as the consequence of refusal of a person in a civil case to obey a mandatory order of a
court. It is also treated as the manifestation of the inherent power of a court to compel
compliance with its orders.33 Further, basically civil contempt is treated as a proceeding for the
benefit of a party. The general character of civil contempt is its incomplete nature and may be
purged by obedience to the court order. Traditionally it did not involve a sentence for a definite
period of time and was not treated as a method to punish a person who had disobeyed a court
order or an undertaking given to a court. On the other hand, criminal contempt is treated as
something done against administration of justice and its ultimate purpose is to punish the
wrongdoer.

Though the main purpose of civil contempt is to compel compliance with court orders for the
benefit of a party, by acknowledging proper compliance by enforcing court orders, civil contempt
facilitates due administration of justice and thus serves an important secondary function also.34In
common law, it is not clear which of these objectives is given prime importance. In the United
States, importance is given for assisting a party in enforcing court orders or undertakings given to
court. The U S law goes even up to the extent of categorizing civil contempt under ‘coercive civil
contempt’ and ‘compensatory civil contempt’. A ‘coercive civil’ contempt action is treated as
one wherein the principal object is to compel respondent's compliance with the court order.

This is identified with a ‘compensatory civil’ contempt action35 wherein the principal object is
the receipt of an award of compensation. Thus a civil contempt is treated as compensatory in
nature where the proceeding is intended to mitigate the loss caused to a party. In other situations,
it is treated as coercive. A coercive civil contempt action arises where the defendant can still do
the act as per the direction of the court or an undertaking given to the court. The form of
committal order and the duration of the term of imprisonment for civil contempt depended upon
the purpose for which committal was being employed. Committal for a fixed term was treated as
appropriate where the purpose was punishment for past disobedience. However, where committal
was being employed for a remedial or coercive purpose, an indefinite term might be

33
Lord Diplock in Attorney General v. Times News Paper Ltd. (1973) 3 All. E.R. 54, 71. 34
V.D.KULSHRESHTHA, Supra note 25
35
DR. S.C TRIPATHI, Supra note 23

17 | Page
preferable carrying maximum incentive to the party to comply with the order of the court. This
distinction was accepted in English law in Danchevsky v Danchevsky.36In this case
distinguishing coercive and compensatory punishments, the Court observed thus:
When the object of the committal is punishment for a past offence, then, if he is to be
imprisoned at all, the appropriate order is a fixed term. When it is a matter of getting a person
to do something in future - and there is a reasonable prospect of doing it – then it may be quite
appropriate to have an indefinite order against him and to commit him until he does do it.
Thus in coercive civil contempt the contemnor possesses the ‘keys to his own cell’ since he
may not be sentenced to a fixed or definite term of imprisonment or subjected to an
unconditional fine.37

On the other hand, an unconditional award or fine may, however, be imposed in a compensatory
civil contempt action as a measure to compensate the loss caused to a party. Though criminal
contempt has many features which distinguish it from ordinary crimes, basically criminal
contempt is treated as a criminal offence punishable with imposition of fine or with
imprisonment or with both. It vindicates the court's honor and thus protects the public interest in
the effective functioning of the judicial system. The underlying principle behind this category of
contempt is to prevent polluting the stream of justice and thereby diminishing the faith of people
in administration of justice. Further it is treated as an offence against the State. Though there is
an element of coercion in criminal contempt also, it is not intended to assist any particular person.
Rather it is for punishing the wrong doer. Thus it is possible to point out marked differences
between civil and criminal contempts.38

5. Differences between Civil and Criminal Contempt

The expression contempt of court does not appear to have been defined by statute in any Anglo-
American jurisdiction. Contempts are stated broadly to fall into two groups, viz., civil contempts
and criminal contempts. In Common Law, the definition of contempt of court is an act or
omission calculated to interfere with the due administration of justice. This covers criminal

36
Danchevsky v Danchevsky (No 2) (1977) 121 SJ 796
37
AG v. Leveller Magazine Ltd. [1979] AC 440, p. 449s
38
John Charles Fox, The Nature of Contempt of Court, 37 L.Q.R., 191, 194 (1921)

18 | Page
contempt (that is acts which so threaten the administration of justice that they require
punishment) and civil contempt (disobedience to an order made in a civil cause). 39 Broadly
speaking, the classification follows the method of dividing contempt into criminal and civil
contempts.
The Shawcross Committee adopted the same classification on the grounds of
convenience. Broadly speaking, civil contempts are contempts which involve a private injury
40

occasioned by disobedience to the judgments, order or other process of the court. On the other
hand, criminal contempt is right from their inception in the nature of offences. The major factor
in determining whether the contempt is civil or criminal is the purpose for which the power is
exercised. In general, contempt for which punishment is inflicted for the primary purpose of
vindicating public authority are denominated criminal, while those in which the enforcement of
civil rights and remedies is the ultimate object of the punishment are denominated civil contempt.

A contempt is considered civil when the punishment is wholly remedial, serves only the purposes
of the complainant, and is not intended chiefly as a deterrent to offences against the public. The
polar concepts are Punitive versus Remedial ‟.In Legal Remembrancer v. Matilal Ghose,41
Mukerji, J. observed thus:

“A criminal contempt is conduct that is directed against the dignity and authority of the court.
A civil contempt is failure to do something ordered to be done by a court in a civil action for
the benefit of the opposing party therein. Consequently, in the case of a civil contempt, the
proceeding for its punishment is at the instance of the party interested and is civil in its
character; in the case of a criminal contempt, the proceeding is for punishment of an act
committed against the majesty of the law, and, as the primary purpose of the punishment is the
vindication of the public authority, the proceeding conform as nearly as possible to
proceedings in criminal cases. It is conceivable that the dividing line between the acts
constituting criminal and those constituting civil contempts may become indistinct in those
cases where the two gradually merge into each other”.
39
Harshita Tomar, Nayan Jain, Supra note 39
40
Ibid
41
Legal Remembrancer v. Matilal Ghose, ILR 41 Cal 173, 252

19 | Page
Notwithstanding the existence of a broad distinction between civil and criminal contempt, a large
number of cases have shown that the dividing line between the two is almost imperceptible. The
following observation in Dulal Chandra v. Sukumar,42is worth quoting:

“The line between civil and criminal contempt can be broad as well as thin. Where the
contempt consists in mere failure to comply with or carry out an order of a court made for the
benefit of a private party, it is plainly civil contempt and it has been said that when the party, in
whose interest the order was made, moves the court for action to be taken in contempt against
the contemner with a view to an enforcement of his right, the proceeding is only a form of
execution. In such a case, there is no criminality in the disobedience, and the contempt, such
as it, is not criminal. If, however, the contemner adds defiance of the court to disobedience of
the order and conducts himself in the manner which amounts to obstruction or interference
with the court of justice, the contempt committed by him is of mixed character, partaking as
between him and his opponent of the nature of a civil contempt and as between him and the
court or the State, of the nature of a criminal contempt. In cases of this type, no clear
distinction between civil and criminal contempt can be drawn and the contempt committed
cannot be broadly classified as either civil or criminal contempt............ To put the matter in
other words, a contempt is merely a civil wrong where there has been disobedience of an order
made for the benefit of a particular party, but there it has consisted in setting the authority of
the courts, at nought and has had a tendency to invade the efficacy of the machinery
maintained by the State for the administration of the justice, it is a public wrong and
consequently criminal in nature”.

The question whether a contempt is civil or criminal is not to be judged with reference to
the penalty which may be inflicted but with reference to the cause for which the penalty has
been inflicted.43 Even with regard to the broad details of the distinction between civil and
criminal contempt, one cannot claim any degree of finality if the decisions of the Supreme Court
of the United State of America are to be a guide. For instance in, the United Mine Worker‟s
case44, court held that the same conduct may amount to both civil and criminal contempt, and the

42
Paul V. Evans, Ibid
43
C. J Miller, Contempt of Court (3rd Ed, Oxford Publications ) 1999
44
Harshita Tomar, Nayan Jain, Supra note 39

20 | Page
same acts may justify a court in resorting to coercive and punitive measures which may be
imposed in a single proceeding. In spite of the difficulties present in formulating a clear-cut
distinction between civil and criminal contempts it may be observed that in so far as civil
contempts pure and simple are concerned they do not attract any considerations affecting the
fundamental right of freedom of speech

6. Definition of “Contempt of Court” under the Contempts of Court Act, 1971

The Contempt of Courts Act, 1971 defines the contempt in the following two categories: (i)Civil

contempt

(ii)Criminal contempt

Civil Contempt: “Civil Contempt” means wilful disobedience to any judgment, decree,
direction, order, writer, other process of Court or wilful breach of an undertaking given to a
Court.

Civil Contempt means 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. Under Section 2(b)
of The Contempt of Court Act, 1971 'civil contempt', is defined to mean willful disobedience to
any judgment, decree, order, direction or any other process of court or willful breach of an
undertaking given to the court. It can basically be held to be any wrong to the person who is
entitled to the benefit of a court order. It is a wrong for which the law awards indemnification to
the injured party; though formally it is contempt of court in fact it is a wrong of private nature.
Civil contempt is a sanction to enforce deference with an order

Criminal Contempt: “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

(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

21 | Page
(iii)interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of
justice in any other manner45

The difference between the two types of above cases is that of procedure which was clearly held
by the Allahabad High Court in Vijay Pratap Singh v. Ajit Prasad46, it was held that a distinction
between a civil contempt and criminal contempt seems to be that , in a civil contempt the
purpose is to force the contemnor to do something for the benefits of the other party, while in
criminal contempt the proceeding is by way of punishment for a wrong not so much to a party
or individual but to the public at large by interfering with the normal process of law degrading
the majesty of the court.

However, if a civil contempt is enforced by fine or imprisonment of the contemnor for

nonperformance of his obligation imposed by a court, it turns into a criminal contempt and
becomes a criminal matter at the end. Such contempt, being neither purely civil nor purely
criminal in nature, is sometimes called sui generis.It is submitted that the differentiating line
between civil and criminal contempt is sometimes very thin and might often be considered being
the same. Where the contempt consists in mere failure to comply with or carry on an order of a
court made for the benefit of a private party, it is plainly civil contempt.

If, however, the contemnor adds defiance of the court to disobedience of the order and conducts
himself in a manner which amounts to abstraction or interference with the courts of justice, the
contempt committed by him is of a mixed character, partaking of between him and his opponent
the nature of a civil contempt Contempt jurisdiction of the judiciary has to be used to maintain
the dignity of the judiciary and also to safeguard the proceedings of the court from external
interference. Thus, by classifying the power of contempt into two distinct categories the
legislature till a certain extent has been able to limit the scope of the contempt jurisdiction.

45
John Charles Fox, Supra note 49
46
Samar aditya Pal, The Law Of Contempt-Contempt Of Courts And Legislatures, (5th Ed, 2012) 46 22 |

Page

D. INDIAN CONSTITUTION AND CONTEMPT OF COURT

The purpose of the law of contempt is to protect the machinery of justice and the interests of the
public.47In order to protect these dual interests, unwanted interference with administration of
justice must be prevented. The power to punish for contempt is conferred on courts for two
reasons. Firstly, that the courts may be armed with the power to enforce their orders. Secondly,
they may be able to punish obstruction to the administration of justice.
To ensure these objectives, there are also constitutional provisions dealing with contempt of
courts, apart from Contempt of Courts Act. Among different conducts which may be treated as
contempt, the most important is contempt committed either by publications or by conducts which
resemble speech and expression within the meaning of Article 19(1) (a) of the Constitution. 48
Thus Article 19(1) (a), which guarantees the citizen’s freedom of speech and expression,
assumes vital importance in contempt matters.

Though the Article recognizes the importance of freedom of speech and expression, it also
provides that freedom of speech shall not be a bar for enacting appropriate legislation imposing
reasonable restrictions in relation to contempt of court. Thus it is envisaged to have a balance
between freedom of speech and expression and protecting dignity of courts. 49 Free speech
may be availed even for criticizing the judiciary, but at the same time there can be reasonable
restrictions. Contempt of Courts Act, is thus a legislation intended to impose restrictions as
envisaged under Article 19, and to ensure that criticisms and conducts against the judiciary and
judicial decisions do not affect the dignity of courts and administration of justice. The
constitutional validity of various contempt of courts statutes were challenged on the ground that
these statutes imposed unreasonable restrictions on free speech rights. Rejecting such arguments,
the courts found that those statutes imposed only reasonable restrictions.

Before the commencement of the Constitution, in India, as to contempt powers of courts of

record, the common law was followed. Thus in Re Mohandas Karamchand Gandhi,50the

47
M P JAIN, INDIAN CONSTITUTIONAL LAW (7th Ed, Lexis Nexis) 2017
48
M P JAIN, Ibid
49
Harshita Tomar, Nayan Jain, Supra note 39
50
Re Mohandas Karamchand Gandhi, AIR1920 Bom. 175.

23 | Page
Bombay High Court observed that the High Court possessed the same powers to punish for
contempt of court as possessed by the King’s Bench Division had by virtue of the common law of
England. Later the issue was settled in Hadi Husain v Nasir Uddin Haider 51
by holding that a
court of record in India had the same powers as courts of record in English law regarding
contempt powers.

Thus the contempt powers of courts of record got settled even before the commencement of the
Indian Constitution by applying common law principles. Later in the Constitution of India,
provisions were included recognizing the status and contempt powers of courts of record and
powers of High Courts to protect inferior courts and tribunals from unwanted interference with
administration of justice. These specific provisions are now discussed.

A. Article 129 of the Constitution

Under Article 129 and 215 of the Constitution, the Supreme Court and High Courts are
given the status of courts of record. A court of record is a court, the records of which are
admitted to be of evidentiary value and not to be questioned when produced before any
court.52 Once a court is made a court of record, its power to punish for contempt necessarily
follows from that position. Such a court enjoys a power to punish for contempt as its inherent
jurisdiction. Such a power is essential to enable the court to administer justice according to law in
a regular orderly and effective manner to uphold the majesty of law and to prevent interference
with the due administration of justice.53

It may be noted that Articles 129 and 215 do not confer any new jurisdiction or status on
these superior courts. The provisions merely recognize a pre existing position that the Supreme
Court and the High Courts are courts of record and by virtue of being courts of record they have
inherent power to punish for contempt. 54Since the commencement of Indian Constitution, the
scope of contempt powers of the Supreme Court and the High Courts under Article 129 and 215
was subjected to certain controversies. The controversy was regarding the power of the High
Courts and the Supreme Court to initiate contempt proceedings for contempt committed against
51
Hadi Husain v Nasir Uddin Haider, AIR 1926 All. 623
52
T. Sudhakar Prasad v Govt. of Andhra Pradesh and others, (2001) 1 SCC 516, 525
53
Ibid
54
Hira Lal Dixit v State of Uttar Pradesh, AIR 1954 SC 743, 746.

24 | Page
lower courts and tribunals. Much of the controversy was regarding the interpretation of the term
‘including’ found in Articles 129 and 215.

The meaning, scope and extent of the term ‘including’ were discussed by the Supreme Court in
Delhi Judicial Service Association Tis Hazari Court Delhi v State of Gujarat and others.55In
this case, the petitioner argued that Article 129 was susceptible to two interpretations. First,
Article 129 conferred contempt powers only when contempt was committed against the
Supreme Court. The other interpretation was that the contempt powers of the Supreme Court
under Article 129 extended beyond this enabling the Supreme Court to exercise contempt
power to protect inferior courts and tribunals also.

The contempt jurisdiction of the Supreme Court under Article 129 for contempt committed
against lower courts again came up before the Supreme Court In Re: Vinay Chandra Misra.56In
this case it was reiterated that Article 129 should be interpreted liberally and under the Article,
the Supreme Court could initiate contempt proceedings even for contempt committed against
lower courts.57 Even apart from Article 129, Supreme Court as the highest court of record, it
was held to be charged with duties and responsibilities of correcting lower courts and tribunals
and also of protecting them. The latter function of the Supreme Court was held to be
independent of Article 129 of the Constitution and in that capacity also the Supreme Court is
empowered to initiate contempt proceedings for contempt committed against lower courts and
tribunals.

B. Contempt Statute and Proceeding under Article 129 of the Indian

Constitution

Though the Constitution recognises power of the Supreme Court and the High Courts to initiate
contempt proceedings, it is silent about necessary procedures and punishments. The question in
this regard is, whether or not the contempt proceedings under Article 129 and 215 are governed
by the Contempt of Courts Act or such other legislation. In this context we may consider the
legislative powers of the Parliament and State Legislatures in respect of contempt. Entry 77 of

55
Delhi Judicial Service Association Tis Hasari Court Delhi v State of Gujarat and others, (1991) 4 SCC 406, 439 56 In
Re: Vinay Chandra Misra (1995) 2 SCC 584, 606.
57
M P JAIN, INDIAN CONSTITUTIONAL LAW (7th Ed, Lexis Nexis) 2017

25 | Page
List- 1, Seventh Schedule of the Constitution reads thus: Constitution, organization, jurisdiction
and powers of the Supreme Court (including contempt of such court), and the fees taken therein;
persons entitled to practice before the Supreme Court. This entry empowers Parliament to enact
legislation dealing with contempt of court including contempt of Supreme Court. Similarly in the
Concurrent List, under entry 14, Parliament as well as State Legislatures is competent to enact
laws with respect to contempt of court, but not on contempt of Supreme Court. As per these
entries, regarding the contempt of Supreme Court, laws can be enacted only by Parliament.

The Contempt of Courts Act, 1971, may be approached in the light of the above constitutional
provisions. It is an Act by the Parliament to define and limit the powers of certain courts in
punishing contempt of courts and to regulate their procedure in relation thereto. It provides for
procedures to be followed when contempt is committed in the face of the Supreme Court or the
High Courts, procedure to be followed for cognizance of criminal contempt when contempt is not
in the face of the courts, power of the High Court to punish for contempt of subordinate courts,
and the punishment which could be imposed in a proved cases of contempt. 58 The strategy
adopted by the Act is, if contempt is committed against lower courts, the lower court cannot
initiate contempt proceedings.

The jurisdiction to initiate proceedings is vested with the respective High Courts. Further the
High Courts shall exercise the jurisdiction where the contempt is committed against itself. Thus,
where the contempt proceeding is initiated under the Contempt of Courts Act, the same may be
invariably governed by the provisions there under. However, doubts arise as to whether or not
these provisions are applicable where contempt proceedings are initiated by the Supreme Court
or High Courts under Article 129 and 215.

Such a question was considered in Delhi Judicial Service Association v State of Gujarat59 where
contempt proceedings were initiated by the Supreme Court under Article 129. It was specifically
argued before the Supreme Court that under entry 77 of list 1 of the Seventh Schedule, the
Parliament had legislative competence to make law curtailing the jurisdiction of the Supreme
Court and thus the contempt jurisdiction of even courts of record, was governed by

58
Pooja Jha, Supra note 68
59
Delhi Judicial Service Association Tis Hazari Court Delhi v State of Gujarat and others, (1991) 4 SCC 406, 439 26 |

Page

Contempt of Courts Act.60In this respect, the decision showed different and conflicting views. In
one part of the judgment, the Supreme Court observed that the Central Legislature had no
legislative competence to abridge or extinguish the jurisdiction and power conferred on the
Supreme Court under Article 129 of the Constitution. Parliament’s power to legislate in
relation to law of contempt relating to the Supreme Court was found to be limited. Therefore,
the Act did not impinge upon the Supreme Court’s power with regard to contempt of
subordinate courts under Article 129.61Thus it was found that the Contempt of Court Act had
no application when a contempt proceeding was initiated by the Supreme Court under Article
129.
It was further pointed out that the only provision in the Contempt of Courts Act which deals with
the contempt power of the Supreme Court is section 15. It provides for modes of taking up
proceedings for criminal contempt by the High Courts and the Supreme Court. It was further
observed that section 15 was not a substantive provision and it provided only the mode of taking
cognizance by the High Courts and the Supreme Court Thus, after scrutinizing section 15, the
Court found that the Contempt of Courts Act did not contain any substantive provision curtailing
the contempt jurisdiction of the Supreme Court and thus the Act was not applicable where a
contempt proceeding was initiated by the Supreme Court under Article 129 of the Constitution.
However it may be noted that, according to the Supreme Court, the contempt jurisdiction of the
court of records cannot be limited by a statute.

Thus there is no need for scanning the provisions of Contempt of Courts Act. If the jurisdiction
of courts of record could not be limited by statute it is of no relevance that the Act did or did not
contain provision curtailing the contempt powers of the Supreme Court. The very act of scanning
the provisions of the Contempt of Courts Act would itself indicate that the Supreme Court is
doubtful about the ratio that the contempt jurisdiction of the Supreme Court as court of record
cannot be limited by statute. The decision that the Act was not intended to deal with contempt
powers of the Supreme Court needs reconsideration. The origin and history of the Contempt of
Courts Act, 1926 shows that it was intended to deal with contempt powers of courts of record.
When it was enacted the only courts of record existing were High Courts. Thus, the Act was

60
V.D.KULSHRESHTHA, Supra note 25
61
Ibid

27 | Page
intended to deal with contempt powers of High Courts only. When the Contempt of Courts Act
1952 was enacted, the Supreme Court had come into existence. So it was necessary to deal with
contempt powers of the Supreme Court also in the Act. This was however not done.

The present 1971 Act was enacted after thorough study and discussions of the Sanyal
Committee, and after serious discussions and debates in Parliament. 62In spite of all these studies
and discussions, if the statute does not contain substantive provisions dealing with contempt

powers of the Supreme Court, definitely it is a serious omission committed by the Parliament.

Two points may be considered in this regard. The first is the correctness of the conclusion
reached by the Court that section 15 is the only provision dealing with contempt powers of the
Supreme Court, under the Contempt of Courts Act. The second question in this context is the
attitude of the Supreme Court with regard to the available provision in the Contempt of Courts
Act regarding the Supreme Court. On the first question, it is submitted that the finding of the
Supreme Court on section 15 is not correct.

E. Criminal Contempt of Court- Jurisprudence and Punishment

A. Criminal Contempt in Common Law

Though criminal contempt of court is treated as a crime in the ordinary sense of the term, it
occupies a unique position in criminal law. It is the only crime which has been tried summarily in
the superior courts. Generally criminal contempt is described as an act in disrespect of a court or
its processes, or which obstructs the administration of justice or tends to bring the court into
disrespect and traditionally has been characterized as sui generis in nature. The proceeding for
criminal contempt is in the name of the State, and conducted by the State, with State on one side
and contemporary on the other and is considered purely punitive in character. Though these are
the general characteristics of criminal contempt, the descriptions touch only the periphery of
criminal contempt and taking into account the difficulties involved in defining criminal

A.G. Noorani, Contempt of Court and Free Speech, ECONOMIC AND POLITICAL WEEKLY, May 19,2001, at 1693-
62

1694

28 | Page
contempt, it has been described as inordinately sweeping and vague and the most ill-defined and
elastic contours in common law.63

The second is publication or doing of any act which prejudices, or interferes or tends to interfere
with the due course of any judicial proceeding. Here the word ‘due course of any judicial
proceedings’ indicates that it could be committed only when the proceeding is in its due course.
At what stage a judicial proceeding could be treated in its due course is a doubtful question.
However under common law this category of criminal contempt could be committed when the
judicial proceeding is either pending or imminent. Most of the contents under this category are
published through media, when proceedings are either pending or imminent which adversely
affect fair trial, commonly called trial by media. The third category of criminal contempt is by
publication or by doing of any act which interferes or tends to interfere or obstruct or tends to
obstruct the administration of justice in any other manner.

This category includes publications or conducts which would not come under the first and second
categories but at the same time having the effect of interfering or tends to interfere or obstruct or
tends to obstruct the administration of justice in any other manner. This category of criminal
contempt is much wider than the first and second categories and could be treated as
miscellaneous criminal contempt. Thus criminal contempt could be dealt under three different
heads:

(1) Scandalizing the court

(2) trial by media and

(3) miscellaneous forms of criminal contempt.

B. Scandalizing the Court: The Legal Position in India

Though the 1926 and 1952 Contempt of Courts Acts did not recognize any separate head for
scandalizing the court, scandalizing the court by publication or by conduct is taken seriously in
India. Following common law principles any publication or conduct which scandalizes or tends

63
M S. Gill, Contempt of Court by Publications, 24 Cal L R 114, 114 (1935)

29 | Page
to scandalize or conducts which adversely affect the authority of court were treated as contempt
by scandalizing the court.Basically all ingredients of scandalizing the courts recognized in
common law were followed in India also. The distinction between judicial function and executive
function exercised by judicial officers was treated as highly important in India also to attract
contempt by scandalizing the court.

Thus in Rex v B.S. Nayyar,64Allahabad High Court after considering common law principles
concluded that, the wrong of contempt of court was applicable only in relation to exercise of
judicial functions. The Court observed thus: “The first thing to be remembered is that Courts
are not concerned with contempt of any authority except Courts of law in the exercise of their
judicial functions. Thus, any speech, writing or act which does not have the effect of
interfering with the exercise of their judicial functions by the Courts cannot be the subject of
proceedings in contempt. In India very often the same officers exercise executive as well as
judicial functions. Sometimes it becomes difficult to draw a distinction between their two
capacities but nevertheless a distinction must be drawn and it is only if the criticism is of
judicial acts that action by way of proceedings in contempt may be taken. Criticism of any
kind, even though it may amount to libel, of the action of an Executive Officer, or a policeman
or a member of the Legislature or even of a Minister cannot be dealt with in proceedings for
contempt. It was further recognized that to attract this type of contempt, publication or conduct
need not be during the pendency of judicial proceeding. The scandalous publication or
conduct even before or after disposal of the case can be treated as contempt of court under this
category.

It is well recognized in India that where the offending language used in a document is calculated
to lower the authority of the court and sense of prudence of the people in the administration of
justice it may amount to contempt. Thus abuse against judge including alleging bias,
incompetence, corruption etc were taken seriously and attempts were made to establish link
between attack on a judge and administration of justice. Narrating this link in State v Vikar
Ahmad, it was observed that Scandalizing the court is not as obsolete as some authorities have

64
John Charles Fox, Supra note 49

30 | Page
thought. In long series of cases persons have been held liable in contempt for writing and
publishing articles unjustifiably attacking the Chief Justice and Judges of the High Court.

The need for demarcation between contempt of court and defamation of a judge was well
recognized in India too. In Broma Prakash Sharma v State of Uttar Pradesh, the matter was
considered in detail and it was decided that contempt was something more than defamation and
was of a different character. The real distinction between contempt of court and defamation of a
judge lies in the fact that contempt is really a wrong done to the public by weakening the
authority .

Under present Position of scandalizing the court under the Contempt of Courts Act, 1971 Under
the present Contempt of Courts Act, scandalizing the court is dealt under a separate head. Under
the Act, publication by words spoken, written or by signs, or by visible representations or
otherwise which scandalizes, or tends to scandalize, or lowers or tends to lower the authority of
court is specifically dealt as conducts which scandalizes the court. To attract contempt under this
head, it is not necessary that there must be an existing judicial proceeding. The present Contempt
of Courts Act is armed with more powers to deal with publications which scandalizes or tends
to scandalize the courts. Emphasizing the importance of protecting courts from unnecessary and
uncontrolled criticisms, under the present law, in Dr. D.C. Saxena v Chief Justice of India,65it
was observed as follows; Therefore, it is of necessity to regulate the judicial process free from
fouling the fountain of justice to ward off the people from undermining the confidence of the
public in the purity of fountain of justice and its due administration. Justice thereby remains
pure, untainted and unimpeded.

The punishment for contempt, therefore, is not for the purpose of protecting or vindicating either
the dignity of the court as a whole or an individual judge of the court from attack on his personal
reputation but it is intended to protect the public who are subject to the jurisdiction of the court
and to prevent undue interference with the administration of justice. If the authority of the court
remains undermined or impeded the fountain of justice gets sullied creating distrust and disbelief
in the mind of the litigant public or the right - thinking public at large for the benefit of the
public.

65
Dr. D.C. Saxena v Chief Justice of India (1996) 5 SCC 216

31 | Page
Similarly in P.N. Duda v Shiva Shankar66Supreme Court observed that any criticism about the
judicial system or judges which hampered the administration of justice or which eroded faith
in the objective approach of the judges and bringing administration of justice into ridicule
must be prevented. At the same time the importance of criticism to correct the fallible judiciary
is recognized under the present law also. In contrast with the previous legislation the position
of fair criticism in contempt proceeding has incorporated in the present Act itself. The Act
specifically says that fair criticism of judicial acts is not contempt. To raise the plea of fair
criticism, the criticism must be on the merits of the case which has been heard and finally
decided. After final decision, a judgment could only be treated as a public document and every
individual is having a right to make fair and reasoned criticism on the judgment. But where the
criticism makes allegation against the judge, including allegation of bias, corruption and unfitness
to hold the office, such criticism could be treated as having the effect of scandalizing or lowering
the authority of court.
In Dr. D.C. Saxena v Chief Justice of India67forms an example for allegation of bias which was
treated as contempt of court under the present law. In this case, the petitioner made some wild
allegations including bias, corruption and unfairness against the then Chief Justice Ahmmadi.
The provocation of the contemnor was the dismissal of his writ petition by the Judge. All the
allegations were made by the petitioner through a subsequent writ petition. The contemnor
alleged that Justice Ahmmadi was unfit to hold the post of Chief Justice of India. It was further
stated that the dismissal of his former writ petition by Justice Ahmmadi was unjust, arbitrary and
unlawful. Contemnor stated that by trying to browbeat the petitioner, Justice Ahmmadi was
reluctant to perform his fundamental duties and constitutional obligations. The criticisms against
Justice Ahmadi were serious in nature and the allegations were made against him as a judge
and it amounted to scurrilous abuse. The Court found that the scurrilous abuse including
allegation of bias, incompetence etc against the Chief Justice of India led to substantial
interference with administration of justice mechanism and could be treated as contempt of
court.68

66
P.N. Duda v Shiva Shankar and others, (1988) 3 SCC 167, 182.
67
Dr. D.C. Saxena v Chief Justice of India (1996) 5 SCC 216
68
Ibid

32 | Page
In Rajendra Sail v Madhyapradesh High Court Bar Association,69the Supreme Court took into
consideration at what point criticism against judicial decision could be treated as contempt. In this
case the criticism made by the contemnor in highly abusive language, who was a prosecution
witness, unhappy with the acquittal of an accused in a murder case by the Madhya Pradesh High
Court was the contentious issue. The Madhya Pradesh High Court found that the criticism
exceeded all limits of fair criticism and he was sentenced to six months simple imprisonment. On
appeal, Supreme Court observed thus:

The judgments of courts are public documents and can be commented upon, analyzed and
criticized, but it has to be in dignified manner without attributing motives. Before placing
before public, whether on print or electronic media, all concerned have to see whether any
such criticism has crossed the limits as aforesaid and if it has, then resist every temptation to
make it public. It was further pointed out that the speech that the judgment was rubbish and
deserved to be thrown in a dustbin could not be treated as fair criticism . These comments were
treated as having transgressed the limits of fair and bonafide criticism. It was found to have a
clear tendency to affect the dignity and prestige of the judiciary.70

However in this case a lenient view was adopted by Supreme Court regarding sentence. The
Court took into account the back ground and organization to which the appellant belonged and
the various public interest litigations brought by the appellant before the Supreme Court and
various High Courts. Taking into account all these aspects the Court reduced the punishment to
one week simple imprisonment.

A unique feature of the 1971 Act is that, it recognizes a far wider operation of scandalizing the
court. The Act recognizes that though publication is the main method for committing criminal
contempt by scandalizing the court, publication is not necessary ingredient. Thus criminal
contempt can be committed by ‘doing of any other act whatsoever’. The words clearly recognize
scandalizing the court by doing of acts. Thus in Arun Paswan S.I v State of Bihar,71by an order
of a district and sessions judge, a police officer was directed to remain present in court till the
rising of the court at 4.30 P.M and to file an explanation for his continuous non cooperation as an
69
In Indirect Tax Practitioners Association v R.K. Jain, AIR 2011 SC 2234,
70
State of Rajastan v Prakash Chand, (1998)1 SCC 1, 24- 25.
71
Arun Paswan S.I v State of Bihar (2004) 5 SCC53.

33 | Page
investigating officer in a criminal case. As retaliation to the order, some police officers
assembled near the Court and raised abusive slogans against the district judge creating a
pandemonium in court premises. The conduct was treated as scandalizing the court and
punishments imposed on the contemnors by the High Court were upheld by the Supreme
Court.The significance of the case was that the criminal contempt of scandalizing the court in
this case was committed not by publication but by conduct.72

C. Media Trial

Now in India interferences regarding sub judice matters and trial by media is governed by
Contempt of Courts Act, 1971. The Act brought substantial changes in the contempt law of our
country. Primarily the Act bifurcated contempt under civil and criminal heads. Further under
section 2 (c) criminal contempts are classified under three heads. Among these, the first category
is contempt by publication or doing of any act, which scandalizes or tends to scandalize, lowers
or tends to lower the authority of any court. The second is publications or doing of any act which
prejudices or interferes or tends to interfere with the due course of any judicial proceeding.
The third such category is publication, which interferes or tends to interfere, or obstructs or tends
to obstruct the administration of Justice in any other manner. The importance of classifying
criminal contempt into these categories under Cl (i) to (iii) and the contents of each such criminal
contempt was lucidly explained by Supreme Court in Rachapudi Subba Rao v Advocate
General Andhra Pradesh 73 , in the following words:

It is noteworthy, that in the categorization of contempt in three sub - clauses (i) to (iii), only
category (ii) refers to ‘judicial proceedings’. Scandalizing of Court in its administrative capacity
will also be covered by sub - clauses (i) to (iii). The phase “administration of justice” in sub
clause (iii) is far wider in scope than “course of any judicial proceeding”. The last words “in any
other manner” of sub clause (iii) further extend its ambit and give it a residuary character.
Although sub clauses (i) to (iii) describe three distinct species of criminal contempt, they are not
always mutually exclusive. Interference or tendency to interfere with any judicial proceeding or
administration of Justice is a common element of sub - clauses (ii) and (iii). This element is not
72
Ibid
73
Rachapudi Subba Rao v Advocate General Andhra Pradesh, (1981) 2 SCC 577.

34 | Page
required to be established for a criminal contempt of the kind falling under sub - clause (i). Thus
under the first and third category, to attract contempt of court, no pending case is required.

But under the second category, the words ‘prejudices, or interferes or tends to interfere with, the
due course of any judicial proceeding’, clearly indicate that the operation of this clause is limited
to prejudices or interferences with the due course of any judicial proceeding. Similarly under
clause (iii) any conduct which interferes or tends to interfere with or obstructs or tends to obstruct
the administration of justice in any other manner include prejudices or interferes with the due
course of any judicial proceeding also.

The judicial proceeding in this context can be civil or criminal. The interference with due course
of any judicial proceeding under Cl (ii) as well as under Cl (iii) need not be necessarily by
publication. The interference by any other conduct could attract sub judice principle and the same
could be treated as contempt of court. Thus trying to influence the witness, trying to influence the
Judge, preventing the function of a commission appointed by the court, or creating any such other
situation which prejudices or interferes or tends to interfere with the due course of any judicial
proceeding could lead to criminal contempt of court by invoking sub judice principle.However
the 1971 Act isolates trial by media and treats it under a separate head.

D. Punishment of Criminal Contempt under Art 129 of Indian Constitution

The Constitution nowhere mentions anything about punishment for proved contempt proceeding
initiated under Articles 129 and 215. The application of the Contempt of Courts Act with respect
to punishments, when contempt proceeding was initiated under the Constitution of India, was
raised in Sukhdev Singh’s case,74where it was observed that though the contempt jurisdiction of
a court of record was unlimited, yet regarding punishment it is limited by the Contempt of
Courts Act.134. The matter was again considered by the Supreme Court in Mohd. Ikram
Hussain v State of Uttar Pradesh 75
where the Supreme Court held that the Constitution had
preserved the powers of High Courts in respect of punishment for contempt. Holding that such
powers were inherent in a court of record, it was opined that the only curbs on the powers of

74 75
Sukhdev Singh Sodhi v The Chief Justice and Judges of The Pepsu High Court, AIR 1954 SCR 454
Mohd. Ikram Hussain v State of Uttar Pradesh AIR 1964 SC 1625

35 | Page
the High Court were those contained in the Contempt of Courts Act which limited the term of
punishment to six months simple imprisonment.76

These judgments created an impression that the maximum punishment mentioned under the
Contempt of Courts Act was applicable to contempt proceeding initiated by the Supreme Court
and the High Courts under Articles 129 and 215 respectively. Subsequently the application of
maximum punishment mentioned under the Contempt of Courts Act when contempt proceeding
was initiated under the constitutional provisions came for consideration of the Supreme Court in
Delhi Judicial Service Association Case.77 In this case, where proceeding was initiated under
Article 129, it was contended that the powers of court of record could not be taken away by a
statute and the maximum punishment mentioned under the Act would not applicable to a

proceeding initiated by Supreme Court as court of record.

Without specifically answering whether punishment for proved contempt initiated under
Article 129 and 215 could be limited by a statute, it was observed that the Act did not contain
any specific provision curtailing the power of punishment of Supreme Court when proceeding
was initiated under Article 129. However, though the Court reached the conclusion that the
Contempt of Courts Act is not applicable while imposing punishment in a contempt proceeding
initiated under Article 129, it seems that the punishment mentioned under the Act influenced
the Supreme Court while awarding the punishment.

Thus, though the conduct of the contemnors was very much heinous, the punishment imposed by
the Court to the key contemnor was simple imprisonment for a period of six months and a fine of
rupees one thousand, which was quite within statutory limits. If we take into account the conduct
of the police officers and the gravity of interference with administration of justice, six months
simple imprisonment does not seem to be proportionate. Here the Supreme Court could have
imposed heavier penalty. But the Court abstained from it probably due to the influence of the
maximum penalty mentioned under the Contempt of Courts Act.The same line of approach was
followed in Pritam Pal v High Court of Madhya Pradesh,78 where it was held that the Supreme

76
Delhi Judicial Service Association Tis Hasari Court Delhi, Supra note 63
77
Harshita Tomar, Nayan Jain, Supra note 39
78
Pritam Pal v High Court of Madhya Pradesh, 1993 Supp (1) SCC 529

36 | Page
Court as well as High Courts, as courts of record, had inherent jurisdiction to initiate
contempt proceedings. Thus, under such a constitutional foundation of these powers, the same
could not be taken away by any legislation short of constitutional amendment.

Thus in this case the Supreme Court did not even ventured to look into the provisions of the
Contempt of Courts Act to see whether the Act contained anything limiting the power of
punishment of courts of record. Despite of these observations, the punishment imposed was only
two months simple imprisonment which was well in line with the Contempt of Courts Act.The
question regarding punishment when contempt proceeding is initiated by the Supreme Court as
court of record was again raised

In Re: Vinay Chandra Misra. 79In this case the Supreme Court observed that, since the
contemnor was a senior member of the Bar and also adorned the high offices, his conduct was
bound to infect members of the Bar all over the Country. Taking into account this special
situation, an exemplary punishment of simple imprisonment for a period of six weeks was
imposed. However, it was further made clear that in the circumstance of the case the sentence
would remain suspended for a period of four years and might be activated in case the contemnor
was convicted for any other offence of contempt of court within the said four years. It was also
held that the contender should stand suspended from practicing as an advocate for a period of
three years with the consequence that all the elective and nominated offices at the time held by
him in the capacity as an advocate should stand vacated.80

Thus it seems that with regard to the aspect of punishment, the Supreme Court has completely
neglected the Contempt of Courts Act 1971. Instead, the punishment was imposed on the basis of
Article 142. The scope of Article 142(1) was interpreted by the Court as the power to do
complete justice entirely of a different level and of a different quality. However, though the
Supreme Court expressed that a contempt proceeding initiated under constitutional provisions as
a court of record was not governed by the Contempt of Courts Act, the Court took into
consideration the apology made by the contemnor. It may be noted that apology and such matters
are not mentioned under the constitutional provisions. Being a proceeding under Article 129, it

79
In Re: Vinay Chandra Misra, Supra note 68
80
Mriganka Shekhar Dutta, Amba Uttara Kak, Supra note 10

37 | Page
could have neglected the apology. But the Supreme Court took the apology into serious
consideration, scrutinized it on merits and rejected it.81 While rejecting the apology, though all the
ingredients of section 12 of the Act were scrutinized as to whether the apology was admissible or
not, the Court never mentioned section 12 or its proviso which deals with the defence of apology.

The message conveyed by the Court is clear. In a contempt proceeding initiated under Article
129, in appropriate cases, the plea of apology may be accepted, but not by the operation of the
Contempt of Courts Act. Thus it seems that the Supreme Court was highly determined to see
that the punishment for contempt in proceedings initiated under Article 129 is no way affected
by the Contempt of Courts Act.

The anguish of the Bar over suspension of the former Bar Council Chairman as a punishment for
contempt of court was reflected in the next case, Supreme Court Bar Association v Union of
India.82In this case a petition was filed by the Supreme Court Bar Association, before the
Supreme Court, under Article 32, seeking declaration that a disciplinary committee of the Bar
Council set up under the Advocates Act, 1961 alone has jurisdiction to inquire into and
suspend or debar an advocate from practicing law for professional or other misconducts. 83It
was also urged to declare that the Supreme Court or any High Courts, in exercise of its inherent
jurisdiction, had no such original jurisdiction, power or authority in that regard, notwithstanding
the contrary view taken by the Supreme Court in re Vinay Chandra Misra case. It was further
contended that the power conferred on the Supreme Court under Article 142, though very wide in
its amplitude, could be exercised to do complete justice in any case or cause pending before it.
Thus it was argued that since the issue of professional misconduct was not the subject matter of
any cause pending before the Supreme Court, the Court could not make any order in that
respect under Article 142 or 129.173 It was further submitted that a court of record under
Article 129 of the Constitution had no power to suspend the license of a lawyer to practice
because that was not a punishment which could be imposed under its jurisdiction to punish for
contempt of court.

81
Ibid
82
Supreme Court Bar Association v Union of India AIR 1998 SC 1895,
83
ibid

38 | Page
It was also argued that Article 142 could not be resorted to assume jurisdiction of statutory
bodies and so to suspend sannad of a lawyer. The petitioner further argued that under Article 142
(2), power of the Supreme Court in respect of investigation or punishment of any contempt
including contempt of the Supreme Court is subject to the provisions of any law made in this
behalf by Parliament. Rejecting this argument, the Supreme Court held that section 15 is not a
substantive provision and it could not limit the contempt jurisdiction of the Supreme Court under
Article 129 and 142 (2). Instead, section 15 only prescribes procedural mode for initiation of
criminal contempt by the Supreme Court. It was further held that being a section dealing with
procedural formality, section 15 could not restrict the contempt powers of the Supreme Court
under Article 129 and 142 (2).

This view is contrary to ratio laid down Sukhdev Singh’s case,84where it was observed that
courts exercising contempt powers under the Constitution were subject to restrictions
contained in the Contempt of Courts Act. Sukhdev Singh’s view was thus limited only to the
High Courts under Article 215 and the same was found to be not applicable to the Supreme
Court under Article 129.85 The reason for this differential treatment was that the Contempt of
Courts Act did not contain provisions limiting the jurisdiction of the Supreme Court when
proceeding is initiated under Article 129.

The only question involved in Supreme Court Bar Association v Union of India 86
was validity
of suspension of sannad of a lawyer as punishment for contempt of court by the Supreme Court.
No other issues regarding contempt jurisdiction of the High Courts or the Supreme Court or
maximum punishment were raised in this case. On the issue raised before the Court, the
Supreme Court observed that suspension of license of a professional for contempt of court was
not a recognized or accepted punishment either under common law or under statutory law.

Thus the decision in Vinay Chandra Misra, suspending the sanad of a lawyer was found to be
wrong. The Supreme Court further observed that in a contempt proceeding it could impose any
punishment recognized under common law or statutory law. This observation of the Supreme
Court led to some confusion. Under common law very heavy punishments were imposed for

84
Sukhdev Singh Sodhi, Supra note 83
85
ibid
86
Supreme Court Bar Association, Supra note 96

39 | Page
contempt of court and some of the punishments were even barbarous. The term ‘statutory
punishment’ used in the judgment is highly vague and the punishments which could be imposed
under statutory law are very wide By coming to the conclusion that in a contempt proceeding
initiated by the Supreme Court under Article 129, any punishment recognized under common law
or accepted and imposed by the courts under statutory law could be imposed, made punishment
in contempt proceeding under Article 129 highly flexible and vague and it amount to breach of
well established principles of procedure established by law.

Though in Supreme Court Bar Association case, the Court had not expressed any final opinion
regarding whether or not the maximum punishment which could be imposed by courts of record,
could be limited by statute, it seems that the issue is not taken seriously in subsequent cases
where the issue was specifically raised. Thus in Income Tax Appellate Tribunal v V.K.
Agarwal87the Supreme Court without going into the details of the question, reached a superficial
conclusion that the Contempt of Court Act, 1971 was not applicable to contempt proceeding
initiated under Article 129 for the reason that the amplitude of contempt powers of the
Supreme Court could not be curtailed by any law made by the Central or State Legislature.

In Zahira Hasibulla Sheikh88, by punishing the contemnor to undergo simple imprisonment of

one year and to pay a cost of rupees fifty thousand, the Supreme Court disregarded the
punishment prescribed under the Contempt of Courts Act, 1971, under which, the maximum
punishment is six months simple imprisonment and a fine of rupees two thousand. Though the
imposition of cost is not unusual under the common law in civil contempt proceedings,
imposition of cost in criminal contempt proceedings is not common.

This is for the reason that cost is ordered to rectify loss caused to a party by non compliance
with court order. The present case was not a civil contempt proceeding and there was no case
of injury caused to a party by non compliance with court order to be rectified by imposition of
cost. Further if the cost is paid by the contemnor, it will not go to the petitioner. It may go to
the state exchequer. Again if the cost is not paid, the contemnor shall undergo simple
imprisonment for one more year. Thus, in the present case, despite the use of the term ‘cost’,

Income Tax Appellate Tribunal through President v V.K Agarwall & another, (1999) I SCC 16 88
87

Zahira Habibullah Sheikh (5) v. State of Gujarat,. (2006) 3 SCC 374

40 | Page
in effect it is nothing but fine. These aspects highlight that, the Supreme Court had completely
neglected the Contempt of Courts Act, 1971, while imposing punishment.

E. Contempt in the face of Court

In India, contempt in the face of the court is dealt under section 144 of the Contempt of Courts
Act, 1971. The summary proceeding under section 14 is limited to contempt committed in the
presence or hearing of the Supreme Court and High Courts. With regard to all other contempts,
the usual procedures under Contempt of Courts Act are to be followed. 89 Even in cases where
contempt is committed in the presence or hearing of the court, section 14 envisages some
procedures to be followed. The section provides that, though the judge in whose presence the
contempt is committed could punish the wrongdoer, if practicable, and if an application is made
to that effect, the matter must be dealt by some other judges other than the judge in whose
presence or hearing the contemptuous act was done.

Thus the very philosophy of the Indian law indicates that, as far as possible, the matter must be
dealt by some other judge other than the judge in whose presence or hearing the contempt was
committed. Thus the concept of personal bias, which is not recognized under English law, is
recognized under Indian law at least to a limited extent. Further the view laid down in Wilkinson
case54 was recognized by the Indian Supreme Court much before. Thus in Sukhdev Singh v.
Tega Singh,90 it was observed thus:

We consider it desirable on general principles of justice that a judge who has been personally
attacked should not as far as possible hear a contempt matter which, to that extent, concerns
him personally. It is otherwise when the attack is not directed against him personally. The
judges should bear in mind the oft quoted maxim that justice must not only be done but must
seen to be done by all concerned and most particularly by an accused person who should
always be given, as far as that is humanly possible, a feeling of confidence that he will receive
a fair, just and impartial trial by judges who have no personal interests or concern in his case.

89
Dr. A.P Rajeesh, Classification of Contempt of Court Under Direct and Indirect Heads –The Myth And Realities,
availablehttp://docs.manupatra.in/newsline/articles/Upload/B28B4779-EEC0-4408-997B-DB3EACC45183.2-a__co
ntempt%20of%20court.pdf
90
Sukhdev Singh Sodhi, Supra note 88

41 | Page
In spite of the advantageous position regarding the procedure, the position relating to contempt in
the face of the court is unsatisfactory in India. Primarily, as courts of record, the High Courts and
Supreme Court can initiate contempt proceedings under Articles 129 and 215 respectively for
contempt committed either in the face of the court or contempt committed otherwise. When
proceeding is initiated under the constitutional provisions for contempt which cannot be treated
as contempt in the face of the court, none of the procedures under Contempt of Courts Act need
to be followed and the only procedure to be followed in this regard is the compliance with the
principles of fair hearing.91

Thus the distinction between contempt which are on the face of the court and constructive
contempts turn to be of little relevance when proceeding is initiated by High Courts and Supreme
Court under Constitutional provisions. Further whether the contempt is in the face of the court or
not, under Contempt of Courts Act, the maximum punishment is simple imprisonment which
may extend to six months and a fine of two thousand rupees or with both. But if contempt
proceeding is initiated under Constitutional provisions no such restriction regarding punishment
mentioned under the Contempt of Courts Act is applicable.

In a number of cases Supreme Court and High Courts dealt with contempt in the face of the
court. But in all such cases, Supreme Court and High Courts linked the matters with Articles 129
or 215 respectively. A typical example in this regard is In re Vinay Chandra Misra.92In this case
all the ingredients of contempt in the face of the court mentioned under section 14 of the
Contempt of Courts Act, 1971, were present. But instead of proceeding under section 14 of the
Act, the Chief Justice of Allahabad High Court referred the matter to Chief Justice of India and
the contempt proceeding was initiated by the Supreme Court under Article 129 of the Indian
Constitution.

It was the opinion of the Supreme Court that where contempt proceeding was initiated under
Article 129, the limitations under Contempt of Courts Act were not applicable Thus the
distinction between ex facie and non ex facie contempts incorporated under the Act was turned
to be insignificant. The perplexities in this regard and the very disregard of section 14 of

91
Ibid
92
In Re: Vinay Chandra Misra, Supra note 68

42 | Page
the Contempt of Courts Act, when contempt is in the face of the Supreme Court became more
clear, after the decision in Leila David (6) v. State of Maharashtra and others.93

In this case the conduct of the contemnor was serious in nature and was committed in the face of
the court, in the presence of Solicitor General of India, two Additional Solicitors, and large
number of counsels including the President of the Supreme Court Advocates - on - Record
Association. The conducts of the contemnor include shouting, using abusive intemperate
language and even throwing a chapel at the judges. 94 Definitely it was necessary to deal with the
matter seriously. But the crucial question in this regard was whether the procedures under section
14 of the Contempt of Courts Act, 1971, are to be complied with to punish the contemnor for
contempt committed in the face of the court. No consensus was reached among the two judges
who heard the matter. Dr. Arijit Pasayat, J, opined that as the contemnors stated in the open court
that they stand by what they have said and did in the court, there was no need to issue any notice.
Thus the contemnors were sentenced to three months simple 15 imprisonment.

However Ganguly J. did not agree with Arijit Pasayat J. The Hon’ble Judge adopted the view
that the compliance with the procedures under section 14 of the Contempt of Courts Act is
mandatory when contempt is committed in the face of the court. As there was no consensus of
opinion among the two Judges, the Chief Justice constituted a three judge Bench to decide the
issue. The Bench reached the conclusion that though in normal circumstances the statutory
requirements contained in Section 14 have to be followed, there are exceptional circumstances in
which such procedure may be discarded as being redundant. However the Court has not given any
guideline to show when the requirements under section 14 need not be compiled. Thus the
distinction between contempt in the face of the court and contempt which are not in the face of
the court is confusing and misleading and does not serve any effective purpose regarding
punishment and procedure with respect to courts of record.

93
Leila David (6) v. State of Maharashtra and others (2009) 10 SCC 337
94
Ibid

43 | Page
XIII. CONTEMPT POWERS: JUDICIAL INTERPRETATIONS AND
ACCOUNTABILITY

A. Scandalizing court and failure of judicial accountability

The power of the Courts to punish contempt would appear to be empty rhetoric as far as the
source of this power and the various attempts at its rationalization are concerned. It is not our
intention to say that there is no justification for such powers of the court which it claims to
protect its dignity and authority. However, as has been observed earlier, the advocates of this
power of the court have presupposed the existence of the inherent powers of the court to punish
contemptuous acts, and have advanced numerous theories and justifications to support their
views.

An often cited ground for upholding the enormous power of contempt is that of the necessity to
ensure ‘Rule of Law’. This is something the courts have been repeatedly relying on to justify
their acts of punishing alleged contempt of their powers.

In this light, the Arundhati Roy case 95

is worth special mention since in that judgment, the
Supreme Court of India made a determined effort to elucidate the need to empower the
Courts with thepower to punish contempt of its authority. However, it seems that the
raisond’être behind the existence of such a power is the lack of confidence of the Courts in their
own capacity to earn respect from the people. In fact, the need of any such power would be
irrelevant if the Court realizes that it can have greater authority by winning the confidence and
respect of the people rather than enforcing its authority with penalties.

The Arundhati Roy case has been the focal point of any discussion on the contempt powers of the
Court in recent times. Though it has been repeated time and again, still the background of this
case needs to be mentioned for the present paper. It is noteworthy that writer Arundhati Roy has
faced contempt charges three times including the one already mentioned. The first one was
whenshe wrote an article entitled ‘The Greater Common Good’ which was published in the
Outlook magazine. The author had ridiculed the ‘tender concern’ that the Supreme Court judges

95
In re Arundhati Roy, AIR 2002 SC 1375.

44 | Page
had expressed in regard to the availability of children’s park for the children of the tribal
inhabitants who would be displaced when the height of the Sardar Sarovar dam was increased.
The author had pointed out the ground reality of the plight of the hitherto happy, simple minded
tribals who had been living among nature’s beautiful creations for ages and who had now, not
even been allotted any land for rehabilitation. However, such thoughts of the author did not go
down well with the supreme judicial authority of the country. Two judges of the Supreme
Court felt that these comments made by her were prima facie a misrepresentation of the
proceedings of the Court and constituted contempt of Court.96

It is observed that the Court has time and again referred to freedom of speech and expression as
being used as a cover by offenders guilty of contempt of court. In the subsequent contempt case
against Arundhati Roy, the Court again gave the impression of freedom of speech and expression
being some kind of a garb being misused by miscreants to attack the courts’ authority and
dignity. This is a very unfortunate trend as far as the right to freedom of speech and expression,
which the Supreme Court has itself termed as the ‘lifeblood of democracy’, is concerned and the
attempt of the Court to justify itself from this particular angle needs an assessment. Subsequently
after the final judgment on the Narmada dam was passed, the Narmada Bachao Andolan (NBA)
staged a dharna in front the Supreme Court. A group of lawyers filed a FIR against Medha
Patkar, Arundhati Roy and Prashant Bhushan alleging that they had shouted slogans against the
Supreme Court and had hence committed contempt of court. The court issued a notice asking
why they should not be punished. All three respondents denied that they had committed any
contempt and asserted that they had a right to criticize the judiciary and its decisions in exercise
of their freedom of speech guaranteed by the Constitution.

When that matter was heard, it was revealed that the petitions were frivolous, they suffered from
various procedural flaws, and none of the charges made against any of the three respondents
could be established. The court had to concede that had its registry carefully scrutinized the
petition, perhaps even a notice might not have been issued, and hence, the three persons were
acquitted. But the court took suo motu notice of the contemptuous statements contained in
Arundhati Roy’s affidavit and issued a fresh notice of contempt. The particular affidavit in

A.G. Noorani, Contempt of Court and Free Speech, ECONOMICAND POLITICAL WEEKLY, May 19,2001, at 1693-
96

1694

45 | Page
question is the crucial point of the third and the most significant contempt proceeding in terms of
the Court’s objectivity in such proceedings. However even before proceeding to that, it can be
seen from the haste of the Court in issuing notices that the Court itself created grounds for critics
to question the integrity of the Court .

The natural question that arises in this regard is: what was there in the affidavit of Arundhati
Roy that infuriated the Court so much? Several things might not be considered as contempt by a
reasonable person; there were however some which could have been interpreted otherwise, as
was done by the Supreme Court. Arundhati Roy pointed out in her affidavit that there seemed to
be an inconsistency in the approach of the Court to the urgency of the contempt proceedings in
comparison to other serious issues.97

As a case in point, she mentioned the Tehelk scandal, where some political leaders were caught
red-handed on the camera taking bribes from spurious arms dealers during a sting operation
conducted by the news agency, Tehelka. Though that was an exceedingly grave issue concerning
national security, the then Chief Justice of India refused to allow a sitting judge to head the
judicial enquiry into that scandal on the ground that there were no judges available in the
Supreme Court at that time. Arundhati Roy scathingly termed this reasoning as very ironical
and cynical in comparison to the alacrity of the same Court when the issue of contempt
arose against these three individuals. It was more so because the notices were issued based
on an ‘absurd, despicable, entirely unsubstantiated petition in which all the three
respondents happen to be people who have publicly – though in markedly different ways –
questioned the policies of the government and severely criticized a recent judgment of the
Supreme Court’.98

The writer went further to say that such a response of the Court indicated a‘disquieting
inclination on the part of the Court to silence criticism and muzzle dissent; to harass and
intimidate those who disagree with it’. There is certainly a certain amount of impertinence in the
language used, but there is nothing to suggest that the writer imputed any mala fides to the Court.
It was a mere suggestion, which on a sympathetic reading would appear completely inoffensive.

Published on May 24, 1999, also available at http://www.narmada.org/gcg/gcg.html (Lastvisited on

97

November 1, 2008).
98
Ibid

46 | Page
However, the Court chose to react otherwise, and although it acted with no evil intention, it
certainly did more harm to its repute and credibility by acting thus. Another fact that calls for
concern was that the Court accused ArundhatiRoy of imputing motives to the Court by terming
some of its actions as hasty. The Court had made such an interpretation from the language of the
affidavit which stated that, “It indicates a disquieting inclination on the part of the court to
silence criticism and muzzle dissent, to harass and intimidate those who disagree with it.

By entertaining a petition based on an FIR that even a local police station does not see fit to act
upon, the Supreme Court is doing its own reputation and credibility considerable harm.” She
further added, “... whoever they are, and whatever their motives, for the petitioners to attempt to
misuse the Contempt of Court Act and the good offices of the Supreme Court to stifle criticism
and stamp out dissent, strikes at the very roots of the notion of democracy.”

It is clear to any reasonable mind,from the words used in the affidavit that the allegation was
not that the Court was motivated, but that the court allowed itself to be used as an agent to
stifle criticism and dissent, by external elements who are motivated. It is clear from the context
that Arundhati Roy had not tried to impute motives to the court, and any harm to its reputation
if any, was unintentional.99

Admission of the contempt proceeding and subsequent conviction of Ms. Roy on these grounds
brought the contempt powers of the court under severe scrutiny. The approach of the highest
court of the country in dealing with this particular instance of contempt proceeding was criticized
on all fronts responsible for such criticism. The Court failed to realize the fundamental relation
between the authority of any institution, and the respect and trust of the people that such
institution commands. The trust in the honesty and integrity of the judges is inspired by their
work. If such a fundamental rule is respected and is actually practised, then certainly the
Courts can do without exercise of powers of contempt of court. However, it seems that it is not
obsolete in India despite the fact that Article 19(2) of the Constitution permits, interalia, on the
ground of contempt of court only ‘reasonable restrictions’ on the fundamental right to

99
In re Arundhati Roy, Supra note 106

47 | Page
freedom of speech and expression, guaranteed by Article 19(1) (a). So it is disheartening to
note that although our law is based on English law, our courts follow.100

B. Judicial Interpretation of contempt law in other cases

In light of the Arundhati Roy case, we can have a better understanding of such travesties of
justice when two earlier instances of contempt proceedings are compared. One being the
Shivshankar’s case101 wherein harsh criticism of the judiciary was held not to be contemptuous;
and the other is the Namboodripad’s case.102In the latter case, Namboodripad had been
convicted for contempt for a speech which was a pure theoretical statement on the role of
the judiciary from a Marxist perspective. While criticizing the lack of a standard code for
execution of contempt proceedings, the critics have pointed out that the fact that
Shivshankar was a former judge of a High Court and later a minister in the central
government was the difference between him and Namboodripad. Although this might have
been nothing more than sheer coincidence, that was still enough for some sections of scholars to
raise the issue of disparity in the attitude of the Court as far as freedom of speech vis-à-vis
contempt was concerned. This is very significant in light of the present approach of the Supreme
Court while dealing with the contempt proceeding against Arundhati Roy. In light of these cases,
it has been rightly observed that a more tolerant and sensitive, but not sentimental court, would
doubtless earn greater public admiration. 103

The concept of public admiration is also one that needs to be examined, especially in the context
of public response to media articles or television programmes. The recent Wah India case brings
to light how the gullibility of the readers is often overestimated, making the media vulnerable to
the offence of ‘scandalizing the court.’ The basis for initiating contempt proceedings against
editor, Madhu Trehan, was that the magazine report had ‘scandalised the court’ by making an
imputation that some Judges of the Delhi High Court were not perceived in the most honest light
100
Ibid
101
E.M. Sankaran Namboodripad v. T. Narayanan Nambiar, AIR 1970 SC 2015
102
S.P. Sathe, Accountability of the Supreme Court, ECONOMICAND POLITICAL WEEKLY, April 13,2002, at
1384.
103
Ibid

48 | Page
by some senior advocates whose ratings the magazine had collated. Essentially, the question
boiled down to whether the ratings that senior advocates had assigned to judges based on
parameters like integrity, understanding of law, and courtroom behaviour was challenging the
credibility of the judiciary on the whole. Incidentally the overall ratings were not especially
dramatic, as almost all judges secured more than 30 out of 60, and very few less than 40, out of
the total of the 31 sitting judges who had been ranked.

By accusing the magazine of questioning the credibility of the judiciary, it is clear the court
perceived that the readers would be swayed by the results of this survey so much so that they
would doubt its credibility far more than they would have earlier. This in itself is incredulous; all
this survey did was to show a mirror to the inner workings of the judiciary and revealed
discrepancies that are in fact present in all institutions. Rather than making a self introspection
into its flaws, the court took exception to the survey. Its reaction was noteworthy: the Bench
asked the Deputy Commissioner (Crime), Delhi Police to seize and confiscate copies of the issue
of the magazine from shops, news-stands or any other place where they were being sold. It also
asked the respondents to withdraw from circulation copies of the issue. It further directed that no
one shall publish an article similar to it, or any article, news, letter or any material that tended to
lower the authority, dignity and prestige of the members of the judiciary. The Bench also put a
bar on reporting the proceedings of the case in the media, including contents of the article, in any
manner. Issuing the notices, the Bench asked the respondents to show why they should not be
punished for contempt of court. There was a huge uproar in response to these orders and many
leading media personalities sought to express solidarity with the accused, and clamoured for
more complete media rights.104 This had the desired effect and the court finally did allow media
coverage of the proceedings.

Ultimately, Madhu Trehan tendered an “unconditional and unqualified apology and expressed
deep regret for the article published” and the court reserved its judgment in the case. However,
what needs to be noted is that by overestimating the naivety of the public, or at least projecting
itself as doing so, the court in fact did more harm than good to its reputation. The ‘scandalous’
aspect of the entire episode was the unforgiving and uncalled for response of the court more than
104
hriSurya Prakash Khatri & Anr. v. Smt. Madhu Trehan and Others, 2001Cri.L.J. 3476. 49

| Page

the survey that had been conducted. The Chief Justice of the Delhi High Court, Justice Arijit
Pasayat, reportedly observed during the hearing on May 2, 2001, “We are not defending
ourselves. Judges may be wrong, but you cannot question the credibility of the
judiciary.”However, we need to question whether the courts themselves are blurring these lines
between defending themselves individually or defending the institution of the judiciary. Once
again, the problem arises regarding who represents the judiciary, and in what forms.

Evidently, in the absence of any clear understanding, under this aspect of ‘scandalising the court’
under criminal contempt, it is open to misuse. The purpose of discussing the above instances of
contempt proceedings is certainly not to repeat or further the old debate circling around the
justness of the conviction of Arundhati Roy in the contempt proceedings against her. But such a
discussion has given us an understanding regarding the distrust and doubts created by the exercise
of the power of contempt of court in a manner that is unbecoming of a revered institution like the
Supreme Court. However the root of the problem seems to be the absence of a certain amount of
consistency and uniformity in the exercise of such a power. Another issue associated with it is the
question of the accountability of the Court in the public eye. It is an often cited aphorism of Lord
Hewart that: “. . . it is not merely of some importance but is of fundamental importance that
justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Nevertheless, in comparison to the other organs of the government, the reputation and
credibility of the Indian judiciary is certainly high in the eyes of the people. But then the people
should have the access and opportunity to examine the functioning of the judiciary so that
their faith remains intact. This is a very sensitive issue that is not yet given a positive thought
by the judiciary. The courts must realize that the best way for the court to protect its image is
not by unleashing the contempt whip, but by a thorough and gradual process of self
introspection.

This understanding has been succinctly surmised by Lord Denning in R v. Commissioner of

Police of the Metropolis, Exparte Blackburn (No. 2)
50 | Page
RECENT STRIFE WITH JUDICIARY REGARDING CONTEMPT

PRASHANT BUSHAN’S CONVICTION-DEMISE OF DEMOCRACY?

BACKGROUND

The Indian Supreme Court on 31 August 2020 and 14 August 2020 held lawyer Prashant
Bhushan in criminal contempt of court. In what it described as its “magnanimity” it only imposed
a nominal fine of one rupee, to be paid by September 15, 2020. The Supreme Court specified in
the judgement that if the fine were not paid, he would face simple imprisonment for a period of
three months and debarment from practicing in the Court for a period of three years.

"CJI rides a 50 Lakh motorcycle belonging to a BJP leader, without a mask or helmet."
(86.7% of the google responses105 show it to be not covered by contempt)

"When historians in future look back at the last 6 years to see how democracy has been
destroyed in India even without a formal Emergency, they will particularly mark the role of
the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.” (73.3%
of the google responses106 consider it to fair criticism rather than contempt.)

He has stated that he intends to pay the fine. The Supreme Court on 14 August 2020 had
determined that the tweets were not a “fair criticism of the functioning of the judiciary, made
bona fide in the public interest.” The Court stated that the tweets “scandalize[d]” the authority
of the courts and interfered with the “administration of justice”. It held 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 and it is enough if it is likely, or tends in any way, to
interfere with the proper administration of justice.” As per Article 129 of the Constitution, the
Supreme Court has the power to “punish for contempt of itself”.

JUDGMENT

While the Court only imposed a symbolic fine of one rupee, rather than imprisonment, the ICJ
considers that the conviction appears to be inconsistent with international standards on freedom

105
Fig. 6 ANNEXURE II
106
Fig. 7 Annexure II

51 | Page
of expression and the role of lawyers. The ICJ stressed that the ruling risks having a chilling
effect on the exercise of protected freedom of expression in India and urged a review of the laws
and standards on criminal contempt as applied by the Indian courts.

The two tweets published by Prashant Bhushan referred to the Chief Justice of India riding an
expensive motorbike belonging to a BJP leader “when he keeps the SC in Lockdown mode
denying citizens their fundamental right to access justice” and asserted that the Supreme Court
and the last four Chief Justices of India had contributed to how, in his view, “democracy has
been destroyed in India even without a formal Emergency” The Court in its 31 August judgment
held that the tweets were a serious attempt to “denigrate the reputation of the institution of
administration of justice” which, it said, is “capable of shaking the very edifice of the judicial
administration and also shaking the faith of common man in the administration of justice.”
The Court considered that its ruling was consistent with freedom of speech and expression under
Article 19 of the Indian Constitution, saying that it will have to balance its exercise of power to
punish for contempt for itself (Article 129) with freedom of speech and expression.

The ICJ is concerned, however, that the conviction appears inconsistent with international law on
freedom of expression as guaranteed by the International Covenant on Civil and Political
Rights (Article 19, ICCPR) to which India is a party. While some restrictions of freedom of
expression are permitted by international standards, a particularly wide scope must be preserved
for debate and discussion about such matters as the role of the judiciary, access to justice, and
democracy, by members of the public, including through public commentary on the courts. Any
restrictions must be strictly necessary and proportionate to meet a legitimate purpose, such as
protecting public order or the rights and reputations of others.

HOW FAIR WAS THE COURT TO CONVICT HIM?

Can a republic, much less a judiciary, survive when the ‘foundations of its edifice’ are ‘eroded’?
This is an anxiety that appears to nag the court. They needn’t fear, though. As a stroll through

52 | Page
any Indian slum would tell us, life continues obstinately even amidst ruins. It has no alternate
existential modality.
In the words of Lord Atkin, “justice is not a cloistered virtue”. Lord Denning had said that he
would never use the contempt jurisdiction to uphold his own dignity for “that must rest on surer
foundations”. In words that bear repetition, he said: “We do not fear criticism, nor do we resent
it. For there is something far more important at stake. It is no less than freedom of speech
itself.”

I guess the debate ends with the words of Bhusan himself, “Just because I’m paying the fine does
not mean I have accepted the verdict. We have filed a writ petition that there must be an appeal
procedure created for conviction under contempt.”

The answers in the google form107itself raises questions from the answers/responses received
through the survey.

CONTEMPT BADGE ON KUNAL KAMRA

In a series of tweets on 11 November, the comic had attacked the SC for granting journalist
Arnab Goswami bail after his arrest in an abetment to suicide case. His tweets, which were
referred by AG Venugopala, are:

“Honour has left the building (Supreme Court) long back"

“The Supreme Court of this Country is the most Supreme joke of this country."

In another tweet, Kamra shared an image of the Supreme Court building dressed in saffron
colours with the BJP flag on top instead of the national flag.

AG Venugopal nods for contempt proceedings against Kamra

Venugopal granted consent for initiation of criminal contempt proceedings against the stand-up
comic artist for his tweets, which allegedly criticised the apex court, saying the tweets are in

107
ANNEXURE II

53 | Page
“bad taste" and it is time that people understand that attacking the SC brazenly will attract
punishment.
Venugopal said today people believe that they can “boldly and brazenly condemn" the Supreme
Court of India and its judges by exercising their freedom of speech, but under the Constitution,
the freedom of speech is subject to the law of contempt.

“I have gone through each one of the tweets which you have annexed for consent to proceed
by way of criminal contempt against Kunal Kamra. The tweets which I am extracting below
are not only in bad taste but clearly cross the line between humour and contempt of the court,"
the Attorney General said in his letter to one of the applicants who had sought consent of the top
law officer for initiation of contempt proceedings against Kamra.

“I therefore grant consent to proceed by way of initiating contempt proceedings against Kunal
Kamra," Venugopal said.

COMEDIAN KAMRA’S REACTION TO THE NOD OF THE ATTORNEY GENERAL

“I don’t intend to retract my tweets or apologise for them. I believe they speak for
themselves," wrote Kunal Kamra on Twitter.

“All that I tweeted was from my view of the Supreme Court of India giving a partial decision
in favour of a Prime Time Loudspeaker. I believe I must confess I very much love holding
court and enjoying a platform with a captive audience," tweeted Kamra.

“My view hasn’t changed because the silence of the Supreme Court of India on matters of
other's personal liberty cannot go uncriticized," he said.

Hence, we are once again tempted to test the judiciary’s fear against freedom of speech and
towards a blocked path of justice. In the law as it stands now, while a person accused of contempt
can seek his defense in "truth", he must get the permission of court for this defense after
satisfying it that this truth will be in public interest and that he is acting bona fide, that is, with
reasonable care and caution.

54 | Page
Other countries have progressed to a more liberal regime. In UK, prosecuting a person for
contempt for scandalising the court is considered virtually obsolescent and the Courts have rarely
used this power for several decades. In the US, the offense of scandalizing the court is unknown
and US Courts initiate action for contempt only when they determine that there is 'clear and
present danger' to the administration of justice.

In our country, it is still too early to assess the impact of the recent changes in the law. However,
what is clear is that only the judiciary, of its own accord, can make the move towards a more
liberal interpretation of contempt that allows healthy criticism that can aid its own development
as an institution.

55 | Page
XIV. CONCLUSION

Modern law is a culmination of a long journey from divine law to natural law and further positive
law, and has retained some of the principles and beliefs enshrined in early legal thought.
Although modern law is thought to be rational and free from superstition and myth, we see that it
often clings on to archaic conceptions of the court, often misplaced in today’s context. The law of
contempt is an excellent example of this dichotomy between rationality and mythology
surrounding the judiciary. The concept originated in English medieval monarchies as a way to
preserve the unchallengeable authority of the king, who was believed to be the fountainhead of
justice. The authority of God as the last word was believed to be manifested in him, the human
sovereign. Therefore, in this new, ‘democratic’ era, this protection of the judiciary against
criticism as well as the procedure for its trial appears problematic.

Two questions emerged, during the course of this paper: the first being what the court aims to
protect by this law, and second, what are the images of justice that it seeks to preserve. Now, the
Contempt of Courts Act, 1971 defines criminal contempt as that which ‘scandalizes the court’
or ‘prejudices judicial proceedings’ without providing any explanation of these key terms. The
concept of scandalizing the court remains the most controversial aspect and the paper has so far
attempted to unravel the mystery behind its purpose. However it becomes clear that the
vagueness of this term is not accidental, and coupled with the fact that judges are deciding their
own case, this clause has led to many legal atrocities that have in fact lowered the reputation of
the judiciary. The uncertainty of the law is justified by the need for flexibility; however the
greater evil that comes with this, cannot be ignored. Although it is the administration of justice
that this law aims to protect, it often ends up being used to protect individual judges.
Furthermore, whether the dignity of the judiciary can be preserved by procedures that essentially
contravene principles of fairness emerges as another dilemma. The paper has also delved into the
controversial decisions of the Indian Supreme Court, which have time and again exposed the
insecure attitude of the judiciary when it comes to the respect and prestige it seeks to command.
The Court has more than once failed to realize that the authority of the court which is imposed by
penalties under contempt powers can procure submission, but not respect.

56 | Page
It would be a better option to earn the respect through benevolent handling of the instances of
contempt of court. The several cases already discussed show a disturbing trend of subjective
approach of the court and lack of uniformity in such decisions resulting in an unhealthy
uncertainty concerning the exercise of the powers of contempt of court. Whether the archaic
notion of admiration that contempt law seeks to protect at all exists, and whether the public is
viewed as so gullible to the opinions of the media as to undermine the image of the court are
issues subject to many doubts. Further, the admission of truth as a defence vide amendment of the
statute and subsequent denial of the same in the Mid-Day Newspaper case has once again put a
question mark on the neutrality of the judiciary and the helplessness of the defendant in a
contempt proceeding. The doubt created because of the loops in the statutory provision of truth as
a defence has permeated to the question of judicial accountability. In light of this, it is felt that
there is no place for contempt powers in a modern judicial system, and definitely not in the form
it is currently manifested in. A more relaxed system will reflect greater confidence on the part of
the judiciary, and may find inspiration from the famous quote of Chief Justice Marshall of the US
Supreme Court, “Power of judiciary lies not in deciding cases, nor in imposing sentences, nor
in punishing for contempt, but in the trust, confidence and faith in the common man.”

57 | Page
SUGGESTIONS

Take it this way, any tom, dick and harry one day suddenly gets up and say "I don't agree
with this judgement the entire SC judges should resign" and makes this statement in a
public domain, now how one should take this, it might be an opinion or a careless
thought, and with that same choice of opinion a Judge says it to be a contempt. So where
 is the defined structure of interpretation? What are the limits? One's opinion cannot be
accepted as a contempt from both perspectives. I believe a rational approach to this is
necessary108.

1. There is a general concern that the protection of freedom of expression is rapidly eroding
in India,” said Ian Seiderman, ICJ Legal and Policy Director. “We have seen this
recently around the COVID 19 crisis in relation to the imprisonment of human rights
defenders, on draconian charges of sedition, rioting and unlawful assembly for
protesting against the Citizenship (Amendment) Act.” “While the Indian Supreme
Court has over the years generally been an institution that has served to advance
human rights in India and globally, we fear it now may be perceived as silencing
criticism and freedom of expression by invoking outdated criminal contempt laws.”
added Ian Seiderman.
2. To review the standards of criminal contempt, emphasizing that the law is overbroad and
should be aligned with international law and standards on the limited scope for
restrictions on freedom of expression and criminal contempt. The UN Basic Principles
on the Role of Lawyers affirm lawyers’ right to freedom of expression, and in
particular that lawyers “shall have the right to take part in public discussion of matters
concerning the law, the administration of justice and the promotion and protection of
human rights”, though they should “always conduct themselves in accordance with the
law and the recognized standards and ethics of the legal profession” in so doing. The UN
Declaration on Human Rights Defenders emphasizes that human rights defenders and
others have a right to “publish, impart or disseminate to other views, information and
knowledge on all human rights and fundamental freedoms.

108
Suggestion 8 of the google responses, Annexure II Page 71

58 | Page
3. At present the appointed authorities of the Higher Judiciary have threefold shields. There is
no reasonable solution for the evacuation of degenerate adjudicators. There is no
arrangement for examination of charges against the appointed authorities. The intensity of
contempt of court is utilized as an apparatus to quiet the analysis. It is being utilized to
give total resistance to judges and has systematized legal exemption. No organ of the state
can stay secluded in equitable set up. The legal executive ought to likewise be made
responsible for its demonstrations and oversight. There is a critical need to pass legal
 principles and Accountability Bill 2010 by the Parliament. The need for such sort of
enactment has been felt since long in India. The new Bill plans to put certain guidelines
on the Judges and endorses a few proportions of responsibility. The said Bill will
guarantee that no 'polluted' individual proceeds as a Judge. The enactment won't put
pointless minds to the smooth working of the courts however will just make them
responsible.
4. “The contempt law ought to at last perceive that the court needs to play out the difficult
exercise between two, public interest for example free press and reasonable preliminary.
The Supreme Court has additionally taken a genuine view with respect to media
preliminary. The Supreme Court has forewarned the print and public media to guarantee
that there is no induction in the forthcoming examination/preliminary of the case while
announcing it. The right to speak freely ensured under Article 19(l)(a) must be cautiously
and warily worked out, to keep away from impedance in organization of equity and
prompting unwanted outcomes in issues sub-judice.
5. In a fair set up the legal executive is the Arbitrator of rule of law and the courts are
intended for organization of equity. The Press then again, is a harbinger of public interest
and through its basic eyes the issues of public are esteemed unbiasedly according to
declared standards. In spite of the fact that, the operational territories of both are very
recognized at this point here and there they run into one another on the issue of contempt
offering ascend to a circumstance of contention and disarray. The contempt locale ought
to be sparingly utilized with care and alert. The press should be allowed to release its
obligations valiantly in a vote based system set up. In Democracy there is no need of
judges to vindicate their position. Subsequently, for keeping up certainty on the

59 | Page
individuals in legal executive each analysis ought not be treated as a demonstration of
contempt of court.
6. A history of contemporaries can be kept up. The individuals who submit contempt of
courts quickly while practicing their privilege of the right to speak freely of discourse
ought to be managed with a light discipline in the primary case. In any case, the constant
guilty parties who submit Contempt Act intentionally ought to be appropriately rebuffed.
7. The Higher Judiciary ought to explicitly be made amiable to the writ of Right to
Information Act, 2005. Everyone holding a public office in the Country is responsible as
 are the Judges. The regard and certainty of the public is important for the continuation of
legal autonomy.
8. The arrangements of judges must be beyond reproach and the most ideal path is to present
straightforwardness. The names of the imminent possibility for judgeship in higher legal
executive should be put on the official site so the individual, who will possess the
Constitutional spot, is known to general society, and their experience ought to be
permitted to be examined by people in general.
9. Instead of criminal contempt, there should be more emphasis on civil contempt. Further, to
strike a balance between criticism and contempt, I would have ignored constructive
criticisms under criminal contempt. Only false or abusive allegations on the judiciary
should be included in contempt of court.109 Article 124(4) of the Constitution
demonstrates that in the matter of arrangement of the Judges in the Supreme Court, there
is additionally required counsel with a portion of the Judges of the High Courts. Most
recent practice stylish in the wake of proclamations in the acclaimed Judges Cases
degrades the said sacred position. There is a need to investigate this angle.
10. 230th Report of the eighteenth Law Commission of India, 2009 the eighteenth Law
Commission of India headed by Hon'ble Dr. Equity AR Lakshmanan introduced
Report No. 230 named "Changes in the Judiciary - Some recommendations" to the
Union Minister of Law and Justice Dr. M. Veerapa Moily on August 5, 2009. The Report,
entomb moniker, managed the choice and arrangement of Judges in Higher Judiciary and
saw as follows:

109
Suggestion 5 of Google responses, Annexure II, Page 72

60 | Page
11. The Indian Constitution gives a wonderful arrangement of governing rules under articles
124(2) and 217(1) for arrangement of Judges of the Supreme Court and High Courts
where both the leader and the legal executive have been given a decent job. The idea of
'distribution' in sec. 2(c) isn't clear and can mean any sort of 'distribution' or 'distributions'
to the overall population. 'Private discussion' ought not be regarded to contempt. Some
component of distribution in a public structure or public spot or to the overall population
or a public establishment ought to be presented.
12. The idea of a 'qualified statement of regret' in Sec. 12 of contempt of court Act should
be explained so that judges are certain that an individual may argue his case on merits and
 apologize in the other option. In the event that expression of remorse is offered truly an
individual ought not be rebuffed for contempt of court.
13. Sec. 13 of the contempt of courts Act, 1971 should be altered so an individual would not
be seen as blameworthy of contempt except if there is a significant obstruction with the
organization of equity.
14. The ICJ has expressed its concern regarding the 31 August 2020 and 14 August 2020
decisions of the Indian Supreme Court to convict prominent human rights lawyer Prashant
Bhushan for criminal contempt of court, on the basis of two twitter posts in which the
lawyer criticized the performance of the Indian judiciary.the conviction appears
inconsistent with international law on freedom of expression as guaranteed by the
International Covenant on Civil and Political Rights (Article 19, ICCPR) to which
India is a party. While some restrictions of freedom of expression are permitted by
international standards, a particularly wide scope must be preserved for debate and
discussion about such matters as the role of the judiciary, access to justice, and
democracy, by members of the public, including through public commentary on the
courts. Any restrictions must be strictly necessary and proportionate to meet a legitimate
purpose, such as protecting public order or the rights and reputations of others.

61 | Page
BIBLIOGRAPHY

• PRIMARY SOURCES

A. STATUTES

1. The Advocates Act, 1961

2. The Code of Civil Procedure, 1908

3. The Contempt of Court Act 1981

4. The Contempt of Courts Act, 1971

5. The Contempt of Courts Act, 1952

6. The Contempt of Courts Act, 1926

7. The Criminal Procedure Code, 1898

8. The Criminal Procedure Code, 1973

9. The Constitution of India, 1950

10. The Indian Penal Code, 1860

11. The Press and Registration of Books Act, 1867

12. The Government of India Act, 1935

B. REPORTS:

1. Law Commission of India Report on "Trial by Media : Free speech v. Fair Trial under

Criminal Procedure (Amendments to the Contempt of Courts Act, 1971)." (200th Report, 2006)

2. Law Commission of India Report on " Review of the Contempt of Courts Act, 1971 (Limited
to Section 2 of the Act)." (274th Report, 2018)

3. Report of the National Commission to Review the Working of the Constitution (2002). 4.

Report of P.C. Jain Commission on Review of Administrative Laws (2002). 5. Report of

the Joint Select Committee on Contempt of Court (Bhargava Committee) 1970.

62 | Page
6. Sanyal Committee Report (1963).

7. Justice Report on Contempt of Court (1959).

• SECONDARY SOURCES

A. ONLINE SOURCES:

1. Google Scholar
2. JSTOR, www.jstor.org
3. Manupatra, www.manupatra.co.in
 4. SCC Online, www.scconline.com
5. HEINONLINE (https://heinonline.org/)

B. ARTICLES:

1. Abhitosh Pratap Singh & Madan Mohan, Contempt of Court and the Media, 13 KULR 320
(2006)
2. Bailey. S.H, The Contempt of Court Act 1981, 45 Mod L R 301 (1982)
3. Miller.C.J, Two Cases on Contempt, 31 Mod L R 702 (1968
4. ilip Uke & Sureshchandra R. Bhosale, Legal Profession and Contempt of Courts – A Need
for Harmony and Balance, 26 (2) IBR 68(1999).
5. Eric Fleisig-Greene, Why Contempt Is Different: Agency Costs and "Petty Crime" in
Summary Contempt Proceedings, 112 Yale L J 1223 (2003
6. John Fox, The Nature of Contempt of Court, 37 LQR 191(1921).
7. Pooja Jha, Does Article 129 Confer Power on the Supreme Court to Try Contempt
Committed Against Other Courts Also? KLT 2002(3) (J) 70
8. S. P. Sathe, Freedom of Speech and Contempt of Court, 42 Eco P W 1741(1970 9.
Abhitosh Pratap Singh & Madan Mohan, Contempt of Court and the Media, 13 KULR 320
(2006)
10. Clive Walker, Ian Cram, Debra Brogarth, Reporting of Crown Court Proceedings and the
Contempt of Court Act 1981, 55 Mod L R 647 (1992)

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11. Kelu Nambiar. T.P, Collegium Collapse?, KLT 2010 (2) (J) 49 Legislature to Regulate
Punishment for Contempt, 26 Harv L Rev 265 (1913)
12. Naresh Chandra Rajvanshi, Punishment for Contempt of Court Constitutional Powers of
High Court and Supreme Court Need a Fresh Look, 23 (2) IBR 9 (1996)
13. Noorani.A.G, Public Discussion and Contempt of Court, 19 Eco P W 2070 (1984) 14. S.
P. Sathe, Freedom of Speech and Contempt of Court, 42 Eco P W 1741(1970) 15.
Sureshchandra R Bhosale, Bar and the Bench: Need for Harmony and Balance,23 CULR 276
(1999).
16. Thomas C. Ackerman, Standards of Punishment in Contempt Cases, 39 Cal LR 552
(1951)
 17. S.A. Desai, British Indian Judiciary: the Dualistic Approach, [1992] CULR 309 18.
William R. Worth, Constitutional Law: Due Process: Punishment for Direct Contempt of
Court, 47 Mich L Rev 1218 (1949).

C. NEWSPAPER ARTICLES:

1. Press Council of India,

http://presscouncil.nic.in/speechpdf/media%20workshop%20on%20crime%20j, September 1,
2013.

2. The ABCC News, Freedom to Speech and Contempt,

http://www.abcc.gov.au/Legalactionandinformation/Interventionsandsubmissio, August 1, 2004.

3. Maseeh Rahman, The Changing Law of Contempt of Court, THE GUARDIAN (UK), Dec.
28, 2006.

D. BOOKS:

1. Balakrishan Nair. B, Law of Contempt of Court in India (Atlantic Publishers and Distributors
New Delhi 2004).

2. Chandrasekhan Pillai. K.N, General Principles of Criminal Law (Eastern Book Co. Delhi 2003
reprint 2005).

64 | Page
3. Dr. Subhash C. Kashyap, The Framing of India’s Constitution A Study (Universal Law
Publishing Co. Pvt. Ltd. Delhi, 2nd ed., 2004).

4. Justice Bhagabati Prosad Banerjee and Bhaskar Prosad Banerjee, Judicial Control of
Administrative Action (Wadhwa and Company Agra 2001).

5. Justice Tek Chand, The Law of Contempt of Court and of Legislature (The University Book
Agency Allahabad 4th ed., 1997).

6. Prof. Jain. M.P, Indian Constitutional Law (Wadhwa and company Nagpur 5th ed., 2004,
reprint 2007).

7. Radhika Singh, A Depotism of Law Crime and Justice in Early Colonial India (Oxford
University Press New Delhi 1998).
8. Sharma. B.R, Freedom of Press Under the Indian Constitution (Deep and Deep Publications
New Delhi 1994).

9. Choudary.V.K.S, The Ivory Tower, 51 Years of the Supreme Court, (Universal Law
Publishing Company Delhi 2002).

65 | Page
ANNEXURE- I

https://docs.google.com/forms/d/1zKjXr4SULTCTNZ9Y2zyIAAMpOe_L0UxNi6X6qir40jw/edi
t?usp=sharing

Do you think that there is a fine line between criticism and contempt? *

● YES
● NO
● MAYBE
● DEPENDS
Do you think that today's judiciary is scared of fair criticism? *

● Yes
● No

Do you think that criticism of courts, even within permissible limits, should not be taken to to
lower the authority of the courts? *

● Yes
● No
● Maybe

Do you think that Contempt law infringes the independence of judiciary? *

● Yes
● No
● Maybe

"Law should be made to prohibit judges to take any post retirement jobs. Judiciary
Executive and mainstream media all are working for Hitler." Do you think this statement
accounts for contempt? *

● Yes
● No

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"CJI rides a 50 Lakh motorcycle belonging to a BJP leader, without a mask or helmet." Do
you think this statement accounts for contempt? *

● Yes
● No

"When historians in future look back at the last 6 years to see how democracy has been
destroyed in India even without a formal Emergency, they will particularly mark the role
of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”
Do you think this statement accounts for contempt? *
 ● Yes
● No

Do you think Re. 1 fine imposed by the court on Prashant Bhushan was an appropriate amount?
If not, what amount do you think would have been appropriate? *

● Yes
● Rs. 10,000
● Rs. 1,00,000
● Rs. 00

If you were a SC Judge, would you have got offended by these above mentioned statements?

● Yes
● No

If you had to reform the Contempt law, what changes would you make to strike a balance
between the Criticism and Contempt Conflict? *

Para Answer

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ANNEXURE II (RESPONSES)
WORD LINK- ATTACHED WITH THE MAIL
Fig. 1
 Fig.

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Fig. 3

Fig. 4
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Fig. 5

Fig. 6
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Fig. 7

Fig. 8
If you had to reform the Contempt law, what changes would you make to strike a balance
between the Criticism and Contempt Conflict?

1. secularism would be priority and equal rights to all

2. I would consider doing away with contempt laws altogether. Such laws have no place in a
liberal democracy.

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3. I read somewhere ‘a silenced bar cannot lead to a strong court’
4. To think on the statement said rationally
5. Instead of criminal contempt, there should be more emphasis on civil contempt. Further, to
strike a balance between criticism and contempt, I would have ignored constructive
criticisms under criminal contempt. Only false or abusive allegations on judiciary should
be included in contempt of court.
6. To make it less restrictive and more tolerant.
7. No.
8. Along with a well defined meaning a structured interpretation of the law is necessary. Take
it this way, any tom, dick and harry one day suddenly gets up and say "I don't agree with
this judgement the entire SC judges should resign" and makes this statement in a public
domain, now how one should take this, it might be an opinion or a careless thought, and
with that same choice of opinion a Judge says it to be a contempt. So where is the defined
structure of interpretation? what are the limits? One's opinion cannot be accepted as a
contempt from both perspectives. I believe a rational approach to this is necessary.
9. I don't know..
 10. Na
11. Abrogation of the contempt law rather than reforming it is needed.
12. I should have provided a basic structure for this matter.
13. Maintain the fine line. And would love if court also understand this fine line 14.
Contempt in a healthy environment is the need of the hour to set all the system right. 15.
Independence of judiciary should be practiced by the courts and fair criticisms should be
taken in a positive light.

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