Faculty of Law, Jamia Millia Islamia

“THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME

COURT RULES AND OTHER RELATED STATUTES”
Report
(CLINICAL COURSE-III (PROFESSIONAL ETHICS,
LAWYERING AND BAR-BENCH RELATIONS)
Submitted By:
Name- DEEPANSHU SHAKARGAYE
Student ID: 20162626
B.A.LL.B. (IX Semester) (Self Finance)

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

New Delhi

(21-11-2020)
 ACKNOWLEDGEMENT

As the research for the report has been successfully concluded, I would like to take this
opportunity and sincerely thank a number of people for their continual guidance and unceasing
support, without which it would have been impossible to compile this research.

I am grateful to our Dean, Prof. Eqbal Hussain for his evincing keen interest in the Law course
and continuous encouragement given during our period of study and providing invaluable
opportunity to the work on the particular topic of interest.

In addition, I would like to take this opportunity to express my sincere gratitude to my faculty
guide Mrs. Karishma Sheikh JRF, Faculty for her invaluable guidance, support,
encouragement, supervision and useful suggestions throughout the course of my research work.
Her moral support and continuous guidance enabled me to complete my work successfully. This
study could not have seen the light of the day if her contribution had not been available. I thank
her for granting her precious time and endowing serious consideration upon the viability of the
suggestions formulated by researcher, thereafter, approving the same.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (2.)
 METHODOLOGY

The author has used Doctrinal methodology for conducting legal research. The report will focus
on case-law, statutes and other Secondary Sources. The Author has attempted to encompass all
the Secondary sources that are verified upon court orders to different & reliable investigating
agencies in the judicial system with proper accreditation.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (3.)
 ABSTRACT

Democracy follows the principle that the people are supreme and they are the decision makers. It
follows that all authorities whether judges, legislators, ministers, bureaucrats are servant of
people. By keeping this fact of sovereignty in mind it becomes evident that the people of India
are the masters and all the authorities including the courts are their servants and being a master
people have the right to assess their servant if they does not act properly.

Article 19(1)(a) of the constitution gives the right of freedom of speech & expressions to all
citizens, but on the other hand articles 129 & 215 give the power of contempt of court to the
higher judiciary and this power limits the freedom granted by article 19(1) (a).

Contempt of court is any behavior or wrongdoing that conflicts with or challenges the authority,
integrity, and superiority of the court. These acts might include failure to comply with requests,
witness tampering, withholding evidence, interruption of proceedings, or defying a court order.
These wrongful acts may be committed by attorneys, officers of the court, court personnel,
jurors, witnesses, protestors, or any party involved in a court proceedings.

There are two main types of contempt of court: criminal and civil. Criminal contempt can occur
within a civil or criminal case. Civil contempt might include a refusal to comply with a court
order in a civil action. The punishment prescribed is intended to force compliance with the
specific court order as opposed to punishing the wrongdoer.

Criminal contempt generally involves serious acts or disturbances that defies the dignity of the
court or prevents the court from its normal progression. The punishment is levied to maintain the
authority of the court or the assigned judge. Therefore, the purpose of criminal contempt is
punishment; the purpose of civil contempt is compliance.

Through this report the author discusses the concept of contempt of court in India under various
judicial pronouncement and under different statutes also its history and with present day scenario
which also includes what are the parameters which make the situation as contempt of court.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (4.)
 TABLE OF CONTENT

ACKNOWLEDGEMENT……………………………………………………………….2
METHODOLOGY………………………………………………………………………3
ABSTRACT……………………………………………………………………………..4

CHAPTER 1
1. INTRODUCTION....................................................................................................8-13
1.1. History of Contempt of Court in India……………….……………………….8

CHAPTER 2

2. EXISTING PROVISIONS……………………………………………………….15-32
2.1. Constitutional
Provisions……………………………………………………15
2.1.1. Courts of Record and Power to Punish for Contempt…………..16
2.1.2. Law of Contempt vis-à-vis Article 19(1)(a):…………………….18
2.1.3. Other Constitutional Provision…………………………………..19
2.2. Types of
Contempt…………………………………………………………..21
2.3. The Contempt of Courts Act,
1971………………………………………….21
2.4. The Code of Criminal Procedure, 1973 (CrPC)
……………………………..25
2.5. Scope of the Power of HC & SC to punish for contempt
cases……………..28
2.6. Role of media in highlighting Contempt of
court…………………………...29
2.7. Power of Parliament to Legislate on Contempt
Jurisdiction………………..30

CHAPTER 3

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (5.)
 3. JUDICIAL APPROACH ON CONTEMPT OF COURT………………………..34-45

3.1. The way Contempt Powers have been used in India, at the cost of judicial
accountability………………………………………………………………...36
3.2. Scandalising the Court & The Failure of Judicial Accountability in
India….39
3.3. Latest Judgments on
Contempt……………………………………...............43

CHAPTER 4
4. COMPARISON WITH FOREIGN JURISDICTION……………………………47-52
4.1. United Kingdom...
…………………………………………………………..47
4.2. USA………...
……………………………………………………………….49
4.3. Singapore……...
…………………………………………………………….50
4.4. Pakistan…………...
…………………………………………………………51

CHAPTER 5

5. WHAT DOES NOT AMOUNT TO CONTEMPT………………………………54-56

5.1. Judgment / Order – if capable of different

interpretations…………………..54
5.2. Execution of Order Not Possible……………………………...
………….....55
5.3. Order Difficult to Comply being Unclear in Terms……………...
………….55
5.4. Technical Contempt………………………………………………...
……….56

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (6.)
 CHAPTER 6

6. CONCLUSIONS AND SUGGESTIONS...……………………………………...58-59

BIBLIOGRAPHY/REFERENCE/E-BOOKS…………………………………………...60

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (7.)
 CHAPTER-1

1 INTRODUCTION

“Law is not law if it violates the principles of eternal justice”

- Lydia Maria Child

Republic of India revolves around the rights given in constitution & to be followed by every
Indian citizen in spite of their cast, color & creed because of our versatile society it has become
mandatory to take care of societal, religious & regional sentiments of Citizens of our country,
which is inspired from relative sources in the Vedas, the Upanishads and other religious scripts.
Customization of the presenting values will differentiate as per the customs followed by people
or the concerned in his / her region or religion. Indian law is originated from many religious
practices existing in constitutional system of our society. The term law is defined as rules of
human conduct that flows from a source recognized as competent by the legal order and which
prescribes the imposition of a sanction in the event of disobedience.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (8.)
1.1 History of Contempt of Court in India

The roots of contempt law in India can be traced back to the pre-independence period. The East
India Company took over the territories in India, which required the King of England to issue the
Charter of 1726 that provided for the establishment of a corporation in each Presidency Town.
This Charter is considered to be an important landmark in the history of legal system in India as
it introduced the English laws in the country. Mayor courts were constituted in each of the
Presidency Towns and were made the Courts of Record, and authorised to decide all civil cases
within the respective town and subordinate areas.1

Subsequently, in the year 1774, the Mayor’s Court at Calcutta was replaced by the Supreme
Court of Judicature at Fort William, Calcutta under the Regulating Act 1773. The Mayor’s
Courts at Madras and Bombay were superseded by the Recorder’s Courts, which were also later
abolished and replaced by the Supreme Courts under the Government of India Act, 1800. While
the Supreme Court at Madras came into existence in the year 1801 by the Charter of 1800, the
Supreme Court at Bombay came into existence in 1824 by the Charter of 1823. The Recorder’s
Courts and Supreme Courts had the same powers in the matters of punishing for contempt as was
exercised by the superior courts in England.2 The Supreme Courts were in turn succeeded by the
High Courts under the Indian High Courts Act of 1861. The three High Courts of Calcutta,
Bombay and Madras had the inherent power to punish for contempt. 3 In 1866, the High Court of
Allahabad was established under the Indian High Courts Act, 1861 and was constituted as a court
of record with the power to punish for contempt.4

In 1867, Peacock C.J. laid down the rule regarding the power to punish for contempt quite
broadly In Re : Abdool and Mahtab, (supra) in the following words: “there can be no doubt that
every court of record has the power of summarily punishing for contempt.”

In Legal Remembrancer v. Matilal Ghose & Ors., 5 the Court observed that the power to punish
for contempt was “arbitrary, unlimited and uncontrolled”, and therefore should be “exercised

1
See M P Jain, “Outlines of Indian Legal and Constitutional History” (Lexis Nexis; Sixth edition (2010).
2
Report of the Committee on “Contempt of Courts”, February 1963, Available at
http://dspace.gipe.ac.in/xmlui/handle/10973/33748 (last accessed on November 21, 2020).
3
Id.
4
K. Balasankaran Nair, “Law of Contempt of Court in India” (Atlantic Publishers and Distributors) 2004.
5
Legal Remembrancer v. Matilal Ghose & Ors., (1914) I.L.R. 41 Cal. 173

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (9.)
with the greatest caution: that this power merits this description will be realised when it is
understood that the6re is no limit to the imprisonment that may be inflicted or the fine that may
be imposed save the Court’s unfettered discretion, and that the subject is protected by no right of
general appeal.”

The Division Bench of the Calcutta High Court considered this jurisdiction of the High Court in
1879 in Martin v. Lawrence6 and observed:

“The jurisdiction of the Court, under which this process (is) issued is a jurisdiction that it
has inherited from the old Supreme Court, and was conferred upon that Court by the
Charters of the Crown, which invested it with all the process and authority of the then
Court of King's Bench and of the High Court of Chancery in Great Britain.”

Prior to the coming into force of the Contempt of Courts Act, 1926 there was a conflict of
opinion among the different High Courts as to their power to punish for contempt of subordinate
courts. Madras and Bombay High Courts expressed the view that the High Courts have
jurisdiction to deal with contempt of the Mofussil Courts. 7 But the Calcutta High Court
expressed the view that the High Courts in India did not possess identical power in matters of
contempt of their subordinate courts as possessed by the Court of King’s Bench in England.

In Sukhdev Singh Sodhi v. The Chief Justice S. Teja Singh and Judges of The Pepsu High Court 8,
the aspect of contempt of court was broadly discussed –

“It is true the same learned Judges sitting in the Privy Council in 1883 traced the origin
of the power in the case of the Calcutta, Bombay and Madras High Courts to the
common law of England,….. but it is evident from other decisions of the Judicial
Committee that the jurisdiction is broader based than that. But however that may be, Sir
Barnes Peacock made it clear that the words “any other law” in section 5 of the
Criminal Procedure Code do not cover contempt of a kind punishable summarily by the
three Chartered High Courts….Apparently, because of this the Privy Council held in
1853 that the Recorder's Court at Sierre Leone also had jurisdiction to punish for
contempt, not because that court had inherited the jurisdiction of the English courts but
6
Martin v. Lawrence (1879) ILR 4 Cal 655.
7
Supra note 4.
8
Sukhdev Singh Sodhi v. The Chief Justice S. Teja Singh and Judges of The Pepsu High Court AIR 1954 SC 186.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (10.)
 because it was a court of record…. The High Court of Allahabad was established in 1866
under the High Courts Act of 1861 and was thus constituted a court of record…. The
Lahore High Court was established by Letter Patent in 1919 and was duly constituted a
court of record.”

The Contempt of Court Act, 1926 (hereinafter referred to as the “Act 1926”) was the first
statute in India with relation to law of contempt. Section 29 of this Act recognized the existing
jurisdiction in all the High Courts to punish for contempt of themselves and conferred on the
High Courts the power to punish for contempt of courts subordinate to it. The Act also specified
the upper limit of the punishment that can be imposed for the said contempts.10

In 1927, a Five Judge Bench of the Lahore High Court reexamined the aforesaid position in the
matter of Muslim Outlook, Lahore11 and affirmed its earlier decision in the case of The Crown v.
Sayyad Habib12 observing that the contempt jurisdiction was inherent in every High Court and
not only in the three Chartered High Courts. The Act 1926 was later amended in 1937 to clarify
that the limits of punishment provided in the Act related not only to contempt of subordinate
courts but of all courts.

It is to be noted that while the Act 1926 was applicable to the whole of British India, the princely
states of Hyderabad, Madhya Bharat, Mysore, Rajasthan, Travancore-Cochin, Saurashtra and
Pepsu had their own corresponding state enactments on contempt.

In 1948, the Pepsu High Court was established by an Ordinance, section 33 13 of which provided
that it would be a court of record and would have power to punish for contempt.

The Act of 1926 along with the aforementioned state enactments were repealed and replaced by
the Contempt of Courts Act, 1952 (hereinafter referred to as the “Act 1952”), which made
significant departures from the earlier Act. Firstly, the expression “High Court” was defined to
include the Courts of Judicial Commissioner, which were not so included in the purview of the
Act 1926; and secondly, the High Courts, which now included the Courts of Judicial

9
Sec . 2, Contempt of Court Act, 1926. (Repelled)
10
Sec. 3, Contempt of Court Act, 1926. (Repelled)
11
A.I.R. 1927 Lah. 610.
12
The Crown v. Sayyad Habib (1925) I.L.R. 6 Lah. 528.
13
Sec. 33, Contempt of Court Act, 1926. (Repelled)

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (11.)
Commissioner, were conferred jurisdiction to inquire into and try any contempt of itself or that
of any court subordinate to it. This was irrespective of whether the contempt was alleged to have
been committed within or outside the local limits of its jurisdiction, and irrespective of whether
the alleged contemnor was within or outside such limits.

Under the aforesaid legislation the Chief Courts were also vested with the power to try and
punish for any contempt of itself. The legislation itself prescribed the nature, type, as well as the
extent of punishment that could be imposed by the High Courts and the Chief Courts.

On April 1, 1960, a Bill was introduced in the Lok Sabha to consolidate and amend the law
relating to contempt of court. Observing the law on the subject to be “uncertain, undefined and
unsatisfactory”, and in the light of the constitutional changes in the country, the Government, to
scrutinise the law on the subject and to further study the said bill, appointed a special committee
in 1961, under the Chairmanship of Shri H.N. Sanyal, the then Additional Solicitor General of
India. The Sanyal Committee examined the law relating to contempt of courts in general, and the
law relating to the procedure for contempt proceedings including the punishment thereof in
particular. The Committee submitted its report in 1963, which inter alia defined and limited the
powers of certain courts in punishing for contempt of courts and provided to regulate the
procedure in relation thereto. It is to be noted that the Committee in its report made specific
mention of criminal contempt, recommending specifically the “procedure (to be followed) in
cases of criminal contempt”. The recommendations of the Committee were generally accepted
by the Government after having wide consultation with the State Governments, Union Territory
Administrations, and all other stakeholders.14

The aforesaid Bill was also examined by the Joint Select Committee of the Houses of Parliament,
which also suggested few changes in the said Bill; one of which was in respect of the period of
limitation for initiating contempt proceedings.

After the aforesaid deliberations the Contempt of Courts Act, 1971 (70 of 1971) came to be
enacted (hereinafter referred to as the “Act 1971”), which repealed and replaced the Act 1952.
The said Act 1971 inter alia categorises contempt under two heads i.e. ‘civil contempt’ and
‘criminal contempt’, providing thereunder specific definitions for both (Section 2). It also carved

14
Supra note 2.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (12.)
out a few exceptions, prescribing guidelines for reporting and commenting on judicial
proceedings that would not attract the provisions of the Act. For example, “fair and accurate
report of a judicial proceeding” (Section 4)15 and “fair comment on the merits of any case which
has been heard and finally decided” (Section 5)16 would not give rise to the proceedings under
the Act. The Act also categorically provided that an alleged act would not be punishable
thereunder unless it “substantially interferes or tends substantially to interfere with the due
course of justice” (Section 13)17. The Act also provides for the period of limitation for initiating
the contempt proceedings (section 20)18.

It can be observed from a scrutiny that since the enactment of the Act 1926 and subsequently
with that of the Acts of 1952 and 1971, the power of the court to impose punishment for
contempt of the court ceased to be uncontrolled or unlimited.

Also it is pertinent to mention the issue of “Trial by Media: Free Speech Vs. Fair Trial Under
Criminal Procedure Code, 1973”, (2006), which made certain suggestions for amending the Act
1971. While none of these suggestions pertained to amending the definition of ‘criminal
contempt’, particularly ‘scandalising the court’; the 200th Law Commission Report19, in the draft
bill annexed thereto, proposed an amendment to add an explanation to section 2(c) 20, inclusively
defining the term ‘publication’ so as to include “….publication in print, radio broadcast,
electronic media, cable television network, world wide web.”. However, these recommendations
for amendment of Contempt of Court Act were not accepted in view of various judgments of the
Supreme Court.21

15
Contempt of Courts Act, 1971, S. 4.
16
Contempt of Courts Act, 1971, S. 5.
17
Contempt of Courts Act, 1971, S. 13.
18
Contempt of Courts Act, 1971, S. 20.
19
Law Commission of India, 200th Report, Available at http://doj.gov.in/sites/default/files/Law-Commission-
Reports_1.pdf. (last visited November 21, 2020)
20
Contempt of Courts Act, 1971, S. 2(c).
21
Supra note 19.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (13.)
THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (14.)
 CHAPTER- 2

2. EXISTING PROVISIONS

As long ago as 1742 Lord Hardwicke L. C., delved into the meaning of the term “contempt of
court”, referring to three different kinds of actions that qualify as contempt of court: “One kind
of contempt is scandalising the court itself. There may be likewise a contempt of this court in
abusing parties who are concerned in causes here. There may also be a contempt of this court in
prejudicing mankind against persons before the cause is heard.”22

Halsbury’s Law of England defining “contempt of court” states: “Any act done or writing
published which is calculated to bring a court or a Judge into contempt, or to lower his
authority, or to interfere with the due course of justice or the lawful process of the court, is a
contempt of court. Any episode in the administration of justice may, however be publicly or
privately criticised, provided that the criticism is fair and temperate and made in good faith. The
absence of any intention to refer to a court is a material point in favour of a person alleged to be
in contempt.”23

22
In re : Read v. Huggonson, (1742) 2 Atk. 469.
23
Halsbury's Laws of England (3rd Edn., Vol. 8) at p. 7.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (15.)
A contempt of court is a matter which concerns the administration of justice and the dignity and
authority of judicial tribunals24. The law dealing with contempt of courts is for keeping the
administration of justice pure and undefiled25; and, jurisdiction in contempt is not a right of a
party to be invoked for the redressal of its grievances26.

2.1. Constitutional Provisions

It is well established that Rule of Law is a basic feature of the Constitution, and the Rule of Law
is postulated in the Constitution in the sense of its supremacy 27. It entails inter alia the right to
obtain judicial redress through administration of justice, which is the function of the Courts, and
is imperative for the functioning of a civilised society. To administer justice in an undefiled
manner28, judiciary, as the guardian of Rule of Law, is entrusted with the extraordinary power to
punish misconduct aimed at undermining its authority or bringing the institution into disrepute,
whether outside or inside the courts.

The law for contempt, with power of imposing punishment, ensures respect for the courts in the
eyes of the public by guaranteeing sanction against conduct which might assail the honour of the
courts. Indeed, the courts must be able to discharge their functions without fear or favour29.

In Kapildeo Prasad Sah & Ors. v. State of Bihar & Ors.,30 the Supreme Court held that
disobedience of court’s order would be a violation of the principle of Rule of Law. The law of
contempt can thus be considered to be the thread which holds together the basic structure of the
Constitution. And, the maintenance of dignity of the Court is one of the cardinal principles of
Rule of Law. The law of contempt must be judiciously pressed into service, and must not be used

24
A. Ramalingam v. V. V. Mahalinga Nadar, AIR 1966 Mad. 21.
25
In re: Bineet Kumar Singh, AIR 2001 SC 2018; See also Shakuntala Sahadevram Tewari (Smt.) & Anr. v.
Hemchand M. Singhania, (1990) 3 Bom CR 82.
26
Supra note 24.
27
His Holiness Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., AIR 1973 SC 1461; Smt.
Indira Nehru Gandhi v. Shri Raj Narain & Anr., AIR 1975 SC 2299; Supreme Court Advocates-on-Record
Association & Anr. v. Union of India (2016) 5 SCC 1; State of Haryana & Ors. v. Bhajanlal & Ors, AIR 1992 SC
604.
28
Supra note 25.
29
In Re : Vinay Chandra Misra, AIR 1995 SC 2348; In Re : S. K. Sundaram, AIR 2001 SC 2374; Mrityunjoy Das v.
Sayed Hasibur Rahaman, AIR 2001 SC 1293; J. R. Parashar, Advocate & Ors. v. Prashant Bhushan, Advocate &
Ors., AIR 2001 SC 3395; Chotu Ram v. Urvashi Gulati & Anr., AIR 2001 SC 3468, AIR 2001 SC 3468.
30
Kapildeo Prasad Sah & Ors. v. State of Bihar & Ors., (1999) 7 SCC 569, 21.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (16.)
as a tool to seek retribution. However, any insinuation to undermine the dignity of the Court
under the garb of mere criticism is liable to be punished.31

The Contempt proceedings are intended to ensure compliance of the orders of the court and
adherence to the Rule of Law. Once the essentials for initiation of contempt proceedings are
satisfied, the Court would initiate an action uninfluenced by the nature of the direction, i.e., as to
whether these directions were specific in a lis pending between the parties or were of general
nature or were in rem.32

2.1.1 Courts of Record and Power to Punish for Contempt

The Constitution of India designates the Supreme Court and the High Courts as the Courts of
Record. It further grants the Supreme Court and every High Court the power to punish for
contempt of itself. Article 12933 and 21534 of the Constitution of India is in the nature of
empowering courts for the contempt. While Article 129 empowers the Supreme Court, Article
215, on the other hand, empowers High Courts to punish people for their respective contempt if
caught or being complained fiddling with their Jobs. Although, High Court have been given
special powers to punish contempt of subordinate courts, as per Section 1035 of The Contempt of
Courts Act of 1971.

Article 129, of the Constitution of India, states that

“The Supreme Court shall be a court or record and shall have all the powers of such a
court including the power to punish for contempt of itself.

Supreme court as a guardian of right to personal liberty, cannot do anything by which that right
is away, especially when supreme court is acting suo motu as in proceeding for its own contempt.

Art.215: High Courts to be courts of record.—

Every High Court shall be a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself.

31
In Re : Arundhati Roy, AIR 2002 SC 1375.
32
Priya Gupta & Anr. v. Additional Secretary, Ministry of Health & Family Welfare & Ors., (2013)11 SCC 404.
33
The Constitution of India, 1950, art. 129.
34
The Constitution of India, 1950, art. 215.
35
Contempt of Courts Act, 1971, S. 10.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (17.)
The jurisdiction regarding contempt of court is a special jurisdiction. It must be used to uphold
the dignity of the courts and the majesty of law untainted. Another importance of this contempt
power is to ensure the majesty of judicial institutions so that it may not be lowered, and also to
preserve the functional utility of the constitutional deliverables keep functioning smoothly &
untendered due to accuse in system.

The High Courts are also entrusted with the supervisory control over the subordinate courts
under Article 23536 of the Constitution. In this manner, a High Court is the guardian of the
subordinate judiciary under its jurisdiction.

While the Constitution does not define the term “court of record”, its meaning is well understood
across all jurisdictions. In Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of
Gujarat,37 the Supreme Court applied the term to a court whose acts and proceedings are enrolled
for a “perpetual memory and testimony”. Once a court has been declared to be a “court of
record” by a statute, the power to punish for its own contempt automatically ensues. 38 Such a
court also has the power to punish for the contempt of the courts and tribunals subordinate to it. 39
Additionally, a court of record has the power to determine the question of its own jurisdiction. 40
In terms of definitions in other sources, Words and Phrases 41 defines “court of record” as court
where acts and judicial proceedings are enrolled in parchment for a perpetual memorial and
testimony. Such rolls are called the “record” of the court and are of high and super eminent
authority, the truth of which is beyond question. 42 Black’s Law Dictionary (8th Edition)
defines a “court of record” as:

i. A court that is required to keep a record of its proceedings. The court's records
are presumed accurate and cannot be collaterally impeached;
ii. A court that may fine and imprison people for contempt.

36
The Constitution of India, 1950, art. 235.
37
Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat,AIR 1991 SC 2176.
38
Delhi Development Authority v. Skipper Construction Co. (Pvt.) Ltd. & Anr., AIR 1996 SC 2005.
39
Income Tax Appellate Tribunal through President v. V. K. Agarwal & Anr., AIR 1999 SC 452.
40
Ravi S. Naik v. Union of India & Ors., AIR 1994 SC 1558.
41
Permanent Edn. Vol. 10 at 429 cited in Durga Das Basu, Commentary on the Constitution of India 5616
(LexisNexis Butterworths Wadhwa, Nagpur, Vol. 5, 8th edn.).
42
Id.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (18.)
As the Supreme Court observed in the case of Pallav Sheth v. Custodian & Ors.43, that there is no
doubt that the Supreme Court and High Courts are courts of record, and that the Constitution has
given them the power to punish for contempt, which power cannot be “abrogated or stultified”

The procedure provided by the Contempt of Court Act, 1971 has to be followed in the exercise
of the jurisdiction under Article 129 and 215 of the Indian Constitution.

Any individual can recourse to any of the following three options:

 He may place the information in his possession before the court and request the court to
take action.
 He may place the information before the Attorney General and request him to take action.
 He may place the information before the Attorney General and request him to move the
court.

2.1.2 Law of Contempt vis-à-vis Article 19(1)(a):

Freedom of speech and expression is regarded as the “lifeblood of democracy”; Article 19(1)
(a)44 of the Constitution guarantees this freedom to the citizens of India. This right, however, is
not absolute, and is subject to certain qualifications i.e. reasonable restrictions on the grounds set
out in Article 19(2)45. One such ground relates to the contempt of court. The Constitution, which
has given its citizens right to freedom of speech and expression, has given certain powers to the
Judiciary to guard against the misuse of the same, to prevent the right to freedom of speech and
expression being so exercised that it damages the dignity of the Courts or interferes with the
‘administration of justice’.

In Aswini Kumar Ghose & Anr. v. Arabinda Bose & Anr.46, the Supreme Court held that while
fair and reasonable criticism of a judicial act in the interest of public good would not amount to
contempt, it would be gross contempt to impute that Judges of the Court acted on extraneous
considerations in deciding a case.

43
Pallav Sheth v. Custodian & Ors., AIR 2001 SC 2763.
44
The Constitution of India, 1950, art. 19(1)(a).
45
The Constitution of India, 1950, art. 19(2).
46
Kumar Ghose & Anr. v. Arabinda Bose & Anr., AIR 1953 SC 75.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (19.)
Right to freedom of speech and expression does not embrace the freedom to commit contempt of
court47. And, in the garb of exercising right to freedom of speech and expression, under Article
19(1)(a), if a citizen tries to assail the dignity of the court, or undermine its authority, the court
may invoke the power to punish for contempt, under Article 129 or 215 as the case may be. Any
law made by the Parliament or the application of any existing law in relation to contempt of
courts, would tantamount to a reasonable restriction on the freedom of speech and expression 48.
The defence of fair comment is available even during the pendency of the proceedings49.

2.1.3. Other Constitutional Provision

In addition to Article 129, the Supreme Court also draws power to investigate or punish any
contempt of itself from Article 142(2), which reads as under:

“…. (2) Subject to the provisions of any law made in this behalf by Parliament, the
Supreme Court shall, as respects the whole of the territory of India, have all and every
power to make any order for the purpose of securing the attendance of any person, the
discovery or production of any documents, or the investigation or punishment of any
contempt of itself.”

This power of contempt under Article 142(2) lies outside the confines of the Act 1971 and
remains unaffected by the limitation under section 20 of the Act. 50 It has also been observed that
while the jurisdiction to punish for contempt of court is different from the jurisdiction to punish
an advocate for professional misconduct, Article 142 could also be invoked for punishing
professional misconduct.51

In Supreme Court Bar Association v. Union of India,52 the Court made certain observations and
partially set aside and modified its earlier order of In Re : Vinay Chandra Mishra53, on the issue

47
State of Bombay v. P., AIR 1959 Bom 182.
48
J.R. Parashar v. Prashant Bhushan, AIR 2001 SC 3395; and Het Ram Beniwal & Ors. v. Raghuveer Singh &
Ors., AIR 2016 SC 4940.
49
Rama Dayal Markarha v. State of M.P., AIR 1978 SC 921.
50
Supra note, 38.
51
In Re : Ajay Kumar Pandey, AIR 1997 SC 260; See also, Pritam Pal v. High Court of M.P. Jabalpur, Through
Registrar, AIR 1992 SC 904.
52
Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895.
53
Vinay Chandra Mishra, AIR 1995 SC 2348.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (20.)
of restraining an advocate from appearing in the Court as punishment for established contempt of
court. It was held that

“Punishing a contemner advocate, while dealing with a contempt of court case by

suspending his licence to practice, a power otherwise statutorily available only to the
Bar Council of India, on the ground that the contemner is also an advocate, is, therefore,
not permissible in exercise of the jurisdiction under Article 142.”

The above position changed in 2016 with the case of Mahipal Singh Rana v. State of U.P.54,
where the Supreme Court held that in case the Bar Council fails to take action against an erring
advocate, the Court can exercise its powers suo motu under Section 3855 of the Advocates Act,
1961, and suspend the license of such an advocate for a particular period. The Supreme Court
further held:

“We may add that what is permissible for this Court by virtue of statutory appellate
power Under Section 38 of the Advocates Act is also permissible to a High Court Under
Article 226 of the Constitution in appropriate cases on failure of the Bar Council to take
action after its attention is invited to the misconduct.”

2.2. Types of Contempt

Contempt of court is considered when a conduct disrespect or disregard or hinder or mess up

with integrity of any party during serving law as officials or somehow working as judicial server.
Generally there are two types of contempt followed in courts.

a.) Civil Contempt

It has been defined as intractable disobedience to any judgment, direction, order, write or other
process of a court or willful breach of an undertaking given to a court Under Section 2(b)56 of
the Contempt of Courts Act of 1971.

b.) Criminal Contempt

54
Mahipal Singh Rana v. State of U.P., AIR 2016 SC 3302.
55
The Advocates Act, 1961, S. 38.
56
Contempt of Courts Act of 1971, S. 2(b).

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (21.)
Under Section 2(c)57 of the Contempt of Courts Act of 1971, criminal contempt has been defined
as the publication of any matter or the doing of any other act whatsoever which:

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

In India High Court and Supreme Court have right to the power to punish for the contempt of the
court.

2.3. The Contempt of Courts Act, 1971

The Act 1971 was enacted to give effect to the recommendations contained in Sanyal Committee
report of 1963. A perusal of the ‘Statement of Objects and Reasons’ of the Act 1971 shows that it
was felt that the then existing law relating to Contempt of Courts was somewhat uncertain,
undefined and unsatisfactory, and as the jurisdiction to punish for Contempt touches upon two
important fundamental rights of the citizen, namely the right to personal liberty and the right
to freedom of speech and expression, the subject required special scrutiny and consideration.

i. Section 2

Section 2 of the Act, defines “contempt of court”, and distinguishes between “civil contempt”
and “criminal contempt”, reading as follows:

2. Definitions. In this Act, unless the context otherwise requires, -

(a) “contempt of court” means civil contempt or criminal contempt;

(b) “civil contempt” means wilful disobedience to any judgment, decree,

direction, order, writ or other process of a court or wilful breach of an undertaking
given to a court;

57
Contempt of Courts Act of 1971, S. 2(c).

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (22.)
 (c) “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

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct,

the administration of justice in any other manner;

A disorderly conduct of a contemnor that causes serious damage to the institution of justice
administration amounts to contempt. Such conduct can be categorised on the basis of its adverse
effects and consequences under two heads:

(i) one, where it has a temporary effect on the system and/or the person concerned,
such that will fade away with time;
(ii) other, where it causes permanent damage to the institution and to the
administration of justice58.

Any conduct attributing improper motive to a Judge or any scurrilous abuse to a Judge will
amount to scandalising the court under Section 2(c)(i) of the Act 197159.

Any speech tending to influence the result of a pending trial - civil or criminal - is a conduct of
grave contempt. Such comments on pending proceedings from the concerned parties or their
lawyers are generally a more serious contempt than those from any independent sources60.

(ii) Section 10

Section 10 of the Act deals with contempt of subordinate courts. It empowers the High Court to
“exercise the same jurisdiction, powers and authority, in accordance with the same procedure

58
Kalyaneshwari v. Union of India & Ors., (2012) 12 SCC 599.
59
Rajesh Kumar Singh v. High Court of Judicature of M.P., AIR 2007 SC 2725; and Het Ram Beniwal & Ors. v.
Raghuveer Singh & Ors., AIR 2016 SC 4940.
60
State of Haryana & Ors. v. Bhajan Lal & Anr., AIR 1993 SC 1348.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (23.)
and practice, in respect of contempt of courts subordinate to it as it has and exercises in respect
of contempt of itself”. Proviso to the section carves an exception for cases of contempt which
amount to an offence punishable under the India Penal Code, barring the High Court from taking
cognizance in such cases.

(iii) Section 12

This section prescribes the punishment for contempt of court and the limits thereto; also laying
down specifics of punishment for when the contemnor is a company. Under Section 12 of
Contempt of Court Act, 1971, a contempt of court can be punished with simple imprisonment for
a term which may extend to maximum of six months, or with fine which may extend to two
thousand rupees, or with both. However, in civil cases if the court considers that a fine is not
sufficient for justice then court can sentence civil prison for six months rather than simple
imprisonment.

(iv) Sections 14 and 15

Section 14 of the Act lays down the procedure for when the contempt is in presence or hearing of
the Supreme Court or a High Court. Section 15 explains the procedure for dealing with criminal
contempt (other than those addressed under section 14) of the higher courts and the subordinate
courts.

The whole object of prescribing procedural mode of taking cognizance is to prevent wasting of
the valuable time of the Court from frivolous contempt petitions 61. The consent of Advocate
General is not necessary for the court to initiate contempt proceedings if the issue involved in the
proceedings had greater impact on the administration of justice and on the justice delivery
system62.

Pressing into service the law of contempt, the court may proceed suo motu or on a petition of an
advocate of the court.63

61
Bal Thackery v. Haris Pimpalkhute & Anr., AIR 2005 SC 396.
62
Muthu Karuppan v. Parithi Ilamvazhuthi, AIR 2011 SC 1645.
63
C. K. Daphtary v. O. P. Gupta & Ors., AIR 1971 SC 1132.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (24.)
To ensure fairness in procedure of contempt proceedings64, a notice should be issued to the
contemnor and an opportunity of being heard must be given to him.65 A formal charge may not
be necessary, however, adequate and pertinent details must be provided. Further, in case the
procedure to conduct contempt proceedings has been prescribed or rules have been formed in
this regard, the same is to be given adherence66.

In L. P. Misra v. State of U.P. 67, the Supreme Court held that when the High Court invokes its
extraordinary powers under Article 215 of the Constitution, it must give strict adherence to the
procedure prescribed by law.

(v) Section 16

Section 16 of the Act deals with contempt by a Judge, Magistrate or other person acting
judicially. A Judge can foul judicial administration by misdemeanours while discharging the
functions of a Judge68.

There has been a case of criminal contempt of gravest nature by the sitting judge of a High
Court, bringing serious allegations against his colleagues on the bench and judges of the
Supreme Court in public forums, but not substantiating nor contesting his stand when called
upon to do so. In such an eventuality the contemnor judge was convicted and sentenced.69

(vi) Section 22

This section specifies that the provisions of the Act 1971 are supplemental to the provisions of
any other existing law relating to contempt of courts.

The Act provides for a fair procedure and restricts the power of the courts in relation to contempt
of courts, compared to the position that was prior to the Act 1926. The power of the court to
impose punishment for contempt of the court ceased to be uncontrolled or unlimited with the
enactment of specific contempt of courts legislation – beginning with the Act 1926, and
64
Sukhdev Singh Sodhi v. Chief Justice S. Teja Singh & the Hon’ble Judges of the Pepsu High Court , AIR 1954 SC
186.
65
Supra note 48.
66
Nagar Mahapalika of Kanpur v. Mohan Singh (1966) All WR 179 (SC); and Sahdeo @ Sahdeo Singh v. State of
U.P. & Ors., (2010) 3 SCC 705.
67
L. P. Misra v. State of U.P., AIR 1998 SC 3337.
68
Baradakanta v. The Registrar, Orissa High Court, AIR 1974 SC 710.
69
In re: C. S. Karnan, (2017) 2 SCC 756).

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (25.)
subsequently with that of 1952 and of 1971. The quantum of punishment or that of fine for
contempt had to be provided for, with a right to appeal.

2.4. The Code of Criminal Procedure, 1973 (CrPC)

In contempt of courts proceedings under the Act 1971, admittedly the provisions of the CrPC
have no application (Section 5, CrPC). The High Courts and the Supreme Court take actions in
exercise of their constitutional power or inherent powers being the court of record (vide Sukhdev
Singh Sodhi70

Section 345, CrPC: Procedure in certain cases of contempt, CrPC empowers any civil, criminal
or revenue court to punish summarily a person who is found guilty of committing any offence
under Section 175, 178, 179, 180 or Section 228 of the Indian Penal Code 1860 (IPC) in the
view or presence of the court.

In Arun Paswan, S.I. v. State of Bihar & Ors.71, the Supreme Court held that a perusal of Section
345 of CrPC shows that offences under Section 175, 178, 179, 180 or 228 of the IPC would
constitute contempt only if they are committed in the view or presence of the Court. “This would
also show that offences under Sections 175, 178, 179, 180 or 228 per se do not amount to
contempt. They are contempt only if they are committed "in the view or presence of the Court",
otherwise they remain offences under the Indian Penal Code simpliciter.” In this case where the
slogan shouting and using abusive language against the Judge took place outside the court, the
Supreme Court held that the contemptuous act, since not an offence punishable under the IPC,
did not come within the ambit of the proviso to Section 10 of the Act 1971, and the jurisdiction
of High Court was, therefore, not ousted.

2.5. Scope of the Power of HC & SC to punish for contempt cases

The power of the Supreme Court and the High Courts to punish for contempt does not solely
depend upon Articles 129 and 215 of the Constitution of India. The authority to punish for
contempt of court has always been exercised by the judiciary from times immemorial 72; essential
to the execution of their powers and to the maintenance of their authority73.
70
Supra note 8.
71
Arun Paswan, S.I. v. State of Bihar & Ors., AIR 2004 SC 721.
72
Supra note 69.
73
Cartwright’s Case, 114 Mass. 230.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (26.)
In the case of Gilbert Ahnee v. Director of Public Prosecutions 74, the Privy Council had held that
the source of this power can be traced to the primary function of the Courts, which is to dispense
and administer justice. To perform this duty effectively, the Courts must have the power to
enforce their orders and punish calculated acts of contempt aimed to undermine their authority.
The power to punish for contempt of court has always been recognized to be inherent in certain
superior courts, and in others it was conferred by statutes.

In Re: C. S. Karnan, (2017)75, Justice Karnan, the judge of the Calcutta High Court, was
restrained from taking up any judicial or administrative work. The Court observed that the
authority of the courts to punish for contempt of court has always been there in the legal history.
In one of the earliest legal pronouncements dealing with the subject, Justice Wilmot in Rex v.
Almon (1765) Wilmot’s Notes, 243, explained the philosophy behind the power to punish for
contempt of court. The passage now a classic exposition, reads as follows:

“And whenever men’s allegiance to the law is so fundamentally shaken, it is the most
fatal and most dangerous obstruction of justice and in my opinion calls out for a more
rapid and immediate redress than any obstruction whatsoever, not for the sake of the
Judges as private individuals but because they are the channels by which the King’s
justice is conveyed to the people ……….”

The power to punish for contempt is not meant for giving protection to individual judges. On the
contrary, it intends to inspire confidence “in the sanctity and efficacy of the judiciary, though
they do not and should not flow from the power to punish for contempt”. Rather, such principles
should lie on solid foundations of trust and confidence of the people – a reassurance to them that
the judiciary is fearless and impartial. As rightly observed by in Helmore v. Smith76, “the object
of the discipline enforced by the Court in case of contempt of Court is not to vindicate the dignity
of the Court or the person of the Judge, but to prevent undue interference with the
administration of justice.”

The Supreme Court in E.M. Sankaran Namboodripad v. T. Narayanan Nambiar77, observed:

74
Gilbert Ahnee v. Director of Public Prosecutions [1999] 2 AC 294.
75
Re: C. S. Karnan, (2017) 2 SCC 756.
76
Helmore v. Smith, (1887) 35 Ch D 449, 455.
77
M. Sankaran Namboodripad v. T. Narayanan Nambiar, AIR 1970 SC 2095.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (27.)
 “The law of contempt stems from the right of the courts to punish by imprisonment or
fines persons guilty of words or acts which either obstruct or tend to obstruct the
administration of justice. This right is exercised in India by all courts when contempt is
committed in facie curaie and by the superior courts on their own behalf or on behalf of
courts subordinate to them even if committed outside the courts. Formerly, it was
regarded as inherent in the powers of a Court of Record and now by the Constitution of
India, it is a part of the powers of the Supreme Court and the High Courts. …”

In High Court of Judicature at Allahabad through its Registrar v. Raj Kishore & Ors.78 the
Supreme Court held that contempt jurisdiction is an independent jurisdiction of original nature
whether emanating from the Contempt of Courts Act or under Article 215 of the Constitution of
India.

In R. L. Kapur v. State of Madras79, the Supreme Court examined the question whether the power
of the Madras High Court to punish for contempt of itself flows from the Contempt of Courts
Act, 1952. The Court held:

“…Whether Article 215 declares the power of the High Court already existing in it by
reason of its being a court of record, or whether the article confers the power as inherent
in a court of record, the jurisdiction is a special one, not arising or derived from the
Contempt of Courts Act, 1952 … In any case, so far as contempt of the High Court itself
is concerned, as distinguished from that of a court subordinate to it, the Constitution
vests these rights in every High Court, and so no Act of a Legislature could take away
that jurisdiction and confer it afresh by virtue of its own authority. …”

In Pritam Pal v. High Court of M.P. Jabalpur, Through Registrar80, the Apex Court opined

“…Prior to the Contempt of Courts Act, 1971, it was held that the High Court has
inherent power to deal with a contempt of itself summarily and to adopt its own
procedure, provided that it gives a fair and reasonable opportunity to the contemnor to
defend himself. But the procedure has now been prescribed by Section 15 of the Act in
exercise of the powers conferred by Entry 14, List III of the Seventh Schedule of the
78
Registrar v. Raj Kishore & Ors., AIR 1997 SC 1186.
79
R. L. Kapur v. State of Madras, AIR 1972 SC 858.
80
Pritam Pal v. High Court of M.P. Jabalpur, Through Registrar, AIR 1992 SC 904.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (28.)
 Constitution. Though the contempt jurisdiction of the Supreme Court and the High Court
can be regulated by legislation by appropriate legislature under Entry 77 of List I and
Entry 14 of List III in exercise of which the Parliament has enacted the Act of 1971, the
contempt jurisdiction of the Supreme Court and the High Court is given a constitutional
foundation by declaring to be ‘Courts of Record’ under Articles 129 and 215 of the
Constitution and, therefore, the inherent power of the Supreme Court and the High
Court cannot be taken away by any legislation short of constitutional amendment.…”

However, it should be noted here that the power of the High Courts to punish for contempt of a
subordinate court is derived from legislation and not from the Constitution.81

The power to punish for contempt though inherent, its exercise has been subject to certain
parameters. Members of the Judiciary have always been conscious of the fact that this power
should be exercised with meticulous care and caution and only in absolutely compelling
circumstances warranting its exercise82. “The countervailing good, not merely of free speech but
also of greater faith generated by exposure to the actinic light of bona fide, even if marginally
over-zealous, criticism cannot be overlooked. Justice is no cloistered virtue.”83

The Supreme Court has also consistently held and reaffirmed that the powers of Supreme Court
under Article 129 and that of the High Court under Article 215 could not be curtailed by a law
made by the Parliament or by a State legislature 84. Accordingly, even the power to punish for
their own contempt which is derived from these Articles 129 and 215, as the case may be, cannot
be abrogated or controlled by any legislation.85

2.6. Power of Parliament to Legislate on Contempt Jurisdiction:

The Supreme Court in Delhi Judicial Service Association, Tis Hazari Court, Delhi86, observed
that Entry 77 of List I appended to VII Schedule to the Constitution, read with Art. 246 gives the
81
Durga Das Basu, Commentary on the Constitution of India 5628 (LexisNexis Butterworths Wadhwa, Nagpur, Vol.
5, 8th Edition).
82
Shri Baradakanta Mishra v. The Registrar of Orissa High Court & Anr., AIR 1974 SC 710 (Hon. Iyer, J. –
separate but concurring opinion) see para 65 and 67.
83
Id.
84
Delhi Judicial Services Association v. Union of India, 1998 (2) SCC 369; The Income Tax Appellate Tribunal v.
V.K Aggarwal & Anrs., AIR 1999 SC 452; In Re : Vinay Chandar Mishra, AIR 1995 SC 2348 and Pallav Sheth v.
Custodian & Ors., AIR 2001 SC 2763.
85
Supra note 63.
86
Supra note 37.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (29.)
Parliament the power to legislate upon subjects with respect to constitution, organisation,
jurisdiction and powers of the Supreme Court. The Parliament possesses the competence to bring
about a statute with regard to contempt of the Supreme Court, prescribe the procedure to be
followed in such cases and set out the quantum of punishment for contempt. However, the Court
held that “the Central Legislature has no legislative competence to abridge or extinguish the
jurisdiction or power conferred on this Court under Article 129 of the Constitution. The
jurisdiction and power of a Superior Court of Record to punish contempt of subordinate courts
was not founded on the court's administrative power of superintendence, instead the inherent
jurisdiction was conceded to Superior Court of Record on the premise of its judicial power to
correct the errors of subordinate courts.”

In Supreme Court Bar Association87 the Court referred to Article 142(2) of the Constitution with
regard to the power of the Court to investigate and punish any contempt of itself, observing that
this power of the Court is ‘subject to the provisions of any law made in this behalf by the
Parliament'. The Court concluded thus:

“However, the power to punish for contempt being inherent in a court of record, it
follows that no act of Parliament can take away that inherent jurisdiction of the Court of
Record to punish for contempt and the Parliament's power of legislation on the subject
cannot, therefore, be so exercised as to stultify the status and dignity of the Supreme
Court and/or the High Courts, though such a legislation may serve as a guide for the
determination of the nature of punishment which this court may impose in the case of
established contempt. Parliament has not enacted any law dealing with the powers of the
Supreme Court with regard to investigation and punishment of contempt of itself. ……
and this Court, therefore, exercises the power to investigate and punish for contempt of
itself by virtue of the powers vested in it under Articles 129 and 142(2) of the
Constitution of India.”

In Re : Ajay Kumar Pandey,88 the Supreme Court observed that the Act 1971 cannot overarch the
jurisdiction under Article 129 of the Constitution and this power of the Supreme Court cannot be
denuded, restricted or limited by the said Act.

87
Supra note 52.
88
Supra note 51.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (30.)
 2.7. Role of media in highlighting Contempt of court

Media is considered as fourth pillar of democracy and media has the power to mould the
viewpoint of the society in regard to any situation. The media is praised for starting a trend to
bring accuse to hook or bringing them behind the bars. The media can create awareness about the
issue so that the person who complained or being cheated will get the support for justice from
society at large. In last few years with the advancement of cable TV, radio network and internet
the reach of mass media and its impact on society has increased tremendously. People have
started looking towards the new ways of news dissemination as well as toward the traditional
way of newspapers and magazines. As a result of this modernization media organizations are
getting more power to shape the viewpoint of the people. However, freedoms of press also have
few limitations and responsibilities to look upon. Social media plays an important role to connect
people at large & concerned authorizes also may response on these platform in no time to ensure
the actions will be taken rightfully & in favor of law.

Article 19(1)(a) of the Indian constitution gives freedom of speech and expression which
includes freedom of press. The existence of a independent and powerful media is the keystone of
democracy. Media is not the medium of portraying news but media has the power to express
one’s views and opinions. The fundamental role of media is to activate the thinking process of
millions.

Media played a tremendous role in getting the justice to the victims in many cases like
Priyadarshini Mattoo case, Jessica Lal case, Nitish Katara murder case and Bijal Joshi rape
case , Nirbhaya rape case & Arushi Talwar Murder case in these cases without media
intervention justice was not possible. Media is not there to pressurize system it is there to make
the servers of system that they are being watched & come under same constitution which has
similar fundamental rights for every Indian citizen through which Justice cannot be denied.

While we are talking about contempt of court media has played a incredible role to bring the
people in front who are responsible for contempt of court and doesn’t come out due to their
power and reputation in front of general public or we can say that they misuse the power of their
designation to safeguard themselves.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (31.)
Few of the cases of contempt of court in the year 2017 are Justice C.S. Karnan case, Advocate
Asok Pande cae (Allahbad High court lawyer), Arundhati Roy and Narmada bachao andolan
case. In all the above cases media helped the people to know about the real picture about the
issue, what the case all about, what all things are highlighted, what all are the things never taken
into account, what was the actual issue, how many times the trial took place and ultimately what
was the decision of honorable Supreme Court of India. Media trials are adhered to be the best
democratic tool to achieve the righteous information on account.

Following are the objectives of media trial

 To know the role of media in highlighting the contempt of court cases. (with reference to
the cases highlighted in year 2017)
 To know about Suo Moto and how it was applied in the contempt of court cases.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (32.)
 CHAPTER-3

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (33.)
3. JUDICIAL APPROACH ON CONTEMPT OF COURT

(i.) In Justice Karnan vs Supreme Court89 Justice C S Kernan was in news exact after his
appointment as a judge in the year 2009. He was accused many times for his ruthless behavior
towards his fellow people and his complaints about the judicial system. He even complained
about his fellow judges on grounds of being harassed by them on being schedule cast to National
Commission. He was in news for many days regarding a controversial judgment passed by him
in June 2013 for promise of marriage and premarital sex. As per his statement as Judge

"If a bachelor aged 21 years or above and a girl aged 18 years or above had pre-marital
sex with intention to marry and subsequent to this the man leaves or moves out of
relationship with false commitments then the victim woman can approach a civil forum
for remedy after producing necessary substantial evidence to grant her social status as
his wife.”

In 2014, he claimed that appointment of certain judges & selection was unfair and he wants to
file an affidavit in his name. He also interrupted the proceedings of Madras High court during a
hearing of Public Interest Litigation (PIL). On this type of behavior supreme court said that

"The sudden unfamiliar incident made us fume inwardly at this raw unconventional
protest that was unexpected, uncharitable and ungenerous and, to say the least,
indecorous."

In the same year 2014, In August he again spoke for the appointment of Justice Kaul at Madras
HC chief justice. It was believed by the people that the issue was again based on discrimination.

89
Justice Karnan vs Supreme Court, 2017 SCC OnLine SC 703.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (34.)
20 judges sent a memorandum to the CJI asking that Justice Karnan to be transferred as they find
it difficult to work with him at similar premises.

On January 23, 2017, Justice Karnan written an open letter to the prime minister naming “an
initial list” against 20 sitting and retired Supreme Court and High Court judges, accusing them
for corruption.

On 8 May 2017, Justice Karnan had sentenced Chief Justice of India Jagdish Singh Khehar and
seven other SC judges to five-year imprisonment after holding them guilty under the SC/ST
Atrocities Act-1989 and amended Act of 2015.

On 9 May 2017 A seven-judge bench of the Supreme Court, headed by then then Chief Justice of
India J S Khehar directed that Justice Karnan be arrested “forthwith”. He was found guilty of
contempt of court, judiciary and judicial process.

“We are of the unanimous opinion that Justice C.S. Karnan has committed contempt of
court, judiciary and judicial process of the gravest nature,” then Chief Justice J S Khehar
mentioned in the order.

He was becoming a constant threat of disorder to the court & its proceedings .Someone who
considered that CJI should be put behind the bars as well.

Supreme Court had taken suo motu (on its own motion) cognizance of Karnan’s misconduct in
accusing members of the judiciary nepotism, casteism and corruption during his tenure as a
judge in the Madras high court. He was subsequently transferred to the Kolkata high court.

Justice Karnan got retired on June12, 2017 and subsequently after a week of his retirement,
finally he was arrested by Kolkata Police on June 21, 2017 from Coimbatore.

(ii.) In Re Arundhati Roy.90 The respondent, a famous writer, was involved in the Narmada
Bachao Andolan, a movement to protest against the construction of the Sardar Sarovar Dam. A
writ petition regarding the adverse environmental and economic consequences of this project was
pending before the Supreme Court. During its pendency, the Court passed some other orders,
which the protestors felt would worsen the situation. They staged a protest in front of the

90
Arundhati Roy, (2002) 3 SCC 343 : AIR 2002 SC 1375.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (35.)
Supreme Court, following which contempt proceedings were initiated They were each asked to
first show-cause with an affidavit as to why action must not be taken. One of them, Ms.
Arundhati Roy, mentioned the following statement in her strongly-worded affidavit: “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.”

The Court then sent her another show-cause notice regarding initiation of contempt proceedings
with respect to her affidavit. In her reply-affidavit, she stood her ground and offered several
criticisms of the Court regarding its recent decisions. She also criticised the Court's hesitation to
take up the issue of corruption in the then-ruling party. The Tehelka Scandal had just broken out;
with the sting operation revealing a serious case of political corruption, yet the Delhi High Court
had refused to entertain a petition to conduct an enquiry, threatening to impose costs on the
petitioners for their frivolity.91

In conclusion, she said, “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.” She was
punished for contempt, as the Supreme Court considered her statements as “a destructive attack
on the reputation and the credibility of the institution and it undermines the public confidence in
the judiciary as a whole and by no stretch of imagination, can be held to be a fair criticism of
the Court's proceeding.” Justice Sethi also added,

“She wanted to become a champion to the cause of the writers by asserting that persons
like her can allege anything they desire and accuse any person or institution without any
circumspection, limitation or restraint. Such an attitude shows her persistent and
consistent attempt to malign the institution of the judiciary found to be most important
pillar in the Indian democratic set up.”

3.1. The way Contempt Powers have been used in India, at the cost of judicial
accountability

Contempt of Court powers are granted to judiciaries in order to prevent obstructions in the
administration of justice. However, what we find is that these powers are often misused by the
judiciary to protect the characters of individual judges, when ordinary defamation proceedings
91
Id.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (36.)
would suffice. Moreover, the principles of natural justice are compromised, when Judges sit in
judgment over contempt over themselves. The most worrisome effect of unbridled contempt
powers in the hands of the judiciary is that hanging pall of contempt powers ends up having a
“chilling effect” on the freedom of speech, especially that of the media. This leads us to ask some
important questions regarding the right of the public to freely criticise the judiciary.

Is the judiciary so fragile that it needs to be shielded from public scrutiny? Or is public scrutiny
required to increase judicial accountability?

The Constitutional scheme of India is based upon the idea of Rule of Law. This implies that
everyone, both in their individual and collective capacities, are under law's supremacy, and the
judiciary is an institution that is given the power and responsibility by it. The rationale behind
Contempt of Court is that Courts must have the power to secure obedience to their judgments, in
order to serve this purpose of administering justice. 92 The purpose of punishing Contempt of
Court is not to protect the dignity of the Court, but of the process of justice itself.93

Contempt of Court can refer to both civil and criminal contempt. Civil contempt refers to any
“wilful disobedience of any judgment, decree, direction, writ or other process of the court”.94 It is
punishable with imprisonment or fine. The rationale behind civil contempt is to compel
compliance with court orders.95 Criminal contempt is any behaviour with scandalises the court,
prejudices the due course of a judicial proceeding or interferes or tends to interfere with the
administration of justice.96 Therefore, acts such as defiant disobedience of the Judge in Court,
prejudicing on-going trials by publishing information regarding past convictions of the accused,97
or even criticising a judge in the media shall constitute criminal contempt. Since this paper deals
with Contempt of Court and judicial accountability, the term ‘contempt of court’ shall refer only
to criminal contempt through the course of this paper.

The primary legislation dealing with contempt is the Contempt of Courts Act, 1971. On a
reading of the Act, it appears as though the Act places more importance on the exceptions to
92
C.J. Miller, Contempt of  Court, Oxford University Press, Oxford, (6th edition, 2006), p. 112.
93
Attorney General v. Times Newspapers, [1973] 3 W.L.R. 298.
94
Contempt of Court Act, 1971, S. 2(b).
95
D.D. Basu, Commentary on the Constitution of India — Volume 5, Lexis Nexis Butterworths Wadhwa (2009)
2012, p. 5618.
96
Contempt of Court Act, 1971, Sec. 2(c).
97
Attorney General v. Hinch, (1987) 164 CLR

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (37.)
contempt rather than what constitutes contempt itself. The Act says that fair and accurate
reporting of any judicial proceedings shall not constitute contempt. 98 The Act also precludes fair
criticism of judicial acts from being held as contumacious. 99 ‘Innocent Publications’, that is,
potential information that would prejudice the trial, though the person publishing it did not know
or have the reason to believe that proceedings were pending, are also not punished under this
Act.100 After the Contempt of Courts (Amendment) Act, 2006, ‘truth’ has been added as a
defence.101 If the Contempt power of the Indian Courts is read purely in light of the Contempt of
Courts Act, there appears to be no grave conflict between judicial accountability and contempt of
court, as the Act restricts contempt powers to only genuine cases of abuse of the judiciary or
obstruction of justice. However, the grave catch is that the applicability of this Act is deceptively
restricted.

Article 129 of the Constitution of India says that the Supreme Court shall be a ‘court of record’.
Article 215 grants a similar status to the High Courts. While the term ‘Court of Record’ has not
been defined in the Constitution itself, it is well recognised in the judicial world 102 to mean a
court whose acts and judicial proceedings are enrolled for “perpetual memorial and testimony”,
and the court also has the power of summarily punishing contempt of itself. 103 This means that
the constitutionally-granted power to punish for contempt of itself cannot be subject to any
legislation.

The implication of this is that the contempt power of the Supreme Court under Article 129 and
the High Courts under Article 215 cannot be denuded, restricted or limited 104 by the Contempt of
Courts Act, 1971. In Supreme Court Bar Association 105 case, it was held that the Parliament may
still prescribe the procedural aspects for Contempt of Court to be applicable to the High Courts
and the Supreme Court. This would imply that Section 12(1) of the Contempt of Courts Act,
which prescribes a maximum punishment as a fine of Rs. 5000 and/or imprisonment for a term

98
Contempt of Court Act, 1971, S. 4.
99
Contempt of Court Act, 1971, S. 5.
100
Contempt of Court Act, 1971, S. 3.
101
Contempt of Court Act, 1971, S. 13.
102
Supra note 7.
103
Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 406 : AIR 1991 SC 2176; Supreme Court
Bar Association v. Union of India, (1998) 4 SCC 409 : AIR 1998 SC 1895.
104
Supra note 51.
105
Supra note 52.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (38.)
of 6 months shall be applicable. However, in Zabira Habibullah Sheikh, 106 it was held that the
punishment for Contempt under the Act shall be applicable to the High Courts, but shall only act
as a guide for the Supreme Court. There was also no accompanying rationale given in this
judgment, which is worrisome because it grants great powers to the Supreme Court which may
have not been envisaged by the drafters of the Constitution.

This is in addition to Article 19(2) of the Constitution, which guarantees that the State may curb
freedom of speech and expression on the grounds of Contempt of Court. Both these powers,
when taken together, lead to a scenario where the High Courts and the Supreme Court enjoy
great amount of power regarding Contempt, one of the consequences of which is that judicial
accountability is put at peril. The most direct link between failure of judicial accountability and
contempt of court is demonstrated in the offence of contempt by ‘scandalising the court’.

3.2. Scandalising the Court & The Failure of Judicial Accountability in India

The offence of Scandalising the Court in India must be understood in light of the Veeraswamy107
case. In this case, a complaint was made under the Prevention of Corruption Act, 1947 against a
former Chief Justice of a High Court, alleging that the Judge had assets disproportionate to his
income. The Supreme Court, in a landmark judgment, held that no criminal case can be
registered against a judge of the High Court or the Supreme Court, without the consultation of
the Chief Justice of India. Therefore, Judges are virtually immune from the deterrent effect of the
threat of criminal proceedings. This makes it extremely important for the media to have the right
to criticise the judiciary.

Scandalising the court means any hostile criticism of a judge in his capacity as a judge. 108 This
includes scandalising judges of the judicial system as a whole, challenging a judge's personal
honesty or discrediting a judge in public. 109 The substance of this offence is that the attack must
be “on the judge or judiciary as a whole with or reference to particular cases, causing
unwarranted and defamatory aspersions upon the character and ability of the judge.”110

106
Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 SCC 158.
107
K. Veeraswamy v. Union of India, (1991) 3 SCC 655.
108
Goodhart Arthur, ‘Newspapers and Contempt of Court in English Law’, Harvard Law Review, Vol. 48, No. 6
(Apr., 1935), p. 885, 898.
109
R. De, Contempt of Courts: Law and Practice, Eastern Law House, Kolkata, 2012, p. 233.
110
Brahma Prakash Sharma v. State of UP, AIR 1954 SC 10 (Hereinafter, “Brahma”).

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (39.)
In order to determine whether a statement scandalises the Court, the Supreme Court has held that
the relevant factors for consideration would be the surrounding circumstances and the degree of
publicity given to the statement.111 The test is whether it is likely to have an injurious effect on
the minds of the public.112 It is evident that all these tests are absolutely subjective in nature,
giving the judge great discretion in deciding what is ‘scandalous’ to the Court. Not surprisingly,
the usage of these tests to determine what scandalises the court has led to some absurd results.

In Brahma113 that ‘degree of publicity’ should be a factor while determining whether a statement
should be punished as contumacious. In the instant case, Ms. Roy's statements were made in an
affidavit to the Court. Her statements were not even in circulation among the public. It is difficult
to see how these words would then have been likely to lower the reputation of the judiciary
among the people. This makes it even more difficult to support the Supreme Court's decision to
punish her for contempt.

The Counsel argued that her statements would fall within the defence of ‘fair comment’. The
defence of ‘fair comment’ to the offence of scandalising the court comes from two important
common law decisions, namely R v. Grej114 and Ambard v. Attorney General of Trinidad and
Tobago115 They have held that judges are open to criticism; and if reasonable arguments are
offered in disagreement with the Court's decisions, it would not be held as contempt. 116 As long
as the person is not acting in malice or attempting to impair the administration of justice, 117 the
criticism shall fall under the defence of fair comment. It has been affirmed by the Indian
Supreme Court that fair and reasonable comment would not be held as Contempt, in the case of
P.N. Duda v. P. Shiv Shanker.118

The Supreme Court did not consider Ms. Roy's statements to be fair comment, although she had
clearly substantiated her claims with reasons and examples. Here, they differentiated the instant
case from Shiv Shanker. In Shiv Shanker, P.N. Duda, the then Minister of Law, gave a speech in
front of the Bar Council of Hyderabad. His speech imputed that the Supreme Court was biased
111
Id.
112
Bathina Ramakrishana v. State of Madras, AIR 1952 SC 149.
113
Supra note 22.
114
R v. Gray, [1900] 2 QB 36.
115
Ambard v. Attorney General of Trinidad and Tobago, [1936] A.C. 322.
116
Supra note, 26.
117
Supra note 27.
118
P.N. Dudav v. P. Shiv Shanker, 1988 (3) SCR 547.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (40.)
towards the elite classes, as reflected in their judgments relating to land reforms. He even said,
“Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have
found their heaven in the Supreme Court.” On a plain reading, the words of Mr. Duda appear to
be even more inflammatory and likely to lower the authority of the court than the words of Ms.
Roy. However, in this case, he was not punished for contempt. The Court factored in the
audience for the speech mainly consisting of lawyers and jurists, and concluded that there was no
imminent danger of interference with the administration of justice.119

In Arundhati Roy,120 the Court held that the ratio of Shiv Shanker121 will not apply because Mr.
Duda was a Minister of Law, while Ms. Roy was just a writer who did not possess any “special
knowledge” of the law or the working of the judiciary. This reasoning leads to the absurd
conclusion that the right to criticise the Court is granted only to those educationally qualified to
do so. A right to expression that is qualified by educational requirements is a flagrant violation of
Article 14 and Article 19(1)(a). If the more reasonable test, of imminent danger was employed as
it was in Shiv Shanker the Court in Arundhati Roy would have found that the imminent danger
was even lower, as the audience for her words were the Judges themselves.

In Harish v. Bal Thackeray122 the High Court punished political Bal Thackeray for contempt of
court. He had announced in a political rally that a judge had demanded a large sum of money
from him. However, this decision was overturned by the Supreme Court; and no grounds were
given apart from the fact that he had apologised, even though the High Court had made a clear
case of contempt and had not asked for an apology. These cases, thus, clearly prove how easy it
is for Contempt of Court proceedings to be motivated by biases.

Another consequence of allowing Judges unbridled powers to charge with scandalising the Court
is that the judges may misuse contempt proceedings to punish personal attacks on their
character.123 This was demonstrated in the controversial Mysore Sex Scandal incident, where
their Lordships punished the newspapers that exposed their misdemeanours with contempt
charges, when ordinary libel proceedings would have sufficed.124
119
Shiv Shanker, 1988 (3) SCR 547.(hereinafter refereed as Shiv Shankar)
120
Arundhati Roy, (2002) 3 SCC 343 : AIR 2002 SC 1375.
121
Shiv Shankar 1988 (3) SCR 547.
122
Harish S/O Mahadeo Pimpalkhute v. Bal Thackeray, (1997) 99 BomLR 455.
123
Donde R, ‘Uses and Abuses of Contempt’, The Economic and Political Weekly Vol-XLII No. 39, p. 3919, 3922.
124
Id.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (41.)
What must be noted is that when the judiciary exercises its contempt powers on the media, it
appears to view the public to be startlingly naive. This is exhibited from both the Mysore Sex
Scandal incident and the Wah India125 case. A magazine had collated the ratings of some senior
counsels of the Delhi High Court regarding the judiciary. The ratings were based on parameters
such as integrity, understanding of law, courtroom behaviour, etc. The editor of the magazine
was held in contempt for scandalising the judiciary, as the article was said to impute corruption
to the judiciary. The survey merely revealed the opinions of senior counsels, in order to highlight
some problems in the working of the judiciary. By holding this publication as contumacious, the
Judges seem to believe that the public would begin to question the authority of the judiciary on
the basis of just one piece of investigative journalism. The Court also gave an order to stop the
publication of the said magazine, and ordered the police to seize all copies available in shops and
magazine stands. The Bench went further and restrained the press from talking about this
incident itself.

When the editor, Mr. Trehan, rendered an unconditional apology, the contempt charge against
him was withdrawn. However, it is sad to note that the entire incident, instead of upholding the
authority of the judiciary, ended up undermining it by over-reacting and placing undue restraints
on the media. The legitimacy of such a move is highly questionable.126

A heartening decision in recent times has been the decision of the Delhi High Court Secretary
General, Supreme Court of India v. Subhash Chandra Agarwal.127 The High Court has held that
Judges of the Supreme Court come under the purview of the Right to Information Act. The need
to ensure accountability in the judiciary was recognised. This, in the opinion of the author, is a
decision that is far-reaching, as it does not protect the judiciary with ivory towers in the name of
protecting justice. After all, “be ye ever so high, the law is above you”.

No doubt that with the Subhash Chandra Agarwal128 decision, the public can now seek
information about the judges to keep a check on corruption. However, with the contempt powers
that the High Court and Supreme Court wield, the power granted by the RTI Act to citizens is of

125
Shri Surya Prakash Khatri v. Madhu Trehan, 2001 Cri L.J. 3476.
126
Datta Mandkak A, “Contempt of Court: Finding the Limit”, The NUJS Law Review, Vol. 2(1) 2009, P. 55, 57.
127
Secretary General, Supreme Court of India v. Subhash Chandra Agarwal, AIR 2010 Del 159 (Hereinafter,
“Subhash Chandra Agarwal”).
128
Subhash Chandra Agarwal , AIR 2010 Del 159.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (42.)
little practical value against the judiciary. This is because the judiciary has demonstrated that
contempt charges can be pressed against anybody questioning the motives of a judge, regardless
of the truth of the claims. Therefore, the media is helpless in its capacity as a watchdog and the
‘fourth pillar’ of democracy. The punishment that Courts grant for contempt of court is usually
lenient129, so fearless agents in the media can perhaps still keep a check on the judiciary.
However, when the law on scandalising the Court is vague and subjective, dissent and criticism
are inevitably stifled.

3.3. Latest Judgments on Contempt

In Re Prashant Bhushan vs Court130 the Supreme Court initiated suo moto criminal contempt
proceedings against Advocate Prashant Bhushan and Twitter India, on the basis of two tweets
posted by Bhushan on the social media platform. The background of the case are as follows On
29 June 2020, advocate Prashant Bhushan published a tweet about the Chief Justice of India,
accompanied by a picture of CJI Bobde on a motorcycle. Mahek Maheshwari, represented by
Advocate Anuj Saxena, filed a petition against Bhushan and Twitter India on 2 July, requesting
the court to initiate contempt proceedings for the tweet, alleging that it 'inspired a feeling of no-
confidence” in the independence of the judiciary and amounted to 'scandalizing the court'. On 21
July, the SC took suo moto cognizance of the petition and initiated contempt proceedings against
both Bhushan and Twitter India for unspecified tweets published by the former on the latter’s
platform. The matter was listed for hearing on 22 July. The Court’s order of 22 July cited two
tweets as the basis for the proceedings: one published on 27 June 2020, which attributed
responsibility to the Supreme Court in 'destructing' India's democracy for the past six years. The
other was the tweet of 29 June, which had been the subject of Maheshwari’s petition. The bench
took the prima facie view that the statements brought the administration of justice into disrepute
and were capable of undermining the authority of the institutions of the Court – particularly the
Chief Justice – in the eyes of the public. In this regard, it issued notice to Bhushan and to the
Attorney General of India KK Venugopal, requesting the latter to assist the Court in this matter.

In response, Bhushan filed a writ petition requesting the SC to recall the contempt notice issued
against him. He argued that the original petition which had led to the SC taking suo moto

129
In re Arundhati Roy case where she was given a punishment of one day in prison plus a fine of Rs. 2000.
130
In Re Prashant Bhushan vs Court, 2020 SCC OnLine SC 698. (hereinafter; Prashant Bhushan Case)

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (43.)
cognizance was defective because it had not been sanctioned by the Attorney General as required
by Section 15131 of the Contempt of Courts Act, 1971 and Rule 3(c)132 of the Rules to Regulate
Proceedings for Contempt of the Supreme Court, 1975. On 5 August the Court heard in length
arguments from Sr. Adv. Dushyant Dave, who represented Bhushan, and Sr. Adv. Sajan
Poovayya, who represented Twitter India. On 14 August, the Court held Bhushan guilty of
criminal contempt. The Court was slated to hear Bhushan's arguments on sentencing on 20
August. On 19 August, Bhushan filed an application to defer the sentencing hearing. The Court
heard Sr. Adv. Dushyant Dave and Sr. Adv. Rajeev Dhavan on 20 August on deferral and
sentencing. It issued a brief order seeking Bhushan to apologise unconditionally before 24
August.

On 24 August, Prashant Bhushan filed a supplementary statement, where he noted:

“If I retract a statement before this court that I otherwise believe to be true or offer an
insincere apology, that in my eyes would amount to the contempt of my conscience and of
an institution that I hold in highest esteem”.

The bench Justices Mishra, B.R. Gavai and Krishna Murari had reserved its judgment on
August 25, after asking Bhushan multiple times to apologise for his tweets and, the Court heard
Attorney-General K.K Venugopal and Sr. Adv. Rajeev Dhavan on the effect of this
statement, and reserved its order on sentencing in the meantime. A week later, on 31 August, the
Court fined Bhushan “INR 1”. He is required to pay this before 15 September 2020. Further, in
the event of non-compliance Bhushan would be punished with 3 months imprisonment and
debarred from practising law for 3 years.133

(ii.) Also, it is pertinent to mention that recently The Attorney General for India, KK Venugopal
has granted his consent for initiation of contempt proceedings against comedian “Kunal
Kamra”, (Standup Comedian) over his tweets about the Supreme Court in the wake of its order
granting interim bail to “Arnab Goswami”. The AG granted his consent under Section 15(1)(b)
of the Contempt of Courts Act, 1971 to initiate criminal contempt. He said that:

131
Contempt of Courts Act, 1971, S. 15.
132
Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, Rule 3(c).
133
Prashant Bhushan Case, (2020).

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (44.)
 "I find that today people believe that they can boldly and brazenly condemn the Supreme
Court of India and its judges by exercising what they believe is their freedom of speech.
But under the Constitution, the freedom of speech is subject to the law of contempt and I
believe that it is time that people understand that attacking the Supreme Court of India
unjustifiedly and brazenly will attract punishment under the Contempt of Courts Act, 1972."

Taking strong exception to this tweet, the AG commented:

"This is a gross insinuation against the entirety of the Supreme Court of India that the
Supreme Court of India is not an independent and impartial institution and so too its
judges, but on the other hand is a court of the ruling party, th e BJP's benefit".

On November 18, Kamra had shared a photo of two fingers on Twitter with a caption that read,

"One of these 2 fingers is for CJI Arvind Bobde… ok let me not confuse you it's the
middle one.”

The AG has stated that this conduct is grossly vulgar and is an insult to the Supreme Court.

Later, Kamra said that he does not intend to retract his tweets or apologize for them and that the
"silence of the Supreme Court on matters of other's personal liberty cannot go uncriticized".134

However it must be noted that the AG had earlier declined consent to initiate criminal contempt
against actor-activist Swara Bhasker for her comments criticizing the Supreme Court obse rving
that the comments did not amount to an attack on the Supreme Court.

Also recently, the AG refused to give consent for contempt against the Chief Minister of Andhra
Pradesh, Y S Jagan Mohan Reddy, for his public allegations against Justice Ramana. Though the
AG commented that the public allegations were prima facie 'contumacious', he declined consent
observing that it was not proper for him to intervene when the CJI is seized of Jagan's letter.135

134
“New Tweet Against CJI: Attorney General Grants Consent To Initiate Contempt Against Comedian Kunal
Kamra”, Live Law.in available at https://www.livelaw.in/top-stories/attorney-general-grants-consent-to-initiate-
criminal-contempt-against-comedian-kunal-kamra-165824(last (last visited 21st Nov. 2020)
135
Id.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (45.)
 CHAPTER- 4

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (46.)
4. COMPARISON WITH FOREIGN JURISDICTION

It is pertinent to discuss and analyse our country’s legislations on Contempt laws in relation with
foreign countries where the position is somewhat different according to their ethos and culture
and interpretation of contempt law by their courts. The same has been discussed in this chapter
the legal position on Scandalising the Court in some foreign jurisdictions, mainly in the United
Kingdom where this offence originated and the United States of America where this offence
does not exist and also in Australia and Singapore.

4.1. United Kingdom

While the offence of scandalising the Court from common law, there have been no convictions
for this offence in England since 1931.136 The origin of contempt by scandalising the court can be
traced back to as early as the year 1765. In King v. Almon,137 the judiciary proceeded against the
Almon in a summary trial, for libel against a judge. The ordinary proceedings for libel involved a
Jury. This was challenged before the Court. Justice Wilmot ruled in favour of having a summary
trial, declaring that libel against a judge in his judicial capacity deserves a special punishment.
Following this, scandalising the court became a form of Contempt of Court.

Around a hundred years later, Lord Morris was on the Bench to decide the case McLeod v. St.
Aubin.138 It was regarding a newspaper article in circulation in the then colony of Trinidad and
Tobago. A newspaper called The Federalist ran an article which said that the island of St.
Vincent suffered from “maladministration of justice”. It went on to say that one of the Judges,
Justice St. Aubyn, was “reducing the status of the judiciary to that of a clown”. The article also
said that the Judge “hob-nobs with two or three of the barristers, winks significantly at them in

136
U.K. Law Commission Consultation Paper No. 207: Contempt of Court-Scandalising the Court, 2 (Hereinafter,
“Consultation Paper”).
137
King v. Almon, 243 K.B. 1765.
138
McLeod v. St. Aubin, [1899] A.C. 549

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (47.)
court, and in the trial of cases he has cast to the winds the ordinary principles of justice and fair
play which require a judge to keep even the scales of justice between parties”.139

While deciding this case, Lord Morris made a wonderfully far-sighted statement that committals
for contempt by scandalising has become obsolete, and that courts must leave to the public
opinion-attacks or comments that are derogatory or scandalous to the judiciary. In the instant
case, the Contempt charge was moved against a distributor of the newspaper. The Court found
that he was not guilty for contempt, as it could not be expected of him to be familiar with all the
contents of the newspapers he was distributing. However, it did remark that contempt by
scandalising was still relevant to small colonies consisting of “coloured populations”, as it was
absolutely necessary to preserve the dignity and respect for the Court in such jurisdictions. This
shows that the Privy Council, back in 1899, considered the English Judiciary to be mature
enough to handle criticism from the media. It considered punishing contempt by scandalising as
justified only in its colonies. This was perhaps a part of the “white man's burden”, or was simply
better for administration of justice in a context where the population considered the
administration as alien and oppressive.

However, within a year, his words about the offence of contempt by scandalising being obsolete
proved false in the decision Queen v. Gray.140 Mr. Gray was charged with contempt of court for
publishing an article which said that Justice Darling must “master the duties of his own
profession before undertaking the regulation of others”. In this case, Mr. Gray was punished for
contempt. The Court conceded that the Judiciary is still open to criticism by the media, but it
qualified the statement by adding that “reasonable argument or expostulation” must be offered
in order to not treat a statement as contempt.

The 2012 Law Commission Consultation Paper on Scandalising the Court gives insights into
contemporary debates about Contempt by Scandalising in the United Kingdom. It looked at the
merits of retaining the offence, modifying it or abolishing it altogether. While looking at the
arguments for retaining the offence, an argument considered was that retaining it would send the
message that attacks against the judiciary must be discouraged. The option of modifying the
offence to make it more certain and applicable only to situations where there was a substantial

139
Id.
140
Gray, 1900 2 Q.B. 36

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (48.)
risk of interference with the administration of justice, where the statement is untrue, and at the
same time providing for defence of fair comment.

However, the authors of the paper were of the opinion that the offence should be abolished
altogether. They reasoned that shielding the judiciary from media criticism would only
undermine its authority. They also said that judges have other remedies available, such as
pressing defamation charges. This will have the additional consequence of shifting the burden of
financing the proceedings from the state to the judges' own resources. The main thrust of the
paper's argument was that the offence must be abolished simply because it is obsolete and has
fallen into disuse.141

4.2. USA

The United States of America has long considered the offence of contempt by scandalising to be
too extreme. Every criticism of the judiciary to some degree undermines the authority of the
Court. However, the right to freely comment and criticise the actions of public institutions is
considered to be of primary importance to the public, and essential to the American idea of
democracy.142 This is perhaps due to the strong First Amendment Rights in the American
Constitution. While considering abolishing the offence, the UK Consultation paper relied on a
landmark decision of the U.S. Supreme Court, Bridges v. California,143 where it was famously
said by Lord Black:

“The assumption that respect for the judiciary can be won by shielding judges from
published criticism wrongly appraises the character of American public opinion. For it is
a priced American privilege to speak one's mind, although not always with perfect good
taste, on all public institutions. And an enforced silence, however limited, solely in the
name of preserving the dignity of the bench, would probably engender resentment,
suspicion, and contempt much more than it would enhance respect.”

141
Supra note 45.
142
S. Gill, Contempt of Court by Publications, 24(1) California Law Review, 114 (1935).
143
Bridges v. California, 314 US 252 (1941) (Hereinafter, “Bridges”).

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (49.)
Post Bridges144 this offence has been considered unconstitutional in the United States.145 Justice
Frankfurter suggested that the offence is nothing but English foolishness and that weak
characters must not be judges.146

Further, in the United States, discussing the inter-relation between contempt of court laws and
protections under the First Amendment, including the freedom of speech, the American
jurisprudence appears to be placing greater emphasis on freedom of speech:

“United States law traditionally regards freedom of speech, as enshrined in the First
Amendment, as the paramount right that prevails over all others in case of conflict unless
there is a clear and present danger that will bring about the substantive evils that
Congress has a right to prevent” 147

4.3. Singapore

Contempt by scandalising is very much still an offence in Singapore and the standards to punish
speech for such contempt is quite low. Contempt by Scandalising in Singapore’, Research
Collection School of Law (Singapore Management University, 2009) viewed on December 29,
2012,148 The judiciary of Singapore employs the “inherent tendency” test to decide whether a
publication is contumacious for scandalising the court. This test stipulates that the words must
convey to an average reasonable reader allegations of bias, lack of impartiality, impropriety,
etc.149 Such a low standard is justified by the judiciary by going into the special characteristics
unique to Singapore. It was held that the small size of the country, and the practice of judges
deciding on questions of both law and fact necessitates that publications are dealt with more
strongly in Singapore than in other common law jurisdictions.150

This stand of the Singapore judiciary has been heavily criticised by academics. Singapore is a
developed country with a high literacy rate. Moreover, in the age of digital communication, the
144
Bridges, 314 US 252 (1941).
145
Pennekamp v. Florida, (1946) 328 US 331; Garrison v. Louisiana, (1964) 379 US 64; Craig v. Harney, (1947)
331 US 367.
146
Id.
147
Bridges, 314 US 252 (1941).
148
Lee J, ‘Freedom of Speech and Contempt by Scandalising in Singapore’, Research Collection School of Law
(Singapore Management University, 2009) viewed on December 29, 2012,
<http://ink.library.smu.edu.sg/sol_research/10>.
149
Attorney General v. Hertzberg Daniel, [2008] SGHC 218 (Hereinafter, “Hertzberg”).
150
Hertzberg [2008] SGHC 218; Attorney General v. Chee Soon Juan, [2006] 2 SLR 250.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (50.)
geographical size of a community is hardly of consequence. It is therefore not justified that the
Singapore judiciary attempt to use the same line of reasoning that was used in St. Aubyn, as that
case is more than a century old, and was decided in the context of colonisers having an interest in
a strong judiciary in their colonies. It is not surprising that in reality, this soft stand taken by the
judiciary is often used as a tool to stifle dissent against the ruling party in Singapore.151

What must be learned from these jurisdictions is that the offence of contempt by scandalising is
fast losing its relevance, as people realize the scope of misuse that can occur by allowing this
offence to exist. The United States, which places great value on free speech, has taken the
express stand that judicial accountability can only be ensured by allowing press scrutiny of the
judiciary. In the United Kingdom, the offence exists in principle, but it its more or less defunct
in terms of convictions. Australia and Singapore still retain its offence. However, in Australia,
efforts are being made to do away with it, while the judiciary has misused this power in
Singapore.

4.4. Pakistan

In Pakistan, the Contempt of Court Act, 1926 was the primary law in the field until it was
repealed and replaced by the Contempt of Courts Act, 1976.

Additionally, Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 152 read with
Entry 55 of the Federal Legislative List (Schedule IV to the Constitution) conferred contempt
jurisdiction on the Supreme Court to punish for contempt of itself, which includes ‘scandalizing
of the court’ or otherwise tends to bring the court or judge in relation to office into hatred,
ridicule or contempt.

In 2003, the Contempt of Court Ordinance, 2003 repealed the Contempt of Court Act, 1976. The
said Ordinance was also later repealed and replaced by the Contempt of Courts Act, 2012. This
Act 2012 made an exception that it shall not apply to the public office holders including the
Prime Minister and other Ministers, and the expression ‘scandalising the court’ stood replaced by
the expression ‘scandalising a judge in relation to his office’, among various other changes.

151
Pennekamp v. Florida, (1946) 328 US 331.
152
The Constitution of Pakistan 1956, art. 204.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (51.)
The Supreme Court of Pakistan in Baz Muhammed Kakar & Anr. v. Federation of Pakistan etc.
etc. etc.153, declared the Act 2012 as unconstitutional on various grounds inter alia:

i) The acts of contempt liable to be punished under Article 204(2)(b) and some
actions of contempt of court falling under Article 204(2)(c) were omitted from the
definition of ‘contempt of court’ under section 3 of Act 2012.
ii) Powers of the Court stood reduced by incorporating the expression ‘scandalising
a judge in relation to his office’, whereas in Article 204(2) the word ‘court’ had
been used.
iii) Article 63(g) provided that if a person stood convicted/sentenced for ridiculing
the judiciary, he would be disqualified to hold an office, while in section 3 of the
Act 2012 such expression was omitted, and the expression ‘scandalising of a
judge’ remained confined to ‘in relation to his office’.
iv) Article 204(2) empowered the court to punish “any person” for its contempt
without any exception, though section 3 of the Act 2012 granted exemption to the
public office holders.
v) The provisions of Act 2012 had been designed to facilitate delay in disposal of
contempt cases, which would not only erode the dignity of the court, but was also
inconsistent with the doctrine of independence of judiciary.
vi) Moreover, section 8 of the Act 2012 regulated the transfer of proceedings in
contempt matters which was in conflict with the prerogative of the Chief Justice
being the administrative head of the court, and was violative of the principle of
independence of judiciary.

The Supreme Court of Pakistan held that the Act 2012 was unconstitutional, void and non est,
and as a consequence the Contempt of Court Ordinance of 2003 stood revived automatically.

It is evident that the expression ‘scandalising the court’ appears in Article 204(2) of the
Constitution of Pakistan, which empowers the Court to punish ‘any person’ for committing its
contempt.

153
Judgment and Order dated August 3, 2012 in Constitution Petition number 77 of 2012 etc.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (52.)
 CHAPTER- 5

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (53.)
 5. WHAT DOES NOT AMOUNT TO CONTEMPT

Section 13 of the Act 1971 postulates no punishment for contemptuous conduct in certain cases.
As a general guideline, it provides for no punishment unless the court is satisfied that the
contempt is of such a nature that “substantially interferes, or tends substantially to interfere with
the due course of justice”. In fact, Section 13, as amended in 2006, under its sub-section (b)
allows for justification by truth to be raised as a valid defence against contempt, if the court is
satisfied that it is in public interest and the request for invoking the said defence is bona fide.154

In M.V. Jayarajan v. High Court of Kerala & Anr. 155 the Court held that right to freedom of
speech and expression postulates a temperate and reasoned criticism and not a vitriolic,
slanderous or abusive one. Such right certainly does not extend to inciting public directly or
insidiously to disobey Court order. But, no one can scandalise the Court using abusive and
pejorative language against the judiciary.

In B.K. Kar v. Hon'ble the Chief Justice and his companion Justices of the Orissa High Court &
Anr.156, the Supreme Court observed that where the order of the Court is not complied with,
mistakenly, inadvertently or by misunderstanding the meaning and object of the judgment,
charges of contempt cannot be leveled, because it is quite possible that the disobedience is
accidental.

The Supreme Court while striking a balance in relation to the invoking of provisions of contempt
held that a mere allegation of social intimacy between a party in litigation and a judicial officer
does not amount to an act of criminal contempt as has been held in Gobind Ram v. State of
Maharshtra157.

5.1. Judgment / Order – if capable of different interpretations

154
Subramanian Swamy v. Arun Shourie, AIR 2014 SC 3020.
155
M.V. Jayarajan v. High Court of Kerala & Anr. (2015) 4 SCC 81.
156
B.K. Kar v. Hon'ble the Chief Justice and his companion Justices of the Orissa High Court & Anr. , AIR 1961 SC
1367.
157
Gobind Ram v. State of Maharshtra, AIR 1972 SC 989.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (54.)
A non-compliance of an order, which can be interpreted in more than one way, raising a variety
of consequences, has been held not to be a willful disobedience so as to make a case of contempt
allowing serious consequences including imposition of punishment as has been held in Dinesh
Kumar Gupta v. United India Insurance Co. Ltd. & Ors.158, The Supreme Court in the said case,
emphasizing on the element of willfulness in civil contempt, also observed that even though
there may be disobedience, yet if the same does not reflect that it has been conscious and willful,
a case for contempt cannot be held to have been made out.

In Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors.159, the Court according the benefit
of doubt to the alleged contemnor in this case, where the order was capable of two interpretations
and one of which was adopted by the alleged contemnor, noted that

“Exercise of powers under the Contempt of Courts Act shall have to be rather cautious
and use of it rather sparingly after addressing itself to the true effect of the contemptuous
conduct”.

5.2. Execution of Order Not Possible

Where an alleged contemnor is able to place before the Court sufficient material to establish that
it is impossible to obey an order, the Court will not be justified in punishing such alleged
contemnor as has been held in Capt. Dushyant Somal v. Smt. Sushma Somal & Anr.160 A person
is not to be punished for contempt of Court for disobeying an order of Court except when the
disobedience is established beyond reasonable doubt, “the standard of proof being similar, even
if not the same, as in a criminal proceeding”. 161 Similarly, in Mohd. Iqbal Khanday v. Abdul
Majid Rather162, the Court held that where the appellant has genuine difficulties with regard to
implementation of the order, the insistence of the courts on implementation may not meet with
realities of the situation and the practicability of implementation of the court's direction.
Enforcing obedience to such orders through contempt proceedings hardly lends credence to
judicial process and authority. While the court must always be zealous in preserving its authority

158
Dinesh Kumar Gupta v. United India Insurance Co. Ltd. & Ors., (2010) 12 SCC 770.
159
Mrityunjoy Das & Anr. v. Sayed Hasibur Rahaman & Ors., AIR 2001 SC 1293.
160
Capt. Dushyant Somal v. Smt. Sushma Somal & Anr., AIR 1981 SC 1026).
161
Dushyant Somal v. Smt. Sushma Somal & Anr., AIR 1981 SC 1026.
162
Mohd. Iqbal Khanday v. Abdul Majid Rather, AIR 1994 SC 2252.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (55.)
and dignity, but at the same time it will be inadvisable to require compliance of an order
impossible of compliance.

5.3. Order Difficult to Comply being Unclear in Terms

A non-compliance of an order owing to an omission in such order rendering it unclear in terms

of the required compliance, i.e. difficult to comply with, has been held to be not a contempt of
such order. As in the case of Dravya Finance Pvt. Ltd. & Ors. v. S. K. Roy & Ors.163, the
Supreme Court closed a contempt petition, treating it as a limited review petition, on account of
an apparent omission in the final order, which while ordering the payment of interest failed to
specify the date from which it is to be calculated and paid. In Jhareswar Prasad Paul & Anr. v.
Tarak Nath Ganguly & Ors.164, the Court noted that the court exercising contempt jurisdiction
does not function as an original or appellate court for determination of the disputes between the
parties, and if there is any ambiguity in the judgment or order then it is better to direct the parties
to approach the court which disposed of the matter, for clarification of the order, instead of the
court exercising contempt jurisdiction. That the power to punish for contempt of courts is a
special power and needs to be exercised with care and caution; that it should be used sparingly
by the courts on being satisfied regarding the true effect of contemptuous conduct165.

5.4. Technical Contempt

Emphasising on initiating contempt proceedings with utmost reserve and greatest caution, courts
have on various occasions distinguished between a mere technical contempt and a contempt of
court which interferes or tends to interfere with the due course of justice. As was noted by the
Apex Court In Re : P.C. Sen166, a Court will not initiate proceedings for commitment of contempt
where there is a mere technical contempt. Further, in the case of Murray & Co. v. Ashok Kr.
Newatia167, the Supreme Court underlining the precondition of substantial interference with the
due course of justice under Section 13 of the Act 1971, held “It is not enough that there should
be some technical contempt of court but it must be shown that the act of contempt would
otherwise substantially interfere with the due course of justice which has been equated with

163
Dravya Finance Pvt. Ltd. & Ors. v. S. K. Roy & Ors. (2017) 1 SCC 75.
164
Jhareswar Prasad Paul & Anr. v. Tarak Nath Ganguly & Ors., AIR 2002 SC 2215.
165
Dravya Finance (P) Ltd. v. S. K. Roy, (2017) 1 SCC 75.
166
Re : P.C. Sen, AIR 1970 SC 1821.
167
Murray & Co. v. Ashok Kr. Newatia, AIR 2000 SC 833.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (56.)
“due administration of justice”. Substantial interference with the course of justice being an
essential requirement for imposition of punishment under the statute.168

CHAPTER-6

168
Dravya Finance (P) Ltd. v. S. K. Roy, (2017) 1 SCC 75.

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (57.)
CONCLUSIONS AND SUGGESTIONS

Hence it is concluded by stating the data the Supreme Court of India where a total number of 568
criminal contempt cases and 96,310 civil contempt cases were found pending in the High Courts.
The Orissa High Court leads in criminal contempt cases with 104 pending matters, and the
Allahabad High Court is having 25,370 pending civil contempt cases. So far as the Supreme
Court is concerned, as of April 10, 2018, a total number of 683 civil contempt cases and 15
criminal contempt cases have been shown as pending.

These cases in civil and criminal contempt matters represent the high number of incidents of
interference with ‘due course of justice’ - by wilful disobedience of judgments or orders as well
as by other means of lowering the authority of court, such as ‘scandalising the court’, among
others. In general, these numbers reflect on the tendency of contemnors to act derogatorily with
reference to the judiciary and interfere with the administration of justice, which cannot be
acceptable. The relevance of the provisions concerned in the Act 1971 with respect to the power
of contempt under the Constitution, Articles 129 and 215 vest the Superior Courts with the
power to punish for their contempt and holds plenary power. Therefore, even in the absence of
any legislation outlining the procedural powers of the Supreme Court and High Courts with
regard to investigation and punishment of their contempt, these Courts are empowered to
investigate and punish a contemnor by virtue of the powers conferred on them by the Articles
aforesaid. Additionally, Article 142(2) also enables the Supreme Court to investigate and punish
any person for its contempt. Thus, the suggestion to delete the provision relating to ‘criminal
contempt’ inter alia ‘scandalising of courts’ will have no impact on the power of the Superior
Courts to punish for contempt (including criminal contempt) in view of their inherent
constitutional powers, as these powers are independent of statutory provisions.

The Act 1971 is, therefore, not the source of ‘power to punish for contempt’ but a procedural
statute that guides the enforcement and regulation of such power. The reason being that even

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (58.)
prior to the commencement of Act 1926 these inherent powers were being exercised by the
Superior Courts. Thus, the powers of contempt of the Supreme Court and High Courts are
independent of the Act 1971, and, therefore, by making any such amendment, the power of the
superior courts to punish for contempt under Articles 129 and 215 of the Constitution cannot be
tinkered or abrogated.

Entry 77 of the Union List of the Seventh Schedule enables Parliament to inter alia legislate on
“.. jurisdiction and powers of the Supreme Court, (including contempt of such Court) ..”.
However, with respect to contempt, this power has been interpreted by the Supreme Court in
various pronouncements, as limited to only defining and laying down the procedure to be
followed in contempt proceedings. In other words, the power of Superior Courts, which are
vested in them by the Constitution, cannot be fettered by any legislation. As the sanctity of
Articles 129 and 215 has been upheld by the Supreme Court on several occasions, any
amendment to the Act 1971 that goes against the spirit of these Articles is undesirable.

It must be noted that a change to limit the ambit of ‘contempt’ only to ‘wilful disobedience of
directions/judgement of Court’ will effectively demote the expressions ‘contempt’ and ‘contempt
of court’ as used in and referred to under the Act 1971. Such limitation will not affect the powers
of the Supreme Court and High Courts to punish for their contempt; but will largely expose the
subordinate courts to increased instances of unaddressed ‘contempt of court’, particularly
‘scandalising’, because of the narrowed scope of Section 10 i.e. the power of High Court to
punish for ‘contempt’ of subordinate court.

It is also noteworthy that the definition of ‘contempt’ under consideration here was first
introduced in the Act 1971, with no such definitions in the earlier Acts. It was only in 1971 that a
legislation not only defined ‘contempt’, but also categorised it under ‘civil’ and ‘criminal’
contempt, providing succinct definitions for the same. It is evident from the ‘Statement of Object
and Reasons’ of the Act 1971 that the preexisting law on contempt was found to be “uncertain,
undefined…” so therefore the said Act was amended twice, once in the year 1976 and then in
2006 as per the need of the time and the author strongly believes that there should be an
amendment by the Government of India in present time seeing all taking advantage of free
speech and backing themselves under loopholes. Hence, the Government should widen the scope
of Sec. 2( C) and Sec 15 of the Act, 1971 and mitigate the loopholes and make it a bit straight

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (59.)
since it is a bit ambiguous in nature as has been discussed above through various judicial
pronouncements. Also, it is our responsibility to utilize the freedom & fundamental or judicial
rights provided to us as citizens not to misuse them & to maintain healthy congenial atmosphere
in the country. Keep The Faith Alive in our Judicial System that we are well protected & should
contribute best of our efforts in our national interest & progress.

BIBLIOGRAPHY/REFERENCE/E-BOOKS

1. K. Balasankaran Nair, Law of Contempt of Court in India, Atlantic Publishers & Dist,
2004 edition
2. Nayan Joshi, Contempt Of Courts And Law, Kamal Publishers, 2020
3. Ranadhir Kumar De, Contempt of Courts: Law &amp; Practice, Eastern Law House,
2012 Edition.
4. LAW COMMISSION OF INDIA, Report No.274, Review of the Contempt of Courts
Act, 1971 available at https://lawcommissionofindia.nic.in/reports/Report274.pdf
5. The Contempt of Courts Act, 1971 - Bare Act, Universal Publication, 2020 edition.
6. THE CODE OF CRIMINAL PROCEDURE, 1973, Bare Act, Universal Publication,
2020 edition.
7. Contempt of Courts Act, 1971 Along with Rules to Regulate Proceedings for Contempt
of the Supreme Court, 1975, Bare Act, Universal Publication, 2020 Edition.

WEBLIOGRAPHY

1. SCC Online
2. Manupatra
3. Indian Kanoon
4. Hein Online

THE CONCEPT OF CONTEMPT OF COURT vis-à-vis SUPREME COURT RULES AND OTHER RELATED STATUTES (60.)