Week 8 Contempt of Court

Case laws
E. M. S. Namboodiripad v. T. Narayanan Nambiyar AIR 1970 SC 2015
Facts and Procedural History:
 E.M.S. Namboodiripad (“EMS”), then Chief Minister of Kerala and a Marxist leader,
held a press conference on 9 November 1967.
 During this conference, he made severe critical remarks against the Indian judiciary,
including and described it as an “instrument of oppression.” He alleged that judges
were “guided and dominated by class hatred, class interests, and class prejudices.” He
claimed that judges instinctively favoured “pot-bellied rich men” over the poor and
that the judiciary serves the “exploiting classes” and is part of the ruling class
structure.
 These statements were widely published in newspapers and initiated suo motu
contempt proceedings in the Kerala HC based on a complaint by an advocate.
 The Kerala High Court, by majority, held EMS guilty of criminal contempt and
imposed a fine of Rs. 1000 or one month’s simple imprisonment. EMS appealed to the
Supreme Court.
Issues:

 Whether the statements made by EMS amounted to contempt of court?

 Whether such statements were protected under Article 19(1)(a) (freedom of speech
and expression) of the Constitution?
 Whether using “Marxist ideology” to justify criticism of the judiciary could be a valid
defence?
 Whether a general attack on the judiciary as a whole, without targeting specific judges
or cases would still amount to contempt?

Brief arguments by EMS (Appellant)

 EMS contended that his remarks were protected under Article 19 of the Constitution.
 He stated that his comments reflect the Marxist Leninist thought that the judiciary is
part of the coercive state apparatus under capitalism.
 He argued that he did not impugn the authority of any particular judge or judgement.
 There was no intention to bring down the reputation of the judiciary and claimed a
duty to educate the masses about systemic biases in the judiciary.
 It was merely meant to be a fair criticism of the functioning of the judiciary.

Judgment of the Supreme Court (Per Hidayatullah, C.J.)

The Supreme Court upheld the conviction of E.M.S for criminal contempt of court, but
reduced the sentence, citing that the primary objective protecting the authority and dignity of
the judiciary had been met.

I. Purpose of Contempt Jurisdiction

The Court began by emphasizing the importance of the contempt jurisdiction:

 Contempt powers exist to ensure uninterrupted and uncorrupted administration of

justice.
 It is not necessary that there must be actual interference; even a tendency to obstruct
or lower the authority of the courts is enough.
 The judiciary is a pillar of democracy, and public confidence in its impartiality and
integrity must be protected.

The Court explained that “scandalising the court” a form of criminal contempt refers to:
“Statements or actions which tend to bring the court into disrespect or lower its authority in
the eyes of the public.”

The Supreme Court clarified that this form of contempt was still valid law in India, even
though in England it had fallen into disuse.

The SC also explained the chief forms of contempt of court which are: Insult to judges, Attacks
upon them, comment on pending proceedings with a tendency to prejudice fair trial, obstruction
to officer of courts, witnesses or the parties, abusing the process of the court, breach of duty by
officers connected with the court and scandalizing the judges or the courts.

Scandalizing the Judges or the Courts: generally when the conduct of a person tends to bring the
authority and administration of the law into disrespect or disregard. Such contempt may be
committed in respect of a single judge or a single court but may, in certain circumstance, be
committed in respect of the whole of the judiciary or judicial system.

II. Article 19(1)(a) Freedom of Speech vs. Contempt

EMS had argued that his remarks were protected under Article 19(1)(a) The Court rejected
this argument and stated that:

 Freedom of speech is not absolute.

 Article 19(2) allows for reasonable restrictions in the interest of preventing contempt
of court.
 Therefore, while criticism of judicial decisions or systems is permissible, what is not
permissible is:

 Unfounded attacks on the “integrity of the judiciary”

 Imputing class bias or motives to judges, or
 Statements that lower public confidence in the institution of the judiciary.

The SC stated that:

“While the spirit underlying Article 19(1)(a) must have due play, the Court cannot overlook
the provisions of the second clause of that Article.”

Thus, freedom of expression cannot be used as a shield against accountability for

contemptuous remarks.

III. Critique of Marxist Justification

EMS justified his remarks by claiming they were based on Marxist ideology that the judiciary
was an instrument of class oppression. The SC concluded that:

1. EMS had misunderstood or had distorted the teachings of Marx, Engels, and Lenin.
2. The Communist philosophy critiqued state structures, not individual judges or courts.
3. In none of the writings of Marx or Engels was the judiciary personally attacked or
labelled corrupt or prejudiced.
4. Even if EMS genuinely believed in Marxist theory, that did not justify making
sweeping, derogatory public statements about judges.

The SC stated:

“The fault was with the state and the laws, not with the judiciary. Marx and Engels never
said what the appellant quotes them as saying.”

The likely effect of EMS’s words must be seen and they clearly had the effect of lowering the
prestige of judges and courts, in the eyes of people. Hence, appellant’s justification of his
understanding of Marx doesn’t serve as a defence. It was clear

IV. Role of the Judiciary in a Democratic Society

The Supreme Court made an important observation about the constitutional position of the
judiciary:

 Indian courts derive their powers and legitimacy from the Constitution, and their duty
is to apply the law impartially, even when the state or powerful classes are parties.
 Courts have often ruled against the executive and the elite, thus refuting the claim that
they inherently favour the rich or powerful.
 The discretion judges exercise by any court is limited by law, precedent, and
constitutional constraints.
 Undermining the judiciary can destabilize democracy, as judicial independence is
essential for protecting fundamental rights and enforcing limits on state power.

The Court emphasized that EMS’s position as Chief Minister gave his words greater weight
and potential for harm. As a public leader, his remarks could influence public opinion. His
statements were not casual remarks, but are to be considered as public declarations from a
person in high office. Therefore, higher standards of accountability applied to him.

V. Sentence and Conclusion

While the Court upheld the conviction. The SC also acknowledged that the intent behind the
statements might not have been to cause harm. They thus reduced the fine from Rs. 1000 to
Rs. 50.

In Re. V. C. Mishra AIR 1995 SC 2348

Facts:

 Justice S.K. Keshote of the Allahabad High Court alleged that Senior Advocate Vinay
Chandra Mishra (“Mishra”) misbehaved in open court. Justice Keshote stated in a
letter to the Acting Chief Justice of the High Court that Mishra shouted, threatened
him with impeachment, and disrupted proceedings by insisting the court had no
authority to ask questions at the admission stage.
 The matter was escalated to the Supreme Court. The SC treated the incident as suo
motu criminal contempt, issued a show-cause notice to Mishra. Mishra in turn filed an
affidavit denying many allegations, accusing the judge of misconduct, and demanding
a full inquiry, including cross-examination of Justice Keshote. Mishra simultaneously
filed a contempt petition against Justice Keshote. He later withdrew his complaints
and tendered a written apology, which the Court found unsatisfactory.
Arguments by Mishra:

 Mishra denied shouting, threatening, or insulting Justice Keshote; claimed the Judge
initiated the confrontation. He claimed that his conduct was within the legitimate
limits of fearless advocacy.
 He further claimed protection under Articles 19(1)(a) and 19(1)(g) of the Constitution
(freedom of speech and profession).

Issues and Judgement:

The SC dealt with this judgement as several questions and answers which have been
detailed below:
1. Can the Supreme Court take cognizance of contempt of a High Court and suo
motu initiate contempt proceedings?

Yes. Article 129 of the Constitution vests the SC with the powers of a court of record,
including the authority to punish for contempt of itself and of other courts. The SC held that
this power is not limited to contempt committed only in its own proceedings but extends to
contempt of all subordinate courts and tribunals, including High Courts. The argument that
each High Court under Article 215 is a court of record with identical powers was rejected by
stating that the SC is entrusted under various constitutional provisions with the duty of
superintendence, correction, and protection of lower courts. This inherent supervisory
function implies a power to safeguard the dignity of the entire judicial structure, including
High Courts.
If it were deprived of such power, it would result in a paradox where the institution charged
with overseeing and protecting the integrity of judicial administration would lack the
authority to act against those obstructing it. The Supreme Court must ensure the purity of the
stream of justice and can take action when there is a deviation that affects the judicial system
as a whole.

2. Can contempt in the face of the court justify summary procedure?

Yes. The Court recognized that contempt committed in facie curiae (in the face of the court)
is a sui generis offence. Although it is criminal in nature, the established legal principle under
both common law and Indian statutory law has been that such cases may be tried through a
summary procedure. However, this summary nature does not imply a denial of fair process.
The contemner must be made aware of the specific allegations and afforded an opportunity to
respond. The SC stated that the precision in framing charges depends on the context and is
enough that the gist of the allegations is made clear to the alleged contemner.

[summary suits: simpler sequence for the resolution of civil disputes where court may grant a
decree if the defendants do not have a reasonable defense]

(Overturned in the next case  SC cannot use summary procedure for advocates misconduct)

3. Does contempt in facie curiae (in the face of the Court) violate principles of
natural justice?

No. The principle of natural justice, particularly “nemo judex in sua causa,” (no being judge
in one’s own case) does not bar a judge from addressing contempt committed in their
presence. The Court clarified that the purpose of such proceedings is not personal vindication
for the judge but the protection of the administration of justice. Immediate punishment is
often necessary to maintain decorum and control over proceedings. Delaying such actions for
full inquiries may paralyze court functioning and encourage impunity. The aim is not to serve
the personal interests of judges but to deter misconduct and restore order.

4. Is it necessary to summon the judge for cross-examination when there are

conflicting versions?

No. Section 14(3) of the Contempt of Courts Act, 1971 explicitly provides that when the case
is tried by a judge other than the one in whose presence the offence was committed, the
statement of the judge can be treated as evidence without requiring him to appear as a
witness. This statutory provision acknowledges the nature of contempt in facie curiae and
strikes a balance between fair procedure and judicial efficiency. The SC noted that allowing
cross-examination of judges in such matters would defeat the very purpose of summary
procedure.

5. Should the apology submitted by the contemner be accepted?

No. The Supreme Court found the apology insincere and lacking genuine remorse. While the
contemner, Vinay Chandra Mishra, had submitted a written apology and withdrew his prior
affidavits and applications, the Court observed that his apology was couched in clever, self-
serving language. He appeared more concerned with protecting his professional image than
genuinely expressing contrition. In his affidavit, he attempted to justify his conduct by
blaming the circumstances and impliedly shifting fault to the judge. This, the Court said,
demonstrated a lack of understanding of the gravity of his misconduct.

6. What is the role expected of a lawyer as an officer of the court?

The judgment reiterated that lawyers are not mere representatives of their clients; they are
also officers of the court and owe a duty to uphold the dignity of the judiciary. Robust
advocacy is encouraged but it must be respectful and bounded by decorum. Mishra shouted at
a judge, refused to answer judicial queries, and threatened impeachment proceedings against
the judge. This conduct that clearly exceeded acceptable boundaries. Such acts were not a
demonstration of fearlessness but of “brazenness”, the Court observed.

The Supreme Court eloquently stated: “Brazenness is not outspokenness, and arrogance is
not fearlessness. Use of intemperate language is not assertion of right nor is a threat an
argument.”

7. Is the jurisdiction and power of the Supreme Court to punish for contempt
limited by statute?

No. The Court held that its power under Article 129 is constitutional and not subject to
statutory limitations imposed by the Contempt of Courts Act or the Advocates Act. While
those laws create regulatory mechanisms, they do not curtail the constitutional authority of
the SC to punish for contempt, including suspending or revoking a lawyer's licence to
practice. Even though the disciplinary power is conferred on Bar Councils under the
Advocates Act, it does not preclude the Supreme Court from taking such measures in
contempt jurisdiction.

(Overturned in the next case  SC cannot suspend advocates)

8. Is Article 142 or 129 limited or conditioned by statute?

No. The Court emphasized that the powers under Articles 129 and 142 are sui generis (of its
own kind-unique). These are constitutional powers granted to the Supreme Court to do
“complete justice.” Such powers cannot be curtailed by any parliamentary legislation. The
Constitution has vested in the Supreme Court the power to determine the scope of its own
jurisdiction, and unless expressly stated otherwise, that jurisdiction is plenary.

9. What is "contempt of court" under common law?

The Court accepted the traditional common law definition: an act or omission calculated to
interfere with the due administration of justice. It encompasses both criminal contempt acts
threatening or obstructing justice and civil contempt, such as disobedience of court orders.
The extraordinary power to punish contempt is necessary to ensure that the judicial process is
not impeded or ridiculed.

Held:

 The SC concluded that Mishra had indeed committed acts which amount to criminal
contempt as defined under Section 2(c) of the Contempt of Court Act, 1981.
 The SC held that his conduct including threatening transfer and impeachment,
shouting at the judge constituted contempt. Furthermore, using abusive language was
not only disrespectful but intended to overawe and obstruct the Court in the
performance of its functions.
 The SC, therefore, imposed the following punishment:
 Simple imprisonment for six weeks, suspended for four years, unless further
contempt occurred during that period.
 Suspension from practice as an advocate for three years, with all elected and
nominated positions held by him in professional bodies vacated immediately.
(Overturned in the next case  SC cannot suspend advocates)

Holding:

The Court held that the punishment of suspension from practice imposed in In Re: Vinay
Chandra Mishra was unconstitutional and overruled it. The Supreme Court cannot, in
exercise of its contempt jurisdiction under Articles 129 and 142, suspend or revoke an
advocate’s license to practice law

Supreme Court Bar Association v. Union of India (1998)

Facts:

Facts are same as In Re. V.C. Mishra regarding shouting and disrespecting the judges of the
HC.

In the VC Mishra case (previous case),the SC invoked its constitutional powers under
Articles 129 and 142 and imposed two punishments:

(a) six weeks’ simple imprisonment, suspended for four years,

(b) suspension from legal practice for three years, including vacating all positions held in
a professional capacity.

Aggrieved by the order, the Supreme Court Bar Association (SCBA) filed a writ petition
under Article 32, asserting that only the disciplinary committees of the Bar Councils under
the Advocates Act, 1961 had jurisdiction to suspend or debar an advocate from practice, and
that the Supreme Court had overstepped its jurisdiction.
Issue:

Whether the SC while punishing a contemner can also suspend an advocate’s license to
practice law, or whether this power lies exclusively with the statutory Bar Councils under the
Advocates Act, 1961.

Judgement:

The Supreme Court held that while it possesses broad constitutional powers to punish for
contempt under Article 129, and supplementary powers under Article 142, these do not
extend to awarding punishments that are expressly reserved for statutory bodies such as the
Bar Councils. The contempt jurisdiction and the jurisdiction to determine professional
misconduct are distinct, with the latter exclusively falling under the Advocates Act, 1961.

The Court acknowledged that it had inherent jurisdiction as a court of record to maintain the
dignity of the judiciary and punish for contempt. However, it clarified that professional
misconduct cannot be summarily adjudicated by the Court during contempt proceedings,
especially when it carries penal consequences such as suspension from practice.

It emphasized that the Advocates Act establishes a complete code, providing elaborate
procedures for investigating and punishing advocates for professional misconduct. Only the
Bar Councils have the authority to suspend or revoke an advocate's license after such an
inquiry. The Court underscored that contempt of court and professional misconduct, though
possibly overlapping in facts, must be addressed under their respective frameworks.

The Court noted that in Re: Vinay Chandra Mishra, the Supreme Court had assumed
jurisdiction that statutorily belonged to the Bar Councils by ordering the suspension of
Mishra’s license to practice. This was deemed impermissible, as no proceedings related to
professional misconduct had been initiated or were pending before the Bar Council at the
time.

The Court also observed that although the contemner’s conduct was “unquestionably
egregious and unbecoming of a lawyer”, the appropriate route was to refer the matter to the
Bar Council for disciplinary action. In cases where the Bar Council fails to act upon such
reference, the Court may invoke its appellate jurisdiction under Section 38 of the Advocates
Act, but only if a cause is pending before the Council.

Lastly, the Court stressed that contempt proceedings are sui generis they are not adversarial
and are not meant to restore the personal honour of judges but to uphold the administration of
justice. The wide amplitude of Article 142 must be exercised with restraint, and it cannot
override substantive statutory rights or bypass due process.

Holding:
  The Supreme Court held that it does not have the original jurisdiction to suspend or
revoke an advocate’s license to practice law as part of punishment for contempt. This
power is conferred exclusively upon the Bar Councils under the Advocates Act.
 Accordingly, the Court overruled its earlier ruling in In Re: Vinay Chandra Mishra to
the extent that it had exercised disciplinary authority over an advocate’s license.
 The case reaffirmed that contempt jurisdiction and disciplinary jurisdiction must
remain distinct, and that due process under the Advocates Act must be followed for
any action affecting an advocate’s right to practice.

From both these cases, the distribution of power between the SC and the State/BCI is as
follows:

Aspect SC BCI/State BC
Punishment for The SC, as a court of record The Bar Council has no power to
Contempt of Court under Article 129, has inherent punish for contempt; its
constitutional powers to punish jurisdiction is limited to
for contempt of itself and disciplinary control over
subordinate courts. Article advocates under the Advocates
142(2) supplements this by Act, 1961.
allowing it to make any order
necessary for the punishment
of contempt
Contempt vs. Contempt of court is a sui Misconduct is determined through
Misconduct generis jurisdiction exercised a structured inquiry and not
to protect the authority of the through contempt proceedings.
judiciary and is distinct from The two jurisdictions are separate
proceedings for professional and operate independently.
misconduct.
Jurisdiction over The SC does not possess Has exclusive jurisdiction under
Professional Misconduct original jurisdiction to try Sections 35 and 36 of the
advocates for professional Advocates Act, 1961 to inquire
misconduct. Its powers under into and punish advocates for
Article 129 and Article 142 professional or other misconduct.
cannot bypass the procedure
laid out in the Advocates Act.

Suspension/Revocation The SC cannot suspend or The Bar Councils after conducting

of Advocate’s Licence revoke a lawyer’s license as a full disciplinary inquiry as per
punishment in contempt the Advocates Act and Bar
proceedings. This was held in Council Rules, can suspend or
SCBA v. Union of India (1998), revoke the license of an advocate.
overruling In Re: Vinay
Chandra Mishra (1995).
Referral of Misconduct Can refer an advocate's Must act on complaints or
conduct to the Bar Council references, including those from
under Article 144 (duty of all the Supreme Court or High
authorities to act in aid of the Courts. Proceedings are
SC). If the Bar Council fails to conducted by Disciplinary
act, the SC may invoke Committees following due
appellate jurisdiction under process under the Act and Rules.
Section 38 of the Advocates
Act
 Articles

Gautam Bhatia Offend, Shock, or Disturb: Free Speech under the Indian
Constitution, Oxford University Press 2016

I. The Judiciary's Inherent Weakness and the Role of Contempt

The judiciary, often termed the weakest branch of government, lacks both the executive's
power of enforcement and the legislature's control over financial resources. As Alexander
Hamilton observed, it possesses only “judgment.” Since it relies on public respect and
voluntary compliance, its authority is inherently fragile.

To preserve its authority, courts are vested with the power to punish contempt. Contempt
constitutes acts that challenge or obstruct judicial functioning. Contempt, when invoked to
address non-compliance with court orders, is largely non-controversial. However, a second
form focused on protecting the judiciary’s image has raised serious concerns. This broader
form, termed “scandalizing the court,” penalizes speech that might erode public confidence in
the judiciary, even when such speech poses no real risk to justice delivery.

II. The Constituent Assembly Debates on Contempt of Court

Contempt was not part of the original Draft Constitution. It was inserted late into Article
19(2) by T.T. Krishnamachari in October 1949, primarily to curb prejudicial comments on
ongoing cases. The rationale was to protect fair trial rights by restricting media and public
commentary on sub judice matters.

This move, however, was met with not met with ease. Pandit Thakur Das Bhargava
emphasized that contempt should be limited to procedural disobedience, already covered
under the Code of Criminal Procedure. He opposed expanding contempt to include
expressions made outside court. R.K. Sidhva warned that allowing judges to judge their own
dignity risked judicial overreach.

Others, including the President of the Assembly, invoked the analogy of defamation - if
individuals could sue to protect reputation, so could institutions like courts. Naziruddin
Ahmad supported contempt only to prevent media trials that might prejudice ongoing
proceedings.

Despite the disagreement, contempt of court was included as a restriction on free speech
under Article 19(2), leaving future interpretation to the judiciary.

III. The Contempt of Courts Act, 1971

The Act codified contempt into two types:

1. Civil Contempt: Wilful disobedience to court orders.

2. Criminal Contempt: Includes actions that:

 Scandalize or lower the authority of courts,

 Prejudice judicial proceedings,
  Obstruct the administration of justice.

The controversial aspect lies in criminal contempt, particularly “scandalizing the court.” The
ambiguity stems from whether the first two clauses are subsets of actual obstruction or
independent offences. Indian courts have generally chosen the broader interpretation, treating
criticism as contempt even when it causes no tangible harm.

IV. Colonial Legacy of ‘Scandalizing the Court’

The offence originated in British common law, with R v. Gray (1900) defining it as any act or
publication lowering the court’s authority. The logic mirrored sedition: just as sedition sought
to protect the State’s image, scandalizing protected judicial prestige.

This colonial rationale persists in India, where courts have clung to the notion that
institutional legitimacy depends on preserving public reverence, even at the cost of
constitutional free speech protections.

V. Global Democratic Norms and the Rejection of Scandalizing

Modern democracies have moved away from this doctrine. In the U.S., Bridges v. California
struck down contempt for criticizing judicial decisions, ruling that only a “clear and present
danger” to justice could justify restriction. Garrison v. Louisiana protected criticism of
judges unless it was knowingly false or reckless. In Landmark Communications, the Court
emphasized that judges are not immune from public scrutiny.

The U.K., after a 2012 Law Commission report criticizing the offence as vague and
suppressive, abolished it by statute in 2013. Canada’s Kopyto decision and South Africa’s
Mamabolo judgment also narrowed the offence to cases of demonstrable harm. The Privy
Council in Dhooharika adopted a “real risk” standard, demanding proof of intent or
recklessness.

VI. Indian Exceptionalism

Indian courts, in contrast, have expanded the offence. In Aswini Kumar Ghose, the Supreme
Court held that public perception of judicial bias could damage justice. This set the tone for
future cases where criticism was seen as inherently harmful.

In E.M.S. Namboodiripad, the Kerala Chief Minister’s Marxist critique of the judiciary led to
a contempt conviction. The Court dismissed his ideological defense, arguing that attacks on
judicial impartiality weaken the rule of law. This blurred the line between political thought
and legal misconduct.

D.C. Saxena v. Chief Justice of India pushed the boundary further. The Court held that even
speech that merely offends the dignity or majesty of the judiciary could amount to contempt.
It removed the requirement for intent (mens rea) or actual disruption. The focus shifted from
preserving justice to preserving faith.

This reasoning was further clarified in the Arundhati Roy case, where the Court stated that
India’s largely uneducated population was easily misled, justifying harsh punishment for
critique. The Court viewed Roy’s criticism as an attack on the institution itself, invoking an
almost paternalistic rationale for silencing dissent.

VII. Risks of Judicial Overreach: The Pathological Perspective

Vincent Blasi’s “pathological perspective” cautions that institutions granted power to silence
critics tend to overreach. Indian contempt jurisprudence exemplifies this. Despite a 2006
amendment requiring substantial interference with justice, courts continue to treat mere
criticism as obstructive.

The logic rests on speculative chains:

Speech leads to distrust  which leads to disobedience  which undermines justice.

This overly preventive approach lacks clear thresholds and gives judges sweeping discretion
to police dissent.

VIII. A Limited Course Correction: Sahara v. SEBI

In Sahara v. SEBI (2012), the Court adopted a more nuanced approach. Addressing media
coverage of sub judice cases, it allowed prior restraint only if:

 There is a real and substantial risk to fairness,

 The restriction is necessary and proportionate,
 No alternatives exist,
 The restraint is time-bound.

Borrowing from Canadian and European jurisprudence, the Court struck a balance between
free speech and fair trial. However, ambiguity about its constitutional basis whether Article
21 or 19(2) leaves room for inconsistent application which has often been the case in Indian
jurisprudence.

IX. Conclusion

India's contempt jurisprudence, especially the offence of scandalizing the court, remains an
outlier globally. While other democracies demand proof of real harm, Indian courts continue
to penalize critique based on potential reputational damage.

This conflation of dignity with legitimacy undermines democratic values. Respect for the
judiciary must be earned through transparency and accountability, not enforced through
coercion. Bhatia finally concludes by stating that until Indian courts adopt narrower, harm-
based standards, contempt will remain a tool vulnerable to misuse more a shield against
criticism than a protector of justice.

Law Commission of India, “Review of the Contempt of Courts Act, 1971

(Limited to
 Section 2 of the Act)”, Report No. 274 (April 2018)

I. Introduction

The Law Commission of India’s 274th Report was tasked with a focused review of Section 2
of the Contempt of Courts Act, 1971 primarily to assess whether the existing definition of
contempt, especially “criminal contempt,” should be restricted only to instances of wilful
disobedience of court orders. This examination originated from a reference made by the
Ministry of Law and Justice in 2018, urging a reconsideration of whether retaining contempt
laws, especially in their current scope, is necessary in a modern constitutional democracy that
prizes freedom of expression.

The core concern before the Commission was the balance between two competing
constitutional ideals: the protection of judicial authority versus the right to free speech and
expression guaranteed under Article 19(1)(a).

II. Classification of Contempt

A. Definition under the 1971 Act

Section 2 of the Act makes a fundamental distinction between two types of contempt:

 Civil Contempt (Section 2(b)): Defined as “wilful disobedience” to a court’s order,

judgment, decree, direction, writ, or undertaking. This is a relatively uncontroversial
area of the law, as it deals with non-compliance that threatens the authority of judicial
decisions.
 Criminal Contempt (Section 2(c)): Involves conduct that:

o (i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority

of any court;
o (ii) Prejudices or interferes with the due course of judicial proceedings;
o (iii) Obstructs or tends to obstruct the administration of justice.

The Law Commission notes that criminal contempt, especially clause (i) (“scandalizing the
court”), is the most controversial aspect due to its inherently subjective nature and potential
conflict with democratic freedoms.

III. Constitutional Provisions of Contempt Powers

Articles 129, 215, and 142(2)

 Article 129 designates the Supreme Court as a court of record with the power to
punish for its own contempt.
 Article 215 confers similar powers on High Courts.
 Article 142(2) provides that the Supreme Court may exercise powers to punish
contempt across India, and these powers are not subject to limitation periods under the
Act.
This constitutional status means that the judiciary’s contempt powers are not entirely reliant
on or restricted by legislation like the 1971 Act. The powers of superior courts to punish
contempt are understood as inherent and essential for preserving the rule of law.

IV. Intersection with Article 19(1)(a): Free Speech vs Reasonable Restrictions

While India guarantees free speech, the Constitution expressly allows for “reasonable
restrictions” under Article 19(2). Contempt of court is one such ground. The judiciary has
clarified that fair and reasonable criticism of judicial decisions does not amount to contempt.
However, baseless allegations of bias, corruption, or malintent aimed at judges or courts may
constitute contempt, as they undermine public confidence in the justice system. (EMS case)

For example, in Aswini Kumar Ghose v. Arabinda Bose (1953), the Supreme Court upheld
the right to fair criticism but emphasized that accusations impugning judges’ motives were
not protected by free speech.

The Commission clarified that while freedom of expression is critical in a democracy, it

cannot be a shield for malicious attacks that obstruct or erode the authority of courts.

V. Limitations on Contempt Jurisdiction

A. Procedural Safeguards

The Contempt of Courts Act, 1971 imposes several procedural checks to prevent abuse:

 Section 14 deals with contempt in the face of the court.

 Section 15 requires the prior consent of the Attorney General or Advocate General for
criminal contempt proceedings unless initiated by the court suo motu.
 Section 13 limits punishment to only such cases where there is “substantial
interference” with the due course of justice.

These safeguards aim to ensure that contempt proceedings are not used punitively or
arbitrarily and that due process is always followed.

B. Punishment and Proportionality

Section 12 of the Act prescribes the punishment for contempt up to six months’ imprisonment
or a fine, or both. It also allows the contemnor to escape punishment by offering an
unconditional apology if the court deems it bona fide.

The courts have emphasized that punishment should be proportionate to the gravity of the
contemptuous act and invoked only when silence would be more damaging than intervention.
The report underscores that punishment is not intended for vindicating the dignity of
individual judges but rather to protect the institution from public disrepute.

VI. Judicial Approach to Contempt

The Indian judiciary has consistently reiterated that the power to punish for contempt must be
exercised with restraint.
Key Judicial Positions:

 In Re: Vinay Chandra Mishra (1995): The SC imposed suspension on an advocate

for contempt, but this was later read down in Supreme Court Bar Association v.
Union of India (1998), which clarified that courts cannot override Bar Council
disciplinary powers under the Advocates Act. (summarised above)
 Mahipal Singh Rana v. State of U.P. (2016): Held that courts can take action if the
Bar Council fails to discipline errant advocates, but only by exercising statutory
appellate powers or through appropriate writ jurisdiction.
 In Re: C.S. Karnan (2017): A sitting High Court judge was convicted of contempt,
marking a rare but significant use of the court's inherent contempt powers.

Through these rulings, the courts have reiterated the principle that the contempt power
necessary for institutional protection.

VII. Observations on Criminal Contempt

The Commission identifies that clause (i) of Section 2(c) “scandalizing the court” is highly
problematic for several reasons:

 It lacks objective standards.

 It can have a chilling effect on free speech, particularly investigative journalism and
public interest commentary.
 It is inconsistently applied and rarely invoked, raising questions about its continued
relevance.

Jurisdictions like the UK have abolished this head of criminal contempt. In England, the
offence of “scandalizing the court” was abolished in 2013 following a Law Commission
recommendation that deemed it outdated and redundant in a modern democracy. In the U.S.,
contempt laws are strictly balanced against the First Amendment, with a higher threshold for
proving harm.

VIII. Procedural Constraints and Recommendations

The report discusses procedural irregularities and inconsistencies in contempt proceedings

across courts. There is an identified need to:

 Codify procedural norms more clearly.

 Promote uniformity across High Courts.
 Encourage courts to exercise restraint and ensure that contempt actions are not
substitutes for appeals or reviews.

The Commission recommends that any future amendment to Section 2(c) must ensure that
contempt jurisdiction is not used to shield the judiciary from criticism but only to protect the
“administration of justice” from real and substantial interference.