The Practical Lawyer

The Supreme Court as a Court of Record

The Supreme Court as a Court of Record
By MANISH KUMAR SINGH *
Cite as: (2011) PL February S-31

The Supreme 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.
The first Draft Constitution of India prepared by the Constitutional Adviser under Article 108, following Section 203 of
the Government of India Act, 1935, provided in its Clause 91 that the Supreme Court shall be a court of record.
(a) What is a court of record? Dr. Ambedkar said that it is important to define the status of the Supreme Court. He said
that:
... a court of record is a court the records of which are admitted to be of evidentiary value and they are not to be
questioned when they are produced before any court. ... Then, the second part of Article 108 says that the court shall
have the power to punish for contempt of itself. As a matter of fact, once you make a court a court of record by statute,
the power to punish for contempt necessarily follows from that position.1

Article 129 provides that the Supreme 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. Article 215 contains similar provision in respect of the High Court.
Both the Supreme Court as well as the High Courts are courts of record having powers to punish for contempt including
the power to punish for contempt of itself. The Constitution does not define Court of Record. This expression is well
recognised in juridical world. The common law definition of contempt of court is: An act or omission calculated to inte
with the due administration of justice. 2
A court of record is defined as:
1. A court whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony, and which
has power to fine and imprison for contempt of its authority. 3
2. Courts are either of record where their acts and judicial proceedings are enrolled for a perpetual memorial and
testimony and they have power to fine and imprison; or not of record being courts of inferior dignity, and in a less proper
sense the Kings Courts and these are not entrusted by law with any power to fine or imprison the subject of the realm,
unless by the express provision of some Act of Parliament. These proceedings are not enrolled or recorded.4
3. Court of record is a court where acts and judicial proceedings are enrolled permanently for perpetual memorial and
testimony, which rolls are called the record of the court, and are of such high and super eminent authority that their truth
is not to be questioned.5
4. 709. Courts of record.Another manner of division is into courts of record and courts not of record. Certain courts are
expressly declared by statute to be courts of record. In the case of courts not expressly declared to be courts of record,
the answer to the question whether a court is a court of record seems to depend in general upon whether it has power to
fine or imprison, by statute or otherwise, for contempt of itself or other substantive offences; if it has such power, it seems
that it is a court of record. ... proceedings of a court of record preserved in its archives are called records, and are
conclusive evidence of that which is recorded therein.6

The public have a vital stake in effective and orderly administration of justice. The Court has the duty of protecting, the
interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for
contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of
the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with. It is a mode of
vindicating the majesty of law, in its active manifestation, against obstruction and outrage.7 The object and purpose of
punishing contempt for interference with the administration of justice is not to safeguard or protect the dignity of the
Judge or the Magistrate, but the purpose is to preserve the authority of the courts to ensure an ordered life in society.
In Attorney General v. Times Newspapers Ltd.8 the necessity for the law of contempt was summarised by Lord Morris
as:
... In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law
and order. In the general interests of the community it is imperative that the authority of the courts should not be
imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable
interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned
for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so
flouted that their authority wanes and is supplanted.
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The Supreme Courts power to contempt jurisdiction under Article 129 is independent of the statutory law of contempt
enacted by Parliament under Entry 77 List I of the Seventh Schedule of the Constitution. The constitutionality vested right
under Article 129 cannot be either abridged, abrogated or cut down, by any legislation, such as, the Contempt of Courts
Act or the Code of Civil Procedure.9
(b) Shall have all the powers of such a court The Court observed in Naresh Shridhar Mirajkar10 that in case of a
superior Court of Record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court
of limited jurisdiction, the superior court is entitled to determine for itself questions about its own jurisdiction. In the
absence of any express provision in the Constitution the Apex Court being a court of record has jurisdiction in every
matter and if there is any doubt, the court has power to determine its jurisdiction. In Ganga Bishan v. Jai Narain11 the
Court emphasised that, the Constitution has left it to the judicial discretion of the [Supreme] Court to decide for itself the
scope and limits of its jurisdiction in order to render substantial justice in matters coming before it.12
(c) Power to punish for contempt of itself Contempt of court means civil contempt or criminal contempt13. 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,14 while.
2. (c) criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible
representations, 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; (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.15 93. ... the cornerstone of the contempt law is the accommodation of two
constitutional values the right of free speech and the right to independent justice. The ignition of contempt action should
be substantial and mala fide interference with fearless judicial action, not fair comment or trivial reflections on the judicial
process and personnel.16 5. Fair criticism of judicial act not contempt.A person shall not be guilty of contempt of court for
publishing any fair comment on the merits of any case which has been heard and finally decided.17 ... The path of
criticism is a public way: the wrong-headed are permitted to err therein; provided that members of the public abstain from
imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of
criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a
cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary
men.18
Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all
the powers of such a court including the power to punish for contempt of itself. The expression used in Article 129 is not
restrictive instead it is extensive in nature. If the Framers of the Constitution intended that the Supreme Court shall have
power to punish for contempt of itself only, there was no necessity for inserting the expression including the power to
punish for contempt of itself. The article confers power on the Supreme Court to punish for contempt of itself and in
addition, it confers some additional power relating to contempt as would appear from the expression including. The
expression including has been interpreted, to extend and widen the scope of power. The plain language of Article 129
clearly indicates that the Court as a court of record has power to punish for contempt of itself and also something else
which could fall within the inherent jurisdiction of a court of record. In interpreting the Constitution, it is not permissible to
adopt a construction which would render any expression superfluous or redundant. While construing Article 129, it is not
permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. Since, the
Supreme Court is designed by the Constitution as a court of record and as the Founding Fathers were aware that a
superior court of record had inherent power to indict a person for the contempt of itself as well as of courts inferior to it,
the expression including was deliberately inserted in the article. Article 129 recognised the existing inherent power of a
court of record in its full plenitude including the power to punish for the contempt of inferior courts.19
The Supreme Court is the highest court of the land. It is vested with powers which are exercised by few courts in the
world. It constitutes the highest court of appeal in civil and criminal matters. Appeals against the order of any tribunal can
also be entertained by the Court by special leave. An overview of the constitutional and statutory provisions justifies in
establishing the pious character of our temple of justice.
*Chanakya National Law University, Patna, 4th year.
- Constituent Assembly Debates, Vol. 8, p. 382.
- Bowen, L.J. in Helmore v. Smith, (1887) 35 Ch D 436, cited in Delhi Judicial Services Assn. v. State of Gujarat, (1991)
4 SCC 406, 456, para 42.
- Jowitts Dictionary of English Law.
- Whartons Law Lexicon.
- Words and Phrases (Permanent Edn.), Vol. 10, p. 429.
- Halsburys Laws of England, Vol. 10, p. 319.
- Frankfurter, J. in Offutt v. United States, 99 L Ed 11, 16 : 348 US 11 (1954).
- 1974 AC 273, 302 B-C : (1973) 3 WLR 298 : (1973) 3 All ER 54 (HL).
- Vinay Chandra Mishra, In re, (1995) 2 SCC 584.
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- Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

- (1986) 1 SCC 75.
- Ibid, 78-79, para 5.
- S. 2(a) of the Contempt of Courts Act, 1971 (70 of 1971).
- Infra, S. 2(b).
- Infra, S. 2(c).
- Baradakanta Mishra v. Registrar of Orissa High Court, (1974) 1 SCC 374, 379, para 93 : 1974 SCC (Cri) 128.
- Contempt of Courts Act, 1971, S. 5.
- Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago, 1936 AC 322, 335 : (1936) 1 All ER 704 :
AIR 1936 PC 141.
- Delhi Judicial Services Assn., supra, n. 2.

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