JAMIA MILLIA ISLAMIA

DISSERTATION

CONTEMPT OF COURT IN
LIGHT OF JUDICIAL
PRONOUNCEMENTS

Submitted To, Submitted By,

Adv. Sukesh Mishra Jijo Raj P
Professor, Faculty of Law B.A LL.B(IX Sem)
Jamia Millia Islamia Section: B
Jamia Nagar, New Delhi Roll No: 17
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 DECLARATION

I, hereby declare that the dissertation entitled “Contempt of Court and Judicial
Trend” is based on original research undertaken by me and it has not been submitted
in any University for any degree or diploma.

New Delhi. Jijo Raj P

04/11/2019. En No: 15-0073

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 CERTIFICATE

This is to certify that the dissertation entitled “Contempt of Court and Judicial
Trend” has been prepared by Jijo Raj P, a student of Faculty of Law, Jamia Millia
Islamia Central University under my supervision and guidance. I recommend it for
evaluation.

New Delhi. (Signature of the Guide)

04/11/2018.

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 ACKNOWLEDGEMENT

I am deeply indebted to my professor Adv. Sukesh Mishra, Lecturer in Faculty of

Law, Jamia Millia Islamia Central University, who has always been a source of
inspiration and has encouraged me in this endeavor. I am obliged to him for having
taken greater care and interest in guiding me at every stage of the work.

I thank all the Library Staffs of Jamia Millia Islamia for assisting me to use the
library resources.

I gratefully acknowledge the enormous blessings and good fortune I have as a

student of Jamia Millia Islamia which has given me the excellent foundation for the
research. I thank all my family and friends who gave me the emotional strength that
worked as a strong force behind the entire work.

JIJO RAJ P

B.A LL.B( V Year )

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 HYPOTHESIS

Contempt can be said to be an act or omission which interferes or tends to interfere in the
administration of justice. To constitute contempt, it’s not necessary that there has been actual
interference in the administration of justice. If the act complained of, tends to interfere or attempts
to interfere in the administration of justice, may be taken as contempt. The expression
'administration of justice' is to be used in a very wide sense. It is not confined to the judicial
function of the judge but includes all functions of judges- administrative, adjudicatory and any
other function necessary for the administration of justice.

OBJECTIVES

The main objectives of the study are:

1. To understand the laws relating to Contempt of Courts.
2. To trace out the history of evolution of the concept of Contempt of Court.
3. To study the impact of Punishment for Contempt of Court on the Freedom of speech.
4. To study the impact of Punishment for Contempt of Court on the Freedom of Expression.
5. To explore the Judicial Decisions with regard to Contempt of Court.

RESEARCH METHODOLOGY
To fulfill the objective of the study the researcher has adopted the “Doctrinal research” and the
“Empirical research” methodology. The researcher used the doctrinal research method for
gathering the opinions of the textbook writers, the Law Commission reports on the structural and
operational part of the legislative machinery. The methodology helped in systematizing legal
propositions and judicial interpretations for a theoretical assessment of the research problem with
the help of the various law journals, and books of the eminent jurists forming the secondary sources
of the research. The researcher undertaken the empirical field study by attending the arbitral
proceedings.

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INTRODUCTION
Contempt is the state of being despised or dishonored; disgrace. Any conduct that tends to bring
the authority and administration of law into disrespect or disregard or to interfere with or prejudice
parties or their witness during litigation is considered to be contempt of court, says Oswald.
Contempt is defined by Halsbury, as consisting of words spoken or written which obstruct or tends
to obstruct the administration of justice.

Early man was free to act in any manner he liked and his will to do an act depended upon the
strength of his limbs, strengthened by the use of arms, which he developed day by day. That instinct
to prevail over another survives even to this day, both in social life and international spheres. Even
today, there is a race to control the world not only by use of weapons, but also by the control of
economic conditions. The society was formed by our first ancestors to bring peace, without which
no development is possible. If a man is in constant fear of losing his limb, life or livelihood, the
creative spirit in him remains dormant.

Therefore, it was agreed that individual liberties be curtailed to some extent and disputes between
'the warring groups be settled by an independent agency. This agency came to be called the ‘King’.
It was for the King to decide disputes arising between men, who chose him to be King. The King
formulated certain guidelines which were termed laws. Everyone in the society was expected to
act in such a manner so as not to come in conflict with these laws. If there was disobedience to the
laws, punishment was awarded for the same. In early stages of society, the King 'personally
disposed of the disputes.1

As the society expanded, disputes increased in number. It was not possible for the King personally
to settle all the disputes. He, therefore, appointed persons to perform his duties. This is how
“Courts” came into existence. Most; of the disputes were settled by the Courts on the basis of
guidelines given by the King. Still the King retained his right to hear any dispute himself.

In this way, the decisions given by the Courts were the decisions of the King in law. If the King’s
authority could not be questioned, then authority of the Courts could not be questioned, too. If the
King could not be abused or scandalized, so also the Courts could not be abused or scandalized.

1
Iyer’s, Law on contempt of courts, 4th Edition p. 24

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Just as the proceedings before the King could not be prejudiced, or obstructed: similarly the
proceedings before the Court could not be prejudiced or obstructed.

If any one interfered in the administration of justice, he was liable to be punished. It is the genesis
of the law of contempt of Courts. King’s word was law. He could not be disobeyed. If a person
was asked to stay, he had to stay. If he was asked to depart, he had to depart. Anyone, howsoever
high fie may be, could be punished for disobedience. The punishment had no limits. The
condemned man could lose his property, liberty, limbs or even his life. Since the King had the
right to punish, he also had the right to pardon. A sincere apology for any lapse could save the man
from the wrath of the King.

The authority of the King traveled down to: superior courts. Their word was also final, in the ladder
of various stages of the litigation. No one could question the authority of the Courts. No one could
humiliate the Courts or scandalize them. No one could prejudice or obstruct the course of justice.
Anyone who did all this, was punished.

Yet for a long time, the law on the subject remained in a confused state. Different Judges describe
contempt of Court in different ways. For the first time, it was Wilmot, J., who pronounced the law
on the subject with precision.

In the case of R. v. Almon,2 the facts were that one John Almon, a book-seller, published a libel
on Lord Mansfield, the Chief Justice. An attachment of the person of John Almon was obtained,
but in the warrant of attachment by mistake, instead of writing R. v. Almon, R. v. Wikes was
written. Mr. Justice Wilmot (as he then was) urged Sergeant Glyn to accept the amendment, but
he as a man of honour, did not agree. The mistake was fatal and the proceedings were dropped.
Wilmot, J., thus could not deliver the judgment, which he had written out. The judgment was
written in 1765, but it came to light when Wilmot’s son published it in 1802, as “Notes of Judges’
Opinions and Judgments” (1765 Wilmot 243).

The judgement is the cornerstone of the law on the subject. Wilmot, J., in this case says, as follows:

“The power which the Courts in ‘Westminster Hall have of vindicating their own authority, is
coeval’ with their foundation and institution; it is a necessary incident to every Court of Justice,

2
(1765) Wilm. 243.

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whether of record or not, to fine and imprison for a contempt to the Court' acted in the fact of it.3
And the issuing of attachments by the Supreme Courts of Justice in Westminster Hall, for contempt
out of Court, stands upon the same immemorial usage, as supports the whole Fabric of the
Common Law; in as much the lex terrae, and within the exception of Magna Charta, as the issuing
any other legal process whatsoever”.

3
Sparks v. Martyn, (1669)1 Vent. 1.

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CONTEMPT
According to the Oxford Dictionary, contempt is the state of being despised or dishonored;
disgrace. Any conduct that tends to bring the authority and administration of law into disrespect
or disregard or to interfere with or prejudice parties or their witness during litigation is considered
to be contempt of court, says Oswald. Contempt is defined by Halsbury, as consisting of words
spoken or written which obstruct or tends to obstruct the administration of justice.

The Indian legislature does not provide with a concrete definition of contempt, however section
2(a) of The Contempt of Courts, 1971 says ‘contempt of court means civil contempt or criminal
contempt’. Section 2(b) & section 2(c) of The Contempt of Courts Act, 1971 defines civil and
criminal contempt. Although the legislature has not defined what amounts to contempt, it has
defined civil and criminal contempt. Thus contempt cannot be confine to four walls of a definition.
Therefore, what would offend the court’s dignity and what would lower the court’s prestige is thus
a matter which can be decided by the court itself and it’s for the court to deal with each case of
contempt under the facts and circumstances of that case.

Contempt in its simple literal meaning is disgrace, scorn or disobedience.4 Contempt in its legal
conception means disrespect to that which is entitled to legal regard. The difficulty and vagueness
start at the definition stage itself. It is infact the feeling of a person towards another person or thing
that he considers despicable. The contempt is disrespect to the court or legislative body or the
persons connected with courts or parties to the proceedings or legislative body. The expression
„contempt of court‟ has been “a recognized phrase in English law from the 12th century”. If
administration of justice has to be effective, respect for its administration has to be fostered and
maintained and it is out of rules framed by court in this behalf that the law of contempt has grown.
From rudimentary rules devised for the limited purpose of securing obedience to the orders of
courts, there evolved in the course of time elaborate and far reaching doctrines and extraordinary
procedures. Right till the present century, these doctrines and procedures were never subjected to
legislative scrutiny with the result that the law of contempt had, as it were, a wild growth. Each

4
Tekchand J., The Law of Contempt of Court and of Legislature (4th ed., 1997), The University Book
Agency, Allahabad
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new precedent was not declaratory but creative of law. Each new type of attack on the
administration of justice received a corresponding elaboration or extension of the contempt law.
As Craies has said, “the ingenuity of the judges and of those who are concerned to defeat or defy
justice has rendered contempt almost protean in its character”.5 An even now it may well be said
the categories of contempt are not closed. The result is that there are contempts and contempts
ranging from mere disobedience to orders of court and involving only a wrong of a private nature
as between the parties to a suit at one end and contempts involving physical violence or large-scale
blackmail or mudslinging by means of publication on the judge at other end. Contempt of court
may include conduct, which while, it cannot influence the judges‟ mind is calculated to effect the
conduct of parties to proceedings e.g. by causing them to discontinue or compromise existing
actions or to abstain from commencing actions in which they are entitled to succeed. In view of
the haphazard development inherent in the process of development of law by judicial precedent; it
is not possible to attempt neat and clear cut classifications of the various branches of the law of
contempt and, in view of the possibility of new types of contempt arising in future, it is not possible
to demarcate the area of operation of the law of contempt. It is for these reasons that judges and
jurists have not succeeded in formulating a comprehensive and complete definition of the concepts
of contempt of courts.

The definition of „contempt‟ cannot be exhaustive. The fortiori what is contumacious is for the
court to decide. Its discretion cannot be confined within the four walls of a definition.6 In the words
of one of our own judges, it is indeed difficult and almost impossible to frame a comprehensive
and complete definition of contempt of court. The law of contempt covers the whole field of
litigation itself. The real end of judicial proceeding, civil or criminal, is to ascertain the true facts
and dispense justice. Anything that tends to curtail or impair the freedom of the limbs of judicial
proceeding must of necessity result in hampering the due administration of law and in interfering
with the course of justice.

5
Cited in Goodhart, Newspaper and Contempt of Court 48 Harvard Law Review 885 at P.886.
6
Ahmed Ali vs. Superintendent, District Jail, Tezpur, 1987 Cr.L.J. 1845 (Gau.).
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Contempt of court is not defined anywhere with precision. To quote Oswald’s Contempt of courts:

“Contempt of court is so manifold in its aspects that it is difficult to lay down any exact definition
of the offence.7 As it appears from the old cases, the term „Contempt‟ in its legal acceptance,
primarily signifies disrespect to that which is entitled to legal regard; but as a wrong purely moral
or affecting an object not possessing a legal status, it has in the eyes of the law, no existence. In
its origin, all legal contempt will be found to consist in an offence more or less direct against the
sovereign himself, as the fountain- head of law and justice or against his Palace, where justice
was administered.”8

Further he says:

“It is not that it was not possible to define, but the definition cannot be exhaustive. Contempt of
court may be said to be constituted by any conduct that tends to bring the authority and
administration of the law into disrespect or disregard, or to interfere with or prejudice parties,
litigant or their witnesses during the litigation. The court may be scandalised or humiliated in a
number of ways sometimes intentionally, sometimes unknowingly. Hence, except for general
guidelines, no exhaustive definition has been attempted; judicial decisions are the only guide in
deciding the question, as to whether the act complained of amounts to “contempt of court”

KINDS OF CONTEMPT
According to Lord Hardwick: Contempt of court are classified under three broad categories,

1. Scandalizing the court itself.

2. Abusing parties who are concerned in the cause, in the presence of court.

3. Prejudicing the public before the cause is heard.

7
Miller vs. Knox, (1878) Bing N.C. 574, at p.589,Per William J.
8
Oswald‟s, Contempt of Courts 3 rd ed. P.1
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However, in India, contempt is classified under two major categories:

1. Civil contempt

2. Criminal contempt

CIVIL CONTEMPT
According to section 2(b) of the Contempt of Courts Act, 1971 civil contempt means willful
disobedience to any judgement, decree, direction, order, writ or other process of a court or willful
breach of an undertaking given to a court.

Thus from the abovementioned definition it can be ascertained that there are two important
essentials to constitute civil contempt:

1. Disobedience of any judgement, decree, direction, order, writ or other process of a court
or an undertaking given to the court.

There should be disobedience of a valid order to constitute contempt of court. An order includes
all kinds of judgments, orders-final, preliminary, ex-parte, and contempt order. Disobedience of a
decree, direction, writ or other process of a court, or an undertaking given to the court, will also
amount to contempt of court. It was held by the Supreme Court, in the case of H.Puninder v. K. K.
Sethi,9 that in absence of the stay order in appeal or revision of higher court, the order appealed
against should be complied with, subject to any order passed at later stage, otherwise it is open for
the contempt court to proceed further on merit of the contempt case.

A different view was upheld by the Supreme Court in case of interim relief/stay order. The
Supreme Court, in the case of State of Jammu and Kashmir v. Mohammad Yakub Khan,10 held
that where stay vacation application has been promptly filed by the respondent against whom the
stay order has been passed and the same is pending for disposal the court shouldn't proceed in the
contempt case unless and until the stay vacation application has been decided.

9
(1998) 8 SCC 640
10
JT 1992 (5) SC 278, 1992 (2) SCALE 424, (1992) 4 SCC 167, 1992 Supp 1 SCR 43, 1992 (2) UJ 720 SC, (1992) 2
UPLBEC 1166

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So far as the breach of undertaking as contempt of court is concerned, the basis behind this is that
the contempter obtains a beneficial order for himself from the court, by giving an undertaking and
if he fails to honor the undertaking at a later stage, he plays a serious fraud on the court and thereby
interferes with the administration of justice by bringing the court into disrespect.

An undertaking can be given to the court in two ways:

· By moving an application or filing an affidavit before the court clearly stating the terms of the
undertaking.

· By giving s clear and express oral undertaking which is incorporated by the court in the order.

A willful breach of an undertaking, given according to the abovementioned ways, would amount
to contempt of court.

2. The Disobedience or breach must be willful, deliberate and intentional.

Mere disobedience or breach of the court’s order by the person is not sufficient to constitute civil
contempt. Such a disobedience or breach must be willful, deliberate and intentional. In order to
exercise its power to punish the contemnor the court has to be satisfied beyond reasonable doubt
that the contemnor has willfully, deliberately and intentionally violated the court’s order.

No court including contempt court is entitled to take trivialities and technicalities into account
while finding fault with the conduct of the person against whom contempt proceeding is taken.

Where the order has been substantially complied with and a reasonable explanation has been
provided for the delay in compliance with the order, the contempt will not lie as the violation is
not willful and deliberate.

CRIMINAL CONTEMPT
According to section 2(c) of The Contempt of Courts Act, 1971, criminal contempt means the
publication (whether by word, 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) Scandalizes or tends to scandalize, 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

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iii) Interferes or tends to interfere with, or obstruct or tends to obstruct, the administration of justice
in any other manner.

Thus from the abovementioned definition it can be ascertained that there are four important
essentials to constitute criminal contempt:

1. Publication of any matter.

The word publication has been given a very wide meaning so far as contempt of court is concerned.
It includes words (spoken/written), signs and visible representation. It also includes the publication
of any material in the newspaper and magazines, the broadcasting of any material on the radio and
exhibition of anything in cinemas, theaters and television.

If these materials contain anything which scandalizes or lowers or tends to scandalize or lower the
authority of any court, prejudices or interferes with the due course of any judicial proceeding or
interferes or tends to interfere with administration of justice, it will amount to criminal contempt
of the court.

2. Scandalizing or lowering the authority of the court.

Scandalizing might manifest itself in various ways but in substance, it is an attack on individual
judges in particular or the court as a whole, with or without reference to a particular case, by casting
unwarranted and defamatory aspersions upon the character or the ability of the judges. Such
conduct is punished as criminal contempt for the reason that it tends to create distrust in the minds
of common people and thereby shatters confidence of the people in the judiciary.

The Supreme Court made it clear, in the case of Arundhati Roy, that criticism which undermines
the dignity of the court can't be said to be fair criticism and does not fall under the ambit of freedom
of speech and expression as is guaranteed by Article 19 (1)(a) of Constitution of India. Thus
prosecution of persons for scandalizing the court is not prohibited by constitutional right of
freedom of speech and expression under Article 19 (1)(a).

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Writing/drafting in pleading or petition by which defamatory allegations have been levelled
against a judge in particular or court as a whole, would amount to criminal contempt, held the
Supreme Court.11

In case of U.P Residential Employee Cooperative Society v. New Okhla Industrial Development
Authority12, the Supreme Court held that filing a false affidavit in the court with a view to mislead
the court will amount to criminal contempt.

3. Prejudice or interference with the due course of any judicial proceeding.

Any publication which prejudices or interferes with the due course of any judicial proceeding
would amount to criminal contempt of court. Media trial or trial by newspaper is not considered
proper because it effects the fairness of trial and is likely to cause interference with the
administration of justice.

The knowledge of pendency of the case and reasonable grounds to believe that the case in pending
is sufficient to make out criminal contempt and the intention and motive of the publisher behind
the content of publication is not relevant for the purpose of criminal contempt. If it lowers the
authority of the court and causes interference with the due course of judicial proceeding it would
amount to criminal contempt.

In civil cases, the pendency starts with the filing of the plaint and in criminal cases, with the filing
of a charge sheet or the issuance of summons or warrants. The pendency continues till the case is
decided. In case an appeal/revision is filed, pendency continues till the appeal or revision is
decided. If appeal/revision is not filed, pendency continues till the period of limitation for filing
the same has not expired. Once it expires, pendency is over.

4. Interference/Obstruction with the administration of justice in any other manner.

The publication or doing of any act which interferes or obstructs or tend to interfere and obstruct
in the administration of justice in any other manner, would amount to criminal contempt of court.
This clause is a residuary clause, covering those cases of criminal contempt which are not expressly
covered by section 2(c) of the Contempt of Court Act.

11
Dr. D. C. Saxena v. Chief Justice of India
12
1990 AIR 1325, 1990 SCR (3) 64

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The term 'administration of justice' is much wider than the term 'course of judicial proceedings'.
Every person in India is entitled to approach the court in order to secure justice and for the redressal
of his grievances and the court has to decide dispute between the parties as per law and equity.

Any conduct which tends to prevent or actually prevents a party to approach the court, amounts to
criminal contempt of court, for eg. Writing a threatening letter to litigating party or his counsel
preventing him from attending the court, writing a letter to the judge or approaching him in order
to influence his judicial conscience or approaching a counsel for undue favor are all examples of
interference with administration of justice and are contempt of court.

An advocate is an officer of the court and undue interference with the advocate in the discharge of
his professional functions amounts to contempt of court. Casting aspersions on counsel or
approaching him for not defending a particular person amounts to criminal contempt of court.

It was held by the Supreme Court in case of J. R Parashar v. Prashant Bhushan13, that holding a
dharma or resorting to strike by itself may not amount to contempt of court but if in doing so the
presiding officer of the court, its staff, the police personnel and the litigating parties are prevented
from approaching the court, it will amount to interference in the administration of justice and will
be criminal contempt of the court.

A bare reading of the aforesaid provision would indicate that substantially the scandalising or
prejudicing any court or interference with the administration of justice is a criminal contempt. It
is not necessary that scandalising or prejudicing any court or interference must have been
completed. Even though the process might have just commenced or in other words tending to
scandalise or to prejudice or to interfere or to obstruct administration of justice is also criminal
contempt. The scope of the act which constitutes criminal contempt is very wide.

The definition of the term contempt in section 2 (c) makes it clear that contempt may be committed
either by publication (whether by words, spoken or written, or signs) or by the doing of any other
act which leads to any of the consequences contemplated in sub-clauses (i),(ii) and (iii) of sub-
section (c) of section 2. Hence even though a letter may have been delivered in private capacity to
a magistrate, it may still lead to the consequences which are regarded as the essence of criminal
contempt. Its tendency to scandalise or lower the authority or interfere with the due course of any

13
(2001) 6 SCC 735

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judicial proceeding is the crucial test. Reactions to such letters or representations are bound to vary
with individuals. Nevertheless, it is not unlikely that a magistrate or a judge may feel greatly scared
or demoralised by such serious allegations and this may interfere with the fearless and
conscientious discharge of his duties. It is, therefore, a salutary principle enshrined in the law of
contempt of court that no person should be allowed to do any act which has the effect of leading
to any such consequences. In such circumstances the absence of publication is immaterial.14

Further, it is not necessary for the contempt that the act must have been done either in the face of
the court or just in front of it. The word spoken or otherwise, or published, or acts done might be
outside the court but the same must be intended to scandalise or prejudice or likely to interfere
with or obstruct the fair administration of justice and are punishable as criminal contempt of the
court.15

The principle of contempt by scandalising the court extends to attack made on a judge in his
administrative or other capacities. The Supreme Court pointed out analysing section 2 (c) that is
noteworthy, that in the categorisation of contempt in the three sub-clauses (i) to (iii), only category
(ii) refers to judicial proceeding. Scandalising of court in its administrative capacity will also be
covered by sub-clauses (i) and (iii). The phrase „administration of justice‟ in sub-clause (iii) is far
wider in scope than „course of any judicial proceeding‟. The last word „in any other manner‟ of
sub-clause (iii) further extend its ambit and give it a residuary character. Although sub-clauses (i)
to (iii) describe three distinct species of „criminal contempt‟ they are not always mutually
exclusive. Interference or tendency to interfere with any judicial proceeding or administration of
justice is a common element of sub-clauses (ii) and (iii). This element is not required to be
established for a criminal contempt of the kind falling under sub clause (i).16

14
State vs. V.N. Dikshit 1973 AWR 80: 1973 AII L J 180.
15
Halsbury Law of England (4thed.) Vol. 9, Para 7.
16
Rachapudi Subba Rao vs. Advocate General, A.P., (1981) 2 SCC 577 at P. 583

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PUNISHMENT UNDER THE CONTEMPT OF COURT ACT

Section 12 of the act deals with the punishment for contempt of court. It provides as follows-
12. Punishment for contempt of court.-
(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may
be punished with simple imprisonment for a term which may extend to six months, or with fine
which may extend to two thousand rupees, or with both: -(1) Save as otherwise expressly provided
in this Act or in any other law, a contempt of court may be punished with simple imprisonment for
a term which may extend to six months, or with fine which may extend to two thousand rupees, or
with both\:" Provided that the accused may be discharged or the punishment awarded may be
remitted on apology being made to the satisfaction of the court. Explanation. -An apology shall
not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona
fide.

(2) Notwithstanding anything contained in any other law for the time being in force, no court shall
impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect
of itself or of a court subordinate to it.

(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil
contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence
of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that
he be detained in a civil prison for such period not exceeding six months as it may think fit.

(4) Where the person found guilty of contempt of court in respect of any undertaking given to a
court is a company, every person who, at the time the contempt was committed, was in charge of,
and was responsible to, the company for the conduct of business of the company, as well as the
company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with
the leave of the court, by the detention in civil prison of each such person: Provided that nothing
contained in this sub-section shall render any such person liable to such punishment if he proves
that the contempt was committed without his knowledge or that he exercised all due diligence to
prevent its commission.

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(5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred
to therein has been committed by a company and it is proved that the contempt has been committed
with the consent or connivance of, or is attributable to any neglect on the part of, any director,
manager, secretary or other officer of the company, such director, manager, secretary or other
officer shall also be deemed to be guilty of the contempt and the punishment may be enforced,
with the leave of the court, by the detention in civil prison of such director, manager, secretary or
other officer. Explanation.-For the purposes of sub-sections (4) and (5),-
(a) “company” means any body corporate and includes a firm or other association of individuals;
and
(b) “director”, in relation to a firm, means a partner in the firm.
Provided that, nothing contained in this sub-section shall render any such person liable to
punishment, if he proves that the contempt was committed without his knowledge or that he
exercised all due diligence to prevent its commission.

PERIOD OF LIMITATION
Section 20 deals with period of limitation for initiating contempt proceeding. Section 20 provides
that no court shall initiate contempt proceedings either on its own notions or otherwise after the
expiry of one year from the date on which contempt is alleged to have been committed. The period
of limitation is applicable both in civil as well as criminal contempt. Contempt proceedings can be
initiated either by filing an application or by the court itself suo moto. In both the cases, contempt
proceedings must be initiated within one year from the date on which contempt is alleged to have
been committed.

In criminal contempt, contempt is alleged to have been committed the moment scandalization of
court or interference with the administration of justice takes place. Consequently, the period of
limitation immediately starts running. But, in case of civil contempt the period of limitation does
not start from the date of the order. It starts running after expiry of period mentioned in the order
after service of certified copy of the order upon the other side. If no time limit is mentioned in the
order, the order should be complied within a reasonable period. The term “reasonable period” has
been interpreted to be a period of three months from the date of service of certified copy.

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DEFENCES IN CIVIL CONTEMPT
A person charged with civil contempt of court can take the following defences-
➢ No knowledge of order
The general principle is that a person cannot be held guilty of contempt in respect of an order of
which he claims to be unaware. Law casts a duty upon a successful party to serve the certified
copy of the order on the other side either personally or by registered speed post. Notwithstanding
the fact that the order has been passed in presence of both the parties or their counsels.
So, it can be successfully pleaded in defense that the certified copy of the order was not formally
served on the alleged contemnor.
➢ Disobedience or breach was not willful
It can be pleaded that although disobedience or breach of the order has taken place but it was due
to accidental, administrative or other reasons beyond the control of the party concerned. This plea
can be successful only when the order has been complied with and a reasonable explanation has
been given for non- compliance thereof.

The Court may assess the intention of the party from the act done in the same way asa reasonable
prudent man would assess in the given circumstances.
➢ Order disobeyed is vague or ambiguous
If the order passed by court is vague or ambiguous or its not specific or complete, it would be a
defense in the contempt or alleged contemnor can raise a plea in defense that the order whose
contempt is alleged cannot be complied with as the same is impossible. In case of R.N.Ramaul vs.
State of Himanchal Pradesh17 the Supreme Court directed the respondent corporation to restore the
promotion of the petitioner in service from a particular date.

This direction was complied with by the respondent corporation by treating him as promoted from
that particular date which was given in the order. But, the monetary benefits for that period were
not paid by the respondent corporation and as such the contempt petition was filed. Respondent
Corporation took a defense that monetary benefits were not paid to the petitioner because there

17
AIR 1991 SC 1171

20 | P a g e
was no direction in the order for payment of monetary benefit and they cannot be held liable for
contempt.

In case of Bharat Coking Coal Ltd. vs. State of Bihar,18 the Supreme Court clarified the legal
position by holding that where the order is incomplete and ambiguous, the parties should approach
the original court and get the order clarified by getting the ambiguity removed.
➢ Order involves more than on reasonable interpretation.
If the order whose contempt is alleged involves more than one reasonable and rational
interpretation and the respondent adopts one of them and acts in accordance with one such
interpretation, he cannot be held liable for contempt of court. However, this defense is available
only when a bonafide question of interpretation arises. The intention of bonafide interpretation can
be gathered from the fact that the order has been complied with by adopting one such
interpretation. In case of T.M.A. Pai Foundation vs. State of Karnataka,19 it was held that this
defense won’t be allowed if a doubt about the order has been deliberately created when actually
there is no doubt at all.

➢ Compliance of the order is impossible.

In proceedings for civil contempt, it would be a valid defense that the compliance of the order is
impossible. However, the cases of impossibility must be distinguished from the cases of mere
difficulty. In case of Amar Singh v. K.P.Geetakrishnan, the court granted certain pensioner
benefits to a large number of retired employees with effect from a particular back date. The plea
of impossibility was taken on the ground that the implementation of the order would result in heavy
financial burden on the exchequer. However, the plea of impossibility was rejected by the court
with the observation that although it’s difficult to comply with the order but it’s not impossible to
comply and therefore, it should be complied with.
➢ The order has been passed without jurisdiction.
If the order whose contempt is alleged, has been passed by a court which had no jurisdiction to
pass it, the disobedience or violation would not amount to contempt of court for the reason that the

18
1990 SCR (3) 744, 1990 SCC (4) 55
19
(2002) 8 SCC 481

21 | P a g e
order passed without jurisdiction is a void order and binds nobody. In case of Krishna Devi
Malchand V. Bombay Environmental Action Group,20 the Supreme Court clarified the legal
position and held that if the order is void, it cannot be ignored by the party aggrieved by it. The
litigating party cannot assume the role of Appellate or Provisional authority in order to say that the
order is not binding upon them. Consequently, if any party feels that the order has been passed by
a court which had no jurisdiction to pass it, he should approach the same court for seeking such
declaration by moving an application for recall of the order. If the application is rejected, the
Appellate Court can be approached for such declaration. In case of State of Jammu and Kashmir
vs. Mohd. Yaqub Khan,21 the Supreme Court has held that where stay petition application is
pending, the Contempt Court should not proceed with the contempt case till the stay vacation
application is decided. So, in case of interim order having been passed by a court which has no
jurisdiction, a stay vacation application can be promptly file, raising the plea of lack of jurisdiction.

In Dr. H. Puninder Singh vs. K.K. Sethi,22 the Supreme Court has held that if there is any stay
order passed by the Appellate Court, the contempt court cannot proceed. However, if no interim
order application is passed by the Appellate Court, the court can proceed and the order of the
original court should be complied with subject to any order passed by the Appellate Court at the
final stage.

DEFENCES AGAINST CRIMINAL CONTEMPT

➢ Innocent publication and distribution of matter.

S.3 deals with this defense. If a criminal contempt is initiated against a person on the ground that
he is responsible for publication or for distribution of publication which prejudices or interferes
with the pending proceedings, the contemptner may take the following steps:
(a) he may plead under S. 3(1) that at the time of publication, he had no reasonable ground for
believing that the proceeding was pending.

20
(2011) 3. SCC 363
21
JT 1992 (5) SC 278
22
(1998) 8 SCC 640

22 | P a g e
(b) he may plead under S.3(2) that at the time of publication, no such proceeding was pending.
(c) he may plead under S.3(3) that at the time of distribution of publication, he had no reasonable
ground for believing that the matter (published or distributed by him) contained or was likely to
contain any material which interfered or obstructed the pending proceeding or administration of
justice.

➢ Fair and accurate report of judicial proceedings

S.4 of the Act provides that a person should not be held guilty of Contempt of Court for publishing
a fair and accurate report of any judicial proceedings or any stage thereof. S. 7 of the Act provides
Exception to the general principle that justice should be administered in public. Sub sections (1)
and (2) of S.7 provide that a person shall not be guilty of Contempt of Court for publishing the
text or for publishing fair and accurate summary of the whole or any part of the order made by the
court in camera (in Chamber) unless the court has expressly prohibited the publication of the
proceedings on the grounds of:
a) Public Policy
b) Public Order
c) Security of the State
d) Information relating to a secret process, discovery or invention, or, in exercise of the power
vested in it.

➢ Fair criticism of judicial act

S.5 provides that a person shall not be guilty of criminal contempt for publishing any fair comment
on the merits of any case which has been finally decided. A defense can be taken that the statement
complained of (in respect of publication of which criminal contempt has been initiated) must be in
respect of a case which has been finally decided and not in respect of pending proceedings.
Moreover, the statement should come from the mouth of a knowledgeable person in the field of
law and not from a litigating party which has lost the case. In short, fair criticism means that
criticism which while criticizing the act of a Judge does not impute any ulterior motive to him. In
case of Arundhati Roy, the Supreme Court has held that judicial criticism cannot be invoked under
the garb of Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India.

23 | P a g e
The Supreme Court further clarified that fair criticism of the judiciary as a whole or the conduct
of a Judge in particular may not amount to contempt if it is made in good faith and in public
interest. To ascertain the 'good faith' and 'public interest' the Courts have to take into consideration
all the surrounding circumstances including the person's knowledge in the field of law, the
intention behind the comment and the purpose sought to be achieved. A common citizen cannot
be permitted to comment upon the Courts in the name of criticism by seeking the help of Freedom
of speech and expression for the reason that if it is not checked, it would destroy the judicial
institution itself.

In the present case, Arundhati Roy was not found to have knowledge or study regarding the
working of the Supreme Court or judiciary of the country and so the defense of fair comment in
good faith and public interest taken by her was rejected and she was punished for criminal
contempt.

➢ Bonafide complain against the presiding officer of a subordinate court.

S.6 provides that a person shall not be guilty of contempt of court in respect of any statement made
by him by way of complaint in good faith concerning the presiding officer of any sub-ordinate
court to the High Court or to the Court to which he is sub-ordinate. The protection of this section
will be available only when it is proved that the complaint was made in good faith.

In ascertaining the 'good faith' the intention and the purpose sought to be achieved by complaint
will be taken into consideration and it would be ensured that the same was not made with ulterior
motive.

➢ No substantial interference with due course of justice.

By the Contempt of Courts (Amendment) Act, 2006, a new Section 13 has been substituted in
place of existing S.13. This new S. 13 provides that “notwithstanding anything contained in any
law for the time being in force, no Court should impose a sentence for Contempt of Court unless
it is satisfied that the Contempt is of such a nature that it substantially interferes or tends to interfere
with the due course of justice.”

24 | P a g e
 ➢ Justification by truth.
The amended S.13(2) provides that the Court may permit justification by truth as a valid defense
in any proceeding for criminal contempt if it is satisfied that it is in public interest. Thus, truth is
now a defense if it is in the public interest and bonafide.

➢ The statement complained of is open to different interpretations.

If the words complained of are open to two different interpretations and one of them indicates
contempt while the other does not, the contemptner cannot be punished for non-compliance of one
interpretation. But, in order to succeed in this defense, it is necessary to prove that the order was
complied with in respect of one interpretation. If the order is not complied with at all, it cannot be
proved that there was a reasonable doubt as to the interpretation of the order. On the other hand, it
will be presumed that a doubt is deliberately sought to be created so as to avoid the compliance of
the order.

➢ Defamation of the judge personally.

If the publication or other act is merely a defamatory attack on the judge and is not intended to
interfere with the administration of justice, it will not be taken as contempt of court.

The publication or other Act amounts to Contempt of Court only when it has nexus with the
functioning of a judge. The statement complained of may amount to Contempt of Court only when
it is made against a judge in his judicial capacity in the exercise of his judicial functions. However,
in such a situation a judge is not remediless and he has the same remedies available which are
available to a common man. A defamatory attack on a judge may be Libel or Slander and he has a
discretion to proceed for Defamation in civil, criminal or simultaneous proceedings against the
person concerned but he cannot be punished summarily under criminal contempt of court. The
object of Contempt law is to protect the confidence of the people in the administration of justice
and its object is not to prevent attacks upon the personal reputation of any individual judge. So,
any personal attack upon the judge unconnected with the office he holds, is dealt with under the
ordinary rules of Libel and Slander.

25 | P a g e
TRUTH AS DEFENCE: TRUTH OR NO-TRUTH – PURPOSE OF
PUBLICATION SHOULD MATTER IN CONTEMPT MATTERS
The dilemma over ‘truth’ loomed large over Indian contempt law for quite considerable time. The
curtain is down in 2006 in the form of Contempt of Court (Amendment) Act, 2006 amending
Section 13 of 1971 Act and recognizing ‘justification by truth‘ as a valid defense in qualified
circumstances23. Though the curtain is down everything is not down. Clouds continue to hang on.
Clarity eludes. The dividing line between freedom of speech and expression/Press and ill-
motivated attempts to interfere with administration of justice is not clearly drawn. Whether the
failure of the judiciary in general or the corruption or malfunctioning or blemishes of an individual
judge can be allowed to be presented, pressurizing the judiciary or an individual judge in disposing
of a pending case, needs attention. Purpose-oriented attack, though studded with truth in its
content, cannot be allowed to be used as a defense in a contempt case.

“Truth” before the Amendment: The experiment with ―Truth‖ was a mixed scenario. There have
been occasions where the Courts went rude and sophisticated.

For instance, in Bathina Ramakrishna Reddy v. State of Madras,24 the Constitution Bench of the
Supreme Court observed: ―The article in question is a scurrilous attack on the integrity and
honesty of a judicial office. Specific instances have been given where the officer is alleged to have
taken bribes or behaved with impropriety to litigants who did not satisfy his dishonest demands.
If the allegations were true, obviously it would be to the benefit of the public to bring these matters
into light. But if they were false, they cannot but undermine the confidence of the public in the
administration of justice and bring the judiciary into disrepute.

In this case, the appellant, though he took sole responsibility regarding publication of the article,
was not in a position to substantiate, by evidence, any of the allegations made therein. The
appellant admitted that the allegations were based on hearsay. The Court held that it was incumbent

23
Amended Section 13: Contempts not punishable in certain cases – Notwithstanding anything contained in any
law for the time being in force: (a) no Court shall impose a sentence under this Act for a contempt of Court unless
it is satisfied that the contempt is of such a nature that it substantially interferes or tends substantially to interfere
with the due course of justice; (b) the Court may permit, in any proceeding for contempt of Court, justification by
truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is
bona fide.
24
AIR 1952 149

26 | P a g e
upon him, as a reasonable man, to attempt to verify the information he had received and ascertain,
as far as he could, whether the facts were true or mere concocted lies. The Court held that the
appellant had not acted with reasonable care and caution, and could not be said to have acted bona
fide, even if good faith could be held to be a defense at all in a proceeding for contempt.

When Chief Justice E.S. Venkataramaiah of Bombay High Court gave an interview, on the eve of
his retirement, to Kuldip Nayar, contempt proceedings were initiated against him for scandalizing
the entire judiciary, for his statement that ―the judiciary in India has deteriorated in its standards
because such judges appointed as are willing to be ‗influenced‘ by lavish parties and whisky
bottles.‖ … ―in every High Court, there are at least 4 to 5 judges who are practically out every
evening, wining and dining either at a lawyers‘ house or a foreign embassy.‖ The Division Bench
observed that the entire interview appeared to have been given with an idea to improve the
judiciary and it was not a fit case where suo motu action was called for and dismissed the petition
on merits.

In Hari Singh Nagra Vs. Kapil Sibal,25 when criminal contempt proceedings were taken up against
Sibal for his comments, the Division Bench of the Supreme Court held that ―the article of Mr.
Sibal is an expression of opinion about an institutional pattern. The article nowhere targets a
particular Judge. The message of Mr. Sibal examined the evils prevailing in the judicial system
and was written with an object to achieve maintenance of purity in the administration of justice.
The message is an exposition of Mr. Sibal‘s ideology and he had shown the corrective measures
to be adopted to get the institution rid of the shortcomings mentioned by him.‖ The contempt
proceedings were dropped.

The only case where the Supreme Court came close to suggesting that a contemnor cannot justify
the contempt was in C.K. Daphtary v. O.P. Gupta,26 where the Constitution Bench held that ―if
evidence was to be allowed to justify allegations amounting to contempt it would tend to encourage
disappointed litigants – and one party or the other to a case is always disappointed – to avenge
their defeat by abusing the Judge.”

25
(2010) 7 SCC 502
26
(1971) 1 SCC 626, at pp. 644, 647

27 | P a g e
In 2002, when there was adverse news in the print media against the behavior of sitting High Court
Judges of Karnataka High Court, the High Court suo motu took up contempt proceedings against
several news papers for scandalizing and lowering the authority of the Court. But, when the matter
reached the Supreme Court, the then Chief Justice stated that ―I will reward the media if they
come out with the truth …. I personally believe that truth should be a defence in a contempt case.‖

The National Commission to Review the Working of the Constitution (NCRWC) headed by the
distinguished former Chief Justice of India, M.N. Venkatachaliah, in its report stated ―Judicial
decisions have been interpreted to mean that the law as it now stands, even truth cannot be pleaded
as a defence to a charge of contempt of court. This is not a satisfactory state of law27 . … A total
embargo on truth as justification may be termed as an unreasonable restriction. It would, indeed,
be ironical if, in spite of the emblems hanging prominently in the court halls, manifesting the motto
‘Satyameva Jayate‘ in the High Courts and ‘Yatho dharmas tatho jaya‘ in the Supreme Court, the
courts could rule out the defence of justification by truth. The Commission is of the view that the
law in this area requires an appropriate change.‖ The Committee further recommended that ―an
appropriate amendment by way of addition of a proviso to Article 19(2) of the Constitution to the
effect that, ―in matters of contempt, it shall be open to the Court on satisfaction of the bona fides
of the pleas and of the requirements of public interest to permit a defence of justification by truth.

In the United States of America, contempt power is used against the press and publication only if
there is a clear imminent and present danger to the disposal of a pending case. Criticism however
virulent or scandalous after final disposal of the proceedings will not be considered as contempt.

The U.S. Supreme Court observed — ―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 prized 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.‖ In Britain, the offence of scandalizing the
court has become obsolete. In European democracies such as Germany, France, Belgium, Austria,
Italy, there is no power to commit for contempt for scandalizing the court. The judge has to file a

27
Report of the National Commission to Review the Working of the Constitution, published by Universal Law
Publishing Co. Pvt. Ltd. At page no.139

28 | P a g e
criminal complaint or institute an action for libel. Summary sanctions can be imposed only for
misbehavior during court proceedings.

“TRUTH” AFTER AMENDMENT

The very first major case to be heard since the coming into force of this amendment has exposed
certain inconsistencies inherent in the Act. In the Delhi Mid Day case decided by the Delhi High
Court on September 11, 2007 (Court on its own motion v. M.K. Tayal and Ors) the Supreme Court
stayed the sentencing of the contemnors, 46 till it disposed of their appeal against their conviction,
i.e. Vitusah Oberoi v. Court of its own motion. But, the Delhi High Court‘s brief order in this case,
holding the accused guilty of contempt raises important issues which were not anticipated by the
authors of this amendment or by the Standing Committee which examined the Bill.

Section 13 of the Act deals with contempt not punishable in certain cases. It shows that Section 13
of the Act can be invoked only at the time of sentencing the contemnors, and not earlier. It would
then imply that the Court would be free to hold the accused guilty and convict them of contempt
of court, without hearing any arguments on the truth of the allegations made against a Judge. Once
the Court finds the accused guilty of contempt, the question of permitting justification by truth as
a valid defense, just in order to avoid awarding of punishment on the contemnors, appears to be
illogical. Thus it is understandable that the Delhi High Court Bench asked the counsel for
contemnors, who invoked Section 13 during the arguments on sentencing, ―Truth of what?‖
Permitting the contemnors to invoke truth as a valid defense to the alleged contempt at this belated
stage hardly makes sense, as the Court had already concluded that they were guilty. Even if the
Court permits such a defense, and if such a defense is sustained, would it not contradict its own
conclusion that the contemnors were guilty? Any allegation of corruption against a Judge, even if
it is consistent with public interest and good faith, is likely to shake the public confidence in the
integrity of the Judiciary, including those brother Judges who sat with the 244 allegedly corrupt
Judge on a Bench. But the considerations of public interest and good faith must perforce outweigh
this contempt which is based entirely on perceptions. The Standing Committee was aware of this
inconsistency in the amendment. It noted that eminent witnesses which it heard, had pointed to
this, and wanted Section 13(a) to be so amended as to prevent even a finding of guilt by the Court
when no appreciable injury to administration of justice is caused by the conduct of the contemnor.
They suggested similar amendment of Section 13(b) to say that ―no one shall be held guilty of

29 | P a g e
contempt of court by making or publishing any statement relating to a Judge or court which is true
or which he, in good faith, believes to be true.‖ The Committee wanted the Government to
appropriately address this, along with other concerns expressed over the Bill. The Standing
Committee further wanted the defense of truth to be inserted suitably as one of the exemptions or
defenses under Section 8, which deals with other defenses not affected. The Committee felt it
would give the contemnor an additional help, ―because he may plead the defense of truth and
may not be held punishable‖. But the Government apparently rejected these suggestions of the
Committee, as is clear from the provisions of the Amendment Act. The 2006 Amendment is only
a half-hearted attempt to ensure judicial accountability, and realize the objectives of the Contempt
of Courts Act. A balance could be maintained between the freedom of speech and expression/Press
and scandalizing the court or interfering into the administration of justice only when purpose of
the publication is considered.

APOLOGY AS DEFENCE
In a contempt case when the contemner takes up the plea of tendering apology could it be accepted,
becomes a puzzle question. Having committed act of contempt and when the case comes to court
for contempt action or when it reaches finality for an order, the alleged contemner resorts to
apology and pleads for clemency or leniency. The test that the courts have been observing both in
contempt case and defamation cases is the sincerity of contemner or defamer in tendering it. It
apology relates to the act or acts of contempt and tendered with a mind of doing it, sincerely feeling
for committing the act of contempt it may be accepted. But it appears in many cases the courts
were not satisfied the way in which it was tendered. The law and procedure relating to acceptance
of apology in contempt case was comprehensively discerned in 245 popular case. The case
deserves a full text. Hence, the case presented here in its entirety.

The Supreme Court of India exercising Criminal Appellate Jurisdiction in Criminal Appeal No.
697 of 2006 in Vishram Singh Raghubanshi, Appellant Vs. State of U.P. Respondent, had stated
the importance of apology as defence, as follows, in July, 2011:

1. This appeal has been preferred under Section 19 of the Contempt of Courts Act, 1971,
(hereinafter called the `Act 1971‘) arising out of impugned judgment and order dated 5.5.2006

30 | P a g e
 passed by the Division Bench of the Allahabad High Court in Contempt of Court Case No. 13
of 1999.
2. FACTS:

A) Appellant is an advocate practising for last 30 years in the District Court, Etawah (U.P.). On
25.7.1998, he produced one Om Prakash for the purpose of surrender, impersonating him as Ram
Kishan S/o Ashrafi Lal, who was wanted in a criminal case in the court of IInd ACJM, Etawah.
There was some controversy regarding the genuineness of the person who came to surrender and
therefore, the Presiding Officer of the Court raised certain issues. So, the appellant misbehaved
with the said officer in the court and used abusive language.

B) The Presiding Officer of the court vide letter dated 28.9.1998 made a complaint against the
appellant to the U.P. Bar Council and vide letter dated 27.10.1998 made a reference to the High
Court for initiating contempt proceedings under Section 15 of the Act, 1971 against him. The High
Court considered the matter and issued show cause notice on 5.5.1999 to the appellant. In response
to the said notice, the appellant submitted his reply dated 24.5.1999, denying the allegations made
against him, but, tendering an apology in the form of an affidavit stating that he was keeping the
court in the highest esteem.

C) The Bar Council of U.P. dismissed the complaint referred by the Presiding Officer vide order
dated 18.3.2001, but the Allahabad High Court did not consider it proper to accept the explanation
submitted by the appellant or accept the apology tendered by him, rather, it framed the charges
against the appellant on 27.9.2004. In response to the same, the appellant again submitted an
affidavit dated 18.10.2005 tendering an apology similar to one in the affidavit 246 filed earlier.

D) The Division Bench of Allahabad High Court considered the matter on judicial side, giving
full opportunity to the appellant to defend himself.The High Court ultimately held the appellant
guilty of committing the contempt and sentenced him to undergo 3 months simple imprisonment
with a fine of Rs.2,000/-. Hence, this appeal.

3. This Court vide order dated 26.6.2006 suspended the operation of sentence and directed the
appellant to deposit the fine of Rs. 2,000/- in this Court, which seems to have been deposited.

4. Shri Sanjeev Bhatnagar, learned counsel appearing for the appellant, has submitted that he
would not be in a position to defend the contemptuous behaviour of the appellant but insisted that

31 | P a g e
the appellant is aged and ailing person and had tendered absolute and unconditional apologies
several times. Thus, the apology may be accepted and the sentence of three months simple
imprisonment be quashed.

5. On the contrary, Shri R.K. Gupta, learned counsel appearing for the respondent, has vehemently
opposed the prayer made by Shri Bhatnagar and contended that the appellant does not deserve any
lenient treatment considering the language used by him to the Presiding Officer of the court and
such a person does not deserve to remain in a noble profession. He further contended that the
apology has not been tendered at the initial stage. The first apology was tendered only after
receiving show cause notice dated 5.5.1999 from the High Court and under the pressure. More so,
the language of the apology is not such which shows any kind of remorse by the appellant, thus,
considering the gravity of the misbehavior of the appellant, no interference is wanted. Therefore,
the appeal is liable to be rejected.

6. We have considered the rival contentions made by learned counsel for the parties and perused
the record.

7. Admittedly, the case of impersonification of the person to be surrendered is a serious one,

however we are not concerned as to whether the appellant had any role in such impersonification,
but being an officer of the court, if any issue had been raised in this regard either by the court or
opposite counsel, it was the duty of the appellant to satisfy the Court and establish the identity of
the person 247 concerned. The conduct of the appellant seems to have been in complete violation
and in contravention of the ―standard of professional conduct and etiquette‖ laid in Section 1 of
Chapter 2 (Part-VI) of the Bar Council of India Rules which, interalia, provides that an advocate
shall maintain towards the court a respectful attitude and protect the dignity of the judicial office.
He shall use his best efforts to restrain and prevent his client from resorting to unfair practices etc.
The advocate would conduct himself with dignity and self respect in the court etc. etc.

There may be a case, where a person is really aggrieved of misbehavior/conduct or bias of a judicial
officer. He definitely has a right to raise his grievance, but it should be before the appropriate
forum and by resorting to the procedure prescribed for it. Under no circumstances, such a person
can be permitted to become the law unto him and proceed in a manner he wishes, for the reason
that it would render the very existence of the system of administration of justice at a stake.

32 | P a g e
8. Before proceeding further with the case, it may be necessary to make reference to certain parts
of the complaint lodged by the Presiding Officer to the High Court against the appellant:

(i) During the course of cross examination in a criminal case on 22.8.1998, the appellant was
advised that he should ask questions peacefully to the witness on which the appellant stepped over
dias of the court and tried to snatch the paper of statement from him and started abusing him that
―Madarchod, Bahanchod, make reference of contempt to the High Court‖ and stepped out,
abusing similarly from the court room.

(ii) In another incident on 25.7.1998, three accused persons namely, Ram Krishan, Ram Babu and
Rampal surrendered before the court and filed an application no. 57Kha for cancellation for non-
bailable warrants, and the whole proceeding was completed by him. Aforesaid three accused
persons, namely, Ram Krishan and Ram Babu were real brothers and sons of Ashrafi Lal. On
0.7.1998 order was passed to release them on bail but before they could be released, it came to the
knowledge of the court that right accused Ram Krishan son of Ashrafi Lal had surrendered and
sent to jail. This fact was brought before the court by the mother of the person Om Prakash who
248 was actually sent to jail on 1.8.1998, of which enquiry was done and after summoning from
jail the person in the name of Ram Krishan stated in the court that his name was Om Prakash, son
of Sh. Krishan Jatav. The complainant Bhaidayal was also summoned who also verified the above
fact. Thereafter, an inquiry was conducted by the Presiding Officer who found the involvement of
the appellant in the above case of impersonification.

9. The High Court examined the complaint and the reply submitted by the appellant to show cause
notice issued by the High Court. The High Court did not find the explanation worth acceptable
and, thus, vide order dated 27.9.2004, framed charges against the appellant in respect of those
allegations dated 22.8.1998 and 25.7.1998 respectively.

10. It is not the case of the appellant that he was not given full opportunity to defend himself or
lead evidence in support of his case. The appellant has not chosen to defend himself on merit
before the High Court, rather he merely tendered apology thrice. Even before us, Shri Sanjeev
Bhatnagar, learned counsel for the appellant, has fairly conceded that the appellant had been
insisting from the beginning to accept his apology and let him off. Mr. Bhatnagar‘s case has been
that in the facts and circumstances of the case, particularly considering the age and ailment of the

33 | P a g e
appellant, apology should be accepted and sentence of three months simple imprisonment be set
aside.

11. It is settled principle of law that it is the seriousness of the irresponsible acts of the contemnor
and degree of harm caused to the administration of justice, which would decisively determine
whether the matter should be tried as a criminal contempt or not. (Vide: The Aligarh Municipal
Board & Ors. v. Ekka Tonga Mazdoor Union & Ors., AIR 1970 SC 1767).

12. The court has to examine whether the wrong is done to the judge personally or it is done to
the public. The act will be an injury to the public if it tends to create an apprehension in the minds
of the people regarding the integrity, ability or fairness of the judge or to deter actual and
prospective litigants from placing complete reliance upon the court‘s administration of justice or
if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial
duties. (See: Brahma Prakash Sharma & Ors. v. The State of U.P., 249 AIR 1954 SC 10; and
Perspective Publications (P.) Ltd. & Anr. v. The State of Maharashtra, AIR 1971 SC 221).

13. In the case of Delhi Judicial Service Association v. State of Gujarat & Ors., AIR 1991 SC
2176, this Court held that the power to punish for contempt is vested in the judges not for their
personal protection only, but for the protection of public justice, whose interest requires that
decency and decorum is preserved in courts of justice. Those who have to discharge duty in a Court
of Justice are protected by the law, and shielded in the discharge of their duties; any deliberate
interference with the discharge of such duties either in court or outside the court by attacking the
presiding officers of the court would amount to criminal contempt and the courts must take serious
cognizance of such conduct. 14. In E.M.Sankaran Namboodiripad v. T.Narayanan Nambiar, AIR
1970 SC 2015, this Court observed that contempt of court has various kinds, e.g. insult to Judges;
attacks upon them; comment on pending proceedings with a tendency to prejudice fair trial;
obstruction to officers of Courts, witnesses or the parties; scandalising the Judges or the courts;
conduct of a person which tends to bring the authority and administration of the law into disrespect
or disregard. Such acts bring the court into disrepute or disrespect or which offend its dignity,
affront its majesty or challenge its authority. In a given case, such a conduct be committed ―in
respect of the whole of the judiciary or judicial system.

The court rejected the argument that in particular circumstances conduct of the alleged contemnor
may be protected by Article 19(1)(a) of the Constitution i.e. right to freedom of speech and

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expression, observing that the words of the second clause, of the same provision bring any existing
law into operation, thus provisions of the Act 1971 would come into play and each case is to be
examined on its own facts and the decision must be reached in the context of what was done or
said.

15. Thus, it is apparent that the contempt jurisdiction is to uphold majesty and dignity of the law
courts and the image of such majesty in the minds of the public cannot be allowed to be distorted.
Any action taken on contempt or punishment enforced is aimed at protection of the freedom of
individuals and orderly and equal administration of laws and not for the purpose of providing
immunity from criticism to the judges. The superior courts have a duty to protect the reputation of
judicial officers of subordinate courts, taking note of the growing tendency of maligning the
reputation of judicial officers by unscrupulous practicing advocates who either fail to secure
desired orders or do not succeed in browbeating for achieving ulterior purpose. Such an issue
touches upon the independence of not only the judicial officers but brings the question of
protecting the reputation of the Institution as a whole.

16. The dangerous trend of making false allegations against judicial officers and humiliating them
requires to be curbed with heavy hands, otherwise the judicial system itself would collapse. The
Bench and the Bar have to avoid unwarranted situations on trivial issues that hamper the cause of
justice and are in the interest of none. ―Liberty of free expression is not to be confounded or
confused with license to make unfounded allegations against any institution, much less the
Judiciary‖. A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with
his client maligning the reputation of judicial officers merely because his client failed to secure the
desired order from the said officer. A deliberate attempt to scandalize the court which would shake
the confidence of the litigating public in the system, would cause a very serious damage to the
Institution of judiciary. An Advocate in a profession should be diligent and his conduct should
also be diligent and conform to the requirements of the law by which an Advocate plays a vital
role in the preservation of society and justice system. Any violation of the principles of
professional ethics by an Advocate is unfortunate and unacceptable. (Vide: O.P. Sharma & Ors. v.
High Court of Punjab & Haryana, (2011) 5 SCALE 518).

17. This Court in M.B. Sanghi v. High Court of Punjab & Haryana & Ors., (1991) 3 SCC 600,
observed as under: ―The foundation of our system which is based on the independence and

35 | P a g e
impartiality of those who man it will be shaken if disparaging and derogatory remarks are made
against the presiding judicial officer with impunity….It is high time that we realise that much
cherished judicial independence has to be protected not only from the executive or the legislature
but also from those who are an integral part of the system. An independent judiciary is of vital
importance to any free society‖.

18. This leads us to the question as to whether the facts and circumstances referred hereinabove
warrant acceptance of apology tendered by the appellant. The famous humorist P.G. Wodehouse
in his work ―The Man Upstairs (1914)‖ described apology : ―The right sort of people do not
want apologies, and the wrong sort take a mean advantage of them.‖ The apology means a regretful
acknowledge or excuse for failure. An explanation offered to a person affected by one‘s action that
no offence was intended, coupled with the expression of regret for any that may have been given.
Apology should be unquestionable in sincerity. It should be tempered with a sense of genuine
remorse and repentance, and not a calculated strategy to avoid punishment.

19. Clause 1 of Section 12 and Explanation attached thereto enables the court to remit the
punishment awarded for committing the contempt of court on apology being made to the
satisfaction of the court. However, an apology should not be rejected merely on the ground that it
is qualified or tempered at a belated stage if the accused makes it bona fide. There can be cases
where the wisdom of rendering an apology dawns only at a later stage.

20. Undoubtedly, an apology cannot be a defence, a justification, or an appropriate punishment for

an act which is in contempt of court. An apology can be accepted in case the conduct for which
the apology is given is such that it can be ―ignored without compromising the dignity of the
court‖, or it is intended to be the evidence of real contrition. It should be sincere. Apology cannot
be accepted in case it is hollow; there is no remorse; no regret; no repentance, or if it is only a
device to escape the rigor of the law. Such an apology can merely be termed as paper apology.

21. In Re: Bal Thackeray, Editor Samna, (1998) 8 SCC 660, this Court accepted the apology
tendered by the contemnor as the Court came to conclusion that apology was unconditional and it
gave an expression of regret and realisation that mistake was genuine.

22. In L.D. Jaikwal v. State of U.P., AIR 1984 SC 1374, the court noted that it cannot subscribe to
the 'slap-say sorry- and forget' school of thought in administration of contempt jurisprudence.

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Saying 'sorry' does not make the slapper poorer. (See also: T.N. Godavarman Thirumulpad v.
Ashok Khot & Anr., AIR 252 2006 SC 2007). So an apology should not be paper apology and
expression of sorrow should come from the heart and not from the pen; for it is one thing to 'say'
sorry-it is another to 'feel' sorry.

23. An apology for criminal contempt of court must be offered at the earliest since a belated
apology hardly shows the ―contrition which is the essence of the purging of a contempt‖.
However, even if the apology is not belated but the court finds it to be without real contrition and
remorse, and finds that it was merely tendered as a weapon of defence, the Court may refuse to
accept it. If the apology is offered at the time when the contemnor finds that the court is going to
impose punishment, it ceases to be an apology and becomes an act of a cringing coward. (Vide :
Mulkh Raj v. The State of Punjab, AIR 1972 SC 1197; The Secretary, Hailakandi Bar Association
v. State of Assam & Anr., AIR 1996 SC 1925; C. Elumalai and Ors. v. A.G.L.Irudayaraj and Anr.,
AIR 2009 SC 2214; and Ranveer Yadav v. State of Bihar, (2010) 11 SCC 493).

24. In Debabrata Bandopadhyay & Ors. v. The State of West Bengal & Anr., AIR 1969 SC 189,
this Court while dealing with a similar issue observed as under: ―…..Of course, an apology must
be offered and that too clearly and at the earliest opportunity. A person who offers a belated
apology runs the risk that it may not be accepted for such an apology hardly shows the contrition
which is the essence of the purging of a contempt. However, a man may have the courage of his
convictions and may stake his on proving that he is not in contempt and may take the risk. In the
present case the appellants ran the gauntlet of such risk and may be said to have fairly succeeded.

25. This Court has clearly laid down that apology tendered is not to be accepted as a matter of
course and the Court is not bound to accept the same. The court is competent to reject the apology
and impose the punishment recording reasons for the same. The use of insulting language does not
absolve the contemnor on any count whatsoever. If the words are calculated and clearly intended
to cause any insult, an apology if tendered and lack penitence, regret or contrition, does not deserve
to be accepted. (Vide: Shri Baradakanta Mishra v. Registrar of Orissa High Court & Anr., AIR
1974 SC 710; The Bar Council of Maharashtra v. M.V. Dabholkar etc., AIR 1976 SC 242;
Asharam M. Jain v. A.T. Gupta & Ors., AIR 1983 SC 1151; Mohd. Zahir Khan v. Vijai Singh &
Ors., AIR 1992 SC 642; In Re: Sanjiv Datta, (1995) 3 SCC 619; and Patel Rajnikant Dhulabhai &
Ors. v. Patel Chandrakant Dhulabhai & Ors., AIR 2008 SC 3016).

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26. In the instant case, the appellant has tendered the apology on 24.5.1999 after receiving the
show cause notice from the High Court as to why the proceedings for criminal contempt be not
initiated against him. It may be necessary to make the reference to the said apology, the relevant
part of which reads as under: ―

That from the above facts, it is evident that the deponent has not shown any dis-regard nor abused
the Presiding Officer, learned Magistrate and so far as allegations against him regarding surrender
of Om Prakash is the name of Ram Kishan are concerned, the deponent has no knowledge
regarding fraud committed by Asharfi Lal in connivance with others and deponent cannot be
blamed for any fraudulent act. That notwithstanding mentioned in this affidavit, the deponent
tenders unconditional apology to Mr. S.C. Jain, IInd Addl. Chief Judicial Magistrate, Etawah if for
any conduct of the deponent the feelings of Mr. S.C. Jain are hurt. The deponent shall do
everything and protect the dignity of judiciary.

27. On 24.11.2005, the appellant has submitted an affidavit saying as under: ―That the deponent
expresses his unqualified remorse for the incident giving rise to the present contempt application.
The deponent tenders his unconditional apology to this Hon‘ble Court and to Shri Suresh Chandra
Jain, the then A.C.J.M.-2 Etawah for the entire incident without any qualification or precondition.
The deponent gives the following solemn undertaking that no such incident would occur in future.
The deponent has immense respect for this Hon‘ble Court and all other Courts of Law in the land.
The deponent also expresses bona fide, genuine and heart-felt regret for the occurrence which the
deponent consider a blot on him‖.

28. The High Court considered the case elaborately examining every issue microscopically and
held that there was no reason to disbelieve the 254 facts stated by the judicial officer against the
contemnor/appellant, the facts were acceptable, and it was clearly proved that the contemnor was
guilty of gross criminal contempt. The charges levelled against the appellant stood proved. A Judge
has to discharge his duty and passes order in the manner as he thinks fit to the best of his capability
under the facts and circumstances of the case before him. No litigant, far less an advocate, has any
right to take the law in his own hands. The contemnor abused the Judge in most filthy words
unworthy of mouthing by an ordinary person and that is true without any justification for him
ascending the dais during the course of the proceedings and then abusing the judicial officer in the
words ―Maaderchod, Bahanchod, High Court Ko Contempt Refer Kar‖. The courts certainly

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cannot be intimidated to seek the favourable orders. The appellant intimidated the presiding officer
of the court hurling filthiest abuses and lowered the authority of the Court, which is tantamount to
interfere with the due course of judicial proceedings. The charge which stood proved against the
appellant could not be taken lightly and in such a factsituation the apology tendered by him, being
not bona fide, was not acceptable.

29. We have considered the facts and circumstances of the case. The show cause notice was given
by the High Court on 5.5.1999. The appellant submitted his reply on 24.5.1999. The charges were
framed against him on 27.9.2004 and in his first affidavit dated 18.10.2005, the appellant had
denied all the allegations made against him. The so- called apology contained ifs and buts.
Appellant is not even sure as to whether he has committed the criminal contempt of the court or
whether the most filthy abuses could hurt the Presiding Officer. Appellant has been of the view
that the Officer was a robot and has no heart at all, thus incapable of having the feelings of being
hurt. The appellant filed second affidavit dated 24.11.2005 tendering apology.

The apology has been tendered under pressure only after framing o f the charges by the High Court
in the Criminal Contempt when appellant realized that he could be punished. The apology was not
tendered at the earliest opportunity, rather tendered belatedly just to escape the punishment for the
grossest criminal contempt committed by him. The language used by the Advocate for a judicial
officer where he practices regularly and earns his livelihood is such that any apology would fall
short to meet the requirement of the statutory provisions. There has been no repent or remorse on
the part of the appellant at an initial stage. 255 Had it been so, instead of making grossest and
scandalous allegations against the judicial officer, writing complaint against him to the
Administrative Judge in the High Court of Allahabad, the appellant could have gone to the
concerned judicial officer and tendered apology in open court.

The appellant instead of yielding to the court honestly and unconditionally advanced a well
guarded defence by referring to all the facts that led to the incident. Apology tendered by the
appellant gives an impression that the same was in the alternative and not a complete surrender
before the law. Such attitude has a direct impact on the court‘s independence, dignity and decorum.
In order to protect the administration of public justice, we must take action as his conduct and
utterances cannot be ignored or pardoned. The appellant had no business to overawe the court.

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Thus, we are of the view that the apology tendered by the appellant had neither been sincere nor
bona fide and thus, not worth acceptance.

30. The appeal lacks merit and is, accordingly, dismissed. A copy of the judgment and order be
sent to the Chief Judicial Magistrate, Etawah, for taking the appellant into custody and send him
to the jail to serve out the sentence.

REMEDY AGAINST THE ORDER OF PUNISHMENT

Following remedies are available against the punishment order under Contempt of Court Act:

1. Apology:

The contemner may under apology to the court and the court may remit the punishment awarded
for contempt, if the court is satisfied that the apology has been made with real sense of repentance.

In case of A.K.Pandey, the Supreme Court made it clear that the court is not bound to accept the
apology unless there is a feeling of repentance in the contemner. In case of M.C.Mehta vs. Union
of India28, the Supreme Court further clarified that apology should not be used as a weapon of
defense in case of contempt. The apology must be tendered at the earliest opportunity. An apology
will not be treated as an apology if tendered at a time when court is going to impose a punishment.
However, along with apology the defense taken by contemner can be pleaded. Explanations to
section 12(1) has enabled the contemner to put forward his defense while pleading apology as this
explanation has provided that apology should not be rejected on the ground that its qualified or
conditional if the accused makes it bonafide. Apology will help the contemner if his explanation
has been rejected.

In case of Haridas V. Smt. Usharani,29 the apology tendered by contemner was not found to be
genuine as the contemner repeatedly tried to assert that whatever he said was correct and he would

28
[1987] 4 S.C.C. 463
29
Appeal (civil) 7948 of 2004

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prove it. And at the same time he tender apology. His apology was not found to be genuine and he
was punished for contempt.

2. Appeal

Contempt of court Act, 1971 has provided for the statutory right of appeal against the orders of
High Court passed in the exercise of its jurisdiction to punish for the contempt of the court. Prior
to this act there was no statutory right of appeal but even at that point of time the person punished
under the Contempt of Court Act was not remediless. The High Court itself could grant the
certificate under Article 134 of the Indian Constitution and where the High Court refused to grant
such certificate, the Supreme Court could entertain the appeal by granting special leave under
Article 136 of the Constitution of India.

So, the right of appeal prior to 1971 was dependent on the discretion of the court and it was not by
the way of right. Section 19(1) of the act provides right of only one appeal. It provides that an
appeal shall lie as of right from any order or decision of the High Court in the exercise of its
jurisdiction to punish for contempt. If the order of punishment has been passed by single judge of
High Court, there is right of appeal to the division bench of not less than two judges of High Court.
If the order of punishment is passed by a division on bench then appeal will lie in Supreme Court.

However, in case of punishment order passed by single judge, the right of appeal gets exhausted
once the appeal is filed before the division bench and there is no further right of appeal under the
Contempt of Court Act.

However, the remedy under Article 136 of Constitution will still be available and the Supreme
Court may grant leave to appeal under Article 136. Section 19(4) provides for the period of
limitation for preferring an appeal.

It provides that an appeal under Article 19(1) shall be filed within thirty days to the division bench
of High Court and in case the order of punishment has been passed by division bench of High
Court then within sixty days to the Supreme Court from the date of the order appealed against.
Section 19(2) deals with the power of Appellate Court during the pendency of appeal. It provides
that during the pendency of the appeal the Appellate Court may pass the following orders:

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1. The execution of the punishment order shall remain suspended.

2. If appellant is under confinement imprisonment, he may be released on bail.

3. The appeal may be heard notwithstanding that the appellant has not perched his contempt.

Section 19(3) provided that an appeal under section 19 will lie at the instance of the person
aggrieved. A proceeding for contempt is between the court and the contemner. A person who
moves the application for initiating contempt proceeding does not come within the category of
person aggrieved and therefore he has no locus to file an appeal, if his contention for initiating the
contempt proceeding is rejected. If a person is found guilty for contempt of court, an appeal will
lie under section 19 that the instance of person who is found guilty and is consequently punished.
But, if a person is not found guilty of contempt proceedings and proceedings for contempt is either
dismissed or dropped against him then the informant or person who has moved the application for
initiating the contempt will have no right of appeal under section 19 of the Act. In case of Varda
Kant Mishra vs. State of Orissa, it was clarified by Supreme Court that the order or the decision
of High Court refusing to initiate contempt proceedings or dropping the contempt proceedings or
acquitting the contemner (even if initiated the contempt proceedings) cannot be challenged by way
of appeal under Section 19. It is only the order of punishment which can be challenged by way of
appeal under section 19 of the act.

PROCEDURE TO BE ADOPTED IN CONTEMPT

PROCEEDINGS
Section 14 of the contempt of court act deals with the procedure of contempt in the face of the
court of record whereas section 15 deals with the procedure in cases other than in the face of court
of record. This is also known as constructive contempt. Article 129 provides that the Supreme
Court and article 215 provides that every High Court shall be a court of record and shall have all
the powers of such court including to punish for its contempt. These court of records have inherent
power to punish for contempt and therefore these court of records can deal with such matter
summarily and can adopt their own procedure.

The only case to be observed by the courts of record while exercising the contempt jurisdiction is
that the procedure adopted must be fair and reasonable in which full opportunity should be given

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to the alleged contemner to defend himself. No person should be punished for the contempt unless
a specific charge against him is distinctly stated and he is given a reasonable opportunity to answer
it and to defend himself against such charge.

The contempt proceedings are neither civil proceedings nor criminal. They are sui generis.
Consequently, contempt proceedings will neither be governed by Civil Procedure Code nor by
Code of Criminal Procedure. Even the provisions of Indian Evidence Act will not be attracted in
the contempt proceedings. The contempt of court including the criminal contempt is not an offence
within the meaning of Code of Criminal Procedure and therefore a procedure prescribed by Code
of Criminal Procedure for investigation, enquiry and trial of the offence is not required to be
followed in contempt proceedings.

The contempt of court and the power of the Supreme Court and High Courts to initiate proceedings
for contempt and pass punishment orders, is a special jurisdiction which is inherent in all the courts
of record. Section 5 of the Code of Criminal Procedure expressly excludes special jurisdiction
from the scope of Code of Criminal Procedure.

PROCEDURE TO BE ADOPTED IN CASES OF

CONTEMPT IN THE FACE OF THE COURT
Section 14 deals with contempt in the face of the Supreme Court and High Courts and it provides
that whenever it appears to the Supreme Court and the High Courts that a person appears to have
committed contempt in its presence or hearing the court may cause such person to be detained in
custody. And shall at any time before the rising of the court on the same day or as early as possible,
thereafter :

1. Cause him to be informed in writing of the contempt with which he is charged.

2. Afford him an opportunity to make his defense in respect of the charge.

3. After taking such evidence as may be offered by such person and after hearing him proceed
either forthwith or after adjournment to determine the matter of the charge.

4. Make such order for the punishment or discharge of such person as may be necessary.

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Where the person charged with contempt under this section applies whether orally or in writing to
have the charge against him, tried by some judge other than the judge or judges in whose presence
or hearing the contempt is alleged to have been committed and the court is of the opinion that it is
necessary in the interest of justice that the application should be allowed, it shall cause the matter
to be placed before the Chief Justice with the statement of facts of the case for transfer before such
judge as the Chief Justice may think fit and proper under the circumstances of the case.

However, it shall not be necessary for the judge or Judges in whose presence or hearing the
contempt is alleged to have been committed to appear as a witness before the Court where the
matter has been referred. The statement of facts of the case written by the judge or Judges while
referring the matter to the Chief Justice shall be treated as evidence in the case.

In Sukhdev Singh vs. Teja Singh, the Supreme Court observed that if the judge has been personally
attacked, he should not, as far as possible, hear the contempt matter and should refer the matter to
Chief Justice for nomination of some other Court, or, on the application of the person aggrieved.
This is necessary keeping in view the principle of law that no one should be a judge in his own
cause, and, secondly justice should not only be done, but it must appear to have been done.

In those cases, where the Contemnor has been detained in custody, during the pendency of the
Contempt case, he may be released on Bail or on furnishing bond with or without sureties, that he
shall continue to attend the Court proceedings.

PROCEDURE OF CRIMINAL CONTEMPT

COMMITTED OUTSIDE THE COURT
Criminal Contempt committed outside the Court, in other words, other than in the face of the Court,
is known as Constitutive Contempt. Section 15(1) deals with cognizance of criminal contempt by
courts of record whereas Section 15(2) deals with criminal contempt of sub-ordinate courts.

Section 15(1) provides that cognizance for criminal contempt can be taken by the Supreme Court
and High Courts in the following manner:

i. On its own motion

ii. On the motion of the Advocate General

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iii. On the motion of any other person, with the consent, in writing, of the Advocate General.

iv. On the motion of such law officer in relation to the High Court for the Union Territory of Delhi
as the central government may notify.

Section 15(2) provides that in case of criminal contempt of a sub-ordinate court, the concerned
High Court may take action in the following manner:

i. On the reference made to it by the sub-ordinate court.

ii. On the motion made by the Advocate General.

iii. On the motion made by such law officer in relation to a Union Territory as the Central
Government may specify.

Section 15(3) provides that every motion or reference shall specify the contempt of which the
person charged is alleged to be guilty.

The expression “advocate general” in this section means the following:

1.in relation to the Supreme Court, the Attorney General or the solicitor general.

2.In relation to a High Court, the Advocate General of the states for which High Court has been
established.

3.In relation to the court of judicial commissioner, such law officer as the central government may
specify.

Bar On Private Persons

Section 15 bars the private individuals to file without consent of the Advocate General. The
purpose of barring a private person from filing contempt procedure without the consent of Attorney
General is to save the court's time from being wasted in frivolous complaints.

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

Once the matter is scrutinized by advocate general only such motions which have substance will
receive the court's attention.
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In case of Biman Basu V A.G Thakurta,30 the SC held that any petition of criminal contempt filed
by any private person without the consent of the Advocate General will not be maintainable and
will be dismissed on this ground alone.

In cases of contempt committed outside the court, the contempter isn't present in the court and
therefore a notice is to be served on him section 17 deals with this procedure. It provides that notice
of every proceeding under section 15 shall be served personally on the person charged unless the
court for reasons to be recorded, directs otherwise.

The notice shall be accompanied

1. In case of proceedings commenced on a motion, by the copy of the motion along with affidavit
and material on which such motion is founded.

2. In case of proceedings on a reference by a subordinate court, by a copy of the reference.

If the court is of the opinion that the person charged under section 15 is likely to abscond or is
likely to avoid the service of notice, the court may order the attachment of the property of such
person. However, the court may release the property from attachment if the person appears and
satisfies the court that he did not abscond or avoid the court’s notice.

Any person charged with contempt under section 15 may file an affidavit in support of his defence
and the court may decide the charge of contempt on the basis of his affidavit or after taking such
evidence as may be necessary.

INDIAN JUDICIARY AND CONTEMPT OF COURT

Judiciary which is the sentinel on the qui vive of the fundamental rights may at times have to
restrict the same in order to maintain rule of law. Rule of law, being the fountain of democracy,
dependents upon the free and fair administration of justice and any undue interference whether
verbal or non-verbal is treated as contempt. Constitutional guarantee of freedom of speech and

30
2005) 2 CALLT 1 HC, 2005 (2) CHN 330

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expression does not permit any one to commit contempt of court. Free and fair criticism of the
judicial act motivated by bonafied reasons has to be pennitted, but scurrilous attack on the judiciary
motivated by malafides has to be viewed seriously and should be restricted.31

It is indeed a trite statement that free speech and independent judiciary are institutions that are sine
qua non for the maintenance of the Rule of Law. Nay there is the very foundation of a democratic
society. Both of these, therefore, need to be jealously preserved and protected. The Judiciary,
undoubtedly, is the arbiter of the Rule of Law, because it is the courts that are constitutionally
entrusted to decide disputes between opposing parties, and thereby maintain the Supremacy of law.
Although the operational area of both are quite distinct and apart to a large extent, and yet at times,
these run into each other on the issue of contempt giving rise to a situation of conflict and
confusion. The requisite stimulus for this exercise has been provided by a recently delivered
judgement of the Supreme Court in Rajendra Sail v. Madhya Pradesh High Court Bar Association
and others.32

In Rajendra Sail, the editor, printer and publisher, and a reporter of a newspaper, along with the
petitioner who was a labour union activist, were summarily punished and sent to suffer a six
months imprisonment by the High Court. Their fault that on the basis of a report filed by a trainee
correspondent, they published dramatically remarks against the Judges of a High Court made by a
union activist at a rally of workers. The remarks to the effect, that the decision given by the High
Court was rubbish and fit to be thrown into a dustbin'. Although the publication of a news item
was a factually correct version of the speech delivered by the union activist, nevertheless the editor,
printer and publisher, and the reporter were held liable for contempt of the High Court.
Accordingly, all of them were convicted and sentenced to six months imprisonment. On appeal,
the Supreme Court upheld the contempt against them, but dramatically modified and reduced the
sentence. The Apex Court accepted the unconditional apology tendered by the editor, printer and
publisher, and the reporter, and thereby discharged them of contempt of court; whereas the
sentence of imprisonment awarded to the union activist was reduced to one week. The interesting
feature of the case is that though the Supreme Court rendered the decision in the light of the already
'well settled' principles relating to the law of contempt the principles that were already in the

31
K. Balasankaran Nair, 'Contempt of Court as a Limitations on Individuals Fieedom of Speech and Expression: A
Study of Judicial Appioaciv, Kerala University Journal of Legal Studies, 1998, p. 79.
32
AIR 2005 SC2473

47 | P a g e
knowledge of the High Court, nevertheless, the eventual decision of the Supreme Court in tenns
of the punishment given is drastically different from the one given by the High Court. Does it mean
that the well settled principles governing contempt of courts are not yet so settled? Or, is this an
arena of absolute discretion, implying that the variation in eventual decisionmaking is the inherent
weakness of the common law tradition where the living law emanates as a result of court decision?
In an analysis of quite a few related judicial decisions it has been found that the various principles
expounding the contempt law arc found scattered in numerous judicial decisions with varying
emphasis. And, a coherent text-book approach, giving a rounded view of the subject of contempt
law with a thematic unity, is conspicuous by its absence.33

It is both legal and logical to state that the freedom of speech and expression is as wide as the
freedom of individual citizens. However, in a civil society no right to freedom, howsoever
invaluable it might be, can be always considered absolute, unlimited, or unqualified in all
circumstances. The sweep of all rights or freedoms is, therefore, always controlled and regulated
so that the like rights or freedoms of others are not Jeopardized Realizing the truth of this fact of
social life-the constitution of India-envisages the regulation of fundamental Rights to freedom of
speech and expression of all citizens, including the press, under Article 19(l)(a) by imposing
reasonable restrictions under clause (2) of the same Article vis-a-vis judiciary, the restrictive clause
specifically states that such freedom is subject to the law made by the state "in relation to contempt
of Court". A similar provision is found in Article 19 of the International covenant on Civil and
Political Rights, 1966, to which India is a signatory and had ratified the same. It provides that
every one shall have the right to freedom of expression, to receive and impart information and
ideas of all kinds. However, clause (3) of the same article makes these rights subject to certain
restrictions, which shall only be such as are provided by law and are necessary for the respect of
life and reputation of others for the protection of national security or public order or of public
health or morality.

A mere glance at this statutory exposition shows that the contempt law is a very powerful
instrument in the hands of judiciary. Its singular purpose is to protect and preserve the majesty of
law and the dignity and independence of judiciary, which is otherwise so expressly guaranteed by

33
Virendra Kumar, 'Free Press and Independent Judiciary: Their Juxtaposition in the Law of Contempt of Courts',
Journal of the Indian Law Institute, Vol. 47, 2005, p. 448.

48 | P a g e
the Constitution itself The founding fathers of the constitution engrafted Article 121 and 211 and
thereby prohibited the Parliament and the legislature to discuss on the floor of the house the
conduct of any judge of the Supreme Court or the High Court in the discharge of his duties. Any
discussion on the aberration of conduct of a judge can be held only upon a motion for presenting
an address to the President praying for remove of the Judge under Article 124(4) of the constitution
in accordance with the procedure prescribed under the judges (inquiry) Act, 1968 and the rules
made there under. By implication. No one else has the power to accuse a judge of his misbehavior,
partiality or incapacity. The purpose of such a protection is to ensure independence of judiciary so
that the Judges could decide cases without fear or favour. If any person dares to discuss the conduct
of a judge in a manner that brings the administration of justice into disrepute, he would be liable
for contempt of court under the law.

The Parliament, while enacting the Contempt of Courts Act, 1971, has clearly carved out contain
exceptions to the exercise of the power of contempt. Section 3 of the Act takes a person out of the
purview of contempt law if he has published any matter which interferes or tends to interfere the
course of justice in connection with any civil or criminal proceedings provided at the time of
publication he had no reasonable grounds for believing that proceedings are pending. In other
words, want of knowledge of criminal whether pending or imminent would be complete defense
to a person accused of contempt on the ground that he has published any matter calculated to
interfere with the course of justice in connection with such proceedings. Under Section 4, fair and
accurate reporting of judicial proceedings is not contempt. Similarly, by virtue of section 5, even
fair criticism of judicial act is not to be considered contempt.34

Carrying out exceptions to contempt law shows the clear legislature intent: the prime purpose of
enactment is to limit the scope and sweep of the contempt law rather than enlarging it. In fact, the
principal objective of the parliament in enacting the Act of 1971 is to "define and limit the power
of certain courts, in punishing contempt of courts and to regulate their procedure in relation
thereto." '^' The Apex Court has captured this objective spirit of the enactment, when Sabharwal
J. (as he then was) issued a call to the judges.

34
Supra

49 | P a g e
"A question whether there is contempt of court or not is a serious one. The court is both the accuser
as well as the judge of the accusation. The court has to act therefore with a great circumspection.
It is only when a clear case of contemptuous conducts not explainable otherwise arises then the
contemnor must be punished."

The analysis of the decision of the Apex Court reveals that the rigor of contempt law has been
remarkably reduced by developing certain juristic principles and practices. In this respect, there
are at least three sets of principles and practices that are in consonance with the legislature intent.

The first set of juristic principles and practices revolves around the holding of the apex court to
the effect that the jurisdiction of the court for initiating contempt proceedings in terms of the
procession of the contempt of courts Act is quasi-criminal. As such the standard of proof required
is that of a criminal proceedings and the breach shall have to be established 'beyond reasonable
doubt'. In this respect, the Supreme Court in Mrityunjoy Das35 cited the observation of Lord
Denning:

"While expand reasonable doubt': It is not proved by showing that, when the man was asked about
it, he told lies. There must be some further evidence to incriminate him. Once some evidence is
given, then his lies can be thrown into the scale against him. But there must be some other evidence
... where there are two equally consistent possibilities open to the court, it is not right to hold that
the offence is proved beyond reasonable doubt".

The first judicial strategy is to distinguish 'contempt' from 'libel'. Contempt is a public wrong,
having 'an adverse effect on the due administration of justice by ‘undermining the confidence of
the public in judiciary’,36 whereas, 'liberal', which is an illegal act of writings things about someone
that are not true, is a personal injury. The test, if an act of criticism is simply 'libel' or constitutes
'contempt' is, "whether the impugned publication is a mere defamatory attack on the judge or
whether it is calculated to interfere with the due course of justice or the proper administration of
law by his court".37 "It is only the latter case that will be punishable as contempt". In other words,
that is 'alternatively', the test will be whether the wrong is done to the judge personally or it is done
to the public. In case of 'libel', one has to bring a suit and prove the charge, whereas in the case of

35
Mrityunjoy Das and another v. Sayed Hasibur- Rahman and Others, AIR 2001 SC 1293.
36
Shri C.K. Daphtaryand Others v. Shri O.P. Gupta and Others, AIR 1971 SC 1132
37
Publications Pvt. Ltd. and another v. The State of Maharashtra, AIR 1971 SC2211

50 | P a g e
contempt, it is the public institution, namely the court, that initiates proceedings and the contemnor
is punished summarily even without proof of the actual injury, if the disparaging remarks are likely
to interfere with the due administration of law.

The second judicial strategy for restricting court form holding people for its contempt is by
differentiating the judge from his judgment. The judgments, and not the judges, are subject to
public criticism. It is always open to public scrutiny and criticism, Sabharwal J. (as he then was)
unequivocally states:

Undoubtedly, the judgments are open to criticism. No criticism of a

judgment, however rigorous, can amount to contempt of court, provided it is kept within the limits
of reasonable courtesy and good faith. Fair and reasonable criticism of a judgment which is a
public document or which is a public act of a judge concerned with administration of justice would
not constitute contempt. Such a criticism may fairly assent that the judgment is incorrect or an
error has been committed both with regard to law or established facts.

The third judicial strategy to reduce the rigor of the contempt proceedings is by holding that the
criticism made in 'good faith' and 'public good', that is without malice or ill-will does not amount
to contempt of court. For this proposition, Sabharwal J. (as he then was) cites the authority of a
three judge bench of the Supreme Court in re. Roslian Lai Ahuja, which holds that fair comments,
even if outspoken, but made without any malice or attempting to impair the administration of
justice and made in good faith in proper language do not attract any punishment for contempt of
court. The ambit of the contempt law further limited by the observation of the apex court in the
Arundhati Roy to the effect that the criticism of the conduct of a judge, the institution of judiciary,
and its functioning may not amount to contempt of it is made in 'good faith' and in 'public interest'.
However, for deciphering the presence of these two doctrines, the apex court has suggested that
the courts dealing with the issue of contempt should consider "all the surrounding circumstances",
including (a) the person responsible for comments; (b) his knowledge in the field regarding which
the comments are made; and (c ) the intended purpose sought to be achieved. This implies that ail
the persons cannot be permitted to comment upon the conduct of the courts in the name of fair
criticism..." holds the Supreme Court assertively. " The reason for this assertion is: "if criticism is
permitted to everybody I the name of fair criticism, it would destroy the institution of courts itself.
This reality is instanced by the Supreme Court: Litigants losing in the court would be the first to

51 | P a g e
impute motives to the judges and the institution in the name of fair criticism, which cannot be
allowing for preserving the public faith in an important pillar of democratic set up that is judiciary.

The second set of juristic principles and practices that has the effect of cutting down the contempt
proceedings relates, not to the construction of 'contempt' but, to the consequences of contempt in
terms of punishment. On this court Section 12 of the Act of 1971 specifically provides that "a
contempt of court may be punished with simple imprisonment for a term which may extend to six
months, or with fine which may extend to two thousand rupees, or with both". To this procession
is engrafted a proviso, which entitles the contempt court either to discharge the accused by
cancelling the court's order for initiating contempt proceedings, or "the punishment awarded may
be remitted on apology being made to the satisfaction of the court". On the basis of simple
construction of this provision, it is evident that the court's decision is holding a person guilty of
contempt may be reviewed in the light of the justification offered by the accused. If the court is
satisfied, it may instantly cancel its order, discharging the accused.

FREEDOM OF SPEECH AND CONTEMPT OF COURT

It is, however, quite clear, that the exercise of such a power by the courts comes in conflict with
the citizens fundamental right to freedom of speech and expression. This freedom is not only the
basis of a democratic form of Government but is also essential for a complete and meaningful
development of human mind. But the great social interest that lies in the unobstructed and
uninterfered administration of justice provides justification for the restriction that this branches of
the law of contempt imposes on the freedom of speech and expression, subject, of course, to
meeting the express constitutional requirement of reasonableness of any such restriction. Both the
values of freedom of speech and expression and fair and impartial administration of justice are,
thus, held very high by our constitution and neither is permitted to be sacrificed for the other. In
all cases of conflict between the two, a proper balance has, therefore, to be struck by the courts.38

38
I.S. Ishar, ‘Fredomof Speech and Contempt by Interfering with the due Administrationof Justice' Journal of the
Bar Council of India, Vol. 8, 1981 p. 330.

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It is of great significance to mention that the Supreme Court, revising a High Court decision in
which a magistrate had been held guilty of contempt, has held that in the absence of mens rea the
contemnor was at the most guilty of a technical contempt not calling for a penal action.39The
Supreme Court rule that so long as a judicial officer, in the discharge of his official duties, acts in
good faith and without any motive to defeat, obstruct, or interfere with the due course of justice,
the courts will not as a rule punish him for contempt. In arriving at this decision Sarkaria J., who
spoke for the bench, relied on an earlier Supreme Court Judgment40 in which the court had refused
to uphold an action for contempt for the delay in the transmission of the order of the court of
Sessions, which in a way had defeated the order. There was no intention to so frustrate the orders
of the session's court and the Supreme Court held that the punishment under the law of contempt
was called for when the lapse was deliberate and in disregard of one's duty and in defiance of
authority.

To curb, in the name of the contempt of court, such publications which legitimately discuss
matters of general public interest and only incidentally and unintentionally create a risk of
prejudice to particular proceedings, does appear to be an unwarranted and unreasonable restriction
on the freedom of speech and expression.'' There are cases in which the possibility of prejudice to
a litigant may be required to yield to other and superior considerations of freedom to discuss
matters of general public concern. One such example, it is submitted, was the case' in which Mr.
P.C. Sen, the then Chief Minister of West Bengal, was held guilty of contempt of court. When the
petitions challenging the constitutional validity of the West Bengal Milk Products control order
were pending before the Calcutta High Court, the Chief Minister gave a broadcast talk in which
he discussed the implications of the impugned control order and its impact on sweetshops. He
extolled the virtues of that legislation as a sort of boon to the public and as putting down
adulteration and anti social elements. The Chief Minister was held guilty of contempt of court on
the ground that his speech was calculated to interfere with the due course of justice as it was likely
to create atmosphere of prejudice against the petitioner and also deter other persons from making
similar claims before the court. It is important to note that certain persons had started a public
propaganda with the object of criticizing and ridiculing the policy of the State Government in
promulgating the control order. As a result of this, certain sections of the public were misled about

39
Abdul Karim v. M.P. Prakasli, AIR 1976, SC 859.
40
Debabrata Baiidophadhay v. State, AIR 1969, SC 189.

53 | P a g e
the object, purpose and nature of the order and the consequences thereof taking advantage of the
situation attempts were made by some political parties to commence a political agitation against
the state government for having promulgated the order. It was contended on behalf of the Chief
Minster that is his sole and only intention and purpose in making the speech was to remove the
confusion and to allay the fears aroused in the minds of the people. The Chief Minister, it was
argued, had no intention whatsoever of either showing any disrespect to the court or interfering in
any manner with the due course of justice, nor did he anticipate that his speech could have any
such effect. But all this did not find any weight with the court as it was of the view that in such
cases 'the question is not so much of the intention of the contemnor as whether it (the speech) is
calculated to interfere with the administration of justice.

A very forceful exposition of this view is found is in a unanimous full bench decision of the Delhi
High Court,41 where it was observed that the right to discuss being inalienable and the very essence
of a free and democratic society, a matter of great national importance which agitates vast sections
of the population was bound to be discussed in press and on other plate forms. The public
discussion of that matter cannot necessarily be stifled because of the filing of a suit by an individual
in a court of law about the matter of national importance. To hold otherwise would, according to
the High Court, allowed full freedom to a commentator to comment on a matter of national
importance, notwithstanding that a suit involving that matter is pending in a court of law.

In this context, matter important change introduced in the Indian contempt law is the provisions42
that no publisher of an alleged contumacious matter shall be guilty of contempt, if, at the time of
publication of that matter he had no reasonable grounds for believing that the proceedings was
pending. In a vast country like India, where people in one part of the country are not likely to be
aware of the proceedings pending in another part of the country, it would completely stifle the
freedom of speech if want of knowledge of pending proceeding were not to afford a complete
defiance to a person accused of contempt of court. But once there was as of fact a pending
proceeding, the burden is on the alleged contemnor to show that he had good reasons for believing
that there was no pending proceeding. He must put forward such reasonable grounds as world
satisfy reasonable man as to his belief.

41
D.N . Singh V. A.K. Sen, (1971) (1)1 LR Delhi, 14
42
Section 3(1) of the contempt of Courts Act, 1971.

54 | P a g e
This explanation to Section 3, however, needs to be reconsidered at least on one count. It lays
down that a proceeding shall be deemed to be pending "until it is heard and finally decided, that is
to say, in a case where an appeal or revision is competent, until the appeal or revision in heard or
finally decided or, where no appeal or revision is preferred, until the period of limitation prescribed
for such appeal or revision has expired." This in the present, Indian conditions where there are
enonnous delays involved in the disposal of cases in the courts, at all levels, original or appellate,
may amount to restraining comment for too long at time. At times when matters of general concern
and interest are involved in the litigation, it may not do good to the public interest of there is no
public discussion of these matters till appeals in that case are decided by the highest appellate court
in the country. It could be very well argued in such cases that freedom of speech is being
reasonably curtailed.43

It is no doubt essential to the preservation of the rights of every individual that administration of
justice is of destructed or prevented. Any abuse, interference or obstruction of the administration
of justice has therefore, to be necessarily checked. But in the enthusiasm to strive, through the
exercise of the contempt jurisdiction, for a fair and impractical administration of justice, it is not
to be lost right of the contempt law affects, sometimes very seriously, the citizens fundamental
rights to freedom of speech. This freedom is a necessary pre-requisite for the democratic way of
life envisaged under the Indian Constitution and should always prevail except where interference
with justice is substantial and mischievous.44

FREEDOM OF EXPRESSION AND CONTEMPT OF

COURT
All citizens have the right to freedom of speech and expression with reasonable restrictions. It is.
Governor, not absolute, but is subject to the power of the state to impose reasonable restrictions in
the interest of the sovereignty and integrity of India, the security of the state, friendly relation with
foreign states, public order, decency or morality, or in relation to contempt of court, defamation or

43
Supra.
44
Ibid.

55 | P a g e
incitement to an offence. Thus a restriction can be imposed on this freedom in relation to contempt
of court, but such restriction has to be reasonable.

The need to impose restrictions on the freedom of speech and expression in relation contempt of
court arises from the following interests that have to be subserviced.45

a)The judiciary should not be designated because people will lose faith in it and
ultimately this will erode its social legitimacy;

b) Judicial decision must not be allowed to be flouted, because it will weaken the
credibility of the judiciary; and

c) Judges must be protected from blackmail, personal character assassination or ridicule

which is arising out of their judicial office. If this is allowed, the judges will get demoralized.

As against this, there are the following Interests subs served by the criticism by the judicial process:

a) Judicial process is a decision making process and in democratic society, it is the part of the
political process. The courts are entrusted with the power of making decision on matters of
policy, such as what is the basic structure of the constitution or what are reasonable
restrictions on freedoms guaranteed by bills of rights and, therefore, there should be free
discussion about judicial policy and Judicial procedures, public faith n the judicial process
will argument and not diminish by such de-mystification of the judicial process. Judicial
decisions and procedures as well as the institutional role of judiciary must be continuously
under public gaze and subject to social audit;
b) Judges cannot invoke the law of contempt for their own personal protection. The law of
contempt must protect only the institution. But criticism or allegations against judges with
a view to bullying them or intimidating than could prove disastrous to the independence of
the judiciary. Therefore, a judge ought not to be criticized for his judicial decision. His
decisions could be criticized, but not his motives. Such protection however remains
confined strictly to his judicial work.

The power of the courts to punish for contempt is an essential judicial weapon to prevent
interference with the administration of justice. However, it may at times conflict with freedom of

45
S.P. Sathe. 'Freedom of Speech and Contempt of Court', The Lawyers, Nov. 1988, p. 17

56 | P a g e
speech which is a coveted fundamental right. This conflict has to be resolved in such a way as to
protect administration of justice at minimum sacrifice of freedom of speech. But in E.M.S
Namboodiripad v. T.N. Nambiar,46 the Supreme Court of India has failed to strike a balance
between the competing demands 185 of freedom of speech and fair administration of justice.47

Mr. Namboodiripad, while he was Chief Minister of Kerala, has said in a press conference was a
mere criticism of the institution of judiciary from the standpoint of the class theory of Marx. He
had described the judiciary as "an instrument of oppression" and the judges as "dominated by class
hatred, class prejudices, instinctively favoring the rich against the poor". The Judiciary, in his
opinion, worked against workers, peasants and other sections of the working class. The Kerala
High Court held him guilty of contempt of court and sentenced a fine of Rs. 1000/- or simple
imprisonment for one month in default.

The criticism by the contemnor was not of any individual judge. It was directed against the
judiciary as a whole. Further the object of the petitioner was to educate the masses in the tenets of
Marx and Engels and not to scandalize judges and he is doing so in pursuance of the guaranteed
right of freedom of speech under Article 19 of the Constitution of India.48

When Namboodiripad appealed against this decision to the Supreme Court, the Supreme Court
upheld the decision against him then it reduced the sentence. The arguments in his defense were
that:

(i) his observations did no more than give expression to the Marxist philosophy and what
was contained in the programme of his party, i.e. the CPI(M) programme adopted in
Nov: 1964;
(ii) they contained a fair criticism of the system of judicial administration;
(iii) they did not contain criticism of any particular judge or his judgement or conduct;
(iv) he had always enforced the judgments of the courts, and had never shown disrespect to
the judiciary, but had in fact advocated the independence of the judiciary;
(v) the laws of contempt ought to be interpreted so as to cause no encroachment upon the
freedom of speech guaranteed by Article 19(l)(a) of the Constitution;

46
(1970)2 SCC 325
47
S.P. Sathe. 'Freedom of Speech and Contempt of Court', The Lawyers, Nov. 1988, p. 17.
48
G.C. V. Subba Rao, 'Contempt of Court Act 1971", 1974, p. 232.

57 | P a g e
 (vi) the alleged harm done to the courts by his utterances was not apparent.

The judgment merely mentions that restriction could be imposed on freedom of speech and
expression in relation to contempt of court. But if Article 19(2) is read carefully, it is not enough
that such a restriction should be in relation to contempt of court. It is also necessary that such a
restriction should be a reasonable restriction.

Later in M.R. Parashar v. Farooq Abdullah,49 the Supreme Court dealt with a contempt complaint
against the Chief Minister of Jammu and Kashmir, Mr. Farooq Abdullah. Dr. Farooq Abdullah
had made a speech containing allegations against the judiciary. He had been reported to have said
that justice was being bought in courts. He further said that he would not accept any stay orders.
The Chief Minister was acquitted, but on the ground that the charge was not proved.

It is submitted that of such criticism of the judicial system were to constitute the offence of
contempt, many eminent judges themselves would have to be convicted. Did Chief Justice
Bhagwati not say that our system of justice was on the verge of collapse? Can we suppress the
expression of truth in the name of contempt of court? Is it on the interest of the judiciary to suppress
such expression but allow them to simmer in the minds of the people? Will open expression and it
is investigation or rebuttal not enhance the image of the judiciary? Chief Justice Chandrachud was
not obvious to such considerations when he observed:

"The reluctance of courts to resort to the provisions of the contempt of courts Act springs from
their regard for the rule of law.... True, that it acts in order to uphold the authority of law and not
defense of this or that particular judge. But an order punishing a person for such contempt is likely
to create the impression more so in the mind of lay observers that the judges have acted in defense
of themselves Courts do not like to create such an impression even unwillingly. Secondly, the right
of free speech is an important right of the citizen, in the exercise of which he is entitled to bring to
the notice of the public at large the infirmities from which any, institution suffers, including,
institutions which administer justice. Justice, indeed, the right to offer healthy and constructive
criticism which is fair in spirit must be left unimpaired in the interest of public institutions
themselves.... Course does not like to assure the positive that they are above criticism and that
their functioning needs no improvement."

49
AIR 1984 SC 615.

58 | P a g e
This passage clearly makes a departure from the view held in Namboodiripad. In P.N. Duda v. P.
Shiv Shankar,50 the Supreme Court acquitted Mr. P. Shiv Shankar, who was minister for law and
justice in the cabinet at the time of his prosecution for the offence of contempt of court. The speech
for which Shiv Shankar had been prosecuted was very much similar to that for which
Namboodiripad had been convicted. But in the judgement of Justice Sabyasachi Mukherji, the
following points emerge:

(i) Administration of Justice and Judges are open to public criticism and public scrutiny.
Judges have their accountability to the society;
(ii) any criticism about the Judicial system of the Judges which hampers the administration
of justice or which erodes the faith in the objective approach of judges and brings
administration of justice into ridicule must be prevented;
(iii) judgments can be criticized. The motives of the judges need not be attributed; and
(iv) in the free market place of ideas, criticism about the judicial system of judges should
be welcomed so long as such criticisms do not impair or hamper the administration of
justice."

It is submitted that the Supreme Court should have clearly overruled the Namboodiripad decision.
The learned Sabyasachi Mukherji J. was right in saying that:

"Such fair and reasonable criticism must be encouraged because after all no one, much less
Judges, can claim infallibility. Such a criticism may fairly assert that the judgment is incorrect or
an error has been committed both with regard to law or established facts."

CONTEMPT OF COURT IN LIGHT OF IN RE

ARUNDHATI ROY CASE
Th movement of Narmada Bachao Andolan filed a petition under Article 32 of the Constitution of
India before the Supreme Court. It was a movement or andolan, whose leaders and members were
concerned about the alleged adverse environmental impact of the construction of the Sardar
Sarovar Reservoir Dam in Gujarat and the far-reaching and tragic consequences of the

50
AI R 1988 SC 1208

59 | P a g e
displacement of hundreds of thousands of people from their ancestral homes that would result from
the submerging of vast extents of land, to make up the reservoir.

During the pendency of the writ petition, the Court passed various orders. By one of the orders,
the Court permitted to increase the height of the dam which was resented to and protested by the
writ petitioners and others including the respondent herein. Ms. Arundhati Roy, who was not a
party to the writ proceedings, published an article entitled 'The Greater Common Good' which was
published in Outlook Magazine and in some portion of a book written by her.

Two judges of the Court, forming the three-judge Bench felt that the comments made by her were,
prima facie, a misrepresentation of the proceedings of the court. It was observed that judicial
process and institution cannot be permitted to be scandalised or subjected to contumacious
violation in such a blatant manner, it had been done by her.

Recording its disapproval of the act of the respondent and showing its magnanimity, the Court
declared:

'After giving this matter our thoughtful consideration and keeping in view the importance of the
issue of resettlement and rehabilitation of the PAFs, which we have been monitoring for the last
five years, we are not inclined to initiate proceedings against the petitioner, its leaders or Ms.
Arundhati Roy. We are of the opinion, in the largest interest of the issues pending before us, that
we need not pursue the matter any further. We, however, hope that what we have said above would
serve the purpose and the petitioner and its leaders would hereafter desist from acting in a manner
which has the tendency to interfere with the due administration of justice or which violates the
injunctions issued by this Court from time to time.'

The third learned Judge also recorded his disapproval of the statement made by the respondent
herein and others and felt that as the court's shoulders are broad enough to shrug off their comments
and because the focus should not shift from the resettlement and rehabilitation of the oustees, no
action in contempt be taken against them.

However, after the judgment was pronounced increasing the height of the dam, an incident was
stated to have taken place on December 30, 2000 regarding which a Contempt Petition No. 2 of
2001 was filed by J.R. Parashar, Advocate and others. According to the allegations made in that
petition, the respondents named therein, led a huge crowd and held a Dharna in front of this Court

60 | P a g e
and shouted abusive slogans against the court including slogans ascribing lack of integrity and
dishonesty to this institution. It was alleged that when the petitioners therein protested, they were
attacked and assaulted by the respondents. In the evening on the same day, the respondents are
stated to have attacked, abused and assaulted the petitioners.

A complaint was stated to have been lodged with the Tilak Marg Police Station on the next day.
In the aforesaid contempt proceedings notices were issued to the respondents in response to which
they filed separate affidavits. All the three respondents therein admitted that there was a Dharna
outside the gates of the Court on December 30, 2000 which was organised by Narmada Bachao
Andolan and the gathered crowd were persons who lived in the Narmada Valley and were
aggrieved by the majority judgment of this Court relating to the building of the dam on the
Narmada River. In her affidavit Arundhati Roy (one of the respondents), amongst other averments,
had stated:

'On the grounds the judges of the Supreme Court were too busy, the Chief Justice of India refused
to allow a single judge to head the judicial enquiry into the Tehelka scandal, even though it
involves matters of national security and corruption in the highest places. Yet when it comes to an
absurd, despicable, entirely unsubstantiated petition in which all the three respondents happen to
be people who have publicly -though in markedly different ways - questioned the policies of the
government and severely criticized a recent judgment of the Supreme Court, the Court displays a
disturbing willingness to issue notice. It indicates a disquieting inclination on the part of the court
to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it. By
entertaining a petition based on an FIR that even a local police station does not see fit to act upon,
the Supreme Court is doing its own reputation and credibility considerable harm.'

The assertions in the aforesaid contempt petition attributed that the contemnors shouted abusive
slogans against the court including slogans ascribing lack of integrity and dishonesty to the
institution undoubtedly made the action of the contemnor gross contemptuous and as such the
court had initiated the contempt proceedings by issuing notice. But in view of the denial of the
alleged contemnors to the effect that they had never shouted such slogans and used such abusive
words as stated in the contempt petition, instead of holding an inquiry and permitting the parties
to lead evidence in respect of their respective stand, to find out which version is correct, the court
thought it fit not to adopt that course and decided to drop the proceedings. But in the very show

61 | P a g e
cause that had been filed by Ms. Arundhati Roy, apart from denying that she had not used any such
words as ascribed to her, she had stated in three paragraphs, as quoted earlier, after denying that
she had never uttered the words ascribed to her and those paragraphs having been found prima
facie contemptuous, the suo motu proceedings had been initiated and notice had been issued.
However, the Court felt that Ms. Arundhati Roy was found to have, prima facie, committed
contempt as she had imputed motives to specific courts for entertaining litigation and passing
orders against her. She had accused courts of harassing her as if the judiciary were carrying out a
personal vendetta against her. She had brought in matters which were not only not pertinent to the
issues to be decided but has drawn uninformed comparisons to make statements about the Court
which do not appear to be protected by law relating to fair criticism. It was stated by her in the
court that she stood by the comments made by her even if the same are contumacious. For the
reason recorded therein, the Court issued notice in the prescribed form to the respondent herein
asking her to show cause as to why she should not be proceeded against for contempt for the
statements in the offending three paragraphs of her affidavit, reproduced hereinearlier.

In her reply-affidavit, the respondent has again reiterated what she had stated in her earlier
affidavit. It was contended that as a consequence of the Supreme Court judgment the people in the
Narmada Valley are likely to lose their homes, their livelihood and their histories and when they
came calling on the Supreme Court, they were accused of lowering the dignity of the court which,
according to her is a suggestion that the dignity of the court and the dignity of the Indian citizens
are incompatible, oppositional, adversarial things. She stated:

'I believe that the people of the Narmada valley have the constitutional right to peacefully protest
against what they consider an unjust and unfair judgment. As for myself, I have every right to
participate in any peaceful protest meeting that I choose to. Even outside the gates of the Supreme
Court. As a writer I am fully entitled to put forward my views, my reasons and arguments for why
I believe that the judgment in the Sardar Sarovar case is flawed and unjust and violates the human
rights of Indian citizens. I have the right to use all my skills and abilities such as they are, and all
the facts and figures at my disposal, to persuade people to my point of view.

' She also stated that she has written and published several essays and articles on Narmada issue
and the Supreme Court judgment. None of them was intended to show contempt to the court. She
justified her right to disagree with the court's view on the subject and to express her disagreement

62 | P a g e
in any publication or forum. In her belief the big dams are economically unviable, ecologically
destructive and deeply undemocratic. In her affidavit she has further stated:

'But whoever they are, and whatever their motives, for the petitioners to attempt to misuse the
Contempt of Court Act and the good offices of the Supreme Court to stifle criticism and stamp out
dissent, strikes at the very roots of the notion of democracy. In recent months this Court has issued
judgments on several major public issues. For instance, the closure of polluting industries in Delhi,
the conversion of public transport buses from diesel to CNG, and the judgment permitting the
construction of the Sardar Sarovar Dam to proceed. All of these have had far-reaching and often
unanticipated impacts. They have materially affected, for better or for worse, the lives and
livelihoods of millions of Indian citizens. Whatever the justice or injustice of these judgments
whatever their finer legal points, for the court to become intolerant of criticism or expressions of
dissent would mark the beginning of the end of democracy.

An 'activist' judiciary, that intervenes in public matters to provide a corrective to a corrupt,

dysfunctional executive, surely has to be more, not less accountable. To a society that is already
convulsed by political bankruptcy, economic distress and religious and cultural intolerance, any
form of judicial intolerance will come as a crippling blow. If the judiciary removes itself from
public scrutiny and accountability, and severs its links with the society that it was set up to serve
in the first place, it would mean that yet another pillar of Indian democracy will crumble. A judicial
dictatorship is as fearsome a prospect as a military dictatorship or any other form of totalitarian
rule.

The Tehelka tapes broadcast recently on a national television network show the repulsive sight of
Presidents of the Bhartiya Janata Party and the Samata Party (both part of the ruling coalition)
accepting bribes from spurious arms dealers. Though this ought to have been considered prima
facie evidence of corruption, yet the Delhi High Court declined to entertain a petition seeking an
enquiry into the defence deals that were referred to in the tapes. The bench took strong exception
to the petitioner approaching the court without substantial evidence and even warned the
petitioner's counsel that if he failed to substantiate its allegations, the court would impose costs
on the petitioner.

On the grounds that judges of the Supreme Court were too busy, the Chief Justice of India refused
to allow a sitting judge to head the judicial enquiry into the Tehelka scandal, even though it

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involves matters of national security and corruption in the highest places. Yet when it comes to an
absurd, despicable, entirely unsubstantiated petition in which all the three respondents happen to
be people who have publicly - though in markedly different ways - questioned the policies of the
government and severely criticized a recent judgment of the Supreme Court, the Court displays a
disturbing willingness to issue notice. It indicates a disquieting inclination on the part of the court
to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it. By
entertaining a petition based on an FIR that even a local police station does not see fit to act upon,
the Supreme Court is doing its own reputation and credibility considerable harm.

In conclusion, I wish to reaffirm that as a writer I have right to state my opinions and beliefs. As
a free citizen of India I have the right to be part of any peaceful dharna, demonstration or protest
march. I have the right to criticize any judgment of any court that I believe to be unjust. I have the
right to make common cause with those I agree with. I hope that each time I exercise these rights
I will not be dragged to court on false charges and forced to explain my actions.'

In the aforesaid backdrop, the Supreme Court dealt with the question whether the offending paras
in her affidavit amounted to contempt of court. In the proceedings, a preliminary objection was
raised by the contemnor that the Hon’ble Judges who issued notice in Criminal Petition No. 2 of
2001 should not be a party to the present proceedings and the case be transferred to some other
Bench.

Rejecting the plea of recusal, the Supreme Court held that cognizance of the criminal contempt
against the respondent has been taken by the Court, suo motu under Section 15 of the Act. Whereas
sub-section (2) of Section 14 permits a person charged with the contempt to have charge against
him tried by some judge other than the judge or judges in whose presence or hearing the offence
is alleged to have been committed and the court is of opinion that it is practicable to do so. No
such provision is made under Section 15 of the Act.

Obviously for the reason that when action is at the instance of the Court, there is no question of
any motive of and prejudice from any judge. The Court also held that accepting the plea raised by
the respondent would amount to depriving all the judges of the court to hear the matter and thus
frustrate the contempt proceedings, which cannot be the mandate of law. The apprehension of the
respondent was found to be imaginary, without basis and not bonafide. The oral prayer made for
one of the judges not to be a member of the Bench, hearing the matter was rejected.

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It is stated that the aforesaid view of the Supreme Court is totally erroneous as the alleged contempt
was committed infacie curiae inasmuch as the offending affidavit was filed before a Bench of the
Supreme Court and hence falls within the purview of section 14 of the Contempt of Courts Act,
1971 which deals with the procedure where contempt is in the face of the Supreme Court or a High
Court. A bare reading of the provision would indicate that in cases of contempt in the face of the
Supreme Court or a High Court where a person charged with contempt under this section applies
whether orally or in writing to have the charge against him tried by some Judge other than the
Judge or Judges in whose presence or hearing the offence is alleged to have been committed and
the court is of opinion that it is practicable to do so, and that in the interest of proper administration
of justice, the application should be allowed, the same has to be done.

Thus, the view of the Supreme Court is highly convoluted inasmuch as suo motu cognizance can
be taken and in fact has been taken by the Supreme Court under section 14 of the Contempt of
Courts Act, 1971 and therefore to this extent, the judgment suffers from a serious infirmity.
Moreover, the logic of the court in not entertaining the plea of recusal is highly fallacious. It is not
understood as to how the acceptance of such plea would deprive all the judges to hear the matter.
The plea was against a particular judge (and not even the Bench) in whose presence the contempt
allegedly took place.

Even otherwise, the principles of natural justice demand that the learned judge ought to have
recused on his own without even waiting for the contemnor to request to the same effect. Justice
is rooted in confidence and it is destroyed when right minded people go with the impression that
the judge was biased. It is submitted that after Maneka Gandhi's case, procedural fairness is part
and parcel of our constitutional scheme and consequently the refusal to recuse by the judge can
hardly be termed as procedurally fair. It is submitted that principle of natural justice, due process
requirement after Maneka and ordinary notions of justice demanded the judge to refuse to hear the
matter and to recuse from the Bench.

It is submitted that there is an in-built bias in the contempt proceedings inasmuch as the functions
of the judge, the jury, the hangman and the pall bearers are all discharged by the same institution
and it becomes more pronounced when the court takes suo motu cognizance in contempt
proceedings and thus the suo motu jurisprudence further compounds the injustice the alleged
contemner and results into violation of cherished freedoms.

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A further plea was raised by the contemnor to defer the proceedings to await the decision of a
constitutional Bench in Dr. Subramaniam Swamy v. Rama Krishnan Hegde. In the said case a
reference was made to the Supreme Court to reconsider the dicta laid down by the Supreme court
in Perspective Publications (P) Ltd. v. State of Maharashtra.

Thus, it was contended that truth can be pleaded as a defence in contempt proceedings. However,
the Supreme Court rejected the submission holding that “inasmuch as the question of truth being
pleaded as defence in the present case, does not arise. Contempt proceedings have been initiated
against the respondent on the basis of the offending and contemptuous part of the reply affidavit
making wild allegations against the Court and thereby scandalized its authority. There is no point
or fact in those proceedings which requires to be defended by pleading the truth.”

Thus, the Supreme Court was not even prepared to consider the plea of truth as the same was found
to be irrelevant and immaterial. It is stated that the alleged contemptuous paragraphs in the affidavit
reflected some factual aspects and therefore it is quite surprising that the truth was held irrelevant
in the proceedings. It may be further stated that after Maneka Gandhi's case any restriction on
fundamental rights which is not just, fair and reasonable is blatantly unconstitutional and a
procedure which does not recognize truth as a defence is, ex facie, an unreasonable restriction on
free speech and cannot be termed as reasonable by any notions of arguments and reasoning.

Further distinguishing its own holding in P.N. Duda v. P. Shiv Shanker, the Supreme Court
observed that the criticism of the judicial system was made by a person who himself had been the
judge of the High Court and was the Minister at the relevant time. He had made studies about the
system and expressed his opinion which, under the circumstances, was held to be not defamatory
despite the fact that the court found that in some portion of the speech the language used could
have been avoided by the Minister having the background of being the former judge of the High
Court. His speech, under the circumstances, was held to be not amounting to imminent danger of
interference with the administration of justice nor of bringing the administration into disrepute.

It is thus apparent from the aforesaid observation of the Supreme Court that the liability will differ
depending upon the fact that criticism of the judicial system was made by a person who himself
had been the judge of the High Court and was the Minister at the relevant time or by a person
having no judicial background. Such a view is highly skewed and makes hostile discrimination

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between the two categories of the citizens and renders it susceptible to attack on the benchmark of
right to equality guaranteed under the constitution.

The further observation of the Supreme Court in the case to the effect that the respondent has not
claimed to be possessing any special knowledge of law and the working of the institution of the
judiciary and further that she has not claimed to have made any study regarding the working of the
Supreme Court or judiciary in the Country is highly shocking and surprising. A citizen of the
country need no learning, formal or otherwise, to exercise its fundamental right to freedom of
speech and expression else the said right would become illusory, moonshine and a monopoly of
few elites in this country of teeming illiterates.

Further, the observation of the Supreme Court to the effect that the law "punishes the archer as
soon as the arrow is shot no matter if it misses to hit the target" reflects another anomaly in the law
(as interpreted) to the requirement of mens rea in a charge of contempt. It is submitted that
contempt proceedings being penal are quasi criminal in nature and therefore the offence of
contempt must necessarily have mens rea as a necessary ingredient thereof. Absence whereof
would unsettle the settled principles of certainty of criminal law and would render the law
vulnerable, more so, after the entry of due process clause in Indian Constitution through Maneka
Gandhi’s case as stated above.

Lastly, it is submitted that the Supreme Court convicted the author Ms. Arundhati Roy for the
contempt of the court and sentenced her to simple imprisonment for one day and to pay a fine of
Rs.2,000/-. It is pertinent to mention that the Supreme Court judgment on the quantum of
punishment is perincurium inasmuch as section 13(a) of the Contempt of Courts Act, 1971 clearly
states that no court shall impose sentence under the Act for a contempt of court unless it is satisfied
that the contempt is of such a nature that it substantially interferes, or tends substantially to
interfere with the due course of justice.

It is submitted that in the present case, no charge was framed to this effect much less any finding
recorded thereon and consequently it is writ large that as far as the sentence of one day is
concerned, it is totally illegal, bad in law and contrary to statutory mandate. It is stated that the
scheme of section 13 of the Act is clear in that as a rule the punishment in case of contempt has to
be by way of fine and it is only when the court is satisfied that the contempt is of such a nature that
it substantially interferes or tendssubstantially to interfere with the due course of justice, a

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punishment by way of sentence is warranted. In the present case, no attention was given to section
13 and punishment by way of sentence was imposed and therefore the judgment of the court is not
sustainable to this extent as well.

It is submitted that sending a citizen for exercising his or her right to freedom of speech and
expression (even amounting to contempt) in a functioning and vibrant democracy is indeed a very
poor reflection on our judicial system and the laws. Some urgent action on the part of the law
makers is needed to rectify such judicial deviance.

CRITICAL ANALYSIS OF THE SUPREME COURT BAR

ASSOCIATION VS. UNION OF INDIA CASE
In this case the question which arosed was whether the Supreme Court can while dealing with
Contempt Proceedings exercise power under Article 129 of the Constitution or under Article 129
read with Article 142 of the Constitution or under Article 142 of the Constitution can debar a
practicing lawyer from carrying on his profession as a lawyer for any period whatsoever. Thus,
the only question which the Supreme Court was called upon to decide in this petition is whether
the punishment for established contempt of Court committed by an Advocate can include
punishment to debar the concerned advocate from practice by suspending his licence (sanad) for a
specified period, in exercise of its powers under Article 129 read with Article 142 of the
Constitution. Previously,51 the Supreme Court found the contemner guilty of committing criminal
contempt of court for having interfered with and obstructing the course of justice by trying to
threaten, overawe and overbear the court by using insulting, disrespectful and threatening
language. While awarding the punishment, keeping in view the gravity of the contumacious
conduct of the contemner, the court said:

"The facts and circumstances of the Present Case justify our invoking the power under Article 129
read with Article 142 of the Constitution to award to the contemner a suspended sentence of
imprisonment together with suspension of his practice as an advocate in the manner directed
herein. We accordingly sentence the contemner for his conviction for the offence of the criminal
contempt as under:

51
In re, Vinay Chandra Mishra 1995 (2) SCC 584.

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 a) The contemner Vinay Chandra Mishra is hereby sentenced to undergo simple
imprisonment for a period of six weeks. However, in the circumstances of the case, the
sentence will remain suspended for a period of four years and may be activated in case the
contemner is convicted for any other offence of contempt of court within the said period;
and
b) The contemner shall stand suspended from practising as an advocate for a period of three
years from today with the consequence that all elective and nominated offices/posts at
present held by him in his capacity as an advocate, shall stand vacated by him forthwith.

Aggrieved by the direction that the "Contemner shall stand suspended from practising as an
Advocate for a period of three years" issued by this Court by invoking powers under Articles 129
and 142 of the Constitution, the Supreme Court Bar Association, through its Honorary Secretary,
has filed this petition under Article 32 of the Constitution of India, seeking the following relief:

"Issue and appropriate writ, direction, or declaration, declaring that the disciplinary committees of
the Bar Councils set up under the Advocates Act, 1961, alone have exclusive jurisdiction to inquire
into and suspend or debar an advocate from practising law for professional or other misconduct,
arising out of punishment imposed for contempt of court or otherwise and further declare that the
Supreme Court of India or any High Court in exercise of its inherent jurisdiction has no such
original jurisdiction, power or authority in that regard notwithstanding the contrary view held by
this Hon'ble Court in Contempt Petition (Crl.) No. 3 of 1994 dated 10.3.1995.52

Describing various provision of the Constitution the Supreme Court held that the power of this
court in respect of investigation or punishment of any contempt including contempt of itself, is
expressly made 'subject to the provisions of any law made in this behalf by the parliament' by
Article 142(2). 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

52
Supra

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law dealing with the powers of the Supreme Court with regard to investigation and punishment of
contempt of itself and the Supreme 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.

The court observed further that the nature and types of punishment which a court of record can
impose, in a case of established contempt, under the common law have now been specifically
incorporated in the contempt of Courts Act, 1971 in so far as the High Courts are concerned and
therefore to the extent the contempt of Courts Act 1971 identifies the nature of types of
punishments which can be awarded in the case of established contempt, it does not impinge upon
the inherent powers of the High Court under Article 215 either. No new type of punishment can
be created or assumed. It was stated that, the parliament by virtue of Entry 77, List I is competent
to enact a law relating to the powers of the Supreme Court with regard to contempt of itself and
such a law may prescribe the nature of punishment which may be imposed on a contemner by
virtue of the provisions of Article 129 read with Article 142(2), Since, no such law has been
enacted by the parliament, the nature of punishment prescribed, under the Contempt of Courts Act,
1971, may act as a guide for the Supreme Court but the extent of punishment as prescribed under
that Act can apply only to the High Courts, because the 1971 Act ipso facto does not deal with the
contempt jurisdiction of the Supreme Court, except that Section 15 of the Act prescribes procedural
mode for taking cognizance of criminal contempt by the supreme Court also. Section 15, however,
is not a substantive provision conferring contempt jurisdiction. The judgment in Sukhdev Singh's
case53 as regards the extent of "maximum punishment" which can be imposed upon a contemner
must, therefore, be construed as dealing with the powers of the High Courts only and not of this
Court in that behalf. We are, therefore, doubtful of the validity of the argument of the learned
solicitor General that the extent of punishment which the Supreme Court can impose in exercise
of its inherent powers to punish for contempt of itself and/or of subordinate courts can also be only
to the extent prescribed under the contempt of Courts Act, 1971. The court, however, do not
express any final opinion on that question since that issue strictly speaking, does not arise for our
decision in this case. The question regarding the restriction or limitation on the extent of

53
AIR 1954 SC 186

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punishment, which the court may award while exercising its contempt jurisdiction was left to be
decided in a proper case, when so raised.

It is apparent from above discussion of the court that the Supreme Court claims the power to
punish for contempt being inherent in a court of record, and it therefore follows that no act of
parliament can take away that inherent jurisdiction of the Court of Record to punish for contempt
and the further the court held that 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. The Supreme Court
was clearly in error in holding that the Parliament has not enacted any law dealing with the powers
of the Supreme Court with regard to investigation and punishment of contempt of itself. A bare
perusal of the Contempt of Courts Act, 1971 through section 1554 provides that for the purpose of
investigation and punishment the Parliament has enacted such a law. Further, the power of the
Supreme Court to punish for contempt under Article 129 r.w. article 142 (2) of the Constitution
would indicate that the power of the Supreme Court for the punishment of any contempt of itself
is subject to the provisions of any law made in this behalf by the Parliament. The Contempt of
Courts Act 1971 is such law. Therefore, the observation of the Supreme Court to the effect that
Parliament has not enacted any law flies in the face of Contempt of Courts Act 1971. It is also
important to mention that the Contempt of Courts Act 1971 nowhere provides that this Act applies
only to High Court and not to Supreme Court. In this view of matter, the Supreme Court‘s
observation are in ignorance of the reality, i.e. the Contempt of Courts Act 1971 enacted by the
Parliament. It appears that the Supreme Court refused to take cognizance of the law as it curtailed

54
Section 15. Cognizance of criminal contempt in other cases- (1) In the case of a criminal contempt, other than a
contempt referred to in section 14, the Supreme Court or the High Court may take action on its own motion or on
a motion made by— (a) the Advocate-General, or (b) any other person, with the consent in writing to the
Advocate-General, or (c) in relation to the High Court for the Union territory of Delhi, such Law Officer as the
Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with
the consent in writing of such Law Officer. (2) In the case of any criminal contempt of a subordinate court, the High
Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-
General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in
the Official Gazette, specify in this behalf. (3) Every motion or reference made under this section shall specify the
contempt of which the person charged is alleged to be guilty Explanation.—In this section, the expression
―Advocate-General‖ means— (a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;
(b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court
has been established; (c) in relation to the Court of a Judicial Commissioner, such Law Officer as the Central
Government may, by notification in the Official Gazette, specify in this behalf.

71 | P a g e
the unfettered powers enjoyed by the Supreme Court hitherto in punishing for the contempt. It is
stated that the aforesaid observation of the court are in complete defiance of the Parliamentary
mandate and the Rule of law. The question which arises, if the Contempt of Courts Act 1971, is
not to be applied to the Supreme Court, what is the ambit of the power of the Supreme Court to
punish the contemner for its contempt? 6 months, 1 year, 2 year, 5 year or life or death or else?
These are the issues which need immediate attention of the Supreme Court and the Parliament
alike. It is a cardinal canon of criminal law and natural justice that a person cannot be convicted
of an offence whose ingredients are not knowable. Further, holding of the Supreme Court that as
no law has been enacted by the Parliament in exercise of its power under Article 142 qua contempt
and hence the Contempt of Courts Act 1971, may act as guide for the Supreme Court but the extent
of punishment prescribed under the Act can apply only to the High Courts, because the 1971 Act,
ipso facto does not deal with the contempt jurisdiction of the Supreme Court except that the section
15 of the Act prescribe procedural mode for taking cognizance of criminal contempt of the
Supreme Court also, thus is clearly erroneous. It is submitted that Supreme Court committed gross
error in holding that section 15 is not a substantive provision conferring contempt jurisdiction. The
further reading of the judgment in Sukhdev Singh vs. Hon‟ble C.J. S. Teja Singh,55 by the Bench
in the present case restricting the extent of maximum punishment to the High Courts alone and not
covering the Supreme Court is also illogical. It is stated that in Sukhdev Singh‟s case, the Supreme
Court while recognising that the power of the High Court to institute proceedings for contempt
and punish the contemner when found necessary is a special jurisdiction which is inherent in all
courts of record, the Bench opined that the maximum punishment is now limited to 6 months
simple imprisonment or a fine of Rs. 2000/- or both because of the provisions of the Contempt of
Courts Act 1971.

It is submitted that both the High Court and the Supreme Court are declared as court of record
under the Constitution and thereby having the power to punish for their contempt respectively. It
is thus clear that if the Parliament can regulate the punishment to be awarded by the High Court in
the exercise of its contempt jurisdiction under the Constitution, there are no good reasons why the
power of the Supreme Court to punish for its contempt cannot be so regulated. More so when the
Parliament has the full legislative competence in the matter. The Supreme Court however realising

55
1954 SCR 454.

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the difficulty finally held that it did not express any final opinion on that question namely, extent
of punishment which the Supreme Court can impose in the exercise of its inherent power to punish
for contempt of itself and/or of the subordinate courts and held that as that issue, strictly speaking,
does not arise for our decision in this case and thereafter the question regarding the restriction or
limitation on the extent of punishment, which this Court may award while exercising its contempt
jurisdiction may be decided in a proper case, when so raised. Finally, the Supreme Court overruled
its holding in In re Vinay Chandra Mishra’s case by holding that the suspension of an Advocate
from practice and his removal from the State roll of advocates are both punishments specifically
provided for under the Advocates Act, 1961, for proven "professional misconduct' of an advocate.
While exercising its contempt jurisdiction under Article 129, the only cause or matter before this
Court is regarding commission of contempt of court. There is no cause of professional misconduct,
properly so called, pending before the Court. This Court, therefore, in exercise of its jurisdiction
under Article 129 cannot take over the jurisdiction of the disciplinary committee of the Bar Council
of the State or the Bar Council of India to punish an advocate by suspending his licence, which
punishment can only be imposed after a finding of 'professional misconduct' is recorded in the
manner prescribed under the Advocates Act and the Rules framed thereunder.

The Supreme Court further observed in regard to its jurisdiction in case of contempt:

“The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such
order as is necessary for doing complete justice "between the parties in any cause or matter pending
before it." The very nature of the power must lead the court to set limits for itself within which to
exercise those powers and ordinarily it cannot disregard a statutory provision covering a subject,
except perhaps to balance the equities between the conflicting claims of the litigating parties by
"ironing out the creases" in a cause or matter before it. Indeed this Court is not a court of restricted
jurisdiction of only dispute settling. It is well recognised and established that this court has always
been a law maker and its role travels beyond merely dispute settling. It is a "problem solver in the
nebulous areas."56 But the substantive statutory provisions dealing with the subject matter of a
given case cannot be altogether ignored by this court, while making an order under Article 142.
Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions
but at the same time these powers are not meant to be exercised when their exercise may come

56
K. Verraswami vs. Union of India (1991) 3 SCC 655.

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directly in conflict with what has been expressly provided for in statute dealing expressly with the
subject.”

It is submitted that if the powers under Article 142 cannot be controlled by any statutory provision,
then it is doubtful as to whether the Parliament can ever enact the law controlling the contempt
jurisdiction of the Supreme Court as it has so done in the case of High Courts. The Parliament has
the ample and necessary legislative competence to deal with the matter and enact a law in this
regard and it is therefore idle to contend that no statutory instrument can control the powers under
Article 142 of the Constitution. The said Article suggests that it is subject to law made by the
Parliament. Keeping all discussion in mind, and having regard to the Constitutional provision it
can be easily stated that the observation made by the Supreme Court is in clear defiance of our
constitutional scheme. The reluctance of the Supreme Court to be controlled by the law in this
behalf is also highly disturbing

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CONCLUSION
Anything that curtails or impairs the freedom of limits of the judicial proceedings. Any conduct
that tends to bring the authority and administration of Law into disrespect or disregard or to
interfere with or prejudice parties or their witnesses during litigation. Consisting of words spoken
or written which obstruct or tend to obstruct the administration of justice. Publishing words which
tend to bring the administration of Justice into contempt, to prejudice the fair trial of any cause or
matter which is the subject of Civil or Criminal proceeding or in any way to obstruct the cause of
Justice.

An apology shall not be rejected merely on the ground that it is qualified or conditional if the
accused makes it bonafidely.

Section 12 deals with the punishment for contempt of court. It provides as follows: Section 12(1)-
Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be
punished with simple imprisonment for a term which may extent to 6 months or a fine which may
extend upto rupees 2000 or both.

Provided that, the accused (of contempt) may be discharged or the punishment awarded may be
remitted on apology being made to the court's satisfaction.

However, in short contempt can be said to be an act or omission which interferes or tends to
interfere in the administration of justice. To constitute contempt, it’s not necessary that there has
been actual interference in the administration of justice. If the act complained of, tends to interfere
or attempts to interfere in the administration of justice, may be taken as contempt. The expression
'administration of justice' is to be used in a very wide sense. It is not confined to the judicial
function of the judge but includes all functions of judges- administrative, adjudicatory and any
other function necessary for the administration of justice.

The power to punish for contempt was draconian in nature without commensurate safeguards in
favour of the persons charged with the accusation of having committed contempt of court.

Such a power is not in consonance with the constitutional scheme of India. The basic principle in
a democracy is that the people are supreme. Once this concept of popular sovereignty is kept firmly

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in mind, it becomes obvious that the people of India are the masters and all authorities (including
the courts) are their servants.

In many countries, contempt jurisdiction is regarded as archaic and exercised sparingly. In the US,
courts no longer use contempt to silence comments on judges or legal matters. The First
Amendment to the US Constitution forbids imposition of contempt sanctions on a newspaper.

The concept of criminal contempt in India owing its origin to mid-British times was a corollary of
the adage that the king could do no wrong. But this drastic power is often used by the judges in an
arbitrary manner. (Note: You may read about Judicial Overreach).

In a free society criticism of the judiciary is inevitable.

Judges have vast powers and people will not remain silent about the exercise of such powers. Just
as decisions of other branches of government attract criticism, judicial decisions would also invite
the same.

The test to determine whether an act amounts to contempt of court or not is this: does it make the
functioning of the judges impossible or extremely difficult? If it does not, then it does not amount
to contempt of court even if it is harsh criticism.

The law of contempt should be employed only to enable the court to function, not to prevent
criticism.

It’s time for the legislature to take steps to amend the Contempt of Court Act and eschew definition
of criminal contempt.

Judiciary should balance two conflicting principles, ie freedom of expression, and fair and fearless
justice.

A mature and “broad-shouldered” approach to criticism can only inspire public confidence, not
denigrate the judiciary, for justice, as Lord Atkin said, is “no cloistered virtue”.

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BIBLIORAPHY

STATUTES

❖ Constitution of India, 1950.

❖ The Advocates Act, 1961.
❖ Contempt of Courts Act, 1971

BOOKS

❖ Desai, Jain and Madhava Menon, 1 Ratanlal&Dhirajlal’s Law of Crimes

❖ Durga Das Basu, Commentary on the Constitution of India 5628 (LexisNexis
Butterworths Wadhwa, Nagpur, Vol. 5, 8th Edition).
❖ Hari Singh Gour, 2 The Penal Law of India 1608 (Law Publishers India
Allahabad 2012).
❖ Iyer‘s Law of Contempt of Courts with Law on Contempt of Parliament, State
Assemblies & Public Servants (5th ed.,2012) Delhi Law House
❖ Justice Tek Chand, The Law of Contempt of Court and of Legislature 2
(University Book Agency, Allahabad 4th ed. 1997).
❖ V.N.Shukla, Revised by Mahenra P. Singh, Constitution of India, 530
(Eastern Book Company, Lucknow, 10th ed. 2001, Reprint 2006)

WEBSITES

❖ www.manupatra.com
❖ www.scconline.com
❖ www.indiankanoon.com
❖ www.livelaw.in

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