You are on page 1of 10


Contempt is an act of deliberate disobedience or disregard for the laws, regulations, or decorum of a
public authority, such as a court or legislative body. In legal terminology, contempt refers to any
willful disobedience to, or disregard of, a court order or any misconduct in the presence of a court;
action that interferes with a judge's ability to administer justice or that insults the dignity of the court.1
There are essentially two types of contempt:

a) Contempt in facie disrespect to the decorum of the court (being rude, disrespectful to the
judge or other attorneys or causing a disturbance in the courtroom, particularly after being
warned by the judge)

b) Contempt ex facie willful failure to obey an order of the court. Failure to make a court-ordered
payment, such as alimony, may result in a finding of contempt. The court's power to punish
for contempt includes fines and/or jail time. Since the judge has discretion to control the
courtroom, contempt citations are generally not appealable unless the amount of fine or jail
time is excessive.

"Justice is not a cloistered virtue, She must be allowed to suffer the scrutiny and respectful, even if
outspoken, comments of ordinary men."
-Helmore, Justive Bowen
In Austman and Oddson v Bjarnason, the Saskatchewan Court of Appeal adopted these words:
"A contempt is a disobedience to the Court, an opposing or despising the authority, justice, or dignity

"It commonly consists in a party's doing otherwise than he is enjoined to do, or not doing what he is
commanded or required by the process, order or decree of the Court.

"There were three kinds of contempt: (1) Scandalizing the Court itself; (2) Abusing parties who are
concerned in causes in the Court; (3) Prejudicing mankind against persons before the cause is heard....

1 Miller C.J., Contempt of Court, 2nd edition, Clarendon Press, Oxford, 1989, p. 34.
The Contempt of Courts Act, 1971 - Salient Features
Innocent publication and distribution of matter - not contempt (Sec.3)
Fair and accurate report of judicial proceeding - not contempt (Sec 4)
Fair criticism of judicial act - not contempt(Sec.5)
Complaint against presiding officers of subordinate courts when not contempt- in respect of
any statement made by him in good faith (Sec.6)
Publication of information relating to proceedings in chambers or in camera - not contempt
except in certain cases (Sec 7 )
Act not to imply enlargement of scope of contempt (Sec 9.)- Due regard to Constitutional
Power of High Court to punish contempt of subordinate courts - Every High Court shall have
and exercise the same jurisdiction, powers and authority, in accordance with the same
procedure and practice, in respect of contempt of courts subordinate to it as it has and exercises
in respect of contempt of itself :
Provided that no High Court shall take cognizance of a contempt alleged to have been
committed in respect of a court subordinate to it where such contempt is an offence punishable
under the Indian Penal Code.(45 of 1860) [Sec.10]


The people of India have a lot of faith in the judiciary which is primarily entrusted with the duty of
administering justice. The primary purpose of giving courts contempt jurisdiction is then to uphold
the majesty and dignity of the courts and their image in the minds of the public. If such confidence
and faith were allowed to be shaken then this would have serious repercussions on the justice-delivery
system of our country. The law of contempt provides the necessary tool to the courts to check
unwarranted attacks or efforts at undermining the Rule of Law.

The elements generally needed to establish contempt are:
1. the making of a valid court order,
2. knowledge of the order by respondent,
3. ability of the respondent to render compliance, and
4. Willful disobedience of the order.

According to Lord Hardwick, there is a three-fold classification of Contempt:
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.

Under Indian law, contempt of court has been divided into two categories:

I. Civil contempt
II. Criminal contempt

Civil contempt means - willful disobedience to any judgment, decree, direction, order, writ, or other
process of a Court, or willful breach of an undertaking given to a Court (section 2.b). A civil
contempt is a failure to obey the courts order issued for the benefit of the opposing party.

Criminal contempt means - The publication (whether by words, spoken or written, or by signs, or
by visible representations or otherwise) of any matter or the doing of any act whatsoever, which :

I. scandalizes or tends to scandalize or lowers or tends to lower the authority of, any court;
II. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding;
III. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of
justice in any other matter (section 2.c).

A criminal contempt is conduct that is directed against the dignity and authority of the court. There
is not much of a problem with regard to civil contempt, inasmuch as it is essentially a willful
disobedience of the order of a court. However, in the case of criminal contempt, there has always
been uncertainty with regard to scandalising the court. Very often the courts have not been able to
distinguish between the scandalising of a judge, and the scandalising of the court.

Broadly, these are the two categories of contempt. It has always been held that the Supreme Court
and the High Courts have inherent powers to punish anyone for contempt, for the purpose of
safeguarding the dignity of the court (articles 129 & 215 of the Constitution of India).

Under Indian law, the following are not contempt:

Innocent publication and distribution of any matter by words, spoken or written, or by signs or
visible representations, which may interfere, or tend to interfere with the administration of
justice (section 3);
Fair and accurate reporting of judicial proceedings (section 4);
Fair criticism of a judicial act or any proceedings (section 5); and,
A complaint against the presiding officers of subordinate courts, made in good faith (section 6).

The Limitation period for actions of contempt has been discussed under Section 20 of the Contempt
of Courts Act of 1971 and is a period of one year from the date on which the contempt is alleged to
have been committed.


Power of High Court to try offences committed or offenders found outside jurisdiction
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. : 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. [Sec.12]

An appeal shall lie as of right from any order or decision of High Court in the exercise of its
jurisdiction to punish for contempt-
A. where the order or decision is that of a single Judge, to a Bench of not less than two Judges of
the Court ;
B. where the order or decision is that of a Bench, to the Supreme Court : [Sec. 19]


An appeal under sub-section (1) shall be filed-
A. in the case of an appeal to a Bench of the High Court, within thirty days ;
B. in the case of an appeal to the Supreme Court, within sixty days, from the date of the order
appealed against. [Sec 19 (4) ]

case: Indira jaisingh vs supreme court of india
It is in the above backdrop that we proceed to venture into the exercise and lay down the
following norms/guidelines which henceforth would govern the exercise of designation of Senior
Advocates by the Supreme Court and all High Courts in the country. The norms/ guidelines, in
existence, shall be suitably modified so as to be in accord with the present.
I. All matters relating to designation of Senior Advocates in the Supreme Court of India and in
all the High Courts of the country shall be dealt with by a Permanent Committee to be known as
Committee for Designation of Senior Advocates;
II. The Permanent Committee will be headed by the Honble the Chief Justice of India and consist
of two senior-most Judges of the Supreme Court of India (or High Court(s), as may be); the
learned Attorney General for India (Advocate General of the State in case of a High Court) will
be a Member of the Permanent Committee. The above four Members of the Permanent
Committee will nominate another Member of the Bar to be the fifth Member of the Permanent
III. The said Committee shall have a permanent Secretariat the composition of which will be
decided by the Chief Justice of India or the Chief Justices of the High Courts, as may be, in
consultation with the other Members of the Permanent Committee;
IV. All applications including written proposals by the Honble Judges will be submitted to the
Secretariat. On receipt of such applications or proposals from Honble Judges, the Secretariat
will compile the relevant data and information with regard to the reputation, conduct, integrity
of the Advocate(s) concerned including his/her participation in pro-bono work; reported
judgments in which the concerned Advocate(s) had appeared; the number of such judgments for
the last five years. The source(s) from which information/data will be sought and collected by
the Secretariat will be as decided by the Permanent Committee;
V. The Secretariat will publish the proposal of designation of a particular Advocate in the official
website of the concerned Court inviting the suggestions/views of other stakeholders in the
proposed designation;
VI. After the data-base in terms of the above is compiled and all such information as may be
specifically directed by the Permanent Committee to be obtained in respect of any
particular candidate is collected, the Secretariat shall put up the case before the Permanent
Committee for scrutiny;
VII. The Permanent Committee will examine each case in the light of the data provided by the
Secretariat of the Permanent Committee; interview the concerned Advocate; and make its overall
assessment on the basis of a point-based format indicated below:

S.NO. Matter Points
1. Number of years of 20 points practice of the Applicant Advocate from the date of enrolment.
[10 points for 10-20 years of practice; 20 points for practice beyond 20 years]
2. Judgments (Reported and 40 points unreported) which indicate the legal formulations
advanced by the concerned Advocate in the course of the proceedings of the case; pro bono work
done by the concerned Advocate;
domain Expertise of the Applicant Advocate in various branches of law, such as Constitutional
law, Inter-State Water Disputes, Criminal law, Arbitration law, Corporate law, Family law,
Human Rights, Public Interest Litigation, International law, law relating to women, etc.
3. Publications by the 15 points Applicant Advocate
4. Test of Personality & 25 points Suitability on the basis of interview/interaction VIII. All the
names that are listed before the Permanent Committee/cleared by the Permanent Committee will
go to the Full Court.
IX. Voting by secret ballot will not normally be resorted to by the Full Court except when
unavoidable. In the event of resort to secret ballot decisions will be carried by a majority of the
Judges who have chosen to exercise their preference/choice.
X All cases that have not been favourably considered by the Full Court may be
reviewed/reconsidered after expiry of a period of two years following the manner indicated
above as if the proposal is being considered afresh;
XI. In the event a Senior Advocate is guilty of conduct which according to the Full Court
disentitles the Senior Advocate concerned to continue to be worthy of the designation the Full Court
may review its decision to designate the concerned person and recall the same;

Supreme Court Bar Association v. Union of India and Another.

In Re: Vinay Chandra Mishra, this Court found the Contemner, an advocate, 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
Aggrieved by the direction that the contemner shall stand suspended from practising as an advocate
for a period of three years issued by the Supreme Court by invoking powers under Articles 129 and
142 of the Indian Constitution, the Supreme Court Bar Association, through its Honorary Secretary,
filed a petition under Article 32 of the Constitution of India seeking relief by way of issuing an

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 In
Re: Vinay Chandra Mishra.
Issue For Consideration
The petition was placed before a Constitutional Bench for passing the appropriate direction, order or
declaration. The bench identified a single question and had to decide upon was whether the Supreme
Court of India 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.

The petitioner's assailed the correctness of the findings in In Re:

Vinay Mishra submitted that:
# although the powers conferred on this Court by Article 142, though very wide in their aptitude, can
be exercised only to "do complete justice in any case or cause pending before it "and since the issue
of 'professional misconduct' is not the subject matter of "any cause" pending before this court while
dealing with a case of contempt of court, it could not make any order either under Article 142 or 129
to suspend the license of an advocate contemner, for which punishment, statutory provisions
otherwise exist.

# the Supreme Court can neither create a "jurisdiction" nor create a "punishment" not otherwise
permitted by law and that since the power to punish an advocate (for "professional misconduct") by
suspending his license vests exclusively in a statutory body constituted under the Advocates Act, this
Court cannot assume that jurisdiction under Article 142 or 129 or even under Section 38 of the
Advocates Act, 1961.The bench came to the conclusion that the Supreme Court under Article 129
and the High Court under Article 215 of the Indian Constitution declaring them court of records has
the power to punish the for contempt of itself. The Court observed that Parliament is competent to
make law in relation to Contempt of Court. After analyzing Article 246 and entry 77 of List I of the
VIIth Schedule and entry 14 of List III of the said schedule it is evident that the legislature can make
a law regarding the same, but cannot take away contempt jurisdiction from the Courts which flows

from the Courts being deemed as Courts of record which embodies the power to punish for the
contempt of itself.
With reference to Article 142 of the Constitution of India the Court observed that when this court
takes cognizance of a matter of contempt of Court by an advocate, there is no case, cause or matter
before it regarding his professional misconduct even though in a given case, the contempt committed
by an advocate may also amount to an abuse of the privilege granted to an advocate by virtue of the
license to practice law. No issue relating to his suspension from practice is the subject matter of the

The Court opined that power to punish in matters of contempt of Court, though quite wide, is yet
limited and cannot be expanded to include the power to determine whether the advocate is also guilty
of professional misconduct in a summary manner giving a go by to the procedure prescribed under
the Advocates Act, 1961.

The power to do complete justice, in a way is a corrective power which gives preference to equity
over law but it cannot be used to deprive a professional lawyer of the due process of law, contained
in the Advocates Act, 1961, while dealing with a case of contempt of Court.

From a reading of Article 142 it is clear the statutory provisions cannot be ignored or taken away or
assumed by the Supreme Court. The Advocates Act, 1961, empowers the Bar Council to take action
against the advocate for professional misconduct. The Bar Council is empowered under Section 35
of the Advocates Act, 1961 to punish advocates for professional misconduct. The act contains a
detailed and complete mechanism for suspending or revoking the license of an advocate. A
disciplinary committee hears the case of the advocate concerned and then order any of the
punishments listed in Section 35(3) (a-d). If the advocate is guilty of contempt of Court as well as
professional misconduct the Court must punish him for the contempt, whereas refer the professional
misconduct to the Bar. The Bar will then initiate proceedings against, this provides the advocate with
right to be heard and appropriate action is taken by the disciplinary committee. After such proceedings
if the advocate is aggrieved he may approach the Supreme Court. Section 38 of the Advocates Act,
1961 provides for an appeal to the Supreme Court. This Section confers upon the Court appellate
jurisdiction. If once the matter has been reported to the Bar and it does not take any action, the Court
may take up the matter. This Section can in no way be construed to give original jurisdiction to the

The Court opined that the Supreme Court makes the statutory bodies and other organs of the State
perform their duties in accordance with law, its role is unexceptionable but it is not permissible for
the Supreme Court to take over the role of the bodies and other organs of the State and perform their
There was an inherent fallacy in the case of Vinay Mishra, it was said once the matter is before the
court it can pass any order or direction. But the matter is that of contempt of Court not of professional
misconduct. The Court has jurisdiction on the matter of contempt but professional misconduct vests
with the Bar. As the Bar can suspend an advocate only after giving him an opportunity to represent
himself which is the requirement of due process of law, after the case of Maneka Gandhi v. Union of
India. The Court in Vinay's case vested with itself with the jurisdiction that it never had.

The Supreme Court is vested with the right to punish those guilty of contempt of Court under Article
129 read with Article 142 of the Constitution of India. The power to punish contemners is also vested
with the High Courts under Article 215 of the Constitution and the Contempt of Courts Act, 1971
also governs the punishments given by the High Court. This act in no way controls the jurisdiction of
the Apex Court. The Court in In Re: Vinay Mishra misconstrued Article 129 read with 142 and robbed
the Bar to of all powers to try and punish those for professional misconduct. It even assumed
jurisdiction when Section 38 of the Advocates Act, 1961 explicitly provides only appellate
jurisdiction to the Apex Court. The Court punished Shri Mishra by suspending him thus the petition
arose in the 1998 case, Supreme Court Bar Association v. Union of India.

The Court overruled the Mishra case and recognized the Bar Council's power to try and punish all
those guilty of professional misconduct. It is well settled that contempt proceedings are brought about
to protect the majesty of law and uphold the judiciary's position, the central pillar in Indian
democracy, among the public and give them reason to keep their faith in the administration of justice.
Contempt proceedings are not brought about to restore the pride of the Judge in who's Court or against
whose order their was contempt.

In the Mishra case the Court instead of protecting the image of the Judiciary, the upholder of the law,
knowingly or un-knowingly, tried to restore the pride of the Judge by suspending the advocate Mishra
who might have been influenced by his high position in the Bar, and felt that appropriate punishment
might not be meted out to him.

In the Supreme Court Bar Association case the court took a very objective view and taking the help
of law and construing it in the right way came to the conclusion that the power to punish for any
professional misconduct rests with the Bar, whereas to punish for contempt only it has jurisdiction
for itself and subordinate courts. No statute can take contempt jurisdiction away from the Supreme
as well as the High Court.

10 | P a g e