Uses and Abuses of

the Potent Power of

Contempt
Against the backdrop of some recent decisions of the courts which
could sound the death knell for the freedom of speech in the
country, this article argues that the courts should exercise contempt
powers judiciously and only in the gravest of circumstances. It
compares past pronouncements, which call for a greater judicial
restraint in exercise of contempt of powers, with the recent trend of
the judiciary  to arrogate to itself near despotic powers under the
guise  of “contempt”.

Rahul Donde Booker Prize winning author Arundhati

Why did I laugh?
Because I suddenly remembered the ten-
der concern with which the Supreme Court
Judges in Delhi (before vacating the legal
stay on further construction of the Sardar
Sarovar dam) had inquired whether tribal
children in the resettlement colonies would
have children's parks to play in...
Most tribal people – or let's say, most
small farmers – have as much use for
money as a Supreme Court Judge has for
a bag of fertiliser.
–  Arundhati Roy, in her essay published
in Frontline and in Outlook.
Roy. In another case, the chief minister
of Delhi, under the threat of punishment
for contempt was compelled to tender an
unconditional apology to the court as she
had made a public statement concerning
the unrealistic deadlines laid down by the
court for converting to compressed natural
gas (CNG) for commercial vehicles. Yet
again, the court in Surya Prakash vs Madu
Trehan (92 (2001) DLT 665 (FB)) deemed
it necessary to imprison the editor and
publisher of Wah India for publishing an
article evaluating judges under different
criteria. So has the consti­tutional guarantee

W
hile the above comments might
seem innocuous enough to the
casual reader, the apex court in
Narmada Bachao Andolan vs Union of
India & Ors ((1999) 8 SCC 308) found
them to be a “vicious stultification and
vulgar debunking… mis-information, bad
taste, misrepresentation, scandalisation of
the court and distortion of the facts”, and
consequently, contemplated contempt
proceedings against the world-renowned,
of free speech been vilified by recent
events? Or, is the judi­ciary justified in
crippling free speech for “maintaining the
dignity and status of the court”? Has the
potent power of contempt vested in the
courts been exercised as an instrument of
oppression, or, can it be justified keeping
in mind the necessity to ensure the overall
supremacy of the Rule of Law? To what
end do we sacrifice the constitutional
guarantees of democracy and free speech
at the altar of “judicial necessity”?

Economic and Political Weekly  September 29, 2007 3919

 This essay first analyses the genesis of
the contempt powers. It traces the origin
of contempt powers to institutional as op-
posed to legal sources and postulates that
contempt powers, as originally intended,
were purported to be used only when the
interests of justice were endangered. It
also evaluates whether the law governing
contempt prevalent in the country today
is in consonance with the ideals of con-
tempt powers.
It then considers some recent decisions
of the courts which have sounded a death
knell for the freedom of speech in the
country. While recognising the necessity
of the court to exercise contempt powers,
it contends that these powers must be
used judiciously, only in the gravest cir-
cumstances. It juxtaposes past pronounce-
ments which call for greater judicial restraint
in exercise of contempt powers with the
recent trend of the judiciary to arrogate
to itself near despotic powers under the
guise of “contempt”.
It finally endeavours to elaborate the
inherent fallacies in contempt jurisdiction
evident in the country today. It highlights
the avenues wherein contempt powers,
meant to strengthen the bastion of the
judiciary, often produce contrary and in
several cases, detrimental effects. It
analyses the recent amendments introduced
in the Contempt of Court Act, 1971 and
emphasises that while they are a step in
the right direction, unless judicial restraint
becomes the norm rather than the excep-
tion, the ends of justice shall never be
served.
Inherent Power of Contempt
It has been said that the law of contempt
is of ancient origin, yet of fundamental
contemporary importance. Yet, the very
phrase “contempt of court” sparks off
ambiguity. What exactly is contempt?
What amounts to contempt?
In most civilised nations which recog-
nise the supremacy of the Rule of Law,
the establishment of a court of law can
be traced to the inability of the sovereign
to administer justice. With the increasing
number and complexity of disputes, the
institution of the court took over the role
as a final arbiter of justice from the sove­
reign. The courts were, thus, considered
to be representatives of the king, and any
imputation against the court was consi­
dered an imputation against the sovereign,
and therefore, punishable. If the king could
not be abused or scandalised, so also the
3920
courts could not be abused or scandalised. governing contempt was the Contempt of
Just as the proceedings before the king Courts Act, 1926 which, due to its
could not be prejudiced or obstructed, inconsistency with the new legal structure
similarly, the proceedings before the court subsequent to the adoption of the Consti-
could not be prejudiced or obstructed. tution, came to be replaced by the Contempt
Thus, the genesis of the contempt power of Courts Act, 1952. The Contempt of
of the court grew not from statutory Court Act, 1971, however, repealed the
recognition, but rather from the institution 1952 Act, and at present, is the governing
of the court itself. As observed by the law for contempt in the country. The
privy council in Surendranath Banerjee’s power to punish contempt has also been
case (ILR 10 Cal 109): “…a high court recognised in other legislations as well.
derives its power to punish for contempt The Indian Penal Code, 1860, for instance,
from its own existence or creations. It is makes any contempt of the lawful autho­
not a power, conferred upon it by law.” rity of public servants a criminal offence.
It is clear from the above that contempt The Criminal Procedure Code, 1973 as
powers are inherent in the very institution well as the Civil Procedure Code, 1908
of the court itself. Oswald in his treatise have specific provisions governing the
Contempt of Court, defines contempt as procedure to be followed in cases of
“an offence more or less directed against criminal and civil contempt. Even the
the Sovereign himself, as the fountainhead Constitution of India, the fountainhead of
of law and justice or against his Palace, all laws in the country, has recognised
where justice was administered”. Lord Clyde, contempt as an exception to the freedom
too, nearly a century ago in Johnson vs of speech.
Grant (1923 SC at 790), illumined contempt The Contempt of Court Act, 1971 (the
as: “The offence consists in interfering “Act”) recognises two kinds of contempt:
with the administration of law; in impend- civil contempt which consists of a “wilful
ing and perverting the course of justice… disobedience to any judgment, decree,
It is not the dignity of the court which is direction, order, writ or other process of
offended – it is the fundamental supremacy a court or wilful breach of an undertaking
of the law which is challenged.” In recent given to a court” and criminal contempt
times, however, the true nature of contempt which has been defined as the publication
has been all but forgotten. Judges are of any matter or the doing of any act
increasingly seen to exercise the power which scandalises or lowers the authority
of contempt not because the interests of of any court, or which prejudices or inter­
justice are perverted, but to prevent feres with the due course of any judicial
criticism of the court and the judge. proceeding, or which interferes with, or
The genesis of the law of contempt in obstructs, the administration of justice in
India can be traced to English law. The any other manner. It is clear that the Act
right of the Indian high courts to punish endeavours to capture the essence of the
for contempt was originally recognised purpose behind conferring contempt juris­
by the judicial committee of the privy diction on courts. However, as both forms
council which observed that the offence of contempt have been couched in ex-
of contempt of court and the powers of tremely wide language, they often fall
the high courts to punish it were the same prey to the predilections of judges, defeat-
in such courts as in the Supreme Court ing the very purposes of the existence of
in England. The first Indian legislation such powers.
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Economic and Political Weekly  September 29, 2007
3968 Economic and Political Weekly  September 29, 2007
While civil contempt can be justified
keeping in mind that the court lacks the
enforcement mechanisms to give effect
to its judgments, criminal contempt as
defined under the Act poses several prob-
lems. Firstly, it is entirely dependent on
the opinions and predispositions of the
judges. Secondly, the Act does not reco­
gnise one of the basic principles of natu-
ral justice, viz, nemo debet esse judex in
propia causa, i e, no man shall be a judge
in his own cause. Thus, in contempt
proceedings, the court arrogates to itself
the powers of a judge, jury and execu-
tioner which often leads to perverse
outcomes. Thirdly, Section 14 of the Act
empowers the court to summarily punish
alleged acts of contempt. In several
cases, judges caught in the heat of the
moment have used this power to pros-
ecute individuals even though the
contemptuous act was of a trifling
nature. Till recently, even truth was not
allowed as a defence in an action for
contempt. However, with the passage of
the Amendment Act of 2006, truth has
been included as a defence but with the
caveat that it can be used as a defence
only if it is in “public interest”. What
constitutes public interest is again left to
the discretion of the judge.
In several jurisdictions across the world,
the power of the court to punish criminal
contempt is being systematically abolished.
In England, for instance, it was observed
in Mc Leod vs St Aubyn ((1899) AC 549)
that: “Committals for contempt by scan-
dalising the court itself have become
obsolete in this country. Courts are satisfied
to leave to public opinion, attacks or
comments derogatory or scandalous to
them”. America, too, has adopted the
“clear and present danger” standard, which
means that no action for contempt can be
initiated unless it can be shown that the
“substantive evil” complained of is
“extre­m ely high”. The recognition of
criminal contempt by the Act in its present
form has buttressed an indulgent and
intolerant judiciary. Unless a more stringent
definition of criminal contempt is adopted,
the very purpose for which powers of
contempt have been conferred shall be
negated.
The judiciary has come to play an in-
creasingly important role in recent times.
With the growth of the ubiquitous public
interest litigations, the judiciary has as-
sumed the role of a super-administrator,
often assuming the garb of both the leg-
islature and the executive. It is indeed
Economic and Political Weekly  September 29, 2007
unfortunate, therefore, that the spark of
judicial activism has been mirrored by
judicial despotism as well. The court has
shown an increasing intolerance to criti-
cism and has exercised its contempt
powers in a retrograde manner to stifle
all voices of dissent.
The authoritative stand adopted by the
judiciary is evinced from several judgments
of the apex court in recent times. In Re:
Arundhati Roy (AIR 2002 SC 1375), the
apex court was called upon to decide
whether criticism of a judgment of the
court amounted to contempt. The contem-
ner in that case had stated in an affidavit
to the court that “By entertaining a peti-
tion based on an FIR that even a local
police station does not see fit to act upon,
the Supreme Court is doing its own
reputation and credibility considerable
harm”. The court, in its wisdom held that
“… amounts to a destructive attack on
the reputation and the credibility of the
institution and it undermines the public
confidence in the judiciary as a whole
and by no stretch of imagination, can be
held to be a fair criticism of the court's
proceeding” and consequently, sentenced
one of India’s foremost litterateurs to
imprisonment. When this decision is
compared with the decision of the privy
council in R vs Commissioner of Police
of the Metropolis, Ex Parte Blackburn
(No 2) (1968) 2 Q B 150), decided more
than three decades earlier, the archaic
approach adopted by the judiciary towards
criticism becomes clear. In that case, an
article was published in the celebrated
daily Punch vigorously criticising the court
of appeal's strictures on lawyers, Parlia-
ment, the police, and its earlier decisions.
The court, while laying emphasis on the
freedom of speech and not the dignity of
the court, found that
… no criticism of a judgment, however
vigorous, can amount to contempt of court,
provided it keeps within the limits of
reasonable courtesy and good faith. The
criticism here complained of, however
rumbustious, however wide of the mark,
whether expressed in good taste or in bad
taste, seems to me to be well within those
limits.
Courts are part of our constitutional
democracy and must submit themselves
to fair criticism even if there is marginal
excess. Respect of the court must be
earned through quality of judgments and
fairness and impartiality of the approach
of the court and not through oppressive
actions of contempt.
In Madhu Trehan’s case above, a full
bench of the Delhi High Court was called
upon to decide whether an article which
evaluated judges under different heads
amounted to contempt. The court held
that “faith of the people in the judiciary
had been shaken” and prosecuted the
editor and publisher for contempt. The
court seemed to have acted in ignorance
of the earlier decision of the apex court
in Mulgaokars case ([1978] 3 SCR 162),
wherein a three-judge bench of the court
was called upon to consider whether ar-
ticles which appeared in The Indian Express
which inter alia stated that the Supreme
Court of India was “packed” by Indira
Gandhi “with pliant and submissive
judges” amounted to contempt. Chief
Justice Beg in that case noted: “The ju-
diciary cannot be immune from criticism…
It may be better in many cases for the
judiciary to adopt a magnanimously
charitable attitude even when utterly
uncharitable and unfair criticism of its
operations is made out of bona fide concern
for improvement.”
The cases highlighted above are but a
conspectus of heightened judicial intole­rance.
The judiciary must recognise the need to
accept public criticism of itself if only to
better preserve and protect the authority
of the process of administration of justice.
It must dig deep and ensure that its
contempt powers are exercised in the
rarest circumstances, for the protection
of the institution of justice and not for the
fulfilment of narrow pedantic purposes.
Exercise of Contempt Powers
The contempt law in India today suffers
from several fallacies. As seen earlier,
several provisions of the Contempt of
Court Act, 1971 are archaic in nature
recognising grounds for initiation of
contempt that other nations have long
since refused to acknowledge. The defini-
tion of criminal contempt is couched in
extremely wide language, facilitating the
imposition of greater restraints on free
press. Although the intention of the Act
subserves the interests of justice, the exer­
cise of contempt powers recognised by
the Act has been far from satisfactory.
Under the recent amendment to the
Contempt of Courts Act, 1971, truth has
been included as a defence in actions for
contempt. However, as seen above, this
defence is illusory at best. Truth cannot
be used as a defence unless it is shown
that the allegedly contemptuous act was
3921
both bona fide and in public interest.
While the amendment signifies a positive
step towards reworking the anachronistic
Act, the other amendments such as restrict-
ing the power to punish for contempt to
the high court and Supreme Court alone,
which were suggested by the Constitution
Review Committee, also deserve due
consideration.
Another disturbing trend is the pro­
pensity of the court to treat personal
attacks on their character as contempt. It
is often forgotten that the law of contempt
is not meant for protecting the judges,
but it is for the protection of the institu-
tion of the judiciary from scurrilous,
vilificatory and unfounded attacks against
the institution as opposed to the persons
that form a part of it. However, as seen
in the Karnataka sex scandal case, where
their lordships were so angry at their
exposure in the press that they slapped
contempt of court cases against a huge
number of publications in Karnataka, it
seems often the court fails to distinguish
between contempt of court and contempt
of a judge. Judicial misdemeanours
deserve the strictest censures. Amendments
must be introduced into the Act to ensure
that contempt powers are not used as
a shelter by a corrupt and indulgent
judiciary.
The contempt of court in this country,
unfortunately, is also subject to the twin
evils of favouritism and nepotism. Thus,
while the court did not hesitate to im-
prison a poor Muslim for requesting
clemency from a Muslim judge in the
name of religion for contempt, it refused
to take any action against the Shiv Sena
supremo Bal Thackeray in spite of the
fact that he had alleged corrupt elec-
toral practice by the judges. Yet again,
the court absolved former union law
minister P  Shiv Shankar (AIR 1988 SC
1208) of committing gross contempt when
he declared publicly that the Supreme
Court was meant for the “bride burners,
diamond smugglers, corrupt and mafia”.
His sweeping allegations against the
Supreme Court were considered to be
his personal feelings and also something
which the Congress leader had said in
the public interest. It is difficult to re­
concile these decisions of the Supreme
Court in light of the true spirit of con-
tempt powers. It can hardly be said that
the edifice of the court is scandalised by
the humble words of ordinary citizens,
but not by the highest echelons of
power.
3922
While the necessity of the powers of heat of the moment. The court must also
contempt inherent in courts of law can realise that as it encroaches further and
never be doubted, the widespread usage further into the lives of ordinary citizens,
of these powers in the country today is a it shall be subject to greater criticism. It
matter of concern. Judges would be best should recognise the need and importance
served to remember that contempt powers of free press in the information age of
should and must be exercised as a last today and take cognisance only of the
resort, only when the very foundations on most serious allegations made against it.
which the institution of the court stands Lastly, the powers of contempt must be
are challenged. The Act must also be exercised equitably. The court must pros-
amended to include an element of mens ecute actions of contempt on part of
rea as a necessary ingredient to constitute public figures just as gravely as ordinary
contempt. A positive intention to interfere individuals.
in the course of justice must be established The increasing usage of contempt
before a person can be punished for powers by the court is a warning beacon,
contempt. Another positive change would signifying the need for urgent intro­
be the removal of the offences of “scan- spection to find out if there is some
dalising the court, lowering the authority shortcoming somewhere, that people are
of courts and prejudicing the course of not satisfied with the justice which is
justice” as a ground of initiation of con- being imparted to them. Yet it should not
tempt proceedings. These words are vague be forgotten that frequent attacks on the
leading to arbitrariness dependent on the dignity of the courts would shake the
predilections of judges. The basic prin­ciple very foundation of the judiciary. Judges
of natural justice, nemo debet esse judex have to perform quite often, responsible
in propia causa must be applied to con- yet disagreeable duties, they must be
tempt proceedings as well. The judge given utmost protection. At the same time,
against whom the allegedly contumacious the court should not be over or hyper-
act has been committed must not sit in sensitive and should not exercise this
judgment over the alleged contemner. jurisdiction upon a mere question of
The Committee on Judicial Account- propriety or an exaggerated notion of
ability has, in fact, suggested that the dignity of the judges and must act
charges of contempt of court should be with dispassionate dignity and decorum.
tried by a bench comprising five judges, With great power comes great respon­
and not by the very same judge or sibility, and hence, the higher judicial
judges against whom the criticism or echelons must exercise the potent power
imputation in question is made. If how- of contempt with careful deliberation and
ever, the same judge sits in judgment, a serious circumspection to ensure that
cooling-off period should be provided, civil liberties are not unjustly trampled
giving the judge sufficient time to reflect upon. EPW
on the initiation of contempt proceedings,
thus ensuring that he does not act in the Email: rahuldonde@gmail.com
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Economic and Political Weekly  September 29, 2007