FACULTY OF LAW, JAMIA MILLIA

ISLAMIA

Contempt of Court
Report
Clinical Course - III
Submitted by – Mohommad Izaan Rizvi

Student ID- 20167321

B.A. LL.B. (IX Semester)(Regular)

Submitted to: Office of Dean, Faculty of Law, Jamia Millia Islamia,

New Delhi

21/11/2020

1
INTRODUCTION
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

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

2
scandalized. Just as the proceedings before the King could not be prejudiced, or obstructed:
similarly I 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:

2
(1765) Wilm. 243.

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 “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, 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”.

He was followed by Cockburn, C.J. in these words:

“In the case of the Superior Courts at Westminster, which represent the one Supreme Court
of the land, this power was coeval with their original constitution, and has always been
exercised by them. These Courts were originally carved out of the one Supreme Court, and
are all divisions of the aula Regis, where it is said the King in person dispensed justice,
and their power of committing for contempt was an amanation of the royal authority, for
any contempt of the Court, would be contempt of the sovereign.”

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

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DEFINING CONTEMPT
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
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

4
Tekchand J., The Law of Contempt of Court and of Legislature (4th ed., 1997), The University Book Agency,
Allahabad
5
Cited in Goodhart, Newspaper and Contempt of Court 48 Harvard Law Review 885 at P.886

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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.

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:

6
Ahmed Ali vs. Superintendent, District Jail, Tezpur, 1987 Cr.L.J. 1845 (Gau.). 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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 “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”.

DEFINITION OF ‘CONTEMPT OF COURT’ UNDER THE CONTEMPT

OF COURTS ACT, 1971

The Contempt of Courts Act, 1971 defines the contempt in the following two categories:

(i) Civil contempt

(ii) Criminal contempt

Civil Contempt “Civil Contempt” means willful disobedience to any judgment, decree, direction,
order, writ or other process of Court or willful breach of an undertaking given to a Court. 7

Criminal Contempt “Criminal Contempt” means the publication (whether by words, 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) scandalises or tends to scandalise, 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
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration
of justice in any other manner; 8

7
Section 2 (b) of the Contempt of Courts Act 1971
8
Section 2 (c) of the Contempt of Courts Act 1971

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DEFINITION AND ANALYSIS OF THE TERM ‘CIVIL CONTEMPT’
GIVEN UNDER THE CONTEMPT OF COURTS ACT, 1971

Section 2 (b) of the Act defines the term „civil contempt‟. According to it „civil contempt‟ means
wilful disobedience to any judgment, decree, direction, order, writ or other process of
Court or wilful breach of an undertaking given to a Court. Thus the term „civil contempt‟ can be
subcategorized in the following two ways;

a) wilful disobedience to any judgment, decree, direction, order, writ or other process of
Court;
b) wilful breach of an undertaking given to a Court.

Thus, the word „wilful‟ precedes both the sub-categories. Any disobedience or the breach must be
done wilfully to fall the said action of contempt in „civil contempt‟. The word “wilful‟ means
governed by will and exclude casual, accidental, bona fide or unintentional acts or genuine inability
to comply with the terms of the order. It denotes deliberate and intentional act or omission which
must be understood in contrast with the act done accidently, without purpose and unintentional.
According to Webster‟s III New Internation Dictionary, „wilful‟ means governed by will without
yielding to reason or without regard to reason, obstinately or perversely selfwilled, done
deliberately. 9 The meaning to the word „wilful‟ depends upon the context in which it is used in
the Act having regard to the scheme and nature of the legislation.

Mere disobedience of an order, judgement or decree of a court may not be sufficient to amount to
a civil contempt; the element of willingness is an indispensible requirement to bring home the
charge within the Act.45 Similarly, the breach of undertaking given to court is not civil contempt
unless it is done wilfully. An undertaking given to the other party to the judicial proceeding is not
an undertaking given to court and if the same is breached by the party who has given such
undertaking, then this does not amount to a case of civil contempt.

Any act or omission to fall within the meaning of civil contempt46 under the Act depends upon
various factors such as, whether the act or the omission is wilful or not, whether the order is passed
by a court of competent jurisdiction, whether the order is passed with the consent of the parties to

9
Sebastian M. Hongray vs. Union of India, AIR 1984 SC 1026.

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the judicial proceeding, whether the order is conditional or is based upon some contingency,
whether the order is appealable and no appeal is preferred within the limitation or where appeal is
preferred but the court has not granted stay on the execution of the order preferred etc. Certain
important issues relating to interpretation of the term civil contempt which have been dealt in the
past by the courts are discussed here as under.

DEFINITION AND ANALYSIS OF THE TERM ‘CRIMINAL CONTEMPT’

GIVEN UNDER THE CONTEMPT OF COURT ACT, 1971

Section 2 (c) of the Act defines the term „criminal contempt‟. According to it „criminal contempt‟
means as the publication (whether by words, 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) scandalises or tends to scandalise, 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
(iii)interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner;

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

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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. 10

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.11

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).12

HISTORY OF CONTEMPT OF COURT IN INDIA

The roots of contempt law in India can be traced back to the pre-independence period. The East
India Company took over the territories in India, which required the King of England to issue the

10
State vs. V.N. Dikshit 1973 AWR 80: 1973 AII L J 180.
11
Halsbury Law of England (4thed.) Vol. 9, Para 7.
12
Rachapudi Subba Rao vs. Advocate General, A.P., (1981) 2 SCC 577 at P. 583

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Charter of 1726 that provided for the establishment of a corporation in each Presidency Town.
This Charter is considered to be an important landmark in the history of legal system in India as it
introduced the English laws in the country. Mayor courts were constituted in each of the Presidency
Towns and were made the Courts of Record, and authorised to decide all civil cases within the
respective town and subordinate areas.13

Subsequently, in the year 1774, the Mayor’s Court at Calcutta was replaced by the Supreme Court
of Judicature at Fort William, Calcutta under the Regulating Act 1773. The Mayor’s
Courts at Madras and Bombay were superseded by the Recorder’s Courts, which were also later
abolished and replaced by the Supreme Courts under the Government of India Act, 1800. While
the Supreme Court at Madras came into existence in the year 1801 by the Charter of 1800, the
Supreme Court at Bombay came into existence in 1824 by the Charter of 1823. The Recorder’s
Courts and Supreme Courts had the same powers in the matters of punishing for contempt as was
exercised by the superior courts in England.2 The Supreme Courts were in turn succeeded by the
High Courts under the Indian High Courts Act of 1861. The three High Courts of Calcutta, Bombay
and Madras had the inherent power to punish for contempt. 16 In 1866, the High Court of Allahabad
was established under the Indian High Courts Act, 1861 and was constituted as a court of record
with the power to punish for contempt.

In 1867, Peacock C.J. laid down the rule regarding the power to punish for contempt quite broadly
In Re: Abdool and Mahtab, (supra) in the following words:

“there can be no doubt that every court of record has the power of summarily punishing
for contempt.”

In Legal Remembrancer v. Matilal Ghose & Ors.,14, the Court observed that the power to punish
for contempt was “arbitrary, unlimited and uncontrolled”, and therefore should be “exercised with
the greatest caution: that this power merits this description will be realised when it is understood
that there is no limit to the imprisonment that may be inflicted or the fine that may be imposed

13
See M P Jain, “Outlines of Indian Legal and Constitutional History” (Lexis Nexis; Sixth edition (2010). 16
Ibid; See also In Re: Abdool and Mehtab, (1867) 8 W.R. (Cr.) 32.
14
(1914) I.L.R. 41 Cal. 173

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save the Court’s unfettered discretion, and that the subject is protected by no right of general
appeal.”

The Division Bench of the Calcutta High Court considered this jurisdiction of the High Court in
1879 in Martin v. Lawrence15 and observed:

“The jurisdiction of the Court, under which this process (is) issued is a jurisdiction that it has
inherited from the old Supreme Court, and was conferred upon that Court by the Charters of
the Crown, which invested it with all the process and authority of the then Court of King's
Bench and of the High Court of Chancery in Great Britain.”

Prior to the coming into force of the Contempt of Courts Act, 1926 there was a conflict of opinion
among the different High Courts as to their power to punish for contempt of subordinate courts.
Madras and Bombay High Courts expressed the view that the High Courts have jurisdiction to deal
with contempt of the Mofussil Courts. But the Calcutta High Court expressed the view that the
High Courts in India did not possess identical power in matters of contempt of their subordinate
courts as possessed by the Court of King’s Bench in England.

In Sukhdev Singh Sodhi v. The Chief Justice S. Teja Singh and Judges of The Pepsu High Court 16,
the aspect of contempt of court was broadly discussed –

“It is true the same learned Judges sitting in the Privy Council in 1883 traced the origin of
the power in the case of the Calcutta, Bombay and Madras High Courts to the common law
of England,….. but it is evident from other decisions of the Judicial Committee that the
jurisdiction is broader based than that. But however that may be, Sir Barnes Peacock made
it clear that the words “any other law” in section 5 of the Criminal Procedure Code do not
cover contempt of a kind punishable summarily by the three Chartered High
Courts….Apparently, because of this the Privy Council held in 1853 that the Recorder's
Court at Sierre Leone also had jurisdiction to punish for contempt, not because that court
had inherited the jurisdiction of the English courts but because it was a court of record….
The High Court of Allahabad was established in 1866 under the High Courts

15
(1879) ILR 4 Cal 655.
16
AIR 1954 SC 186.

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 Act of 1861 and was thus constituted a court of record…. The Lahore High Court was
established by Letter Patent in 1919 and was duly constituted a court of record.”

The Contempt of Court Act, 1926 (hereinafter referred to as the “Act 1926”) was the first statute
in India with relation to law of contempt. Section 2 of this Act recognized the existing jurisdiction
in all the High Courts to punish for contempt of themselves and conferred on the High Courts the
power to punish for contempt of courts subordinate to it. The Act also specified the upper limit of
the punishment that can be imposed for the said contempts. 17

In 1927, a Five Judge Bench of the Lahore High Court reexamined the aforesaid position in the
matter of Muslim Outlook, Lahore18 and affirmed its earlier decision in the case of The Crown v.
Sayyad Habib19 observing that the contempt jurisdiction was inherent in every High Court and not
only in the three Chartered High Courts. The Act 1926 was later amended in 1937 to clarify that
the limits of punishment provided in the Act related not only to contempt of subordinate courts but
of all courts.

It is to be noted that while the Act 1926 was applicable to the whole of British India, the princely
states of Hyderabad, Madhya Bharat, Mysore, Rajasthan, Travancore-Cochin, Saurashtra and
Pepsu had their own corresponding state enactments on contempt.

In 1948, the Pepsu High Court was established by an Ordinance, section 33 of which provided that
it would be a court of record and would have power to punish for contempt.

The Act of 1926 along with the aforementioned state enactments were repealed and replaced by
the Contempt of Courts Act, 1952 (hereinafter referred to as the “Act 1952”), which made
significant departures from the earlier Act. Firstly, the expression “High Court” was defined to
include the Courts of Judicial Commissioner, which were not so included in the purview of the Act
1926; and secondly, the High Courts, which now included the Courts of Judicial Commissioner,
were conferred jurisdiction to inquire into and try any contempt of itself or that of any court
subordinate to it. This was irrespective of whether the contempt was alleged to have been

17
Section 3, Act 1926.
18
A.I.R. 1927 Lah. 610.
19
(1925) I.L.R. 6 Lah. 528.

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committed within or outside the local limits of its jurisdiction, and irrespective of whether the
alleged contemnor was within or outside such limits.

Under the aforesaid legislation the Chief Courts were also vested with the power to try and punish
for any contempt of itself. The legislation itself prescribed the nature, type, as well as the extent of
punishment that could be imposed by the High Courts and the Chief Courts.

On April 1, 1960, a Bill was introduced in the Lok Sabha to consolidate and amend the law relating
to contempt of court. Observing the law on the subject to be “uncertain, undefined and
unsatisfactory”, and in the light of the constitutional changes in the country, the Government, to
scrutinise the law on the subject and to further study the said bill, appointed a special committee
in 1961, under the Chairmanship of Shri H.N. Sanyal, the then Additional Solicitor General of
India. The Sanyal Committee examined the law relating to contempt of courts in general, and the
law relating to the procedure for contempt proceedings including the punishment thereof in
particular. The Committee submitted its report in 1963, which inter alia defined and limited the
powers of certain courts in punishing for contempt of courts and provided to regulate the procedure
in relation thereto. It is to be noted that the Committee in its report made specific mention of
criminal contempt, recommending specifically the “procedure (to be followed) in cases of criminal
contempt”. The recommendations of the Committee were generally accepted by the Government
after having wide consultation with the State Governments, Union Territory Administrations, and
all other stakeholders.20

The aforesaid Bill was also examined by the Joint Select Committee of the Houses of Parliament,
which also suggested few changes in the said Bill; one of which was in respect of the period of
limitation for initiating contempt proceedings.

After the aforesaid deliberations the Contempt of Courts Act, 1971 (70 of 1971) came to be enacted
(hereinafter referred to as the “Act 1971”), which repealed and replaced the Act 1952.
The said Act 1971 inter alia categorises contempt under two heads i.e. ‘civil contempt’ and
‘criminal contempt’, providing thereunder specific definitions for both (Section 2). It also carved
out a few exceptions, prescribing guidelines for reporting and commenting on judicial proceedings

20
Supra note 2; See also Supreme Court Bar Association v. Union of India & Anr., AIR 1998 SC 1895.

14
that would not attract the provisions of the Act. For example, “fair and accurate report of a judicial
proceeding” (Section 4) and “fair comment on the merits of any case which has been heard and
finally decided” (Section 5) would not give rise to the proceedings under the Act. The Act also
categorically provided that an alleged act would not be punishable thereunder unless it
“substantially interferes or tends substantially to interfere with the due course of justice” (Section
13). The Act also provides for the period of limitation for initiating the contempt proceedings
(section 20).

the Acts of 1952 and 1971, the power of the court to impose punishment for contempt of the court
ceased to be uncontrolled or unlimited.

Reference needs to be made here to the 200th Report of the Law Commission of India on “Trial
by Media: Free Speech Vs. Fair Trial Under Criminal Procedure Code, 1973”, (2006), which made
certain suggestions for amending the Act 1971. While none of these suggestions pertained to
amending the definition of ‘criminal It can be observed from a scrutiny that since the enactment
of the Act 1926 and subsequently with that of contempt’, particularly ‘scandalising the court’; the
Report, in the draft bill annexed thereto, proposed an amendment to add an explanation to section
2(c), inclusively defining the term ‘publication’ so as to include “….publication in print, radio
broadcast, electronic media, cable television network, world wide web.”. However, these
recommendations for amendment of Contempt of Court Act were not accepted in view of various
judgments of the Supreme Court.

FREE SPEECH, JUDICIARY AND THE LAW OF CONTEMPT OF

COURT

Judiciary which is the sentinel on the qui vive of the ftindamental 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
expression does not permit any one to commit contempt of court. Free and fair criticism of the

15
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. 21

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 others22

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

21
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.
22
AIR 2005 SC2473

16
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. 23

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

23
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.

17
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. 24

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. '

24
Supra.

18
 "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 Das 25 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’, 29 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".26 "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

25
Mrityunjoy Das and another v. Sayed Hasibur- Rahman and Others, AIR 2001 SC 1293. 29
Shri C.K. Daphtaryand Others v. Shri O.P. Gupta and Others, AIR 1971 SC 1132
26
Publications Pvt. Ltd. and another v. The State of Maharashtra, AIR 1971 SC2211

19
to the public. In case of 'libel', one has to bring a suit and prove the charge, whereas in the case of
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.

20
This reality is instanced by the Supreme Court: Litigants losing in the court would be the first to
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. 27

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

27
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.

21
contemnor was at the most guilty of a technical contempt not calling for a penal action. 28The
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 Judgment 29 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 the object,
purpose and nature of the order and the consequences thereof Taking advantage of the situation

28
Abdul Karim v. M.P. Prakasli, AIR 1976, SC 859.
29
Debabrata Baiidophadhay v. State, AIR 1969, SC 189.

22
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,30 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 provisions 35
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.

30
D.N . Singh V. A.K. Sen, (1971) (1)1 LR Delhi, 14 35
Section 3(1) of llie contempt of Coiiits Act, 1971.

23
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.31

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. 32

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
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.

31
Supra.
32
Ibid.

24
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. 33

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 dimsh 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

33
S.P. Sathe. 'Freedom of Speech and Contempt of Court', The Lawyers, Nov. 1988, p. 17.

25
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 34 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. 35

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. 36

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;

34
(1970)2 SCC 325.
35
S.P. Sathe. 'Freedom of Speech and Contempt of Court', The Lawyers, Nov. 1988, p. 17.
36
G.C. V. Subba Rao, 'Contempt of Court Act 1971", 1974, p. 232.

26
 (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;
(vi) the alleged harm done to the courts by his utterances was not apparent.

This decision, in our submission, was wrong. No attempt was made in the judgment to show the
reasonable of such a draconian scope of the contempt power. 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 Abdullah37, 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

37
AIR 1984 SC 615.

27
 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."

This passage clearly makes a departure from the view held in Namboodiripad. In P.N. Duda v. P.
Shiv Shankar,38 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."

38
AI R 1988 SC 1208

28
CONTEMPT OF COURT IN LIGHT OF IN RE ARUNDHATI
ROY CASE
An organisation viz. 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
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.'

29
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
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

30
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 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:

31
'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
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.

32
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
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

33
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.

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

34
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.

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.

35
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
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.

36
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
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.

37
CRITICAL ANALYSIS OF THE SUPREME COURT BAR
ASSOCIATION VS. UNION OF INDIA CASE
The question which arosed in this petition 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, 39 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:
(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

39
In re, Vinay Chandra Mishra 1995 (2) SCC 584.

38
 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."40

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
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

40
Supra.

39
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.44 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
case41 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
punishment, which the court may award while exercising its contempt jurisdiction was left to be
decided in a proper case, when so raised.

41
AIR 1954 SC 186.

40
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 15 47 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 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

47
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)

41
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.
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,48 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
the difficulty finally held that it did not express any final opinion on that question namely, extent

42
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

48
1954 SCR 454.
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

43
 solver in the nebulous areas."42 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 provisions56 but at
the same time these powers are not meant to be exercised when their exercise
may come 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.

42
K. Verraswami vs. Union of India (1991) 3 SCC 655.

44
DEFENCES IN CONTEMPT CASES
Sections 3-8 of Contempt of Courts Act, 1971 deal with defences. Sections 3 – 7 recognized
specific defences whereas Sections 8 recognized general defences stating specifically that other
defences not affected. Among all the defences the most contentious one has been truth – truth as
defence.

A. 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
circumstances43. 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 Madras44 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

43
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.
44
AIR 1952 149

45
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
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 Sibal45, 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.

45
(2010) 7 SCC 502

46
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. Gupta46 , 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.”‖

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 law 47. … 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.

46
(1971) 1 SCC 626, at pp. 644, 647
47
Report of the National Commission to Review the Working of the Constitution, published by Universal Law
Publishing Co. Pvt. Ltd. At page no.139

47
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
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

48
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
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.

B. 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

49
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
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

50
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
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

51
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.

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

52
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
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

53
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
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

54
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
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

55
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. 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).

56
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).

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

57
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. (Emphasis added)

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
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.

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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.

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.

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CONCLUSION
The machinery of administration of justice cannot effectively function unless its respect and
dignity is fostered and maintained. Any interference in it shakes the very pillars of the
administration of justice and the confidence of the people in courts, which is of prime importance
to the litigants in their struggle for the protection of their rights and liberties. The concept of
contempt of courts is allied with the administration of the law by the state to enforce discipline and
respect towards the decisions of the court. On the other side it leads to people having faith in the
authority of the courts and also a depiction of the sovereignty of the state on its subjects. Thus it
can be safely concluded that judicial power to punish noncompliance with court order under the
doctrine of contempt of court is inherently and incontrovertibly necessary for the working of
system of administration of justice.

The concept of contempt of court as we know in modem times has its origin in British common
law that was prevalent in Eighth Century, further mentioned in the 10'" century of the English law,
where it has been described as power of the court to prevent or punish a conduct which tended to
obstruct prejudice or abused the administration of justice either in relation to a particular case or
generally. The unique feature of the trial of contempt of court under English law that was summary
in nature and mostly dealt with following instances. Firstly examples of person being publishing
or speaking disrespectfully of the court or its process. Secondly scandalizing the court by a publish
matter. Thirdly persons who publish matters circulated to prejudice the fair trial of pending case.

The study concludes that firstly by not defining the concept of contempt of court, how one can
divide a term into two kinds. That's what it appears ft-om the Act itself By lying down that
contempt of court can be two kinds, the legislature has without any logic tried to differentiate and
provide a different process for a single offence. The jurists and the judiciary have never taken this
question why there is division which seems to be uncalled for. The contempt of court means is
contempt of court. Then why divide in civil and criminal contempt. Furthennore the deciding line
between the civil and criminal contempt is almost imperceptible. Sometimes it is too broad,
sometimes it is too thin. It is hard to understand why this technicality has been imposed on a state
forward offence of contempt of court. Furthennore it hits at the basic object of the legislation itself,

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which is not to vindicate the dignity of the court or the person of the judge, but to prevent undue
interference with the administration of justice.

In the context of criminal contempt if the individual writes in public interest any article and
publishes it which is a critical analysis of a courts judgment can he be punished? Ethically, he must
not be as he has no personal interest involved there. But instances show that individuals have been
found guilty of criminal contempt of court in spite of having no intention to do so and also having
public duty which every individual is expected to perfom\ under Indian Constitution. In country
like India most of the contempt cases fall within the category of civil contempt, where most of the
individual due to the ignorance of law or mistaken belief without even any intent. Sometimes do
not observe the direction of the court and their ignorance however innocent it may be is punished
by law taking into consideration the peculiar circumstances of a country like India the judges
instead of taking a humanistic view apply the law in a very harsh and strict manner. There by
sometimes creating more problems than solutions.

The study points out that the concept of contempt of court is not meant to protect the judges
personally but for safeguarding the honour of the seat of justice, which must never be allowed to
ridiculed or interfered with so as to make the common man feel that the halo of divinity and justice
is kept pure and he can look to the person enthroned in that seat of justice as a divine, impartial,
unruffled and emblem of justice. In using the powers given to him under the Contempt of Courts
Act, 1971, the judges must not work under fears apprehension, preoccupation, personal bias etc. It
has been seen in the present study that sometimes the judges start a contempt proceedings with a
preoccupied mind that shall never be good in the interest of justice. As the procedure in contempt
proceedings is summary in nature, it must always be used in certainty. An extraordinary power
such as contempt of court must be sparingly exercised and it shall always be in public interest.

The study further concludes that the contempt proceedings must not have any adverse effect on the
evidences that might come forward in a particular case or in some other case. Rigidity may lead to
less persons coming out for evidences or not coming with the truth. In both these circumstances
the cause of justice shall be the sufferer. A person getting afraid of contempt proceeding against
them is best of opinion the main cause of the reluctance to come forward for evidences for
particular trial.

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It is disheartening to note that despite its doctrinal activism on human rights, the Supreme Court
of India is way behind the times in balancing freedom of speech and contempt of court. Specifically
in matters of blatant violations of human rights and matters of public interest, the entire
proceedings show how embarrassed the court was in dealing with these matters particularly when
the person accused of contempt of court refused to admit, that they had committed any contempt,
but made a point that they had a right to criticize and show their disapproval of a decision given
by the court. The respondents also argue that the punishment would have caused physical suffering
but they were ready to bear it. Fear of punishment goes when one is willing to suffer, the deterrence
of punishment vanishes. If the court had punished them, they would have gone up in public esteem
and to that extent the court would have suffered so erosion of its public esteem.

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BIBLIOGRAPHY
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

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 www.livelaw.in

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