ARMY INSTITUTE OF LAW

Professional Ethics and Professional Accounting

System Project

IN PARTIAL FULFILLMENT OF BA LLB 5 YEARS DEGREE

TOPIC: Supreme Court and Law of Contempt.

SUBMITTED BY- SUBMITTED TO-

HARSH KUMAR Dr. Kulpreet Bhullar

1722 Professor of Law.

{1}
 ACKNOWLEDGEMENTS

The hard work of a lot of people went into making this project a success and I would like to
thank them all for their phenomenal support.

I would like to thank my professor Professional Ethics and Professional Accounting System
Dr Kulpreet Bhullar Ma’am who has been a guiding light to me whenever I have needed her
the most, she has been one of those professors who have made the subject so very interesting

HARSH KUMAR
ROLL NO- 1722
Introuction

This project deals with the law of contempt and why the concept of criminal contempt is
criticised. It also deals with the ethical conduct of an advocate towards the court and should the
subjective determination as to what constitutes criminal contempt be treated as a violation of
ethics in the legal profession. The article further discusses the decision of the Supreme Court on
adv. Prashant Bhushan’s tweets which were allegedly “Scandalising the authority of the court”
and views of legal experts on it.

What is contempt of court

Article 129 declares that the supreme court as a “Court of record” and that it shall have all the
powers of a court of record including the power to punish for its contempt of itself. 

Further Article 142(2) empowers the Supreme Court to investigate and punish for any contempt
of itself i.e. contempt of Supreme court of itself.

Similarly, Article 215 declares High courts as a “Court of record” and that it shall have all the
powers of such a court including the powers to punish for contempt for itself.

Power to punish for contempt of both the High court and the Supreme Court has been given by
the Constitution as well as by Contempt of Courts Act, 1971. 

Contempt of Courts Act, 1971 does not define what is contempt, it simply explains the types of
contempt: Civil contempt and Criminal contempt.

Importance of contempt of court

Contempt in law means being disobedient to a court of law or towards it ruling. The recognition
of contempt of court and to punish for contempt is essential for a nation such as India which is
based on the concept of rule of law, which requires supremacy of law, since the judiciary is
considered, as the last bastion of hope and justice for the citizens of any nation.
According to the  Supreme  court bar association v. Union of India (1995), The object of
punishment is both curative and corrective and these coercions are meant to assist an individual
complainant to enforce his remedy and there is also an element of public policy for punishing
civil contempt since the administration of justice would be undermined if the order of any court
of law is to be disregarded with impunity.

Kinds of contempt of court

The Contempt of courts Act, 1971 (hereinafter “1971 Act”) regulates the contempt of court and
provides for 2 types of contempt. 

 Civil contempt [Section 2(b)]

According to section 2(b), civil contempt means wilful disobedience of any judgement
or a decree of a court or a wilful breach of any undertaking given to a court.

The definition of civil contempt is simple enough for a reasonable man with ordinary
prudence to conclude as to what action will constitute civil contempt. Determination of
civil contempt is objective and is not based on the subjective understanding of anyone. If
there is a judicial order and if such order has been wilfully disobeyed then that fact of
disobedience will constitute civil contempt.

 Criminal contempt [Section 2(c)]

Section 2(c) defined criminal contempt as the publication of any matter which either
Scandalises or lowers the authority of the court, or that such matter interferes or
prejudices any judicial proceeding, Interferes or obstructs the administration of justice in
any manner. Further, an act or publication will constitute contempt if it even tends to
scandalize the authority of the court or it tends to interfere with any judicial proceeding
or administration of justice.

The expression “scandalizes the authority of court” depends to a great degree on the
discretion of the judge as no law in India has defined what constitutes scandalizing the
 court. Proceeding for criminal contempt has been initiated against citizens even for
criticizing the Judges of Supreme court and high courts.

Dicey writes in his Law of the Constitution “wherever there is discretion there is room

for arbitrariness”.

Relationship between contempt of court and courts being the court of record

Both the High court and Supreme court are courts of record and as a court of record, they have
the power to punish for contempt of itself respectively as well as contempt of courts which are
subordinate to it.

Nigel Lowe and Brenda Suffrin in the Law of Contempt (3rd edition), have explained that the
jurisdiction and power of the court of record write that contempt jurisdiction of courts of record
forms part of their inherent jurisdiction, all courts of record have the power to punish for
contempt committed in their face, but the inherent power to punish for contempts outside the
courts reside only in superior courts of record.

In Re: Vinay Chandra Mishra v. The Unknown (1995)1, the Supreme court said that contempt
jurisdiction of the superior court is not based on law, but it is inherent in the court because it is a
court of record. Thus power to contempt resides in the Supreme Court and High courts because
they are deemed as a court of record by the constitution.

Role of ethics in the contempt of court and analysis of criminal contempt of the courts

As stated earlier, the determination of what constitutes criminal contempt is very subjective and
overly-broad. Law is said to be overly-broad when its language is such that it restricts even
speech that is and should be constitutionally protected like free speech, legitimate criticism.
There are no specific rules or circumstances which could justify criminal contempt.

1
AIR 1995 SC 2348
According to Fali S Nariman “Criminal contempt has fallen into disuse in most of the civilised
countries around the world, but not in India”.

The legal profession is a noble profession and advocates are considered as officers of the court
and the nobility of the legal profession is ensured by complying with the code of conduct laid
down by the Advocate’s Act.

Chapter 2 Part V of the Bar Council of India rules provides the code of ethics which is to be
followed by advocates. A part of the rules deals with the Advocate’s duty towards the court. For
the purpose of this article rules which are important include:

 Advocate has to keep in mind the dignity of the judge.

 It is the duty of the advocate to perform his function in such a manner that due to his
acts the honour and integrity of the court are not affected.

According to Chief Justice Marshall, the fundamental aim of Legal ethics is to maintain the
honour and dignity of the law profession.

However, what acts constitute to mar the dignity of courts and judges is not specified and this
has been criticized by many imminent lawyers. A fundamental question arises, whether
criticizing the judge in his personal capacity amounts to an act, which is against the ethics of the
legal profession and scandalizes the authority of the court. 

According to Dushyant Dave (President, Supreme Court Bar association) in response to

contempt proceeding against imminent Human rights lawyer Prashant Bhushan, scandalizing a
judge as a Judicial officer is different from scandalizing the judge as an individual”.

Criticism of judges according to eminent jurists around the globe ought not to be considered as a
violation of ethics towards the court. As the former Chief Justice Gajendragadkar said:

“We ought never to forget that power to punish for contempt, large as it is must always be
exercised cautiously, wisely and with circumspection. Frequent and indiscriminate use of this
power, in anger, would not help to sustain the dignity or status of the court, but may sometimes
affect it adversely”.
It must be kept in mind that justice is not a cloistered (closed) virtue, and it must be allowed to
suffer scrutiny since this is the essence of democracy. Criticizing judges or even the court as an
institution is the essence of democracy and suppressing it under the garb of contempt casts a
chilling effect on the free speech of an advocate. Higher judiciary has unbridled power in
deciding what constitutes criminal contempt. The initiation of contempt proceeding against
Advocate Prashant Bhushan has been criticised not just by his fellow advocates but also retired
judges and free speech activists.

To criticize a judge is a necessary right. Justice Markendey Katju said in a 2007 lecture on Law
of contempt.

“If a person calls me a fool, whether inside the court or outside court, I for one would not take
action as it does not prevent me from functioning.”

According to Arun Shourie and Adv. Prashant Bhushan, Scandalising the authority of the Court
under Criminal Contempt, violates freedom of Speech and is manifestly arbitrary. According to
them, the language is vague enough to encompass within its sweep legitimate criticism as well,
thus violating the Doctrine of Overbreadth. For them, it is rooted in colonial assumption and
objects and has no place in a democracy.

Further, if any comment is made against an individual judge, it must be ascertained whether it
interferes with the administration of justice or impairs a judge in the adjudication process. This
is because under section 13 of Contempt of Courts Act,1971 a person cannot be punished for
Contempt unless the act “substantially interferes with the due course of Justice”. In  P.N. Duda
vs. V. P. Shiv Shankar & Ors. (19882), the court stated that criticism of the court that does not
hamper the administration of justice cannot be punished as contempt. The Supreme Court has
repeatedly held that when a court exercises the power of criminal contempt, it does not do so to
vindicate the dignity and honour of the individual judge who is personally attacked or
scandalised but to uphold the majesty of the law and the administration of justice.

In the context of Contempt proceedings against Advocate Prashant Bhushan, prof. Faizan
Mustafa says that “Public confidence in the judiciary is strengthened not by resort to contempt
powers but by orders and judgement”. Lack of clarity on what constitutes as scandalous and

2
1988 AIR 1208
lowering the dignity of court and discretion of Judges over it can curb legitimate criticism. The
focus must be on dealing with Civil contempt. According to Indian Judiciary Report (2016-17),
The High Courts have 96,310 Civil Contempt cases, compared to Criminal Contempt which was
586.

Punishment for contempt of court

Article 129 and 215 empower the Supreme court and the High courts to punish its contempt.

Accordingly, Section 12 of the Contempt of Courts Act, 1971 provides for punishment for
contempt of court. It incorporates the type and extent of punishment which the courts can give
for contempt.

According to section 12 contempt may be punished either by simple imprisonment of 6 months

or a fine of Rs. 2000 or both. The further section makes it clear that the punishment for
contempt cannot exceed the 6-month imprisonment and fine of Rs 2000. Thus this is the
maximum punishment which the courts can give for contempt.

Further section 12 also states that imprisonment should only be imposed if it is necessary to do
in the interest of justice. In Smt. Pushpaben and another vs. Narandas V. Badiani and
another3 the supreme court said that the Contempt of Courts Act, 1971 confers special power on
the court to impose imprisonment and the court must give a special reason with a proper
application of mind while giving a sentence of imprisonment. It further said that the Sentence of
a fine is the rule while imprisonment is an exception.

In the Supreme Court bar association v. Union of India said that for imposing imprisonment, the
contempt has to be serious enough and that it must consider the likelihood of interference with
the administration of justice. Culpability of the offender and that the intention for the act of
contempt is a crucial factor while considering imprisonment as punishment for contempt.

Further according to section 10 of the Contempt of Courts Act, 1971, the High courts have the
jurisdiction and authority to punish for the contempt of courts subordinate to it as well.

3
1979 AIR 1536
Defenses available

Defences available to an advocate are given under section 3 to 8 of Contempt of Courts Act,
1971.

According to Section 3 of the Contempt of Courts Act, 1971 innocent publication and
distribution of matter is not contempt. It says that a person is not guilty of contempt for
publication of any matters which interferes or may interfere with the administration of justice if
such person was not aware that the matter was pending before the court.

Further, it says that any matter published relating to a civil or criminal proceeding will not
constitute contempt if such proceeding is not pending before the court.

Knowledge about the pendency is an essential pre-condition for holding a person guilty of
contempt.

Therefore, a publication and distribution to be considered innocent under the section must fulfil
the following condition:

(i) The person accused of an offence, at the time of publication, had no reasonable grounds to
believe that the proceeding was pending.

(ii) The proceedings are not pending at the time of publication.

(iii) The person accused of distribution of the contemnous publication, had no reasonable
grounds, at the time of distribution of such material to believe, that the publication contains
contemnous matters or something which was likely to be in contempt of court.

Under Section 4 a person is not guilty of contempt for “fair and accurate report of a judicial
proceeding”. This is crucial since every citizen has a right to know about a judicial proceeding
to the extent that it does not invade the privacy of any party related to the proceeding.

The judicial proceeding for the purpose of section 4 means day to day proceeding of the court.
Purpose of this section can be said to be the basic principle of any legal system that justice
should be administered in public. All common law countries follow the maxim Ignorantia Juris
non-excusat which means ignorance of the law is no excuse. Reporting of judicial proceedings
can be said to act as a remedy for this principle.

Under Section 5, fair criticism on the merits of any case that has been finally adjudicated does
not constitute contempt. Fair criticism can be said to be criticism which does not have any
malicious intent or done without any reasonable justification. In Re: S. Mulgaokar vs. Unknown
(1978)4 Court held that judiciary cannot be immune from fair criticism, and contempt action is
to be used only when an “obvious misstatement” with “malicious intent” seeks to bring down
public confidence in the courts or seeks to influence the courts.

In Radha Mohan Lal v. Rajasthan High Court (2003)5, the court held that: 

advocacy touches and asserts the primary value of freedom of expression. It is a practical
manifestation of freedom of speech.

This section embodies in itself the essence of free speech under Article 19 of the constitution
and freedom of the press.

Under Section 6 any statement made in good faith concerning a presiding officer will not make
a person guilty of contempt.

Under Section 7 fair and accurate reporting of a proceeding of a court “in chambers or in the
camera” is not contempt except when the publication of publication is prohibited by a specific
law or when the court on grounds of public policy specially prohibits the publication of a
proceeding or if court prohibits publication on the ground of “public order” or “the security of
the State” or when the information relates to a secret process, discovery or invention which is an
issue in the proceedings.

Section 4 deals with reporting of any judicial proceeding before the court, whereas Section 7
specifically deals with processing either in the chambers or in-camera proceeding. In-camera
proceedings are court proceedings conducted in private in the absence of public and press.

4
(1978) 3 SCC 339
5
1978 3 SCR 162
Further Section 8 says that any other bona fide and valid defences cannot be held to be invalid
just because such defences are not available merely because of the provisions of Contempt of
Court Act, 1971.

Conclusion

Civil contempt is necessary as wilful disobedient litigants who ignore the orders of the court
cannot be let-off otherwise it would seriously affect the administration of justice and trust of
people in the judiciary. Trust, faith and confidence of the citizens in the judiciary is sine qua
non for the existence of Rule of Law. However, criminal contempt according to experts should
be rationalised if not completely removed from the statute. This is because it has the tendency to
be used to curb Freedom of Speech and expression under Article 19 of the Indian Constitution.
According to Arun Shourie and Adv. Prashant Bhushan “Scandalising the authority of Court”
under Criminal Contempt, violates freedom of Speech and is manifestly arbitrary. According to
them, the language is vague enough to encompass within its sweep legitimate criticism as well,
thus violating the Doctrine of Overbreadth. For them, it is rooted in colonial assumption and
objects and has no place in a democracy.

References

 https://www.livelaw.in/top-stories/n-ram-shourie-bhushan-move-sc-challenging-
constitutionality-of-criminal-contempt-by-scandalizing-the-court-160838
 https://www.barandbench.com/news/litigation/supreme-court-holds-prashant-
bhushan-guilty-of-contempt-of-court-for-his-tweets
  Mr Justice Markandey Katju, Judge, Supreme Court of India – On Contempt Of
Court: The Need For A Fresh Look -on 17th January 2007 at Indian Society Of
International Law, New Delhi
 https://www.livelaw.in/top-stories/prashant-bhushan-contempt-uk-lawyers-body-
expresses-concern-says-lawyers-entitled-to-voice-legitimate-criticism-161632
 https://books.google.co.in/books/about/The_Law_of_the_Constitution.html?
id=ITgfAQAAQBAJ&redir_esc=y