lawyers in India

Contempt Power of Court

Written by: Meenakshi Chauhan - Practicing lawyer in the Supreme Court of India, High Court of Delhi and Various other Tribunals and District Courts.
Constitutional Lawyers in India
Legal Service
  • Contempt of Courts Act gives power to Court to punish anyone who does its contempt. This concept / law developed in Britain, spread through colonialism to protect the authority and legitimacy of Court power to punish for contempt provided to Judiciary. Our constitution makers also for the same reasons provided contempt power to our higher judiciary.

    There was no statutory law of contempt till 1926. Indian courts followed the English Common Law. In 1926, the government enacted the Contempt of Courts Act XII of 1926, whereby the High Courts were given power to punish for contempt of courts subordinate to them. This was repealed and substituted by the Contempt of Courts Act XXXII of 1952, which has been replaced by the Contempt of Courts Act, No. 20 of 1971.

    Why we need a law in our society? Can we live without law? Imagine of a society where there is no law. Will it survive, If yes how? In such a society the powerful, rich dominant can get their rights and the poor, powerless, helpless will be right less; In such a situation there would be survival of the fittest.
    But, in a democratic society, in a democratic country like India law is made by the people, is of the people and for the people.

    Can we say that law shows or follows volkgeist , the inner consciousness and spirit of people? Is it voice of people? Does it grow from the voice of people? Or is it an expression of the privileged and majoritorian class? As large no of Indians still have not heard of 'Constitution' and of 'Supreme Court'.

    Purpose of Law
    Law is a means to keep society in order, is required and necessary and useful for ordering the conduct of society. It is a yardstick and also a tool for social engineering to build as efficient a structure of society as possible . It is a means of social control, to satisfy social claims and demands. It provides remedy and justice to aggrieved. Law is a method for harmonizing conflicting interests. Law creates devices, machinery and means to reconcile conflicting interests. Court is machinery created by law to provide justice.

    Process of Providing Justice

    In this process if there are hundred victims and one offender it may be easy for court to decide. But if there are hundred offenders and one victim such a situation becomes a matter concern for Court and poses difficulty.

    In a situation where by saying 'Yes' court does injustice to one party / class and by saying no does injustice with another party/ class. In such situations policy mostly adopted by court is that for the interest of larger section of society interest of smaller section/ class can suffer or be sacrificed.

    Chances of injustice for minor class/ group are very high in such cases and so the chances of protest. Protest is done only when there is injustice done to an individual or a class. If injustice is done to one class or if there is truncation of rights of a class, the Judgment of court faces criticism. The judgment of Supreme Court is final and binding. Can anyone comment on it can anyone say that it is wrong?

    Law and its machinery i.e Court are there to provide justice.

    Some of the questions to be considered are what happens when in such a situation one protests with strong criticism and outspoken comment? If the court is unjust to a party and final what remedy is left with aggrieved? True allegations on Court or Judge whether lowers the dignity?

    Article 19 (1)(a) of Indian Constitution provides for freedom of speech and expression as fundamental right. Article19(2) provides for reasonable restriction and contempt of court is expressly mentioned as reasonable restriction in our constitution. The question now arises is Why Contempt of Courts Act put reasonable restrictions. Answer to this may be that it is a statutory restriction and also expressly given in our constitution.

    Courts are staffed by Judges who are human beings with all the frailties that a human being can possess. So they can commit mistakes or do errors. If judge strictly follows the law and delivers Judgment with the technical law, then no now can say anything to a Judge/ court though they can criticize law. But if Judge has discretion as per the circumstances of the case, he makes law and somebody must evaluate his law making. Media which plays a significant role in publicizing the decisions and discourse of the courts, must have the right to criticize the decisions of the courts form the standpoint of policy and fundamental Constitutional values. Such Public criticism can play a very important role in making the judges accountable. However, such criticism is constrained by the law of contempt of Court.

    The Contempt of Courts Act, 1971

    Under Indian law, contempt of court has been divided into two categories: civil contempt and criminal contempt.

    Civil contempt means willful disobedience to any judgment, decree, direction, order, writ, or other process of a Court, or willful breach of an undertaking given to a Court (section 2.b).

    Section 2.c says that 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. Scandalizes or tends to scandalize, or lowers or tends to lower 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.

    Action of scandalizing the authority of the court has been regarded as an obstruction of public justice whereby the authority of the court is undermined. All the three clauses of the definition were held to justify the contempt in terms of obstruction of or interference with the administration of justice.


    Law of Contempt imposes three types of restraints:

    1. Restrictions on writings or speeches affecting matters pending in the court (subjudice)
    2. Punishment for defiance of Court Orders
    3. Punishment for Scandalous attacks on judges or the Court.

    Subjudice matter:

    The Supreme courts ask the parties of litigations to refrain from speaking to the media or publishing articles on pending matters. In issues involving different aspects of people's life, judicial process is used as one of the tools for protecting the people's right. Public advocacy and political mobilization cannot be excluded just because recourse to judicial process has been taken. To expect that a person who chooses to invoke the judicial process must eschew public advocacy is to make the judicial process rather too socially expensive remedy. Whether a common citizen or Press untrained in law has a right to speak anything against or comment upon the Judgment or courts or attitude of court or of Judges.

    Defiance of Court Order:

    when an order of court is disobeyed, the power to punish for contempt is necessary to maintain the dignity of the court If people can get away with defiance of the orders of the court, the court will lose respect and will be further disobeyed. Any disobedience that goes unpunished can waken the authority of the court and affects its legitimacy. Courts only source of power is the feeling among the people that they are bound by it. Power of court does not lie in the actual punishment that it imposes. But, in the feeling among people that they have an obligation to obey the court.

    Attacks on Judges/ court: It is one thing to criticize the decisions of the court and quite another to criticize the Judges. It seems the court is now rather too sensitive to criticism of the Judges.

    There are no of contradictions in the law of contempt
    i. There is no defence of the truth in a contempt case as is available in defamation case.
    ii. Law of contempt holds even the media liable for reporting the contempt committed by another person.

    It is considerable that if it is medias duty to give information to people and such right to give information is concomitant of the right to freedom of the press, then why should it be guilty of contempt merely because it reports the contempt committed by another person.
    The law that truth is no defence is excessive restriction on the freedom of speech and expression. Similarly, the law that media is also liable is on the one hand restriction on peoples right to information and on the other hand excessive restriction on media's right to give information.

    Public views are considerable
    No Law is perfect forever. Law has a scope for development and this is evident from the fact that law is amended many times, that the Supreme Court had overruled its own Judgment, issued guidelines many times. New Acts are passed from time to time by Parliament and the basis for all this is change of circumstances, realization and recognition of a cause/ new cause and failure of existing law. For instance law developed itself from the narrow lanes of 'locus standi' to the open fields of Public Interest Litigation.

    Justice R.P Sethi, said in In re: Arundhati Roy the law of Contempt has been enacted to secure public respect and confidence in the Judicial process. If such confidence is shaken or broken, the confidence of the common man in the institution of judiciary and democratic set up is likely to be eroded which, if not checked, is sure to be disastrous for the society itself.

    The public protest springs up due to the pressure of injustice done to the public. It is a volcanic eruption which when occurs appears to be disastrous but reveals the truth, the real cause for dissatisfaction in the society and many unknown realities for social change.

    Every person has a fundamental right of free speech and expression. Public views are considerable and is the basis and very foundation of democractic system. It is relevant as it reveals ground realities and truths regarding loopholes in good governance.

    ** Meenakshi Chauhan - Practicing lawyer in the Supreme Court of India, High Court of Delhi and Various other Tribunals and District Courts. Have created research Papers in the field of women's Right, CEDAW, Education, Refugee Law, and Women Rights in Humanitarian law. I am also doing lots of field research for women's right. From the past two year apart from the Court litigation I am doing field Research for food security in India. I am also member of the Legal Team in the Central vigilance Committee set up by the Hon'ble Supreme Court of India for studying the Maladies in Public Distribution system ( which aims at food security for the targeted poor section of India ) and giving Recommendations. Have till now done Inquiry in about 14 different states of India.

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