See you in Court , the most commonly used statement in any case of dispute
in India, from a brawl between neighbours in a lower middle class neighbourhood
to huge industrial and corporate dispute staking billions. The omnipresence of
this phrase is not a coincidence but the evidence of the faith Indians have in
the Judicial mechanism of India.
Contempt of court in simpler terms is a vociferous attack on this faith.
Criminal contempt, defined in Section 2(c) of The Contempt of Court Act,1971
states, Criminal Contempt is committed when anything is published, or done,
which "scandalises, or tends to scandalise, or lowers or tends to lower the
authority of, any court", or "prejudices, or interferes or tends to interfere
with, the due course of any judicial proceeding," or "interferes or tends to
interfere with, or obstructs or tends to obstruct, the administration of justice
in any other manner.
Under Article 129 of the Constitution, the Supreme Court derives its powers to
punish for its contempt. Similar powers exist for high courts under Article 215.
The Supreme Court first used this power of contempt in 1953 in Aswini Kumar
Ghose v Arabinda Ghose, where the court said that if an impression is created in
the minds of the public that judges in the highest court in the land act on
extraneous considerations in deciding cases, the confidence of the whole
community in the administration of justice is bound to be undermined and no
greater mischief than that can possibly be imagined.
And since then this has been a hot topic of debate, being challenged for the
first time in 1969 and recently by Advocate Prashant Bhushan (a habitual
offender) and veteran journalists Arun Shourie and N. Ram. The petition by
Bhushan, Shourie and Ram contends the validity of the said act by stating
Contempt of court to be an attack on The Fundamental Right to Freedom and
Expression, whereas Contempt of court is one of the reasonable restrictions
listed under Article 19(2) of the Constitution on the fundamental right to
freedom of speech and expression, hence falling short on both law and reasoning.
The 2018 Law Commission report also highlighted the reasons as to why the law
on contempt was not to be changed:
Viewed from the angle of the frequent indulgence of unscrupulous litigants and
lawyers alike with administration of justice, it would not be in the interest of
litigants and the public at large to minimise the effect of the exercise of
powers of contempt as and when the need arises. Therefore, the Commission does
not consider it necessary to make any amendment therein for the present, the
But at the same time, any criticism or question raised against a judgement
cannot be termed as Contemptuous as questioning the sovereign is the very basic
part of The Right To Freedom of Speech and expression. No government body is
immune to questioning but there is a fine line of reasonability when it comes to
Very articulately explained by Senior Advocate and Queen’s Counsel Harish Salve:
Justice is not a cloistered virtue, and the judgments of the court must be open
to public debate. Criticising the judges and condemning the institution by
ascribing motives to the judges and accusing them of lack of intellectual
integrity is quite another matter.
The Court has not kept the line of criticism vague, it has rather defined the
line through landmark Judgements and has in no way kept itself immune from any
sort of criticism done in good faith.
In the case of PN Dua v Shiv Shankar and others
, the Supreme Court held
that mere criticism of the Court does not amount to contempt of Court.The
Court observed that in a free marketplace of ideas, criticisms about the
judicial system or Judges should be welcomed, so long as such criticisms do not
impair or hamper the administration of justice.
In the case of Baradanath Mishra v the Registrar of Orissa High Court
court held that a common form of such contempt is the vilification of the judge.
The Court has to ask whether the vilification is of the Judge as a judge, or it
is the vilification of the Judge as an individual. If the latter the Judge is
left to his private remedies and the Court has no power to commit for contempt.
If it is the former, the Court will proceed with scrupulous care in cases that
are clear and beyond a reasonable doubt.
The fact which every critic of the Judiciary should keep in mind before making
any statement is that the Judge due to the obligation of the office cannot reply
to its criticism. Judges cannot come out in public through media and express,
their speech is confined to their Judgements.
As Judge Denning of the UK Court of Appeal stated while dismissing a contempt
proceeding in 1968 All we would ask is that those who criticise us will remember
that from the nature of our office, we cannot reply to their criticisms. We
cannot enter into public controversy. Still less into political controversy. We
must rely on our conduct itself to be its own vindication.
Moreover, Judges are the only public servants in India who are not elected by
the people but have their personal assets declared openly in public domain.
The Judiciary works fingers to bone to ensure Justice and enforcement of rights,
as there are only 20.91 Judges per one million people in India as per the
statement made in Rajya Sabha by The Union Minister for Law and Justice, Shri
Ravi Shankar Prasad in 2020.
The practice of personal vilification of Judges will threaten the whole
foundation of our justice system and will cause hindrance in the process of
Justice. Hence, when we say valid criticism, it is supposed to be in utmost
good faith and reasonableness.
- The Contempt of Court Act, 1971
- 2018 Law Commission Report
- Rajya Sabha Transcript 2020
- Contempt of Court Challenged by Bhushan, Indian Express https://indianexpress.com/article/india/sc-contempt-prashant-bhushan-case-6534833/