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The Contempt of Court Act, 1971: Strengthening Judiciary

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 report stated.

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 criticism.

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 the 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.

End Notes:

  1. The Contempt of Court Act, 1971
  2. 2018 Law Commission Report
  3. Rajya Sabha Transcript 2020
  4. Contempt of Court Challenged by Bhushan, Indian Express

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