The authors are always skeptical and sometimes scared in writing against a
judgment, wherein they do not agree with the outcome/reasoning of a judgment of
the Higher Judiciary- the High Court or the Supreme Court. The Law Journals are
also loathe in publishing articles/write-ups/papers against a particular
judgment for the fear of 'Contempt of Court'. It is therefore necessary to
understand the rights conferred by Article 19(1)(a) of the Constitution which
guarantees the right to free speech and expression vis-a-vis Section 5 of the
Contempt of Courts Act, 1971.
Article 19(1)(a) of the Constitution reads thus:
All citizens shall have the right to freedom of speech and expression;
Section 5 of the Contempt of Courts Act, 1971 reads thus:
Fair criticism of judicial act not contempt. —A person shall not be guilty of
contempt of court for publishing any fair comment on the merits of any case
which has been heard and finally decided.
From the bare reading of Article 19(1)(a) & Section 5 of the Contempt of Courts
Act, it is amply clear that the Constitution of India has guaranteed freedom of
speech & expression and therefore any citizen has right under the Constitution
to express his views, orally or through writing, on any judgment passed by the
judiciary. He has the right to disagree/dissent with any judgment of the Court
and it is within his right to criticize the judgment but it should be fair
criticism on the merits of the case, the reasoning & conclusion of the case.
The author can point out certain provisions of law or certain binding precedents
which could have had impact on the judgment but were inadvertently not
considered by the judge(s). He may subscribe to the contrary view to the one
taken by the Court and may give reasoned arguments against the view taken by the
Court. But the fair criticism should be of the Judgment and not the Judges. May
be his criticism may turn out to be baseless/futile/irrelevant but so long it is
fair criticism, the same does not fall within the ambit of contempt under the
Contempt of Courts Act, 1971.
It would be trite to say that the Courts sometimes do not agree with it's own
earlier judgment and refer the matter to the Chief Justice to make a reference
of the matter to a larger bench for reconsideration. The dictum of the Courts
are thus sometimes upset/overturned by the larger benches of the same Court.
The judges often say they have become 'wiser'. As far as the judgments of the
High Courts are concerned, one out of four cases in which SLP is admitted is set
aside by the Apex Court. This clearly establishes that even the Higher Courts
can err like any other human being or may be the reasoning behind a particular
judgment, later on, does not appeal to the higher or the same court. It is often
said that though the Supreme Court is 'Supreme' but not 'Infallible'.
Thus, when an author, rightly or wrongly, but earnestly finds fault with a
judgment and he has genuine doubts about the legality/reasoning of the judgment,
he ought not to be prosecuted under the Contempt of Courts Act for his 'Fair
Criticism'. The author, who criticizes a particular judgment may well argue that
some fundamental principles or precedents have not been abided/followed and the
judgment has therefore been rendered inconsistent.
This type of criticism does not tantamount to contempt of court but malicious or
false statements about a judge, or disruptive or contemptuous conduct in the
courtroom do constitute 'Contempt of Court'. For the evolution of correct law,
it appears expedient to allow criticism of the judgments as part of societal
responsibilities of the lawyers/authors. Fair criticism of the judgments is thus
an ethical obligation on the legal fraternity and should be promoted instead of
being deprecated on the pretext/fear of 'Contempt of Court'.
It would be worthwhile to refer to Section 2 of the Contempt of Court Act, 1971,
which defines 'Contempt of Court', civil contempt & criminal contempt and reads
In this Act, unless the context otherwise requires:
- “contempt of court” means civil contempt or criminal contempt;
- “civil contempt” means wilful disobedience to any judgment, decree,
direction, order, writ or other process of a court or wilful breach of an
undertaking given to a court;
- “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:
- 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;
Contempt of court is an offence of disobedience or disrespect towards a court of
law and its officers. It is conduct that opposes or challenges the authority,
justice and dignity of the court. Contempt of Court is a constitutional power
vested with the Supreme Court of India. It is relevant that Article 129 of the
Indian Constitution of India states that “The Supreme Court of India shall be a
court of record and shall have all the powers of such a court including the
power to punish for contempt of itself ”.
Superior courts of record have the
powers to punish contempts relating to the judges of those courts and the
proceedings therein. The principal objective of the jurisdiction is to protect
the dignity of the court and the due administration of justice.
It is worth mentioning that under Article 215 of the Constitution of India, the
High Court also has inherent power to punish for contempt of itself. Article 215
is reproduced as under:
215. High Courts to be courts of record- Every High Court shall be a court of
record and shall have all the powers of such a court including the power to
punish for contempt of itself
Besides, Section 15 of the Contempt of Courts Act, 1971 enables both the Supreme
Court & the High Court to take action on its own motion. Section 15 in the
Contempt of Courts Act, 1971 reads as under:
15. Cognizance of criminal contempt in other cases:
- 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:
- the Advocate-General, or
- any other person, with the consent in writing to the Advocate-General, 3
- 3 [(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
- 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.
- 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:
- in relation to the Supreme Court, the Attorney-General or the
- 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;
- 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.
It would be apropos to refer to 5 member Constitution Bench of the Apex Court
judgment in Brahma Prakash Sharma and others vs The State Of Uttar Pradesh 1954
AIR 10, 1954 SCR 1169, wherein the Court observed thus:
It admits of no dispute that the summary jurisdiction exercised by superior
courts in punishing contempt of their authority exists for the purpose of
preventing interference with the course of justice and for maintaining the
authority of law as is administered in the courts. It would be only repeating
what has been said so often by various judges that the object of contempt
proceedings is not to afford protection to judges, personally from imputations
to which they may be exposed as individuals; it is intended to be a protection
to the public whose interests would be very much affected if by the act or
conduct of any party, the authority of the court is lowered and the sense of
confidence which people have in the administration of justice by it is weakened.
It would be befitting to refer to the case of Lalit Kalita And Ors. vs
Unknown 2008 (1) GLT 800 decided by the Gauhati High Court wherein Justice
Ranjan Gogoi, as he then was, elucidated the concept of fair criticism with
reference to contempt of court and held thus:
14. Judiciary is not over-sensitive to criticism; in fact, bona fide criticism
is welcome, perhaps, because it opens the doors to self- introspection. Judges
are not infallible; they are humans and they often err, though, inadvertently
and because of their individual perceptions. In such a situation, fair criticism
of the viewpoint expressed in a judicial pronouncement or even of other forms of
judicial conduct, is consistent with public interest and public good that Judges
are committed to serve and uphold.
The system of administration of justice, therefore, would receive due impetus
from a realization amongst Judges that they can or have actually erred in their
judgments; another perspective, a new dimension or insight must, therefore,
always be welcome. Such a realization which would really enhance the majesty of
the Rule of Law, will only be possible if the doors of self-assessment, in the
light of the opinions of others, are kept open by Judges.
15. Escalating arrears; endless debates even on interlocutory matters and
procedural wrangles; decade long trials are some of the instances that
demonstrate the increasing in-ability of the judicial system to deliver the
goods expected of it. Such instances have far more ominous portents of eroding
public confidence in the system than mere publication of a few misguided
expressions of opinion either on the substance of a judicial verdict or on the
manner in which the verdict has been reached.
Public confidence is bound to grow if the system of administration of justice is
capable of delivering 'timely justice', the deleterious effect of a few
misguided publications, notwithstanding. The aim, therefore, should be to gain
public confidence by exemplary conduct and performance instead of proceeding in
the contempt jurisdiction, an exercise which has often been labeled as a close
circuit proceeding where the Judge is the accuser as well as the arbiter.
That is why in modern European democracies including the United Kingdom the
offence of scandalizing the Court has become near obsolete, as noticed by
Michael Addo of the University of Exeter in his Work Freedom of Expression and
the Criticism of Judges. The approach of the British judiciary in maintaining a
story silence in respect of the publication The fools appearing in the Times
London following a spy catcher case bears ample testimony to the above.
The exercise of the contempt jurisdiction must also be viewed from the
standpoint of the necessity of not only having a confident judiciary but also a
fearless press both of which are indispensable requirements of a healthy
democracy. Such a realization must also dawn upon the Fourth Estate and if
required by means of a judicial message. The observations of Lord Denning in
Regina v. Commr. of Police of the Metropolis, Ex parte Blackbkn (1968) 2 WLR
1204, extracted below would amply sum up the above situation.
Let me say at once that we will never use this jurisdiction as a means to uphold
our own dignity. That must rest on surer foundations. Nor will we use it to
suppress those who speak against us. We do not fear criticism, nor do we resent
it. For there is something far more important at stake. It is no less than
freedom of speech itself.
It is the right of every man, in Parliament or out of it, in the Press or over
the broadcast, to make fair comment, even outspoken comment, on matters of
public interest. Those who comment can deal faithfully with all that is done in
a court of justice. They can say that we are mistaken, and our decisions
erroneous, whether they are subject to appeal or not. All we would ask is that
those who criticize 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
Exposed as we are to be winds of criticism, nothing which is said by this person
or that, nothing which is written by this pen or that, will deter us from doing
what we believe is right; nor, I would add, from saying what the occasion
requires, provided that it is pertinent to the matter I hand. Silence is not an
option when things are ill done.
16. But when should silence cease to remain an option? Where is the line to be
drawn? A contemptuous action is punishable on the touchstone of being a wrong to
the public as distinguished from the harm caused to the individual Judge. Public
confidence in the judicial system is indispensable. Its erosion is fatal. Of
course, Judges by their own conduct, action and performance of duties must earn
and enjoy the public confidence and not by the application of the rule of
contempt. Criticism could be of the underlying principle of a judicial verdict
or its rationale or reasoning and even its correctness.
Criticism could be of the conduct of an individual Judge or a group of Judges.
Whichever manner the criticism is made it must be dignified in language and
content because crude expressions or manifestations are more capable of
identification of the alleged wrong with the system as a whole. Motives,
personal interest, bias, pre-disposition etc. cannot be permitted to be
attributed as being responsible for the judicial verdict, unless, of course, the
same can be established as an existing fact. It is the above category of acts or
publications that would fall within the prohibited degree warranting action in
It would be appropriate to refer to the 5 member Constitution Bench of the Apex
Court in Baradakanta Mishra vs The Registrar of Orissa High Court 1974 AIR 710,
1974 SCR (2) 282 wherein the Court considered contempt proceedings against a
subordinate judge himself and opined thus:
Scandalization of the court is a species of contempt and may take several forms.
A common form is the vilification of the Judge. When proceedings in contempt are
taken for such vilification the question which the court has to ask is whether
the vilification is of the Judge, as a Judge or it is the vilification of the
Judge as an individual. See Queen v. Gray (1900) 2 Q.B. 36 at 40. If the latter,
the Judge, is left to his private remedies and the court has no power to commit
If the former, the court will proceed to exercise the jurisdiction with
scrupulous care and in cases which are clear and beyond reasonable doubt.
Secondly, the court will have also to consider the degree of harm caused as
affecting administration of justice and, if it is slight and beneath notice,
courts will not punish for contempt. This salutary practice, is adopted by
section 13 of the Contempt of Courts Act, 1971. The jurisdiction is not intended
to uphold the personal dignity of the Judges. That must rest on surer
foundations. Judges rely on their conduct itself to be its own vindication.
But if the attack on the Judge functioning as a Judge substantially affects
administration of justice it becomes a public mischief punishable for contempt,
and it matters not whether such an attack is based on what a judge is alleged to
have, done in the exercise of his administrative responsibilities.
A Judge's functions may be divisible, but his integrity and authority are not
divisible in the context of administration of justice. An unwarranted attack on
him for corrupt administration is as potent in doing public harm as an attack on
his adjudicatory function....
The Court further observed thus:
If judges decay the contempt power will not save them and so the other side of
the coin is that judges, like Caesar's wife, must be above suspicion.
To wind up, the key word is justice, not judge; the key-note thought is
unobstructed public justice, not the self- defence of a judge; the corner-stone
of the contempt law is the-accommodation of two constitutional values-the right
of free speech and the right to independent justice. The ignition of contempt
action should be substantial and mala fide interference with fearless judicial
action, not fair comment or trivial reflections on the judicial process and
It would be fruitful to refer to the Apex Court judgment in Rama Dayal Markarha
vs State Of Madhya Pradesh 1978 AIR 921, 1978 SCR (3) 497 holding that contempt
jurisdiction should be used sparingly. The Court observed thus:
Contempt jurisdiction is a special and to some extend an unusual type of
jurisdiction where in the prosecutor and, the judge are combined in one. To some
extent it trenches upon the fundamental right of free speech and expression and
stifles criticism. of a public officer concerned with administration of public
justice in discharge of his public duty. In the words of Krishna Iyer, J:
the cornerstone of the contempt law is the accommodation of two constitutional
values, the right of free speech and the right to independent justice. The
ignition of contempt action should be substantial and mala fide interference
with fearless judicial action, not fair comment or trivial reflections on the
judicial process and personnel (vide Baradakanta v. Registrar, Orissa High
Court). Therefore, the contempt jurisdiction has to be sparingly exercised
with utmost restraint and considerable circumspection.
Undoubtedly, judges and
courts are alike open to criticism and if reasonable argument or expostulation
is offered against any judicial act as contrary to law or the public good, no
court could or would treat that as contempt of court, vide Queen v. Gray.(1900)
2 Q.B. 36 at 40. No criticism of a judgment, however vigorous, can amount to
contempt of court, providing it keeps within the limits of reasonable courtesy
and good faith, vide Regina v. Commissioner of Police of the Metropolis, exparte
Blackburn.(1968) 2 Weekly Law Reports 1204 at 1207.) Lord' Denning, M.R. in the
same case further observed that those who comment can deal faithfully with all
that is done in a court of justice.
They can say that we are mistaken, and our
decisions effoneous, whether they are subject to appeal or not. After referring
to these, cases, the contemner drew our attention to the celebrated passage of
Lord Atkin in Andre Paul v. Attorney-General A.I.R. 1936 P.C. 141 at 145-146.
which has almost become a classic.
It reads as under But where the authority and
position of an individual Judge or the due administration of justice is
concerned, no wrong is committed by any member of the public who exercises the
ordinary right of criticising in good faith in private or public the public act
done in the seat of justice.
The path of criticism is a public way : the wrong headed are permitted to err
therein : provided that members of the public abstain from imputing improper
motives to those taking part in the administration of justice, and are genuinely
exercising a right of criticism and not acting in malice or attempting to impair
the administration of justice, they are immune. Justice is not a choistered
virtue : she must be allowed to 'suffer the scrutiny and respectful, even though
outspoken, comments of ordinary men.
It would be trite to refer to the Apex Court in Re: S. Mulgaokar vs Unknown
(1978) 3 SCC 339 wherein the Court made the following observations:
16. The judiciary cannot be immune from criticism. But, when that criticism is
based on obvious distortion or gross mis-statement and made in a manner which
seems designed to lower respect for the judiciary and destroy public confidence
in it, it cannot be ignored.
I am not one of those who thinks that an action for
contempt of Court, which is discretionary, should be frequently or lightly
taken. But, at the same time, I do not think that we should abstain from using
this weapon even when its use is needed to correct standards of behavior in a
grossly and repeatedly erring quarter.
It may be better in many cases for the judiciary to adopt a magnanimously
charitable attitude even when utterly uncharitable and unfair criticism of its
operations is made out of bona fide concern for improvement. But, when there
appears some scheme and a design to bring about results which must damage
confidence in our judicial system and demoralize Judges of the highest court by
making malicious attacks, anyone interested in maintaining high standards of
fearless, impartial, and unbending justice will feel perturbed.
I sincerely hope that my own undisguised perturbation at what has been taking
place recently is unnecessary, One may be able to live in a world of yogic
detachment when unjustified abuses are hurled at one's self personally, but,
when the question is of injury to an institution, such as the highest Court of
justice in the land, one cannot overlook its effects upon national honour and
prestige in the comity of nations.
Indeed, it becomes a matter deserving consideration of all serious minded people
who are interested in seeing that democracy does not flounder or fail in our
country. If fearless and impartial courts of justice are the bulwark of a
healthy democracy, confidence in them cannot be permitted to be impaired by
malicious attacks upon them.
It would be relevant to refer to Indirect Tax Practitioners’ Association v.
R.K. Jain (2010) 8 SCC 281, wherein the Apex Court struck a balance between
criticism and fairness in criticism before awarding penalty for 'contempt of
court'. The Court held thus:
15. In the land of Gautam Buddha, Mahavir and Mahatma Gandhi, the freedom of
speech and expression and freedom to speak one's mind have always been
respected. After independence, the Courts have zealously guarded this most
precious freedom of every human being.
Fair criticism of the system of administration of justice or functioning of
institutions or authorities entrusted with the task of deciding rights of the
parties gives an opportunity to the operators of the system/institution to
remedy the wrong and also bring about improvements. Such criticism cannot be
castigated as an attempt to scandalize or lower the authority of the Court or
other judicial institutions or as an attempt to interfere with the
administration of justice except when such criticism is ill motivated or is
construed as a deliberate attempt to run down the institution or an individual
Judge is targeted for extraneous reasons.
Ordinarily, the Court would not use the power to punish for contempt for curbing
the right of freedom of speech and expression, which is guaranteed under Article
19(1)(a) of the Constitution. Only when the criticism of judicial institutions
transgresses all limits of decency and fairness or there is total lack of
objectivity or there is deliberate attempt to denigrate the institution then the
Court would use this power. The judgments of this Court in Re S. Mulgaokar
(1978) 3 SCC 339 and P.N. Duda v. P. Shiv Shanker (1988) 3 SCC 167 are
outstanding examples of this attitude and approach.
The Apex Court in Dr. D.C. Saxena vs Hon'ble The Chief Justice of India
1996 SCC (7) 216 deprecated the growing tendency to scandalise the court, which
by itself constituted 'contempt of court'. The Court observed thus:
Scandalising the court, therefore, would mean hostile criticism of judges as
judges or judiciary. Any personal attack upon a judge in connection with office
he holds is dealt with under law of libel or slender. Yet defamatory publication
concerning the judge as a judge brings the court or judges into contempt, a
serious impediment to justice and an inroad on majesty of justice. Any
caricature of a judge calculated to lower the dignity of the court would
destroy, undermine or tend to undermine public confidence in the administration
of justice or majesty of justice.
It would therefore, be scandalising the judge as a judge, in other words,
imputing partiality, corruption, bias, improper motives to a judge is
scandalisation of the court and would be contempt of the court. Even imputation
of lack of impartiality or fairness to a judge in the discharge of his official
duties amounts to contempt.
The gravamen of the offence is that of lowering his dignity or authority or an
affront to majesty of justice. When the contemnor challenges the authority of
the court, he interferes with the performance of duties of judge's office or
judicial process or administration of justice or generation or production of
tendency bringing the judge or judiciary into contempt.
Section 2 (c) of the Act, therefore, defines criminal contempt the wider
articulation that any publication, whether by words, spoken or written, or by
signs, or by visible representations, or otherwise of any matter or the doing of
any other act whatsoever 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 interfere with,
or obstructs or tends to obstruct, the administration of justice in any other
manner, is a criminal contempt.
Therefore, a tendency to scandalise the Court or tendency to lower the authority
of the court or tendency to interfere with or tendency to obstruct the
administration of justice in any manner or tendency to challenge the authority
or majesty of justice, would be a criminal contempt. The offending act apart,
any tendency if it may lead to or tends to lower the authority of the court is a
criminal contempt. Any conduct of the contemnor which has the tendency or
produces a tendency to bring the judge or court into contempt or tends to lower
the authority of the court would also be contempt of the court.
It would be relevant to refer to Apex Court in P.N.Duda vs. P.Shiv Shanker
(1988) 3 SCC 167 wherein a petition was filed for punishing the then Law
Minister for having made contumacious remarks in the course of his speech. The
Attorney General did not grant consent. The Apex Court also observed that there
was no need to initiate suo motu proceedings.
In S.K.Sundaram: In Re (2001) 2 SCC 171, it was held that vilification of
the high personage of the Chief Justice of India would undermine the majesty of
the court and dignity of the court.
A three Judges Bench of the Apex Court in the decision reported in Re:
Prasant Bhushan and anr (2021) 1 SCC 745 has finally settled the legal
position holding that the power of the court to initiate contempt is not in any
manner limited by the provisions of the Contempt of Courts Act, 1971. The Court
18.From the perusal of various judgments of this Court, including those of the
Constitution Benches, it could be seen, that the source of power of this Court
for proceeding for an action of contempt is Under Article 129. It has further
been held, that power of this Court to initiate contempt is not in any manner
limited by the provisions of the Contempt of Courts Act, 1971.
It has been held, that the Court is vested with the constitutional powers to
deal with the contempt and Section 15 is not the source of the power to issue
notice for contempt. It only provides the procedure in which such contempt is to
It has been held, that insofar as suo motu petitions are concerned, the Court
can very well initiate the proceedings suo motu on the basis of information
received by it. The only requirement is that the procedure as prescribed in the
judgment of P.N. Duda (supra) has to be followed. In the present case, the same
has undoubtedly been followed.
It is also equally settled, that as far as the suo motu petitions are concerned,
there is no requirement for taking consent of anybody, including the learned
Attorney General because the Court is exercising its inherent powers to issue
notice for contempt. It is equally well settled, that once the Court takes
cognizance, the matter is purely between the Court and the contemnor.
The only requirement is that, the procedure followed is required to be just and
fair and in accordance with the principles of natural justice. In the present
case, the notice issued to the alleged contemnors clearly mentions the tweets on
the basis of which the Court is proceeding suo motu. The alleged contemnor No. 1
has also clearly understood the basis on which the Court is proceeding against
him as is evident from the elaborate affidavit- in-reply filed by him.
It would be of importance to refer to In re Hira Lal Dixit and two Ors.(1955)
1 SCR 677, wherein the Constitution Bench of the Apex Court was considering a
leaflet distributed in the court premises printed and published by the said Hira
He was the applicant in one of the writ petitions which had been filed in the
Supreme Court challenging the validity of U.P. Road Transport Act, 1951. The
leaflet though contained a graphic account of the harassment and indignity said
to have been meted out to the writer by the State Officers and the then State
Minister of Transport in connection with the cancellation and eventual
restoration of his license in respect of a passenger bus. While holding him
guilty and rejecting his qualified apology, the Constitution Bench observed
It is well established, as was said by this Court in Brahma Prakash Sharma
and Ors. v. The State of Uttar Pradesh (supra), that it is not necessary
that there should in fact be an actual interference with the course of
administration of justice but that it is enough if the offending publication is
likely or if it tends in any way to interfere with the proper administration of
law. Such insinuations as are implicit in the passage in question are derogatory
to the dignity of the Court and are calculated to undermine the confidence of
the people in the integrity of the Judges.
Whether the passage is read as fulsome flattery of the Judges of this Court or
is read as containing the insinuations mentioned above or the rest of the
leaflet which contains an attack on a party to the pending proceedings is taken
separately it is equally contemptuous of the Court in that the object of writing
it and the time and place of its publication were, or were calculated, to
deflect the Court from performing its strict duty, either by flattery or by a
veiled threat or warning or by creating prejudice in its mind against the State.
We are, therefore, clearly of opinion and we hold that the Respondent Hira Lal
Dixit by writing the leaflet and in particular the passage in question and by
publishing it at the time and place he did has committed a gross contempt of
this Court and the qualified apology contained in his affidavit and repeated by
him through his counsel cannot be taken as sufficient amends for his misconduct.
It would be appropriate to refer to E.M. Sankaran Namboodripad v. T.
Narayanan Nambiar (1970) 2 SCC 325 wherein the Apex Court considered the
appeal by the Appellant, who was a former Chief Minister, against his conviction
and sentence by the Kerala High Court for contempt of court.
The said appellant had said in the press conference that the judges are guided
and dominated by class hatred, class interests and class prejudices and where
the evidence is balanced between a well dressed pot-bellied rich man and a
poor-ill-dressed and illiterate person, the judge instinctively favours the
former. He had further stated that the election of judges would be a better
arrangement. There were certain other statements made by him in the press
conference. CJI Justice Hidayatullah delivering the judgment in this case
6. The law of contempt stems from the right of the courts to punish by
imprisonment or fines persons guilty of words or acts which either obstruct or
tend to obstruct the administration of justice. This right is exercised in India
by all courts when contempt is committed in facie curiae and by the superior
courts on their own behalf or on behalf of courts subordinate to them even if
committed outside the courts.
Formerly, it was regarded as inherent in the powers of a court of record and now
by the Constitution of India, it is a part of the powers of the Supreme Court
and the High Courts. There are many kinds of contempts.
The chief forms of contempt are 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, abusing the process of the court,
breach of duty by officers connected with the court and scandalising the Judges
or the courts. The last form occurs, generally speaking, when the conduct of a
person tends to bring the authority and administration of the law into
disrespect or disregard.
In this conduct are included all acts which bring the court into disrepute or
disrespect or which offend its dignity, affront its majesty or challenge its
authority. Such contempt may be committed in respect of a Single Judge or a
single court but may, in certain circumstances, be committed in respect of the
whole of the judiciary or judicial system.
The discussion would be incomplete without reference to the case of well known
author, Booker Prize winner, human right activist and environmentalist Arundhati
Roy. She was held guilty of contempt of court by the Apex Court in Re:
Arundhati Roy vs Unknown (2002) 3 SCC 343.
The Apex Court held that all citizens cannot be permitted to comment upon the
conduct of the courts in the name of fair criticism which, if not checked, would
destroy the institution itself. Litigant 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 allowed for preserving the public faith in an
important pillar of democratic set up ie., judiciary.
The Court held her guilty of criminal contempt and sentenced her to simple
imprisonment for one day and to pay a fine of Rs. 2,000/- and further ordered
that in case of default in the payment of fine, the respondent shall undergo
simple imprisonment for three months. The Court expressed anguish that in spite
of blatant criminal contempt, Arundhati Roy did not tender unconditional apology
to the court and while holding her guilty observed thus:
42. As the respondent has not shown any repentance or regret or remorse, no
lenient view should be taken in the matter. However, showing the magnanimity of
law by keeping in mind that the respondent is a woman, and hoping that better
sense and wisdom shall dawn upon the respondent in the future to serve the cause
of art and literature by her creative skill and imagination, we feel that the
ends of justice would be met if she is sentenced to symbolic imprisonment
besides paying a fine of Rs. 2000/-.
Before concluding, it would be befitting to refer to the address of the famous
Senior Advocate Harish Salve at the 16th Justice P D Desai Memorial Lecture on
Criticism of judiciary, contempt jurisdiction and its use in the age of social
media. He opined that the courts must be open to public scrutiny and public
criticism as institutions of governance.
He categorically said that the criticism of judges, judicial overreach and the
manner of functioning is not scandalising courts, and the language in which such
criticism is addressed should be treated with a grin. He is of the view that not
only the decisions can be criticised but the decision-making process can also be
Thus, articles/write-up against judgments make the judges more responsible and
aware and is helpful in minimising errors in judgments for the fear of
criticism. Fair criticism provides much-needed fuel to the judicial system and
therefore it should be encouraged. From the discussions and citations above, it
is clear that whether a criticism is fair is purely subjective and dependent on
the individual facts and circumstances of the case.
However, whenever the conduct or criticism pinches the conscience of the court
or blatantly lowers the prestige of the judiciary, it may constitute a contempt.
However, if the contemner tenders unconditional genuine & bonafide apology, the
courts are generous to exonerate him/her. As far as contempt of court of an
author who makes fair criticism of a judgment, but not the judge, he/she cannot
be legally booked for the contempt of court.
Written By: Inder Chand Jain
Email: [email protected], Ph no: 8279945021