This article has been written by Aksshay Sharma, a student of Department of Laws, Panjab University. This article deals with contempt of court with an analysis of criminal contempt, with reference to the 2020 contempt case of Senior Advocate Prashant Bhushan.
Table of Contents
This article 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), 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.
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. (1988), 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 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
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.
Scope of punishment for contempt of courts
The Supreme Court in Supreme court bar association v. Union of India (1998) discussed the power of courts to punish for contempt. It said that although parliament or state legislature has the power to make law in contempt of court, such legislation cannot denude, abrogate or nullify the power of the supreme court to punish under article 129 or vest that power in some other court. This, it said because the Supreme Court is a court of record and being a court of record it has an inherent power to punish and no law can take away this inherent jurisdiction (power) of a court of record. In simple words, it means that the Supreme Court and the High Court being courts of record, no law can take away the inherent jurisdiction.
It further differentiated between the power of the High court and that of the Supreme Court to punish for contempt. It said that 1971 does not deal with the power of the Supreme Court to punish for contempt of itself and only article 142(2) and 129 deals with it. This is because in the definitions clause of the Contempt of Courts Act, 1971 there is no mention of the Supreme Court and as the Supreme Court said that section 15 only deals with the procedure by which the Supreme Court can take cognizance of an act of contempt. Thus it said that the nature of punishment under Contempt of Courts Act, 1971 may act as a guide for the supreme court but the extent (quantum) of punishment under the act can apply only to the High courts. This is because according to the court, the1971 act ipso facto does not deal with the contempt jurisdiction of the supreme court.
Court supported this ratio by relying on another judgement Sukhdev Singh v. Hon’ble C.J.S. Teja Singh & Ors (1954). In which it said that maximum punishment which can be imposed on a contemnor must be construed as dealing with the powers of the High court only and not the Supreme Court. Thus the scope of power to punish for contempt of Supreme court is not limited by the Contempt of courts act, 1971.
Punishments that can be given to an advocate under the Advocates Act, 1961 for professional misconduct
In Re: Vinay Chandra Mishra, the Supreme Court suspended the licence of a senior advocate on grounds of contempt of court. This decision was challenged in the Supreme court bar association v. Union of India and was overruled. It held that punishment for an established contempt of court committed by an advocate could not include punishment to debar him from practice by suspending his licence, which can only be done by the concerned State Bar Council and the Bar Council of India, under the Advocates Act, 1961.
Punishment for professional misconduct under the Advocates Act
Section 35 of the Advocates Act deals with professional misconduct. According to it, when the State Bar Council of India receives a complaint about professional misconduct, it shall transfer the disciplinary committee of the concerned state bar council. However, Bar Council can transfer the case to the disciplinary committee of any other State Bar council as well.
The disciplinary committee after the receipt of the complaint will give a chance of hearing to the advocated, after that it may either:
- Dismiss the complaint, or if the proceedings were initiated at the instance of the State Bar Council, directs that proceedings be filed; or
- Reprimand the advocate i.e. warn the advocate; or
- Suspend the advocate from practice for such a period as it deems fit; or
- Remove the name of an advocate from the state roll of advocates.
Again it must be noted that only the Disciplinary committee has the power to suspend the advocate from practice or remove him from the State roll of advocate and the High court and Supreme Court cannot exercise its power to punish for contempt to suspend or remove the advocate.
The Supreme Court states that the power of the Supreme court to punish for contempt of court though wide is limited and cannot be expanded to include whether an advocate is guilty of professional misconduct.
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) 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), 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.
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.
The Prashant Bhushan case
In Re: Prashant Bhushan & Anr., the Supreme Court held Senior Advocate Prashant Bhushan guilty of Contempt. It held the 2 tweets by the Senior Advocate to be in Contempt of court because it scandalised the authority of the court. The court relied on the judgement given in Brahma Prakash Sharma And Others vs. The State Of Uttar Pradesh (1953) in which it ruled that scandalising the court is when there is an attack on an individual judge or the court as a whole with or without reference to particular cases, casting unwarranted and defamatory aspersions on the character of the judges. This according to the court is necessary because it creates distrust in the mind of the people and “impairs the confidence of people in the courts which is of prime importance.
It further relied on the judgement given in C. K. Daphtary & Ors vs. O. P. Gupta & Ors (1971) in which it ruled that any publication which was calculated to interfere with the due course of justice or administration of the law would amount to Contempt of Court. It said that a scurrilous attack on a judge, for a judgement or past conduct, has in our country the inevitable effect of undermining the confidence of the public in the judiciary and if confidence in judiciary goes, administration of justice definitely suffers.
- According to the court, the first part of the Tweet stated that, “At a time when he (Chief Justice) keeps the Supreme Court in lockdown mode, denying citizens the Fundamental Rights to access to justice.”
Court held this to be contemptuous because according to the Court the tweet criticised the Chief Justice of India in his capacity as the Chief Justice of India and not as an individual. The court ruled that the tweet had the tendency to shake the confidence of the public in the Judiciary and this according to the Court undermines the dignity and authority of the administration of Justice.
It further said that an attack on the Supreme Court not only reduces the confidence of an ordinary litigant but also of other judges in the country in its highest Court.
- The Court for his 2nd tweet court said that the tweet gives the impression that the Supreme Court has played a particular role in the destruction of democracy in the last 6 years and this according to the Court is the criticism of Judiciary as an institution and shakes the faith of the people in the Judiciary.
The court ruled that an attempt to shake the foundation of Constitutional democracy i.e. the Judiciary has to be “dealt with an iron hand”. For the Court, the tweets have the effect of destabilising the Foundation of Indian Democracy.
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.
- 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
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