Contempt Power of Court

By Meenakshi Chauhan
Advocate on Record
Supreme Court of India

Contempt of Courts Act gives power to the Courts 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 This was repealed and substituted by the
Contempt of Courts Act XXXII of 1952, which has been replaced by the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 volkgeist1, the inner

consciousness and spirit of people? Is it voice of the people and grows
with the voice of people? As large no of Indians still have not heard of
‘Constitution’ and of ‘Supreme Court’ one may doubt that law is merely
an expression of the privileged and majoritorian class.

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
possible2. 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.
1
Savigny’s theory
2
Roscoe Pound’s theory
 Process of Providing Justice
If there are hundred victims and one offender it may be easy for courts
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 large number of persons are involved and by

giving relief to one party court does injustice to another party / class,
the policy mostly adopted by the courts is that for the interest of
larger section of society, interest of smaller section/ class can suffer or
be sacrificed. For instance starting CNG vehicles in delhi, building Tehri
dam in Uttarakhand or Sardar Sarovar dispute in Gujrat. Chances of
injustice to minor class/ group are very high in such cases and so the
chances of protest. Of course it’s a rule that decision which supports
the betterment of majority is to be taken. Protest is done only when
there is injustice done to an individual or a class. If there is injustice or
truncation of rights of a class, the Judgment of court faces criticism.
Well the judgment of Supreme Court is final and binding; question
which comes in mind is can anyone comment on it and say that it is
wrong.

As Law and its machinery (Courts) are there to provide justice, if the
final verdict of court is unjust to a party what remedy is left with
aggrieved? In such a situation, if one protests with strong criticism and
outspoken comment whether it is to be taken as affecting their dignity.

Article 19 (1) (a) of Indian Constitution provides for freedom of speech

and expression as fundamental right. Article 19 (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 this power is expressly
provided to courts 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

Definition
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.

The concept of ‘ scandalizing’ keeps changing with the passage of time

and varies with the view of the people.

Restraints
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 media’s 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.

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

them. It is a volcanic eruption which when occurs appears to be
disastrous but reveals the truth, real cause and many unknown
realities. Every person has a fundamental right of free speech and
expression. Public views are considerable because this is the basis and
very foundation of democratic system and is relevant as it reveals
ground realities and truths highlighting the loopholes in good
governance. What disrepute or shakes the authority of judge is not
criticism by a person or a class of persons but his own misconduct.
His authority comes from the confidence of the public at large in his
honesty and probity. Hence, Contempt power should not as tool to
uphold the dignity of court but to only for enabling the court to
function smoothly. It should be used only in rare and very exceptional
situation when it becomes difficult for court to function.

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