Contempt of court in India refers to any act or omission that undermines the
authority, dignity, or administration of justice. The power to punish for
contempt is essential for courts to maintain order and ensure fair
proceedings. The underlying principle is upholding the judicial system's
integrity, not merely punishing dissent but addressing conduct that impacts
the judicial process.
Constitutional and Statutory Basis in India
Article 129 of the Constitution of India declares the Supreme Court a "court
of record" with the power to punish for its own contempt.
Article 215 similarly empowers every High Court as a "court of record" with
the power to punish for contempt of itself.
The Contempt of Courts Act, 1971, is the principal legislation defining and
regulating contempt powers in India.
Types of Contempt under Indian Law
The Contempt of Courts Act, 1971 (hereafter "the Act") categorises
contempt into two main types under Section 2(a):
Civil Contempt [Section 2(b) of the Act]
Civil contempt is defined as the "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". For example, if someone is ordered to pay
child support and fails, they could be held in civil contempt until payment is
made. The focus is on compelling compliance, not punishment per se.
Criminal Contempt [Section 2(c) of the Act]
Criminal contempt is defined as the publication (by words, spoken or written,
or by signs, or by visible representations, or otherwise) or doing of any act
which:
● Scandalises or tends to scandalise, or lowers or tends to lower the
authority of any court; or
● Prejudices, or interferes with, 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.
This includes actions such as disrupting court proceedings, refusing to
answer questions under oath (without privilege), or publicly denigrating a
judge in a way that prejudices ongoing cases.
Punishments
Under Section 12 of the Act, contempt of court in India can be punished with
simple imprisonment for a term up to six months, or with a fine up to two
thousand rupees, or with both. However, the court may discharge the
contemnor or remit the punishment if an apology is made to the satisfaction
of the court.
The Freedom of Speech/Expression vs. Contempt Power Tension (Indian
Context)
The power of contempt must be balanced against Article 19(1)(a) of the
Indian Constitution, which guarantees freedom of speech and expression.
However, this right is subject to "reasonable restrictions" in the interests of,
among other things, contempt of court (Article 19(2).
Key Indian Provisions and Principles
Section 5 of the Act: Fair criticism of judicial acts is not contempt.
Section 13 of the Act: No court shall impose a sentence under this Act for
contempt unless it is satisfied that the contempt is of such a nature that it
substantially interferes, or tends substantially to interfere with the due
course of justice.
Indian courts have repeatedly emphasised that the contempt power should
not be used to stifle legitimate criticism but only when there is a real and
substantial risk to the administration of justice.
Navigating the Balance in Practice (With Indian Legal Procedures)
Indian courts employ several strategies to maintain this balance:
● Narrow Construction: Courts interpret contempt laws strictly, requiring
a clear and substantial link between the act and disruption of justice.
● Imminent Threat/Direct Impact Test: The act must pose a real and
imminent threat to the administration of justice.
● Fair Hearing: Section 17 of the Act ensures that the alleged contemnor
is given notice and an opportunity to be heard.
● Proportionality: Punishments are imposed proportionately, with a
preference for apologies and remedial action over punitive measures.
● Transparency: Courts recognise the importance of transparency and
public interest in judicial proceedings.
Landmark Indian Cases
While your article cites international cases, here are some key Indian cases:
● E.M.S. Namboodiripad v. T.N. Nambiar (1970): The Supreme Court
held that criticism of judges must be measured; scurrilous attacks
amount to contempt.
● Prashant Bhushan Case (2020): The Supreme Court convicted a senior
advocate for tweets that were found to scandalise the court, but the
sentence was limited to a fine, reflecting a cautious approach.
● Baradakanta Mishra v. Registrar of Orissa High Court (1974): The
Supreme Court clarified the distinction between fair criticism and
contempt.
Conclusion
Contempt of court in India is governed by both constitutional provisions
(Articles 129, 215) and the Contempt of Courts Act, 1971. The law draws a
clear distinction between civil and criminal contempt (Sections 2(b) and
2(c)), and courts are increasingly mindful of balancing their authority with
the fundamental right to free speech.
Section 14: Procedure Where Contempt is in the Face of the Supreme Court
or a High Court
This section deals with the procedure to be followed when contempt is
committed in the presence or hearing of the Supreme Court or a High Court
(i.e., "in facie curiae" contempt). It is designed for prompt and summary
action to maintain the dignity and authority of the court. Key points include:
● Immediate Action and Custody: When the court itself perceives that a
person has committed contempt in its presence, it may detain the
person in custody immediately.
● Same Day Trial: The court is required, on the same day or as soon as
possible thereafter, to:
● Inform the person in writing of the charge of contempt.
● Give the person an opportunity to defend themselves (audi
alteram partem principle).
● Hear evidence and determine the charge either immediately or
after adjournment.
● Pass an appropriate order of punishment or discharge.
● Change of Judge: If the accused requests, the case may be tried by a
judge other than the one before whom the contempt allegedly
occurred, if the court considers it necessary for justice. The Chief
Justice may be involved for directions.
● Evidence and Trial: The judge(s) before whom the contempt occurred
need not appear as witnesses if the trial is conducted by another
judge; their statements are treated as evidence.
● Custody and Bail: The court may keep the accused in custody pending
trial or release them on bail by bond without sureties.
This section emphasises a fair but expeditious process for contempt
committed openly in court.
Section 15: Cognisance of Criminal Contempt (Other than in Facie Curiae)
● The Supreme Court or High Court can take cognisance of criminal
contempt on its motion or a motion made by the Advocate-General or
any other person with the Advocate-General’s consent.
● This section applies to contempt occurring outside the court’s
immediate presence, such as scandalising the court or obstructing
justice through publications.
● A single judge can take cognisance, but a final hearing requires a
bench of at least two judges (Section 18).
Section 16: Contempt by Judges or Judicial Officers
● Protects judges, magistrates, or other judicial officers from contempt
liability for acts done in their judicial capacity in good faith.
● Contempt applies only if the conduct is outside judicial functions or in
bad faith.
Section 17: Procedure After Cognisance
● After cognisance under Section 15, the accused must be served with
personal notice of the charge unless waived.
● The accused may file an affidavit in defence.
● The court may decide the matter on affidavits or additional evidence.
● If the accused fails to appear, the court may proceed ex parte.
● The court may detain the accused or release them on bail pending
trial.