Posted on: October 6, 2020 Posted by: admin Comments: 0

Author : Sounak Senapati, Student at KIIT Law School, Bhubaneswar 


Administration of justice by an impartial judiciary is the basis of our system of jurisprudence and indeed of the jurisprudence of any civilized state. The Judiciary in India is not sui generis. It owes its existence, system, controls, and jurisdiction to the Indian Constitution. The Judiciary including the other organs of the government and other running the institution are similarly destined by the law of the land. For almost every other form of freedom, freedom of speech is the structure, the vital condition. It is the well-spring of humanity, and freedom of thought would shrink without it. However, It is impossible to equate or confuse freedom with a license to make unfounded and reckless claims against any institution, let alone the judiciary.[1] The law concerned with the contempt of Court thus levies rational limitations on the fundamental right of speech and is within ambit of clause (2) of Article 19.

In the Initial part of the paper we are introduced with the concept of the Contempt of court and the powers envisaged with the courts regarding to the contempt of itself. As we move forward, we come across a never-ending tussle between the Fundamental right of Free speech and the power of Contempt of court.

Keywords: Justice, Contempt of court, Free Speech, Rule of Law.


“Law is not law if it violates the principles of eternal justice”

-Lydia Maria Child

The Judiciary in India is not sui generis. It owes its existence, system, controls, and jurisdiction to the Indian Constitution. The Constitution is the Law of the land and the other laws and other laws derives its existence from the Indian Constitution. It is the Constitution that authorizes the courts to perform their obligatory duties, one of them is the clearance of clashes where the states are vacillated in counter to people. Yet again, the court chooses conflicts in which there is clear society interest. When determined and exercised against the state, the conduct of the courts proves irksome to the state and similarly to the class that loses when between the two classes. It is not easy to understand that one of the key duties of the constitutional court is to declare invalid acts which are repugnant to the constitution or the rules. The Judiciary including the other organs of the government and other running the institution are similarly destined by the law of the land. [2]

Administration of justice by an impartial judiciary is the basis of our system of jurisprudence and indeed of the jurisprudence of any civilized state. It is the concern not merely of immediate litigants. Its insurance is every one’s concern. The form of administering justice prevalent in our courts is that a decision to be drawn in a case can be caused only by open court facts and arguments and not by external interference, whether private talk or public printing.[3]

There is no question that judges are responsible and accountable to society and that their conscience and the oath of their office must judge their obligation. However, in the interest of the nation, it is essential that at each and every critique made over any decision or order of the court must be made in very cogent and abstemious manner and proceeds from the chief purpose without being a colored remark or by any one-sided spirit or diplomacies. The power to prosecute for perverting the course of justice is a safeguard not for the judges as an entity, but just for the part they play. For a free society, it is an important criterion of that position that people, however strong, ought not be ripped from their mourning of integrity by the underflow of foreign interference in a specific dispute pending before the courts and pending verdict.[4]


Contempt of Court is an offence sui generis.[5] It is a dispute among the judiciary and the contemnor.[6] It is intended to ensure that the courts perform their duties properly, unhampered and unsullied by gratuitous attacks on the judicial administration system or on the officials who administer it, and to avoid the deliberate disobedience of the court’s order.[7]  The Non-Appearance of a lawyer, either in the name of strike, or otherwise has been held to be a criminal contempt, use of contemptuous language by an Advocate and forging orders of the court to obtain favorable orders from the government amounts to criminal contempt.[8]

The object of granting this power of contempt is to sustain the dignity and pride of the judiciary and the respectful image the eyes of the nation. The superior courts are having the power to safeguard and protect the image of the judges of top and the subordinate courts, taking into consideration the rising propensity  of slandering the reputation of the judge by unprincipled lawyers who do not succeed to obtain guidelines of  their desire or one who does not benefit for having underhanded drive in badgering. It is noted that freedom of speech should not be misunderstood or misunderstood with the right to make false claims against any entity, far less the judiciary.[9]

However, it has been believed that a good and fair critique of a decision of a judge dealing with the justice system that is a public domain or a public act does not entail contempt of the Court .It is the right of every citizen of this country to disparage a view of the courts, to bring issues along its deductions like a lawful proposition, or even interrogate   the outset of its facts, as long as such disapprovals are done in a respectable manner, and are made in a kind and humble language and are not crafted in a with an aim to deliberately or nastily twist the respect and place of judiciary in the country, or aiming to bring it in disregard or lowering the esteem reason being the authority to which a court is authorized up to, can’t be probed.

The Contempt of Court Act, 1971 which generally embodies the common law of contempt, outlines the power of court regarding providing the punishment for the contempt of court and regulates the procedure thereof. There are three distinct kinds of disdain. The court itself is scandalized by some kind of contempt. There may also be a contempt of this court for threatening parties involved in the cases here. In prejudicing humanity against persons before the case is heard, this court may also be contemptuous.[10] Section 2(a) of the questioned Act says that, the “Contempt of court” comprises of both ‘Civil Contempt’ and ‘Criminal Contempt’.

The Section 2(b) of the impugned act says that, Civil Contempt means a intentional defiance of any judgement, decree, writ or further processes of a court or deliberate breach of an task handed to the law court.[11] It can be interpreted as an offense to the individual or a party who is eligible to the protection of a court’s order. It is a wrong for which the injured party requires to be indemnified by the wrongdoer; though legally it is contempt of court, instead, it is a misdeed which is private in nature. Deliberately making an inaccurate report to mislead the court, has been held to that an injury to the course of justice and punishable by contempt of court.[12]

Section 2(c) of the act states that a Criminal contempt is the disclosure (whether by speech, spoken or written, or by signs or evident representation or otherwise) of any matter or act, whatever, is a criminal contempt-

(I) outrages or threatens to outrage or diminish, or threatens to diminish some court’s authority; or;

(II) influences or threatens to bias or hinder with the due course of any legal minutes or;

(III) interferes or threatens to interfere with the management of fairness in a different way, or hinders or hovers to hinder the supervision of reasonableness.[13]

It is an offence of grave nature. Manacling, detaining or assaulting a Judicial Officer of any court or tribunal by any Police authorities leads to criminal contempt. If any judge is commanded into deception by unprincipled police and is permitted to be attacked, manacled or lashed, the people of the nation are bound to lose confidence in the court of justice, which will inevitably be counterproductive to any politically constituted society’s basic structure.


“Justice is not a cloistered virtue”

-Lord Atkin

The Right to free speech, is the most valued and precious right guaranteed to people, this “prized privilege,” has been considered to be an integral and indivisible part of a democratic political system. It is said to be a pillar of democracy’s operation.[14] It is indispensable for the maintenance of rule of law and the freedom of the citizens.[15] Each citizen has an undoubted right to lay before the public what feelings he pleases. Any effort to stifle or suffocate or gag this right will sound a death knell to democracy and would help usher in autocracy or tyranny. The freedom to air one ‘s opinion is the lifeline of any democratic institution.[16]

For almost every other form of freedom, freedom of speech is the structure, the vital condition. It is the well-spring of humanity, and freedom of thought would shrink without it.[17] The saying “speech and expression” is of a widespread implication and, thus, includes the freedom of propagation of ideas, their publication and circulation. It is said that freedom of speech and expression must be granted a wide scope, but it must have inherent limits that are allowable within the constitutional parameters.[18]

It is held that an action tending to violate the right to life under the virtue of Article 21 of another person or to jeopardize national security can never be justified by a plea of free speech. Likewise, the fundamental right to free speech does not grant a individual the right to be disdained by the Court. It can never be considered as an opinion based on the constitution security of democracy and free speech, nobody can ever continue to accuse any court authority for scandalizing or attempting to scandalize for contempt of court.[19] It is impossible to equate or confuse freedom with a license to make unfounded and reckless claims against any institution, let alone the judiciary.[20] The law concerned with the contempt of Court thus levies rational limitations on the fundamental right of speech and is within ambit of clause (2) of Article 19..

It has also been held that the powers conferred by Article 129 could not be restricted by the virtue of  fundamental freedom under Article 19.[21] Holding out threats and adopting pressure tactics by the parties to get the pending cases decided in the manner in which they desired, was held to be negation by the Rule of Law and the tendency is to scandalize the court and bring it into controversy and mockery.[22] The Right to free speech is the greatest virtue of  liberty in a democratic country like India, though sometimes this liberty is recurrently  and is contemptibly injured in plethora of circumstances. Of hardly less, if not on a similar platform in importance, lies the duty to have a admiration for the courts and tribunals, which acts as a torchbearers and up keepers of the society at large, which includes the breathes, freedoms, and the assets of the citizens of the country. The courts are empowered with the powers as well as an obligation to safeguard its reputation counter to malign, ill-founded and  an unjustified outbreak, which would have brought the court unreasonably into contempt by some ill authorities and would have ridiculed its standing in the eyes of the nation, and thus, by granting the courts with this power it saves it has to save its esteem because of its authority in the society. As a citizen of a country which is proud of its independent judiciary it should be the duty of all the citizens to safeguard and protect the courts against such attacks by unscrupulous authorities and people, this obligation and the duty is being casted mainly upon the associates of the Bar Association of various states and further officers of the court.[23]

It is held that the object of the law of contempt is not only to protect the integrity of the court, but also to protect the administration of justice.[24] In the case of Sahara India Real Estates  v. Security Exchange Board of India,[25] in this case the court said that when exercising the power bestowed on the Supreme Court pursuant to Article 129 and on the High Court pursuant to Article 215, read in Article 19, clause (2), which refers to the law relating to the disrespect of a court, they were empowered to ensure that the administration of justice was not skewed, bigoted, clogged or hindered with. The court may temporarily prevent statements from being made in the media for this reason. The object of the contempt law, the court explained was not only to punish, it includes the power of the court to prevent such acts which interfered with, impede or pervert administration of justice.


Is the Judiciary in a position to abuse the power of punishing for the contempt of court? Can the actions of the judiciary be justified to mutilate free speech or Rule of law for “maintaining the independence and the dignity of the court”? This section of the paper will be dealing whether the power of contempt of the court is used infra vires or is the power is being used ultra vires.

The Courts are considered to be the keeper and the protector of the fundamental rights of the citizens of the country. Not only is the Court the Sentinel of constitutional rights, but also a wheel of balance between rights and social power.[26] India’s people have a strong confidence in its judicial system, that is primarily entrusted with the task of dispensing justice and upholding society’s constitution. If the confidence of the society over the judiciary gets hampered, then the society will definitely remain deprived of laws and the administration of the society would suffer a lot.[27] The Courts are considered as the source of all judicial powers of the nation by the virtue of it being in the highest category for the proper administration and assuror of justice at the national level and is considered as the defender and the ultimate interpreter of the Indian Constitution and a checker of the maintenance of the Rule of law in the nation.[28]

The Courts are bound with the duty to sustain the constitutional values and is bound to adhere the limitations prescribed by the Constitution, and acts as the final interpreter of the Indian Constitution. The Apex court in V.M Manohar Prasad v. N. Ratnam Raju,[29] observed that, a peculiar and uncommon right under both the Constitution and the Contempt of Court Act, 1971, is the authority vested in the High Courts and this court to punish the contempt …. The very essence of the power imposes on the courts a sacred obligation to exercise the same with the utmost care and caution. Further, in Jagdish Prakash Saxena v. State of Madhya Pradesh,[30] the Apex court has categorically held that admissions of an alleged statement of contempt must be taken in a complete form. It would be wrong from the side of a judge to admit only a few sentences into consideration, and interpret them here and there and only consider those statements and overlook the remaining sentences from the alleged statement which sums up the so-called contempt statement.

However, issuing a caution, the Apex court said that the power would be used sparingly and the mechanism followed should be equitable in exercising this inherent power by summary procedure, requiring conformity with the standards of natural justice.[31] His Lordship referring to common law traditions,[32] It claimed that the court had to warn the alleged contemnor in writing of the charge of contempt when the contempt was allegedly committed in the presence of the court and then allow them the opportunity to defend the charge. The Learned judge said, bearing in mind the age-old theory that the court serves as both the judge and the accuser in contempt proceedings, rolled into one, the court must act with utmost restraint and caution and must comply with all the procedural provisions because the liberty of persons has been involved.


It is right to point out that there is no act of disrespect for a fair and reasonable criticism of a judgement which is a public record or a open piece of judge concerned with the administration of justice. Each and every condemnation of the court cannot constitute a contempt unless it is made to malign the reputation of the institution. Recalling the words of Sabyasachi Mukherji, J.,

That the effect of the words must be determined by men who are reasonably strong-minded, solid and courageous, and not by men who are frail and reluctant, or by men who, from any aggressive point of view, smell danger.

 Concluding with the observation of Hidaytuallah, C.J, made in the case of Rustom Cavasjee  v. Union of India,[33]

“There is no doubt that the court like any other institution does not enjoy immunity from fair criticism. This court does not claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgement of the judges. They do not think of themselves in possession of all truth or hold whatever others differ from them, it is so far error. No one is more conscious of his limitation and fallibility than a judge but because of his training and the assistance which he gets from the learned counsel he is apt to avoid mistakes more than others….We are constrained to say also that while fair and temperate criticism of this court or any other court even if strong, may not be actionable , attributing improper motives, or tending to bring judges or courts into hatred and contempt or obstructing directly or indirectly with the functioning of courts is serious contempt of which notice must and will be taken. Respect is expected not only from those to whom the judgement of the court is acceptable but also from those to whom it is repugnant. Those who err in their criticism by indulging in vilification of the institution of the courts, administration of justice and the instruments though which the administration acts, should take heed for they will act at their own peril. We think this will be enough caution to the persons embarking on the path of criticism.”


[1] Radha Mohan Lal v. High court of Rajasthan, AIR 20013 SC 1437 (India).

[2] Sankaran Namboodripad v. T. Naryanan Nambiar, 1970 AIR 2015 (India).

[3] Lakhan Singh v. Balbir Singh, AIR 1953 All 342 (India).

[4] Pennekamp v. Florida, (1946) 90 Law Ed. 1295.

[5] Sahara India Real Estates Corp. Ltd. v. SEBI, AIR 2012 SC 3829 (India).

[6] Mahalakshmi Sagar Mills Co.Ltd v. Union of India, AIR 2009 SC 992 (India).

[7] Commr., Agra v. Rohtas Singh, AIR 1998 SC 685 (India).

[8] Re: Bineet Kumar Singh, AIR 2001 SC 2018 (India).

[9] Vishram v. State of U.P., AIR 2011 SC 2275 (India).

[10] Supra Note 2.

[11] The Contempt of Court Act, 1971, Section 2(b)

[12] Vijay Syal v. State of Punjab, JT 2003(5) SC 241 (India).

[13] Section 2(c) The Contempt of Court Act, 1971.

[14] Union of India v. Naveen Jindal, AIR 2004 SC 1559 (India).

[15] Union of India v. Motion Picture Association, AIR 1999 SC 2334 (India).

[16] LIC of India v. Manubhai D. Shah, AIR 1993 SC 171 (India).

[17] Maqbool Fida Hussain v. Raj Kr. Pandey, 2008 CrLJ 4107 (India).

[18] D.R. Tuljapurkar v. State of Maharashtra, AIR 2015 SC 2612 (India).

[19] Re Arundhati Roy, AIR 2002 SC 1375 (India).

[20] Radha Mohan Lal v. High court of Rajasthan, AIR 20013 SC 1437 (India).

[21] Re: D.C. Saxena, AIR 1996 SC 2481 (India).

[22] Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345 (India).

[23] C.K Daphtary v. O.P. Gupta, AIR 1971 SC 1132 (India).

[24] Lord Salmon in A.G. v. Bbb, (1981) AC 303.

[25] AIR 2012 SC 3829 (India).

[26] Supra Note 4.

[27] Supra Note 22.

[28] Raja Ram Pal v. Hon’ble Speaker, (2007) 3 SCC 184 (India).

[29] (2004) 13 SCC 610 (India).

[30] AIR 1961 SC 1070 (India).

[31] Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176 (India).

[32] Coward v. Stapleton, (1953) 90 CLR 573.

[33] 1970 1 SCC 248 (India).

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