This article is written by Soumyadeep Biswas, studying at University of Calcutta, B.A. L.L.B. 3RD Year during his internship at LeDroit India.
Keywords
Contempt of Court; Procedural Fairness; Judicial Authority; Freedom of Speech; Constitutional Safeguards; Criminal Contempt
Abstract
Contempt of Court in India is a critical juncture between judicial powers and procedural fairness. Under the Constitution of India and extended by the Contempt of Courts Act, 1971, this jurisdiction aims at ensuring the dignity, authority, and independence of the Judiciary, which are the hallmarks of the rule of law. However, contempt powers also raise serious issues relating to free speech, due process, and judicial accountability. The article analyses the constitutional basis for contempt jurisdiction under Articles 129, 142, and 215 and critically examines its procedure. It examines how contempt proceedings, despite their quasi-criminal nature, deprive an accused of several safeguards available in ordinary criminal trials, thereby placing the interest of justice to an accused in direct conflict with the institutional authority of the judiciary. The paper considers landmark cases like E.M.S. Namboodiripad v. T.N. Nambiar and In Re Prashant Bhushan to identify the evolving judicial approach toward criticism and dissent. Such powers, though essential to uphold the majesty of law, must have their reach applied with restraint, transparency, and procedural equity for retaining public confidence in the judicial system.
Introduction
Contempt of court is one of the most powerful and unique powers given to the courts in order to maintain the dignity, authority, and independence of the judiciary. The foundational aspect of a constitutional democracy rests on respect and adherence to the decision pronounced by the judiciary; however, in its quintessential form, this power runs in direct contravention to the equally basic principles of freedom of expression and procedural fairness. The Contempt of Courts Act, 1971, as supported by Articles 129, 142, and 215 of the Constitution of India, enables the Supreme Court and the High Courts to punish for their own contempt in order to preserve the administration of justice.
Yet, this extraordinary jurisdiction often stands at the crossroads of judicial supremacy and individual liberty. Some critics argue that contempt powers, in particular, when used to muzzle dissent or criticism against the judiciary, run contrary to the very spirit of democracy and accountability. The courts in India have, over the years, tried to strike a balance by underlining that contempt jurisdiction must not become a tool for personal prestige but a means to secure confidence in the public.
In Re: Prashant Bhushan decided in the year 2020, wherein the Supreme Court found a senior advocate guilty of contempt of court for his tweets, is the highpoint and articulation of that tension between judicial authority and procedural fairness. This case has revived the debate on several aspects related to contempt proceedings: transparency, right to appeal, freedom of speech, and proportionality of punishment. The case thus emphasizes the dire requirement for reforms and updation in the functioning of the contempt jurisdiction to bring it in accordance with the constitutional morality and the emerging expectations of a democratic society.
The Indian jurisprudence on contempt thus evolved as a reflection of the judiciary’s quest for a balance between authority and accountability, respect and reason, discipline and democratic freedom. Essentially, contempt doctrine remains a continuing dialogue between judicial independence and procedural justice, both indispensable to India’s constitutional framework.
Constitutional Basis of Contempt Power in India
The power to punish for contempt is derived by the Indian judiciary directly from the Constitution and is, therefore, not merely a statutory power but an inherent one ingrained in judicial independence. The Constitution of India, through a balanced structural scheme, recognizes the exercise of judicial self-preservation as essential to the rule of law and separation of powers.
Article 129 of the Constitution states that the Supreme Court shall be a Court of Record, and such a Court shall have the power to punish for its contempt. Such a provision gives the apex court an inherent power to act against any kind of conduct that has the tendency of lowering its dignity or obstructing the administration of justice. This is logical since, in the absence of such inherent power, the authority of the Court would be easily eroded.
Similarly, Article 215 extends the same status and authority to all High Courts, enabling them to preserve their sanctity and ensure compliance with judicial orders. The power under Article 215 is co-extensive with that of the Supreme Court under Article 129, reflecting the framers’ intent that judicial respect must be maintained across all hierarchies of courts.
Further, Article 142(2) supplements these provisions by empowering the Supreme Court to pass “such orders as are necessary for doing complete justice”, which includes actions related to contempt. This holistic constitutional structure affirms that the power to punish for contempt is inherent, self-executing, and beyond ordinary legislative control.
The contempt power, therefore, represents a constitutional guarantee that justice is not delayed or diminished by outside interference. It underlines the role of the judiciary as the guardian of constitutional morality, balancing its independence with accountability.
Statutory Framework: The Contempt of Courts Act, 1971
While the Constitution of India grants the basic authority to contempt powers, it is the Contempt of Courts Act, 1971 that outlines and governs the exercise of contempt powers with a view to ensuring that this exceptional power is not abused. The Act defines the meaning, scope, defences, and punishment for contempt and thus presents a statutory regime intended to balance judicial authority with individual rights.
Section 2(a) broadly divides contempt of court into, among other things, civil and criminal contempt. Section 2(b) defines civil contempt as the “willful disobedience” of any judgment, decree, or order of a court or of a willful breach of an undertaking given to a court. This clause highlights adherence to judicial orders as one of the cardinal duties of litigants and institutions.
Thus, Section 2(c) defines criminal contempt to include acts that “scandalise or tend to scandalise the authority of any court,” prejudice or interfere with judicial proceedings, or obstruct the administration of justice. However, this definition has often come under criticism for its vague and subjective language, particularly regarding the phrase “scandalising the court”, which may blur the line between legitimate criticism and punishable contempt.
To preserve free expression, Section 5 stipulates that fair and reasonable criticism of judicial acts or the functioning of courts does not amount to contempt. The clause is a democratic safeguard, realizing that criticism, if made in good faith, strengthens rather than weakens judicial accountability.
Finally, Section 12 limits punishment for contempt to six months’ simple imprisonment or a fine up to ₹2,000, or both. This statutory restraint reinforces the principle that contempt is a measure of last resort and not a weapon to silence dissent. However, as scholars have noted, ambiguities within the Act call for reform to clarify the line separating judicial dignity from democratic dialogue.
Procedural Fairness in Contempt Proceedings
Although contempt proceedings are classified as quasi-criminal, they often do not carry the full panoply of procedural protections afforded in regular criminal trials. This tension between judicial authority and due process has raised persistent constitutional concerns about fairness, representation, and the right to appeal.
A. Notice and Attorney General’s Consent
Under Section 15 of the Contempt of Courts Act, 1971, no private person may institute criminal contempt without the prior consent of the Attorney General or Solicitor General. However, in In Re: Prashant Bhushan (2020), the Supreme Court invoked Suo Moto powers under Article 129, holding that its constitutional authority is not curtailed by statutory procedure. Critics argue this undermines the principle of independent scrutiny before prosecution.
B. Lack of Intra-Court Appeal
One serious limitation is the lack of an intra-court appellate mechanism. Once the Supreme Court convicts for contempt, no appeal lies within the same forum. Bhushan’s plea for reform contended that the same bench acting as “judge, jury, and prosecutor” violates natural justice.
C. Right to Legal Representation
Unlike in ordinary criminal trials, contemnors have very limited rights to cross-witnesses or seek discovery. Scholars note that such limitation constrains effective legal defence, even when the punishability by imprisonment is possible.
D. Vagueness and Burden of Proof
The meaning of “scandalizes the court” is uncertain, so the ambit of liability is unpredictable. Nevertheless, courts confirm that the standard of proof is beyond reasonable doubt, so the criminal standard of evidence prevails.
Judicial Authority and the Need for Contempt Power
This power of the judiciary is derived not from coercive force but from public confidence and from the voluntary compliance with its decrees. It is this moral and institutional strength which is preserved by the contempt jurisdiction, ensuring respect for and the execution of judicial pronouncements. The Contempt of Courts Act, 1971, along with Articles 129 and 215 of the Constitution, empowers the Supreme Court and the High Courts to punish for contempt, thereby guaranteeing their constitutional independence against any encroachment on the part of the executive and legislature.
First, contempt power ensures the enforcement of judicial orders. Without the deterrence of civil contempt, disobedience might render judgments ineffective and erode confidence in the justice system. Second, it protects the dignity and integrity of the courts through penalizing acts that scandalize or lower public faith in the judiciary. This protection is not for personal prestige of judges but for the institutional respect that sustains the rule of law.
Finally, the power of contempt acts as a shield of judicial independence: it enables courts to work without external pressure and defiance. However, its use must keep a delicate balance: protecting the institution’s sanctity without silencing legitimate criticism that forms the lifeblood of a democratic judiciary.
In Supreme Court Bar Association v. Union of India, the Court emphasized that contempt jurisdiction, though extraordinary, must be exercised “sparingly and with caution.”
Landmark Judgments Illustrating the Balance
A. In Re Arundhati Roy, (2002) 3 SCC 343
Author Arundhati Roy was found guilty of contempt for her remarks that were held to have scandalised the court. The Court explained that punishment was needed in order to maintain public faith, but critics say it was disproportionate and inattentive to procedural restraint.
B. In Re Prashant Bhushan (2020)
This case has sparked fresh debates on Suo Moto powers and freedom of expression. Symbolically, the Court has imposed a fine of ₹1 without sending anyone to jail to make certain that punishment does not necessarily have to imply incarceration but it can nevertheless be used to reestablish authority.
C. Baradakanta Mishra v. Registrar of Orissa High Court, (1974) 1 SCC 374
The Supreme Court explained that criticism of a judge’s conduct in a pending case constitutes contempt if it interferes with the course of justice.
Recommendations for Reform
The emerging socio-digital landscape and democratic ethos indeed demand reforms in the contempt law of India to make judicial authority coexist with constitutional fairness and free expression. In attempting to achieve this balance, the following recommendations are made:
1. Introduce Statutory Right of Appeal
The contemnor, upon being convicted by the Supreme Court, does not have an intra-court appeal at present. The statutory right of appeal, which was suggested during the Prashant Bhushan controversy, would add to better accountability and would uphold the principle that no one can be a judge in their own cause.
2. Explain “Scandalising the Court”
The imprecise expression “scandalising the court” as expressed in Section 2(c) of the 1971 Act needs to be interpreted narrowly to distinguish malicious attacks from genuine criticism. Comparative jurisdictions like the UK have abolished this offence, realizing the potential for a chilling effect.
3. Strengthen Procedural Safeguards
Procedural reforms must make the requirement of notice, legal representation, and hearing before conviction in contempt proceedings in line with Article 21’s due process guarantees. In this case, even judicial criticism shall not be arbitrary.
4. Encourage Restorative Remedies
In minor cases, the courts should not imprison but rather opt for restorative approaches: apologies, explanations, or mediated clarifications. This would be in line with the modern principles of restorative justice and judicial restraint.
5. Digital contextualisation
with the increasing social media commentary about the courts, clear guidelines are needed about how to evaluate such online speech, balancing freedom of expression against the potential for real prejudice to justice.
6. Periodic Review of the 1971 Act
For this purpose, a judicial-academic review committee should be entrusted with the task of reviewing the Act’s relevance, proportionality, and compatibility with contemporary democratic values, so that the Act evolves with contemporary constitutional jurisprudence.
Conclusion
The Indian framework that deals with Contempt of Court has to strike a balance between judicial authority and procedural fairness. While the judiciary should have sufficient powers to maintain its dignity and ensure compliance with its orders, these powers must be exercised openly, with restraint, and accountability. Judicial authority is legitimized by the confidence and trust of the citizens, rather than fear of punitive action.
As democratic discourse expands through media and technology, the lines between legitimate criticism and contemptuous conduct need to be well demarcated. An overbroad operation of contempt would render what is intended to be a shield into a sword against public scrutiny. Thus, the power to punish for contempt operated fairly and predictably in accordance with due process standards under Article 21 is necessary if the moral authority of courts is to be preserved.
The task ahead requires procedural reforms, clear statutory definitions, and judicial restraint if institutional integrity is to be reconciled with the constitutional promise of free speech. True respect for the judiciary flourishes not in fear of contempt but in the faith of an informed and participating public ensuring that the power to punish serves as a guardian of justice, not a barrier to liberty.
References
1. In Re: Prashant Bhushan and Anr., (2020) 13 SCC 757. Available at: https://indiankanoon.org/doc/172868218/
2. Article 129, Constitution of India, available at: https://indiankanoon.org/search/?formInput=article%20129&pagenum=1
3. Article 215, Constitution of India, available at: https://indiankanoon.org/search/?formInput=article%20215
4. Article 142(2), Constitution of India, available at: https://indiankanoon.org/doc/500307/
5. Contempt of Courts Act, 1971, available at: https://indiankanoon.org/doc/1396751/
6. In Re: Prashant Bhushan and Anr., (2020) 13 SCC 757. Available at: https://indiankanoon.org/doc/172868218/
