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2022
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Analysis of Criminal Contempt in India

ESHITA BAGHEL1

ABSTRACT
Criminal Contempt restricts free speech. Due to this, the problem is how much use of
Contempt can be made today? Some liberals argue that we should completely do away with
criminal Contempt. This project revolves around law relating to Contempt in India, judicial
approach with respect to Contempt in India, analysis of various cases on criminal
Contempt. From the holistic understanding of different aspects, this work tries to find out
the possible solutions and suggestions in this regard.
In this project, various legal provisions dealing with Contempt under the Constitution,
Code of Criminal Procedure, 1973 and Contempt of Courts Act, 1971 are analysed. After
this, the various landmark and controversial judgements are analysed to find out what are
the problems relating to criminal Contempt and what should be the approach adopted to
tackle such problem. In this regard, the aid of Primary sources like judgements, statutes
and the Constitution is taken. Apart from this, secondary sources like articles, editorials
and books are also used.

I. INTRODUCTION to be kept in mind is that, while exercising

restriction, a state cannot do away with the
Criminal Contempt in India is taken too seriously
environment of Free Speech. Denial of Free
these days. In the year 2020, a lot of cases have
Speech has shaken democracy and may lead to
been filed against various people. Actors,
autocracy. Harsh punishment and huge
businessmen, politicians and even stand up
conviction in crimes related to speech may
comedians are charged with Criminal Contempt
impede dissent, bona fide criticism, debate and
for giving statements of opinion with respect to
discussion and ultimately democracy.
the judiciary. Due to a large number of cases in
Criminal Contempt in 2020, it is argued by many In the light of this, this project aims to analyse

scholars that Free Speech and democracy is the law and judicial approach with respect to

hampered. Freedom of Speech and Expression is criminal Contempt in India. In this, the principles

a fundamental right, but it is not an absolute right enunciated by the court about how the court

and may be restricted. But, the question is to what should approach with respect to contempt cases

extent can it be restricted? How much is the State are analysed.

justified in imposing the restriction? One thing is

1
Author is a student at Rajiv Gandhi National University of Law, India.

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(A) Research Objective One of the limitations of this research is that it

The objective of this project is to analyse the focuses on an aspect of criminal Contempt in

principles and standards by which criminal India; It does not specifically deal with civil

Contempt should be approached. As criminal Contempt. Only that much aspect of civil

Contempt puts a direct hindrance on free speech; Contempt is analysed as is necessary for

hence principles and course of action in such Criminal Contempt. The project does not deal

cases is important. with civil Contempt as a separate topic.

Contempt in India is of two types, i.e. Criminal
(B) Research Question
Contempt and Civil Contempt. Civil Contempt
This project focuses on laws relating to Contempt means disobeying any order or decree of the
in India. In this, following are the research court. Criminal Contempt, on the other hand,
questions covers scandalising the image of a court or
• What were the legal provisions with interfering in the course of judicial proceedings
respect to Contempt? and administration of justice.

• What approach has the Supreme Court II. LAW RELATING TO CONTEMPT OF
followed in criminal Contempt? COURTS IN INDIA

• Whether criminal Contempt can be done (A) History

away with in today’s scenario of Liberty and
The origin of contempt law is Victorian; it was
democracy.
enacted in 1926 in the British era. Later, it was
• How should a court respond in contempt replaced in 1952 and then in 1971 by the
cases? What sort of punishment(harsh or mild) Contempt of Courts Act, 1971. The 1971 Act did
may be awarded by the court not provide for truth as a defence. It was added
• Whether criminalising Contempt is a in 2006 by way of amendment.
good method to maintain the image of the court (B) Legal Provisions
in the eyes of the public?
In the Constitution, Article 19(1)(a) guarantees
• What should be the possible solutions in the right to free speech and expression, which can
this regard? be restricted under 19(2). Contempt is one of the

(C) Scope of Study grounds under 19(2). The Constitution of India,

under Articles 129 and 215, empowers the
In this research, the main areas of focus are legal
Supreme Court or the High Court as the case may
provisions and judgements relating to the
be to punish for the Contempt of itself.
Contempt of courts.
According to the said articles, these courts are
(D) Limitation of Research treated as “courts of record.”2 This term means

2
INDIA CONST. art. 129

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that the proceedings of the court are recorded and made by that trial court. After cognisance,
are of evidentiary value. To give more impetus to Section 345 and 346 deal with the further
these rights court gets the power to punish for its procedure.5
Contempt. Further, Article 142 gives two-fold (C) What is Contempt?
powers to the Supreme Court, one to pass any
In India, Contempt is of two kinds: Civil
order in the interest of justice, and two to secure
Contempt and Criminal Contempt, S.2(1)(a). As
– attendance of a person, production of a
per Section 2(1)(b), Civil Contempt means
document, and investigation/punishment of
willful disobedience of judgement, decree, order,
Contempt.3
etc. or wilful breach of undertaking. Section
The Constitution, through the way of lists under 2(1)(c) defines Criminal Contempt is doing any
VII Schedule, grants the appropriate Legislature of the following
to make laws with respect to Contempt. Entry 77
i. Scandalising or Lowering the authority
List I empowers the Parliament to make any law
of the court
relating to the Contempt of any Supreme Court.
Entry 14 of List III empowers the Parliament ii. Interfering with the course of Judicial

and the State Legislature both to make laws w.r.t. Proceeding

Contempt of any Court, except Supreme Court. iii. Interfering with Administration of

In this regard, the Parliament enacted the Justice

Contempt of Courts Act, 1971. This is major Point ii requires interfering with judicial
legislation in Contempt. Under S. 23 of this Act, proceedings means causing annoyance or
Rules to regulate proceeding for Contempt of disturbance in a judicial proceeding. Point iii
Supreme Court, 1975 and Contempt of Court requires interference with the administration of
Rules 1992 are made for further justice like threatening or inducing the witness,
implementation.4 giving false evidence, threatening the victim, etc.

Last but not least, under the Indian Penal Code, Both the points are very objective in nature. On

1860, Section 228 deals with intentional insult or the basis of evidence, the fact is established, and

interruption to public servants during the course guilt is made out. However, point I is

of a judicial proceeding. Under this, the trial controversial as it requires proof that the

courts are empowered to punish for the statement resulted in scandalising/ lowering the

interruption or insult of itself. Section 195 of the authority of the court. Due to this, the decision of

Code of Criminal Procedure 1973 states that the whether a statement did result in scandalisation

court cannot take cognisance of an offence under or lowering the authority is subjective in nature

228 IPC except when a complaint in writing is and depends on the discretion of the judge. Due

3 5
INDIA CONST. art. 142 Code of Criminal Procedure 1973, No. 2, Acts of
4
Rules to Regulate Proceedings for Contempt of the Parliament, 1973
Supreme Court, 1975, Contempt of Courts Rules 1992

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to this, this project puts a major emphasis on the Law officer designated by Central
judicial approach with respect to point iii. Government’s notification)

The word scandalises has been explained in P. N As per Section 22, the Contempt of Courts Act is
Duda v. Shiv Shankar and Others and C.K. 6
“in addition” and not “in derogation” of other
Daphtaray Case; in these cases, the word Acts for the time being in force. Due to this, the
scandalises was interpreted. Scandalises means Supreme Court can punish for Contempt under
to attack the judiciary or a judge as a judge and Article 142 also.8
not as a person. It does not include scandalise (E) What can be ordered
judge as a person; wrt his personal life in such
cases, it is not Contempt. After the charge of Contempt is proved, the
contemnor can be punished
One of the important points of analysis here is
that in Civil Contempt, disobedience should be
Statute Punisment
wilful, whereas this is not required in Criminal
Contempt. Hence, when it comes to Criminal Section 12 Maximum imprisonment of 6
Contempt, the standard of proof is less as Contempt months or fine of 2000 rupees
compared to Civil Contempt. This goes against of Courts

the very cardinal principle of proof in Civil and Act

Criminal Cases, which requires a higher standard

Article 142 The court can pass any order in
of proof in criminal cases.7
the “interest of justice.” Under
(D) Who has the power to initiate the this, the court can basically order
proceeding? anything

S 15 of the Contempt of Courts Act, the High

Court or the Supreme Court can take cognisance
(F) Defences available
of Contempt in the following manner
Under the Contempt of Court Act, the following
• Suo Motu
defences are available
• Motion made by Advocate General or
• Innocent publication9
any person with consent in writing of
• Fair and accurate report of a judicial
Advocate General(or in case of Delhi
proceeding10

6
AIR 1988 SC 1208 i. discovery and production of document or
7
In Criminal Trial, the proof beyond reasonable doubt ii. investigation or
is required. In Civil Trial, the principle of balance of iii. punish for contempt of itself
9
probability is applied which requires just a proof of The Contempt of Courts Act, 1971, No.70, Acts of
possibility. Parliament,1971, S. 3
8 10
Under Article 142(2) the Supreme Court has power The Contempt of Courts Act, 1971, No.70, Acts of
to order Parliament,1971, S. 4

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• Fair criticism of merits of a decided iii. Must avoid confusion between personal
case11 protection of libelled judge and prevention of
obstruction of public justice.
• Court is satisfied that the nature of
Contempt is such that it does not exist iv. Media being the fourth estate of a
substantially interferes with due course democracy, it should be given an atmosphere of
of justice12 free space, including in critical attention of
courts, supreme court, etc., within the
• Truth as a defence can be allowed by the
responsible limits.
court if the court is satisfied that
v. Even when distortion and criticism
o truthful Contempt is made in
overstep their limit, the judges must not be
public interest and
hypersensitive while dealing with such cases.
o in bona fide manner13
Oversensitivity may disturb free speech
• Contempt of Nyaya Panchayat or village
vi. After evaluating the above points, if the
courts14
statement is still scurrilous, offensive,
III. JUDICIAL APPROACH intimidatory, or malicious and beyond
condonable limits, then only he can be punished
(A) Important Principles
for Contempt.
In R Mulegaonkar case,15 Justice Krishna Iyer
In Baradakanta Mishra v. the State of Orissa,16
gave the following set of guidelines for the judge
the court gave the following important
to follow
principles:
i. Wise economic use of contempt
i. Firstly, one must check whether the
jurisdiction. This court may ignore “majestic
scandalisation of the judge is as a judge or as an
liberalism” trifling and menial offences. He said,
individual. If it is as an individual, then it will not
“the dogs may bark the caravan will pass.”
be a case of Contempt. In this, the court relied on
ii. There must be Harmonious
the case of Queen v. Gray. Further, the court
interpretation of constitutional values, i.e. Right
clarified if it is criticism of a judge “as a judge,”
to Free criticism and Reasonable restriction
then the court must exercise the contempt power
under 19(2)
“scrupulous care”, and in cases “beyond
reasonable doubt”, only the conviction can take
place.

11
The Contempt of Courts Act, 1971, No.70, Acts of added, S. 13(1)(b) in 1971 Act
14
Parliament,1971, S. 5 The Contempt of Courts Act, 1971, No.70, Acts of
12
The Contempt of Courts Act, 1971, No.70, Acts of Parliament,1971, S. 21
15
Parliament,1971, S. 13(1)(a) AIR 1978 SC 727
13 16
The Contempt of Courts (Amendment)Act, 2006, (1974), 1 SCC 374
No.6, Acts of Parliament,2006, S. 2. The amendment

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ii. Secondly, the degree of harm in respect the Supreme Court could not take away the
to the administration of justice must be seen. If license of an advocate as it is the function of BCI.
the harm or effect is slight, then the court should While exercising power under 142 r/w 129 of the
not exercise contempt power. Constitution, the court cannot supersede its limit

iii. Further, to uphold the dignity of the and usurp the functions fixed by a statute.

judge, the judge must rely on their own conduct However, it was clarified that the court has the
power to bar appearance in the courtroom of the
iv. The power of Contempt may exist with
contemnor advocate.
respect to administrative acts of the judge. Here,
the test is whether the Contempt affects the Suspension or revocation of license is different

administration of justice or not. from preventing appearance from the court.

Within the courtroom, the court has all power of
(B) Powers in Contempt Cases
supervision of conduct. Hence, it may pass an
Although under the Contempt of Courts Act, order to exclude a particular advocate from
1971, the Supreme Court or the High Court may appearing. Hence withdrawal or suspension of
punish with a maximum sentence of 6 months. license is within the domain of Bar but ensuring
However, under Article 142, it has wide powers conduct inside the courtroom remains within the
to order any form of punishment depending on domain of the court. These two powers are
the nature of the contempt case. Here an different; the jurisdiction is different, their source
important question arises, whether the court can is different, and also their procedure is different.
bar the license of an advocate while exercising its In Harish Uppal v. Union of India,19 the
contempt jurisdiction? difference between barring appearance and
Grant or withdrawal of an advocate’s license is suspension of license was made out. Barring
the function of the Bar Council of India (BCI) appearance from the court does not mean
under the Advocates Act, 1961. Under the Act, complete termination of practice. The advocate
the license may be withdrawn by BCI through may perform all other functions such as
disciplinary proceedings for “professional providing consultation to clients, drafting and
misconduct.” Hence, the question lies can the pleading, participating in conferences, working
Supreme Court take away the license of an as a law officer in a firm, etc.
advocate while exercising contempt power. In
the Vinay Chandra Mishra case,17 the court
suspended the license of an advocate for three
years. Later this was challenged in Supreme
Court Bar Association v. Union of India.18The
court overruled Vinay Mishra Case and held that

17 19
(1995) 2 SCC 58 (2003) 2 SCC 45
18
1998(4) SCC 409

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In this, it must also be kept in mind that the court

Appear before may debar the appearance of an advocate in
the court
exercising of power under Contempt only and not
Provide
Assist in filing
Vakaltnama
Consultation to
client
for other powers. This was held in
Muthukrishnan v. Registrar General.22 Recently
RIGHT TO
PRACTICE
the court barred the appearance of the advocate
Assist in
drafting, Work as a Law in a contempt case. These were R.K.Anand v.
pleading , officer in a firm
affidavit Registrar23 and Re Nedumpara case.24
Appear in
arbitration (C) Recent Cases

Re Nedumpara and Re Vijay Kurle case25

Hence from the diagram, it is clear that In the case of Indira Jaising v. Supreme Court of
appearance in the courtroom is one of the India, the court gave various directions in respect
functions of an advocate. This one aspect is to the designation of an advocate as a “Senior
controlled by the court. When the license is Advocate.” From this judgement, a review
suspended by the Bar, the entire right to practice petition was filed, and it was heard by the bench
is taken away. of Justice Nariman and Justice Saran. While
This was further clarified by Bar Council v. the hearing this petition, the advocate Nedumpara
State of Kerela.20In this case, Rule 11 of High made the following remark, “Judges of the court
Court Rules, which empowered the High Court are wholly unfit to designate persons as Senior
to bar the appearance of an advocate if found Advocate as they only designate Judges’
guilty of Contempt, was challenged. The Bar relatives as Senior Advocate.” In this, he pointed
contended that such rules trespasses their power. out the name of Shri Fali S. Nariman. The court
The court held that the rules are valid as conduct took these remarks as Contempt and took suo
inside the court can be regulated by the court and motu cognisance of the matter. It said this was an
not BCI. As the two jurisdictions are different attempt to “browbeat” Justice Nariman. As a
hence when the court debars appearance, it does punishment, he was imprisoned for 3 yrs and was
not transgress upon the power of the Bar. It also barred from appearing before the court for 1 year.
relied on Pravin Shah v. Mohammed Ali,21 in This was Re Nedumpara Case.
which it was stated that Rule 11 is in respect to After this, the following people i) Vijay Kurle:
Contempt of court and not all forms of President of Maharashtra Bar Association, ii)
professional misconduct. Hence court has the Rashid Khan: National Secretary of Human
power. Rights Council, iii) Nedumpara and iv) Nilesh
Ojha: Advocate, wrote two letters addressed to

20 23
(2004) 6 SCC 311 (2009) 8 SCC 106
21 24
(2001) 8 SCC 650 Suo Motu Contempt Petition (CRL.) No. 1 OF 2019
22 25
AIR 2019 SC 849 (2019) 9 SCC 521

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Chief Justice of India and President. In this, they democracy was mainly due to the Supreme
opposed the sentence passed against Nedumpara. Court’s role in the past 6 years (especially of the
In the letter, the main points are summarised as last four CJI). In response to the tweet, Mahek
follows: The judges were not empowered to take Maheshwari filed a complaint; however, as the
cognisance, proper procedure was not followed, complainant was “other person”, u. s. 15, and
Nedumpara’s action was not mala fide as he did there was no consent of the Attorney General.
not give a proper explanation to save J Nariman Hence the cognisance was questioned. In this, the
from being exposed. While passing the order, the administrative side of the court allowed the
court has used material in its personal knowledge listing, and the matter was put before the bench.
without disclosing the source. Nedumpara denied The bench, on 22.7.2020, observed that the
his role in the letter hence was discharged. tweets scandalised the judicial institution,

On April 27 2020, the three advocates were especially the office of the Chief Justice of India.

found guilty of Contempt, and on May 4 2020, a It considered it grave and ordered for taking suo

sentence of 3 months imprisonment with a fine motu cognisance of the case.

of 2000 rupees was imposed. This was decided Shri Dave raised a preliminary objection that
by a bench of Justice Deepak Gupta. The court since the present proceedings were initiated by a
considered the letter as scandalous and a “proxy petition filed by Mr Maheshwari, it cannot be
war” for Nedumpara. Later, based on these treated as a suo motu contempt petition. Here, the
orders, some applications to call back the orders consent of the Attorney General was not
were made. Then again, a review of the judgment obtained. It was held that courts could deal with
was filed. In the review petition, Justice contempt proceeding suo motu under Article 129.
Nageshwara Rao and Justice Amitava Bose The court observed that Section 15 of Contempt
dismissed the petition. The bench considered it of Courts Act, 1971(COCA, 1971) is not the
as an attempt to abuse the process of law and source of power relating to Contempt. It gives a
hence imposed an exemplary cost of Rs. 15000. mere procedure of taking cognisance. The court

Prashant Bhushan case26 held that the “source of power” in Contempt

derives from Article 129, which is a
This case relates to contempt proceedings against
constitutional remedy. The Supreme Court relied
Senior Advocate Prashant Bhushan for two
on two recent decisions of the hon’ble court,
tweets he made on June 29, 2020. In the first
namely: National Lawyers Campaign for
Tweet, he said that the CJI rides a 30 Lakh
Judicial Transparency and Reforms and others
Motorcycle of a BJP leader without wearing a
vs. Union of India and others27 and Re: Vijay
mask or helmet, while he kept the Supreme Court
Kurle & Ors(2020)28 In these cases, the court
closed and denied the fundamental rights.
According to the second tweet, the destruction of

26 28
2019 SCC Online SC 411 Supra 24
27
2019 SCC Online SC 411

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undertook suo motu contempt proceedings • The extent of publication is very wide as
against advocates. Twitter is an online platform

The court held that both the tweets were very • The contemnor is an experienced
well within the ambit of Contempt. The court advocate with an established practice of
relied on observations in past judgements. In this, more than 30 yrs. Hence he should have
the nature, purpose & interpretation of Contempt been aware of protecting the
was analysed. Relying on this, the court
First Tweet
concluded that Article 19(1) protects free speech
In the first tweet, the court concluded that the
and expression, but this right is subject to
first part was that ‘CJI rides a 50 lakh motorcycle
restrictions under 19(2). Hence, if an individual
belonging to a BJP leader at Raj Bhavan, Nagpur
passes his limits and scandalises, then the court
without a mask or helmet’. It could be a criticism
will not remain a silent spectator. As far as fair
against CJI as an individual and not as CJI.
criticism is concerned, the court relied on the
However, the second part ‘at a time when he
following legal point:
keeps the SC in lockdown mode denying citizens
As submitted by Shri Dave, relying on the
their fundamental rights to access justice’.
observation made by Krishna Iyer, J, in the case
Undisputedly, the said part of the statement
of Baradakanta Mishra (supra), if constructive
criticises the CJI in his capacity as the Chief
criticism is made in order to enable systemic
Justice of India, i.e. the Administrative Head of
correction in the system, the court would not
the judiciary of the country. The court concluded
invoke the contempt jurisdiction. However, as
that the said tweet is capable of giving an
observed by the same learned judge in Re: S.
impression to a layman, that it has kept the
Mulgaokar, the court will act with seriousness
Supreme Court in lockdown and hence denied
and severity where justice is jeopardised by a
fundamental right to access justice. It further
gross and/or unfounded attack on the judges and
observed that (i) At that time, the court was on
where the attack is calculated to obstruct or
vacation, (ii) Even in lockdown, the virtual
destroy the judicial process. Justice Krishna Iyer
proceedings were held, and in some matters, even
further observed that after evaluating the totality
the contemnor appeared as a pleader. Hence, the
of factors, if the court considers the attack on the
statements made in the tweet were factually
Judge or Judges to be scurrilous, offensive,
incorrect and scurrilous.
intimidatory or malicious beyond condonable
Second Tweet
limits, the strong arm of the law must, in the
name of public interest and public justice, strike The court concluded that the highlighter part is
a blow on him, who challenges the supremacy of directed against the Supreme Court, tending to
the rule of law by fouling its source and stream. give an impression that the Supreme Court has a
particular role in the destruction of democracy in
The court held that it was not a bona fide
statement as

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the last six years and the last four CJIs had a more condemn the Supreme Court of India and its
particular role in the same. judges by exercising free speech.” They can’t do

Rachita Taneja case29 so. Free speech is subject to a ground of

Contempt. In the affidavit, Kamra pointed out,
The contemnor made following caricatures and
“My tweets were not published with the intention
tweets w.r.t. Supreme Court. In the contempt
of diminishing the faith of the people in the
petition, the Attorney General granted consent in
highest court of our democracy. It is funny,
this case. The matter is yet to be decided.
though, how little faith the Petitioner appears to
have in the people of this country. The suggestion
that my tweets could shake the foundations of the
most powerful court in the world is an
overestimation of my abilities. Just as the
Supreme Court values the faith the public places
in it (and seeks to protect it by the exercise of its
criminal contempt jurisdiction in the judiciary is
founded on the institution's own actions and not
on any criticism or commentary about it…I
believe that constitutional offices, including
judicial offices — know no protection from
jokes. I do not believe that any high authority,
including judges, would find themselves unable
to discharge their duties only on account of being
the subject of satire or comedy,”

Kunal Kamra Case30

After Arnab Goswami’s interim bail, comedian

Kunal Kamra made a series of tweets against the
Supreme Court. The Attorney General granted
consent and considered such tweet “highly
objectionable.” According to Attorney General,
“people believe they can boldly and brazenly

29
‘Foundation Of Supreme Court Is Much Stronger, Can't Be Labelled Jokes; They Undermine Public
Criticism Can Never Be Contempt: Mukul Rohatgi Faith In Judiciary : Law Student's Rejoinder In
Submits For Rachita Taneja’ (2021), Live Law Supreme Court (2021), LIVE LAW NETWORK (Apr. 26
Network, available at https://www.livelaw.in/top- 2021, 7:30 PM), https://www.livelaw.in/top-
stories/rachita-taneja-sanitary-panels-contempt-of- stories/kunal-kamras-scandalous-tweets-cant-be-
court-supreme-court-169077 (last accessed on 15 labelled-jokes-they-undermine-public-faith-in-
April 2021) judiciary-law-students-rejoinder-in-supreme-court-
30
Srishti Ojha, Kunal Kamra's 'Scandalous Tweets' 171128

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697 International Journal of Legal Science and Innovation [Vol. 4 Iss 1; 687]

being prima facilely contumacious, the Attorney

General refused to consent. According to him,
these statements were made to cite his 'deep
frustration with the ills that undoubtedly beset
the justice delivery system.' Attorney General
also said that whatever was said by Justice Gogoi
was for the purpose of the good of the institution
and will not in any manner scandalise the court
or lower its authority in public eyes.
The matter is pending before the Supreme Court.
IV. ANALYSIS OF PROBLEMS
Justice Ranjan Gogoi’s contempt case31
(A) Preserving the sanctity of court,
Former Chief Justice of India and nominated
whether penalisation appropriate?
member of Rajya Sabha made the following
As held in Re Mulegaongar, “constructive
statements about the Supreme Court.
criticism” should be permitted and “every
• "You want a 5 trillion dollar economy,
shadow that darkens” must not be treated as
but you have a ramshackle judiciary",
Contempt.32 Here an important question arises:
• "If you were to go to the court, you Whether penalising is a proper course of action
would be only washing your dirty linen to prevent scandalisation of the image of a court,
in the court; you won't get a verdict. I or are there other methods to preserve the
have no hesitation in saying it", authority of the court?

• "Only corporations willing to take In this, one must analyse how the image, dignity
chances with their millions of rupees go or sanctity of a court is actually preserved in a
to Supreme Court." legal system. A judgement consists of ‘reason’

• "the judicial system has not worked for and ‘decision.’ A judicial system backed by legal

more reason than one", principles and rationality is always respected in

society. For instance, when the Supreme Court
• "Unfortunately, there are many judges
recognised the rights of transgender to gender
who are succumbing to criticism made in
identity33 and allowed consensual homosexual
media".
intercourse,34 ensured equal rights of women in
In this regard, consent of the Attorney General
was requested. However, despite the statements

31
Shrishti Ojha, For The Good Of The Institution": 170471
32
AG KK Venugopal Refuses Consent For Contempt Justice Krishna Iyer, Bardakanta Mishra supra
33
Proceedings Against Former CJI Ranjan Gogoi National Legal Services Authority v. Union of India
(2021), LIVE LAW, (Mar.30 2021, 2:00 PM)) and Ors., (2014) 5 SCC 438.
34
https://www.livelaw.in/top-stories/cji-ranjan-gogoi- Navtej Singh Johar vs. UOI; Akkai Padmashali vs.
contempt-of-court-ag-kk-venugopal-saket-gokhale- UOI (2018) 10 SCC 1

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698 International Journal of Legal Science and Innovation [Vol. 4 Iss 1; 687]

armed forces35 and naval forces,36 allowed tremendous application in the current world.
passive euthanasia,37 etc. After these decisions, Liberty is one of the quintessential rights of a
the headlines and people regarded the Supreme human. Justice Khanna in ADM Jabalpur41
Court as the highest pedestal of justice in the real upheld this right at the cost of his Chief
sense. Not only, in recent times, in history also, Justiceship.42 Later on, his dissent was upheld by
but cases like Maneka Gandhi, Keshavnanda Justice DY Chandrachud in Puttaswamy when he
Bharti, E.P Royappa have also brought utmost overruled the majority judgement of ADM
respect to the judicial system. Through better Jabalpur. In the 2020s, Justice Chandrachud has
decisions, through the conduct of the judges time and again spoken of the importance of
itself, respect is revered dissent in the country. In recent times he gave

Apart from this, dissenting opinions have played very sound dissent in cases like Sabarimala

a major role in preserving the dignity of the court. Review Petition, Aadhaar as Money Bill, etc.

When the majority of judges upheld the mutual The point is all such impressive, and creative
exclusivity theory of Fundamental rights, conduct brings respect and integrity in the true
personal Liberty confined to physical Liberty, sense and not penalisation and punishment.
and procedure established by law means a Allowing constructive criticism of the judiciary
procedural due process in Article 21, Justice Fazl itself brings respect rather than using a draconian
Ali recognised that fundamental rights are inter- law against individuals who exercise their free
related and inter-connected, personal Liberty is speech and punishing them for any statement
not limited to physical Liberty, “procedure” they make against the judiciary.
under Article 21 means substantive due Apart from this, one important point was
38
process. Later, both these aspects were mentioned by Professor Faizan Mustafa. He
recognised and appreciated in the landmark stated actual respect could be seen when the
Maneka Gandhi v. Union of India. people obey the decree or order of the court. To
Today, in a digitalised world, the protection of ensure that the court must be proactive towards
privacy remains a big challenge. In 2017, in civil Contempt so that decrees are obeyed
Puttaswamy,39 the 9 Judge Bench very creatively properly. However, the statistical data shows that
brought forth the principles of privacy protection. more than a lakh of civil contempt cases are
It is wonderful to note that long back in the early pending today.
1970s, Justice Subba Rao in Kharak Singh40 was Hence, the penalisation of people who criticise
able to recognise these principles, which have the judiciary might not be the only remedy. Other

35
The Secretary, Ministry of Defence v. Babita Of India And Ors. (2017) 10 SCC 1
40
Puniya & Ors. 2020 SCC OnLine SC 200 Kharak Singh vs The State Of U. P. 1963 AIR SC
36
Union of India v. Lt. Cdr. Annie Nagaraja & Ors. 1295
41
[2020 SCC OnLine SC 326] ADM Jabalpur vs Shivkant Shukla (1976) 2 SCC
37
Common Cause v. Union of India (2018) 5 SCC 1 521
38 42
A.K. Gopalan v. State of Madras AIR 1950 SC 27 Fali S. Nariman, Before Memory Fades, Hay House
39
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union India, New Delhi (2010)

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699 International Journal of Legal Science and Innovation [Vol. 4 Iss 1; 687]

means like the conduct of a judge, ensuring burners and

proper execution of the decree, and if it is not reactionaries
followed, then strict civil contempt mechanism
Although this court
should be adopted. Hence, Section 2(c)(i) should
acquitted him of
either be fully removed, or it must be used in the
Contempt
rarest of the rare case only.
EMS Namboodripad,44
(B) Subjectivity in Criminal Contempt
here CM of Kerela,
Cases
applied Marxist and
By the Supreme Court
Engels ideology for
Another problem in Contempt cases is that there the judiciary and
is a lot of subjectivity. Despite having legal stated that it was an
principles and guidelines, ultimately, what instrument of
amounts to scandalisation is at the sweet will of oppression and must
the court. Judicial discretion is there in many wither away.
other cases as well. However, there is some sort
The court itself read
of guidelines, principles or framework. However,
the ideology and held
in Contempt, one can observe a lot of variations
him guilty of
and subjectivity.
Contempt.
The court has shown a highly conservative
Vinay Chandra
attitude and convicted people for Contempt in
Mishra,45 in this the
some cases, whereas in some cases, it has been
license was suspended
too liberal.
for 3 years
Highly Conservative Highly Liberal
Nedumpara and Vijay
approach approach
Kurle(2019),46 the
Mohammed Zahir P.N.Duda case, the court barred the
Khan,43 either I am cabinet minster appearance of an
anti-national, or the called Supreme advocate from the
judges are anti- Court Judges, anti- court.
national social elements,

Held guilty of foreign exchange

Contempt violaters, bride

43
Mohammed Zahir Khan vs Vijai Singh and Others Nambiar, 1971 SCR (1) 697
45
AIR 1992, SC 642 Supra note 17
44 46
E M Sankaran Namboodiripad vs T Narayanan Supra note 24 & 25

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700 International Journal of Legal Science and Innovation [Vol. 4 Iss 1; 687]

By the Attorney General while Granting Contempt, the cognisance and the conviction
Consent both are left at the subjectivity of various

An analysis of the consent of the Attorney authorities. In the light of this, the following

General also reveals that there is a lot of variation suggestions are made,

in his approach while granting consent. In certain i. Either we should adopt a liberal
cases which prima facie appear to be a approach and do away with the contempt
scandalising image of court, but still, consent is law as is done in the countries like the
not given. Examples of such approaches include USA,
refusal of consent for cognisance of contempt ii. or the cases must follow a uniform
cases in the matter of Ranjan Gogoi’s statement standard or guidelines in order to avoid
in Rajya Sabha about the judiciary, Contempt biases and variations. In this, the
against CM Jeevan Reddy. In the Rajya Sabha, conviction in Contempt should be done
the former Chief Justice of India made the in extreme cases or in “rarest of the rare
following statements. However, he considered case.”47 As Justice Krishna Iyer said, the
constructive criticism in social media by Rachita court must view contempt cases through
Taneja and Kunal Kamra as Contempt. the dimension of “majestic liberalism.”
All this shows a high amount of subjectivity and Recently, Justice Madan Lokur stated, “There
biases in the approach of the Attorney General should be no criminal contempt. Judges should
himself. Hence, the question is, can a person be not be hyper-sensitive about everything. If the
convicted and penalised on the basis of such criticism is well-founded, then it is fine. Even if it
subjectivity and variations in approach. Can a is not, forget about it! There are so many things
person be penalised when an element of politics in life!.”
is also involved? From the theories of Penology,
At the end of the day, the reputation of the court
Victimology and Criminology, the answer is
and the image is maintained not by penalising
negative.
every criticism but by taking such criticism or
V. SUGGESTIONS AND CONCLUSION dissent in a positive manner and improving the

From the above analysis, it is concluded that work. Ultimately, it is the judgements and the

contempt law is a controversial law not only actions of the court which lead to its respect and

because it is draconian and imposes a huge integrity.

restriction on free speech but also because the *****

approach does not seem to be uniform in all
cases. Our criminal system works on the
principles of presumption of innocence and proof
beyond a reasonable doubt. However, in

47
Bachan Singh v State of Punjab (1980) 2 SCC 684

© 2022. International Journal of Legal Science and Innovation [ISSN 2581-9453]