The Only Cure for Contempt Is Counter Contempt

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As Franklin D. Roosevelt rightly said,

“Democracy cannot succeed unless those who express their choice are prepared to choose wisely”

We all believe that among all the organs of the country, the judiciary is considered to be the one unprejudiced body which will safeguard the civil rights, as it is considered to be the main objective of any judicial system, not only that but it is also considered to be the central pillar of democracy, as the notion of freedom of speech and expression is intimately linked to the concept of democracy.

The contempt laws in India are one of the hazy legislation. The Contempt of Courts Act,1971 (the 1971 Act) defines contempt under Section 2 (a) which states, “contempt of court” means civil contempt or criminal contempt, Clause (b) “civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or another process of a court or willful breach of an undertaking given to a court: Clause (c) “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:

  1. scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
  2. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings’ or
  3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

The definition of the contempt of the court in the 1971 Act is too exhaustive, as there are no settled precedent and rule of law which actually determines the offence of contempt, leaving discretionary powers in the hands of the judges to take cognizance when they feel the need for it, which clearly comes in conflict with the Fundamental Right of Speech and expression envisaged in Article 19(1)(a) of the Constitution of India.

The discretion can be derived through cases to case basis which even has similar facts but different outcomes, such as E. M. Sankaran Namboodiripad vs T. Narayanan Nambiar on 31 July 1970, the case was against EMS Namboodiripad, former Chief Minister of Kerala, who was convicted for contempt of court for saying that courts were biased in favor of the rich, similarly, In P.N. Duda vs V. P. Shiv Shankar & Others on 15 April 1988, the facts were that a Union cabinet minister had said that the Supreme Court sympathized with zamindars and bank magnates. He further said “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for haven”.

Contempt of court petition was filed against the minister but no action was taken by the Supreme Court. A progressive example while entertaining a Contempt petition can be seen in the case of Rajesh Kumar Sing vs. High court of Judicature of Madhya Pradesh, Bench Gwalior where the alleged contemnor severely criticized judges for assigning themselves the task of resurrecting the judiciary’s dignity and observed that judges think the judiciary’s dignity is so brittle that it crashes the moment a judgment is criticized or a judge’s integrity is questioned. While dealing with the matter, Supreme Court judges, Justices RV Raveendran and Lokeshwara Singh Panta opined that “Judges, like everyone else, will have to earn respect… The court should not readily infer an intention to scandalize courts or lower the authority of courts unless such intention is clearly established.” Such instances can be beautifully concluded by former Hon’ble Justice Mr. Markandey Katju, “What could be regarded as scandalous earlier may not be regarded as scandalous today and what could earlier be regarded as prejudicing or interfering with the course of justice may not be so regarded today.”

Recently, Mr. Prashant Bhushan, an eminent jurist was found guilty of criminal contempt, over a trivial tweet which involved facts and minimal criticism on the Chief Justice on India, the furious action and reaction of the Court has ignited the debate of Right to Freedom of expression and speech vis-a-vis Contempt of Court, the major question lies here is: A body which guarantees to safeguard the Fundamental Rights of the citizens, as envisaged by our Constitution of India, can be shaken over a trivial Social Media Post as it involves certain facts about the Chief Justice of India?

Another issue that arises herein is, the different judicial approach on the interpretation of contempt, when an alleged act/action/speech arises and creates friction between two non-judicial entities and on the other hand internally in the fraternity of legal system itself.
During the contempt proceeding hearing, Mr. Bhushan rightly submitted, “Open criticism of any institution is necessary in a democracy, to safeguard the constitutional order. We are living through that moment in our history when higher principles must trump routine obligations, when saving the constitutional order must not come in a way of discharging our responsibility towards the future. Failing to speak up would have been a dereliction of duty, especially for an officer of the court like myself.”

Why should Indian judges have to be so sensitive? While passing the judgment in, In Re Arundhati Roy, the court held, “A judicial dictatorship is a fearsome a prospect as a military dictatorship or any other form of totalitarian rule.” Should courts become intolerant of criticism or expressions of dissent, it would mark the beginning of degradation of the system of Rule of Law.

Rule of law says that the post created under the constitutional scheme and the individual serving the post are all eventually subject to the same principles of equality, fairness, freedom of speech and expression, recognition of dissent, as acknowledged under the scheme of the constitution for every citizen.

To draw close attention to the case, the picture of the Chief Justice of India on the motorcycle drew attention from not only media channels, print media but was also circulated as a humorous content, does the same amounts to Contempt of Court? Of course not!

On the contrary, When the House of Lords delivered the judgment in the 1987 Spycatcher case; a prominent newspaper published as of its headline “You Fools”. Fali Nariman, the eminent Indian lawyer, was in London at that time and he asked Lord Templeman who had delivered the majority judgment why the judges did not take action for contempt of court. Lord Templeman smiled and said that judges in England do not take notice of such comments.

The courts while initiating Contempt proceeding should consider the words of Lord Denning:

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”


This article is written by Kapil Joshi, Counsel, Supreme Court of India, Founding partner, Kashi Nath Partners & Vibhuti Seth, Associate at Kashi Nath Partners, Commercial advisory, litigation and consultation.


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