Court of record

Also called: Article 129, Article 215 · Topic: Judiciary: Independence, Structure, Judicial Review and Activism · NCERT: Beyond NCERT

Meaning

A court of record is a court whose judgments and proceedings are kept forever as official records, and which has the power to punish contempt of itself. The Constitution gives this status to the Supreme Court (Article 129) and to every High Court (Article 215).

It matters for two reasons:

• Past judgments can be cited as precedent (an earlier decision that guides later cases).
• Courts get a constitutional tool to make sure their orders are obeyed and their authority is respected.

Explanation

Two powers that come with the status

• Evidentiary value of records
• The court's records count as proof.
• No other court can question them.

• A lawyer can cite them as precedent in later cases.

• Power to punish contempt of itself

• Article 129 and Article 215 both say this in so many words.
• Contempt of court means disrespecting a court or disobeying it in a way that harms the justice system.

Where the power comes from: Constitution, not statute

• The source is the Constitution. Arts. 129 and 215 give the power directly.
• The Contempt of Courts Act, 1971 does not create this power. It only sets out the procedure.

• So cutting down the Act would not remove the courts' contempt power [1].

• Article 142(2): the Supreme Court's power to punish contempt is subject to any law Parliament makes.

Two kinds of contempt (under the 1971 Act)

Feature	Civil contempt (s. 2(b))	Criminal contempt (s. 2(c))
Meaning	Wilful (deliberate) disobedience of a judgment, decree, order or writ, or wilfully breaking an undertaking (a formal promise made to the court)	Publishing anything or doing any act that scandalises the court (lowers public trust in judges), prejudices a pending case, or obstructs justice in any other way
Nature	Private wrong	Public wrong
Main use	Making sure orders are carried out	Protecting the court's dignity and fair trials

Limits and safeguards

• Punishment (s. 12): up to 6 months' simple imprisonment, or a fine up to ₹2,000, or both.

• A sincere (bona fide) apology can lead to discharge (the case is dropped) or a lighter sentence. A tactical apology is not enough.

• "Substantial interference" test (s. 13(a), since 2006): a court can punish only if the contempt substantially interferes, or tends substantially to interfere, with the due course of justice [2].

• Defences:
• Innocent publication: the publisher did not know a case was pending (s. 3).
• Fair and accurate reporting of court proceedings (s. 4).
• Fair criticism of a case after it has been decided (s. 5).

• Truth (s. 13(b)), if it serves the public interest and is raised bona fide (honestly) [2].

• Procedure for criminal contempt (s. 15), in order: 1. The court acts suo motu (on its own, without anyone filing a case) [3]; or 2. The Advocate-General moves the court. For the Supreme Court, this means the Attorney General or Solicitor General [3]; or 3. Any other person moves the court, but only with the written consent of the Advocate-General. For the Supreme Court, that is the AG or SG [3].

• Time limit (s. 20): the case must begin within one year of the alleged contempt.

In the Constitution and practice

• Constitutional base:
• Art. 129 makes the Supreme Court a court of record.
• Art. 215 makes every High Court a court of record.
• Art. 142(2) makes the Supreme Court's contempt power subject to laws made by Parliament.

• Art. 19(2) lists contempt of court as a ground for "reasonable restrictions" on free speech under Art. 19(1)(a).

• Statutes:

• Contempt of Courts Act, 1971 (Act No. 70 of 1971), based on the H.N. Sanyal Committee (1963) [3].

• Contempt of Courts (Amendment) Act, 2006 (Act No. 6 of 2006, dated 17 March 2006) added truth as a defence and the "substantial interference" test [2].

• How far the power reaches:

• Delhi Judicial Service Association v. State of Gujarat (1991): the Supreme Court can punish contempt of subordinate (lower) courts too, because it is the guardian of the whole judiciary.
• Supreme Court Bar Association v. Union of India (1998): the Court cannot use contempt to suspend an advocate's licence.
  • Only Bar Councils can do that, under the Advocates Act, 1961.
  • Art. 142 cannot override an express law.

• Under the 1971 Act, High Courts can punish contempt of the subordinate courts below them [1].

• Landmark instances:

• E.M.S. Namboodiripad (1970): the Kerala Chief Minister called the judiciary an "instrument of class oppression". He was held guilty of contempt.
• Arundhati Roy (2002): she was held guilty for remarks about the Court in the Narmada dam dispute. She got a symbolic one-day jail term and a ₹2,000 fine.
• Justice C.S. Karnan (2017): the first sitting High Court judge jailed for contempt. A seven-judge bench sentenced him to six months.
• Prashant Bhushan (2020): held guilty over tweets about the CJI and the Court. He was fined ₹1.

• Vijay Mallya: held guilty in 2017 for breaking court orders in a bank-loan case, and sentenced in 2022.

• Scale: in 2018, 96,993 civil and 583 criminal contempt cases were pending in the High Courts and the Supreme Court [1].

• Most contempt cases are about disobeying orders, not about speech.

• Reform views:

• NCRWC (2002–03), chaired by Justice M.N. Venkatachaliah: amending the Act alone is not enough, because Arts. 129 and 215 already give the power [4].
  • It suggested a proviso to Art. 129: only the Supreme Court and High Courts should hold the contempt power, not tribunals [4].
• Law Commission, 274th Report (April 2018), chaired by Justice B.S. Chauhan: it advised no change to the 1971 Act [1].

Don't confuse with

• Contempt of Courts Act, 1971: the Act only sets the procedure and punishment. The power itself comes from Arts. 129 and 215, so repealing the Act would not end it [1].
• Article 142 (complete justice): Art. 142 lets the Supreme Court do "complete justice", but it cannot override an express law. That is why the Court could not suspend an advocate's licence through contempt (SCBA, 1998).
• Article 19(1)(a) vs Article 19(2): free speech is in 19(1)(a). Contempt of court is a ground for restricting that freedom, listed in 19(2).
• Subordinate courts: Arts. 129 and 215 make only the Supreme Court and High Courts courts of record. Lower courts are protected through the High Courts' powers under the 1971 Act, and the Supreme Court's role as guardian of the whole judiciary (Delhi Judicial Service Association, 1991).

Prelims Hooks

• Art. 129: Supreme Court is a court of record. Art. 215: each High Court is a court of record. Both include the power to punish contempt of itself.
• Art. 142(2): the Supreme Court's contempt power is subject to laws made by Parliament.
• Case pairs: Delhi Judicial Service Association (1991) says the SC can punish contempt of lower courts. SCBA (1998) says it cannot suspend an advocate's licence through contempt, because that power belongs to the Bar Councils.
• s. 12 of the 1971 Act: up to 6 months' simple imprisonment and/or a fine up to ₹2,000. A bona fide apology can lead to discharge.
• 2006 amendment: added truth in the public interest, raised bona fide, as a defence. No punishment unless the contempt substantially interferes with justice [2].
• Trap: the UK abolished "scandalising the court" in 2013. India kept it, as the Law Commission's 274th Report (2018) advised [1]. For criminal contempt in the SC, a private person needs the written consent of the AG or SG [3].

Mains Points

• Independence vs. accountability:
• For the power: judges cannot reply to attacks in public. The judiciary has no army and no budget of its own, so public trust is its only real strength.
• Against it: in "scandalising the court" cases, judges decide matters about themselves. That breaks the natural-justice rule that no one should be a judge in their own cause. The word "scandalise" is also vague, which has a chilling effect on fair criticism.

• The debate: the UK abolished the offence in 2013, but the Law Commission advised keeping it in 2018 [1].

• Reform options:

• Narrow criminal contempt to real interference with justice, using the s. 13 "substantial interference" test [2].
• Let a different bench hear contempt of a particular judge.
• Use truth as a defence more freely [2].

• Keep the power with constitutional courts only, as the NCRWC proposed [4].

• Civil contempt as an enforcement tool:

• In 2018, 96,993 civil contempt cases were pending, mostly against governments and officials ignoring orders [1].
• So the court-of-record power is mainly about getting judgments obeyed. Any reform should keep this side strong.
• On NCERT's question (why may we criticise the PM but not judges?): fair criticism of a judgment should stay allowed. Only attacks on a judge's motives that harm justice should count as contempt.

Related concepts

• Contempt of court
• Civil contempt
• Criminal contempt

Read more

• Court of record and the contempt power