Criminal contempt

Topic: Judiciary: Independence, Structure, Judicial Review and Activism · NCERT: Beyond NCERT

Meaning

Criminal contempt means publishing anything, or doing any act, that scandalises a court or lowers its authority, prejudices or interferes with a pending case, or obstructs the administration of justice in any other way. Section 2(c) of the Contempt of Courts Act, 1971 defines it. "Publishing" covers words, signs or pictures. To scandalise the court means to make people lose trust in judges.

It matters because it is where two values meet. Courts need public trust to work. Citizens have the freedom of speech to criticise them. Since 2006, a person charged with contempt can defend themselves by proving their statement is true, if the court accepts that the truth serves the public interest and the defence is raised honestly [2].

Explanation

The three forms of criminal contempt (s. 2(c))

• Scandalising the court, or lowering its authority.
• Example: saying the judiciary as a whole serves one class, or attacking a judge's motives.

• The harm is to public trust in judges, not to one particular case.

• Prejudicing or interfering with a pending case.

• Example: a media campaign that tries to decide a trial before the court does.

• Obstructing the administration of justice in any other way.

• A catch-all for any other act that blocks the justice system.

• Why it is called "criminal": it is a public wrong. It harms the court's authority and the fairness of trials. Civil contempt is different. It is a private wrong, where one person disobeys an order made in another person's favour.

Where the power comes from

• The Constitution gives the power. Article 129 (Supreme Court) and Article 215 (High Courts) make these courts courts of record. A court of record is a court whose judgments are kept forever as official records. Both articles also give the court the power to punish contempt of itself.
• The 1971 Act only sets the procedure. It does not create the power. So narrowing or repealing the Act would not remove the courts' contempt power [1].
• Article 142(2): the Supreme Court's contempt power is subject to any law Parliament makes.

Limits and safeguards

• The "substantial interference" test (s. 13(a), since 2006): no court may punish unless the contempt substantially interferes, or tends substantially to interfere, with the due course of justice [2]. A small slight is not punished.
• Defences:
• Innocent publication (s. 3): the publisher did not know, and had no reason to know, that a case was pending.
• Fair and accurate reporting of court proceedings (s. 4).
• Fair criticism of a case after it has been decided (s. 5).

• Truth as a defence (s. 13(b)), added by the Contempt of Courts (Amendment) Act, 2006. The court may accept justification by truth if:

  • the truth serves the public interest, and
  • the defence is raised bona fide (honestly) [2].

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

• Apology: a sincere (bona fide) apology can end the case. The court may discharge the contemnor (the person found in contempt) or reduce the punishment. A tactical apology made only to escape punishment is not enough.

Procedure (s. 15 and s. 20)

1. Who can start a case: - The court itself, suo motu (on its own motion, without anyone filing a case) [3]; or - The Advocate-General. For the Supreme Court, this means the Attorney General or the Solicitor General [3]; or - Any other person, but only with the written consent of the Advocate-General. For the Supreme Court, the consent must come from the AG or SG [3].

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

3. Hearing and decision: the court hears the contemnor. It can then punish under s. 12 or accept an apology. It can punish only if the "substantial interference" test is met [2].

In the Constitution and practice

• Constitutional base:
• Arts. 129 and 215 make the Supreme Court and High Courts courts of record with the power to punish contempt.
• Art. 142(2) makes the Supreme Court's power subject to laws of Parliament.

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

• The law: the Contempt of Courts Act, 1971 (Act No. 70 of 1971), based on the H.N. Sanyal Committee (1963) [3]. It was amended in 2006 (Act No. 6 of 2006, dated 17 March 2006) [2].

• Reach of the power:
• 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 a lawyer's licence to practise. Only the Bar Councils can do that, under the Advocates Act, 1961.

• Landmark criminal contempt cases:

• E.M.S. Namboodiripad (1970): the Chief Minister of Kerala called the judiciary an "instrument of class oppression". The Supreme Court held him guilty. Criticism that brings the whole judiciary into contempt is not protected.
• Arundhati Roy (2002): the author was held guilty for remarks against 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): he became the first sitting High Court judge jailed for contempt. A seven-judge bench of the Supreme Court sentenced him to six months.

• Prashant Bhushan (2020): the lawyer was held guilty over tweets about the CJI and the Court. He was fined ₹1, a symbolic sentence.

• Scale: in 2018, 583 criminal contempt cases were pending in the High Courts and the Supreme Court. 96,993 civil contempt cases were pending at the same time [1]. Criminal contempt is the smaller part of the contempt workload, but it gets most of the public debate.

• Reform debate:
• England and Wales abolished the offence of scandalising the court in 2013.
• India's Law Commission, in its 274th Report (April 2018), chaired by Justice B.S. Chauhan, advised no change to the 1971 Act [1].
• The NCRWC (2002–03), chaired by Justice M.N. Venkatachaliah, had proposed truth as a defence, as a proviso to Art. 19(2) [4].

Don't confuse with

• Civil contempt (s. 2(b)): this is wilful (deliberate) disobedience of a court order, or breaking an undertaking (a formal promise made to the court). It is about enforcing orders, as in Vijay Mallya's case (held guilty in 2017, sentenced in 2022). Criminal contempt is about harm to the court's authority or to trials.
• Fair criticism (s. 5): fairly criticising a judgment after the case is decided is not contempt. Attacking a judge's motives, or interfering while a case is still pending, can be.
• The constitutional power vs the 1971 Act: the power comes from Arts. 129 and 215. The Act only sets the procedure. Repealing the Act would not end the power [1].
• Disciplinary action against lawyers: the Supreme Court can punish a lawyer for contempt. It cannot suspend their licence. Only the Bar Councils can do that (SCBA, 1998).

Prelims Hooks

• Section 2(c) of the 1971 Act defines criminal contempt. Section 2(b) defines civil contempt.
• Truth as a defence (in the public interest, raised bona fide) was added by the 2006 amendment under s. 13(b). The same amendment added the rule that no one is punished unless the contempt substantially interferes with justice [2].
• Criminal contempt in the Supreme Court: a private person needs the written consent of the Attorney General or Solicitor General (s. 15) [3]. The limitation period is one year (s. 20).
• Punishment (s. 12): up to 6 months' simple imprisonment and/or a fine up to ₹2,000. A bona fide apology can lead to discharge.
• Trap: contempt of court is a ground for restriction under Art. 19(2), not Art. 19(1)(a). And the UK abolished "scandalising the court" in 2013, but India's Law Commission (274th Report, 2018) advised keeping it [1].
• Firsts: Justice C.S. Karnan (2017) was the first sitting High Court judge jailed for contempt. Prashant Bhushan (2020) was fined ₹1.

Mains Points

• Independence vs. free speech:
• For keeping it: judges cannot answer attacks in public. Public trust is the judiciary's only real power, since it has no army and no budget of its own.
• Against it: "scandalise" is a vague word. It has a chilling effect, meaning fear of punishment silences even fair criticism. Judges also decide cases about themselves, which goes against natural justice ("no one should be a judge in their own cause").

• Comparison: the UK abolished the offence in 2013. The Law Commission's 274th Report (2018) kept it, because India still has many such cases and because narrowing the Act would only cause confusion [1].

• Reform options:

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

• Limit the power to constitutional courts only, as the NCRWC proposed [4].

• NCERT's question: why may we criticise the Prime Minister but not judges?

• The PM answers to voters and to Parliament. Judges do not, so their legitimacy rests on public trust.
• The line should therefore fall between fair criticism of a judgment, which is allowed (s. 5), and attacks on a judge's motives, which may be contempt.
• Speech should not be punished just because it makes judges uncomfortable. Symbolic sentences, such as Bhushan's ₹1 fine (2020), show the tension the courts face.

Related concepts

• Court of record
• Contempt of court
• Civil contempt

Read more

• Court of record and the contempt power