Court of record and the contempt power

Detail

1. What a "court of record" is

• Court of record means a court whose judgments are kept forever as official records.
• Article 129 makes the Supreme Court a court of record.

• Article 215 makes every High Court a court of record.

• It has two powers:

• Evidentiary value. Its records count as proof. No other court can question them. A lawyer can cite them as precedent (an earlier decision that guides later cases).

• It can punish contempt of itself. Both articles say this in so many words.

• Article 142(2): the Supreme Court can punish contempt, but this is subject to any law Parliament makes.

• The 1971 Act does not create this power. It only sets out the procedure. The power comes from the Constitution itself (Arts. 129, 215). So cutting down the Act would not remove the courts' contempt power [2].
• NCRWC, 2002–03. The National Commission to Review the Working of the Constitution was chaired by Justice M.N. Venkatachaliah. It said that amending the Act alone was not enough, because Arts. 129 and 215 already give superior courts this power [5].
• It suggested a proviso to Art. 129: only the Supreme Court and High Courts should hold the power to punish contempt, and no tribunal should [5].

2. How far the power reaches: two key cases

Case	Year	What the court held
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 to practise. Only the Bar Councils can do that under the Advocates Act, 1961. Art. 142 cannot override an express law.

• High Courts and lower courts: the 1971 Act lets High Courts punish contempt of the subordinate courts below them. The Law Commission said that narrowing the Act would leave lower courts with no remedy [2].

3. Contempt and free speech

• Contempt of court means disrespecting a court or disobeying it in a way that harms the justice system.
• Article 19(1)(a) gives every citizen freedom of speech. Article 19(2) lets the State put "reasonable restrictions" on that freedom, and contempt of court is one of the listed grounds.
• How NCERT frames it (Class 11, "Judiciary"):
• The contempt power is part of judicial independence. It shields judges from unfair criticism so they can decide without fear.

• The chapter's student bubble asks: why may we criticise the Prime Minister but not judges? This is the central debate in this section.

• Classes 7 and 8: the judiciary is a watchdog that checks the legislature and executive. The contempt power helps its orders get obeyed.

4. The Contempt of Courts Act, 1971

• Origin: the Act is based on the H.N. Sanyal Committee (1963). It is Act No. 70 of 1971 [4].
• Civil contempt (s. 2(b)): wilful (deliberate) disobedience of a court's judgment, decree, direction, order or writ. Wilfully breaking an undertaking (a formal promise made to the court) also counts.
• Criminal contempt (s. 2(c)): publishing anything, or doing any act, that:
• scandalises the court or lowers its authority, meaning it reduces public trust in judges;
• prejudices or interferes with a pending case; or
• obstructs the administration of justice in any other way.

Feature	Civil contempt	Criminal contempt
Nature	Private wrong: someone disobeys an order	Public wrong: harm to the court's authority
Typical act	Not obeying a decree; breaking an undertaking	Scandalising the court; interfering with a trial
Main use	Making sure orders are carried out	Protecting the court's dignity and the fairness of trials

5. Punishment

• Section 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 mere tactical apology is not enough.
• "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 [3]. So a small slight is not punished.

6. Defences and safeguards

• 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 (new s. 13(b)): added by the Contempt of Courts (Amendment) Act, 2006 (Act No. 6 of 2006, dated 17 March 2006). A court may accept justification by truth if:
• the truth serves the public interest, and
• the person raises the defence bona fide (honestly) [3].
• The NCRWC had proposed the same safeguard in 2002–03, as a proviso to Art. 19(2) [5].

7. Procedure for criminal contempt (s. 15)

Who can start a case:

1. The court itself, on its own motion (suo motu, meaning the court acts without anyone filing a case) [4].
2. The Advocate-General. For the Supreme Court this means the Attorney General or the Solicitor General [4].
3. Any other person, but only with the written consent of the Advocate-General. For the Supreme Court, that is the AG or SG [4].

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

Scale of the problem: in 2018, 96,993 civil contempt cases and 583 criminal contempt cases were pending in the High Courts and the Supreme Court [2]. Most contempt cases are about disobeying orders, not about speech.

8. Landmark 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 of contempt. 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. The fine was ₹1, a symbolic sentence.
• Civil contempt used to enforce orders:
• Vijay Mallya: held guilty in 2017 for breaking court orders in a bank-loan case, and sentenced in 2022.
• Courts also use civil contempt against governments and officials who do not obey judgments.

9. The debate: should "scandalising the court" stay?

• England and Wales abolished the offence of scandalising the court in 2013.
• Law Commission, 274th Report (April 2018), chaired by Justice B.S. Chauhan: it advised no change to the 1971 Act [2]. Its reasons:
• India still has many criminal contempt cases. The UK's last scandalising case was in 1931 [2].
• The UK still punishes similar conduct under other laws, so it has no legal gap [2].
• The contempt power comes from the Constitution (Arts. 129, 215). Narrowing the Act would only cause confusion, because courts would still use their constitutional power [2].
• Subordinate courts would lose protection [2].

• The Act already has safeguards (ss. 3–5, 13) [2].

• Arguments for keeping it:

• It protects the dignity and authority of courts.
• Judges cannot reply to attacks in public.

• Public trust is the judiciary's only real power, since it has no army and no budget of its own.

• Arguments against it:

• It has a chilling effect: people fear to speak, so even fair criticism goes quiet.
• Judges decide cases about themselves, which goes against natural justice ("no one should be a judge in their own cause").
• "Scandalise" is a vague word.
• A democracy needs a culture of criticism. Elected leaders such as the PM face criticism all the time.

Prelims Hooks

• Art. 129 makes the Supreme Court a court of record. Art. 215 does the same for High Courts. 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.
• Contempt of court is a ground for reasonable restriction under Art. 19(2), not Art. 19(1)(a).
• Delhi Judicial Service Association (1991): the Supreme Court can punish contempt of subordinate courts. SCBA (1998): it cannot suspend an advocate's licence through contempt.
• Punishment under s. 12 of the 1971 Act: up to 6 months' simple imprisonment and/or a fine up to ₹2,000. An apology can lead to discharge.
• 2006 amendment (s. 13): added truth in the public interest, raised bona fide as a defence. Also, no sentence unless the contempt substantially interferes with justice [3].
• Criminal contempt in the Supreme Court: a private person needs the written consent of the AG or SG (s. 15) [4]. The limitation period is one year (s. 20).
• Law Commission 274th Report (2018): advised keeping "scandalising the court". Trap: the UK abolished the offence in 2013, but India did not [2].
• Firsts: Justice C.S. Karnan (2017) was the first sitting High Court judge jailed for contempt. Prashant Bhushan (2020) got a ₹1 fine.

Mains Points

• Independence vs. accountability: the contempt power protects judges from attacks they cannot answer. But "scandalising the court" lets judges punish criticism of themselves, which goes against natural justice and has a chilling effect on free speech. Compare the UK (abolished in 2013) with the Law Commission's 274th Report (kept in 2018) [2].
• Reform options:
• Narrow criminal contempt to real interference with justice, following the "substantial interference" test in s. 13 [3].
• Let a different bench hear contempt of a particular judge.
• Use truth as a defence more freely [3].

• Limit the power to constitutional courts only, as the NCRWC proposed [5].

• Civil contempt as an enforcement tool: there were 96,993 pending civil contempt cases in 2018 [2]. Mostly governments ignoring orders, plus cases like Vijay Mallya's. This shows contempt is mainly about getting judgments obeyed, not about protecting judges' egos. Any reform should keep this side of the power strong.

• Criticising the PM but not judges (NCERT's question): an elected executive answers to voters and to Parliament. Judges do not, and their legitimacy rests on public trust. So the line should fall between fair criticism of a judgment, which is allowed, and attacks on a judge's motives, which may be contempt. Speech should not be blocked just because it is uncomfortable.