The Contempt of Courts Act was enacted in 1971. It extends to the whole of India although it does not apply to the State of Jammu and Kashmir except with reference to contempt of the Supreme Court.

The Act speaks of both civil and criminal contempt of court and of how they are to be dealt with. However, no court can impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.

The Act does not enlarge the scope of contempt of courts. And any defence which is a valid defence in any proceedings for contempt of court may be availed of as a defence in contempt proceedings notwithstanding any of the provisions of the Contempt of Courts Act, 1971.

The Chief Justice of India, K G Balakrishnan has said that the provisions of the Act aim to uphold the majesty of the judiciary and not terrorize the media.

In the judgment in the Arundhati Roy contempt case, delivered on March 6, 2002, a Bench of the Supreme Court comprising Justices G B Pattanaik and R P Sethi explained the law of contempt with reference to quite a few cases in the following terms:

“The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of court left in the armoury of judicial repository which, when needed, can reach any neck howsoever high or far away it may be. In Re: Vinay Chandra Mishra (the alleged contemner) [AIR. 1995 SC 2348], the Supreme Court reiterated the position of law relating to the powers of contempt and opined that the judiciary is not only the guardian of the rule of law and third pillar but in fact the central pillar of a democratic State. If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise the very corner-stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the courts are entrusted with extraordinary powers of punishing those who indulge in acts, whether inside or outside the courts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalising it. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.

No person can flout the mandate of law of respecting the courts for establishment of rule of law under the cloak of freedoms of speech and expression guaranteed by the Constitution. Such a freedom is subject to reasonable restrictions imposed by any law. Where a provision, in the law, relating to contempt imposes reasonable restrictions, no citizen can take the liberty of scandalising the authority of the institution of judiciary. Freedom of speech and expression, so far as they do not contravene the statutory limits as contained in the Contempt of Courts Act, are to prevail without any hindrance. However, it must be remembered that the maintenance of dignity of courts is one of the cardinal principles of rule of law in a democratic set up and any criticism of the judicial institution couched in language that apparently appears to be mere criticism but ultimately results in undermining the dignity of the courts cannot be permitted when found having crossed the limits and has to be punished.

In Re: Harijai Singh & Another [1996 (6) SCC 466], the Supreme Court out that a free and healthy Press is indispensable to the function of a true democracy but, at the same time, cautioned that the freedom of Press is not absolute, unlimited and unfettered at all times and in all circumstances. Lord Dening in his Book “Road to Justice” observed that Press is the watchdog to see that every trial is conducted fairly, openly and above board but the watchdog may sometimes break loose and has to be punished for mishebaviour. Frankfurther, J. in Pennekamp Florida [(1946) 90 Led 1295 at p.1313] observed:

“If men, including Judges and journalists were angels, there would be no problems of contempt of Court. Angelic Judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding Judges in deciding on behalf of the community as impartially as is given to the lot of men to decide, is not a privilege accorded to Judges. The power to punish for contempt of court is a safeguard not for Judges as persons but for the function which they exercise”.

The law of contempt has been enacted to secure public respect and confidence in the judicial process. If such confidence is shaken or broken, the confidence of the common man in the institution of judiciary and democratic set up is likely to be eroded which, if not checked, is sure to be disastrous for the society itself.”

Under the Contempt of Courts Act, civil contempt means the wilful disobedience of any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court while criminal contempt means the publication (whether by written or spoken words, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii)interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

In Dr D C Saxena v. Hon’ble the Chief Justice of India [1996 (5) SC 216] the Supreme Court held:

“Scandalising the court, therefore, would mean hostile criticism of judges or judiciary. Any personal attack upon a judge in connection with the office he holds is dealt with under law of libel or slander. Yet defamatory publication concerning the judge as a judge brings the court or judges into contempt, a serious impediment to justice and an inroad on the majesty of justice. Any caricature of a judge calculated to lower the dignity of the court would destroy, undermine or tend to undermine public confidence in the administration of justice or the majesty of justice. It would, therefore, be scandalising the judge as a judge, in other words, imputing partiality, corruption, bias, improper motives to a judge is scandalisation of the court and would be contempt of the court. Even imputation of lack of impartiality of fairness to a judge in the discharge of his official duties amounts to contempt. The gravamen of the offence is that of lowering his dignity or authority or an affront to the majesty of justice. When the contemnor challenges the authority of the court, he interferes with the performance of duties of judge’s office or judicial process or administration of justice or generation or production of tendency bringing the judge or judiciary into contempt.”

Innocent Publication

The innocent publication and distribution of matter not contempt. A person is not guilty of contempt of court on the ground that he has published (whether by words spoken or written or by signs or by visible representations or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at the time of publication, if at that time when he published it, he had no reasonable grounds to believe that the proceeding was pending.

Further, the publication of any such matter in connection with any civil or criminal proceeding which is not pending at the time of publication does not constitute contempt of court.

A person is not guilty of contempt of court on the ground that he has distributed a publication containing any such matter, if at the time of distribution he had no reasonable grounds for believing that it contained or was likely to contain any such matter. However, this does not apply to the distribution of (i) any publication which is a book or paper printed or published otherwise than in conformity with the rules contained in Section 3 of the Press and Registration of Books Act, 1867 or (ii) any publication which is a newspaper published otherwise than in conformity with the rules contained in Section 5 of the said Act.

When a Judicial Proceeding is Pending

A judicial proceeding is said to be pending: (a) in the case of a civil proceeding, when it is instituted by the filing of a plaint or otherwise, (b) in the case of a criminal proceeding (i) where it relates to the commission of an offence, when the charge-sheet or challan is filed, or when the court issues summons or warrant, as the case may be, against the accused and (ii) in any other case, when the court takes cognizance of the matter to which the proceeding relates.

Whether a proceeding is a civil or criminal proceeding, it is deemed to continue to be pending until it is heard and finally decided. In a case where an appeal or revision is competent, until the appeal or revision is heard and finally decided or, where no appeal or revision is preferred, until the period of limitation prescribed for such appeal or revision has expired. However, a proceeding is not be deemed to be pending merely because proceedings for the execution of the decree, order or sentence passed are pending.

Fair and Accurate Reports

A fair and accurate report of judicial proceeding or any stage of such a judicial proceeding is not contempt. The publication of fair and a accurate report of a judicial proceeding before any court sitting in chambers or in camera is not contempt unless:

(a) the publication is contrary to the provisions of any enactment for the time being in force

(b) the court, on grounds of public policy or in exercise of any power vested in it, expressly prohibits the publication of all information relating to the proceeding or of information of the description which is published

(c) the court sits in chambers or in camera for reasons connected with public order or the security of the State, the publication of information relating to those proceedings

(d) the information relates to a secret process, discovery or invention which is an issue in the proceedings.

In addition to this, a person is not guilty of contempt of court for publishing the text or a fair and accurate summary of the whole, or any part, of an order made by a court sitting in chambers or in camera, unless the court has expressly prohibited the publication thereof on grounds of public policy, or for reasons connected with public order or the security of the State, or on the ground that it contains information relating to a secret process, discovery or invention, or in exercise of any power vested in it.

Complaints against Presiding Officers of Subordinate Courts

A person is not guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate court to (a) any other subordinate court, or (b) the High Court, to which it is subordinate.

Powers of High Courts

Every High Court has the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself. However, no High Court can take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code.

High Courts have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits.

Punishment for Contempt of Court

A contempt of court may be punished with simple imprisonment for a term which may extend to (and not beyond) six months, or with fine which may extend to (but mot be more than) two thousand rupees, or with both. However, the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

If a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary, it must direct that he be detained in a civil prison for such period not exceeding six months as it may think fit instead of sentencing him to simple imprisonment.

Contempt by Companies

A company means any body corporate and includes a firm or other association of individuals and a director, in relation to a firm, means a partner in the firm for the purposes of this Act.

Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, is deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person. However, this does not render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.

If the contempt of court has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced. with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.

Contempt in the Face of the Supreme Court or a High Court

When it is alleged or appears to the Supreme Court or the High Court that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody, and, at any time before the rising of the Court, on the same day, or as early as possible thereafter, (a) cause him to be informed in writing of the contempt with which he is charged, (b) afford him an opportunity to make his defence to the charge, (c) after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge and (d) make such order for the punishment or discharge of such person as may be just.

Where a person charged with contempt applies to have the charge against him tried by some Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed either orally or in writing, and the Court is of opinion that it is practicable to do so and that in the interests of proper administration of justice the application should be allowed, it causes the matter to be placed, together with a statement of the facts of the case, before the Chief Justice for such directions as he may think fit to issue for the trial of the contempt.

If the trial is held by a judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, it is not necessary for the Judge or Judges in whose presence or hearing the offence is alleged to have been committed to appear as a witness and the statement they placed before the Chief Justice is treated as evidence in the case.

Pending the determination of the charge, the Court may direct a person charged with contempt to be detained in such custody as it may specify. However, he must be released on bail, if a bond for such sum of money as the Court thinks sufficient is executed with or without sureties on condition that the person charged will attend at the time and place mentioned in the bond and will continue to so attend until otherwise directed by the Court. The Court may, if it thinks fit, instead of taking bail from such person, discharge him on his executing a bond without sureties for his attendance.

Cognizance of Criminal Contempt

In the case of a criminal contempt which is not contempt in the face of the Supreme Court or a High Court, the Supreme Court or the High Court may take action on its own motion or on a motion made by (a) the Advocate-General, or (b) any other person, with the consent in writing of the Advocate General, or in relation to the High Court for the Union territory of Delhi, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer.

In the case of any criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or, in relation to a Union territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.

Every motion or reference must specify the contempt of which the person charged is alleged to be guilty.

Contempt of Court and Freedom of Speech

In Arundhati Roy’s case, the Supreme Court quoted E M Sankaran Namboodripad v. T. Narayanan Nambiar [1970 (2) SCC 325] saying that it was contended in that case on behalf of the contemners that law of contempt must be read without encroaching upon the guaranteed freedom of speech and expression in Article 19 of the Constitution and the intention of the contemner in making the statement should be examined in the light of his political views as he was at liberty to put them before the people. It was further argued as that the species of contempt called ‘scandalising the court’ had fallen in desuetude and was no longer enforced in England, the freedom of speech and expression gave immunity to the appellant-contemner to publicise the political philosophy in which he believed. Rejecting such a plea, the Court held:

“The appellant has contended before us that the law of contempt should be so applied that the freedom of speech and expression are not whittled down. This is true. The spirit underlying Article 19(1)(a) must have due play but we cannot overlook the provisions of the second clause of the article. While it is intended that there should be freedom of speech and expression, it is also intended that in the exercise of the right, contempt of court shall not be committed. The words of the second clause are:

‘Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, in so far as such law imposes reasonable restriction on the exercise of the right conferred by the sub-clause…. In relation to contempt of court, defamation or incitement to an offence.’

These provisions are to be read with Articles 129 and 215 which specially confer on this Court and the High Courts the power to punish for contempt of themselves. Article 19(1)(a) guarantees complete freedom of speech and expression but it also makes an exception in respect of contempt of court. The guaranteed right on which the functioning of our democracy rests, is intended to give protection to expression of free opinions to change political and social conditions and to advance human knowledge. While the right is essential to a free society, the Constitution has itself imposed restrictions, in relation to contempt of court and it cannot therefore be said that the right abolishes the law of contempt or that attacks upon judges and courts will be condoned.”

Fair Criticism

A person is not guilty of contempt of court for publishing a fair comment on the merits of any case which has been heard and finally decided.

In Re: S. Mulgaokar [1978 (3) SCC 339] quoted in Arundhati Roy’s case, Beg, CJ observed that the judiciary is not immune from criticism but when that criticism is based on obvious distortion or gross misstatement and made in a manner which is designed to lower the respect of the judiciary and destroy public confidence in it, it cannot be ignored.