Report No. 274
B. Constitutional Provisions
2.4 It is well established that Rule of Law is a basic feature of the Constitution, and the Rule of Law is postulated in the Constitution in the sense of its supremacy18. It entails inter alia the right to obtain judicial redress through administration of justice, which is the function of the Courts, and is imperative for the functioning of a civilised society. To administer justice in an undefiled manner19, judiciary, as the guardian of Rule of Law, is entrusted with the extraordinary power to punish misconduct aimed at undermining its authority or bringing the institution into disrepute, whether outside or inside the courts.
2.5 The law for contempt, with power of imposing punishment, ensures respect for the courts in the eyes of the public by guaranteeing sanction against conduct which might assail the honour of the courts. Indeed, the courts must be able to discharge their functions without fear or favour20.
2.6 In Kapildeo Prasad Sah & Ors. v. State of Bihar & Ors., (1999) 7 SCC 569,21 the Supreme Court held that disobedience of court's order would be a violation of the principle of Rule of Law. The law of contempt can thus be considered to be the thread which holds together the basic structure of the Constitution. And, the maintenance of dignity of the Court is one of the cardinal principles of Rule of Law. The law of contempt must be judiciously pressed into service, and must not be used as a tool to seek retribution. However, any insinuation to undermine the dignity of the Court under the garb of mere criticism is liable to be punished.22
2.7 The Contempt proceedings are intended to ensure compliance of the orders of the court and adherence to the Rule of Law. Once the essentials for initiation of contempt proceedings are satisfied, the Court would initiate an action uninfluenced by the nature of the direction, i.e., as to whether these directions were specific in a lis pending between the parties or were of general nature or were in rem.23 i) Courts of Record and Power to Punish for Contempt
2.8 The Constitution of India designates the Supreme Court and the High Courts as the Courts of Record. It further grants the Supreme Court and every High Court the power to punish for contempt of itself. While Article 129, dealing with the said power of the Supreme Court, provides that "The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself"; Article 215 vests similar power with the High Courts.
2.9 The High Courts are also entrusted with the supervisory control over the subordinate courts under Article 235 of the Constitution. In this manner, a High Court is the guardian of the subordinate judiciary under its jurisdiction.
2.10 While the Constitution does not define the term "court of record", its meaning is well understood across all jurisdictions. In Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat,24 the Supreme Court applied the term to a court whose acts and proceedings are enrolled for a "perpetual memory and testimony". Once a court has been declared to be a "court of record" by a statute, the power to punish for its own contempt automatically ensues.25 Such a court also has the power to punish for the contempt of the courts and tribunals subordinate to it.26 Additionally, a court of record has the power to determine the question of its own jurisdiction.27
2.11 In terms of definitions in other sources, Words and Phrases28 defines "court of record" as court where acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony. Such rolls are called the "record" of the court and are of high and super eminent authority, the truth of which is beyond question.29 Black's Law Dictionary (8th Edition) defines a "court of record" as:
i. A court that is required to keep a record of its proceedings. The court's records are presumed accurate and cannot be collaterally impeached;
ii. A court that may fine and imprison people for contempt.
2.12 As the Supreme Court observed in the case of Pallav Sheth v. Custodian & Ors., AIR 2001 SC 2763, that there is no doubt that the Supreme Court and High Courts are courts of record, and that the Constitution has given them the power to punish for contempt, which power cannot be "abrogated or stultified"
ii) Law of Contempt vis-à-vis Article 19(1)(a):
2.13 Freedom of speech and expression is regarded as the "lifeblood of democracy"; Article 19(1)(a) of the Constitution guarantees this freedom to the citizens of India. This right, however, is not absolute, and is subject to certain qualifications i.e. reasonable restrictions on the grounds set out in Article 19(2).
One such ground relates to the contempt of court. The Constitution, which has given its citizens right to freedom of speech and expression, has given certain powers to the Judiciary to guard against the misuse of the same, to prevent the right to freedom of speech and expression being so exercised that it damages the dignity of the Courts or interferes with the 'administration of justice'.
2.14 In Aswini Kumar Ghose & Anr. v. Arabinda Bose & Anr., AIR 1953 SC 75, the Supreme Court held that while fair and reasonable criticism of a judicial act in the interest of public good would not amount to contempt, it would be gross contempt to impute that Judges of the Court acted on extraneous considerations in deciding a case.
2.15 Right to freedom of speech and expression does not embrace the freedom to commit contempt of court30. And, in the garb of exercising right to freedom of speech and expression, under Article 19(1)(a), if a citizen tries to assail the dignity of the court, or undermine its authority, the court may invoke the power to punish for contempt, under Article 129 or 215 as the case may be.
Any law made by the Parliament or the application of any existing law in relation to contempt of courts, would tantamount to a reasonable restriction on the freedom of speech and expression31. The defence of fair comment is available even during the pendency of the proceedings32.
iii) Other Constitutional Provision
2.16 In addition to Article 129, the Supreme Court also draws power to investigate or punish any contempt of itself from Article 142(2), which reads as under:
"(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself."
[Emphasis added]
2.17 This power of contempt under Article 142(2) lies outside the confines of the Act 1971 and remains unaffected by the limitation under section 20 of the Act.33 It has also been observed that while the jurisdiction to punish for contempt of court is different from the jurisdiction to punish an advocate for professional misconduct, Article 142 could also be invoked for punishing professional misconduct.34
2.18 In Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895, the Court made certain observations and partially set aside and modified its earlier order of In Re: Vinay Chandra Mishra, AIR 1995 SC 2348 on the issue of restraining an advocate from appearing in the Court as punishment for established contempt of court.
It was held that "Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142."
2.19 The above position changed in 2016 with the case of Mahipal Singh Rana v. State of U.P., AIR 2016 SC 3302, where the Supreme Court held that in case the Bar Council fails to take action against an erring advocate, the Court can exercise its powers suo motu under Section 38 of the Advocates Act, 1961, and suspend the license of such an advocate for a particular period.. The Supreme Court further held:
"We may add that what is permissible for this Court by virtue of statutory appellate power Under Section 38 of the Advocates Act is also permissible to a High Court Under Article 226 of the Constitution in appropriate cases on failure of the Bar Council to take action after its attention is invited to the misconduct."
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