The authors are always skeptical and sometimes scared in writing against a judgment, wherein they do not agree with the outcome/reasoning of a judgment of the Higher Judiciary- the High Court or the Supreme Court. The Law Journals are also loathe in publishing articles/write-ups/papers against a particular judgment for the fear of 'Contempt of Court'. It is therefore necessary to understand the rights conferred by Article 19(1)(a) of the Constitution which guarantees the right to free speech and expression vis-a-vis Section 5 of the Contempt of Courts Act, 1971.

Article 19(1)(a) of the Constitution reads thus:
All citizens shall have the right to freedom of speech and expression;

Section 5 of the Contempt of Courts Act, 1971 reads thus:
Fair criticism of judicial act not contempt. —A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided.

From the bare reading of Article 19(1)(a) & Section 5 of the Contempt of Courts Act, it is amply clear that the Constitution of India has guaranteed freedom of speech & expression and therefore any citizen has right under the Constitution to express his views, orally or through writing, on any judgment passed by the judiciary. He has the right to disagree/dissent with any judgment of the Court and it is within his right to criticize the judgment but it should be fair criticism on the merits of the case, the reasoning & conclusion of the case.

The author can point out certain provisions of law or certain binding precedents which could have had impact on the judgment but were inadvertently not considered by the judge(s). He may subscribe to the contrary view to the one taken by the Court and may give reasoned arguments against the view taken by the Court. But the fair criticism should be of the Judgment and not the Judges. May be his criticism may turn out to be baseless/futile/irrelevant but so long it is fair criticism, the same does not fall within the ambit of contempt under the Contempt of Courts Act, 1971.

It would be trite to say that the Courts sometimes do not agree with it's own earlier judgment and refer the matter to the Chief Justice to make a reference of the matter to a larger bench for reconsideration. The dictum of the Courts are thus sometimes upset/overturned by the larger benches of the same Court.

The judges often say they have become 'wiser'. As far as the judgments of the High Courts are concerned, one out of four cases in which SLP is admitted is set aside by the Apex Court. This clearly establishes that even the Higher Courts can err like any other human being or may be the reasoning behind a particular judgment, later on, does not appeal to the higher or the same court. It is often said that though the Supreme Court is 'Supreme' but not 'Infallible'.

Thus, when an author, rightly or wrongly, but earnestly finds fault with a judgment and he has genuine doubts about the legality/reasoning of the judgment, he ought not to be prosecuted under the Contempt of Courts Act for his 'Fair Criticism'. The author, who criticizes a particular judgment may well argue that some fundamental principles or precedents have not been abided/followed and the judgment has therefore been rendered inconsistent.

This type of criticism does not tantamount to contempt of court but malicious or false statements about a judge, or disruptive or contemptuous conduct in the courtroom do constitute 'Contempt of Court'. For the evolution of correct law, it appears expedient to allow criticism of the judgments as part of societal responsibilities of the lawyers/authors. Fair criticism of the judgments is thus an ethical obligation on the legal fraternity and should be promoted instead of being deprecated on the pretext/fear of 'Contempt of Court'.

It would be worthwhile to refer to Section 2 of the Contempt of Court Act, 1971, which defines 'Contempt of Court', civil contempt & criminal contempt and reads thus:

Definitions:
In this Act, unless the context otherwise requires:

1. “contempt of court” means civil contempt or criminal contempt;
2. “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;
3. “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
   
   1. scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
   2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
   3. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;

Contempt of court is an offence of disobedience or disrespect towards a court of law and its officers. It is conduct that opposes or challenges the authority, justice and dignity of the court. Contempt of Court is a constitutional power vested with the Supreme Court of India. It is relevant that Article 129 of the Indian Constitution of India states that “The Supreme Court of India 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 ”.

Superior courts of record have the powers to punish contempts relating to the judges of those courts and the proceedings therein. The principal objective of the jurisdiction is to protect the dignity of the court and the due administration of justice.

It is worth mentioning that under Article 215 of the Constitution of India, the High Court also has inherent power to punish for contempt of itself. Article 215 is reproduced as under:

215. High Courts to be courts of record- Every High 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

Besides, Section 15 of the Contempt of Courts Act, 1971 enables both the Supreme Court & the High Court to take action on its own motion. Section 15 in the Contempt of Courts Act, 1971 reads as under:

15. Cognizance of criminal contempt in other cases:

1. In the case of a criminal contempt, other than a contempt referred to in section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by:
   
   1. the Advocate-General, or
   2. any other person, with the consent in writing to the Advocate-General, 3 [or]
   3. 3 [(c) 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.]
2. 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.
    
3. Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty. Explanation.—In this section, the expression “Advocate-General” means:
   
   1. in relation to the Supreme Court, the Attorney-General or the Solicitor-General;
   2. in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established;
   3. in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.

It would be apropos to refer to 5 member Constitution Bench of the Apex Court judgment in Brahma Prakash Sharma and others vs The State Of Uttar Pradesh 1954 AIR 10, 1954 SCR 1169, wherein the Court observed thus:

It admits of no dispute that the summary jurisdiction exercised by superior courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice and for maintaining the authority of law as is administered in the courts. It would be only repeating what has been said so often by various judges that the object of contempt proceedings is not to afford protection to judges, personally from imputations to which they may be exposed as individuals; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which people have in the administration of justice by it is weakened.

It would be befitting to refer to the case of Lalit Kalita And Ors. vs Unknown 2008 (1) GLT 800 decided by the Gauhati High Court wherein Justice Ranjan Gogoi, as he then was, elucidated the concept of fair criticism with reference to contempt of court and held thus:

14. Judiciary is not over-sensitive to criticism; in fact, bona fide criticism is welcome, perhaps, because it opens the doors to self- introspection. Judges are not infallible; they are humans and they often err, though, inadvertently and because of their individual perceptions. In such a situation, fair criticism of the viewpoint expressed in a judicial pronouncement or even of other forms of judicial conduct, is consistent with public interest and public good that Judges are committed to serve and uphold.

The system of administration of justice, therefore, would receive due impetus from a realization amongst Judges that they can or have actually erred in their judgments; another perspective, a new dimension or insight must, therefore, always be welcome. Such a realization which would really enhance the majesty of the Rule of Law, will only be possible if the doors of self-assessment, in the light of the opinions of others, are kept open by Judges.

15. Escalating arrears; endless debates even on interlocutory matters and procedural wrangles; decade long trials are some of the instances that demonstrate the increasing in-ability of the judicial system to deliver the goods expected of it. Such instances have far more ominous portents of eroding public confidence in the system than mere publication of a few misguided expressions of opinion either on the substance of a judicial verdict or on the manner in which the verdict has been reached.

Public confidence is bound to grow if the system of administration of justice is capable of delivering 'timely justice', the deleterious effect of a few misguided publications, notwithstanding. The aim, therefore, should be to gain public confidence by exemplary conduct and performance instead of proceeding in the contempt jurisdiction, an exercise which has often been labeled as a close circuit proceeding where the Judge is the accuser as well as the arbiter.

That is why in modern European democracies including the United Kingdom the offence of scandalizing the Court has become near obsolete, as noticed by Michael Addo of the University of Exeter in his Work Freedom of Expression and the Criticism of Judges. The approach of the British judiciary in maintaining a story silence in respect of the publication The fools appearing in the Times London following a spy catcher case bears ample testimony to the above.

The exercise of the contempt jurisdiction must also be viewed from the standpoint of the necessity of not only having a confident judiciary but also a fearless press both of which are indispensable requirements of a healthy democracy. Such a realization must also dawn upon the Fourth Estate and if required by means of a judicial message. The observations of Lord Denning in Regina v. Commr. of Police of the Metropolis, Ex parte Blackbkn (1968) 2 WLR 1204, extracted below would amply sum up the above situation.

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.

It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.

Exposed as we are to be winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter I hand. Silence is not an option when things are ill done.

16. But when should silence cease to remain an option? Where is the line to be drawn? A contemptuous action is punishable on the touchstone of being a wrong to the public as distinguished from the harm caused to the individual Judge. Public confidence in the judicial system is indispensable. Its erosion is fatal. Of course, Judges by their own conduct, action and performance of duties must earn and enjoy the public confidence and not by the application of the rule of contempt. Criticism could be of the underlying principle of a judicial verdict or its rationale or reasoning and even its correctness.

Criticism could be of the conduct of an individual Judge or a group of Judges. Whichever manner the criticism is made it must be dignified in language and content because crude expressions or manifestations are more capable of identification of the alleged wrong with the system as a whole. Motives, personal interest, bias, pre-disposition etc. cannot be permitted to be attributed as being responsible for the judicial verdict, unless, of course, the same can be established as an existing fact. It is the above category of acts or publications that would fall within the prohibited degree warranting action in contempt law.

It would be appropriate to refer to the 5 member Constitution Bench of the Apex Court in Baradakanta Mishra vs The Registrar of Orissa High Court 1974 AIR 710, 1974 SCR (2) 282 wherein the Court considered contempt proceedings against a subordinate judge himself and opined thus:

Scandalization of the court is a species of contempt and may take several forms. A common form is the vilification of the Judge. When proceedings in contempt are taken for such vilification the question which the court has to ask is whether the vilification is of the Judge, as a Judge or it is the vilification of the Judge as an individual. See Queen v. Gray (1900) 2 Q.B. 36 at 40. If the latter, the Judge, is left to his private remedies and the court has no power to commit for contempt.

If the former, the court will proceed to exercise the jurisdiction with scrupulous care and in cases which are clear and beyond reasonable doubt. Secondly, the court will have also to consider the degree of harm caused as affecting administration of justice and, if it is slight and beneath notice, courts will not punish for contempt. This salutary practice, is adopted by section 13 of the Contempt of Courts Act, 1971. The jurisdiction is not intended to uphold the personal dignity of the Judges. That must rest on surer foundations. Judges rely on their conduct itself to be its own vindication.

But if the attack on the Judge functioning as a Judge substantially affects administration of justice it becomes a public mischief punishable for contempt, and it matters not whether such an attack is based on what a judge is alleged to have, done in the exercise of his administrative responsibilities.

A Judge's functions may be divisible, but his integrity and authority are not divisible in the context of administration of justice. An unwarranted attack on him for corrupt administration is as potent in doing public harm as an attack on his adjudicatory function....

The Court further observed thus:
If judges decay the contempt power will not save them and so the other side of the coin is that judges, like Caesar's wife, must be above suspicion.

To wind up, the key word is justice, not judge; the key-note thought is unobstructed public justice, not the self- defence of a judge; the corner-stone of the contempt law is the-accommodation of two constitutional values-the right of free speech and the right to independent justice. The ignition of contempt action should be substantial and mala fide interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel.

It would be fruitful to refer to the Apex Court judgment in Rama Dayal Markarha vs State Of Madhya Pradesh 1978 AIR 921, 1978 SCR (3) 497 holding that contempt jurisdiction should be used sparingly. The Court observed thus:

Contempt jurisdiction is a special and to some extend an unusual type of jurisdiction where in the prosecutor and, the judge are combined in one. To some extent it trenches upon the fundamental right of free speech and expression and stifles criticism. of a public officer concerned with administration of public justice in discharge of his public duty. In the words of Krishna Iyer, J:
the cornerstone of the contempt law is the accommodation of two constitutional values, the right of free speech and the right to independent justice. The ignition of contempt action should be substantial and mala fide interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel (vide Baradakanta v. Registrar, Orissa High Court). Therefore, the contempt jurisdiction has to be sparingly exercised with utmost restraint and considerable circumspection.

Undoubtedly, judges and courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of court, vide Queen v. Gray.(1900) 2 Q.B. 36 at 40. No criticism of a judgment, however vigorous, can amount to contempt of court, providing it keeps within the limits of reasonable courtesy and good faith, vide Regina v. Commissioner of Police of the Metropolis, exparte Blackburn.(1968) 2 Weekly Law Reports 1204 at 1207.) Lord' Denning, M.R. in the same case further observed that those who comment can deal faithfully with all that is done in a court of justice.

They can say that we are mistaken, and our decisions effoneous, whether they are subject to appeal or not. After referring to these, cases, the contemner drew our attention to the celebrated passage of Lord Atkin in Andre Paul v. Attorney-General A.I.R. 1936 P.C. 141 at 145-146. which has almost become a classic.

It reads as under But where the authority and position of an individual Judge or the due administration of justice is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith in private or public the public act done in the seat of justice.

The path of criticism is a public way : the wrong headed are permitted to err therein : provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a choistered virtue : she must be allowed to 'suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

It would be trite to refer to the Apex Court in Re: S. Mulgaokar vs Unknown (1978) 3 SCC 339 wherein the Court made the following observations:
16. The judiciary cannot be immune from criticism. But, when that criticism is based on obvious distortion or gross mis-statement and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in it, it cannot be ignored.

I am not one of those who thinks that an action for contempt of Court, which is discretionary, should be frequently or lightly taken. But, at the same time, I do not think that we should abstain from using this weapon even when its use is needed to correct standards of behavior in a grossly and repeatedly erring quarter.

It may be better in many cases for the judiciary to adopt a magnanimously charitable attitude even when utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement. But, when there appears some scheme and a design to bring about results which must damage confidence in our judicial system and demoralize Judges of the highest court by making malicious attacks, anyone interested in maintaining high standards of fearless, impartial, and unbending justice will feel perturbed.

I sincerely hope that my own undisguised perturbation at what has been taking place recently is unnecessary, One may be able to live in a world of yogic detachment when unjustified abuses are hurled at one's self personally, but, when the question is of injury to an institution, such as the highest Court of justice in the land, one cannot overlook its effects upon national honour and prestige in the comity of nations.

Indeed, it becomes a matter deserving consideration of all serious minded people who are interested in seeing that democracy does not flounder or fail in our country. If fearless and impartial courts of justice are the bulwark of a healthy democracy, confidence in them cannot be permitted to be impaired by malicious attacks upon them.

It would be relevant to refer to Indirect Tax Practitioners’ Association v. R.K. Jain (2010) 8 SCC 281, wherein the Apex Court struck a balance between criticism and fairness in criticism before awarding penalty for 'contempt of court'. The Court held thus:

15. In the land of Gautam Buddha, Mahavir and Mahatma Gandhi, the freedom of speech and expression and freedom to speak one's mind have always been respected. After independence, the Courts have zealously guarded this most precious freedom of every human being.

Fair criticism of the system of administration of justice or functioning of institutions or authorities entrusted with the task of deciding rights of the parties gives an opportunity to the operators of the system/institution to remedy the wrong and also bring about improvements. Such criticism cannot be castigated as an attempt to scandalize or lower the authority of the Court or other judicial institutions or as an attempt to interfere with the administration of justice except when such criticism is ill motivated or is construed as a deliberate attempt to run down the institution or an individual Judge is targeted for extraneous reasons.

Ordinarily, the Court would not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19(1)(a) of the Constitution. Only when the criticism of judicial institutions transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the Court would use this power. The judgments of this Court in Re S. Mulgaokar (1978) 3 SCC 339 and P.N. Duda v. P. Shiv Shanker (1988) 3 SCC 167 are outstanding examples of this attitude and approach.

The Apex Court in Dr. D.C. Saxena vs Hon'ble The Chief Justice of India
1996 SCC (7) 216 deprecated the growing tendency to scandalise the court, which by itself constituted 'contempt of court'. The Court observed thus:

Scandalising the court, therefore, would mean hostile criticism of judges as judges or judiciary. Any personal attack upon a judge in connection with office he holds is dealt with under law of libel or slender. 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 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 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 or 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 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.

Section 2 (c) of the Act, therefore, defines criminal contempt the wider articulation that any publication, whether by words, spoken or written, or by signs, or by visible representations, or otherwise of any matter or the doing of any other act whatsoever which scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner, is a criminal contempt.

Therefore, a tendency to scandalise the Court or tendency to lower the authority of the court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice, would be a criminal contempt. The offending act apart, any tendency if it may lead to or tends to lower the authority of the court is a criminal contempt. Any conduct of the contemnor which has the tendency or produces a tendency to bring the judge or court into contempt or tends to lower the authority of the court would also be contempt of the court.

It would be relevant to refer to Apex Court in P.N.Duda vs. P.Shiv Shanker (1988) 3 SCC 167 wherein a petition was filed for punishing the then Law Minister for having made contumacious remarks in the course of his speech. The Attorney General did not grant consent. The Apex Court also observed that there was no need to initiate suo motu proceedings.

In S.K.Sundaram: In Re (2001) 2 SCC 171, it was held that vilification of the high personage of the Chief Justice of India would undermine the majesty of the court and dignity of the court.

A three Judges Bench of the Apex Court in the decision reported in Re: Prasant Bhushan and anr (2021) 1 SCC 745 has finally settled the legal position holding that the power of the court to initiate contempt is not in any manner limited by the provisions of the Contempt of Courts Act, 1971. The Court held thus:

18.From the perusal of various judgments of this Court, including those of the Constitution Benches, it could be seen, that the source of power of this Court for proceeding for an action of contempt is Under Article 129. It has further been held, that power of this Court to initiate contempt is not in any manner limited by the provisions of the Contempt of Courts Act, 1971.

It has been held, that the Court is vested with the constitutional powers to deal with the contempt and Section 15 is not the source of the power to issue notice for contempt. It only provides the procedure in which such contempt is to be initiated.

It has been held, that insofar as suo motu petitions are concerned, the Court can very well initiate the proceedings suo motu on the basis of information received by it. The only requirement is that the procedure as prescribed in the judgment of P.N. Duda (supra) has to be followed. In the present case, the same has undoubtedly been followed.

It is also equally settled, that as far as the suo motu petitions are concerned, there is no requirement for taking consent of anybody, including the learned Attorney General because the Court is exercising its inherent powers to issue notice for contempt. It is equally well settled, that once the Court takes cognizance, the matter is purely between the Court and the contemnor.

The only requirement is that, the procedure followed is required to be just and fair and in accordance with the principles of natural justice. In the present case, the notice issued to the alleged contemnors clearly mentions the tweets on the basis of which the Court is proceeding suo motu. The alleged contemnor No. 1 has also clearly understood the basis on which the Court is proceeding against him as is evident from the elaborate affidavit- in-reply filed by him.

It would be of importance to refer to In re Hira Lal Dixit and two Ors.(1955) 1 SCR 677, wherein the Constitution Bench of the Apex Court was considering a leaflet distributed in the court premises printed and published by the said Hira Lal Dixit.

He was the applicant in one of the writ petitions which had been filed in the Supreme Court challenging the validity of U.P. Road Transport Act, 1951. The leaflet though contained a graphic account of the harassment and indignity said to have been meted out to the writer by the State Officers and the then State Minister of Transport in connection with the cancellation and eventual restoration of his license in respect of a passenger bus. While holding him guilty and rejecting his qualified apology, the Constitution Bench observed thus:

It is well established, as was said by this Court in Brahma Prakash Sharma and Ors. v. The State of Uttar Pradesh (supra), that it is not necessary that there should in fact be an actual interference with the course of administration of justice but that it is enough if the offending publication is likely or if it tends in any way to interfere with the proper administration of law. Such insinuations as are implicit in the passage in question are derogatory to the dignity of the Court and are calculated to undermine the confidence of the people in the integrity of the Judges.

Whether the passage is read as fulsome flattery of the Judges of this Court or is read as containing the insinuations mentioned above or the rest of the leaflet which contains an attack on a party to the pending proceedings is taken separately it is equally contemptuous of the Court in that the object of writing it and the time and place of its publication were, or were calculated, to deflect the Court from performing its strict duty, either by flattery or by a veiled threat or warning or by creating prejudice in its mind against the State.

We are, therefore, clearly of opinion and we hold that the Respondent Hira Lal Dixit by writing the leaflet and in particular the passage in question and by publishing it at the time and place he did has committed a gross contempt of this Court and the qualified apology contained in his affidavit and repeated by him through his counsel cannot be taken as sufficient amends for his misconduct.

It would be appropriate to refer to E.M. Sankaran Namboodripad v. T. Narayanan Nambiar (1970) 2 SCC 325 wherein the Apex Court considered the appeal by the Appellant, who was a former Chief Minister, against his conviction and sentence by the Kerala High Court for contempt of court.

The said appellant had said in the press conference that the judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well dressed pot-bellied rich man and a poor-ill-dressed and illiterate person, the judge instinctively favours the former. He had further stated that the election of judges would be a better arrangement. There were certain other statements made by him in the press conference. CJI Justice Hidayatullah delivering the judgment in this case observed thus:

6. The law of contempt stems from the right of the courts to punish by imprisonment or fines persons guilty of words or acts which either obstruct or tend to obstruct the administration of justice. This right is exercised in India by all courts when contempt is committed in facie curiae and by the superior courts on their own behalf or on behalf of courts subordinate to them even if committed outside the courts.

Formerly, it was regarded as inherent in the powers of a court of record and now by the Constitution of India, it is a part of the powers of the Supreme Court and the High Courts. There are many kinds of contempts.

The chief forms of contempt are insult to Judges, attacks upon them, comment on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of courts, witnesses or the parties, abusing the process of the court, breach of duty by officers connected with the court and scandalising the Judges or the courts. The last form occurs, generally speaking, when the conduct of a person tends to bring the authority and administration of the law into disrespect or disregard.

In this conduct are included all acts which bring the court into disrepute or disrespect or which offend its dignity, affront its majesty or challenge its authority. Such contempt may be committed in respect of a Single Judge or a single court but may, in certain circumstances, be committed in respect of the whole of the judiciary or judicial system.

The discussion would be incomplete without reference to the case of well known author, Booker Prize winner, human right activist and environmentalist Arundhati Roy. She was held guilty of contempt of court by the Apex Court in Re: Arundhati Roy vs Unknown (2002) 3 SCC 343.

The Apex Court held that all citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism which, if not checked, would destroy the institution itself. Litigant losing in the court would be the first to impute motives to the judges and the institution in the name of fair criticism which cannot be allowed for preserving the public faith in an important pillar of democratic set up ie., judiciary.

The Court held her guilty of criminal contempt and sentenced her to simple imprisonment for one day and to pay a fine of Rs. 2,000/- and further ordered that in case of default in the payment of fine, the respondent shall undergo simple imprisonment for three months. The Court expressed anguish that in spite of blatant criminal contempt, Arundhati Roy did not tender unconditional apology to the court and while holding her guilty observed thus:

42. As the respondent has not shown any repentance or regret or remorse, no lenient view should be taken in the matter. However, showing the magnanimity of law by keeping in mind that the respondent is a woman, and hoping that better sense and wisdom shall dawn upon the respondent in the future to serve the cause of art and literature by her creative skill and imagination, we feel that the ends of justice would be met if she is sentenced to symbolic imprisonment besides paying a fine of Rs. 2000/-.

Before concluding, it would be befitting to refer to the address of the famous Senior Advocate Harish Salve at the 16th Justice P D Desai Memorial Lecture on Criticism of judiciary, contempt jurisdiction and its use in the age of social media. He opined that the courts must be open to public scrutiny and public criticism as institutions of governance.

He categorically said that the criticism of judges, judicial overreach and the manner of functioning is not scandalising courts, and the language in which such criticism is addressed should be treated with a grin. He is of the view that not only the decisions can be criticised but the decision-making process can also be criticised.

Thus, articles/write-up against judgments make the judges more responsible and aware and is helpful in minimising errors in judgments for the fear of criticism. Fair criticism provides much-needed fuel to the judicial system and therefore it should be encouraged. From the discussions and citations above, it is clear that whether a criticism is fair is purely subjective and dependent on the individual facts and circumstances of the case.

However, whenever the conduct or criticism pinches the conscience of the court or blatantly lowers the prestige of the judiciary, it may constitute a contempt. However, if the contemner tenders unconditional genuine & bonafide apology, the courts are generous to exonerate him/her. As far as contempt of court of an author who makes fair criticism of a judgment, but not the judge, he/she cannot be legally booked for the contempt of court.

Written By: Inder Chand Jain
Email: [email protected], Ph no: 8279945021