CHAPTERS

INDIAN JUDICIAL
APPROA CH AND LA W OF
CONTEMPT
 CHAPTER 5
INDIAN JUDICIAL APPROACH AND LAW OF CONTEMPT

5.1 Introduction

The Indian Judiciary is one of the most powerful in the world. The judiciary in
the country today has come to enjoy enormous powers. It is not only the arbiter of
disputes between citizens, between citizens and the state, between states and the
union, it also in purported exercise of powers to enforce fundamental Rights, directs
the Governments to close down industries, commercial establishments, demolish
jhuggis, remove hawkers and rickshaw pullers from the streets, prohibit strikes and
bandhs etc. In short, it has come to be the most powerful institution of the state. The
stature of the judicature is so high and its powers so wide that any action designed to
debunk, defile or denigiate the great dignity and impartial integrity of the institution is
regarded as an invasion on the people's faith in the courts fearless, biasfree, favour-
free functionalism and its solemn credibility as a constitutional instrumentality of
justice. Indeed, a judge is an epitome of manners in men as the highest personage of
law. To derivate from the most right honesty and impartiality is to betray the integrity
of all law. A judicial scandal has always been regarded as far more deplorable than a
scandal involving either the executive or the legislature.'

Administration of justice and judges are open to public criticism and public
scrutiny. Any criticism about the judicial system or the judges which hampers the
administration of justice or which erodes the faith in the objective approach of the
judges and beings administration of justice to ridicule must be prevented. The
contempt of court proceedings arise out of that attempt.

Its strength is the faith and confidence of the people that could be pemiitted to
be undemiined because that will be against the public interests. It is the bed rock and
handmaid of democracy. If people lose faith in justice parted by a court of law, the
entire democratic set up would crumble down. So, there can be no quarrel with the
proposition that anyone who intends to tarnish the image of judiciary should not be
allowed to go unpunished. By attacking the reputation of judges, the ultimate victim is

' G.B. PaliL Tower of Contempt of Court: A Need for Fresh Look', Cri. I.J, Vol. 116, 2010. p. 242.
- P.N. Duda V. P. Shiv Shankar, AIR 1988 SC 1208: 1988 Cri. L.I 1745: 1988 3 SCC 167.

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the institution. The day the consumers of justice lose faith in the institution that would
be the darkest day for mankind. The importance of judiciary needs no reiteration.^

All state institutions, whether it is the judiciary, legislature or the executive,

are merely servants of the people. Every other institution of the state is accountable to
the anti-corruption agencies, and to the judiciary which has the power of judicial
review of every executive and legislative action. Moreover, the political executive is
accountable to the legislature and the legislature is democratically accountable to the
people that at least are the theory of our constitutional scheme. However, when it
comes to the judiciary, it is neither democratically accountable to the people, nor to
any other institution. The only recourse against a judge committing judicial
misconduct is impeachment, which has been found to be totally impractical remedy.
To initiate the impeachment process one needs the signature of 100 Lok Sabha or 50
Rajya Sabha M.P.'s. This one cannot secure unless two conditions are satisfied. First,
one must have conclusive documentary evidence of very serious misconduct against a
judge. And second, the evidence and the charges must have been published, such that
it has assumed the proportions of a public scandal.

However, the media is afraid and unwilling to publicize the charges against
judges (even than they have documentary evidence to back the charges) because of
the fear of contempt of court which constantly longs as a sired over their necks. This
has effectively led to a situation of total impurity in the higher judiciary. Not only one
corrupt Judges effectively insulated from any action against then, they have also
protected themselves from public exposure of wrong doing by using the threat of
contempt. Demanding judicial accountability has almost always caused the initiation
of contempt proceedings, thereby stifling on the issues that plague the judiciary."

In a democracy fair criticism of the mocking of all the organs of the state
should be welcome and would in fact promote the interests of democratic functioning.
The right of fair criticism provides that a person shall be guilty of contempt of court
for publishing any fair comment on the merits of any case which has been heard and
finally decided. Judges and courts are not unduly sensitive or touchy to fair and

' Haridas Das v. Smt. Usha Ram Banik and others, AIR 2007 SC 2888: 2007 SCCL.com 769.
Supra note 1.
' Id., pp. 242-243
'• Vincent Panikulangaie v. Gopal Kurup, 1982 Cri. L.l 2094.

226
reasonable criticism of their judgments fair comments even if outspoken but made
without maturity or attempting to impair the administration of justice and made in
good faith in proper language do not attract any punishment for contempt of court.

5.2 Contempt by Lawyers

The role of a legal practitioner whether called an Advocate or a Barrister or a

pleader or a Mukhtar, is very important in democracy. Certain very healthy
conventions are attached with this profession, for example an Advocate cannot
advertise to get work. He cannot keep agents to bring clients to him. In the past in
the gram of a Barrister there was a pocket on the back in which the clients could drop
the fee whatever they could afford. This is a sort of public service. Law is
complicated with numerous Acts, Rules and Notification; a citizen can be bewildered
as he would in a dense forest. The language of the legislation is complicated and very
often confusing. It is only with the help of an Advocate can be have his rights
recognized and enforced.

In re under Article 143 Constitution of India, the Supreme Court emphasizing

the importance of the role of Advocates observed as follows:

"Section 3 of the Advocates Act, 1961, confers on all Advocates the Statutory
right to practice in all courts including the Supreme court before any tribunal or
person legally authorized to take evidence and before whom such advocate is by or
under any law for the time being in force entitled to practice. Section 14 of the Bar
Council Act recognizes a similar right. If a citizen has the right to move the High
Court or the Supreme Court against the invasion of his fundamental rights guaranteed
to all citizens, the legal profession plays a very important and vital role, and so, just as
the right of the judicature to deal with matters brought before them under Art. 226 or
Art. 32 cannot be subjected to the powers and privileges of the issue (Legislative
bodies) under Art. 194(3). That is one integrated scheme for enforcing the
fundamental rights and for sustaining the rule of law in this country."

' In re Roslian L:il Aliuja, 1993 Supp 4 SCC 446.

^ Iyer's, 'Law ofCoiitempl of Courls with I'ailiaiiiem, Stale Assemblies and I'ublic Servants', 1999, p.
905.
'' AIR 1965 SC 745: also see V.P. Kumaravclii v. Bar Council of India, (1997)4 SCC 266.

227
 Pointing to the relations between the court and counsel it was pointed out in
Diwan Durga Das v. B.K. Kishore,^^ a very laudable and long standing convention
has been established which is to the effect that a statement made by a counsel from
the back is accepted by courts. The convention is certainly laudable, as it produces
smooth working and it establishes healthy relation between the court and the members
of the Bar, but a convention at best is not law and when it is found that statements
made by a counsel are ineligible, it is open to the court not to accept them and to ask
for affidavits in support of the statements made by the counsel.

The very nature of the calling of the lawyer and the judge may sometimes lead
to merely duels, sometimes humorous, sometimes harsh and sometimes heated. The
mutual rapier thrusts on either side may at any time become the ignition point for an
ugly situation. But the tradition and decorum of their calling should advise the lawyer
and the judge to take it all calmly and look for ahead as to their duty in the
administration of justice. It is not good for the judge to feel merely superior or for the
lawyer to exhibit any 'bravado spirit'. Just as the lawyer has to realize that the law of
contempt of court is there to check his excess, the judge should also feel that he is not
above that law, which he is functioning under that law.

In Banarsilal v. Neelain,^^ a revision petition drafted by a lawyer continued

matters which amounted to contempt of court. It was contended by the respondent that
the petitioner in revision cannot be even heard till he purges himself of the contempt.
The court disallowed this objection as that will be throttling free access to court for
redress. The court added: "The summary power of punishing for contempt has to be
used sparingly and only in serious cases. The High Court must of necessity possess
this power in the larger interests of sustaining the authority and impartiality of the
judicial process but its usefulness depends on the wisdom and restraint with which it
is exercise. To use it against professional lawyers, when there is no malice and no
attempt to impair or obstruct the administration of justice, but when they seem to have
genuinely exercised their professional right of criticism- may be in somewhat ill-
advised language-in seeking justice for their clients is to use it for a purpose for which
it does not seem to have been intended.

'" 1959 Cii. U 406 at p. 408 (All): AIR 19.59 All 211.
" V.G. Ramachandian, 'Contempt of CoLiit\ 1993, p. 556.
'-AIR 1969 Delhi 304.

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 In a Madras Case^ an injunction was issued to an Advocate restraining him
from functioning as Managing Director but he footed the order taking umbrage under
the new Articles of Association and a fresh resolution of the Board under which he
thought there a new Jural basis not within the mischief of the original injunction, on
which the mischief of the original injunction, on which he could ftmction. It was held
that if the Advocate had such a notion as to his new Jural basis he ought to bring them
all to the notice of the court praying for modification or cancellation of the injunction.
But in view of his unqualified apology and his being a senior member of the Bar the
court felt "that interests of justice do not require that he should be mulched in fine.
He has already learnt his lesson. By his unqualified apology he has purged himself of
the contempt which he has committed. The right of Advocacy, the right to forcefully
represent to the court may all be right on the part of counsel. But he should not be
party to contumacious avemients even in what is called a 'representation petition'.

5.2.1 Status of Lawyer

A lawyer by virtue of his position is an officer of the court, and belongs to a

privileged class enrolled not only for the purpose of rendering assistance to the court
in the administration of justice but also for giving professional adverse, for which they
are entitled to be paid, by those members of the public who requires their sei-vices.
Their position as lawyers, their training and practice give them immense influence
with the public and their example must necessarily have a much greater effect,
whether for good or for evil, than the example of those who do not occupy this
privileged position. Members of legal profession are under no duty to their clients to
make gi^ave and scandalous charges either against judges or the opposite parties on the
mere wish of their clients. They are agents, not of the man that pays them but are
acting in the administration of justice, and in matters of making applications to court
they are bound to exercise an independent and to conduct themselves with a sense of
personal responsibility. If they fail to act with reasonable care and caution, they are
unfit to enjoy the privileges confeired upon them by law and serious and serious
breaches will be visited with punishment.

'•' M.G. Amiilhalingam v. K.P. Arunachalam, (1969) 1 MLJ 649.

K..I. Alyar, ' The Law orContempt of Court, Legi.slatuies and Public Servants', 1983, p. 419.

229
 The respondent complained to the High Court that his case before the Rent
controller was disposed off after considerable delay and he had been put to
inconvenience and expense. He further blamed the counsel for prolonging the case
before the Rent Controller. These grievances were held not to constitute contempt of
court.'^

The refusal by a person whose statement was taken by the commission to sign
to the same it could not be construed as an act of contempt of court when the
commissioner who was directed to report if the house contained any luggage,
exceeded his rights and started taking down statements. "^ Counsel who sign
applications or pleadings containing maters scandalizing the court without reasonably
satisfying themselves about the prima facie existence of adequate grounds therefore
with a view of prevailing or delaying the court of justice, are they guilty of contempt
of court.'^

It should widely be made known that counsel who sign an application or

pleadings containing matters scandalizing the court without reasonably satisfying
themselves about the prima facie existence of adequate grounds therefore with a view
to prevent or delay the course of justice, are themselves guilty of contempt of court,
and it is no duty of a counsel to his client to take any interest in such application, on
the other hand, his duty is to advise his client for referring from making any
allegations of this nature in such application. However, every fonn of defence in a
contempt case cannot be regarded as an act of contumacy and it depends upon the
facts of each case and on the general impression about a particular rule of ethics
amongst the members of the profession.

The High Court will take a serious view, if public officers of responsibility act
in such a manner as to obstruct the course of justice or disobey to implement the
orders of court, for such act will undemiine the prestige of courts and set a bad
example to the public. At the same time, the filing of frivolous applications for
contempt against public officers with a view to harass them is equally reprehensible
and court will give exemplary costs against such abuse of process of the High Court.

'' State V. Bodh Raj Muiiawail AIR 1958 J&K 19: 1958 Cii. IJ 636.
"' Diwan Duiga Das v. B.R. Kislioic, AIR 1959 All 211: 1959 Cn. iJ 406.
'" Swamamayi Panigrahi v. B. Nayak, AIR 1959 Oii.s.'^a 89: 1959 Cii. IJ 626.
"* M.K. Acharya, Add. District Magistiate v. Revashankar Narabadapiasad. AIR 1959 MP 23S: 1959
Cn. LJ 842.
11)
D. Jones Shield v. N. Ramesain, AIR 1955 Andra 156: 1955 Cri. L.I 102S.

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 A lawyer is a person educated and trained in law. The choice of words by him
in the matter of drafting the legal documents and arguments has to be careful, lawyers,
because of their profession, advise people in making agreements, contracts, wills, etc.,
also prepare pleadings, applications, arguments etc. The use of language has to be
balanced and in fitness of things within the framework of the law of the land. He
cannot and should not be reckless in use of language. There are barriers, which are
known to a lawyer and those have not to be crossed, lawyers have not to over-step the
limits of decency and ethics in the matter of their behavior towards the judges and
their decisions.

in Court on its own motion v. Radha Kishan, the court observed that it must
be made clear that a counsel is not exempt from the ordinary disability which the law
imposes and his position is not invoidable and in privileges cannot extend to interfere
with the administration of justice. On the other hand he is expected to help in
suborning the course of justice and not to impede it in any manner. It is to be
remembered that pleaders have a duty not only towards their clients but also towards
the court of which they are pleaders, and it is part of their duty to co-operate with the
court in the orderly and pure administration of justice.^^

The Advocates Act 1961 has repealed a most of enactments including Indian
Bar Council Act. When the new Bar Council of India came in to existence, it framed
rules called the Bar Council of India rules as empowered by the Advocates Act. Such
rules contain a provision specifically prohibiting an Advocate fomi adjusting the fees,
payable to him by a client against his own personal liability to the client. As a rule, an
advocate shall not do anything whereby be abuses or takes advantage of the
confidence reposed in him by his client. Misconduct envisaged in Section 35 of the
Advocates Act is not defined. The section used the expression "misconduct
professional or otherwise". The word "misconduct" is a relative term. It has to be
considered with reference to the subject matter and the context in herein such tenn
occurs. It literally means wrong conduct or improper conduct.

-° Supra note 8 al p. 908.

- AIR 1957 PH 105: 1957 Cn.lJ 657.
"• In the matter o f Mohendia Lai Roy, AIR 1922 Cal. 550 at p. 557.
"' Advocates Act, 1961: i'unislinient o f Advocates for Misconduct, Sec. 35.
"•^ The Hindu, 'Role of Advocates and Contempt o f Court', 24 A p r i l , 2001. www. hi ndu.com. Accessed
on 4.7.2014.

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 There must be something which can fairly be described as misconduct;
otherwise there can be no reasonable cause for taking disciplinary action.
"Misconducf' itself is a sufficiently wide expression; it is not necessary for instance
that it should involve moral turpitude. The court has a right to expect a higher
standard of loyalty to the court under co-operation from those who practice profession
of law. Any conduct which in any way renders a mean unfit for the exercise for the
exercise of his profession or is "likely to hamper or embarrass the administration of
justice by the High Court or any of the court subordinate thereto" may be considered
•ye

to be misconduct calling for disciplinary action.

Prior to this Act, High Court alone was competent to punish an Advocate for
unprofessional conduct. Under the Indian Bar Council Act, 1926, the High Court, on
receipt of a finding from the Bar Council and after hearing all parties, could
reprimand, suspend or remove from practice any advocate whom it found guilty of
professional or other misconduct. The power of punishment for misconduct of an
advocate under the present Act resides in the State Bar Council under Section 35 or in
the Bar Council of India under Section 36 not entered on any state roll. An advocate,
therefore, is primarily punished by the member of his even fraternity in the shape of
the disciplinary committee. Any person aggrieved by an order made by the
disciplinary committee can, within sixty days of the date of communication of the
order to him, prefer an appeal to the Bar Council of India under Section 37. Again
any person aggrieved by an order made by the disciplinary committee of the Bar
Council of India under Section 36 or Section 37 may, within sixty days of the date on
which order is communicated to him, prefer an appeal to the Supreme Court that is the
highest court of Appeal in the Union of India.

Both in law and in ordinary speech, the term 'misconduct' usually implies an
act done willfully with a wrong intention and as applied to professional people; it
includes unprofessional acts even though such acts are not inherently wrongful.
Conduct of an advocate who was party to racket involved in defrauding and creating
aspirant loanees amounts to professional misconduct and order of the disciplinary

' Sanjiva Row's,'The Advocates Act 1961\ 1997, p. 133.

'" Ibid
bid.
n the matter of Mahbub All Khan, AIR I95S Aiidh. I'la. 116.

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committee of the Bar Council is justified in imposing the penalty of removal of the
name of advocate found guilty from roll of Advocates.

The relationship between advocate and client is based only on confidence and
trust. If an advocate is allowed to give advice to one party and appear for the opposite
party in court the confidence reposed in him will be lost and his conduct will amount
to prostitution of the profession. Counsel appearing for one party is not expected to
please both his party and the opposite party and if he does so, it will amount to
professional misconduct and breach of trust.^^

The Supreme Court in All India Judges Association v. Union of India, ^^ has
observed that the administration of justice and the party to be played by the advocates
in the system must be looked into from the point of view of litigant public and right to
life and liberty guaranteed under Article 21 and right to grant legal aid as
contemplated under Article 39-A of the constitution. The Supreme Court had various
landmark decisions upheld the legal profession as a Nobel profession.

Krishna Iyer J., in the Bar Council of Maharashtra v. M.V. Dabholkar,^^

observed that the vital role of the lawyer depends upon his probity and professional
lifestyle. The central function of the legal profession is to promote the administration
of justice. As monopoly to legal profession has been statutorily granted by the nation,
it obligates the lawyer to observe scrupulously those nonns which make him worthy
of confidence of the community in him as a vehicle of social justice. "Law is not
trade briefs-no merchandise". Legal profession is monopolistic in character and the
monopoly itself whereas certain high traditions which as members are expected to
upkeep and uphold.^^

Law is Supreme and it is intended for the welfare of the people. The Bar had
its own tradition, in the part, and it was respected not only for its professional
excellence, but also for its participation in all public authority intended for the welfare
of the community of late, there have been numerous instances where members of the
Bar have not followed the code of conduct expected of them, be it inside the court

-^ Devendra Bhai Shankar Mehta v. Ramesh Chandra Viihal Das Seth, AIR 1992 SC 1398 at p. 1405.
' Supia note 24.
' " A I R 1992 SC 165.
'' AIR 1976 SC 242.
" M. Veeiabhadra Rao v. Tek Chand, AIR 1985 SC 28 at p. 38.

233
halls or outside it, either in relation with the client or even with any member of the
public. It will be no answer to state that there has been deterioration in all professions
for the legal profession not only safeguards the rights of several other professions, but
is also called upon to perform the professional work, after mastering the nuances in
every other profession for those who seek justice from courts belong to a variety of
professions. Needless to add that it must be the reason why the legal profession stands
kept on the pinnacle. It may be the right of any member of the Bar, in his personal
life, to have his own political affiliation, but when it comes to court proceedings
politics cannot be introduced in it. It was the duty of the lawyers to protect the dignity
and decorum of the judiciary. If lawyers fail in their duty, the faith of the people in the
judiciary will be undermined to a larger extent. It is said that lawyers are the custodian
of civilization. Lawyers have to discharge their duty with dignity, decorum and
discipline.

5.2.2 Bench and Bar

Judges are priests in the temple of justice whereas lawyers are worshippers of
Goddess of justice in the temple. Worshippers through the medium of priests have to
reach to the Goddess of Justice. For the same, both are necessary and in absence of
the one, another is incomplete. Hence lawyers and judges have to co-ordinate, co-
operate and collectively work towards the delivery of justice. Bench and Bar need to
harmonize and balance their functioning to achieve the scared goal i.e. justice instead,
situation might arise due to which both could be pitted against each other i.e. Bench
versus Bar.

5.2.2.1 Decisions of the Supreme Court on Contempt by Advocate

In re, V.C. Mishra,^^ the Supreme Court having found the contemnor, an
advocate guilty of committing criminal contempt for "obstructing the court of justice
by trying to threaten, over once and overbear the court by using insulting,
disrespectful and threatening language, sentenced simple imprisonment for a period of
six weeks, and suspended him from practicing as an Advocate for a period of three
years. As a result of suspension from practice all elective/nominated offices/posts also

'• .Supra note 24.

^"' Dalip Vke and Suieshchandia R. Bhosale, 'Legal Profe.s.<;ion and Contempt of Courts: A Need for
Harmony and IBalance', Journal of Indian Bar Review, Vol. 26 (2), 1999, p. 72.
'^(1995) 2 ' s e c 584.

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stood vacated. The six weeks simple imprisonment was kept in suspension for a
period of four years, to be activated in case contemnor found guilty of any other
offence of contempt of court. The order of the court to suspend the contemnor
advocate was made invoking powers under Article 129 and 142 of the Constitution.^^

The Supreme Court declared that it can take cognizance of contempt of High
Courts and in exercise of its power under articles 129 and 142 of the constitution it
punished the contemnor before it. This ruling of the Apex Court brought up a
controversy with a good amount of academic discussion in the press. This controversy
mainly related to the punishment meted out to the contemnor, who was also the
chairman of the Bar Council of India. The Bar Council of India is the authority that is
conferred with the powers to regulate the legal profession. Under the Indian Advocate
Act, the body is conferred with the responsibility of enrolling Advocates, which is
done through the state Bar Councils, as well as the power to revoke or suspend the
right of an advocate to practice. The controversy that was sparked off by this
judgment also included some legal issues, relating to the powers of the courts of law
especially the Supreme Court in relation to contempt matters. Contempt is a tool that
the courts of law are now wielding with considerable frequency to ensure that their
orders, directions and judgments are respected.^^

Aggrieved by the direction that contemnor shall stand suspended from acting
as an Advocate for a period of three years issued by the Supreme Court invoking
powers under Articles 129 and 142 of the constitution, the Supreme Court Bar
Association through its honorary secretary had filed the petition under Article 32 of
the Constitution viz. Supreme Court Bar Association v. Union of India.^^ The
petitioner sought relief from the Apex Court and prayed to issue an appropriate writ,
direction, or declaration, declaring that the disciplinary committee of the Bar Council
set up under the Advocate Act, 1961, alone above exclusive jurisdiction to inquire
into an suspend or debar an advocate from practising law for professional or other

^^ Art. 129. The Supreme Court shall be a court of record and shall have all the powers of such a court
including the powers to punish for contempt of itself
Art. 142(1), The Supreme Court in the exercise of its jurisdiction may pass such decree or make such
order as is necessai-y for doing complete justice in any cause or matter pending before it, and any
decree to passed or order so made shall be prescribed by or under any law made by Parliament and
until provision in that behalf is so made, in such manner as the President may by order prescribe.
•" Vikrain Raghavan, 'A Comment on In Re Vinay Chandra Mishra', Journal of Cochin University
Law Review, Vol. 20, 1996, p. 200.
^'^C1998) 4 s e c 409.

235
misconduct, arising out of punishment imposed for contempt of court or otherwise.
Similarly it also prayed further to declare that the Supreme Court of India or any High
Court in exercise of its inherent jurisdiction has not such original jurisdiction, power
or authority in that regard.^''

Main constitutional questions:

The two main issues before the Supreme Court in the V.C. Mishra case were:

(i) Whether Article 129 of the Constitution vested the court with the power to
punish for contempt of itself and not of the High Court's; and
(ii) The powers under Articles 142 and 129 must be necessarily exercised in
confonnity with the contempt of courts Act, 1971.

The three judges Bench in Vinay Chandra had pointed out that the jurisdiction
and powers of the Apex Court under Art. 142 are supplementary in nature and are
provided to do complete justice in any matter, are independent of jurisdiction and
powers of the Supreme Court under Article 129 which cannot be trammeled in any
way by any statutory provision including the professions of Advocates and contempt
of courts Act and these Acts cannot denied, restrict or limit the powers of the Supreme
Court to take action for contempt under Article 129."* In different words, the
Supreme Court herein read these two constitutional provisions viz. Articles 129 and
142 superior to the statutes, which were considered as subordinate to the Constitution.

On the other hand in the writ petition the learned senior counsels of petitioner
Mr. Kapil Sibal and Dr. Rajeev Dhavan assailed the holding of earlier court and
contended that powers confen-ed on the Supreme Court by article 142, though very
wide in their amplitude, can be exercised only to do completed justice in any case or
cause pending before it and since the issue of "professional misconduct" is not the
subject matter of "any cause" pending before the court while dealing with a case of
contempt of court, it could not make any order either under Articles 142 or 129 to
suspend the licence of an Advocate contemnor for which ,punishment, statutory
provisions otherwise exists. Similarly the learned solicitor General also submitted
that under Article 129 read nor create a 'punishment' not otherwise permitted by law

Supin note 34 al p. 73.

Supra note 3.5, para 51 a( p. 624.

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and that since the power to with Article 142 of the Constitution, Supreme Court can
neither create a 'Jurisdiction' punish an advocate for 'professional misconduct' by
suspending his licence vests exclusively in a statutory body constituted under the
Advocates Act, the Supreme Court cannot assume that jurisdiction under Articles 142
or 129 or even under Section 38 of the Advocate Act.

With great respect to the three judges Bench in Vinay Chandra, it is submitted
that the interpretation accorded by it to the ambit and scope of Art. 142 of the
Constitution is not the correct one, whereas the constitution Bench in A.R. Antulay v.
Ranidas Nayak,'^^ and Sub Committee on Judicial Accountability etc. v. union of
India laid down the correct approach. In those cases the Supreme Court observed
that while exercising power under Article 142, the court will exercise the same in
assessing the needs of complete justice of a cause or matter and it will take note of the
express prohibitions in any substantive statutory provisions based on same
fundamental public policy and regulate the exercise of its power and discretion
accordingly, which it is submitted is a correct approach and moreover as per the
doctrine of precedent the three judges bench ought to have followed the same.

In the instant writ petition the five judges bench rightly followed the view and
Dr. Anand J. in delivering the unanimous judgment hold that, 'when this court is
seized of a matter of contempt of court is seized of a matter of contempt of court by
an advocate, there is no case, cause or mater' before the Supreme Court regarding his
professional misconduct even though in a given case, the contempt committed by an
Advocate may also amount to an abuse of the privilege granted to an advocate may
also amount to an abuse of the privilege granted to an advocate by virtue of the
licence to practice law but no issue relating to his suspension fomi practice is the
subject matter of the case. The powers of this court under Article 129 read with
Article 142 of the Constitution, being supplementary powers have to be used in
exercise of its jurisdiction in the case under consideration by this court. Moreover, a
case of contempt of court is not strict sense a cause or a matter between the parties
inter se. It is a matter between the court and the contemnor.

"" Appeal fVoni Bar Council of India to the Supreme Court.

" Supra note 34 at p. 74.
• " A I R 1984 SC 718: (1984)2 SCR 914: 1984Cri.IJ 647: 1984 (2) SCC 500.
•"(1991) 4 s e c 699.
' Supia note 38. para 4 1 .

237
 The learned judge further observed that the power of the Supreme Court to
punish for contempt of court, though quite wide, is yet limited and cannot be
expanded to include the power to determine whether an advocate is also guilty of
'professional misconduct' in a summary manner giving ago by to the procedure
prescribed under the Advocates Act. The power to complete justice under Article 142
is in a very corrective power, which gives preference to equity over law but it cannot
be used to deprive a professional lawyer of the due process contained in the
Advocates Act, 1961 by suspending his licence to practice in a summary manner
while dealing with a case of contempt. It needs to be remembered that Article 142
being curative in nature cannot be construed as powers which authorize the court to
ignore the substantive rights of a litigant while dealing with a cause pending before it.
This power cannot be used to supplant substantive law applicable to the case or cause
under consideration of the court Article 142 even with the width of its amplitude,
cannot be used to build a new edifice where none existed earlier by ignoring express
statutory provisions dealing with a subject and thereby to achieve something
indirectly which cannot be achieved directly."*

From a reading of Article 142 it is clear that the statutory provisions cannot be
ignored or taken away or assumed by the Supreme Court. The Advocates Act, 1961,
empowers the Bar Council to take action against the Advocate for professional
misconduct. The Bar Council is empowered under Section 35 of the Advocates Act,
1961 to punish advocates for professional misconduct. The act contains a detailed and
complete mechanism for suspending or revoking the licence of an advocate. A
disciplinary committee hears the case of the advocate concerned and then order any of
the punishment listed in Sec. 35 (3) (a-d) Advocate Act, 1961. If the advocate is
guilty of contempt of court as well as professional misconduct the court must punish
him for the contempt, whereas refer the professional misconduct to the Bar. The Bar
will then initiate proceedings against, this provides the advocate right with right to be
heard and appropriate action is taken by the disciplinary committee. After such
proceedings if the advocate is aggrieved he may approach the Supreme Court.
Section 35 of the Advocate Act, 1961 provides for an appeal to the Supreme Court.

"' Ibid., paras 43, 47.

238
This section confers upon the court appellate jurisdiction. This section can in no way
be construed to give original jurisdiction to the court.

There was an inherent fallacy in the case of Vinay Mishra, it was said once the
matter is before the court it can pass any order or direction. But the matter is that of
contempt of court not of professional misconduct. The court has jurisdiction or the
matter of contempt by professional misconduct vests with the Bar. As the Bar can
suspend an advocate only after giving him an opportunity to represent himself which
is the requirement of due process of law, after the case of Maneka Gandhi v. Union
of India.'^^ The court in Vinay's case vests with itself with the jurisdiction that it
never had."* The Supreme Court is vested with the right to punish those guilty of
contempt of court under Article 129 read with Article 142 of the Constitution of India.
The power to punish contemnors is also vested with the High Courts under Article
215 of the Constitution and the contempt of court Act, 1971 also governs the
punishment given by the High Court. This act in no way controls the jurisdiction of
the Apex Court. The court in re Vinay Mishra misconstrued Article 129 read with
Article 142 and robbed the bar to of all powers to try and punish those for
professional misconduct. It even assumed jurisdiction when section 38 of the
Advocate Act, 1961 explicitly provides only appellate jurisdiction to the Apex Court.
The court punished Shri Mishra by suspending him thus the petition arose in the 1998
case, Supreme Court Bar Association v. Union of India.^^

The Supreme Court overrules the Mishra case in Supreme Court Bar
Association case and recognized the Bar Council's power to try and punish all those
guilty of professional misconduct. It is well settled that contempt proceedings are
brought about to protect the majesty of law and uphold the judiciary's position, the
central pillar in India democracy among the public and give them reason to keep their
faith in the administration of justice. Contempt proceedings are not brought about to
restore the pride of the judge in who's court or against whose order there was
contempt. In the Mishra case the court instead of protecting the image of the judiciary,
the upholder of the laws knowingly or unknowingly, tried to restore the pride of the

' Amrinder Singh, 'Supreme Court on Contempt by Advocates", www.Iegalseiviceindia.com.

Accessed on 4.7.2014
'^CIQVS) 1 s e c 248.
Supra note 47.
'" Supra note 38.

239
judge by suspending the advocate Mishra who might have been influenced by his high
position in the Bar, and felt that appropriate punishment might not be meted out to
them.^'

In the Supreme Court Bar association case the court took a very objective
view and taking the help of law and construing it in the right way came to the
conclusion that the power to punish any professional misconduct rests with the Bar,
whereas to punish for contempt only it has jurisdiction for itself and subordinate
courts. No statute can take the contempt jurisdiction away from the supreme as well
as High Court.

M.Y. Shareef and Another v. The Hon'ble Judges of the High Court of
Nagpur and others,^^a writ petition under Article 226 filed in the High Court of
Nagpur for an order of prohibition against the state from deporting him by treating
him as a national of Pakistan. In view of the certain adverse remarks of the judges a
petition was filed for transfer of the case to another Bench. This petition was signed
not only by the party but also by his two counsels. This petition as also the main
petition under Article 226 was discussed. Notice was issued to the applicant and his
two counsel to show cause why they should not be committed for contempt for
scandalizing the court. They were convicted for contempt and ordered to pay a fine.
The matter was cairied to the Supreme Court by special leave. In the Supreme Court
the appellants tendered an unqualified apology. The Supreme Court adjourns the
appeal for two months directing the apology to be tendered to the High Court. This
was accordingly done but the High court did not alter the sentence. The matter was
again before the Supreme Court.^

A section of the Bar seems to be laboring under an erroneous impression that

when an advocate is acting in the interests of his clients or in accordance with his
instructions he is discharging his legitimate duty towards him even when he signs an
application or a pleading which contains matter scandalizing the court and that when
there is conflict between his obligations to the court and his duty to the client, the later
prevails. ''

' Supra note 47.

'- (1955) I SCR 757: AIR 1955 SC 19: 1955 Cn. !J 133.
'•' G.C.V. Subba Rao, 'Commeniaiy on Contempt of Couits Act 1971', 1974, p. 211.
' www.indiakanoon.org A.s.scs.scd on 1 1.7.2014

240
 It should be widely made known that an advocate who signs an application or
pleading containing matter scandalizing the court which tends to prevent or delay the
course of justice is himself guilty of contempt of court unless he reasonably satisfies
himself about the prima facie existence of adequate grounds there for and that it is no
duty of an advocate to his client to take any interest in such applications; on the other
hand, his duty is to advise his client for refraining from making allegations of this
nature in such applications. In border line cases where a question of principle about
the rights of an advocate and his duties has to be settled an alternative plea merits
consideration, for it is possible for a judge who hears the case to held that there is no
contempt in which case a defence of unqualified apology is meaningless, because that
would amount to the admission to the commission of an offence. Every form of
defence in a contempt case cannot be regarded as an act of contumacy. It depends
upon the circumstances of each case and on the general impression about a particular
rule of ethics amongst the members of the profession.^^

In this situation, the question for consideration in the appeal now is whether
the two appellants have purged the contempt by tendering an unqualified apology in
the Supreme Court as well as the High Court, the genuineness of which has been
again emphasized by their counsel before the Supreme Court, or whether the sentence
of fire awarded to them by the High Court should necessarily be maintained for
upholding the authority and dignity of the court.

The proposition is well settled and self evident that there cannot be both
justification and an apology. The two things are incompatible. There has been nothing
said in the lengthy judgment of the High Court that these counsel in their long career
at the Bar have ever been disrespectful or discontinues to the court in the past. After a
carefijl consideration of the situation that arises in this case Supreme Court reached
the decision that the dignity of the High Court would be sufficiently if upheld if the
unqualified apology tendered in this court in the first instance and reiterated in
absolute terms again at the next hearing is accepted and that apology is regarded as
sufficient to purge the contempt. The matter has become very stale and the ends of
justice do not call for maintaining the punishment of fine on two senior counsels for
acting wrongly for erroneous impression of their rights and privileges. For the reason

•'' I bier
^'' Supra note .53 at p. 212.

241
Supreme Court set aside the sentence of fine passed on both the appellants by the
High Court and unqualified apology given by them to the Supreme Court and High
Court is accepted.^^

R.K. Garg v. State of Himachal Pradesh,^^ the appellant contemnor, an

advocate, hurled a shoe at the trial court judge and explained his conduct by saying
that he acted under an irresistible impulse generated by the provocative language used
by the judge. But the High Court held that the appellant had given an untrue version
of the very genesis of the incident. However, in view of the fact that the appellant
tendered an unconditional apology to the Supreme Court and to the court where the
offence was committed, a long sentence of imprisonment was not called for. The
appellant was present in Supreme Court and it was visible that he had suffered enough
in mind and reputation and no greater purpose was going to be served by subjecting
him to long bodily suffering. Accordingly, sentence of six months was reduced to one
month and fine of Rs. 2000 was enhanced to Rs. 1000.

In Rachapudi Subba Rao v. The Advocate-General, Andhra Pradesh, an

appeal was directed by Rachapudi Subba Rao against a judgment of the High Court of
Andhra Pradesh, whereby the appellant was convicted for committing gross contempt
of court under Section 12 read with Sections 10 and 15 of the contempt of courts Act,
1971^*^ and sentenced to undergo one month's imprisonment. The Supreme Court also
held that the appellant had committed serious and gross contempt of court as he had
recklessly imputed malafide and lack of good faith to the judicial officer who had
decided the cases against him. The court also observed that the imputations leveled
were perse scandalous and actuated by bad faith. The main reason of upholding the
judgment of High Court was the absence of relentment. He was sentenced with one
month's imprisonment because he did not even pretend to give any reason for the
alleged malicious attitude on the part of the judicial officer either in notice or in
counter affidavit. Rejecting the appellant's contention that in view of Sec. 13^'
contempt of courts Act, 1971 no sentence could be imposed on him. The court opined

''id., pp. 212-213.

'^ AIR 1981 SC 1382.
''(1981)2 s e c 577.
'Contempt o f Coiiit.s Act. 1971', Sec. 12, Puiii.shiiient for coiileinpt o f Couft; Sec. 10, Power o f High
Couit to Puiii.sh Contempt s o f Subordinate Court.s; Sec. 15, Cognizance o f Criminal Contempt in
other cases.
Ibid, Sec. 13 Contempt not Punislinblo in certain cases.

242
that if the act complained scandalization of the judicial officer in regard to the
discharge of his judicial functions, thereby substantially interfered or tended to
interfere with the due course of justice, which was a facet to the broad concept of the
'administration of justice', and as such, was punishable under Sec. 13 of contempt of
courts Act, 1971.

In L.D. Jaikawal v. State ofU.P., the Supreme Court said that "we are sorry
to say that we cannot subscribe to the slapsay-sorry and forget school of thought in
administration of contempt jurisprudence". In the said case a senior advocate
appeared for his client before a special judge and had made a written application to
the said special judge couched in scurrilous language, making the imputation that the
judge was a 'corrupt judge' and adding that he was 'contaminating the seat of
Justice'. He was held guilty for contempt of court and sentenced for one week simple
imprisonment along with a fine of Rs. 500. The Supreme Court declined to interfere
and set aside the sentence merely because the appellant advocate tendered a fornial
apology, wherein he stated that he was doing so 'as directed by the Hon'ble Supreme
Court'."

In M.B. Sanghi v. High Court of Punjab and Haryana and Others,^'^ the
contemnor was a practicing lawyer. He had made an attack on the judge which was
disparaging in character and derogatory to judge's dignity and would really shake the
confidence of the public, thus, he was held guilty for contempt. Though the
contemnor had tendered an unqualified apology but it was not accepted and the court
held that the apology is not a weapon of defence to purge the guilt of their offence;
nor it is intended to operate as a universal panacea but it is intended to be evidence of
real contriteness.

In Shamsher Singh Bedi v. High Court of Punjab and Haryana,^ an

advocate, Shamsher Singh, filed an appeal under Section 19 of the contempt of courts
Act, 1971 against the judgment and order of a Division Bench of the Punjab and
Haryana High Court for making allegations of malafide intention against the sub-
Divisional Magistrate. The appellant wanted to submit that the remarks made in the

'•-AIR 1984 SC 1374.

" Id. at p. 1375.
' " ' A I R 1991 SC 1834.
'•'AIR 1995 SC 1974.

243
notice were against the individual presiding officer and not against the court as such
and, therefore, a clear cut case is not made out. But the Supreme Court opined that
such remarks were scandalous and with reference to judicial functions of Magistrate
which interfered with administration of justice could not be said to be aimed at the
individual, therefore, the conviction of the advocate was upheld.

In re Nand Lai Balwani Case,^^ the advocate shouted slogans in the open
court and, therefore hurled his shoe, toward the court thereby interrupting the court
proceedings. He was infonned that his action was aimed at intimidating the court and
causing interference in conduct of judicial proceedings and amounted to gross
contempt of this court. He was infonned of the charge and asked if he had anything
to say in his defence. At his request, time was given to him to file an affidavit in
response to the charge. He filed an affidavit, in which he admitted his intemperate
behavior in the court and tendered unconditional apology. The court said that from the
manner in which the contemnor had behaved, a deliberate, motivated and calculated
attempt, to impair the administration justice was discernible. The apology was not
accepted at it was not bonafide. A deterrent punishment of simple imprisonment of
four months was imposed upon them.

In re S.K. Sundaram ^^ S.K. Sundaram, advocate (hereinafter referred to as

the contemnor) sent telegraphic communication to Dr. Justice A.S. Anand, the
Hon'ble Chief Justice of India on 3-11-2000. It reads thus:

I call upon Shriman Dr. A.S. Anand, Hon'ble Chief Justice of India, to step
down ft-om the constitutional office of the Chief Justice of India forthwith,
failing which I will be constrained to move the criminal court for offence
under Sections 420, 406 and 471, of the Indian Penal Code, 1860 ''^ for
falsification of your age, without prejudice to the right to file a writ of quo
warrantor against you and for a direction to deposit a sum of Rs. 3 crores for
usurping to the office of Chief Justice of India even after attaining the age of
69
superannuation.

66
2000 Cri.LJ 919 (Allahabad).
67
AIR 2001 SC 2374: (2001) Cri. IJ 29.12.
'Indian Penal Code, I860',Sec. 420 Cheating and dishonestly inducing delivery of piopeiiy; Sec.
406punishnienl for criminal breach of trust. Sec.471 using as genuine a forged docmncnt or
electronic record.
Supra note 67 at p. 2376.

244
 Within three days of dispatch of the said telegram the contemnor filed a
criminal complaint before the Chief Metropolitan Magistrate, Chennai in which he
arraigned the Chief Justice of India as an accused in the case. He produced a copy of
the above quoted telegram as one of the documents appended with the complaint. On
a note put up by the Registrar General of the Supreme Court regarding the said
telegraphic communication, the matter was taken up on the judicial side and they
passed an order on 7-11-2000 that prima facie they were satisfied that the contents of
the said telegram, sent by S.K. Sundaram, Advocate, amount to gross contempt of
court. The contemnor filed a written reply to the notice issued to him endeavouring to
justify his actions by saying that he had done what he believed to be right and fair
within the bounds of his knowledge of law and language. The court after making a
survey of a number of decisions made the following observations:

We may observe that any threat of filing a complaint against the judge in
respect of the judicial proceedings conduct by him in his own court is a
positive attempt to interfere with the due course of administration of justice.
In order that the judges may fearlessly and independently act in the discharge
of their judicial functions, it is necessary that they should have full liberty to
act within the sphere of their activity.^"

After analyzing the whole fact the court came to the conclusions that the
impugned action of the contemnor was a case of gross criminal contempt of court.
Therefore he was held guilty of criminal contempt of court and sentenced to undergo
imprisonment for six months. But after awarding the sentence the court considered
another aspect. The contemnor said that he was a heart patient. Therefore, the court
ordered that the sentence of imprisonment for six months would stand suspend for a
period of one month from that day. If the contemnor would give an undertaking in this
court, in the fomi of an affidavit, to the effect that he would not commit or even
attempt to commit any act of criminal contempt, then the sentence now imposed by
court would remain suspended for a further period of five years. The above stated
case shows that the contempt power has been misused by the courts to go so far as to
hold that no motives can be ascribed to judges or courts.

'" Id. at p. 2380^

245
 In Prem Surana v. Additional Munsif and Judicial Magistrate, " the
appellant was an Advocate and a criminal proceeding was pending against him before
a Magistrate at Jaipur. When his application for exemption from personal appearance
was rejected the appellant reached the court abusing and threatening the Magistrate
and gave a severe slap on the face of the Magistrate. The Division Bench of Rajasthan
High Court rejected the appellant's apology and found him guilty of committing
criminal contempt of the court and sentenced him to undergo simple imprisonment of
six months together with a fine of Rs. 2000. Through the criminal appeal the appellant
sought the Supreme Court to free him from the sentence awarded. Dismissing the
appeal, the Supreme Court held that attack on a Judge with a slap was a slur on the
entire judiciary, it was a slur on the justice delivery system of the country and as such
question of acceptance of any apology or an undertaking did not and could not arise,
neither could there be any question of any leniency as regards the sentence. His
appeal was dismissed and he was ordered to be taken into custody for undergoing the
remaining period of sentence.

In Radha Mohanlal v. Rajasthan High Court,^^ the Supreme Court opined

that it was painftil to punish anyone, and more particularly a member of legal
profession, for contempt of court but in order to secure the ends of justice, in extreme
cases, it became the duty of the court to do so. Since the contemner was a senior
citizen aged 81 years, he was hardly in active practice any more. Despite the fact that
he had been reckless and persistent, the court thought that the object of punishment
will be served by reducing the three month's simple imprisonment to one already
undergone by the appellant, while maintaining the fine and the imprisonment in
default of payment of fine.

In Haridas v. Smt Usha Rani Banik and Others,^'^ it was held that the
statements like "Judge bashing" and using derogatory and contemptuous language
against judges has become a favorite pastime of some simple tend to scandalize and
lower the authority of the courts and cannot be permitted because, for the functioning
of democracy, an independent judiciary to dispense justice without fear and favour is
paramount. Its strength is the faith and confidence of the people in that institution.

' (2002) 6 s e c 722.

"20O3Cn. U 1207 (SC).
'• Id. at p. 1210.
Supra note 3.

246
That cannot be permitted to be undermining because that will be against the public
interest. Rejecting the apology the court sentenced him to undergo imprisonment for
a period of two months.

In R.K. Anand Registrar, Delhi High Court and I.V. Khan v. Registrar,
Delhi High Court, in this matter arose from a criminal trial arising from a hit-and-
run accident in which a car allegedly travelling at rock less speed crashed through a
police check post and unrushed to death six people, including three policemen. The
main accused was driving a black BMW car, man inebriated state, at very high speed.
The trial was meandering endlessly even after eight years of the accident and in the
year 2007, a well known English language news channel called NDTV telecast a
program on 30-5-2007 in which one restless for prosecution was shown meeting with
I.U. Khan, the Special Public Prosecutor (Appellant 2) and R.K. Anand, the senior
defence counsel (appellant 1) and two others, and negotiating for his sell-out in favour
of the defence for a very high price.^^

Shocked by the programme, the Delhi High Court suo motu initiated a
proceeding. It called for all the materials from the news channel on which the telecast
was based and after examining those materials issued show cause notice to senior
defence lawyer and Special Public Prosecutor, why they should not be convicted and
punished for committing criminal contempt of court as defined under Section 2 (c ) of
the contempt of courts Act, 1971. High Court held them guilty of committing
contempt of court and in exercise of power under Article 215 of the Constitution
prohibited them for appearing in the Delhi High Court and courts subordinate to it for
a period of four months from the date of the judgment. The High Court also held that
both advocates had forfeited their right to be designated as senior advocates and
recommended to the frill court to divest them of the honour. Additionally, they were
also sentenced to a fine of rupees two thousand each.^^ Supreme Court dismissing the
appeal of appellant 1 and allowing the Appellant 2 and his conviction for criminal
contempt is set aside. The period of four months prohibition from appearing in the
Delhi High Court and the court subordinate to it is already over. The punishment of
fine given to him by the High Court set aside. The appeal of R.K. Anand is dismissed

"(2009) 8 s e c 106.
'Md. atp. 109.
" i d . pp. 109-110.

247
subject to the notice of enhancement of punishment issued to him as indicated in the
judgment^^

In Hari Singh Nagra and Others v. Kapil Sibal and Others^^ the message
sent by Mr. Kapil Sibal to be published in the souvenir of Mehfil ^^ will have to be
regarded as fair criticism of his senior colleagues for their failure to bring up the
Junior Bar and of those members of the Bar who were shouting at each other and
threatening the judges. The message is nothing but concern of a senior advocate who
has practiced long in this court who noticed that the public image of the legal
community was as nadir. The article nowhere targets a particular judge. This is not a
case of an attack on a judge which was published in the newspaper and an impression
was given that Mr. Sibal had made a frontal attack on the judiciary. The article is an
expression of opinion about an institutional pattern. The article by itself does not
affect the administration of justice.

In Vishram Singh Raghubanshi v. State of Uttar Pradesh, the appellant

was an advocate practicing for the last thirty years in the District court, Etawah (U.P.).
He produced one Om Prakash for the purpose of surrender impersonating him as Ram
Kishan S/o Sh. Ashrafi Lai who was wanted in a criminal case in the court of llnd
ACJM, Etawah. There was some controversy regarding the genuineness of person
who came to surrender, and therefore, the Presiding Officer raised some issues. The
appellant misbehaved with the Presiding Officer and the appellant stopped over the
dias of the court and tried to snatch the paper, of the statement from him and started
abusing him that "madarchod, bahanchod, High Court Ko Contempt refer kar," and
stopped out, abusing similarly from the courtroom. The Presiding Officer made a
complaint against the appellant to the State Bar Council and also made a reference to
the High Court for initiating contempt proceeding against him. In reply to the show
cause notice issued by the court, the appellant denied the allegations and tendered an
apology in the form of an affidavit. The State Bar Council discussed the complaint but
the High Court framed charges against him. In response to the same, the appellant

'*Id. alp. 208.

'•'(2010) 7 s e c 502.
Mahfil-e-Wakale ('Mehnr, for .short) is a cultural and literacy group/Association of lawyers
practicing in the Supreme Court.
''' Supia note 79, para 24 at p. 512.
'^-(2011) 7 s e c 776.

248
again sub mitted an affidavit tendering a similar apology. The Division Bench on
considering the matter held the appellant guilty of contempt and sentenced him to 3
month's simple imprisonment with a fine of Rs. 2000.

Discussing the appeal and sending the appellant forthwith to jail, the Supreme
Court held that the case of impersonation of the person to be surrendered is a serious
one, sand the appellant being an officer of the court, was under duty to satisfy the
court and establish the identity of the person concerned. The conduct of the appellant
was in complete isolation and in contravention of the "standards of professional
conduct and etiquette" laid in Section 1 of Chapter 11 (Part VI) of the Bar Council of
India Rules. '' A person aggrie\ed with misbehavior/conduct or bias of a judicial
officer has a right to raise his grievance, but it should be before the appropriate forum
and by resorting to the procedure prescribed for it, Under no circumstance, can such a
person be pemiitted to become the law unto himself and proceed in a manner he
wishes, since it would render very existence of the system of administration at state.^^

The dangerous trend of making false allegations against Judicial Officers and
humiliating them requires to be curbed with heavy hands; otherwise the judicial
system itself would collapse. The Bench and the Bar have to avoid unwarranted
situation on trivial issues that hamper the cause of justice and are in the interest of
none. "Liberty of free expression is not to be confounded or confused with license to
make informed allegations against any institution, much less the judiciary". An
advocate in a profession should be diligent and his conduct should also be diligent and
conferred to the requirements of the law by which an advocate plays a vital role in the
presentation of society and judicial system.

Court has clearly laid down that apology tendered is not to be accepted as a
matter of course and the court is not bound to accept the same. The court is competent
to reject the apology and imposing the punishment recording reason for the same. If
the words are calculated and clearly intended to cause any insult, an apology if
tendered and lacks penitence, regret or contrition, does not deserve to be accepted.

S3
Id. at p. 777.
^"' Id. atpaia 8, p. 781.
^' Id. at paia 9.
^''Id. at para 18, p. 784.
^' Id. at para 27, p. 786.

249
5.2.2.2 Decisions of the High Court on Contempt by Advocate

The decisions of Court of its own Motion v. B.D. Kaushik and Others,^^ is
important because in fiill bench of Delhi High Court there were 12 judges who gave
their majority opinion and 9 judges were in minority.

In the instant case the advocates aided and abetted by others, in large number,
stormed the various court rooms in High Court when judges of the High Court were
discharging their judicial functions. They also prevented various lawyers from
discharging their judicial functions as officers of the court and also stopped the
litigants from conducting their cases in the court. Subsequently, the President of the
Bar Association made a statement in which he stated the owned moral responsibility
as President of the Delhi Bar Association, he further stated that they would try their
level best not to repeat such incidents in future and also assured that there would be
no recurrence.

Golak Chand Mittal, C.J. delivering the majority judgment held that, however,
in the totality of the circumstances including the outrageous incident and unqualified
apology. High Court declined to award the sentence and deferred it as the High Court
oq

wanted to further watch their conduct and behavior for a period of one year. S.B.
Wad, J., delivering the minority view, held that since the contemnors had committed
cross and outrageous contempt and the apology tendered by the contemnors would be
liable to be convicted.
On 2, July 1991, Justice G.T. Nanavati of the Gujarat High Court issued a
contempt notice against a leading advocate, Girish Patel, who had stated in court that
the judge had "an anti-labour attitude". The contempt notice has sparked furors of
protests from trade unions and labour lawyers in Gujarat and has once again put the
focus on the inadequacies and injustices of the contempt of courts Act. Justice G.T.
Nanavati, one of the most senior judges of the Gujarat High Court, is the bane of the
working class people and tribals and those who appear in court for them, because he
has an extremely conservative and reactionary approach, being generally anti-litigants
and anti-poor. His remarks in court against workers, tribals, dalits and slum-dwellers
are usually so caustic that they would hurt anyone who works with these people. He

'^ 1993 C i l IJ 336 (Delhi).

^''Id. at p. 340.

250
has been known to make remarks like "workers are members of the suicidal squad for
the country", "All labour laws must be scrapped."

A brief resume of the facts of the matter in which the notice of contempt is
rooted, needs to be spelt out. In a reference relating to an industrial dispute, the
industrial tribunal had passed an award granting 8% wages to workmen for the period
of illegal lockout declared by the company they worked in, which the company had to
deposit within 30 days of the date of publication of the award. As the company failed
to deposit this amount, the union representing the concerned workmen filed a
contempt petition in the Gujarat High Court. The company, meanwhile challenged
this award directly in the Supreme Court ignoring established principles of law, but
their petition was rejected. The company then challenged the award in the High Court.
The High Court admitted the petition but did not stay the award. The court, however,
directed the company to deposit the amount awarded by the tribunal within 6 weeks
from the date of the order and allowed the workmen to withdrew the same, contingent
up on their filing individual undertaking to the effect that in case the company
succeeded ultimately and the amount was ordered to be reftinded, then each of the
workmen's respective refunds would be adjusted against the retirement benefits or
provident fund, gratuity, etc., payable to them by the company. The Supreme Court,
however, observed that the company was at liberty to go back to the High Court to
ask for some better sort of security from the workers apart from the above
undertakings.

The company thereafter filed a civil application before the High Court asking
for modification of the interim order in the earlier petition, with regard to security.
When the matter came up for hearing in July, 1991 before the Decision Bench of
Justice G.T. Nanavati and J.M. Panchal J., the company's advocate asked for
extension of time as he had not been able to serve all the workers. Mr. Girish Patel,
appearing for the workmen and the Union, pointed out to the Judges that the company
had failed to deposit the amount of the lockout wages in the court, so the question of
the workers withdrawing the amount against security had not arisen at all. The court
had made an observation to the effect that there was a stay on the award decreeing

1)0
'Contempt of Court or conteinptuousness by Court?,' Journal of Lawyer.s Collective, Vol. 6, 1991,
p. 24.
'' lb,d.

251
payment of the lock out wages. Mr. Patel had repHed that the High Court and
Supreme Court had both categorically refused to stay the award, and all that the High
Court had done so far was to specify the manner in which the workers could withdrew
the amount once it had been deposited by the company in the court.'^^

Justice Nanavati then observed that in doing so the earlier judges had passed
an 'unusual order', and that it was a "mistake and needed to be rectified." He then
proceeded to tell the company's advocate that they may not deposit the amount. At
this point, Mr. Patel pleaded that the workers had to file a contempt petition and yet
the company had failed to comply with the award. All that justice Nanavati had to say
to this was, "you might approach another court for contempt." To this Mr. Patel
replied that it was the duty of the High Court to see that the dignity and honour of all
institutions be maintained, and of their orders were not complied with, that would
undermine their authority and dignity. To this justice Nanavati said: "We are here to
maintain the dignity of the court, and not of the lawyers." Mr. Patel then began to say,
"This anti labour attitude ," whereupon he was silenced in mid-sentence
by justice Nanavati who started dictating the order for contempt of court. The charge
served on the helpless Mr. Patel reads as follows:

"In open court Mr. Patel while conducting his matter stated that one of us
(G.T. Nanavati) has an anti labour attitude. He further stated that because of such
attitude, dignity of the court is not maintained. By starting like this Mr. Patel has cost
an aspersion on the impartiality of this Bench and this, in our opinion, amounts to
scandalizing the court.

In the above stated case we can see that how the Judges suppressed the voice
of truth through the weapon of contempt. Sometimes they use it to satisfy their
personal ego and sometimes to use it as a shield to protect their arbitrary actions.

In re, Tapan Roy and Others, '' the contemnor, an advocate, was enraged by
the rejection of prayer for confimiation of interim bail of certain accused persons. He
along with some others persons challenged the order, abused the S.D.J.M in filthy
languages in open court and created chaos and tenor in the court room. An attempt

''- Id., pp. 24-2.5.

" Ibid.
'" 1997 Cri. I.J 2166(Cal.).

252
was also made to attack the Judicial Magistrate. Contemnors tendered an
unconditional apology. But the court held that it was not a fit case for dropping
proceedings on ground that the apology was tendered. Thus the contemnors were
sentenced to four months simple imprisonment along with fine.

In the Judge, II Labour Court, Thane v. R.S. Pande, ^ during the course of
hearing a heated discussion took place between advocate George Kurian and R.S.
Pande. Thereafter, a scuffle took place between them. The judge Mr. S.A. Dwivedi
asked both the sides to observe restraint but his request went unheeded by them.
Consequently, he retired to his chamber. A written complaint was made by the Judge,
the Bombay High Court held that the incident mentioned above amounted to
interference with due course of judicial proceedings and held the contemnor guilty
criminal contempt. On the question of punishment the court's view is noticeable that
"we wish to emphasis that there should be some compelling reasons warranting
impositions of a jail sentence."^^ Further, the court held that "we are of the view that
the ends of justice would be squarely satisfied if in addition to accepting the
unqualified apology tendered by the contemnor, he is sentenced to pay a fine of Rs.
2000 and in default, to undergo two months simple imprisonment."

In S.P. Singh, C.J.M v. Ram Bharose Lai Agrawal, ^ the contemnor advocate
addressed the District court in highly disrespectful manner. When the contempt
proceedings were initiated against him, he tendered an unqualified and unconditional
apology not only before the High Court but also before District court and admitted
that he was an old man suffering from heart ailment. The court again accepted the
apology and discharged the contemnor upon that apology.
go

In the State ofU.P v. Rajendra Singh Chaudltary, the contemnor advocate,

Rajendra Singh Chaudhary, entered and remained in court of Additional Chief
Judicial Magistrate under intoxication. He committed and spitted in court, his
behavior interfered with the course of judicial proceedings as well as obstructed
administration of justice in preventing the court from functioning. The court held him
guilty of contempt of court and sentenced to three months simple imprisonment and a

'" 1998 Cii. IJ 1892 (Bombay).

'"'Id. at p. 1896.
'" 1999Cn. I J 303 (Allahabad).
'"*2000Cn. U 919 (Allahabad).

253
fine of Rs. 2000. Further, the court brought to the notice of the contemnor that he
could go to appeal against the said judgment. The suggestion of the court for further
appeal is suggestive of un-decidedness of the court itself regarding the nature and
amplitude of punishment.

The Sikkim High Court in Advocate General, Sikkim v. Ashwani Khurana,

held Ashwani Kumar guilt of contempt of court for writing a letter to Chief Justice.
The letter was treated as contemptuous and court held that the contemnor was in the
habit of addressing communication to Chief Justice with regard to his litigation.
Thus, the unconditional apology tendered by the contemnor was not accepted and he
was sentenced to simple imprisonment for seven days and fine of Rs. 2000 awarded.
But the substantive sentence of imprisonment was suspended for three years.

The decision of Madras High Court in re, S. DuraiJ the contemnor, S.

Durai, had made a scurrilous allegation against court and criticized the final order
passed by the court. He went to the extent that he would report about the order to the
Supreme Court or to the Geneva court and would not leave judge of the court even
after retirement. The contempt petition was adjourned to several dates hoping that at
least by the passage of time, the contemnor would show the attitude of regret before
the court The attitude of the contemnor should that he persistently and consistently
attempted to malign the institution of judiciary as well as the lawyers and the state.' '
Though the court opined that the contumacious and scurrilous attacks on judges was
not pardonable and sentenced him to undergo simple imprisonment for six months but
on his request on affidavit to file an appeal the said sentence was suspended for one
month.

From the analysis of various High Courts predicts it becomes clear that the
proceedings regarding criminal contempt are uncertain like anything. In no case of
criminal contempt certainty of punishment could be seen. Here it is submitted that for
an effective legal and penal policy certainty of punishment, however, minor it may be,
is sine qua non not only to further the independence of judiciary but also to strengthen
the democracy.

'" 2002 Cii. IJ 2492 (Sikkim).

'°"2003Cn. LJ 157 (Madras).
'"' I d . a l p . 161.

254
 From the above discussion regarding cases of Supreme Court and High Court
following inferences emerge:

The criteria on which on which contempt proceedings should be initiated is

not settled for certainty and in exercise of the inherent jurisdiction to punish a person
for the contempt, the court has jurisdiction to pass any order mentioned under
Sections 12 and 14 of the contempt of courts act, 1971. The S.K Sundram Case^^^
shows that the contempt power has been misused by the courts to go so far as to hold
that no motive could be described to judges or courts. If the court accepts the apology
then also no one can predict the decision because in some cases the court only
imposes fine, whereas in other neither imprisonment nor fine. In some cases, it
appears that apology was satisfying while in some other cases, it did not. In such a
situation the contemnors also do not show any sincerity regarding apology. The
analysis makes it clear that the problem relating to contempt is mainly concern with
interpretation. Upon which principles the Act should be interpreted is not established.
Committing the contemnors to prison is always discretion with the court. "^^ The
power of deciding whether a particular criticism of judges amounts to 'scandalizing
the court on commencing the authority of the court' is the very negation of the notion
of justice in which no person can sit in judgment over his own cause.' "* A judge like
everyone else will have to earn respect. They cannot demand respect by
demonstration of power, it should be remembered that exercise of such power results
in eroding the confidence of the people, rather than creating trust and faith in the
judiciary.

On the other hand, liberty of free expression cannot be permitted to be treated

as a license to make reckless imputations against the impartiality of judges deciding
the case. The advocate or the party appearing in person owes a duty to maintain
dignity decorum and order in the court proceedings and judicial process.

5.3 Contempt by Politicians

The object of contempt of law is not to scandalize judicial as an institution or

to bring into hatred and ridicule. It is weapon in the hands of judges to maintain

" Supra note 67.

'°^ Shakuntala Sahdevaram Tiwari v. Hemchand M. Singhania, (1990) 3 Bom LR 82.
'*'"' V. Vcnkalesan, 'The .ludiciaiy', The Fronthne, Vol. 18, Oct. 2001, pp. 13-26.

255
discipline and dignity and dignity in court of law. Lord Denning Aptly observed: "let
me say at one that received never use this jurisdiction as a means to uphold our own,
dignity. This will rest on surer foundations. Nor we will use it to suppress those who
speak against us. We do not fear criticism nor did we resent it. Every person has a
right to make a fair comment, even out spoken comments, on matter of public interest.
All we would ask is that those who criticize us will remember that, from nature of our
office, we cannot enter public controversy.""^'

5.3.1 Speech Made by Law Minister

P.N. Duda V. P. Shivshankai;^^'' where in spite of severe criticism and wild

allegation is made by P. Shivshankar against the institution of judiciary, no action was
taken against the then Minister of Law, Justice and Company Affairs, Government of
India. He delivered a speech before a meeting of the Bar Council at Hyderabad in
which he made derogatory statement against the Supreme Court and its dignity
attributing partiality towards economically affluent sections of the people by using
language which was extremely intemperate, in dignified and unbecoming of a person
of his stature and position. "^^ The relevant portions of the said speech are as
follows:'^*

(a) "The Supreme Court composed of the element from the elite class had their
unconcealed sympathy for the haves i.e. the Zamindars. As a result they interpreted
the word 'compensation' in Article 31 contrary to the spirit and intendment of the
Constitution and ruled the compensation must represent the price which a willing
seller is prepared to accept from a willing buyer. The entire programme of Zamindari
abolition suffered a setback. The constitution had to be amended by the l'", 14''' and
17' Amendments to remove the oligarchic approach of the Supreme Court with little
or no help ultimately this rigid reactionary and traditional outlook of property, led to
the abolition of property as a fundamental Right.

' R.K. Maliajan, 'Contempt of Couns (Plea of truth as Defence its justificalion) rieedom of Press:
Advocate Role.' Cn. L.I. Vol. 108. .Inly 2002. p. 202.
Supra note 2.
Biblia Tripallii, 'Contempt of Court and Freedom of Speech Exploring Gender Biases'. 2010, pp.
208-209.
R.J. Kochar. •Contempt of Courts... punishment?,' Maharashtra Law Journal Vol. 3. 2008. pp 4-5.

256
 The Minister further stated:

(b) Twenty years of valuable time was lost in this confrontation presented by the
judiciary in introducing and implementing basic agrarian refomis for removal of
poverty what is the ultimate result. Meanwhile even the political will seems to have
given way and the resultant effect is the improper and ineffective implementation of
the land reform laws executive and the judiciary supplementing and complementing
each other.

It was further stated by him:' ^

(c) The Maharajas and the Rajas were anachronistic independent India. They had
to be removed and yet the conservative element in the ruling party gave them privy
purses. When the privy purses were abolished, the Supreme Court, contrary to the
whole national upsurge, held in favour of Maharajas.

(d) Mahadhipatis like Keshvananda and Zamindars like Golaknath evoked a

sympathetic cord nowhere in the whole country except the Supreme Court of India.
And the bank inaugurates the representations of the elitist culture of this country, ably
supported by Industrialists, the beneficiaries of Independence, got higher
compensation by the intervention of the Supreme Court in Cooper Case. Anti Social
elements i.e. F.E.R.A violations bride burners and a whole horde of reactionaries have
found their haven in the Supreme Court."

On such type of frontal attack the Bench of Sabhyasachi Mukherji and S.

Ranganathan, JJ. Opined that, the speech of the Minister has to be read in its entirety
and when it was read in proper perspective, his speech, under the circumstances was
not amounting to impudent danger of interference with the administration of justice
nor of bringing the administration into disrepute. In this judgment, the court said that
the statement of law Minister was pennissible because the criticism of the judicial
system was made by the person who himself has been the judge of the High court and
was the minister of the relevant time.

'"" Id. a. p. 5.
"° Supra note 107.

257
 Whereas in the Arundhathi Roy's case, the Supreme Court beheved that
she wanted to become a champion to the cause of the writers by asserting that persons
hke can allege anything they desire and accuse any person or institution without any
circumspection, Hmitation or restraint. So, on the basis of record the respondent was
held guilty for contempt of court punishable under Section 12 of the contempt of
courts Act. However, showing the magnanimity of law by keeping in mind that the
respondent is a women and hoping that better sense and wisdom shall down upon the
respondent in the future to serve the cause of art and literature by her creative skill,
and imagination the court felt that the ends of justice would be met if she is sentenced
to symbolic imprisonment for one day and with a fine of Rs. 2000. This comment is
seen not only as a sample of the gender insensitivity of the Bench but also its
tendency to humiliate the contemnor even while holding her guilty of contempt and
handing out a "symbolic ' punishment.

The conviction and punishment of Arundhati Roy for contempt of court shows
that despite its doctrinal activism on human rights the Supreme Court of India is still
may behind the times in balancing freedom of speech and contempt of court. It
also raises certain question viz., can a citizen of India not criticize the procedures and
management of the court? Is the court not supposed to be accountable? How will its
accountability be enforced if it were made absolutely immune from public criticism?
Even what she said regarding Tehelka, was a mere criticism of the priorities of the
court. How does such criticism erode the reputation of the court? Is the reputation of
the court so fragile that it would be lost by mere criticism of its working? ""^ If we
received Shiv Shankar case then it can be said that freedom of speech cannot be
greater for one who has been a judge than for one who is citizen not moving in the
corridors of power.

Arundhati Roy had no personal axe to giind. She spoke for a cause which she
thought was important and needed her support. Should these things not commit while
saying a person for contempt? If Shiv Shankar's judicial belonging elicited greater
tolerance of his views, Arundhati Roy's altruistic intentions also deserved such

' " (2002) 3 s e c 343: AIR 2002 SC 1375.

"- Supra note 107, pp. 209-210.
S.P. Salhe, 'Commentary on Accountaliiiity ofthe Supreme Court, Arundhati Roy Case', liconomic
and Political Weekly. April 2002. p. 1383.
"""id. at p. 1384.
Supra note 2.

258
tolerance. Moreover, the court was rather patriarchal in condescendingly referring to
her as a 'woman' whom they treated leniently by giving one day's punishment.
Instead of referring her as a woman the judges should have used the term either a
citizen or person."

Although in subsequent cases since 1970, the court should greater tolerance
towards criticism by citizens, the power of contempt of court has remained a record
hanging over the press, media and the citizens. The courts have been using this power
rather too sensitively was it to be used for the protection of the judges or for the
protection of the legitimacy and credibility of judiciary? The Supreme Court in some
decisions had said even a bar association could not criticized a judge who was found
to be of suspicious integrity."^ The court has in the past experienced that its power of
contempt has severe limitations, not of law but of politics. It had to save its prestige
by agreeing not to be harsh against a speaker of a legislature assembly who has
refused to appear before it in response to a notice for contempt. The speaker had given
decisions disqualifying certain members of the legislature on the ground of defection.
Under the tenth schedule, the speaker has the last say in the matter of such
disqualification. But the Supreme Court read that clause of finality narrowly and held
that the speaker decision was subject to judicial review. The speaker clearly
disobeyed the orders of the Supreme Court and insisted that his decision could not be
changed by the Supreme Court. He sought to terminate the services of the legislature
secretary who tried to give effect to the court decision. When the court issued him a
notice to appear for the alleged change of contempt of court, he refused. It was
through the intervention of the central government and only after being assured that
his appearance was going to be a fonnality did the speaker appears before the court, to
be let out with a wild warning."^ The court power to punish for contempt is likely to
be ineffective against political bigwigs who defy it, or against mass disobedience,
or even against the moralist Gandhian willingness to suffer the punishment rather than
apologies for what according to them is not defiance but exercise of their freedoms.

'"• Supra note 107, pp 212-213.

" ' C^ Ravichandian Iyer v. Justice A . M . Battachajee, (1955) 5 SCC 457.
118
Kihoto Holiohon v. Zachilhu and Others, (1992) 1 SCC 309.
' " 1. Manilal Singh v. Dr. D.H. Borobabu Smgh, AIR 1994 SC 505.
' - " B . R . Kapur v. Tamil Nadu. (2001) 7 SCC 231 popularly known as Jayalalitha"s case. See S.P.
Saihc. 'SLiprcme Court, .layalalitha and crisis management.' Economic and Political weekly, V o l .
36, 2 0 0 1 , p. 3659.
'-' .l.R. Prashnr v. Prashant :hant Bhushan(2001)6
Bhushan (2001) 6 SC
SCC 735.

259
5.3.2 Speech Made by Chief Minister of Kerala

122
E.M.S. Namboodripad v. T. Narayanan Nambiar, in this case Mr.
Namboodripad, the then Chief Minister of Kerala observed at a press conference that,
"Marx and Engel considered the judiciary as an instrument of oppression.... Judges
are guided and dominated by class bared, 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 ...
judiciary is part of the class rule of the ruling class. And there are limits to be sanctity
of the judiciary. The judiciary is weigh against workers, peasants and other sections of
the working class and the law and the system of judiciary essentially service the
exploiting classes.'^^ He was convicted for contempt of court by the Kerala High
Court and sentenced to a fine of Rs. 1000 or simple imprisorunent for a month in
default. He preferred an appeal to the Supreme Court.'

When the petitioner, who charged for contempt by the High Court, filed an
affidavit and added that it did not offend the majesty of law, undermine 'the dignity
of courts' or obstruct the administration of justice. He claimed that it contained a fair
criticism of the system in an effort to make it conform to the people's objective of a
democratic and egalitarian society based on socialism. The criticism was not against
any individual judge. It was directed against the judiciary as a whole. Further, the
object of the petitioner was to educate the masses in the tenets of Marx and Engels
and not to scandalize judges and he was doing so in pursuance of the guaranteed right
of freedom of speech under Article 19 of the Constitution.'^^

On the question of right to freedom of speech, the court opined that freedom
of speech goes far but not far enough to condone a case of real contempt of court.'^'^
The court went on to the extent that courts must do their duty according to their own
understanding of the laws and the obligations of the constitution the good faith of the
judges are the firni bedrocks on which any system of administration securely rests.'^^

" (1970) 2 sec 325: AIR 1970 SC 2015: 1970 Cri. L J 1670.
Id. at p. 330.
""' Supra note 107
1^ at p. 119.
Md.,pp. 119-120.
"'' Supra note 12
122 at p. 333.
-'' id. at p. 338.

260
 On the point of sentence, the Supreme Court opined that the ends of justice in
this case would be amply serviced by exposing the appellant's error about the true
teachings of Max and Engels behind whom he shelters and by sentencing him to a
nominal fine of Rs. 50 in default of which he had to undergo simple imprisonment for
one week.

If we carefully read and compare both the speeches i.e. the speech of
Namboodripad and the speech of P. Shivshankar, the fonner had spoken in the terms
of the Marxist philosophy of class struggle while the letter had crystallized and named
specifically category wise those classes. He was very outspoken and did not mince
words and had no cover of philosophy. The Supreme Court had convicted E.M.S.
Namboodripad for having committed contempt of court while it had interpreted and
explained the speech of the then law Minister as "a study of the attitude of this court."
Other portion of his speech as "a criticism of judgment" and the last part is "rather
intemperate" and "a criticism of the laws."'^^ However, surprisingly it could be
noticed that the utterances of Shri P. Shivshankar despite being more severe and
scathing, were not held to be contemptuous. This zigzag and uncertain approach
emanates from the lack of settled criteria to assess what 'scandalize' the court.

Wise words of Gajendragadhkar, C.J.:

"We ought never to forget that the power to punish for contempt, large as it is
must always be exercised courteously, merely and with circumspection.
Frequent or indiscriminate use of this power in anger or iiritation would not
help to sustain the dignity or status of the court, but may sometimes affect it
adversely. Wise judges never forget that the best way to sustain the dignity
and status of their office is to deserve respect from the public at the large by
the quality of their judgments, the fearlessness, fairness and objectivity of their
approach, and by the restraint, dignity and decorum which they obsei^ve in
their judicial conduct."'^''

It is submitted that the lack of settled criticize to assess what 'scandalizes" the
court, the preposition that mens rea is not an essential ingredient of the offence of this

'-* Supra note 107 alp. 121.

'"' Supra note 108 at p. 5.
''° Ke.siiav Singh v. Speaker Legislative Assembly, AIR 1965 SC 745. Spl. Rep. No. 1/1964 quoted
from Supra note 108 at p. 6.

261
branch of contempt, the provision that even truth is not a defence against criminal
contempt and the fact that judges and the prosecutor are the very same in such
proceedings have complex reunifications. Together, they demand that the judiciary
observe a tremendous amount of restraint when invoking criminal contempt.

5.4 Contempt by Judges, their Officers and Subordinates

Judges have been treated as davnigods in country like India because of the
power of contempt Wielded by them. This is a jurisdiction in which a judge, against
whom an allegation has been made, can himself act as a complainant, prosecutor and
judge. The judge can even refuse to allow the maker of the allegation to prove its
truth. Having enjoyed enonnous powers, including the power of contempt, without
any accountability, the higher judiciary has tread on the toes of many persons and
institutions, particularly the media.

Democracy requires accountability of each institution of the State. Moreover,

the political executive is accountable to the legislature and the legislature is
democratically accountable to the people that are the theory of constitutional scheme.
However, when it comes to the judiciary, it seems that the judiciary is neither
democratically accountable to the people, nor to any other institution. Without
accountability a powerful judiciary would not only be an anathema to Indian
Constitution but also a recipe for disaster of democracy.'^^

5.4.1 Judicial Accountability

Judicial accountability means accountability of judiciary as an institution as

well as accountability of judge as an individual. Standard hierarchal models of
accountability are often said to be inapplicable to the judiciary. Judicial accountability
thus takes into consideration judicial power signifying both a legal duty and a public
law duty. Judges are treated as trustees so they must give an account for their conduct.
Judges are obviously accountable to the people.'^^

Judicial accountability in India could be discerned by two ways, i.e. fust,

accountability of the higher judiciary in India for their judgments. Secondly, the

'"' Supra note 107 a l p . 222

''- Id., pp. 222-223
S.P. Salhe. 'Freedom of Speech and Contempt ofCourt.' The Lawyers, Nov. 198S, p. 17.

262
institutional methods of making judges accountable viz., the method of their
appointment, removal and the inhibitions to criticism of their work by the law of
contempt.'''''

The subject of judicial accountability, considering the variety of aberrations of

which judges are guilty, requires careflii and realistic handling. There are certain
important cases and certain eminent persons demanding for judicial accountability.
Hidayatullah C.J. in R.C. Cooper v. Union oflndia^^^ observed that:

"There is no doubt that the court like any other institution does not enjoy
immunity from fair criticism. This court does not claim to be always right,
although it does not spare any effort to be right according to the best of the
ability, knowledge and judgment of the judges. They do not think themselves
in possession of all truth or hold that wherever others different from them, it is
so far error. No one is more conscious of his limitations and fallibility than a
judge but because of his training and the assistance he gets from learned
counsel he is opt to avoid mistakes more than others we are constrained to
say also that while fair and temperate criticism of this court or any other court
even if strong may not be actionable, attributing improper motives, or tending
to bring judges or courts into hatred and contempt or obstructing directly or
indirectly with the functioning of courts is serious contempt of which notice
must and will be taken. Respect is expected not only from those to whom it is
repugnant. Those who are in their criticism by indulging in vilification of the
institution of courts, administration of justice and the instruments through
which the administration acts should take heed for they will act at their own
peril. We think this will be enough caution to persons embarking on the faith
of criticism".

Faith in the administration of justice is one of the pillars through which

democratic institution functions and sustains. In the free market place of ideas
criticism about the judicial system or judges should be welcomed, so long as such
criticisms do not impair or hamper the administration of justice.

'^"' Supra note 107 at p. 237.

' " A I R 1970 S C 564.
136
D.C. Saxena v. Chief .liislice of India, AIR 1996 SC 2481: 1996 Cn. L.J. 3274.

263
 In an interview with India Today in 1996, former Chief Justice of India,
Justice J.S. Verma, was asked about his opinion regarding making the judiciary more
accountable. The Chief Justice's reply was:

"It's long overdue with the increase in judicial activism; there has been a
corresponding increase in the need for judicial accountability. There is a
perception that the people are doubt whether some of us in the higher judiciary
satisfy the require standard of conduct. Since we are the ones lay down the
rules of behaviour for everyone else. We have to show that the standard of our
behavior is at least as high as the highest by which we judge the others. We
have to earn that moral authority and justify the faith the people have placed in
us. One way of doing this is by codifying judicial ethics and adhering to
them".'"

Shri E.S. Venkatramaih, the fomier Chief Justice of India gave an interview
to a noted journalist Kuldeep Nayer on the eve of his retirement on 17''' December,
1989 which was published in several newspapers. In course of the interview, the
former Chief Justice is stated to have made the following statements:'^''

"The judiciary in India has detenninate in its standards because such judges
are appointed, as are willing to be 'influenced' by lavish parties and whisky bottles.
In every High Court, Justice Venkatramaih said, there are at least 4 to 5 judges who
are practically out every evening, wining and dining either at a lawyer's house or a
foreign embassy. He estimates the numbers of such judges around 90 and favours
transferring them to other High Courts. Chief Justice Venkatramaih reiterated that
close relations of judges be debarred from practicing in the same High Courts. He
expressed himself strongly against sons, sons-in-law and brothers of judges appearing
in the courts where the latter are on the Bench. Most relations of judges are practicing
in High Courts of Allahabad, Chandigarh, Delhi and Patna. According to Chief
Justice Venkatramaih practically in all the 22 High Courts in the country close
relations of judges are thriving. There are allegations that certain judgments have been
influenced through them even though they have not been directly engaged as lawyers

'•''Supra noie 107, pp. 239-240.

'^' Vi.slnvanath v. E.S, Vaikatiamailv (1990) Cri. LJ 2179.
K.D. Singh, •Freedom of Speech and Conlenipt of Courts/ National Capital Law .iouinai. Vol. 9,
2004. pp. 171-172.

264
in such cases. It is hard to disregard the reports that every brother, son or son-in-law
of a judge, whatever his merit or lack of it as a lawyer, can be sure of earning an
income of more than Rs. 10,000 a month."

The Division Bench of Bombay High Court held that the words complained
of did not amount to contempt of court on the grounds that:

(a) The entire interview appeared to have been given with an idea to improve the
judiciary;
(b) The Supreme Court has discussed a writ petition filed on behalf of the State
Legal Aid Committee, Jammu and Kashmir for an appropriate authority to
disclose the names of 90 judges of the different High Courts in India as
mentioned by the former Chief Justice of India.''"'

Fonner Chief Justice of India Y.K. Sabharwal has come under a land of
suspicion of serious judicial misconduct after the daily Mid-Day reported that he had
passed orders that favoured his sons.''" Mid-day had carried a series of articles
showing how justice Sabharwal passed the orders of sealing commercial properties in
residential areas in Delhi after his sons had got into partnership with at least two of
the leading shopping mall and commercial complex developers of Delhi. These orders
stood to directly benefit his sons and their partner by pushing the sealed shops and
offices to shopping malls and commercial complexes and thus driving up their prices.
Mid-day published much of the documentary evidence in support of this huge story
exposing what appeared to be a scandalous conspiracy at the Apex of the judiciary.

The changes of irregularities exposed by the media and the campaign for
judicial Accountability in respect of some specific cases handled by Justice Sabharwal
include that of ordering that the case relating to the sealing of commercial
establishments in Delhi be assigned to him. Justice Sabharwal passed this order before
he became the Chief Justice whereas it is only the Chief Justice of India who could
have passed such an order. Justice Sabharwal son's used his official residential

Ibid.
'•" Madhu Bhaduri, 'The Contempt of Evidence", Economic and Political Weekly, Vol. 42, 2007, p.
4097.

'"'" Pra.shant Bhushan, 'Judicial Accountability towards an Independent Commission,' Economic and
Political Weekly, Vol. 42, 2007, p. 1 5.

265
address as their business address. This was a clear case of conflicting of interest. The
judge should have avoided taking it up. Again, after he passed an order that the Amar
Singh tapes (the Samajwaid Party leader and Mulayam Singh front man's phone was
taped and the taps allegedly contained his confidential conversation with Mulayam
Singh, some industrialists and bollywood actresses) should not be made public, his
sons were allotted prime land in Noida by the Mulayam Singh Government at highly
reduced prices. All these were published by Mid-Day on the basis of reliable evidence
obtained from the public domain. The Delhi High Court held the three journalists and
one cartoonist of the newspaper guilty of contempt of court and sentenced them to
four months imprisonment without going into the merits of the evidence presented by
them. The Supreme Court has, however, stayed the court's sentence on the
Journalists.'''•'

The Mid-day journalists were convicted despite their offering to prove the
truth of all their allegations. The High Court held that the truth of the allegations was
irrelevant since they had brought the entire judiciary into disrepute. It held that the
nature of revolutions and the context in which they appear, though purporting to
single out former Chief Justice of India, far wishes the image of the Supreme Court.
It tends to erode the confidence of the general public in the institution itself The
Supreme Courts sits in discussions and every order is of a bench. By imputing
motives to its presiding member automatically sends a signal that the other members
were drummers or were party to fulfill the ulterior design.''*''

By its judgment declaring the four journalists guilty of contempt of court, the
Delhi High Court has brought under public glare the special protection which the
judiciary providing itself, a protection that no other ami of the state or democratic
institution enjoys. This trend of trying to place the judiciary above the law has been
going on for quite some time. It is worth remembering that the Supreme Court
pronounced in favour of the Right to Infonnation and went so far as to call it a
fundamental right of the citizen. However, the judiciary itself has been in no hurry to
place itself under the jurisdiction of the R.T.I. Act, since it was passed in 2005. The
Delhi High Court hiked the application fee from Rs. 10 (as in the case of Central
Government in most of the states) to Rs. 500 for applicant seeking information fioni

'•*^ Supra note 141.

Supra note 142.

266
the court. The Mumbai High Court even refused to submit to the law for one full year.
The appointment of information officers by the courts has been equally tardy.'''^ This
has effectively led to a situation of total impunity in the higher judiciary. Not only are
corrupt judges effectively insulated from any action against them, they have also
protected themselves from public exposure of wrong doing by using the threat of
contempt.

Senior Advocate Fali S. Nariman pointed out that "it would be absorb to say
that although article 124(4) provides for the removal of a judge for proved
misbehavior, no one can offer proof of such misbehavior except on pain of being sent
to jail for contempt of court. "This is a glaring defect in our judge-made law, the
needs to be remedied- hopefully by judges themselves; if not, reluctantly then by
Parliament," Nariman said delivering the C.L. Aggarwal Memorial law lecture at
Jaipur. He said the contempt jurisdiction "is mercurial, unpredictable, capable of
being exercised differently in different cases any by differed judges in the same
court." Asserting that the law was certainly not ideal, he stressed that "truth and good
faith must be reinstated as valid defences in the power to punish for contempt because
they are vital for the fijrther administration of justice"'''^

Senior Advocate Rajiv Dhawan wrote:

Following the Punjab revelations of judicial corruption case the Kamataka sex
scandal implicating it High Courts judges. Both required investigation. Both
revelations were sought to be silenced How does one uncover judicial
coiTuption and misbehavior? There is not complaint Mechanism. The movement an
allegation is made against a judge, contempt notices may be issued. The fonnal
procedure of making such complaints is under the judges Inquiry Act, 1968, en route
to the initiation of impeachment proceedings. Judges do not impeach easily as itself
evident from the justice V. Ramaswami imbroglio of 1990-94. The Bar and the media
are the best placed to expose judicial corruption. If both are to be stifled it will be let
nowhere.

Arun Jaitley, former Law Minister said that he has been perturbed over the
courts in India using their power of contempt to compel journalists to reveal their

' Supra note 141.

'""' Supra note 1 at p. 246.
Rajiv Dhawan. Senior Advocate ofSupreine Comt, 'Contempt oFCourl.' The l l i n d i i . Dec. 13. 2002.

267
confidential sources. He said that legislative measures might become necessary to
curb an improper use of the contempt power.'''* Fonner Chief Justice J.S. Venna has
said misuse of contempt power was reason for erosion of credibility of the
judiciary.

Threat of contempt insulated the judiciary even further from any semblance of
accountability. Veiled threats, suo moto notices, motions by advocates and advocate
general against the journalists and politicians for contempt of court became common
now a days. Arunadhati Roy was sent to jail for one day for talking about
rehabilitation of families uprooted by Narmada projects adversely against judicial
actions and inactions. Zaheera Sheik, within and witness of communal violence was
imprisonment for contempt.'^ E.M.S. Nanioodripad,^ ' former Chief Minister of
Kerala is fined one rupee for attributing class character to top judiciary, while the Law
Minister Mr. P. Shivshankar^ was left off for making comments similar to those of
Nomoodripad. Is this not in uncertainty in the law? In 2007 the court forced Vijay
Shekhar, a journalist with a television news channel who exposed the caucus of a
corrupt magistrate his court staff and some lawyers in Gujarat State in a "warrants for
cash" such - to apologize to the court or face a term in jail for contempt of court. The
conviction and sentencing of journalists in 2007 for publishing infonnation about the
conduct of justice Sabharwal, a Supreme Court judge, had brought to the fore the
issue of judicial accountability. But the issue soon died a natural death, since no one
wanted to get into trouble with the court. This attitude is an extension of the Supreme
Court's earlier "allergy" towards bringing transparency into the Indian Judiciary.'^^

5.4.2 Liability of Judges for Contempt

The crux of the contempt power has been enumerated by the Sanyal
Committee as the need to draw a clear-cut distinction between comment or criticism
affecting judges in their representative capacity and those affecting them in their
personal capacity. Personal attacks upon judges must be punished in the same way as
any other individual as there is no justification to put them on a higher pedestal and

liiip://.syndication.indi;itimes.com (website of the Times syndication services).

Inaugural Address by .lustice J.S. Venna, 'Has the Judiciary turned its back on the poor? A report
on .Seminar dated 4 Nov. 2006, Indian Society for International Law. New Delhi,
'^" Supra note I at p. 245.
'^' Supra note 122.
^' Supra note 2.
^'' Supra note I. pp. 245-246.

268
remedy must be sought under the general law of defamation. However, where the
judge due to intense public criticism against himself is so galled as to mistake such
criticism to be against administration of justice, be may resort to his contempt powers.
This would be exceptional.

The judge must avoid such confusion between personal libel and slander and
obstruction of public justice and only the letter must be punished with contempt.
Alternatively, the test would be whether the wrong done is to the judge or to the
public. It is the latter it creates an apprehension in the public mind regarding the
integrity or ability of the judge or deters litigants from placing complete faith in the
administration of justice by the courts or if it is likely to cause embairassment to the
judge himself in the discharge of his judicial duties.'^'* Thus contempt proceedings
have been initiated even when a judge is attacked for a conduct outside his judicial
capacity. Contempt proceedings were initiated against publication of a report stating
that the sons of Chief Justice of hidia were allotted petrol pump under the
discretionary quota of the petroleum Minister, though the attack was neither against
the judicial function nor the judicial status of the judges wherein defamation
proceedings would have been more appropriate.'^"^

M.R. Paraskar v. Farooq Abdulla,^^^ concerned allegations made against the

judiciary by the Chief Minister of Jammu and Kashmir. Chandrachud, C.J.
commented:

"The right to full speech is an important right of a citizen, in the exercise of

which he is entitled to bring to the notice of the public-at-large the infmnities from
which any institution suffer, including any institution which administers justice.
Indeed, the right to offer healthy and constructive criticism which is fair in spirit must
be left unimpaired in the interests of public institutions themselves. Bonafide criticism
of any system or institution is aimed at inducing administrators of that system to look
inward and improve its public image. Courts do not like to assure the posture that
they are above public criticism and that their functioning needs no
improvement "

In ic Mulgaonkar, AIR 1978 SC 727 (Paia 29) and Perspective Publications v. Slate ofMaiiaraslitia,
AIR 1971 SC 222 (230): 1971 Cii. LJ 268.
'•'' In re Haiijai Snigh, AIR 1997 SC 73: 1997 Cii. LI 58.
' ^ " A I R 1984 SC 615.

269
 Similarly in, Baradakanta Mishra v. Registrar, Orissa High Court,'" Justice
Krishna Iyer stated:

"vicious criticism of personal and administrative acts of judges may indirectly

nor their image and weaken the confidential of the public in the judiciary, but
the countervailing good, not merely of free speech, but also of greater faith
generated by exposure to bonafide, even if marginally overzealous criticism,
cannot be overiooked. Justice is no cloistered value."

In a much eariier case. Chief Gajendragadkar ordered in re, under Article 143,
Constitution of India:'^^

"We ought never to forget that the power to punish for contempt, large as it is,
must always be exercised cautiously, wisely and with circumspection.
Frequent and indiscriminate use of this power in anger or irritation would not
help to sustain the dignity or status of the court, but may sometimes affect is
adversely. Wise judges over forget that the best way to sustain the dignity and
status of their office is to deserve respect from the public-at-large by the
quality of their judgments, the fearlessness, fairness and objectivity of their
approach, and by the restraint, dignity and decorum which they observe in
their judicial conduct."

Judges committing contempt could be approached in two different

ways. First words or conduct fonn judge could scandalize or tends to
scandalize, lower or tends to lower the authority of the court. Like all other
individuals a judge may also be made liable for contempt under this category.
Thus unruly criticism made by District Judge against High Court Judge.
The order of reward of a case was criticized by the District Judge in a non-
respectful language, '^° Additional Session Judge, after amending death

157
AIR 1974 SC 710: (1974) 1 SCC 374
'^^ AIR 1965 SC 745.
'^^ Supra note 157. In this case for gross discipline, the appellant District Judge was suspended from
service and directed to file reply to the charges. The contents of the Reply formed the basis of the
contempt proceedings. Subsequently the reply submitted by the appellant to the notice in contempt
proceedings also contained serious allegations including malafides, bias and mysterious conducts of
the judge in initiating contempt proceeding. This reply was also treated as contempt of court and the
contemnor was punished to pay a fine of Rs. 1000 with three months imprisonment in default of
payment.
"'" Shafi Ahmad Khudabux Kazi v Ilashmalhi Hajjumia Mogal, MR 1997 Bom. 260. In lh:s case, in a
civil proceeding, the decision of district Couit was challenged befoie the lligh Court in wiii

270
 sentence gave interview to the channels describing accused as worst criminal,
though the conformation of death sentence was only pending,'^' are all treated
as interferences with administration of justice by scandalizing the court and
the conduct of judicial officers were treated as contempt of court. It was
further decided that even when a High Court Judge disobey the order of
Supreme Court, exercising the plenary powers of Supreme Court order
Articles 141, 142, and 144, contempt proceeding could be initiated. Thus
the judges are treated as any other individuals in the first situation and no
serious problem or differential treatment may arise in this regard.

The question relating contempt commuted by a judge against his own court
came for the specific consideration of Lahore High Court in Mohammad Shaft v
Choudhaiy Qadir Bakshi, Magistrate, f class Lahore}^^ In this case, unhappy with
an injunction order passed by the sub-judge, the magistrate showered all his
displeasure against the lawyer who had presented the case and hurled abusive words
against the sub-judge who had granted the injunction. Further the Magistrate got up
from the chair calling the sub-judge foolish in passing the injunction order.'^'' The
conduct of the Magistrate was found to have the tendency of scandalizing his own
court and was having the effect of diminishing the confidence of public in the
administration of justice mechanism. The High Court refusing the unconditional
apology made by the Magistrate, levied a fine of Rs, 50 and n default of payment of

proceedings. The High Court remanded the matter back to the District Court with some directions.
However, the District Judge totally neglected the directions of the High Court and moved out from
established fact and decided the matter again and criticized the remand order of the High Court.
The High Court observed that so long as the judgment of the High Court has not been overruled or
set aside it is binding on all the Judicial Officers and they have no libeily either to criticize or act
against the same. Though the conduct of the District Judge was found to a clear case of contempt,
as the judge has retired long back and he was of much advanced age, the matter was dropped.
Subash Chand v S.M. Aggarwal, 1984 Cr. LJ 481. The conduct of giving interview by the trial
judge, depicting the accused in the criminal case as most heinous offenders was held to be a serious
matter bound to infect the adininistration of justice deeply.
162
Spencer & Co. v. Vishwadarshan Distributors Pvt. Ltd., (1995) 1 SCC 259. In this case an order
was issued by the Supreme Court in a special leave petition for an early disposal of a case which
was then pending before Madras High Court. In pursuance of the direction given by the Supreme
Court an application was moved before the Madras high Couil for an early disposal of the case.
The application was dismissed by the High Court with an observation that there was nothing
important to give precedence to the appeals over large number of pending appeals before the court.
The Supreme Court reached the conclusion that the conduct of the High Court judge would amount
to contempt of court. However, the court refused to initiate contempt proceeding with a direction
that the matter may be disposed expeditiously, at any rale within one month from the date of
communication of the order.
16.'. AIR 1949 Lah. 270.
164 Id. at p. 271.

271
fine, to undergo simple impnsonment for a penod of one month.'^^ The scope of
contempt committed by judges of court of Record against their own court came for
the consideration of Patna High Court in Harish Chandra Mishra v Hon'ble Justice
AliAhmed}^^ In this case contempt proceedings was initiated by three advocates of
the Patna High Court alleging that a judge of Patna High Court had committed
contempt of his own court by making insulting and uncharitable remarks against an
advocate while hearing a civil revision application for admission. According to the
petitioner the judge Shri S. Ali Ahmed made a comment in the following words:'^^

"You are a small fry and I would not even like to harm you because you are
such a small fry. You have no knowledge and no understanding. With your
habit you are doomed. I will not hann you but you will suffer from within and
be doomed. 1 can tolerate a lot but there is a limit to it and once the limit is
reached I am very hard nut and remember that I tell you that you will suffer
internally and be doomed".

According to the petitioner the above blaming continued for ten minutes. The
moot question in this case was whether a judge or a court of record could be held
liable for committing contempt of his own court.

The position regarding contempt committed by judge against his own court is
dealt under Section 16 of the contempt of courts Act, 1971."^^ As per this section
contempt proceeding could be initiated for contempt committed by judge, Magistrate
or other persons acting judicially.'^^ The position of High Court and Supreme Court
judges is not specifically mentioned under the section. Thus the difficult question in
this regard is whether the tenn 'Judge' under Section 16 would include a Judge of a
High Court or the Supreme Court also. Section 16 starts with the words 'subject to the
provisions of any law or time being in force.' Thus the application of Section 16 is
subject to the law prevailing at the time when the contempt of courts Act, 1971 came
into force. When the Act was enacted in 1971, the position of judges of court of
record commuting contempt of their own court or any other court was not dealt
specifically by law. There were no statutory provisions or decided cases dealing with

""Md.Qlp 273.
"•''AIR 1986 Pat. 65^
"•' Id. at p. 68.
"•^ The Contempt of Courts Act, 1971. Sec 16.
"•''Ibid. Sec. 16(2)

272
this aspect.'^° As there was no governing, the Patna High Court, taking into account
of the preamble to the contempt of courts Act.'^' Section 9,'^^ and Section 22,
declared that the contempt of courts Act was not intended to enhance the scope
contempt law further from the position of law prevailing in 1971. Thus nothing new
could be brought within the purview of contempt of court Act, 1971. Thus the term
'Judge' was treated as not referring to High Court and Supreme Court Judges. To
support this view the High Court referred to Oswald's text on contempt of court,
where is was observed that an action would not lie against a judge of a court of record
for a wrongful exercise of his official duties any more than for erroneous judgment.
However, in the minority judgment, Birendra Prasad Sinha J. Observed that, even the
High Court and Supreme Court Judges were not immune from contempt
proceeding.

It seems that the logic followed by minority judge is preferable. It is true that
Section 16 of the contempt of courts Act, 1971 starts with the words 'subject to the
provision of law for time being in force. It is also true the 1926 and 1956 contempt of
court Acts were silent about contempt committed by judges of court of record against
their own courts. Further there was no divided case on the point. At the time when
the contempt of court Act, 1971 was enacted, there was no law providing that judges
of court of record were not liable for contempt of their own court. It is submitted that,
if the crux of contempt of court is preventing interference with administration of
justice,"^ interference any quarters how so high, shall not be taken lightly. Granting
immunity to judges of Supreme court and High Court for their contempt and speaking
loudly the need for preventing interference with administration of justice is not only
meaningless, but also destroys the very spirit behind contempt law. Further it was
seems that the passage taken from Oswald's contempt of court is wrongly interpreted.
According to Oswald an action will not lay against a judge of a court of record for
wrongful commitment in the exercise o his judicial duties any more than an erroneous

This point was specifically considered by the Supreme Court in Harish Chandra Misra v. Hon'bie
Justice Ah' Ahmed, AIR 1986 Pat. 65, 72.
The preamble to the Contempt of Courts Act, 1971, reads to define and limit of the power of certain
courts in punishing contempt of court and to regulate their procedures, in relation thereto.
'" The Contempt of Courts Act, 1971, Sec. 9.
The Contempt of Courts Act, 1971, Sec. 22.
Supra note 166 nt p. 71.
" ' Id. at p. 76.
Rajeev Dhawan, 'Contempt of Court and the Press', 1982.

273
judgment. Oswald also made a mention of Kemp v. Neville:'' where a judge of
court of record was found liable and fined for acquitting against evidence, for which
he had no power. Again the High Court did not take into account a ftirther reference
made by Oswald. He further continues that the Divisional Court refused to strike out
as disclosing no cause of action for malicious prosecution brought against certain
judges of Supreme Court of Trinidad for having (as it was lodged) of their own
motion and without any evidence, caused the plaintiff to be prosecuted and committed
to prison for an alleged contempt of the Supreme Court in forwarding to the Governor
of the colony for transmission to the queen in council of the oppressive conduct of
defendants council. At the trial of this case before Lord Coleridge C.J., the jury found
as regards one of the defendants that he had overstrained his judicial powers and had
acted in the administration of justice oppressively and maliciously to the prejudice of
the plaintiff and to the prevention of justice.'^

From this it is clear that Oswald was dealing with the immunity of Judges of a
court of record when he is exercising his judicial duties. It seems that the decision
Fray v. BlackburnJ^'^ which was relied Harish Chandra Mishra,"*' as an authority to
reach the conclusion that the judges of court of record could not be held liable for
contempt of their own court, was wrongly interpreted. Again in Fray v. Blackburn
the court was dealing with immunity of a judge of court of record in contempt
proceeding when they are discharging judicial functions. That was why the immunity
of judge in contempt proceeding was equated with immunity of a judge in en-oneous
judgment. But in Harish Chandra Mishra, the alleged act was not related to any
judicial function. Thus the factual situation of English case referred in the decision
and factual situations in Harish Chandra Mishra were different. Further the case
mentioned in the judgment by Patna High Court and observations made by Oswald
were on the basis of position of law prevailing in 19"" and 20'*" Century. At that time
judicial officers including judges of court of record may not claim any absolute
immunity for their judicial functions and there was some doubt whether a contempt
proceedings was maintainable against a judge with respect to wrongful discharge of

' " J.F. Oswald and G.S. Robertson, 'Oswald's Contempt of Court: Committal Attachment, and arrest
upon civil process with and appendix of forms', 1910, p. 20.
"^(1816)10C.B. (NS)523.
'''Supra note 177.
"° 122I:R217.
'^' Supra note 166.

274
their judicial function. But now a wrongful discharge of judicial functions, contempt
of courts cannot be invoked because the judges are protected otherwise by Judicial
Officers Protection Act'^^ and Judge's Protection Act. '^^ The combined effect of
these statutes is that with regard to discharge of judicial function full protection is
given to judicial officers including judges of court of record.

When a judge of a court of record does something or makes comments outside

the discharge of judicial duties, the immunity mentioned by Oswald may not be
applicable. Abusing or using harsh words against a lawyer cannot be treated as a
discharge of judicial duty. As it was not a discharge of judicial duty, none of the
protections could have been claimed by the judge irrespective of his position whether
he is a judge of court of record or judge of lower court. The only relevant factor was
whether his conduct was so serious to create disrespect to the administration of justice
mechanism. In this regard an observation made by Lord Denning may be more
pertinent. It reads as follows:"*''

"In the old days, as I have said, there was a sharp distinction between the
inferior court and the superior court. Whatever may have been the reason for this
distinction, it is no longer valid. There has been no case on the subject for the last one
hundred years at least. And during this time our judicial system has changed out of
all knowledge. So great is this changing that it is now appropriate for us to reconsider
the principles which should be applied to judicial acts. In this new age 1 would take
my stand on this: as a matter of principle the Judges of superior courts have no greater
claim to immunity than the judges of the lower court. Every judge of the courts of
this land-from highest to the lowest-should be protected to the same degree, and liable
to the same degree. If the reason underlying this immunity is to ensure "that they may
be free in thought and independent in judgment," it applies to every judge, whatever
his rank."

The observation of Lord Denning would be apt in India also. In a country like
India, where interference with administration of justice by scandalizing the court is
becoming more and more common and courts are looking for more stringent

' " The Judicial Officers Protection Act, 1850.

'^' The Judges (Protection) Act. 1985.
Lord Denning, 'The Due Process of Law', 2004, p. 65.
'•''' Amicus Curie v. Piashant Bhushan, (2010) 7 SCC 592: AIR 2010 SCW 5356.

275
measures to prevent this type of contempt, it would be difficult to appreciate the ratio
that judges of court of record could not be held liable for contempt of their own court
even if the conduct lead to substantial interference with administration of justice. The
matter was also considered by the Supreme Court in State of Rajesthan v. Prakash
Chand and others,^^^ in this case the question before the Supreme Court was whether
contempt proceeding could be initiated against the Chief Justice of Rajasthan High
Curt for an alleged non compliance of an order of the same court regarding
transferring of a part heard writ petition to a Division Bench for its disposal, and for
not playing that writ petition along with other part heard cases. Though in this case it
was not necessary to look into whether the judge of a court of record could be liable
for contempt of court,'^^ the court observed that section 16(1) of the contempt of
courts Act, 1971 apply to judges of court of record or not. It may be further noted that
the Supreme Court has not looked into the reason why Section 16(1) of the contempt
of courts Act, 1971 is not applicable to judges of courts of record. It is further a
surprise to note that the Hon'ble Court has not even looked into the divisions of Patna
High Court or and Madras High Court and dissenting opinion of Birender Prasad
Sinha J. in Harish Chandra Mishra case. Thus it seems that a controversial issue that
too dealing with liability of judges of courts of record in contempt of his own court
has been decided by the Supreme Court lightly. The decisions have led to anomalous
situation. The anomaly in this regard can be rectified only by an amendment to the
contempt of courts Act, specifically bringing even the judges of courts of record
within the ambit of'Judge commuting contempt' of their own court.

One instance is that of Justice V. Ramaswami where in a letter to the inquiry

committee probing allegations made against him, he (Justice Ramaswami) made
sweeping allegations against certain judges and the judiciary. Though the Supreme
Court did express apprehension of this letter, it interpreted a subsequent letter
(explaining the circumstances of the first) by the same judge to hold that in the light
of the second letter the first was not contumacious."^'^ This prima facie hit at the roots
of a basic guideline namely; intention of the alleged contemner is iixelevant and what
matters is the "effecf of such act. There the priority of the court seems to have been
otherwise. Another instance was the contempt initiated against the Chief Justice of

'^'(1998) 1 s e c L
" ' I d . , pp. 21-22.
"'^ Sub Commiltee on Judicial Accountabiliiy v. .lustice V. Ramaswami, (199.5) I SCC 5 (Para 4).

276
Bombay High Court for accepting gratification which was believed to influence the
outcome of a certain case before him. The Supreme Court assumed the task of
evading a percent to be followed in future cases of contempt by the higher judiciary,
evading pronouncing a decision on the issue of contempt in that case. However, the
guidelines laid down are a deviation from fanatically protecting the judges rather than
189
analyzing judicial accountability for contempt as has been the trend.

The contempt machinery evolved is as follows: definition of misbehavior was

reiterated to include willful abuse of judicial office, willful misconduct in office,
corruption, and failure to perform judicial dudes, lack of integrity or any other offence
involving moral turpitude. Such misconduct would extend even beyond the execution
of the judicial office. It was stressed that minor offences and abrasive conduct could
not be indicated with impeachment. At the same time such conduct could not be
ignored as one such judge would have a reputing effect on the reputation of the
judiciary as a whole. Thus, need for in house machinery was stressed. Accordingly,
the office bearers of the Bar Association of a High Court after gathering concrete
material proving that misbehavior alleged is not of an impeachable nature must first
approach the tainted judge to urge him to amend himself or approach the Chief Justice
of that High Court to impress upon handling of the matter appropriately. If complaint
is against the Chief Jusfice of a High Court, the concerned Chief Jusfice must verify
the allegations and place the material before the Chief Justice of India. The Bar
Association must suspend all further operations. The Chief Justice of India would
thereafter initiate such action as necessary. This was evolved to sustain public
confidence in the judiciary and rule of law as also to avoid contempt proceedings
against office bearers of the Bar Association.''" The efficacy of this system is yet to
be tested. Nonetheless, the contempt liability of the Supreme Court judge still
remains shredded with probably impeachment being the only remedy.

Though truth is made a defence in 2006 amendment to contempt of courts Act,

1971 woos of critics of the judiciary is unending, because the defence is made
conditional and again left to the discretion of the judges. The amendment which

P.Anu Chengappa. 'Adherence to rule of law in the exercise oCcontenipt power', Cri. l.J, 2003, Vol.
3, p. 250

'"' Ravichandran Iyer \ . Justice A.M. Bhattacliarjec. AIR 1995 SCW 457.
•'' Supia note 1.S9, pp. 250-251.

277
introduced Section 13(b) of the contempt of courts Act, 1971 says, "The court may
permit, in any proceeding for contempt of court, justification by truth as a valid
defence if it is satisfied that it is in public interest and the request for invoking the said
defence is bonafide."'^^The phrase "if it is satisfied that it is in public interest is a
contentious one, as courts have in the past held that allegations of corruption are
contempt because they are against the public interest in that they are calculated to
undennine the confidence of the people in the integrity of judges, the rationale being
that, the viability of the judiciary as an institution depends on the continued public
assumption that the judiciary is an honest and incomaptible institution.'^^ Thus, it
would be open to a judge to hold that the defence is not available to a contemnor who
alleges corruption against a member of the judiciary. The reasoning seems to be flow
the viability of the judiciary as an institution should not depend on the assumption that
the judiciary is honest and incorruptible, but rather must be based on public opinion
built by the fact of its incorruptibility. The method to ensure that corruption is at a
minimum is by introducing transparency in the system, which is not supported by the
superfluous attitude of making allegations of corruption punishable by contempt.

Moving to a somewhat different subject, the application of natural justice in

contempt jurisprudence in India has been contentions. Nemo Judex in causa sua is a
basic facet of natural justice which means that no one should be a judge in his own
cause.'^^ This principle has been cited frequently by both our Supreme Court and the
High Courts''*^ and is a bastion of the rule of law in India.'^^ An issue that emerges in
the trial of a person for criminal contempt is that often the same judge who institutes
the petition against the alleged contemnor hears the petition himself In case a judge
has been personally attacked, there is no rule which states that he should not take up

"" Supra note I, pp 246-247.

' " V.M. Kanade v. Madhav Gadkaii, 1990 Cri. LJ 190,196 (Bom) Para 24. See also Hira Lai Dixit,
AIR 1954 S C 7 4 3 .
''" Nina R. Nariman, 'Criminal Contempt of Court in India: A Critique", Supreme Court Cases. Vol.5,
20ll,p.47.
'"' Id. ai p. 44.
'•"' Maneka Gandhi v. Union of India, (1978) 1 SCC 248: Also see Canara Bank v. V.K.. Amasthy.
(2005) 6 SCC 321: Rajesh Kumar v. CIT, (2007) 2 SCC 1SI.
' ' Keshvanand Bliarii v. State of Kerala. (1973) 4 SCC 225. See also, Supreme Court Advocates-on-
Record Ass. v. Union of India, (1993) 4 SCC 441: Common Cause, A Registered Society v. Union
oflndia.(l996)6SCC530.

278
the case himself, although in Sukhdev Singh Sodhi, '^^ the Supreme Court has
observed that it is, "desirable on general principles of justice that a judge who has
been personally attacked should not as far as possible hear a contempt matter which,
to that extent, concerns him personally." The maxim "justice should not only be done
but should manifestly and undoubtedly be seen to be done" "^ as laid down by Lord
Chief Justice Hewart, has been recognized as relevant in contempt petitions in the
context of personal attacks on a judge as early as 1954.^°*^ A judge who has been
personally attacked should not hear a contempt matter which concerns him personally.
However, the Supreme Court framed Rules in this regard as well as the Rules
framed by various High Courts, make no mention of this and contempt petitions are
frequently heard by the injured judge himself In fact, the great social reformist who
sat in the Apex Court, Justice V.R. Krishna Iyer, said that contempt jurisprudence
"which makes prosecutor and judge rolled into one is itself contempt of natural
justice."^°^

5.4.3 Contempt of Court by Subordinate Judiciary

In India the contempt jurisdiction was firstly applied by the Lahore High Court
against a Subordinate Judicial Officer in Muhammad All v Qadir Baksh}'^^ and a first
class Magistrate was punished for disobeying the orders of the subordinate judge. In
this case it was observed that it is of greatest importance that the prestige and dignity
of the courts of law should be preserved at all costs. There cannot be anything of
greater consequence than to keep the streams of justice clear and pure so that the
litigants may have the utmost confidence that they would be treated in a considerate
manner by courts of law. If parties to litigation feel that they are likely to be subjected
to insulting behavior at the hands of the presiding officers of the courts it would shake
all confidence in the administration of justice and would thus pollute the stream of
205
justice.

' " Sukhdev Singh Sodhi v. Teja Singh, AIR 1954 SC 186, 190 Para 26: 1954 Cri. LJ 460; 1954 SCR
454,458.
' " Gullapalli Nageswara Rao v. A.P.S.R.T.C, AIR 1959 SC 308: Also see, Siddhivinayak Realities (P)
Ltd. V. Tulip Hospitality Services Ltd., (2007) 4 SCC 612.
-°° Supra note 198.
"*" Rules made by the Supreme Court of India under Section 23 of the 1971 Act: Rules to Regulate
Proceedings for contempt of the Supienie Court, 1975.
' ' 1-or instance. The Contempt of Couits (Bombay High Court) Rules, 1994.
-°' V.R. Krishna Iyer, Treedom of Information,' 1990, p. 319.
^""AIR 1949 Lah. 270.
'°' Id. at p. 273.

279
5.4.3.1 Disobedience of Orders

Patna High Court in Harkishan Singh v. Chhotan Mahtan^'^^ considered the

question of disobedience of the stay order of the High Court by the Subordinate court.
The order was prohibitory one and the Sub-Divisional Magistrate was informed of it.
But, as there was no deHberate or willful disobedience, it was held that there was no
contempt, and the Sub Divisional Magistrate was discharged. But the court made the
following observation that when on order of stay or other such prohibitory order has
been made by this court and when the Subordinate Judge or Magistrate is informed of
the order by the advocate or pleader he ought ordinarily to accept what is stated by the
advocate on pleader and stay further proceedings.... when a Subordinate Judge or
Magistrate disregards a prohibitory order of which he has been given a notice in this
way (informed by the advocate) it amounts to contempt of court.

The Orissa High Court in Chintamoni Palai v. State, followed the

observation of Patna High Court and held the Sub-Magistrate guilty of contempt for
disobeying the stay order of the High Court, even after being informed of the stay
order by the concerned advocate. So also when the High Court on revision directed
the Magistrate to consider the matter and dispose of the matter in accordance with law
and evidence and if the Magistrate once again passed the same order of discharge
without looking into the evidence, the Magistrate is guilty of contempt.

But simple delay in executing an order especially when there were reasonable
grounds for the delay will not amount to disobedience and will not result in
contempt,^'° because there was not deliberate disobedience. There was only gross
negligence on the part of that whose duty it was to carry out the orders of the High
Court^" and that is not the test of contempt. The same view was followed by the
Calcutta high Court in State v D. Rudra, Additional District Magistrate ^^^ In this
case, the contemner, A.D.M. Alipore did not carry out the order of the High Court,
that the appellants should surrender the bail and serve the rest of the period in jail.
The court held that we are prepared to accept that these officers did not willfully

^°*AIR 1951 Pat. 494.

-°'Id. at p. 497.
-°''AIR 1952 On. 167.
-"'' S. Vankataraman v. P.V. Singvi, 1997 Cn. L.I 1840.
-'° H.P. Singh V. Thakur Pia.sad Tewaii, AIR 19.53 S C 436.
-" Id. at p. 437.
-'-AIR 1969 Cal. 602.

280
override any order of this court. But the entire trouble was due to the fact that it was
not a case of the A.D.M controlHng the judicial peshkar but the latter controlling the
Magistrate.^'^

The Supreme Court in Debabrata Bandopadhyy v. State of West Bengal^^^

cautioned all concerned that orders of study, bail, injunctions received from Superior
courts must receive close and prompt attention and unnecessary delay in dispatching
or dealing with them may well furnish grounds for an inference that it was due to
indifference and sometimes even of contumaciousness. The Court further observed
that punishment under the law of contempt is called for when the lapse is deliberate
and in disregard of one's duty and in defiance of authority. To take action in an
nuclear case is to make the law of contempt do duty for other measures and is not to
be encouraged.

In B.K. Kar v. Hon 'ble Chief Justice and his companion Justices of the
Orissa High Court, also the Supreme Court maintained that only intentional
disobedience is to be held as contempt of court and not simple ignorance or mistaken
view of law. The court observed that before a subordinate court can be found guilty of
disobeying the order of Superior court and thus to have committed contempt of court,
it is necessary to show that disobedience was intentional. There is no room for
inferring an intention to disobey an order unless the person charged had knowledge of
the order. If what a subordinate court has done is in utter ignorance of an order of a
Superior Court, it would clearly not amount to intentional disobedience of that court's

order and would therefore not amount to a contempt of court at all The knowledge
must however be obtained, from a source which is either authorized or otherwise
authentic.^'^

B.K. Mishia v. The Registrar of Orrissa High Court,^^^ B.K. Mishra (a

District Judge) was arranged before the Orissa High Court for insisting that the judges
sitting in the Bench order his contempt cause should be different from those who dealt

-' Id. at p. 603.

' A I R 1969 S C 189.
' i d . at p. 193.
''AIR 1961 SC 1367.
' Id. at p. 1370.
^ AIR 1974 On.ssa I.

281
with him on the administrative side demoting him. In effect he attributed bias to those
judges. The Orissa High Court pointed out that the constitution has vested in the High
Court Judicial and certain administrative functions. The judges who decide on the
administrative side cannot be disquahfied from deciding the very same matters when
such an order is challenged in judicial proceedings. Likewise judges who are called
upon to decide certain matters on the administrative side cannot be charged with
interfering the cause of justice merely because similar matters are pending
consideration before them on the judicial side. Full Bench decision of the Orissa High
Court speaks for itself:

"A little analytical survey of the history of the service of the contemnor would
indicate that this Court has not been as strict as it should have been in regard to him.
Compassion has been introduced into the treatment of the contemnor by the court
with a genuine belief that the contemnor would mould his ways, pick at the usual
judicial temper and correct himself Unfortunately the expectations have been belied.
On the other hand, the contemnor instead of realizing his own mistakes developed an
attitude of considering his own actions to be above board and anybody who found
fault with him to be or the erring side. He took to making reckless and scurrilous
allegations against his administrative superiors and even this court. When step was
taken for correcting his lapses, he took to intimidation of this court in answer."

The ratio decidendi in the Orissa Full Bench Decision in B.K. Mishra v. Chief
Justice, Orissa high Court is:

(1) In view of the decision of the Supreme Court in the State of W.B. v.
Nripendranath Bagchi, ^'^^ which rendered in the contempt of a discrepancy
proceeding against an officiating District Judge, that the control which under Article
235 of the Constitution is vested in the High Court is a complete control, subject only
to the power of the Governor in the matter of appointment (including dismissal and
removal) and posting and promotion of District Judges, and that in the exercise of that
control vested in the High Court, the High Court can hold enquiries, impose

"''' Supra note 1 I, p. 743.

- - " A I R 1966 S C 447.

282
punishment other than dismissal or removal subject to the conditions of service, and a
right of appeal if granted before the condition of service and to the giving of an
opportunity of showing cause as required by clause (2) Article 311;

(2) Further in view of the decision of the Supreme Court in Md. Ghouse v. State
of Andhra^^^ that an order passed by the High Court suspending a Judicial Officer
pending fmalization of disciplinary proceedings is not an order either of dismissed or
removal from service; and so it is idle to contend that these very questions were
pending consideration by the High Court either in the disciplinary proceeding started
against the petitioner or in the contempt proceeding pending against him in court;

(3) A matter which has been finally decided in the highest court of the land and
particularly in view of the provision under Article 141 of the Constitution, cannot
become has Integra merely because a stubborn delinquent continued to question its
correctness. The power of the High Court to initiate disciplinary proceedings against a
district Judge and to place him under suspension pending fmalization of that
proceeding was therefore no work open to question and cannot and in fact was not a
matter in issue; and

(4) Simply because some of the judges who sat in a contempt proceeding against
the petitioner were concerned with the administrative disciplinary proceedings against
him, during which the contempt was committed, they were in no sense disqualified to
adjudicate on the contempt.

In Baradakanta v. The Registrar of Orissa, "The appellant had quite an

unsatisfactory record as a District Judge. He had been more than once reverted,
suspended and subjected to disciplinary proceedings during his career. Once he was
suspended by the High Court under Article 225 of the Constitution and disciplinary
proceeding was started. Against this the appellant appealed to the Governor which
appeal later was withheld by the Registrar, high Court. After charges were framed the
appellant wrote three letters. The first letter was to the Registrar intimating his request
to the Governor for transfer of the disciplinary proceedings from the High Court to the
Administrative Tribunal. The second letter was to the Governor through the High

•' Constitution of India 1950, Article 311(2).

" A I R 1975 S C 246.
Supra note \\ at p. 744.
""'(1974) 1 s e c 374.

283
Court to call for the earlier appeal withheld by the High Court. The third letter was a
direct petition to the Governor with a copy to the Registrar with the remark that the
High Court sends their comments on his petition to the Governor. He wrote yet
another letter to the Registrar intimating that he would not submit any explanation to
the charges framed against him until his representation to the Governor was disposed
of Also he could not wait for the pemiission of the High Court to leave Headquarters
as directed earlier. Against these letters a show cause notice was issued to the
appellant. The appellant raised preliminary objection to the contempt proceedings
contending that the court had no jurisdiction as he had made no reference to the
judicial functions of any judge.

The appellant filed an appeal to the Supreme Court for consideration of

contempt proceedings and complained of bias and prejudice of the High Court
particularly the Chief Justice and another pursue judge. The appeal to the Supreme
Court was however withdrawn. At the instance of the Division Bench a full Bench of
the high Court was constituted. Additional charges were framed as the very appeal
petition to the Supreme Court contained scurrilous and scandalous allegation
contumacious of the High Court Judges. The full Bench found an unanimous verdict
of 'Guilty' against the contemnor and sentenced him to imprisonment under the
contempt of courts Act 1971. It is against this sentence the present criminal appeal to
Supreme Court was filed." The appeal was dismissed but the sentence was reduced."""'

Palekar, J., A.N. Roy, C.J. and Y.V. Chandrachud, J., delivered the judgment
of the court with Krishna Iyer and Bhagwati JJ., concurring in a separate judgment
with different reasoning's. The findings of the Supreme Court were:

The judges of the High Court especially the Chief Justice are charged with
malafides, improper motives, bias and prejudice. It is insinuated that they are
oppressing the appellant, have become vindicative and arc incapable of doing him
justice. It is also suggested that they do not administer justice fearlessly because in
one matter affecting the appellant they dropped a charge against him for fear of the
Supreme Court. All this amounts to scandalization of the High Court.^"'

"^ Supra note 11 at p. 746.

-'• Id., pp. 746-747.

284
5.4.3.2 Interference of one Officer with the Functioning of Another

In State v. Sankar Charan Sahu^^^ in this case M.S. Rao obtained a decree
for recovery of money and in execution he obtained an arrest warrant against one
Hrudananda Sahu. A criminal case was also pending against the judgment debtor.
Present contempt petition arose because of the arrest warrant issued by the munsiff for
the recovery of money and the order of release issued by the Magistrate. Concerned
Sub Divisional Magistrate passed the orders without proper jurisdiction. The High
Court held: In any case the power of the Magistrate under section 144 Cr. Procedure
Code is meant to prevent imminent breach of peace and not for conferring immunity
of a judgment debtor under Section 135 Cr. P.C. His order was intended to have the
effect and in fact had the effect of preventing the process server of the civil court from
executing the process issued to him by the munsiff and as such amounts to contempt
ofcourt.^^''*

S.S. Roy V. State of Orissa, the court observed that it is not sufficient in
such cases for the purpose of visiting a Judicial Officer, with the penal consequences
of proceeding in contempt simply because he committed an error of judgment or the
order passed by him is in excess of authority vested in him. The error must be willful
error proceeding from improper or corrupt motives in order that he may be punished
for contempt of court. So also in Arum Kshetrapal v. Registrar High Court, Orissa,
though the High Court found the District Magistrate, who sent a message to the
Advocate General requesting him to request the High Court not to insist on the
production of detune in connection with a writ of habeas corpus, guilty of contempt,
Supreme Court held that he was not guilty of contempt. According to the Supreme
Court, for constituting contempt, there should be willful disobedience and it should
proceed from improper or corrupt motives. In the instant case though the appellant
acted without proper care and caution, there is nothing on record to suggest any
willful culpability on his part and it has been expressly held by the High Court that he
was not actuated by corrupt or dishonest motive. In these circumstances the order
passed by the High Court was reversed.

- ' A I R 1952 On. 215.

--'' Id. at p. 217.
- - ' A I R I 9 6 0 S C 190.
-•"'"AIR 1976 S C 1967.

285
 An important legal situation arose in State ofRajasthan v. Prakash Chand^^^
in this case, Chief Justice of Rajasthan High Court in exercise of his powers
transferred a part heard matter from the single judge to Division Bench. Aggrieved
by the action of the Chief Justice, the judge who was hearing the mater, issued show
cause notice to the Chief Justice as to why proceedings under contempt of court Act,
be not taken against him for transferring the part heard writ petition to the Division
Bench for hearing. Supreme Court after referring the relevant provisions of law held
that the action of the judge is not only subversive of judicial discipline and illegal but
is also without jurisdiction. The court observed that no such notice could be issued to
the Chief Justice since the order referring the case to the Division Bench was an order
legally made by the Chief Justice in exercise, of his statutory powers. Such an order
can never invite initiation of contempt proceeding against him. The issuance of notice
smacks of judicial authoritarianism and not permissible in law. Even otherwise it is a
fundamental principle of our jurisprudence and it is in public interest also that no
action can lie against a judge of a court of Record for a judicial act done by the Judge.
The remedy of the aggrieved party against such an order is to approach the higher
232

forum through appropriate proceedings.

5.4.3.3 Non Compliance of the Orders

Contempt by a subordinate judge is heinous since in the nature of things, he is

an educated public servant who should have known his duties. His disobedience is
mostly intentional and it ill becomes his office if he does not apologies at the eadiest
opportunity. It is ridiculous and highly objectionable for him to defend his action. '
A subordinate court may commit contempt of the superior court by disobeying
its orders. One court may commit contempt of another court by comments that may
bring down the estimation of that court in the minds of the common man. Magistrates
and judges of inferior courts can be punished for contempt for acting unjustly,
oppressively or inegularly in execution of duties by colour of judicial proceedings
wholly unwairanted by law thereby conveying disrespect to another court and divert
the courts of justice. But no such penal consequences should follow for mere error of

-" 1998 Cii. I J 2012 (Siipieme CoLiit).

•'- Id. at p. 2025.
"" Stale V. i31iatnauai. AIR 1952 All 56.

286
judgement or exercise of authority. The error should be willful proceeding from
234
improper or corrupt motive.

In Gulam Mohammad v. Sarif Baig,^^^ the Sub-Divisional Magistrate was

apprised of the fact of stay by a telegram field by a party received from the counsel in
the High Court informing him of the order of stay. With such knowledge of stay it
was held it was contempt to have disregarded it and merely recorded on the order
sheet: "No action can be taken on telegram filed". The very next day he however
pronounced his orders putting the opposite party in possession of the disputed
property in the proceedings under Sec. 145, Cr. P.C. On the show cause nofice the
Magistrate took untenable grounds and tendered an unqualified apology which was
not accepted by High Court. The High Court sentenced him to pay Rs. 100 as fine.

5.4.3.4 Judge Influencing Another Judge

The Presiding Officer of a Court is the side judge of facts and law arising in
any case in his court. Counsel or party can do what is permissible under law in open
court to impress the court with the truth of their case. But to influence the court
expressly or privately is contempt. Similarly, no other judge however high placed,
can attempt to influence another judge who may be of equal, superior or inferior
status to him. It is heinous if a judge were to do this. It ill-becomes him being a judge
himself It is gross contempt of court for such a judge to communicate with another
judge for the purpose of influencing on the subject-matter of a case pending before the
latter.^'"' In the instant case it was pithily stated:

"Among a large variety of acts and conduct which mounts to contempt of

court, whereby due administration of justice is obstructed, interrupted,
embarrassed, or impeded, an attempt to corrupt a judge is perhaps the most
serious. It is a dangerous assault upon the integrity of the court. Every public
office is a public trust, but a judicial office is more than that - it is a sacred
trust. It is abhorrent to the conception of public justice that a judge should be
influenced in making his decision by extraneous influences to corrupt him or
out of feeling for personal retaliation. Courts have shown scant mercy to those

234
n re Siyaram Hanuinan Prasad, 1963 MPLJ 1 121
;'^ AIR 1960 Ori. 218.
Jawand Singh Hukum Singh v. Oin Prakash Agarwal, Sub Judge I'" Class, .lagadhri, AIR 19.59 Punj.
632.

287
 who have attempted to deter a presiding officer of a court from performance of
his duty by attempting to influence his decision by means of private
communication."^^''

In the instant case the gravamen of the petitioner's complaint was that when
he had filed a complaint in the Judicial Magistrate's court against certain officials for
offences under Section 352, 341, 500 and 506, of Indian Penal Code, the respondent
who was a Sub-Judge and a friend of the accused spoke to the Magistrate in favour of
the accused. The court on scrutiny of all the affidavits and documents filed and the
evidence recorded in the matter came to the conclusion that the allegations were not
only untrue but motivated by malice to damage the career of the Sub-Judge, and the
court added: ^^**

"If the allegations as have been made in this case had been substantiated the
guilty person would have richly deserved a deterrent punishment".

5.4.3.5 Misuse of Official Position

Sometimes when presiding officers misuse their official position there is

enough scope for contempt. In M.K. Prakash v. A.P. Pomkutty Moopllamma, the
court observed that having from the existence of different petitions the Munsiff
misused his powers and functions as a judicial officer and had deliberately acted not
only in an illegal manner but in a most nonjudicial manner, making administration of
justice a mockery.

5.4.3.6 Non observance of well Settled Precedent

The doctrine of stare decisis^^^ which obliges the judiciary to follow its earlier
decisions gave way for the well settled principle of precedent. The principle of law
laid down by the High Judiciary has a binding authority on the lower judiciary. A
Court is bound to follow any case decided by a court above it, and appellate court
(other than House of Lords) are bound by their previous decisions. Indian
Constitution also provides for the observance of the law laid down by the Supreme

" Supra note 11, p. 757.

•"* I b i d .
••''AIR 1971 Kcr. 248.
'" Id. at p. 256.
In general It means stiek onto the deci.sion.

288
Court by the lower court. "The law declared by the Supreme Court shall be binding
on all courts within the territory of India". Faced with the freedom of choice between
traditional doctrine of stare decisis and the American doctrine of review of precedents
the Supreme Court of India inevitably lent its preference to a flexible use of the
doctrine of precedent without imposing the fetters of stare decisis of itself.

When a well settled precedent was not followed by a judicial officer it would
amount to contempt of court. '' Because non observance of the principle of law lay
down by the Higher Judiciary would undermine the respect for the higher judiciary
and its constitutional authority.^'*''

Sometimes it may happen that the decision of the higher court itself is per
incuriam so per incuriam will also have the binding authority on the lower court
and the lower court bound to fellow. But here also the lower court judge can apply
the principle of distinguishing and avoid the application of a wrong principle; the
lower court not only commits contempt of court but also refuses to perform a
constitutional obligation. Though a court has a duty to follow the precedents it may
not be possible in the interest of justice to follow the precedent verbatim in cases
which may have to be viewed differently. Also in per incuriam decisions there is no
binding precedent because the court arrived at the conclusion without analyzing
proper earlier decisions. The court should have in such context the privilege of
distinguishing, which cannot be viewed as disobedience. Therefore, a judge may feel
a compulsion to refuse to follow a precedent which may be per incuriam. This act of
distinguishing may save the judge from contempt proceedings. But express refusal to
follow well settled precedent will attract contempt jurisdiction. '"'

5.5 Contempt by Government Servants

Disobedience of the orders of the court by the Executive is viewed seriously

by the judiciary and the court resorts to contempt jurisdiction to ensure due
compliance with its orders. What constitutes disobedience of the order of the court has

• ' K. Balaiankaran Nair, "Law of Contenipl of Court In India', 2004, p. 247.

-•'^ Shri Baradakanta Mi.sliia v. Bhnnsen Dixit, 1973 Cfi. I J 19 SC
• Id. at pp. 22-23^
' A deci.sion of the court which i.s nii.staken. A deci.sion of the court i.s not binding precedent if gives
per incurinn i.e. without the court's attention having been driven to the relevant authorities or
statutes.
-•"• Supra note 242. pp 248-249.

289
not been specifically defined by any statute, and so the principles laid down by the
judiciary remain the only guiding factor.

The Calcutta High Court, in Tarafatulah Mandal v. S.N. Maitra, ^^^

considered the matter and held that the continued interference by the executive
authority with the peaceful possession of the petitioner during the existence of a stay
order will amount to willful disobedience and thus constitute contempt of court.
Chakravarthi J. observed that it is true that when an injunction is granted
against a corporation, which afterwards does or permit an act in breach of the
injunction, there is a willfijl disobedience of the order and it will be no answer for the
corporation to say that the act was done or the omission allowed to occur
unintentionally or through carelessness, or through dereliction of duty on the part of
servants of the corporation. The same principle, would apply in the case of a
Government or a state, but before an individual officer of the Government can be held
to be liable, it must be established that he was the person in charge of the subject
matter to which the injunction or order alleged to have been disobeyed related and
unless that is established no case against an individual officer can succeed.

In Dr. Ganpati Chander Gupta v. Hardwari Lai and Others,^*'^ the Vice-
Chancellor and Registrar of Maharishi Dayanand University, Rohtak had disregarded
order of the High Court and then tendered apologies in alternative. Thus the court
held, "it has been noticed that there is a growing tendency between the people of all
ranks to disregard law on one pretext or the other and then to tender apologies. The
result is that the confidence of the public in the courts is being shaken. The purpose
underiying the law of contempt is to maintain their confidence in the courts of justice
and uphold the majesty and dignity of the courts. It is not for the sake of private
persons or judges as individuals." ^^" Consequently they were sentenced with fine of
Rs. 100 only and in default there fifteen days simple imprisonment.

In Miss Sumedha Kalia v. State of Haiyana}^^ a writ petition was pending

questioning the reservation policy for admission for MBBS of Maharishi Dayanand
University, Rohtak. During the pendency of the writ petition, the petitioners were

""AIR 1952 Cal. 919.

-'*' Id. ai p. 924.
-"' 1981 Cri. IJ 1239 (P&H)
"° Id. at p. 1244.
-" AIR 1990 PH 239.

290
given provisional admission. Now the question for consideration was whether giving
of provisional admission during the pendency of the writ petition will amount to
disobedience of the orders of the court. Court held that there was no disobedience of
the orders of the court. Court held that there was no disobedience of the orders of the
court, because there was confusion in ascertaining the quota.

K. V. Venkatesh v. Taluka Executive Magistrate^^ Magadi Taluk, Magadi, in

this case Kamatak High Court its order in 1985 directed the respondents to hold an
enquiry. But till 1990 no enquiry was conducted. This was construed as unreasonable
delay in carrying out the order, even though no time limit was fixed, and hence it was
held as contempt.

But in Maniyari Madhavan v. Inspector of police ^^* in this case a journalist

complained of misbehavior and attack by police. In a writ petition High Court
directed the matter to be enquired by the Deputy Inspector General of Police.
Petitioner went to the Supreme Court to get the matter to be enquired by the Central
bureau Investigation. But the Supreme Court appointed another D.l.G. to investigate
the matter and submit the report within 3 months. After a lapse of one year State
Government moved the Supreme Court for an extension of time. Though the situation
was similar, the Supreme Court had not made any finding on contempt, though it is a
clear case of contempt because no enquiry was conducted within the time prescribed
by the court. The court viewed the matter seriously and directed the enquiry to be
conducted by the C.B.I, within three months.

If there is violation of the order issued by the Supreme Court it will amount to
contempt of court. But if the order is susceptible to two interpretation one in favour
of the contemnor and another in favour of the complainant the contemnor is entitled
for the benefit of doubt. ^"

Though non-compliance of a direction of the court amounts to contempt of

court, if the direction itself is premature the non-compliance of such direction will not
amount to contempt. Thus in State of Jammu and Kashmir v. Mohd. Yaqooh

-'- Id. at 242.

-'•'AIR 1990 Kant. 86.
- ' ' A I R 1993 SC356.
"^ Mntynjoy Das v. Sayed llasibur Rahaman, AIR 2001 SC 1293 at p. 1297.

291
Khan, Supreme Court held that so long as the stay matter in the writ petition was
not finally disposed of the further proceeding it was disconcerted and no order therein
should have been passed.^" Supreme Court farther held that the orders passed in the
contempt proceedings were not justified being premature and must therefore be
entirely ignored. High Court should first take up the matter in the writ case and
dispose it off by an appropriate order. Only then it should consider whether the state
and its authorities could be accused of being guilty of having committed contempt of
court.^^^

The decision of Supreme Court in Chandra Shashi v Anil Kumar Verma}^

is important because in this case the court established a new criteria for criminal
contempt. The question involved in this case was, whether filing a forged and
fabricated documents amount to contempt? Since there was no decision of the High
Court or Supreme Court on this point it was required to be examined as a matter of
first principle. The court further held that the word interfere means, in the context of
the subject, means any action which checks or hampers the functioning or hinders or
tends to prevent the performance of duty and if recourse to falsehood is taken with
oblique motive, the same would definitely hinder, hamper or impede even fiow of
justice and would percent the courts fi-om perfonning their legal duties as they are
supposed to do. Though the respondent. Anil Kumar Venna, had tendered
unconditional apology but the court held that the apology tendered by the respondent
contemnor was not a product of remorse or contrition and, therefore, did not merit
acceptance. The court fijrther said that the apology could not be used as a weapon of
defence to get purged of the guilt. Rejecting the apology in which the contemners
stated that he would lose his job and his life would be shattered, the court said the
apology was not an outcome of real remorse or contrition. He was sentenced to two
week's imprisonment.

The fact and decision of Dhananjay Sharma v. State of Haryana and others,
^^^ were almost similar to the fact of Chandra Shashi case. In this case, Dhananjay
Sharma and a taxi driver, Sushil Kumar, illegally detained by the Haryana police writ

-^''(1992) 4 s e c 167.
-'' Id. at p. 170.
-'^ Id. at p. 171.
-'''(1995) I s e c 421.
-'•"Supia note 107 at p. 180.
-'•' AIR 1995 SC 1795.

292
of habeas corpus were filed for the production of detenu. The police, officers of
Haryana filed false affidavit before the Supreme Court and forced one of the detenu to
false statement and file false affidavit in the Supreme Court to effect that he was not
illegally detained by police. Such conduct aggravated their contumacious acts. The
unconditional and unqualified apologies tendered by them were not accepted by the
Supreme Court because they did not show any real contriteness and regret. Thus they
were sentenced to suffer simple imprisonment for a period of three months and to pay
a fine of Rs. 1500.^^^ The taxi driver had placed himself at the mercy of the court and
said that he was so acted on account of the fear of the police of Haryana. The
Supreme Court opined that he was then repentant, and his sentence was reduced to
one day simple imprisonment and a fine of Rs. 1000.^^^

In Rajesh Kumar Singh v. High Court of Judicature of M.P.,^^'^ an appeal

was filed under Section 19 of contempt of courts Act, 1971. Appellant was the Sub-
Divisional Officer (Police) Dabra, Gwalior. He had filed the appeal against the order
of Madhya Pradesh High Court in contempt petition punishing him with simple
imprisonment for seven days and fine of Rs. 2,000. The question before the Supreme
Court is that, whether holding an inquiry in regard to an incident and recording the
statements of several witnesses without the pennission of the High Court and
contradicting the record made by the learned Magistrate amount to contempt of court
while deciding the above stated matter Raveendran, J. observed:
Of late, a perception that is slowly gaining ground among public is that
sometimes, some judges are showing over sensitiveness, with a tendency to
treat even technical violations or unintended acts as contempt. It is possible
that it is done to uphold the majesty of courts and to command respect. But
judges like everyone else, will have to earn respect. They cannot demand
respect of demonstration of power. The purpose of the power to punish for
criminal contempt is to ensure that the faith and confidence of the public in
administration of justice is not eroded. Such power, vested in the High Courts,
carries with great responsibility care should be taken to ensure that there is no
room for complaints of ostentatious exercise of power.

^" Id. at p. 1807^

- " i d a i p . 1809.
'^'* 2007 SCCl.Coni 766. www.iudis.nic.in.sc iudacment decided on 3 1/5/2007
- " Ibid, pa la 18.

293
 The court further mentioned those three acts, which are often cited as
examples of exercise of such power: (i) punishing persons for unintended acts or
technical violations, by treating them as contempt of court; (ii) frequent summoning
of government officers to court to sermonize or to take them to task for perceived
violations; and (iii) making avoidable adverse comments and observations against
persons who are not parties. The court further held that it should be remembered that
exercise of such power results in eroding the confidence of the public rather than
creating trust and faith in the judiciary. Therefore, the Supreme Court held that in the
above stated case there is no material to show that the appellant acted with any
ulterior motive. Any bonafide act in the course of discharge of duties and complying
with the directions of the Superior Officers should not land the enquiry officer in
contempt proceedings. ^'Thus, holding the appellant not guilty of contempt of court
the appeal was allowed setting aside the order of the High Court.

In Kedar Singh Kushwaha v. Dhaniram and another^^'^ the appellant was the
Specified Officer and in the said capacity was authorized to determine the Election
Petition filed by the first respondent. The election petition filed by him was dismissed
only on the basis of an order of recounting passed by the Specified Officer in respect
where of allegedly no objection was raised.

Questioning the legality and validity of the said order, the first respondent
filed a writ petition before the High Court contending that the Specified Officer had
no jurisdiction to direct re-counting of votes only on the ground that no objection was
raised by the parties and that he was required that sufficient evidence had been
brought on record by the parties for the said purpose. It was also urged that such a
judicial power could not have been delegated in favour of the Tehsildar. A learned
single judge of the High Court order dated 24-7-1996 allowed the said writ petifion,
setting aside the order of the Specified Officer and remitted the matter back to it and
directing the election petition to be decided within two months. It was furthennore
directed that the Specified Officer should also decide the preliminary objection raised
270
by the respondent in the election Petition.

- " ' I bid. para 19^

"' Ibid., para 20.
AIR 2010 SC 193.
:(>o Id. at p. 194, para 9,
Ibid., para 4

294
 Despite the said order, no action was taken thereon. The appellant who was
holding the post of the Specified Officer/Sub-Divisional Officer at the relevant time
disobeyed the order of the High Court dated 24-7-1996; a contempt petition was filed
by the first respondent. Upon hearing the parties, the appellant was found guilty of
willflil disobedience of the order of the high Court and a fine of Rs. 1000, and his
detention till the rising of the court was directed.

The High Court however, in its order dated 24-7-1996, in clear terms, pointed
out that the prescribed authority has no jurisdiction in that behalf even with the
consent of the parties. Relying on the basis of a decision of this court in P.K.K.
Shamsudeen v. K.A.M. Mappillai Mohindeen & Ors., the High Court made
extensive reference to the Rules, to hold:

"From the aforesaid rules, it is clear that any order of recounting can be passed
after conclusion of that trial and the recounting can only be recorded by the Sub-
Divisional Officer who is a prescribed authority to decide that dispute. The Sub-
Divisional Officer has not acted properly, inasmuch as it, acted illegally in delegating
the powers of recounting to the Tehsildar. The authority is described as Sub-
Divisional Officer as the authority to decide the election petitions, therefore, any act
done by the Tehsildar of recounting cannot be said to be proper and on the basis of
recounting by the Tehsildar, the Sub-Divisional Officer gravely erred in dismissing
the election petition. The order dismissing the lection petition is hereby set aside with
a direction to Sub-Divisional Officer to decide the petition according to law and shall
also decide the preliminary objections raised by the respondents before him. He
cannot shirk from his responsibility and delegate his powers to subordinate
authority"."^

In Nand Kishore Ojha v. Anjani Kumar Singh, there appears to have been
a change relating to appointment in schools with the advent of the new Government in
Bihar in 2006 and the framing of the Bihar Elementary School Teachers Rules, 2006,
which came into force on 1^' July, 2006, and has been amended from time to time.
Court, however, see no justification in the defence taken on Behalf of the State of

"'' Ibid., para 5 and 6.

-'-AIR 1989 SC 640.
Supra note 268 at p. 195.
- ' " " A I R 2010 SC 355.

295
Bihar that on account of such change in policy the trained teachers who were in place
at the time when the undertakings were given could not be accommodated. When
such undertakings were given by the State Government they were meant to be
implemented. Having given successive undertaking to accommodate trained teachers
in the vacant posts, without even taking recourse to the selection procedure, the state
government cannot resisle from its earlier undertakings and professes a change of
policy for not giving effect to such undertakings. Furthermore, the appointments
given to trained teachers, who were eligible at the time when the undertakings were
given, were as Shiksha Mitras, which appointments were allegedly adhoc in nature
and were not contemplate in terms of the said under takings.^^^

In order to find a workable selection to the problem which has arisen on

account of the failure of the Government authorities to abide by the undertakings
given on its behalf, the advertisement for appointment of primary teachers which was
published in December, 2003 and had been struck down by the High Court, was
brought to the notice of the Supreme Court for the limited purpose of determining the
total number of vacancies which was shown as 34, 540, whereas the estimated
number of trained teachers yet to be accommodated was far beyond the aforesaid
figure. Supreme Court direct that the said available vacancies of 34540 shown in the
advertisement for appointment of primary teachers be filled up with the said numbers
of trained teachers as a onetime measure to give effect to the undertakings given by
the State Government on 1S"" January, 2006 and 23"* January, 2006.

According without issuing a Rule of contempt. Supreme Court direct that the
34540 vacancies shown as available in the advertisement published in December,
2003 be filed up from the amongst the trained teachers who are available, in order of
seniority. Supreme Court adjourned the contempt petition for a period of six weeks to
977
enable the state Government to implement this order.
27S

In Mulhu Karuppan v. Parithi Ilamvazhuthi & another, contempt

proceeding was initiated mainly on the basis of a false statement made on oath by
Respondent No. 2, Rajender Kumar, inspector of police. Tamil Nadu, which resulted

-" Id., pp. 359-360, para 18.

Id. al p. 361, paia 22.
"'' Ibid, para 23.
-'S\IR20I1 ( 5) s e c 496.

296
in stay of the bail order passed by the session judge, Chennai in favour of the
Respondent No. 1, Parathi Ilamvazhuthi, elected member of Legislative Assembly of
the Egmore constituency,Chennai in the election held on 10-5-2001 to the Tamil
Nadu State Legislative Assembly, and prevented him from taking oath in the
Assembly. In respect of the violence on the day of election. Respondent No. 1 was
arrested and remanded to judicial custody on 17-5-2001. On the same day, that is, on
17-5-2001, the appellant, Muthu Karuppan, was appointed as Commissioner of police,
Greater Chennai city and assumed charge. On 21-5-2001 Respondent No. 1 moved
on application for bail before the Metropolitan Magistrate which was dismissed on the
same day. On 22-5-2001, Respondent No. 1 moved an application for bail before the
session's judge, mainly on the ground that as the new assembly session commences
on 22-5-2001, he has to take oath and further the victim, and namely, David has also
been discharged from the hospital. On 23-5-2001, Respondent No. 1 was granted
conditional bail by the session's judge mainly on the ground that he has to take oath
as MLA. It is fijrther seen that against grant of bail to Respondent No. 1, inspector of
police Respondent No. 2 filed an application for cancellation of bail before the High
Court. On the same day, vacation judge of the high Court stayed the order of grant of
the bail to Respondent No. 1 till 29-5-2001 on the ground that victim, namely, David
is in serious condition and the accused Respondent No. 1 is in police custody. By
pointing out that the information furnished by Respondent No. 2 in his affidavit filed
in support of the application for stay of the order of grant of bail regarding his police
custody is false. Respondent No. 1, filed a counter affidavit praying for vacation of
the stay granted by the high Court. The learned single judge dismissed the application
filed by respondent No. 2, to cancel the bail granted to the first Respondent by the
session's judge.^^

Respondent No. 1 filed contempt Application before the High Court staying
that on the direcfion supervision and knowledge of the appellant herein, respondent
No. 2 moved an application to cancel the bail granted to him on the basis of false
statement thereby prevented him from attending the Assembly. On 29-10-2004, the
Division Bench of the High Court held the respondents therein guilty of the offence
and sentenced them to undergo simple imprisonment for 7 days under section 12 of

" ' i d . at p. 1649.

297
the contempt of court Act, 1971. Aggrieved by the judgment and order of the High
Court, appellant filed appeal before the Supreme Court. On 13-12-2004 and Supreme
Court stayed the operation of the impugned order insofar as it relates to the appellant.
Respondent No. 2 also filed appeal before Supreme Court, but the court dismissed the
appeal on merits holding that the case of the Commissioner of Police stands entirely
on a different footing.^^°

As observed above, the contempt proceeding being quasi criminal in nature

require strict adherence to the procedure prescribed under the Rules applicable in such
proceedings, Appellant also pointed out that consent of the Advocate General was not
obtained for initiating contempt proceedings against him. In state of Kerala v. M.S.
Mani and others, this court held that the requirement of obtaining prior consent of
the advocate General in writing for initiating proceedings of criminal contempt is
mandatory and failure to obtain prior consent would under the motion non-
maintainable. In Bal Thakrey v. Harish Pimpalkhute and another, this court held
that in absence of the consent of the Advocate General in respect of a criminal
contempt filed by a party under secfion 15 of the Contempt of Court Act, 1971, taking
suo moto action for contempt without a prayer was not maintainable. However, in
Amicus Curiae v. Prashant Bhushan and others,^^^ this court has considered the
eariier judgments and held that in a rare cases, even if the cognizance is deemed to
have been taken in terms of Rule 3 (c ) of the Rules to Regulate Proceedings for
contempt of the Supreme Court, 1975, without the consent of the Attorney General or
Solicitor general, the proceedings must be held to be maintainable in view of the fact
that the issues involved in the proceedings bad for reaching greater ramifications and
impact on the administration of justice and on the justice delivery system and the
credibility of the court in the eyes of general public. It is clear from the recent
decision that if the issue involved in the proceedings had gi'eater impact on the
administration of justice, the court is competent to go into the contempt proceedings
even without the consent of the advocate General as the case may be.

-''*''Id. at p. 1646.
'^'AIR 2001 SC 331.5.
- " AIR 200.5 .SC 396.
"^' Supra note 185.
-•'*' Supra note 278. pp. 1648-1649.

298
 In Gunninder Singh Kang v. Shiv Prasad Singh & others,^^^ one Shiv Prasad
Singh who was in-charge block supply Officer of Aurangabad was dismissed fi-om
service in the year 1977 on charges of bribery, by the Commissioner, South
Chhotanagpin Division, Ranchi. Subsequently, considering his representation, he was
reappointed. While reappointing him, the said order mentioned that Shiv Prasad
Singh would get the basic starting pay of Rs. 296 and will not be entitled for any
future promotions. The said order became final and Shiv Prasad Singh was
reappointed as per order dated 28-2-1980. The said Shiv Prasad Singh filed writ
petition wherein he prayed for a direction to accord time bound promotion as per the
State Government's scheme. Irrespective of the specific directions contained in
reappointment order dated 28-2-1980, the said writ petition was disposed of by order
dated 21-8-1995.^^"

The said order was to the following effect that "It's no doubt that the order
was passed in the year 1980 and the petitioner did not assail the same in any court of
law since then, but in the opinion of the Hon'ble Judge of the High Court of Patna,
when the Government introduced the scheme of time bound promotion, petitioner
cannot be denied the benefit arising there from only on account of the impugned order
if he is otherwise eligible and found suitable. After having heard the learned counsel
for the parties, the writ application is disposed of with the direction to the
Commissioner, Food and Civil Supplies, Government of Bihar (respondent No. 2) to
dispose of the representation of the petitioner by a reasoned order within three months
fi-om the date of receipt/producfion of a copy of this order, the certified copy of which
shall be produced along with the copy of the representation before respondent No. 2
by the petitioner within two weeks". Pursuant to the said order Shiv Prasad Singh was
granted first time bound promotion from 01-04-1981 and second time bound
promotion from 09-09-1992. His salary was fixed in the revised scale of Rs. 5500-
9000/-. The appellant herein by his order dated 25-7-2003 in his capacity as the
commissioner Food and Supplies and Commerce, Government of Bihar held that the
grant of time bound promotion one on 1-4-1981 and other on 9-9-1992 were in

-^' AIR 2013 SC520^

-"' Id. at p. 521.

299
contravention of the conditions contained in the reappointment order dated 28-2-1980
and so saying cancelled the said promotions. The salary was also fixed in the pre-
revised scale of Rs. 296/-.^^^

Consequently to the said orders dated 25-7-2003 necessary orders revising

salary in the lowest scale of Rs. 5000-8000 was fixed from 1-1-1996 and the excess
payment was also directed to be recovered ft-om him. Aggrieved by the order dated
25-7-2003, the Shiv Prasad Singh filed a writ petition. While examine the grievances
in the writ petition of Shiv Prasad Singh the learned Judge of the Patna High Court
took the view that the order passed by the appellant dated 25-7-1995 and directed the
appellant to show cause why he should not be punished for contempt. Thereafter, the
appellant, stated to have filed his reply and not being satisfied with the stand taken by
the appellant, the learned judge concluded that the conduct of the appellant in having
passed the order dated 25-7-2003 was in violation of the order dated 21-8-1995 and,
therefore, the said conduct of the appellant amounted to contempt of the order of the
court. The learned judge ultimately imposed the punishment of two months simple
•poo

imprisonment apart from payment of fine of Rs. 2000.

Supreme Court held in this case that the order of the learned single judge
impugned in this appeal discloses that instead of displaying such fair conduct before
the court, he appeared to have attempted to justify his action by restarting to an escape
route and stated to have offered his regret and unconditional apology as a last resort to
pardon him from being punished for any contempt action. The case on hand is one
such instance where the appellant who was a senior level IAS Officer with not less
than thirty years of experience in the state Administration came forward with a shame
and flippant statement that he did not understand the implication of the orders of the
High Court. In the light of the above conclusion Supreme Court did not find any
scope to interfere with the order of the learned single judge. But take into account the
age of the appellant, as submitted by the learned counsel appearing for the appellant,
honorable court are of the view that the simple imprisonment of two months alone
need not be retained. Therefore, impose a stem warning to be recorded as against the

- ' ' Ibid.

'^' !d. at p. 522.

300
appellant apart from confirming the imposition of fine of Rs. 2000 to be paid as per
the order of the learned judge of the High Court.

In Debendranath Nanda v. Chandra Shekhar Kumar}'^^ appellant working

as lecturer in Government aided institution becoming surplus. Order of the High
Court to considered his case for adjustment against vacant vacancy in Government
institution. Order though complied with at Government level but departmental
authorities neither gave him posting nor paid salary for years. Appellant though had
made out case of contempt but appellant has reached the age of superannuation can be
compensated by paying monetary benefits and contempt proceedings against erring
officials would serve no purpose. The contempt proceedings were dropped.

Supreme Court held that the copy supplied by the appellant relafion to various
orders issued by the Minister, School and Mass Education Department to the officer
concerned shows that at the Government level the grievance of the appellant was
properly taken care of and it is only at the Department level, the appellant was
dragged from here and there by one reason or the other without giving him the posting
at the appropriate place as directed by the Government. The appellant was dragged for
nearly 14 years and by afflux of time, appellant has reached the age of 60 years,
hence, as on date, there cannot be any positive direction for posting him at the
appropriate place. However, taking note of all the earlier order of the High Court,
Supreme Court is satisfied that the appellant is entitled for equivalent monetary
benefits as rightly observed by state government about the appellant's entitlement.
Supreme Court feel that no purpose will be served by taking action against the erring
officials, instead the appellant can be adequately compensated by way of monetary
benefits. Supreme Court direct the Commissioner-cum-Secretary, Higher Education
Department Bhubaneswar to assign suitable post to the appellant and corresponding
monetary benefits from the date on which the Department was asked to consider and
settle the same within a period of three months from the date of receipt of the copy of
judgment.

-*'' Id. at p. 523.

- ' " A I R 2013 S C 5 0 I .
" ' Id. al p. 506.

301
 In Sudhir Vasudeva, Chairman and MD, ONGC and others v. M. George
Ravishekaran and others,^'^^ the power vested in the High Court's as well this
Supreme Court to punish for contempt is a special and rare power available both
under the constitution as well as the contempt of courts Act, 1971, it is a drastic power
which, if misdirected, could even curb the liberty of the individual charged with
commission of contempt. The very nature of the power cases a sacred duty in the
courts to exercise the same with the greatest of care and caution. Courts must not,
therefore, travel beyond the fair comers of the order which is alleged to have been
flouted or enter into questions that have not been dealt with or decided in the
judgment or the order violation of which is alleged. Courts must also ensure that
while considering a contempt plea the power available to the court in other coirective
jurisdictions like review or appeal is not trenched upon. No order or directions
supplemental to what has been already expressed should be issued by the court while
exercising jurisdiction in the domain of the contempt law; such an exercise is more
appropriate in other jurisdiction vested in the court.

In the above mentioned case aggrieved by a direction of the Madras High

Court in exercise of its contempt jurisdiction to create supernumerary posts, this
appeal has been filed by the respondents in the contempt proceedings. The
respondents in the present appeal were engaged as Radio Operators on contract basis
in the Oil and Natural Gas Corporation Ltd., (hereinafter referred to as 'the
corporation'), a public sector undertaking, issued a notification under section 10(1) of
the contract labour (Regulation and Abolition) Act, 1970 employinent of contract
labour in various works in the Coi-poration, including the work of Radio Operators
was prohibited. A writ petition seeking a direction to the corporation to treat the
contract Radio Operators at par with the regular Marine Assistant Radio Operators
was pending before the High Court at that point of time. Subsequently, the Union
representing 56 number of contract employees engaged as Radio Operators instituted
another Writ Petition seeking the same relief

In Air India statutory Corporation and others v. United Labour Union and
otlters,^'^'* this court took the view that upon abolition of contract labour the persons

-'-AIR 2014 SC950.

-" Id.atp.951.
-'••AIR 1997 SC645.

302
engaged on contract basis became the employees of the principal employer and hence
entitled to regularization under the principal employer. The said view has been
subsequently dissented from, though prospectively, in Steel Authority of India Ltd.,
& others v. National Union Waterfront Workers and others. Following the
decision of this court in Air India Statutory Corporation and others the writ petitions
were allowed by a learned single judge of the Madras High Court. The Letters Patent
Appeal filed by the Corporation against the said order was dismissed. The mater was
carried to this court in special leave petition which was disposed with the following
direction: **

Following the order of this court in the Special Leave Petition the respondents
herein were absorbed as Junior Helpers with effect from 29-1-1997 by an order dated
2-4-1998. Their pay was fixed at the bottom of the basic pay of class IV employees of
the coiporation.

Thereafter a committee was constituted by the Ministry of Petroleum and

Natural Gas which recommended that the corporation is bound to absorb the entire
contract Radio Operators who had the requisite qualification in the post of Marine
assistant Radio Operators with effect from 8-9-1994 and in the pay scale applicable to
the said post as on 8-9-1994. As the aforesaid recommendations of the committee
were not being given effect to, the present respondents instituted another writ petition
seeking a direction for their absorption as Marine Assistant Radio Operators with
effect from 8-9-1994.^'"

By order dated 2-8-2006 the writ petition was dismissed of with the following
finding and operative directions:

"Considering the entire facts and circumstances of the case in the light of the
report of the committee, recommendafions made by the Ministry of Petroleum and
Natural Gas and the judgment of the Supreme Court in Air India Statutory
Corporation Case}'^^ court of the view that the absorption of the petitioners by the
respondents corporation as junior Helpers with the pay of Rs. 2282/- old bottom of
class IV Cadre was not fair and proper and certainly not in strict compliance of the

"'•' AIR 2001 SC 3527.

Supra note 292 at p. 951
''" Id. ni p. 952.
Supra note 294.

303
undertaking given by the respondent corporation before the Supreme Court. On the
other hand court is of the view that the petitioners are entitled to be absorbed as
marine Assistant Radio Operators." ^^^ The aforesaid order dated 2-8-2006 was
challenged by the corporation in writ appeal which was dismissed on 19-12-2006 with
a direction to the corporation to implement the order of the learned single judge dated
2-8-2006 within a period of four weeks from the date of receipt of a copy of the order.

Alleging non implementation and disobedience of the order dated 2-8-2006

contempt petition was filed before the High Court wherein the impugned direction for
creation of supernumerary posts of marine Assistant Radio Operator was made by the
order dated 19-1-2012. The said order has been affirmed by a Division Bench of the
High Court. Aggrieved by the said order, the appeal has been filed by the
corporation.

The Superior Court held that the direction of the High Court for creation of
supernumerary posts of Marine Assistant Radio Operator cannot be countenanced.
Not only the courts must act with utmost restraint before compelling the executive to
create additional posts, the impugned direction virtually amounts to supplementing
the directions contained in the order of the High Court dated 2-8-2006. The alternative
direction i.e. to grant parity of pay could very well have been occasioned by the stand
taken by the corporation with regard to the necessity of keeping in existence the cadre
itself in view of the operational needs of the corporation. Despite the specific stand
taken by the corporation in this regard the High Court was of the view that the
respondents should be absorbed as Marine Assistant Radio Operator nothing
prevented the High Court from issuing a specific direction to create supernumerary
posts of Marine assistant Radio Operator. The same was not done. If that be so, the
direction to create supernumerary posts at the stage of exercise of the contempt
jurisdiction has to be understood to be an addition to the initial order passed in the
writ petition. The argument that such a direction is implicit in the order dated 2-8-
2006 is self defeating. The issue is one of jurisdiction and not of justification of
relevance is the fact that an alternative direction had been issued by the High Court by
its order dated 2-8-2006 and the appellants, as officers of the corporation, have
complied with the same. They cannot be, therefore, understood to have acted in

" Supra note 292 at p. 9.'52.

''""id at p. 953.

304
willful disobedience of the said order of the court and courts of the view that the order
dated 2-8-2006 stands duly implemented. Consequently court set aside the order dated
19-1-2012 passed in contempt petition and allows the present appeal.^"'

In Nafis Ahmad and another v. Narain Singh and others, suit for
declaration of title decreed in favour of petitioners by Supreme Court on terms
enumerated in compromise petition. Petitioner alleging that in spite of such decree,
Patwari and Tehsildar entered name of respondent in suit property defying decree.
Respondent one of the legal heirs of deceased's who entered into compromise and
admitted ownership of petitioners. No willful disobedience on part of respondent as
alleged by petitioners. Contempt petition closed with liberty to petitioners to purse
appropriate remedy in law. The case of the petitioner is that they were put on
possession of the suit property pursuant to an agreement of sale with the owners on 3-
5-1950 and they filed suit for declaration of their title and permanent injunction on
12-7-1996 and the suit was decreed but on appeal it was reversed by the Appellate
court and the High Court confirmed the same in second appeal and the petitioners
preferred flirther appeal to this court in 2003 and during the pendency of the appeal
the matter was settled and a compromise petition under Order 23, Rule 3, CPC was
filed and this court disposed of the civil appeal on the terms enumerated in the
compromise petition, by judgment dated 10-12-2007 and the petitioners thus became
owners of the property. The petitioners have alleged that respondent No. 3 Ashiq Ali
was a respondent in the civil appeal before this court, admitting the title of the
petitioners to the suit property. But respondent No. 2, Tehsildar and respondent No.
1, Patwari have recorded the name of respondent No. 3, namely Ashiq Ali in the year
2011 defying the decree of this court.

Supreme Court held that the petitioners herein have compromised with the
legal heirs of deceased Nabbu Khan with the land in dispute and they admitted
ownership of the petitioners and undertook not to raise any objection in future.
Respondent No. 3, Ashiq Ali is the legal heir of original Respondent No. 2, in Civil
Appeal namely, Maseet Ali and he was impleaded as such in the appeal. The legal
representative Nos. 2(i) to 2(iv) of deceased original respondent No. 2, Maseet Ali did
not appear in the civil appeal though served and they did not enter into compromise

••"' Id., pp. 95.v9.56.

'"•'.MR 2014 SC956.

305
with the petitioners. The court disposed of the civil appeal declaring the rights of the
petitioners' vis-a-vis and the legal heirs of deceased Nabbu Khan on the terms of
compromise petition. In such circumstances there is no willful disobedience on the
part of the respondents as alleged by the petitioners. The contempt petition is,
therefore closed.^°^

Contempt jurisdiction has been utilized by the judiciary as an effective means

of enforcing its orders and directions even against the administrative authorities. Any
kind of disobedience of any judgment, direction or order is used to be punished
summarily by availing contempt jurisdiction. Non compliance of the order should also
be treated in the same manner as disobedience of the order. But if there is reasonable
ground because of which the concerned authority could not comply with the order, it
is the duty of the concerned authority to approach the court and get necessary orders.
Administrative authority has every right to take disciplinary proceedings against their
subordinates. But they have no right to interfere with the administration of justice.
Once the person has approached the court for redresses of grievances, any kind of
administrative action against the concerned person will interfere with the
administration of justice and thus result in contempt proceedings.

5.6 Sum up

The increasing use of contempt powers by the court is a warning beacon,

signifying the need for urgent introspection to find out if there is some shortcoming
somewhere that people are not satisfied with the justice which is being imparted to
them. Yet it should not be forgotten that frequent attacks on the dignity of the courts
would shake the very foundation of the judiciary. Judges have to perfomi quite often,
responsible yet disagreeable duties, they must be given utmost protection. The honour
of the judges and the judiciary, the state institution through which the judges are
supposed to serve the people is prompted and protected by the openness of the judges
and the judiciary to criticism. At the same time, the court should not be over or
hypersensitive and should not exercise this jurisdiction upon a mere question of
propriety or an exaggerated notion of the dignity of the judges and must act with
dispassionate dignity and decorum. With great power comes great responsibility, and
hence, the higher judicial echelons must exercise the potent power of contempt with

"''•' Id. ai p. 957^

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careful deliberation and serious circumspection to ensure that civil liberties are not
unjustly trampled. It depends entirely on how the actions of the judges and the courts
are perceived by the people.

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