Contempt of court and professional

ethics
Introduction
This article deals with the law of contempt and why the concept of criminal
contempt is criticised. It also deals with the ethical conduct of an advocate
towards the court and should the subjective determination as to what
constitutes criminal contempt be treated as a violation of ethics in the legal
profession. The article further discusses the decision of the Supreme Court on
adv. Prashant Bhushan’s tweets which were allegedly “Scandalising the
authority of the court” and views of legal experts on it.

What is contempt of court

Article 129 declares that the supreme court as a “Court of record” and that it
shall have all the powers of a court of record including the power to punish for
its contempt of itself.

Further Article 142(2) empowers the Supreme Court to investigate and punish
for any contempt of itself i.e. contempt of Supreme court of itself.

Similarly, Article 215 declares High courts as a “Court of record” and that it shall
have all the powers of such a court including the powers to punish for contempt
for itself.

Power to punish for contempt of both the High court and the Supreme Court has
been given by the Constitution as well as by Contempt of Courts Act, 1971.

Contempt of Courts Act, 1971 does not define what is contempt, it simply
explains the types of contempt: Civil contempt and Criminal contempt.
Importance of contempt of court
Contempt in law means being disobedient to a court of law or towards it ruling.
The recognition of contempt of court and to punish for contempt is essential for
a nation such as India which is based on the concept of rule of law, which
requires supremacy of law, since the judiciary is considered, as the last bastion
of hope and justice for the citizens of any nation.

According to the Supreme court bar association v. Union of India (1995), The
object of punishment is both curative and corrective and these coercions are
meant to assist an individual complainant to enforce his remedy and there is
also an element of public policy for punishing civil contempt since the
administration of justice would be undermined if the order of any court of law is
to be disregarded with impunity.

Kinds of contempt of court

The Contempt of courts Act, 1971 (hereinafter “1971 Act”) regulates the
contempt of court and provides for 2 types of contempt.

● Civil contempt [Section 2(b)]

According to section 2(b), civil contempt means wilful disobedience of any
judgement or a decree of a court or a wilful breach of any undertaking given to
a court.

The definition of civil contempt is simple enough for a reasonable man with
ordinary prudence to conclude as to what action will constitute civil contempt.
Determination of civil contempt is objective and is not based on the subjective
understanding of anyone. If there is a judicial order and if such order has been
wilfully disobeyed then that fact of disobedience will constitute civil contempt.

● Criminal contempt [Section 2(c)]

Section 2(c) defined criminal contempt as the publication of any matter which
either Scandalises or lowers the authority of the court, or that such matter
interferes or prejudices any judicial proceeding, Interferes or obstructs the
administration of justice in any manner. Further, an act or publication will
constitute contempt if it even tends to scandalize the authority of the court or it
tends to interfere with any judicial proceeding or administration of justice.

The expression “scandalizes the authority of court” depends to a great degree

on the discretion of the judge as no law in India has defined what constitutes
scandalizing the court. Proceeding for criminal contempt has been initiated
against citizens even for criticizing the Judges of Supreme court and high
courts.

Dicey writes in his Law of the Constitution “wherever there is discretion there is
room for arbitrariness”.

Relationship between contempt of court and

courts being the court of record
Both the High court and Supreme court are courts of record and as a court of
record, they have the power to punish for contempt of itself respectively as well
as contempt of courts which are subordinate to it.

Nigel Lowe and Brenda Suffrin in the Law of Contempt (3rd edition), have
explained that the jurisdiction and power of the court of record write that
contempt jurisdiction of courts of record forms part of their inherent jurisdiction,
all courts of record have the power to punish for contempt committed in their
face, but the inherent power to punish for contempts outside the courts reside
only in superior courts of record.

In Re: Vinay Chandra Mishra v. The Unknown (1995), the Supreme court said
that contempt jurisdiction of the superior court is not based on law, but it is
inherent in the court because it is a court of record. Thus power to contempt
resides in the Supreme Court and High courts because they are deemed as a
court of record by the constitution.
Role of ethics in the contempt of court and
analysis of criminal contempt of the courts
As stated earlier, the determination of what constitutes criminal contempt is
very subjective and overly-broad. Law is said to be overly-broad when its
language is such that it restricts even speech that is and should be
constitutionally protected like free speech, legitimate criticism. There are no
specific rules or circumstances which could justify criminal contempt.

According to Fali S Nariman “Criminal contempt has fallen into disuse in most of
the civilised countries around the world, but not in India”.

The legal profession is a noble profession and advocates are considered as

officers of the court and the nobility of the legal profession is ensured by
complying with the code of conduct laid down by the Advocate’s Act.

Chapter 2 Part V of the Bar Council of India rules provides the code of ethics
which is to be followed by advocates. A part of the rules deals with the
Advocate’s duty towards the court. For the purpose of this article rules which
are important include:

● Advocate has to keep in mind the dignity of the judge.

● It is the duty of the advocate to perform his function in such a manner
that due to his acts the honour and integrity of the court are not
affected.

According to Chief Justice Marshall, the fundamental aim of Legal ethics is to

maintain the honour and dignity of the law profession.

However, what acts constitute to mar the dignity of courts and judges is not
specified and this has been criticized by many imminent lawyers. A fundamental
question arises, whether criticizing the judge in his personal capacity amounts
to an act, which is against the ethics of the legal profession and scandalizes the
authority of the court.
According to Dushyant Dave (President, Supreme Court Bar association) in
response to contempt proceeding against imminent Human rights lawyer
Prashant Bhushan, scandalizing a judge as a Judicial officer is different from
scandalizing the judge as an individual”.

Criticism of judges according to eminent jurists around the globe ought not to
be considered as a violation of ethics towards the court. As the former Chief
Justice Gajendragadkar said:

“We ought never to forget that 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, would not help to sustain the dignity
or status of the court, but may sometimes affect it adversely”.

It must be kept in mind that justice is not a cloistered (closed) virtue, and it
must be allowed to suffer scrutiny since this is the essence of democracy.
Criticizing judges or even the court as an institution is the essence of democracy
and suppressing it under the garb of contempt casts a chilling effect on the free
speech of an advocate. Higher judiciary has unbridled power in deciding what
constitutes criminal contempt. The initiation of contempt proceeding against
Advocate Prashant Bhushan has been criticised not just by his fellow advocates
but also retired judges and free speech activists.

To criticize a judge is a necessary right. Justice Markendey Katju said in a 2007

lecture on Law of contempt.

“If a person calls me a fool, whether inside the court or outside court, I for one
would not take action as it does not prevent me from functioning.”

According to Arun Shourie and Adv. Prashant Bhushan, Scandalising the

authority of the Court under Criminal Contempt, violates freedom of Speech and
is manifestly arbitrary. According to them, the language is vague enough to
encompass within its sweep legitimate criticism as well, thus violating the
Doctrine of Overbreadth. For them, it is rooted in colonial assumption and
objects and has no place in a democracy.

Further, if any comment is made against an individual judge, it must be

ascertained whether it interferes with the administration of justice or impairs a
judge in the adjudication process. This is because under section 13 of Contempt
of Courts Act,1971 a person cannot be punished for Contempt unless the act
“substantially interferes with the due course of Justice”. In P.N. Duda vs. V. P.
Shiv Shankar & Ors. (1988), the court stated that criticism of the court that
does not hamper the administration of justice cannot be punished as contempt.
The Supreme Court has repeatedly held that when a court exercises the power
of criminal contempt, it does not do so to vindicate the dignity and honour of
the individual judge who is personally attacked or scandalised but to uphold the
majesty of the law and the administration of justice.

In the context of Contempt proceedings against Advocate Prashant Bhushan,

prof. Faizan Mustafa says that “Public confidence in the judiciary is strengthened
not by resort to contempt powers but by orders and judgement”. Lack of clarity
on what constitutes as scandalous and lowering the dignity of court and
discretion of Judges over it can curb legitimate criticism. The focus must be on
dealing with Civil contempt. According to Indian Judiciary Report (2016-17), The
High Courts have 96,310 Civil Contempt cases, compared to Criminal Contempt
which was 586.

Punishment for contempt of court

Article 129 and 215 empower the Supreme court and the High courts to punish
its contempt.

Accordingly, Section 12 of the Contempt of Courts Act, 1971 provides for

punishment for contempt of court. It incorporates the type and extent of
punishment which the courts can give for contempt.

According to section 12 contempt may be punished either by simple

imprisonment of 6 months or a fine of Rs. 2000 or both. The further section
makes it clear that the punishment for contempt cannot exceed the 6-month
imprisonment and fine of Rs 2000. Thus this is the maximum punishment which
the courts can give for contempt.

Further section 12 also states that imprisonment should only be imposed if it is

necessary to do in the interest of justice. In Smt. Pushpaben and another vs.
Narandas V. Badiani and another3 the supreme court said that the Contempt of
Courts Act, 1971 confers special power on the court to impose imprisonment
and the court must give a special reason with a proper application of mind while
giving a sentence of imprisonment. It further said that the Sentence of a fine is
the rule while imprisonment is an exception.

In the Supreme Court bar association v. Union of India said that for imposing
imprisonment, the contempt has to be serious enough and that it must consider
the likelihood of interference with the administration of justice. Culpability of the
offender and that the intention for the act of contempt is a crucial factor while
considering imprisonment as punishment for contempt.

Further according to section 10 of the Contempt of Courts Act, 1971, the High
courts have the jurisdiction and authority to punish for the contempt of courts
subordinate to it as well.

Scope of punishment for contempt of courts

The Supreme Court in Supreme court bar association v. Union of India (1998)
discussed the power of courts to punish for contempt. It said that although
parliament or state legislature has the power to make law in contempt of court,
such legislation cannot denude, abrogate or nullify the power of the supreme
court to punish under article 129 or vest that power in some other court. This, it
said because the Supreme Court is a court of record and being a court of record
it has an inherent power to punish and no law can take away this inherent
jurisdiction (power) of a court of record. In simple words, it means that the
Supreme Court and the High Court being courts of record, no law can take away
the inherent jurisdiction.

It further differentiated between the power of the High court and that of the
Supreme Court to punish for contempt. It said that 1971 does not deal with the
power of the Supreme Court to punish for contempt of itself and only article
142(2) and 129 deals with it. This is because in the definitions clause of the
Contempt of Courts Act, 1971 there is no mention of the Supreme Court and as
the Supreme Court said that section 15 only deals with the procedure by which
the Supreme Court can take cognizance of an act of contempt. Thus it said that
the nature of punishment under Contempt of Courts Act, 1971 may act as a
guide for the supreme court but the extent (quantum) of punishment under the
act can apply only to the High courts. This is because according to the court,
the1971 act ipso facto does not deal with the contempt jurisdiction of the
supreme court.

Court supported this ratio by relying on another judgement Sukhdev Singh v.

Hon’ble C.J.S. Teja Singh & Ors (1954). In which it said that maximum
punishment which can be imposed on a contemnor must be construed as
dealing with the powers of the High court only and not the Supreme Court. Thus
the scope of power to punish for contempt of Supreme court is not limited by
the Contempt of courts act, 1971.

Punishments that can be given to an advocate

under the Advocates Act, 1961 for professional
misconduct

In Re: Vinay Chandra Mishra, the Supreme Court suspended the licence of a
senior advocate on grounds of contempt of court. This decision was challenged
in the Supreme court bar association v. Union of India and was overruled. It
held that punishment for an established contempt of court committed by an
advocate could not include punishment to debar him from practice by
suspending his licence, which can only be done by the concerned State Bar
Council and the Bar Council of India, under the Advocates Act, 1961.

Punishment for professional misconduct under the

Advocates Act

Section 35 of the Advocates Act deals with professional misconduct. According

to it, when the State Bar Council of India receives a complaint about
professional misconduct, it shall transfer the disciplinary committee of the
concerned state bar council. However, Bar Council can transfer the case to the
disciplinary committee of any other State Bar council as well.

The disciplinary committee after the receipt of the complaint will give a chance
of hearing to the advocated, after that it may either:
 ● Dismiss the complaint, or if the proceedings were initiated at the
instance of the State Bar Council, directs that proceedings be filed; or
● Reprimand the advocate i.e. warn the advocate; or
● Suspend the advocate from practice for such a period as it deems fit;
or
● Remove the name of an advocate from the state roll of advocates.

Again it must be noted that only the Disciplinary committee has the power to
suspend the advocate from practice or remove him from the State roll of
advocate and the High court and Supreme Court cannot exercise its power to
punish for contempt to suspend or remove the advocate.

The Supreme Court states that the power of the Supreme court to punish for
contempt of court though wide is limited and cannot be expanded to include
whether an advocate is guilty of professional misconduct.

Defences available
Defences available to an advocate are given under section 3 to 8 of Contempt of
Courts Act, 1971.

According to Section 3 of the Contempt of Courts Act, 1971 innocent publication

and distribution of matter is not contempt. It says that a person is not guilty of
contempt for publication of any matters which interferes or may interfere with
the administration of justice if such person was not aware that the matter was
pending before the court.

Further, it says that any matter published relating to a civil or criminal

proceeding will not constitute contempt if such proceeding is not pending before
the court.

Knowledge about the pendency is an essential pre-condition for holding a

person guilty of contempt.

Therefore, a publication and distribution to be considered innocent under the

section must fulfil the following condition:
(i) The person accused of an offence, at the time of publication, had no
reasonable grounds to believe that the proceeding was pending.

(ii) The proceedings are not pending at the time of publication.

(iii) The person accused of distribution of the contemnous publication, had no

reasonable grounds, at the time of distribution of such material to believe, that
the publication contains contemnous matters or something which was likely to
be in contempt of court.

Under Section 4 a person is not guilty of contempt for “fair and accurate report
of a judicial proceeding”. This is crucial since every citizen has a right to know
about a judicial proceeding to the extent that it does not invade the privacy of
any party related to the proceeding.

The judicial proceeding for the purpose of section 4 means day to day
proceeding of the court.

Purpose of this section can be said to be the basic principle of any legal system
that justice should be administered in public. All common law countries follow
the maxim Ignorantia Juris non-excusat which means ignorance of the law is no
excuse. Reporting of judicial proceedings can be said to act as a remedy for this
principle.

Under Section 5, fair criticism on the merits of any case that has been finally
adjudicated does not constitute contempt. Fair criticism can be said to be
criticism which does not have any malicious intent or done without any
reasonable justification. In Re: S. Mulgaokar vs. Unknown (1978) Court held
that judiciary cannot be immune from fair criticism, and contempt action is to
be used only when an “obvious misstatement” with “malicious intent” seeks to
bring down public confidence in the courts or seeks to influence the courts.

In Radha Mohan Lal v. Rajasthan High Court (2003), the court held that:

advocacy touches and asserts the primary value of freedom of expression. It is

a practical manifestation of freedom of speech.
This section embodies in itself the essence of free speech under Article 19 of the
constitution and freedom of the press.

Under Section 6 any statement made in good faith concerning a presiding officer
will not make a person guilty of contempt.

Under Section 7 fair and accurate reporting of a proceeding of a court “in

chambers or in the camera” is not contempt except when the publication of
publication is prohibited by a specific law or when the court on grounds of public
policy specially prohibits the publication of a proceeding or if court prohibits
publication on the ground of “public order” or “the security of the State” or
when the information relates to a secret process, discovery or invention which is
an issue in the proceedings.

Section 4 deals with reporting of any judicial proceeding before the court,
whereas Section 7 specifically deals with processing either in the chambers or
in-camera proceeding. In-camera proceedings are court proceedings conducted
in private in the absence of public and press.

Further Section 8 says that any other bona fide and valid defences cannot be
held to be invalid just because such defences are not available merely because
of the provisions of Contempt of Court Act, 1971.

The Prashant Bhushan case

In Re: Prashant Bhushan & Anr., the Supreme Court held Senior Advocate
Prashant Bhushan guilty of Contempt. It held the 2 tweets by the Senior
Advocate to be in Contempt of court because it scandalised the authority of the
court. The court relied on the judgement given in Brahma Prakash Sharma And
Others vs. The State Of Uttar Pradesh (1953) in which it ruled that scandalising
the court is when there is an attack on an individual judge or the court as a
whole with or without reference to particular cases, casting unwarranted and
defamatory aspersions on the character of the judges. This according to the
court is necessary because it creates distrust in the mind of the people and
“impairs the confidence of people in the courts which is of prime importance.
It further relied on the judgement given in C. K. Daphtary & Ors vs. O. P. Gupta
& Ors (1971) in which it ruled that any publication which was calculated to
interfere with the due course of justice or administration of the law would
amount to Contempt of Court. It said that a scurrilous attack on a judge, for a
judgement or past conduct, has in our country the inevitable effect of
undermining the confidence of the public in the judiciary and if confidence in
judiciary goes, administration of justice definitely suffers.

● According to the court, the first part of the Tweet stated that, “At a
time when he (Chief Justice) keeps the Supreme Court in lockdown
mode, denying citizens the Fundamental Rights to access to justice.”

Court held this to be contemptuous because according to the Court the tweet
criticised the Chief Justice of India in his capacity as the Chief Justice of India
and not as an individual. The court ruled that the tweet had the tendency to
shake the confidence of the public in the Judiciary and this according to the
Court undermines the dignity and authority of the administration of Justice.

It further said that an attack on the Supreme Court not only reduces the
confidence of an ordinary litigant but also of other judges in the country in its
highest Court.

● The Court for his 2nd tweet court said that the tweet gives the
impression that the Supreme Court has played a particular role in the
destruction of democracy in the last 6 years and this according to the
Court is the criticism of Judiciary as an institution and shakes the faith
of the people in the Judiciary.

The court ruled that an attempt to shake the foundation of Constitutional

democracy i.e. the Judiciary has to be “dealt with an iron hand”. For the Court,
the tweets have the effect of destabilising the Foundation of Indian Democracy.

Conclusion
Civil contempt is necessary as wilful disobedient litigants who ignore the orders
of the court cannot be let-off otherwise it would seriously affect the
administration of justice and trust of people in the judiciary. Trust, faith and
confidence of the citizens in the judiciary is sine qua non for the existence of
Rule of Law. However, criminal contempt according to experts should be
rationalised if not completely removed from the statute. This is because it has
the tendency to be used to curb Freedom of Speech and expression under
Article 19 of the Indian Constitution. According to Arun Shourie and Adv.
Prashant Bhushan “Scandalising the authority of Court” under Criminal
Contempt, violates freedom of Speech and is manifestly arbitrary. According to
them, the language is vague enough to encompass within its sweep legitimate
criticism as well, thus violating the Doctrine of Overbreadth. For them, it is
rooted in colonial assumption and objects and has no place in a democracy.