N4S
This article helps you clearly understand the power boundaries between the legislature and the judiciary, especially in the context of contempt of court and judicial review. UPSC often picks such complex, ongoing debates and frames open-ended, analytical questions around them. For instance, a question like “The Supreme Court checks arbitrary parliamentary power” demands that aspirants critically analyse constitutional boundaries, institutional roles, and recent judgments. However, many aspirants falter by presenting emotional arguments instead of structured reasoning. Some avoid using real-life examples, which weakens their answers. This article addresses all of that. It uses actual cases like Prashant Bhushan, Justice Karnan, and the Salwa Judum verdict to anchor theoretical principles in real events. One standout feature of this article is the section “Should the contempt provision be retained?” which walks you through the constitutional basis, global comparisons, and legal safeguards in a way that is directly useful in the exam.
PYQ ANCHORING
GS 2: The Supreme Court of India keeps a check on arbitrary power of the Parliament in amending the Constitution. Discuss critically. [GS 2]
Microtheme: Judiciary Vs Legislature
The Supreme Court has clarified that simply passing a law, even if it contradicts a previous court order, cannot be deemed contempt of court. This ruling came in the context of a contempt petition concerning Chhattisgarh’s law that legalized auxiliary armed police (Special Police Officers or SPOs) despite an earlier Supreme Court directive to disband the “Salwa Judum” force.
The Court underlined that legislatures have full authority to enact or repeal laws. Even if they choose to override a court directive, such acts are not contemptuous, as long as the new law isn’t struck down under judicial review. This reinforces the doctrine of separation of powers, maintaining that courts interpret laws – but don’t veto legislative functions .
Upholding Separation of powers //mains
| Dimension | Judgment’s Contribution | Example |
| Legislative Supremacy in Lawmaking | Recognized that legislatures can make or amend laws, even if it affects a prior court judgment. | Chhattisgarh passed a law legalizing SPOs despite SC’s earlier Salwa Judum verdict. |
| Judicial Review, Not Contempt | Said that if a law is unconstitutional, the remedy is judicial review, not contempt of court. | Petitioners were told to challenge the Chhattisgarh law’s validity, not seek contempt action. |
| Prevents Judicial Overreach | Ensures courts do not punish legislatures for exercising their core function of lawmaking. | SC declined to hold the state legislature in contempt merely for enacting a new law. |
| Checks and Balances Maintained | Allows courts to strike down unconstitutional laws but not criminalize the act of legislating. | If the SPO law violates fundamental rights, it can be struck down, not treated as contempt. |
Issues with Contempt of Court
| Issue | Explanation | Examples |
| 1. Chilling Effect on Freedom of Speech | Contempt law can discourage individuals from voicing legitimate criticism of the judiciary, even when done in public interest. | Prashant Bhushan (2020): Held guilty for tweets criticizing the CJI and the judiciary’s handling of cases during the pandemic. His tweets were argued to be fair criticism, yet resulted in conviction. |
| 2. Vague and Broad Definition | The definition of criminal contempt includes “scandalising the court” and “lowering the authority of the court”, which are subjective and open-ended. | Arundhati Roy (2002): Faced contempt for her affidavit alleging bias in the court’s order against Narmada Bachao Andolan.Suo motu contempt proceedings are often triggered by media statements or articles critical of court judgments. |
| 3. Violates Natural Justice | Judges who feel aggrieved often sit on benches deciding contempt, raising conflict of interest concerns. | In Justice C.S. Karnan case (2017), the Supreme Court initiated contempt against a sitting High Court judge and sentenced him to jail—he was denied legal representation and hearing on merits. |
| 4. Limited Right to Appeal | After conviction for criminal contempt, the only recourse is a review petition, usually heard in chambers by the same judges, with no guaranteed oral hearing. | Prashant Bhushan’s review plea (2021) was rejected in chambers without an oral hearing, despite public debate and support for open justice. |
| 5. Executive Paralysis / Misuse | Fear of contempt may lead government officers to over-comply with court directions or hesitate in exercising discretion. | In UP police encounter cases, officials reportedly hesitated in following SOPs for fear of judicial reprimand.Delhi sealing drive: Municipal officers rushed action fearing contempt of Supreme Court orders, often at cost of public order and process. |
| 6. Outdated in Global Context | The offence of “scandalising the court” has been abolished in many democracies as inconsistent with freedom of speech. | UK abolished it through the Crime and Courts Act, 2013. In R v. Gray (1900), this was a valid offence, but modern courts in US, Canada, and NZ now permit robust public scrutiny of judges and courts. India still uses this colonial-era tool. |
Should the contempt provision be retained?
The recent judgement is more than just a technical clarification. It establishes a constitutional norm: judges interpret laws, legislatures make laws, and neither should step into the domain of the other. This is especially relevant in the context of India’s contempt of court jurisprudence, which has long drawn criticism for various reasons.
In 2018, the Department of Justice asked the Law Commission of India to examine whether the Contempt of Courts Act, 1971 should be amended or diluted. After due consultation, the Law Commission concluded that the law should be retained, and offered the following reasons:
| Ground | Explanation | Example |
| Volume of Cases | A significant number of pending civil and criminal contempt cases shows that the law is still frequently used. | Numerous contempt proceedings in High Courts and the SC over non-compliance of orders. |
| Constitutional Source | The contempt power originates in the Constitution (not the Act). The 1971 Act merely outlines procedure, not substance. | Even if the Act is repealed, Articles 129 & 215 allow courts to punish contempt. |
| Subordinate Courts Protection | The Act allows High Courts to punish contempt of subordinate courts, a power not clearly provided by the Constitution. | If the Act is diluted, district courts may become vulnerable to interference without remedy. |
| Global Comparison | While the UK formally abolished “scandalising the court,” it remains punishable under other laws. India faces far more such cases. | UK’s last such case was in 1931, but India still regularly sees contempt cases. |
| Safeguards Exist | The Act has inbuilt filters, like requiring AG/SG consent for criminal contempt. Not every criticism is punished. | Courts routinely drop cases if intent to obstruct justice is absent. |
| Checks Judicial Overreach | Ironically, the 1971 Act helps discipline the courts by laying down procedures for contempt. Diluting it may give more arbitrary power. | Without statutory procedure, judges may exercise inherent contempt powers more broadly. |
Judicial Decisions to constitute Contempt of Court in India
- Interference with Administration of Justice: In Brahma Prakash Sharma v State of Uttar Pradesh, the Supreme Court had held that in order to constitute the offence of Contempt of Court, it was not necessary to specifically prove that an actual interference with administration of justice has been committed.
- Scandalizing the Court: In the case of PN Dua v Shiv Shankar and others, the Supreme Court held that mere criticism of the Court does not amount to contempt of Court.
- Vilification of the Judge : In the case of Baradanath Mishra v the Registrar of Orissa High Court judgement, the court said that in a contempt case the court has to ask whether the vilification is of the Judge as a judge, or it is the vilification of the Judge as an individual. If the latter the Judge is left to his private remedies and the Court has no power to commit for contempt.
- Interference with due course of Justice: In Pritam Lal v. High Court of M.P the Supreme Court held that to preserve the proceedings of the Courts from interference and to keep the streams of justice pure, it becomes the duty of the Court, to punish the contemnor in order to preserve its dignity.
Way Forward
- Narrow the definition of “scandalising the court”: Amend the Contempt of Courts Act to exclude fair criticism and clearly define what amounts to criminal contempt.
- Create a screening mechanism for contempt cases: Set up a panel (e.g. senior advocate or retired judge) to filter cases before courts take them up, especially in suo motu matters.
- Train judges to handle criticism democratically: Include modules on media literacy, democratic tolerance, and public accountability in judicial training programs.
- Protect subordinate courts through administrative mechanisms: High Courts should establish support systems for subordinate judges instead of relying only on contempt powers.
- Publish annual data on contempt cases: Courts should release regular reports on contempt filings, hearings, and outcomes to ensure transparency and public trust.
#BACK2BASICS: Contempt of Court //pre
Contempt of court refers to actions or behaviors that are disrespectful to, or that obstruct or interfere with, the administration of justice by a court. It protects the authority and dignity of the judiciary from acts that obstruct or interfere with justice.
Constitutional Basis:
The Supreme Court’s authority to penalize contempt – whether civil or criminal – stems directly from the Constitution itself:
- Article 129 declares the Supreme Court a court of record and grants it inherent power to punish for contempt of itself.
- Article 142(2) further empowers the Court to enforce its orders by punishing anyone in contempt of its decrees.
While the Contempt of Courts Act, 1971 and the 1975 Rules outline how contempt cases should be handled (like requiring AG/SG consent), they don’t actually provide the constitutional authority – the root power lies in the Constitution.
In the 2020 Prashant Bhushan case, the Supreme Court reaffirmed that even if certain legal procedures weren’t followed, its inherent constitutional power under Article 129 still permitted it to proceed – though it acknowledged contempt proceedings must still be conducted fairly. Additionally, during the Constitution drafting, Dr. Ambedkar ensured that this contempt power would be explicitly recognized under Article 129 to avoid future ambiguity.
Legal Definition
The Contempt of Courts Act, 1971 defines contempt; the 2006 amendment allows truth and good faith as defences.
- Types:
- Civil Contempt is the wilful disobedience of court orders.
Punishment: Offenders may face up to 6 months imprisonment, or a â‚ą2,000 fine, or both.
What Is Not Contempt: Fair reporting and genuine criticism of judgments after disposal are not considered contempt.
SMASH MAINS MOCK DROP
In India’s constitutional scheme, the legislature has the authority to make laws, while the judiciary has the power of review. Critically examine this separation of powers in light of recent judicial pronouncements on contempt of court and legislative supremacy.
