Last week, a judge of the Andhra Pradesh High Court, displeased with an advocate appearing before him, censured the lawyer and ordered that he be kept in police custody for twenty-four hours. The viral video demonstrated that the bench’s displeasure was sufficient for such adverse actions. We saw no evidence of a formal hearing or reasoning by the court.
The order was subsequently recalled but it revived an old question: Why does Indian law empower a court to punish criticism and perceived disrespect of itself?
The answer lies in criminal contempt law—a vague and exceptional power that sits uneasily with liberal democracy. From the conviction of Prashant Bhushan in 2020 for two tweets, to the Supreme Court’s ban of an NCERT Class 8 textbook chapter and the debarment of its authors from being beneficiaries of public funded projects earlier this year, it is generally recognised that criminal contempt powers have a chilling effect on public discourse, or more precisely, public critique of courts. We revisit some basic questions here: What, precisely, is wrong with the law itself? How have the courts applied it? What have other countries done and why is it not as simple as it looks? What is our way ahead?
Disobedience vs disrespect
Contempt of court powers are meant to punish people who disobey a court’s orders or obstruct the administration of justice by judges. For example, refusing to pay a party their dues as per a court’s judgment, lying on oath or physically obstructing a judge from entering the court’s premises are all conduct that would trigger ‘contempt of court’ powers in several parts of the world. The Contempt of Courts Act 1971—Indian contempt legislation—goes far beyond punishing disobedience of court orders. It also criminalises speech that “scandalises” courts or even merely “tends to” lower their authority.
That phrase—“tends to”—is the heart of the problem. It sets such a low threshold that almost any sharp criticism of judges can potentially invite contempt proceedings.
One step deeper: Why should it matter, as a matter of law, that a court’s reputation is lowered or its authority scandalised? The honest answer is that the judiciary derives its standing entirely from public trust. Unlike the executive, courts have no enforcement machinery of their own. Unlike the legislature, they have no electoral mandate. Their orders are obeyed because people believe, on the whole, that those orders are legitimate. Undermine that belief, the argument goes, and the entire edifice of adjudication collapses. While this concern is legitimate, the method chosen to protect the institution is more problematic than the problem itself.
Also read: From detailed disclosures to bare statements—questions grow over SC collegium’s transparency push
The rule of law problem
The law which criminalises conduct that “tends to scandalise or lower” the authority of the court suffers from three well recognised rule of law related problems.
First, a core tenet of liberal democracies is the diffusion of authority through the separation of powers. The law-giver, the arbiter, and the executor are kept separate. In criminal contempt proceedings, courts are all three at once. They define what conduct offends them, they adjudicate whether it has occurred, and they administer the punishment. Criminal contempt creates an unusual concentration of power. The court decides what offends it, decides whether contempt occurred, and decides the punishment. In almost every other context, courts insist that nobody should judge their own cause. In contempt law, when the court is the aggrieved party, that principle is silently suspended.
Second, rule of law demands not just the supremacy of law over arbitrary power, but also certainty. The citizen must be able to know, in advance, what the law requires of them. A few years ago, in the case of Shreya Singhal v. Union of India, deciding the fate of Section 66A of the IT Act, the Supreme Court applied what it described as the “void for vagueness” doctrine. The question it asked was whether the average person could reasonably understand, in advance, what conduct the provision prohibited. Words like “annoyance” and “inconvenience” in that section, the court found, were too indeterminate to serve as the basis of a criminal charge. The court struck the provision down. If a law is so vague that the citizen cannot tell the criminal act from the lawful one, the law does not deter crime, instead it deters conduct generally. The “tends to scandalise” standard in criminal contempt is at least as indeterminate as “causes annoyance” in Section 66A.
Third, there is non-uniformity in outcomes as well. Consider Prashant Bhushan’s case from 2020. He was convicted and fined one rupee for tweets that were, in the court’s opinion, factually inaccurate. In contrast, the NCERT chapter writers, whose work was part of a government-mandated curriculum exercise and drew on documented survey data and an accurately reproduced quote from an ex-Chief Justice, were debarred from any publicly-funded assignment without a hearing.
The inconsistency in outcomes creates a chilling effect, even when the punishment may be as light as a Rs 1 fine or potential debarment.
To gather insights from some lesser-known instances, we sampled 12 cases from the Bombay High Court, with at least one order that reveals something of the underlying facts that triggered contempt. Eight among them remain pending as of the time of writing. On average, these cases have been pending for over 804 days. The instances that triggered the court’s suo motu powers range from fabricated compensation claims filed in collusion with an investigating officer, to an advocate’s press conference making allegations of “forgery” and “judicial dishonesty” against a sitting judge. In one instance, a litigant who sent private text messages to her own lawyer describing a hearing as a “set-up” and the judge as “prejudiced” was booked for criminal contempt. In another, a contemnor circulated a written document alleging that a “dog mafia” had infiltrated the judiciary and that democracy was being crushed by judges who favoured dog feeders over the rule of law—the court found this to be a “well-thought-out design” to bring the judiciary into disrepute, rejected the subsequent apology as “crocodile tears,” and sentenced the contemnor to seven days’ imprisonment and a fine of Rs 2,000.
In instances such as the advocate’s press conference—the Court’s response was to direct YouTube and a television news network to take down the offending videos immediately, restraining any re-publication for the duration of proceedings. Sometimes the court’s sole demand seems to be an unconditional apology. Of the 12 cases with substantive orders, only one has been formally held in contempt. The rest either remain pending or were dismissed.
The judiciary is neither the only institution whose legitimacy is predicated on public trust, nor is it the most important institution of that kind. The Election Commission of India is a constitutional body whose proper functioning is the precondition of every other institution’s democratic legitimacy. And yet there is no provision that criminalises speech that “tends to lower” the ECI’s authority in the public mind. The question of why the judiciary alone requires this protection, among all institutions whose public trust is constitutionally indispensable, has never received a satisfactory answer. Why at all does this law then continue to exist?
Also read: Criticism or contempt: Supreme Court eye should be on govt, not Prashant Bhushan’s tweets
What other democracies did
The Law Commission that reviewed the Contempt of Courts Act in 2018, chaired by Justice BS Chauhan noted that England, the jurisdiction from which India inherited this law, explicitly abolished the “scandalising the court” offence in 2013 through the Crime and Courts Act. The Commission noted that no prosecution had been brought under that head in England since 1931. Its observation was meant to distinguish India, where the power continues to be invoked.
While speaking of the possibility of similar reform in India, the Commission also made the observation that UK’s Public Order Act 1986 and its Communications Act 2003 were understood to fill the gap left by the contempt law. India has a comparable position. Civil contempt covers wilful disobedience of orders. While the other two limbs of criminal contempt cover interference with specific judicial proceedings, criminal defamation under the BNS, where applicable, covers false statements that injure reputation.
However, even if the Parliament amended or repealed the Contempt of Courts Act entirely, using its authority under Item 77 of the Union List in the Seventh Schedule, the power would survive in the High Courts and the Supreme Court. They derive contempt powers from Articles 129, 215 and 142(2) of the Constitution. Repealing it with totality will require a constitutional amendment, which in turn, is susceptible to constitutional challenge—only to be adjudicated by the very courts whose limits of power are in question.
The path ahead
India’s contempt law survives not because its principles are compelling, but because its constitutional position makes reform unusually difficult. Parliament alone cannot solve the problem.
That leaves the burden on the judiciary itself. The most meaningful reform would not come from more prosecutions, but from courts consciously choosing restraint—treating vague contempt powers as exceptional relics rather than routine tools of institutional defence.
Democracies do not strengthen courts by shielding them from criticism. They strengthen them by ensuring that criticism can coexist with legitimacy.
Bhargavi Zaveri-Shah is the co-founder and CEO of The Professeer. She tweets @bhargavizaveri. Gokul Sunoj is an associate at The Professeer. He tweets @GokulSunoj. Views are personal.
(Edited by Theres Sudeep)