Criminal Contempt: Section 2(c) and Its Three Limbs

Facts. The Chief Minister of Kerala said at a press conference that judges are guided and dominated by class hatred and class interests, that they instinctively favour the rich against the poor, and that the judiciary is an instrument of oppression.

Held. Criminal contempt by scandalising the court. His plea that he was expounding a Marxist theory of the State did not save him. The fine imposed by the High Court was reduced.

The fullest discussion is Baradakanta Mishra v. Registrar of Orissa High Court, AIR 1974 SC 710, (1974) 1 SCC 374, decided 19 November 1973 by a Bench of five judges, A.N. Ray CJ with D.G. Palekar, Y.V. Chandrachud, P.N. Bhagwati and V.R. Krishna Iyer JJ, judgment by Palekar J, in which a judicial officer made allegations against the High Court. The Court examined when an attack on a court amounts to scandalising it, and the distinction between the judicial and the administrative acts of a High Court for contempt purposes. Note that there are four Supreme Court cases with that appellant's name; this is the one of 19 November 1973 against the Registrar of the Orissa High Court.

Modern instances.

In Re: Arundhati Roy, AIR 2002 SC 1375, (2002) 3 SCC 343, decided 6 March 2002 by R.P. Sethi J. A writer, in an affidavit filed in the Supreme Court, made statements imputing motives to the Court in relation to a pending matter, and defended them without apology. Held, criminal contempt by scandalising the court; sentenced to simple imprisonment for one day together with a fine, the absence of any apology being taken into account.

Rajendra Sail v. Madhya Pradesh High Court Bar Association, AIR 2005 SC 2473, (2005) 6 SCC 109, decided 21 April 2005 by Tarun Chatterjee J. An activist was reported in a newspaper as having said of a High Court judgment that it was rubbish and fit to be thrown in a dustbin, and the editor and others were also proceeded against. Held, criminal contempt, the Court dealing with the responsibility of the press as well as of the speaker, and with the weight to be given to a late apology.

In Re: Prashant Bhushan, Suo Motu Contempt Petition (Crl.) No. 1 of 2020, before Arun Mishra, B.R. Gavai and Krishna Murari JJ. Suo motu proceedings over two tweets concerning the Chief Justice of India and the Supreme Court. He was convicted on 14 August 2020, and on 31 August 2020 the Court imposed a fine of one rupee, in default three months' simple imprisonment and debarment from practice for three years.

The standing criticism, which a good answer states. The offence is vague; it makes the court a judge in its own cause; the truth of the allegation was for many years no defence at all, until section 13(b) was inserted in 2006; and it sits uneasily with Article 19(1)(a). The answer to the criticism is that the offence protects public confidence in the administration of justice, which no other remedy protects, and that the Act's defences confine it.

Limb (ii): prejudicing a judicial proceeding

"Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding."

The classic instance is the media trial: publishing material that prejudges guilt, publishing a confession before it is proved, or publishing material a jury or a witness may be influenced by.

The proceeding must be pending, and that is why the Explanation to section 3 defines when a proceeding is pending: a civil proceeding from the filing of a plaint or otherwise; a criminal proceeding from the filing of the charge-sheet or challan or the issue of summons or warrant, or otherwise when the court takes cognizance; and it continues to be pending until it is heard and finally decided, including until an appeal or revision is decided or the limitation for one expires.

Section 3 then supplies the defence of innocent publication where the publisher had no reasonable grounds for believing the proceeding was pending, and section 3(2) makes clear that publication about a matter not pending is not contempt at all.

The interaction is worth stating cleanly: limb (ii) bites only while a case is pending, and section 5 protects comment once it is finally decided. Between them they mark out when the press may speak.

Limb (iii): obstructing the administration of justice in any other manner

"Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner."

The residuary limb, and the widest.

Typical instances: threatening or bribing a witness; assaulting a party or a lawyer to stop him proceeding; preventing service of process; obstructing execution; abusing a judge in the courtroom so that the work cannot go on.

Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176, is a limb (iii) case in substance: police officers assaulted, handcuffed and tied with a rope a Chief Judicial Magistrate and photographed him. The obstruction there was to the administration of justice itself, and the Supreme Court held its power under Article 129 extends to contempt of the whole judiciary including subordinate courts.

Vishram Singh Raghubanshi v. State of Uttar Pradesh, AIR 2011 SC 2275, decided 15 June 2011, is a limb (iii) case involving an advocate whose conduct towards a court was found contumacious; it is best known for what it says about apologies, dealt with in chapter [Punishment for Contempt: Section 12].

Telling the limbs apart

A problem question is usually testing whether the candidate can name the limb. Use this test.

Is the attack on the court or the judge as such? Limb (i).

Is there a pending proceeding that the act may affect? Limb (ii).

Is it neither, but the work of justice is being obstructed? Limb (iii).

One act can fall in more than one limb, and often does. An article alleging that a judge has been bribed in a pending case both scandalises the court under limb (i) and prejudices the proceeding under limb (ii).

A worked example

Five publications about the same trial, which is pending.

One. A newspaper reports the evidence given in open court, accurately. Not contempt. Section 4 protects a fair and accurate report of a judicial proceeding, subject to section 7.

Two. The same newspaper prints an editorial saying the accused is plainly guilty and the trial is a formality. Limb (ii): it prejudices and tends to interfere with the due course of a pending judicial proceeding.

Three. A columnist writes that the trial judge takes money and has already been paid. Limb (i) and limb (ii) together: it scandalises the court and lowers its authority, and it prejudices the pending proceeding. On Namboodiripad, the protection is of the administration of justice, and the imputation of corruption is the paradigm case.

Four. A group threatens the principal witness with harm if she deposes. Limb (iii): obstructing the administration of justice, and no publication is involved at all, which is why the definition covers "the doing of any other act whatsoever".

Five. After the trial ends and the appeal period expires, a scholar publishes an article arguing the judgment is wrong in law and poorly reasoned. Not contempt. Section 5 protects fair comment on the merits of a case heard and finally decided, and by the Explanation to section 3 the proceeding is no longer pending.

Change one fact in five. Suppose the article says the judge decided as he did because he was bribed. Section 5 protects fair comment on the merits, not an imputation of corruption, so this returns to limb (i). Whether truth can be pleaded is section 13(b), and its two conditions are in chapter [What Is Not Contempt: Sections 3 to 9 and Section 13].

What beginners get wrong

Criminal contempt is not confined to publications. "Or the doing of any other act whatsoever".

Each limb is satisfied by a tendency. Actual prejudice need not be proved.

Scandalising is not criticism. Criticism of a judgment is protected by section 5; imputing corruption is not.

Limb (ii) needs a pending proceeding, and the Explanation to section 3 says when a proceeding is pending.

Limb (iii) is not a catch-all for rudeness. The act must interfere with or obstruct the administration of justice.

One act can fall in two limbs.

Quick revision

• Section 2(c): the publication of any matter, or the doing of any other act whatsoever, by words spoken or written, signs, visible representations or otherwise, which:
• (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court;
• (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding;
• (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
• "Tends to" in every limb: a tendency suffices.
• Limb (i): Namboodiripad, class hatred and class interests, an instrument of oppression, held contempt, the law protecting the administration of justice and not judges' dignity; Baradakanta Mishra, the fullest discussion and the judicial-administrative distinction; Arundhati Roy, one day's simple imprisonment and a fine, no apology; Rajendra Sail, "rubbish... fit to be thrown in a dustbin", with the press also proceeded against; In Re: Prashant Bhushan, two tweets, convicted 14 August 2020, fined one rupee on 31 August 2020.
• Limb (ii): needs a pending proceeding; the Explanation to section 3 defines pendency and its continuance until finally decided; section 3 gives innocent publication and section 5 protects comment once finally decided.
• Limb (iii): the residuary limb. Delhi Judicial Service Association, a Chief Judicial Magistrate assaulted and handcuffed; Vishram Singh Raghubanshi, an advocate's contumacious conduct.

Test yourself

1. Set out the three limbs of section 2(c). Scandalising or tending to scandalise, or lowering or tending to lower the authority of, any court; prejudicing or interfering or tending to interfere with the due course of any judicial proceeding; and interfering or tending to interfere with, or obstructing or tending to obstruct, the administration of justice in any other manner.

2. Must actual prejudice be proved? No. Each limb is satisfied by a tendency, the words being "tends to scandalise", "tends to interfere" and "tends to obstruct".

3. Is criminal contempt confined to publications? No. The definition covers the publication of any matter "or the doing of any other act whatsoever", by words spoken or written, by signs, by visible representations or otherwise, which is how conduct in a courtroom and threats to witnesses are caught.

4. What did Namboodiripad decide, and on what principle? That statements by the Chief Minister of Kerala that judges are guided and dominated by class hatred and class interests, instinctively favour the rich against the poor, and that the judiciary is an instrument of oppression, amounted to criminal contempt by scandalising the court. The principle is that the law of contempt protects the administration of justice rather than the personal dignity of judges, and that such an attack on the judiciary as an institution lowers its authority in the eyes of the public.

5. When does limb (ii) apply, and how is pendency determined? Only while a judicial proceeding is pending. By the Explanation to section 3, a civil proceeding is pending when instituted by the filing of a plaint or otherwise, and a criminal proceeding when the charge-sheet or challan is filed or the court issues summons or warrant, or otherwise when the court takes cognizance; and it continues to be pending until heard and finally decided, including until an appeal or revision is decided or the limitation for one expires.

6. Give the two main criticisms of the scandalising limb, and the answer to them. That the offence is vague and makes the court a judge in its own cause, and that truth was for many years no defence, until section 13(b) was inserted in 2006. The answer is that the limb protects public confidence in the administration of justice, which no other remedy protects, and that the statutory exceptions in sections 3 to 9 and section 13 confine it.