"Committals for contempt by scandalising the court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them." This observation by Lord Morris in a judgment he delivered in 1899, is more relevant today given the development that journalist-writer-lawyer trio has approached the Apex Court challenging constitutionality of criminalization of 'scandalization the court'.
These observations by Lord Morris were noticed by the Indian Supreme Court in the year 1953 [Brahma Prakash Sharma And Others vs The State Of Uttar Pradesh AIR 1954 SC 10] while it delivered a judgment in an appeal against the Allahabad High Court order which held six lawyers guilty of contempt of court for "scandalising the court". In that case, the lawyers, who were members of the Executive Committee of a District Bar Association, were held guilty of contempt for passing a resolution relating to the conduct of two judicial officers. However, accepting the apology tendered by them, the High Court directed them to pay costs. But the lawyers assailed this order before the Supreme Court. The Attorney-General supported their case and contended that any act or publication which is calculated to lower the authority or dignity of a judge does not per se amount to contempt of court. The legislation which was then in force was Contempt of Court Act, 1926. Referring to the history of 'contempt law', the court observed that an act or publication which "amounts to scandalising the court itself" is one kind of contempt.
UK Law Commission Report of 2012
The origin of 'scandalizing the court' form of contempt is attributed to an English Judge, Lord Hardwicke L. C. who in his judgment in 1742 stated that one kind of contempt is scandalising the court itself. 270 years later, the UK Parliament undid this. The Indian Supreme Court in 1953 recognized this form of contempt when it observed thus: "This scandalising might manifest itself in various ways but, in substance, it is an attack on individual judges or the court as a whole with or without reference to particular cases, casting unwarranted and defamatory aspersions upon the character or ability of the judges. Such conduct is punished as contempt for this reason that it tends to create distrust in the popular mind and impair the confidence of the people in the courts which are of prime importance to the litigants in the protection of their rights and liberties." 18 years later, the Parliament gave these observations a statutory colour. In 2018, the Law Commission refused to follow its UK Counterpart and reported that it is necessary. Now, it is for the Supreme Court of India to decide whether the colonial concept which hampers free speech should still be retained in the Statute and law? Will it review the recognition given by the Constitution Bench to the 'scandalisation of court' form of contempt?