ExplainedLaw
Why the Supreme Court Bar needed the Attorney General's nod to pursue Sanjay Raut and Nikhil Wagle
On Friday the Supreme Court issued show-cause notices to the Shiv Sena (UBT) MP and the journalist over their remarks about the Chief Justice. The case could reach the court only after Attorney General R Venkataramani gave his consent. What contempt of court is, why that consent is needed, and what can happen next.
The short answer
Criminal contempt covers words or acts that scandalise or lower the authority of a court, or interfere with justice. Under Section 15 of the Contempt of Courts Act, 1971, the Supreme Court can act on its own, or on a motion by the Attorney General or Solicitor General; anyone else, such as the Supreme Court Bar Association, needs the Attorney General's or Solicitor General's written consent first. The rule is a filter against frivolous cases. The maximum punishment is six months in jail, a fine of ₹2,000, or both, and an apology the court accepts can end the matter.
What is contempt of court?
It is the power of a court to punish conduct that defies its orders or undermines its authority.
The Contempt of Courts Act, 1971 divides contempt into two kinds. Civil contempt is wilful disobedience of a court’s judgment, order or direction, or breaking an undertaking given to a court. Criminal contempt is publishing anything, or doing any act, that scandalises or lowers the authority of a court, interferes with a case, or obstructs the administration of justice in any other way. The words can be spoken or written, and can include signs and images.
The Constitution gives the power directly. Article 129 makes the Supreme Court a court of record with the power to punish contempt of itself, and Article 215 does the same for the High Courts.
Civil and criminal contempt
Why did the Supreme Court Bar need the Attorney General?
Because Section 15 of the Act lets a private party start criminal contempt in the Supreme Court only with the written consent of the Attorney General or the Solicitor General.
The section sets out three routes. The court can act on its own motion, known as suo motu. The Attorney General or Solicitor General can move the court directly. Anyone else must first get the written consent of one of them. For the High Courts the same job is done by the state’s Advocate General.
The Supreme Court Bar Association wrote to Attorney General R Venkataramani on Thursday 15 October, and he gave his consent the same day. In his letter he described the posts by Sanjay Raut and Nikhil Wagle as “prima-facie scandalous”.
What is the point of the consent rule?
To filter out frivolous and politically motivated complaints before they take up the court’s time.
Judges are criticised every day. Without a filter, any litigant or political rival could file contempt petitions against critics of the courts. The consent of the government’s senior law officer is meant to ensure that only serious cases come forward.
Attorneys General use this power both ways. In 2020 K K Venugopal agreed to contempt proceedings against the comedian Kunal Kamra and the cartoonist Rachita Taneja over posts about the Supreme Court, and refused consent in cases against the actor Swara Bhaskar and the then Andhra Pradesh Chief Minister Jagan Mohan Reddy.
Can the court act if the Attorney General says no?
Yes. The court can always take up a matter on its own.
A refusal largely ends a private party’s petition, but the person can still bring the remarks to the court’s notice and ask it to act suo motu, for which no consent is needed. The best-known recent example is the 2020 case against the lawyer Prashant Bhushan over two tweets, which the Supreme Court began on its own and in which it fined him one rupee. The Act also sets a time limit: proceedings must begin within a year of the alleged contempt.
Is criticising a judge contempt?
Not in itself. The Act and the courts protect fair criticism.
Fair and accurate reporting of court proceedings is not contempt, and nor is fair comment on a case once it has been decided. In a 1988 case involving remarks by the then law minister P Shiv Shanker, the Supreme Court held that criticism of the court alone does not amount to contempt. Since a 2006 amendment, truth is a defence if it is in the public interest and the claim is made in good faith. The courts have also said contempt should be used sparingly, and only where public confidence in justice is genuinely at risk.
The SCBA’s petition accepts this distinction. It says the remarks of Raut and Wagle “go beyond fair criticism”.
What happens now?
Raut and Wagle must reply to the show-cause notices, and the court will then decide whether to go ahead.
On Friday 16 October a bench of Chief Justice Surya Kant and Justice Joymalya Bagchi issued the notices and excused both men from appearing in person for now. Notice in a contempt case must be served on the person directly, and the case must be heard by at least two judges.
If the court proceeds and finds them guilty, the maximum punishment is simple imprisonment for six months, a fine of up to ₹2,000, or both. The court can also discharge a person, or remit the punishment, if it accepts an apology as genuine. Wagle has already apologised unconditionally and deleted his post. Raut had not responded publicly by Friday evening. The date of the next hearing is not yet known.