Why Reprimand or Fine — Not Imprisonment — Is the Normal Rule under Indian Constitutional Jurisprudence
Article authored by – Adv. Ishwarlal Agarwal, President, Supreme Court Lawyers Association
The recent sentencing judgment of the Hon’ble Supreme Court in Prashant Bhushan, In re did far more than merely impose a token fine upon a contemnor. It revived, reaffirmed, and restored to constitutional centrality a long-forgotten but binding principle of Indian contempt jurisprudence: namely, that in cases of criminal contempt by scandalisation, imprisonment is not the normal rule. The ordinary and constitutionally preferred course is reprimand, warning, or fine. Imprisonment is reserved only for the rarest and most exceptional cases involving physical obstruction, violence, or extraordinary abuse of judicial office.
Unfortunately, a large number of judges and advocates remain unaware of this binding sentencing jurisprudence. The consequence is that imprisonment in contempt matters is frequently sought, threatened, or occasionally imposed without proper consideration of the constitutional and statutory limitations governing contempt sentencing.
The Hon’ble Supreme Court itself had earlier acknowledged this systemic confusion in Bar Council of India v. High Court of Kerala, where it observed that no branch of law had been “more misconstrued or misutilised” than contempt jurisdiction.
The significance of Prashant Bhushan lies precisely in the fact that despite the Supreme Court itself characterising the allegations as among the gravest forms of scandalisation — attacks allegedly directed not merely against an individual judge but against the entire institution of the judiciary — the Court still declined to impose imprisonment and restricted punishment to a token fine of Re. 1/-.
That conclusion was not an act of charity. It was the application of binding constitutional sentencing principles.
The Forgotten Constitutional Framework
Indian contempt law exists at the intersection of two competing constitutional values:
- preservation of public confidence in the judiciary; and
- protection of free speech under Article 19(1)(a).
The Supreme Court has repeatedly held that contempt jurisdiction must be exercised with extreme restraint, constitutional discipline, and proportionality.
The constitutional foundations of this restraint originate in the Constitution Bench judgment of Brahma Prakash Sharma v. State of Uttar Pradesh.
In that case, members of a Bar Association had collectively passed a formal resolution describing judicial officers as incompetent, discourteous, and unfit to inspire confidence. Despite the institutional and deliberate nature of the allegations, the Constitution Bench held that the contempt, if any, was merely “technical contempt” and that no punishment whatsoever was warranted. Even the fine imposed by the lower court was set aside.
That judgment laid down one of the most important principles in contempt jurisprudence:
mere criticism, even harsh criticism, is not enough. Punishment becomes permissible only where there is real, substantial, and demonstrable interference with the administration of justice.
This principle was later codified by Parliament itself in Section 13 of the Contempt of Courts Act, 1971.
Section 13 expressly provides:
“No court shall impose a sentence under this Act unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere, with the due course of justice.”
The words “no court shall” are mandatory and jurisdictional. They are not advisory. The statute removes the power to punish unless the threshold of substantial interference is affirmatively satisfied.
Murray & Co.: The Controlling Authority on Sentencing
The leading authority on sentencing under Section 13 is Murray & Co. v. Ashok Kumar Newatia.
In Murray & Co., the Supreme Court held that technical contempt alone is insufficient to justify punishment. The Court emphasized that there must be substantial interference with the due course of justice before punishment may lawfully be imposed.
The Court approvingly quoted earlier authorities holding:
“It is not enough that there should be a technical contempt of court.”
Even more significantly, despite finding the contemnors guilty and refusing to exonerate them merely on apology, the Supreme Court still imposed only a modest fine and declined imprisonment entirely.
This became the controlling constitutional principle later reaffirmed in Prashant Bhushan.
What Prashant Bhushan Actually Decided
Much public commentary misunderstood the Prashant Bhushan case as merely an isolated act of judicial leniency. It was not.
The judgment is constitutionally significant because the Supreme Court expressly reaffirmed that sentencing in contempt must be governed by the principles laid down in Murray & Co.. At paragraph 74, the Court held:
“While sentencing, we have to act with objectivity in relation to the person and the actual effect…”
This sentence revived the forgotten constitutional test governing contempt sentencing.
The Court recognized two mandatory considerations:
- the actual effect of the alleged contempt upon the administration of justice; and
- objective proportionality in sentencing.
The Court also recorded several aggravating factors against Adv. Prashant Bhushan:
- refusal to apologise;
- persistence in his stand;
- repeated publicity to the statements;
- interviews on sub judice matters;
- allegations against the entire institution of the Supreme Court; and
- conduct considered by the Court to be highly serious.
The Court expressly observed that:
- the allegations were among the gravest forms of contempt;
- a mere warning would not suffice;
- the contemnor showed no remorse; and
- imprisonment was legally available.
Yet, after considering all those aggravating factors, the Court still imposed only a nominal fine of Re. 1/- and consciously declined imprisonment, invoking “magnanimity” and constitutional restraint.
That is the true constitutional significance of the judgment.
The Real Ratio Emerging from Prashant Bhushan
The ratio emerging from Prashant Bhushan is clear:
- imprisonment is not the ordinary punishment in scandalisation contempt;
- refusal to apologise does not automatically justify imprisonment;
- a defiant stand does not automatically justify imprisonment;
- even grave allegations against the judiciary do not automatically justify imprisonment; and
- proportionality and restraint remain constitutionally mandatory.
The only categories where imprisonment has generally been upheld are cases involving:
- physical obstruction of court proceedings;
- violence or intimidation; or
- extraordinary abuse of judicial office.
This is evident from the Supreme Court’s own references to exceptional cases such as:
- Leila David v. State of Maharashtra, involving throwing footwear at judges; and
- In Re: C.S. Karnan, involving a sitting High Court Judge issuing purported warrants against Supreme Court judges.
Outside such extraordinary circumstances, the settled constitutional rule is that fine — not imprisonment — is the ordinary punishment.
The Constitutional Consequence Under Article 14
The most significant implication of Prashant Bhushan lies in Article 14 of the Constitution.
In the conviction judgment itself, the Full Bench observed that the allegations made by Adv. Prashant Bhushan were of the gravest nature because they targeted the entire institution of the judiciary rather than individual judges.
Therefore, once the Supreme Court itself imposed only a token fine in what it regarded as one of the gravest forms of scandalisation, any attempt by any other court to impose a harsher punishment in comparatively less serious cases would raise a direct constitutional issue under Article 14.
The law recognizes no principle more fundamental than that equals must be treated equally.
If imprisonment was considered unnecessary even in Prashant Bhushan, then imposing imprisonment in less serious cases involving criticism of individual judges alone would risk becoming arbitrary, discriminatory, and constitutionally disproportionate.
Magnanimity Is Part of Judicial Majesty
An equally important principle reaffirmed by the Supreme Court is that judicial majesty is not demonstrated through excessive punishment.
In Amicus Curiae v. Prashant Bhushan, involving allegations against multiple former Chief Justices of India, the Supreme Court dropped contempt proceedings entirely and observed:
“Magnanimity and restraint are also facets of the majesty of this Court.”
Similarly, in Rajesh Singh v. High Court of Madhya Pradesh, the Supreme Court cautioned that judges cannot demand respect through demonstrations of power.
The legitimacy of contempt jurisdiction depends not upon severity, but upon constitutional restraint.
Conclusion
The sentencing judgment in Prashant Bhushan, In re revived and reaffirmed a forgotten but binding constitutional principle:
In contempt by scandalisation, imprisonment is exceptional — not ordinary.
The normal constitutional response is warning, reprimand, or fine. Even grave allegations, refusal to apologise, defiance, or criticism of the judiciary do not automatically justify incarceration.
That principle flows not merely from judicial discretion, but from:
- Article 14;
- Article 19(1)(a);
- Article 21;
- Section 13 of the Contempt of Courts Act, 1971; and
- binding precedent beginning from Brahma Prakash Sharma v. State of Uttar Pradesh through Murray & Co. v. Ashok Kumar Newatia and culminating in Prashant Bhushan, In re.
Any future exercise of contempt sentencing power that ignores these binding constitutional limitations risks transforming contempt jurisdiction from a shield protecting administration of justice into an instrument inconsistent with constitutional liberty itself.
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