SHISHIR PRAKASH
The recent proceedings before the Delhi High Court concerning a contempt action initiated against former Chief Minister Arvind Kejriwal and other political leaders have generated intense public discussion. Much of that discussion has unfortunately become politically polarised. However, the issues involved are ultimately constitutional and institutional — not political.
The judiciary is the final constitutional refuge of every citizen. It derives its strength not from fear or insulation from criticism, but from public confidence earned through fairness, restraint and institutional composure. Any discussion on recusal, contempt or judicial criticism must therefore begin with complete respect for the institution and its indispensable role in preserving constitutional democracy.
At the same time, constitutional systems are designed not merely to protect judges, but to protect the legitimacy of adjudication itself.
Justice must also appear to be done
The doctrine that justice must not only be done but must also appear to have been done remains one of the foundational principles of common law jurisprudence. It is for this reason that recusal applications, though often uncomfortable and occasionally tactical, are recognised legal remedies. A litigant who expresses an apprehension of bias does not automatically become an enemy of the judiciary.
The legal system may ultimately reject that apprehension. Courts may hold it to be unfounded, speculative or even politically motivated. But the expression of such apprehension, by itself, does not necessarily amount to contempt.
Section 2(c) of the Contempt of Courts Act, 1971 defines criminal contempt as:
“the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which—
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”
The constitutional debate in the present matter, therefore, is not whether courts possess contempt jurisdiction — they unquestionably do — but whether the impugned acts, prima facie, were treated as injury to judicial administration under Section 2(c), or whether portions of the proceedings appeared to travel into the realm of personal affront and reputational grievance.
This distinction is important because criticism directed against a judicial order, a judicial approach or even the surrounding circumstances of a case is not automatically equivalent to an attack upon the institution itself.
The constitutional tension around recusal and criticism
The recent controversy appears to have emerged from this very constitutional tension.
From publicly available material, the accused persons had raised apprehensions regarding impartiality and sought recusal. Among the circumstances cited in public discourse were RTI-based references concerning professional assignments allegedly allotted to the Judge’s son in government litigation. The recusal order itself records the response that these were “dockets” and that neither the Judge’s son nor family members had any connection whatsoever with the excise proceedings.
Whether those apprehensions were legally sustainable is a separate matter. Courts are entirely empowered to reject recusal pleas lacking legal merit. However, once such concerns had entered the public domain and formed part of the litigants’ stated apprehension, the controversy perhaps required a more detached institutional handling.
The judiciary is strongest when it appears calm even under provocation.
A constitutional court exercising contempt jurisdiction must carefully distinguish between:
- fair criticism,
- political rhetoric,
- personal defamation,
- and genuine obstruction of administration of justice.
That line is delicate but essential.
Equally, political actors must remember that disagreement with a judge or dissatisfaction with an order cannot justify organised attempts to delegitimise courts or personalise judicial functioning. Public confidence in courts cannot become collateral damage in political battles.
Yet the converse is equally true: contempt jurisdiction should not appear to become an instrument for answering every criticism personally.
Institutional integrity versus personal grievance
One aspect that may invite broader constitutional debate is the language and tenor reflected in portions of the reported proceedings themselves. Certain observations, at least prima facie, appear to carry elements perceived as in personam rather than remaining strictly confined to preservation of judicial administration as an institution.
For instance, observations reportedly made in the course of proceedings such as:
“He wanted to ridicule me”
may naturally invite legal scrutiny on whether the alleged injury was being perceived institutionally or personally. In contempt jurisprudence, that distinction becomes significant because the law requires careful segregation between:
- protection of institutional integrity,
- protection of administration of justice,
- personal defamation,
- and emotional injury arising from criticism directed at an individual judge.
The legitimacy of contempt jurisdiction ultimately rests upon its visibly restrained and objective exercise.
This is not to suggest that contempt jurisdiction should never be invoked in cases involving organised attempts to undermine public confidence in courts. Far from it. The law must take its own course and each situation rests upon its own facts and context. However, the invocation of extraordinary jurisdiction in politically charged matters naturally gives rise to constitutional debate regarding whether the proceedings are aimed primarily at preservation of judicial institution or whether they may, at least in perception, acquire a more personal dimension.
The majesty of courts is rarely preserved through visible confrontation. More often, it is preserved through restraint that rises above the controversy itself.
Constitutional scrutiny strengthens institutions
Another aspect that may invite future constitutional debate is the coexistence of two judicial responses:
- initiation of criminal contempt proceedings alleging attempts to scandalise the institution; and
- subsequent recusal from the underlying matter itself.
Appellate courts may eventually examine whether these actions are entirely reconcilable in constitutional theory. Such scrutiny would not weaken the judiciary; rather, it would strengthen procedural clarity regarding recusal and contempt jurisprudence for future cases.
It is also important to remember that criminal contempt is quasi-criminal in nature. The power is extraordinary and must therefore remain carefully structured within procedural fairness, objective standards and institutional restraint.
Judges, prosecutors and litigants are not adversaries of justice — all three are stakeholders in it.
A courtroom functions best when:
- the judge remains fearless yet detached,
- the prosecutor remains responsible yet fair,
- and the litigant feels heard even when unsuccessful.
The dignity of the institution lies not merely in authority, but in the confidence that every participant in the justice system receives constitutional fairness.
Ultimately, constitutional democracies are not tested when institutions are praised. They are tested when institutions respond to criticism.
The strength of the Indian judiciary has never rested upon silence from citizens. It has rested upon the confidence that even disagreement can be addressed constitutionally, calmly and institutionally.
Respect for the judiciary does not require absence of debate. On the contrary, mature constitutional dialogue — conducted responsibly and respectfully — is itself a tribute to the strength of the institution.
Appellate scrutiny in such matters is therefore not institutional weakness, but constitutional strength.
(The writer is an Advocate and practices at the Supreme Court of India and Allahabad High Court. He may be contacted at shishirprakash.advocate@gmail.com)