NOTES ON CONTEMPT OF COURTS ACT, 1971

NOTES

ON

CONTEMPT OF COURTS ACT, 1971

INTRODUCTION

‘Rule of Law’ is the basic principle that governs our civilized and democratic society and it the Constitution of India which asserts the supremacy of law. The guardian of the Rule of Law is our Judiciary. An independent or impartial Judiciary is the sine qua of a healthy society. It is the last resort for the common people of a country, as they repose their ultimate faith in it to get justice. Therefore, it is essential for the Judiciary to be protected from all sorts of evil which likely affect the administration of justice. For better protection and preservation of prestige and dignity of the courts, the law on contempt of court was evolved. So, broadly speaking, this law helps the courts in discharging justice keeping them stand supreme in the eyes of society.

The law of contempt is essentially concerned with interference with the administration of justice. Joseph Moscovitz describes contempt of court as “the Proteus[1] of the legal world, assuming an almost infinite diversity of forms.”[2] The House of Lords in Attorney General v.  Times Newspapers Ltd.[3], has rightly enumerated threefold purposes of the law of contempt:

(i)                 to enable the parties to litigation and the witnesses to come before the Court without outside interference;

(ii)              to enable the Courts to try cases without such interference; and

(iii)            to ensure that authority and administration of law are maintained.

The source of the law of contempt is the Common Law, concept of the English Courts and their decisions. The judges derived their authority from the Monarch, and if disrespect was shown to a judge it followed that the Monarch had not been respected, a serious matter calling for action in law. In Ram Surat Singh v. Shiv Kumar Pandey[4], the Court held that the object of the law of contempt is not to provide a cloak for judicial authorities to cover up their inefficiency and corruption, or to stifle criticism made in good faith against such officers. Administration of justice cannot be effective unless respect for it is fostered and maintained.

CONSTITUTIONAL VALIDITY

Like all the other laws, the law of contempt derives its validity from the Constitution of India 1950, provided under the following two Articles: -

·         Article 129: Supreme Court to be a court of record — The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

·         Article 215: High Courts to be courts of record — Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

THE CONTEMPT OF COURT ACT,1971

 

HISTORICAL BACKGROUND

In India, there was no statutory law of contempt until 1926. The first legislation to deal with contempt of courts in our country received statutory recognition in the form of the Contempt of Courts Act, 1926 (Act No. XII of 1926). The Contempt of Courts Act, 1926, was subsequently amended in 1937 to make it clear that the limits of punishment provided in the Act related not only to contempt of subordinate courts but also to all cases. The Contempt of Courts Act, 1952, repealed the Contempt of Courts Act, 1926 and consolidated the provisions relating to the law of contempt so as to make it applicable to the High Courts. The Contempt of Courts Act, 1952, was then repealed and replaced by the Contempt of Courts Act, 1971 (‘THE ACT’) upon the recommendation of the H.N. Sanyal[5] Committee[6] set-up in 1961 that overhauled the law of contempt of courts in India.

OBJECT AND PURPOSE OF THE ACT

The preamble of the Act states that –

An Act to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto.

The primary purpose of giving courts contempt jurisdiction is to uphold the majesty and dignity of the courts and their image in the minds of the public. If such confidence and faith were allowed to be shaken then this would have serious repercussions on the justice delivery system of our country. The law of contempt provides the necessary tool to the courts to check unwarranted attacks or efforts at undermining the Rule of Law.

The Supreme Court in State v. Rajeshwari Prasad[7], held that the aim of the law of contempt was to protect those whose duty it was to administer justice between man and man by true and proper interpretation of law, from insults, annoyance and even obstruction. Persons who seek justice and persons who help in the administration of justice are all entitled to be protected.

SCOPE OF THE ACT

Section 9 of the Act states - Act not to imply enlargement of scope of contempt –

The scope of contempt of Courts has not been enlarged by the enactment of the Contempt of Court Act……What was not contempt so far is not contempt of Court even now. The contempt of Court should not be resorted to only for the purpose of enforcing interpretive rights.[8]

IMPORTANT PROVISIONS OF THE ACT - EXPLAINED

·         Section 1 of the Act states the Short Title And Extent Of The Act.

This Act may be called the Contempt of Courts Act, 1971 and it extends to the whole of India, not including the state of Jammu and Kashmir except to the extent to which the provisions of this Act relate to contempt of the Supreme Court.

Golcha Advertising Agency v. The State of Maharashtra[9]  - Proceedings of contempt are summary in nature and also are sui generis.

·         Section 2 – Definition

a)       “Contempt of court” means civil contempt or criminal contempt.

The Supreme Court of India speaking through Mr. Justice I. D. Dua in

Aligarh Municipality v. E. T. Majdoor Union[10], has declared that a corporate body can be punished for Contempt of Court. The Court has held a corporation (Municipal Board in this case) is liable to be punished by imposition of fine and by sequestration for contempt for disobeying order of competent Court directed against them. It is command to those who are officially responsible for the conduct of its fairs.

b)      “Civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court.

It is basically a wrong to the person who is entitled to the benefit of a court order. It is a wrong for which the law awards reparation to the injured party; though nominally it is a contempt of court it is fact a wrong of a private nature. Civil contempt is a sanction to enforce compliance with an order. It means willful disobedience to any judgement, decree, writ or other process of court.

Any willful disobedience to the orders of the court to do or abstain from doing any act or breach of any undertaking given to the court is prima-facie Civil Contempt - Vidya Sagar v. III^rd Additional District Judge, Dehradun.[11]

c)       “Criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-

                                i.            Scandalizes or tends to scandalize, 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.

Criminal contempt involves defiance of the court revealed in conduct which amounts to obstruction or interference with the administration of justice - State of Assam v. V. K. Vishnoi.[12]

None caring of the warrant issued by the Criminal Court amounts to Criminal Contempt - E. Venkaiah v. Government of Andhar Pradesh.[13]

The Supreme Court in Baradakant v. Registrar, Orissa H.C.[14], has held that the defamatory criticism of a Judge functioning as a judge even in purely administrative or non-adjudicatory matters amounted to criminal contempt.

DIFFERENCE B/W CIVIL AND CRIMINAL CONTEMPT

The Calcutta High Court in Legal Remembrancer v. Motilal Ghose[15], has explained the difference between civil contempt and criminal contempt. The distinction between civil and criminal contempt is of fundamental character. While criminal contempt offends the public and consists of conduct that offends the majesty of law and undermines the dignity of the Court, civil contempt consists in failure to obey the order, decree, direction, judgment, writ or process issued by courts for the benefit of the opposing party.

WHEN NOT CONTEMPT- EXCEPTIONS

Following section of the Act deals with the circumstances where the act does not constitute contempt: -

·         Innocent publication and distribution of matter (Section 3)

A person shall not be guilty of contempt of court on the ground that he has published any mater which interferes or obstructs or tends to interfere or obstruct, the course of justice in connection with any civil or criminal proceeding pending at the time of publication, if at the time he had no reasonable grounds for believing that the proceeding was pending.

·         Fair and accurate report of judicial proceeding (Section 4)

In Subhash Chand v. S. M. Aggarwal[16], the Court held that the media reports must represent a fair and accurate report of judicial proceeding and not be a one-sided picture. It is very essential that while reproducing the court proceedings, no words may be added, omitted or substituted.[17]

·         Fair criticism of judicial act. (Section 5)

In re Guljari Lal[18], it was held that no action is called for, if the criticism is reasonable and is offered for the public good.

·         Complaint against presiding officers of subordinate courts is not a contempt when done in good faith. (Section 6)

In re Court on its Own Motion[19], the Court held that immunity is provided to a citizen making a complaint to the High Court against a presiding officer of a subordinate court so long as the complaint is made in good faith.

·         Publication of information relating to proceeding in chambers or in camera not contempt except in certain cases. (Section 7)

These cases are –

(a)   where the publication is contrary to the provisions of any enactment for the time being in force;

(b)   where the court, on grounds of public policy or in exercise of any power vested in it, expressly prohibits the publication of all information relating to the proceeding or of information of the description which is published;

(c)   where the court sits in chambers or in camera for reason connected with public order or the security of the State, the publication of information relating to those proceedings;

(d)   where the information relates to a secret process, discovery or invention which is an issue in the proceedings.

POWER OF HIGH COURT UNDER THE ACT

·         Section 10: Power of High Court to punish contempts of subordinate Courts.

This section authorises the High Court to punish contempts of subordinate Courts in accordance with the same procedure and practice as it has the power to punish for its contempt.

But the High Court cannot punish under this section if the offence committed is punishable under Indian Penal Code, 1860 (I.P.C).[20]

·         Section 11: Power of High Court to try offences committed or offenders found outside jurisdiction.

This section provided for the extra-territorial jurisdiction of High Courts to commit a person for contempt even though the alleged act was committed outside its territorial jurisdiction of the concerned High Court.[21]

PUNISHMENT FOR CONTEMPT – SECTION 12

Prescribed punishment under section 12: -

·         simple imprisonment for a maximum term of six (6) month; or

·         maximum fine of Rs. 2000 (Rupees Two Thousand); or

·         both.

The above prescribed punishment may be remitted or accuse may be discharged on apology being made to the satisfaction of the Court. The apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

MEANING OF APOLOGY

Apology is an act of contrition and it must not be shorn of penitence. Tendering of apology cannot be a panacea in every case of contempt. In State of Orissa v. R. N. Patra,[22] the Court held that no apology could undo gross contempt and serious cases of contempt.

Apology cannot be a weapon of defence forged always to purge the guilty. It is intended to be evidence of real contribution, the manly consciousness of a wrong done, of an injury inflicted and the earnest desire to make such reparation as lies in the wrong doer's power. Only then it is of any avail in a court of Justice. Apology must be voluntary, unconditional and indicative of remorse and contrition and it should be tendered at the earliest opportunity.[23]

It is not necessary that every apology is to be accepted by the court. A court can refuse to accept an apology which it does not believe to be genuine, it can, even when it accepts the apology, commit an offender to prison or otherwise punish him.

Section 13: Contempts not punishable in certain cases

According to this section, no Court shall impose a sentence under this Act for contempt 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.

This section in unambiguous and in clear terms declares that only wilful and deliberate disobedience of court's order or substantial interference in courts order is to be punished. Technical contempt’s are to be ignored.[24]

PROCEDURE TO BE FOLLOWED UNDER THE ACT

·         Section 14: Procedure where contempt is in the face of the Supreme Court or a High Court.

This section deals with procedure where contempt is in the face of the Supreme Court or a High Court. Where contempt –

(a)    is committed in the presence or hearing of the Supreme Court or the High Court, or

(b)    if not committed in the presence or hearing of the Supreme Court or the High Court, but a complaint is made then –

                                                              i.      the Court may cause such person to be detained in custody, on the same day, or as early as possible;

                                                            ii.      informed in writing of the contempt with which he is charged;

                                                          iii.      give him an opportunity to defend himself;

                                                           iv.      After taking evidence, hearing him, court shall determine the charge; and

                                                             v.      Make such order for the punishment or discharge of such person as may be just.

The detained person (or the person in custody) shall be released on bail or on bond with or without sureties for such sum of money as the Court thinks sufficient. Provided further that the Court may, if it thinks fit, instead of taking bail from such person, discharge him on his executing a bond without sureties for his attendance.

·         Section 15:  Cognisance of criminal contempt in other cases

1.       Supreme Court or the High Court may take action on its own motion or on a motion made by-

(a)    The advocate-general, or

(b)    Any other person, with the consent in writing of the advocate-general.

2.       In criminal contempt of a subordinate Court, the High Court may take action on –

1.       a reference made to it by the subordinate Court; or

2.       on a motion made by the advocate-general; or

3.       in case of union territory, by such law officer as the central government may specify.

3.       Every motion or reference made under this section shall specify the contempt of which the person charge is alleged to be guilty.

·         Section 17: Procedure after cognisance

1.       After taking cognisance, notice of every proceeding under the Act shall be served personally on the person charged, unless the court for reasons to be recorded directs otherwise. The notice shall be accompanied with –

                                                              i.      If the case was commenced on a motion then, a copy of that motion along with copies of the affidavits, if any, on which such motion is founded; or

                                                            ii.      In case of proceedings commenced on a reference by a subordinate court, then with a copy of that reference.

2.       The court may if it is satisfied that a person charged under the Act is likely to abscond or keep out of the way avoiding service of the notice, order the attachment of his property of such value or amount as it may deem reasonable.

3.       Charged person may file an affidavit in support of his defence, and the court may determine the matter of the charge either on the affidavits filed or after taking such further evidence as may be necessary, and pass such order as the justice of the case requires.

·         Section 18: Hearing of cases of criminal contempt to be by benches

According to Section 18, every case of criminal contempt under Section 15 of the Act shall be heard and determined by a Bench of not less than two Judges.

CONTEMPT BY JUDGE/MAGISTRATE/ANY OTHER JUDICIAL PERSON

·         Section 16: Contempt by judge, magistrate or other person acting judicially

It is not only that an outsider or a third person is to be held liable for contempt of court. The Presiding Judge of the Court can also be held liable for contempt under the contempt law. To establish contempt it would depend upon the facts and circumstances of each case.

In Harish Chandra v. Justice S. Ali Ahmed,[25] it was held that in respect of Supreme Court or High Court there is no question of any judge being liable for contempt of his 'Own Court', in other words, the Court-room should be where such Judge is presiding. Thus, a Judge of Subordinate Court can be said to have committed contempt of his own Court i.e. the court in which such Judge is presiding.

APPEAL

·         Section 19: Appeals

Right to appeal to higher court against the decision of lower court has been specifically given in the present Act.

If the order of committal for contempt of court is made –

A.       By a single judge of the High Court, an appeal lies to a division bench thereof; or

B.       By a division bench of the High Court, an appeal lies to the Supreme Court, as of a statutory right.

LIMITATION

·         Section 20: Limitation for actions for contempt

In V. R. Kanade v. Madhao Gadhari,[26] it was held that no Court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.

·         Section 21: Act not to apply to Nyaya Panchayatas or other Village Courts

According to this Section, this Act not applies to Nyaya Panchayats or other Village Courts.

·         Section 22: Act to be in addition to, and not in derogation of, other laws relating to contempt

This section states that the provisions of this Act are in addition to and not in derogation of the provisions of any other law relating to contempt of Courts. Thus, this Act is supplementary to already existing law of contempt.

·         Section 23: Power of the Supreme Court and High Court to make rules

The Supreme Court and High Courts may make rules, in consonance with the provisions of the Contempt of Court Act for any matter relating to its procedure.

CONCLUSION

The contempt power in a democracy is only to enable the court to function effectively, and not to protect the self-esteem of an individual judge. The foundation of judiciary is based on the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by disrupting its working, the edifice of the judicial system gets eroded. Judiciary by punishing the guilty infuses faith in the supremacy of law and omnipotence of justice. Every offender is to be punished for contumacious acts under the relevant contempt laws, but it is extremely important to make it sure by the judiciary that these provisions are not to be misused.

*Disclaimer: The contents of the blog are not intended to convey any legal advice to the reader neither the blog creates any attorney-client relationship. You may contact an enrolled legal practitioner for assistance with your legal needs.*

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[1] A mythological sea god capable of changing shape at will.

[2]J. Moskovitz, ‘Contempt of Injunctions, Civil and Criminal’ (1943) 43 Col. LR 780.

[3] 1974 AC 273

[4] AIR 1971 All. 170.

[5] H.N. Sanyal, the then Additional Solicitor General of India.

[6] Report of Committee on Contempt of Courts (1963).

[7] A.1.R.1966 All. 588.

[8] State of West Bengal v. N.N. Bagchi, AIR 1966 SC 447.

[9] (1990) 2 Bom CR262 (Bom).

[10] AIR 1970 SC 1767.

[11] 1991 All CJ 586 (588).

[12] 1993 (23) A.T.C. 581.

[13] 1992 (3) ALT 193 (199).

[14] AIR 1974 SC 710.

[15] ILR 41 Cal. 173.

[16] 1984 Cr. L.J. 481.

[17] E. T. Sen v. E. Narayanan, AIR 1969 Del. 201.

[18] 1968 MPLJ 725.

[19] 1973 Cr LJ 1106 (P & H).

[20] The Emperor v. J.P. Swadhin AIR 1938 All 358.

[21] State v. V. Adilakshmi Amma, 1954 Cr. LJ 988 (Ori).

[22] (1975) 41 Cut LT 329.

[23] Bhalchandra Gangadhar Ghate  v.  Pralhad Sadhuji Raghute, 1976 Mah. 711 at p. 712

[24] Baradakanta Mishra v. The Registrar, Orissa High Court, AIR 1974 SC 710.

[25] 1987 Cr. L.J. 320 at p. 328.

[26] (1990) 1 Mah LR 544 (Bom)