Contempt of court

Introduction

 This article deals with the law of contempt and why the concept of criminal contempt is
criticised.
 It also deals with the ethical conduct of an advocate towards the court and should the
subjective determination as to what constitutes criminal contempt be treated as a violation
of ethics in the legal profession.
 The article further discusses the decision of the Supreme Court on adv. Prashant Bhushan’s
tweets which were allegedly “Scandalising the authority of the court” and views of legal
experts on it.

What is contempt of court

 The term ‘Contempt of Court’ is a generic term descriptive of conduct in relation to

particular proceedings in a court of law which tends to undermine that system or to inhibit
citizens from availing themselves of it for the settlement of their disputes.”This definition is
given by Lord Diplock when he was giving the judgment in the case of Attorney-General v.
Times Newspapers Ltd. [1]
 This term Contempt of Court can be easily understood as when we are disrespectful or
disobedience towards the court of law which means that we wilfully fail to obey the court
order or disrespect the legal authorities.
 Then the judge has the right to impose sanctions such as fines or can send the contemnor to
jail for a certain period of time if he is found guilty of Contempt of Court.
 This term can also be understood in terms of the freedom of limits of the judicial
proceeding.
 As we know that all judges in courts can give judicial proceedings which have a certain limit
in which it has the freedom to make any judicial proceeding and anything which curtails or
stops it in making any judicial proceeding which is of necessity can amount to contempt of
court.
 Halsbury, Oswald, and Black Odgers have also given the definition of Contempt of Court and
in addition to that, they have talked about its misuse and its wrong interpretation and also
its broad prospectus.
 In India, the concept of Contempt of Court is defined in Section 2(a) of the Contempt of
Courts Act, 1971 which has broadly describe it as civil contempt or criminal contempt.
 There are two Articles in the Constitution of India which talk about the Contempt of Court
and these are Article 129 and Article 142(2) .

Article 129
  Article 129 says that the Supreme Court shall be the ‘Court of Record’ and it has all the
powers of such courts including the power to punish for contempt of itself.
 ‘Court of Record’ to understand why anything commented wrongly against the decision of
the courts leads to Contempt of Court.
 The ‘Court of Record’ means a Court having its acts and proceedings registered for
everlasting memory or that memory which has no end and as evidence or proof. The truth of
these records cannot be questioned and also these records are treated as a higher authority.
And anything stated against the truth of these records comprised Contempt of Court.

Article 142(2)

 when any law is made by the Parliament on the provisions mentioned in clause 1 of this
Article, the Supreme Court has all the power to make an order for securing any person’s
attendance, production of any documents or has the power to give punishment to anyone
for its contempt.
 This also does not mean that the Supreme Court can do anything against the right of
personal liberty if it has the power to punish for Contempt of Court.
 We know that it is the guardian of all the rights that we get from the Indian Constitution so it
has to safeguard these rights and cannot violate these rights itself.

Essentials of Contempt of Court

If a person named Akash has to prove that the other person named Sita is guilty of committing an act
which is an offence in a court of law. Then he has to show the court that the offence which Sita has
done is fulfilling the essential required to commit that act or not. If the essentials of that will be
fulfilled then he will be liable for that act. Similarly, every offence has certain exceptions that has to
be fulfilled for making the person liable for doing that act. Contempt of Court also has certain
essentials and these are as follows:

1. Disobedience to any type of court proceedings, its orders, judgment, decree, etc should be
done ‘willfully’ in case of Civil Contempt.
2. In Criminal Contempt ‘publication’ is the most important thing and this publication can be
either spoken or written, or by words, or by signs, or by visible representation.
3. The court should make a ‘valid order’ and this order should be in ‘knowledge’ of the
respondent.
4. The action of contemnor should be deliberate and also it should be clearly disregard of the
court’s order.

These essentials should be fulfilled while making someone accused of Contempt of Court.
Types of Contempt of Court in India

Depending on the nature of the case in India, Contempt of Court is of two types.

1. Civil Contempt
2. Criminal Contempt

Civil Contempt

 Section 2(a) of the Contempt of Court Act, 1971 states Civil Contempt as wilful disobedience
to the order, decree, direction, any judgment or writ of the Court by any person or willfully
breach of undertakings by a person given to a Court.
 Since Civil Contempt deprives a party of the benefit for which the order was made so these
are the offences essential of private nature.
 In other words, a person who is entitled to get the benefit of the court order, this wrong is
generally done to this person.

Utpal Kumar Das v. Court of the Munsiff, Kamrup [3]

This is the case of non-rendering of assistance, although the court has ordered to render assistance.
Decree executed by the court to deliver immovable property but because of certain obstruction, the
defendant failed to do so. Hence, he was held liable for constituting disobedience to the orders of
the competent Civil Court.

U.P. Resi. Emp. Co-op., House B. Society v. New Okhla Industrial Development Authority [4]

In this case, the Supreme Court has directed the Noida Authorities to verify and state on the affidavit
details given by persons for allotment of plots. In pursuance to the same direction by the Supreme
Court a person Mr. S filed a false affidavit to mislead the court. The Registry directed a show-cause
notice against him to say that why an act of contempt should not be taken against him for
misleading the Supreme Court.

Defences to Civil Contempt

A person who is accused of Civil Contempt of case can take the following defences:

 Lack of Knowledge of the order: A person can not be held liable for Contempt of Court if he
does not know the order given by the court or he claims to be unaware of the order.
 There is a duty binding on the successful party by the courts that the order that has passed
should be served to the Individual by the post or personally or through the certified copy.
 It can be successfully pleaded by the contemner that the certified copy of the order was not
formally served to him.
 The disobedience or the breach done should not be : If someone is pleading under this
defence then he can say that the act done by him was not done willfully, it was just a mere
accident or he/she can say that it is beyond their control. But this plead can only be
successful if it found to be reasonable otherwise your plead can be discarded.
  The order that has disobeyed should be vague or ambiguous: If the order passed by the
court is vague or ambiguous or this order is not specific or complete in itself then a person
can get the defence of contempt if he says something against that order.

In R.N. Ramaul v. State of Himachal Pradesh [5], this defence has been taken by the
respondent. In this case, the Supreme Court has directed the corporation of the respondent to
restore the promotion of the petitioner from a particular date in the service. But the respondent
has not produced the monetary benefit for the given period and a complaint was filed against
him for Contempt of Court. He pleads for the defence on the given evidence that it has not
mentioned by the court in order to pay the monetary benefit. Finally, he gets the defence.

 Orders involve more than one reasonable interpretation: If the contempt of any order
declared by the court and the order seems to be given more than one reasonable and
rational interpretation and the respondent adopts one of those interpretations and works in
accordance with that then he will not be liable for Contempt of Court.
 Command of the order is impossible: If compliance of the order is impossible or it can not be
done easily then it would be taken as a defence in the case of Contempt of Court. However,
one should differentiate the case of impossibility with the case of mere difficulties. Because
this defence can be given only in the case of the impossibility of doing an order.

Criminal Contempt

 According to Section 2(c) of the Contempt of Court Act, 1971, Criminal Contempt is Defined
as (i) the publication of any matter by words, spoken or written, or by gesture, or by signs, or
by visible representation or (ii) doing of any act which includes:

a) Scandalize or tends to scandalise, or lowers or tends to lower the authority of any court, or
b) Biasness, interferes or tends to interfere with the due course of any type of Judicial
proceedings, or
c) obstructs or tends to obstruct, interfere or tend to interfere with the administration of
justice in any manner.

Case on Scandalizing the Court:

Jaswant Singh v. Virender Singh [6]

In this case an advocate caste derogatory and scandalous attack on the judge of the High Court. An
application was filed an election petitioner in the High Court, who was an advocate. He wanted to
seek to stay for further arguments in an election petition and also the transfer of election petitions.
These things cause an attack on the judicial proceeding of the High Court and had the tendency to

scandalize the Court. It was held in this case that it was an attempt to intimidate the judge of the
High Court and cause an interface in the conduct of a fair trial.
Punishment for Contempt of Court

 Section 12 of the Contempt of Court Act, 1971 deals with the punishment for Contempt of
Court.
 High Court and the Supreme Court have been given the power to punish someone for the
Contempt of Court. Section 12(1) of this Act states that a person who alleged with the
Contempt of Court can be punished with simple imprisonment and this imprisonment can
extend to six months, or with fine which may extend to two thousand rupees or can be of
both type punishment.
 However, an accused may be discharged or the punishment that was awarded to him
maybe remitted on the condition that if he makes an apology and this apology should satisfy
the court then only he can be exempted from the punishment of Contempt of Court.
 Explanation of this sentence is that if the accused made an apology in the bona fide then this
apology shall not be rejected on the ground that it is conditional or qualified.
 The court can not impose a sentence for Contempt of Court in excess of what is prescribed
under the given section of this Act either in respect of itself or of a court subordinate to it.

Remedies against an order of Punishment

 Section 13 has been added in the Contempt of Court Act, 1971 after amendment in 2006.
The new Act may be called The Contempt of Court (Amendment) Act, 2006. This Section tells
that contempt of court cannot be punished under certain circumstances or certain cases.
 Clause (a) of Section 13 of the Contempt of Court (Amendment) Act, 2006 states that no
Court under this Act shall be punished for Contempt of Court unless it is satisfied that the
Contempt is of such a nature that it substantially interferes or tend to substantially interfere
with the due course of Justice.
 Clause (b) of Section 13 of this Act states that the court may give the defence on the
justification of truth if it finds that the act done in the public interest and the request for
invoking that defence is bona fide.

Contempt Proceedings

 Two Sections of the Contempt of Court Act, 1971 deals with the procedure of Contempt
proceeding. One talks about the proceeding in the face of the court of records and other
talks about the proceedings other than the court of records.

 Section 14 of the Contempt of Court deals with the procedure of contempt proceeding in the
face of the court of record whereas Section 15 of this Act deals with the procedure of the
contempt proceeding outside the court of records.
 These courts of record have got the power to punish for its contempt inherently.
  Therefore, these courts of record can deal with the matter of content by making their own
procedure.
 While exercising the contempt jurisdiction by the courts of record the only case to be
observed is that the procedure adopted must be fair and reasonable in which the alleged
contemnor should be given full opportunity to defend himself.
 If the specific charge against the person who is punished for the contempt is distinctly
stated and he is given a reasonable opportunity to answer and to defend himself against the
charge then only he will be liable for contempt of court and the court proceeding runs
against him.
 Where the person charged with contempt under this section applies whether orally or in
writing to have the charge against him, tried by some judge other than the judge or judges in
whose presence or hearing the contempt is alleged to have been committed and the court is
of the opinion that it is necessary in the interest of justice that the application should be
allowed, it shall cause the matter to be transferred before such judge as the Chief Justice
may think fit and proper under the circumstances of the case or placed before the Chief
Justice with the statement of facts of the case.

Punishment for contempt of court

 Article 129 and 215 empower the Supreme court and the High courts to punish its contempt.
 Accordingly, Section 12 of the Contempt of Courts Act, 1971 provides for punishment for
contempt of court. It incorporates the type and extent of punishment which the courts can
give for contempt.
 According to section 12 contempt may be punished either by simple imprisonment of 6
months or a fine of Rs. 2000 or both. The further section makes it clear that the punishment
for contempt cannot exceed the 6-month imprisonment and fine of Rs 2000. Thus this is the
maximum punishment which the courts can give for contempt.
 Further section 12 also states that imprisonment should only be imposed if it is necessary to
do in the interest of justice.
 In Smt. Pushpaben and another vs. Narandas V. Badiani and another3 the supreme court
said that the Contempt of Courts Act, 1971 confers special power on the court to impose
imprisonment and the court must give a special reason with a proper application of mind
while giving a sentence of imprisonment. It further said that the Sentence of a fine is the rule
while imprisonment is an exception.
 In the Supreme Court bar association v. Union of India said that for imposing imprisonment,
the contempt has to be serious enough and that it must consider the likelihood of
interference with the administration of justice. Culpability of the offender and that the
intention for the act of contempt is a crucial factor while considering imprisonment as
punishment for contempt.
 Further according to section 10 of the Contempt of Courts Act, 1971, the High courts have
the jurisdiction and authority to punish for the contempt of courts subordinate to it as well.

Scope of punishment for contempt of courts

  The Supreme Court in Supreme court bar association v. Union of India (1998) discussed the
power of courts to punish for contempt.
 It said that although parliament or state legislature has the power to make law in contempt
of court, such legislation cannot denude, abrogate or nullify the power of the supreme court
to punish under article 129 or vest that power in some other court.
 This, it said because the Supreme Court is a court of record and being a court of record it has
an inherent power to punish and no law can take away this inherent jurisdiction (power) of a
court of record. In simple words, it means that the Supreme Court and the High Court being
courts of record, no law can take away the inherent jurisdiction.
 It further differentiated between the power of the High court and that of the Supreme Court
to punish for contempt. It said that 1971 does not deal with the power of the Supreme Court
to punish for contempt of itself and only article 142(2) and 129 deals with it.
 This is because in the definitions clause of the Contempt of Courts Act, 1971 there is no
mention of the Supreme Court and as the Supreme Court said that section 15 only deals with
the procedure by which the Supreme Court can take cognizance of an act of contempt.
 Thus it said that the nature of punishment under Contempt of Courts Act, 1971 may act as a
guide for the supreme court but the extent (quantum) of punishment under the act can
apply only to the High courts.
 This is because according to the court, the1971 act ipso facto does not deal with the
contempt jurisdiction of the supreme court.
 Court supported this ratio by relying on another judgement Sukhdev Singh v. Hon’ble C.J.S.
Teja Singh & Ors (1954). In which it said that maximum punishment which can be imposed
on a contemnor must be construed as dealing with the powers of the High court only and
not the Supreme Court. Thus the scope of power to punish for contempt of Supreme court is
not limited by the Contempt of courts act, 1971.

What are the Defences Available in the Contempt of Courts Act, 1971?

1. Innocent Publication: Under Section 3 if the persons so publishing had at the time of its
publication no reasonable grounds for believing that the proceeding was pending, the
publication is described as “innocent”.
2. Fair and Accurate Report of Judicial Proceeding: Under Section 4 a person shall not be guilty
of contempt of court for publishing a fair and accurate report of a judicial proceeding or any
stage thereof.
3. Fair Criticism: Under Section 5 it is the privileged right of the Indian citizen to believe what
he considers to be true and to speak out his mind.
4. Complaint Against Presiding Officer: Under Section 6 A person shall not be guilty of
contempt of court in respect of any statement made by him in good faith concerning the
presiding officer of any subordinate court.
5. Truth as a Defence: Section 13 enables the Court to permit justification by truth as a valid
defence in any contempt proceedings if it is public interest or bona fide.
6. Apology: Proviso to Section 12(1) says that the accused may be discharged, or the
punishment awarded may be remitted on apology being made to the satisfaction of the
Court.
Landmark Contempt Judgments

Supreme Court Bar Association vs Union Of India & Anr [10]

In this case, the Judge held that procedural aspect for Contempt of Court may still be prescribed by
the Parliament so that it could be applicable in the Supreme Court and the High Court. This means
that Section 12(1) of the Contempt of Court Act, 1971 which prescribed a maximum fine of Rs. 5000
and imprisonment for a term of six months shall be applicable in this case.

Zahira Habibullah Sheikh & Anr vs State Of Gujarat & Ors[11]

It was held in this case that the punishment that is given for contempt in the Contempt of Court Act,
1971 shall only be applicable to the High Court but for Supreme Court, it acts as a guide. The
judgment that was given was not accompanied by rationality, this was worrisome because the
Supreme Court has been given great powers that the drafters of the Indian Constitution has also not
given.

Sudhakar Prasad vs. Govt. of A.P. and Ors.[12]

This case is also similar to the Supreme Court Bar Association Case. In this case also once again the
Supreme Court declared that the powers to punish for contempt are inherent in nature and the
provision of the Constitution only recognised the said pre-existing situation.

The provision of the Contempt of Court cannot be used to limit the exercise of jurisdiction given in
Article 129 and Article 215 of the Constitution.

Famous cases of contempt

P.N. Duda vs V. P. Shiv Shankar & Others[13]

In this case, the Supreme Court observed that the judges cannot use the contempt jurisdiction for
upholding their own dignity. Our country is the free marketplace of ideas and no one could be
restricted to criticise the judicial system unless this criticism hampers the ‘administration of justice’.

R. Rajagopal vs State Of T.N[14]

This case is also known as the Auto Shankar case; in this case, Justice Jeevan Reddy invoked the very
famous doctrine of John Sullivan. This doctrine states that public must be open to strict comments
and accusations as long as made with bonafide diligence, even if it is untrue.

In Re: Arundhati Roy [15]

In this case, the Supreme Court observed that the fair criticism on the conduct of a Judge or the
institution of Judiciary and its function may not amount to contempt if it is made in good faith and in
the public interest.

Indirect Tax practitioners’ Association v. R.K. Jain[16]

In this case, the Supreme court observed that the defence of truth can be permitted to the person
accused of contempt if the two conditions are satisfied. These are: (i) if it is in the interest of public
and (ii) the request for invoking the said defence is bonafide. These are given in Section 13 of the
Contempt of Court Act, 1971.

Justice Karnan’s case

He was the first sitting High Court Judge to be jailed for six months on the accusation of Contempt of
Court. In February 2017, contempt of court proceeding was initiated against him after he accused
twenty Judges of the Higher Judiciary of Corruption. He wrote a letter to PM Modi against this but he
did not provide any evidence against them.

Conclusion

The existing role relating to ex facie contempt of lower courts is unsatisfactory and
misleading in India. It appears that evidently, the difficulties in this regard are the after
product of overlap of contempt powers under the Indian Penal Code, Contempt of Courts
Act and contempt powers of the Supreme Court and High Court under the Indian
constitution. The scenario has emerged as more complicated by way of the inconsistent
interpretations followed through the Supreme Court and High Court regarding diverse
provisions under the Indian Penal Code dealing with interference with the administration of
justice and exclusion clause contained in the Contempt of Courts Act. Not only the higher
court should be given the power to deal with contempt but also the lower court should be
given this power. Contempt of Court if seen from the perspective of the judges, higher
judicial officials seems good but if it comes to the perspective of common people it turns
towards its bad effect.