An Eagle Eye view on Contempt of Courts Act, 1971

Contempt of court

Contempt of court is the offense in law of being disobedient to or disrespectful towards a court order and court officers in behavior that opposes or defies the authority, justice and dignity of the court.

In England Judges in common law systems usually have more extensive power to declare someone in contempt than judges in civil law systems. Where a court finds that an action constitutes contempt of court, it can issue a court order that in the context of a court trial or hearing declares a person or organization to have disobeyed or been disrespectful of the court's authority. The positive finding of guilt is called "found" or "held" in contempt. It is the judge's strongest power to impose sanctions for acts that disrupt the court's normal process.

An act of contempt of court results from a failure to obey a lawful order of a court, showing disrespect for the judge, disruption of the proceedings by behavior, or publication of material or non-disclosure of material, which is deemed likely to jeopardize a fair trial. The judge may impose sanctions such as a fine or jail for the accused who is found guilty of contempt of court. There are two categories of contempt namely disrespectful to legal authorities in the courtroom, or willfully failing to obey a court order.

In India the Supreme Court and High Courts alone have jurisdiction to initiate contempt proceedings against a contemner. Contempt proceedings are mainly used to enforce court orders. Further it may be civil contempt or criminal contempt.

In India the Contempt of Courts Act of 1971, defines civil and criminal contempt in section 2 (b) and (c) respectively. Accordingly civil contempt is an act of wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.

A criminal contempt is 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, scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

The punishment for the offence of contempt is six months imprisonment or fine up to Rs. 2000, or both under section 12 of the said Act.

History of Contempt of Courts Act

The Contempt of Courts Act, 1926 was the first piece of legislation which was enacted with a view to define and limit the powers of certain Courts in punishing for Contempt. This Act was enacted with a view to remove doubts about the powers of the High Court to punish for contempt and the doubts whether the High Court could punish for Contempt of Court subordinate to it were removed by Section 2 of the said Act. The Contempt of Courts Act, 1952 repealed the 1926 Act and made two significant departures from it. Firstly, the expression "High Court" was defined to include the Court of Judicial Commissioner, which had been excluded from the purview of the 1926 Act and, furthermore, the High Court so defined were conferred with the jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, irrespective of whether the contempt was committed within or outside the local limits of jurisdiction and irrespective of whether the person alleged to be guilty of the contempt was within or outside such jurisdiction. Punishment for Contempt of Court was provided by Section 4, being that of simple imprisonment for a term which may extend to six months, or with a fine which may extend to Rs.2,000/-, or with both.

On 1st April, 1960 a Bill was introduced in the Lok Sabha to consolidate and amend the law relating to contempt of courts. A Committee under the Chairmanship of Mr. H.N.Sanyal, Additional Solicitor-General, was set up and it was required inter alia to examine the law relating to contempt of courts and to suggest amendments therein. On the submissions of the Sanyal Committee's report the Bill was referred to a Joint Committee of the Houses of Parliament. The said Joint Committee submitted its report to the Rajya Sabha on 23rd February, 1970 suggesting a few changes in the Bill which had been introduced. One of the changes suggested by the Committee was the insertion of Clause 20, which was new and corresponds to the present Section 20 of the Contempt of Courts Act, 1971.

The Contempt of Courts Act, 1971 was enacted, as per the Preamble, with a view "to define and limit the powers of certain Courts in punishing Contempt of Courts and to regulate their procedure in relation thereto". It provides for action being taken in relation to civil as well as criminal contempt. Sections 3 to 7 of the Contempt of Courts Act, 1971 provide for what is not to be regarded as contempt. Section 8 specifies that nothing contained in the Act shall be construed as implying that any other valid defence in any proceedings for Contempt of Court ceases to be available merely by reason of the provisions of the 1971 Act. Section 9 makes it clear that the Act will not to be implied as enlarging the scope of contempt. Section 10 contains the power of the High Court to punish contempt of subordinate Courts, while Section 12 specifies the punishment which can be imposed for Contempt of Court and other related matters. Procedure to be followed where contempt is in the face of the Supreme Court or a High Court is provided in Section 14, while cognizance of criminal contempt in other cases is dealt with by Section

15. Section 15 has to be read with Section 17 which provides for procedure after cognizance has been taken under Section 15. A decision of the High Court to punish for contempt is made appealable under Section 19 of the Act.

Inherent jurisdiction of Court

In Supreme Court Bar Association vs Union Of India, [dt.17.4.1998 (1998) 4 SCC 409], the Supreme Court dealt with the constitutional powers vested in it under Article 129 read with Article 142(2) of the Constitution of India and the power of the High Court under Article 215 of the Constitution to punish for contempt.

It is held that no act of parliament can take away the inherent jurisdiction of the Court of Record to punish for contempt and the Parliament’s power of legislation on the subject cannot, therefore, be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts, though such a legislation may serve as a guide for the determination of the nature of punishment which this court may impose in the case of established contempt. [Supreme Court Bar Association vs Union Of India, dt.17.4.1998 (1998) 4 SCC 409]

Breach of an undertaking

The principles relating to contempt are clear. The definition Civil Contempt includes wilful breach of an undertaking given to a Court. Public interest requires that solemn undertakings given to a Court with the intention of obtaining any benefit should not be breached willfully. No litigant can be allowed to wriggle away from a solemn undertaking given to the Court, as it will open dangerous trends and defeat the very purpose of giving undertakings to Court. While Courts will not be vindictive, Courts cannot also allow themselves to be trifled with by violating the solemn undertakings given to them. Litigants ought to understand that once they give an undertaking to a Court, they should comply with it in all circumstances, the only exceptions being fraud or statutory bar. They cannot break an undertaking with impunity and then attempt to justify it. The breach of solemn undertaking given to a Court is a serious matter and will have to be dealt with seriously.

It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a Court of Competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.

A party who knows an order, whether it is null or valid, regular or irregular, cannot be permitted to disobey it and it would be dangerous to allow the party to decide as to whether an order was null or valid and whether it was regular or irregular.

Orders of Courts have to be obeyed unless and until they are set aside in appeal/revision. Alternatively in any proceedings for execution or in collateral proceedings where an order is sought to be enforced or relied on, it is possible for a party to establish that the order is null and void. Then the Court considering the matter, if satisfied, will hold that the order is null and void and therefore not executable or enforceable. The respondents cannot assume for themselves that the undertaking given by them is not valid or that therefore they need not comply with it. [S. Balasubramaniyam vs P. Janakaraju, dt. 29.4.2004,

ILR 2004 Kar 2442, 2004 (5) KarLJ 338]

Suo motu contempt proceedings

In Supreme Court Bar Association vs Union of India, a contemner was an advocate. He was found guilty of contempt. He was punished thus: "Since in our view the applicant has committed contempt of court in describing the Division Bench consisting of Sanjeev Khanna, J., and one of us (R.V. Easwar, J.) as "Dedh Bench" - a prima facie contemptuous remark calculated to denigrate the dignity of this court - we issue show-cause notice to Mr. Deepak Khosla, the applicant herein, as to why proceedings should not be initiated against him for committing contempt of court."

Since suo motu contempt proceedings were directed against the respondent, by the said order passed by the Division Bench, direction was given to the registry to register the said contempt proceedings and assign a fresh contempt case number. [Supreme Court Bar Association vs Union of India, dt 17.4.1998, (1998) 4 SCC 409]

Suo-motu action of Criminal Contempt

In an unreported case in “Narendra D V Gowda,[dt 4.7. 2012 Kar HC] the Karnataka HC held thus: “In the result, we answer the first question formulated by us in paragraph No. 7 of the Judgement in the negative holding that the law laid down by the Supreme Court in P.N.DUDA'S CASE AND BAL THACKREY'S CASE would apply to the High Courts in suo-motu action of a Criminal Contempt, post the judgement of the Supreme Court in PRASHANT BHUSHAN'S case. In other words, the judgement of the Supreme Court in P.N.DUDA'S CASE AND BAL THACKREY'S CASE (Supra) hold the field even today, and the due procedure laid down therein must be adhered while scrutinizing or dealing with the petitions, filed by a private party seeking action of criminal contempt of High Court on the basis of the information disclosed therein, if such petition is filed without seeking consent in writing of the Advocate General. In the result, the petition is dismissed”. [Narendra D VGowda, dt 4.7. 2012 Kar HC]

Action for contempt is divisible into two categories, namely, that initiated suo motu by the Court and that instituted otherwise than on the Court's own motion. The mode of initiation in each case would necessarily be different. While in the case of suo motu proceedings, it is the Court itself which must initiate by issuing a notice. In other cases initiation can only be by a party filing an application. In our opinion, therefore, the proper construction to be placed on Section 20 must be that action must be initiated, either by filing of an application or by the Court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged to have been committed.

[Pallav Sheth vs Custodian, dt 10.8.2001 SC]

Contempt of subordinate court

In the case of criminal contempt of subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General or the Law Officer of the Central Government in the case of Union Territory. This reference or motion can conceivably commence on an application being filed by a person whereupon the subordinate court or the Advocate-General if it is so satisfied may refer the matter to the High Court. Proceedings for civil contempt normally commence with a person aggrieved bringing to the notice of the Court the wilful disobedience of any judgment, decree, order etc. which could amount to the commission of the offence. The attention of the Court is drawn to such a contempt being committed only by a person filing an application in that behalf. In other words, unless a Court was to take a suo motu action, the proceeding under the Contempt of Courts Act, 1971 would normally commence with the filing of an application drawing to the attention of the Court to the contempt having been committed. When the judicial procedure requires an application being filed either before the Court or consent being sought by a person from the Advocate-General or a Law Officer it must logically follow that proceeding for contempt are initiated when the applications are made.

Appeal in contempt case (S.19)

Section 19 of the Act makes a decision of the High Court to punish for contempt appealable. In a case the appellant filed an application for contempt against the respondent in the High Court complaining of interference by the respondent with the due course of judicial proceedings. A Single Judge of the High Court after considering the application, affidavits and submissions made on behalf of the parties took the view that it was not a fit case in which the court should exercise its jurisdiction under the contempt of Courts Act and dismissed the application. The appellant filed the instant appeal under section 19(1) of the Act. The respondent took a preliminary objection to the maintainability of the appeal under section 19(1). While upholding the objection and dismissing the Appeal, this Court.

SC held that the High Court derives its jurisdiction to punish for contempt from Article 215 of the Constitution. The appeal will lie under Section 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt. The High Court exercises its jurisdiction or power as conferred on it by Article 215 of the Constitution when it imposes a punishment for contempt. When the High Court does not impose any punishment on the alleged contemnor the High court does not exercise its jurisdiction or power to punish for contempt. The jurisdiction of the High Court is to punish. When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution.

Whenever a court, tribunal or authority is vested with a jurisdiction to decide a matter, such jurisdiction can be exercised in deciding the matter in favour or against a person. For example, a civil court is conferred with the jurisdiction to decide a suit; the civil court will have undoubtedly the jurisdiction to decree the suit or dismiss the same. But when a court is conferred with the power or jurisdiction to act in a particular manner, the exercise of jurisdiction or the power will involve the acting in that particular manner and in no other. Article 215 confers jurisdiction or power on the High court to punish for contempt. The High Court can exercise its jurisdiction only by punishing for contempt.

The contention of the appellant that there would be no remedy against the erroneous or perverse decision of the High Court in not exercising its jurisdiction to punish for contempt, is not correct. When the High Court erroneously acquits a contemnor guilty of criminal contempt, the petitioner who is interested in maintaining the dignity of the Court will not be without any remedy. Even though no appeal is maintainable under section 19(1) of the Act, the petitioner in such a case can move this Court under Article 136 of the Constitution.

Right of appeal is a creature of the statute and the question whether there is a right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration.

A contempt is a matter between the court and the alleged contemnor. Any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court. After furnishing such information he may still assist the court, but the aggrieved party under section 19(1) can only be the contemnor who has been punished for contempt of court. [D.N.Taneja vs Bhajan Lal,dt 4.5.1988, 1988 SCR (3) 888, 1988 SCC (3) 26]

Advocates Act, 1961

In Re: Vinay Chandra Mishra, (1995) 2 SCC 584, it was found that the Contemner, an advocate, guilty of committing criminal contempt of Court for having interfered with and "obstructing the course of justice by trying to threaten, overawe and overbear the court by using insulting, disrespectful and threatening language", While awarding punishment, keeping in view the gravity of the contumacious conduct of the contemner, the Court said:

" The facts and circumstances of the Present Case justify our invoking the power under Article 129 read with Article 142 of the Constitution to award to the contemner a suspended sentence of imprisonment together with suspension of his practice as an advocate in the manner directed herein. We accordingly sentence the contemner for his conviction for the offence of the criminal contempt as under:

(a) The contemner Vinay Chandra Mishra is hereby sentenced to undergo simple imprisonment for a period of six weeks. However, in the circumstances of the case, the sentence will remain suspended for a period of four years and may be activated in case the contemner is convicted for any other offence of contempt of court within the said period; and

(b) The contemner shall stand suspended from practicing as an advocate for a period of three years from today with the consequence that all held by him in his capacity as an advocate, shall stand vacated by him forthwith.

Aggrieved by the direction that the "Contemner shall stand suspended from practicing as an Advocate for a period of three years" issued by this Court by invoking powers under Articles 129 and 142 of the Constitution, the Supreme Court Bar Association, through its Honorary Secretary, has filed this petition under Article 32 of the Constitution of India, seeking the following relief:

" Issue and appropriate writ, direction, or declaration, declaring that the disciplinary committees of the Bar Councils set up under the Advocates Act, 1961, alone have exclusive jurisdiction to inquire into and suspend or debar an advocate from practicing law for professional or other misconduct, arising out of punishment imposed for contempt of court or otherwise and further declare that the Supreme Court of India or any High Court in exercise of its inherent jurisdiction has no such original jurisdiction, power or authority in that regard notwithstanding the contrary view held by this Hon'ble Court in Contempt Petition (Crl.) No. 3 of 1994 dated 10.3.1995."

The suspension of an Advocate from practice and his removal from the State roll of advocates are both punishments specifically provided for under the Advocates Act, 1961, for proven "professional misconduct' of an advocate. While exercising its contempt jurisdiction under Article 129, the only cause or matter before this Court is regarding commission of contempt of court. There is no cause of professional misconduct, properly so called, pending before the Court. This Court, therefore, in exercise of its jurisdiction under Article 129 cannot take over the jurisdiction of the disciplinary committee of the Bar Council of the State or the Bar Council of India to punish an advocate by suspending his licence, which punishment can only be imposed after a finding of 'professional misconduct' is recorded in the manner prescribed under the Advocates Act and the Rules framed thereunder. When this Court is seized of a matter of contempt of court by an advocate, there is no "case, cause or matter" before the Supreme Court regarding his "professional misconduct" even though, in a given a case, the contempt committed by an advocate may also amount to an abuse of the privilege granted to an advocate by virtue of the licence to practice law but no issue relating to his suspension from practice is the subject matter of the case.

Upon the basis of what we have said above, we answer the question posed in the earlier part of this order, in the negative. The writ petition succeeds and is ordered accordingly. [Supreme Court Bar Association vs Union Of India, dt 17.4.1998,(1998) 4 SCC 409]

Advocate Insulted by Judge

Three Advocates of this Court have filed this application alleging that a Judge of this Court has committed contempt of Court by making, insulting and uncharitable remarks against an Advocate Dr. Sadanand Jha. While hearing a civil revision application for admission.

Is to be examined as to whether the framers of the Act under Section 16 purported to put Judges of the Supreme Court and High Court at par with the Judges of the subordinate courts making them also liable to be punished under certain circumstances for having committed contempt of the Supreme Court or High Court itself. In this connection it has to be borne in mind that till the Act came in force, no Court in India had taken the view that a Judge of a High Court or the Supreme Court can also be charged for having committed contempt of the High Court or the Supreme Court. As such, before it is held that the expression' Judge in Section 16 of the Act includes a Judge of High Court or Supreme Court, it has to be established that the provisions of the Act purported to enlarge the scope of the Act by including categories of persons who had always been excluded from application of the law of contempt of courts.

There cannot be two opinions that Judges of the Supreme Court and High Courts are expected to conduct the proceedings of the Court in dignified, objective and courteous manners and without fear of contradiction it can be said that by and large the proceedings of the higher courts have been in accordance with well settled norms. On rare occasions complaints have been made about some outrageous or undignified behaviour. It has always been impressed that the dignity and majesty of court can be maintained only when the members of the Bar and Judges maintain their self imposed restriction while advancing the cause of the clients and rejecting submissions of the counsel who appear for such cause. But, it is difficult to lay down any hard and fast rule as to what expression a lawyer can use while addressing a court and what should ordinarily be tolerated by the judge. It is admitted on all counts that a counsel appearing before a court is entitled to press and pursue the cause of his client to the best of his ability while maintaining the dignity of the court. The Judge has also a reciprocal duty to perform and should not be discourteous to the counsel and has to maintain his respect in the eyes of clients and general public.

This is very important because the system through which justice is being administered cannot be effectively administered unless the two limbs of the court act in a harmonious manner.

'An over subservient bar would have been one of the greatest misfortune that could happen to the administration of Justice.’ A lawyer should not conduct in a manner which lowers the dignity of the court or interferes with the administration of justice. A lawyer is under obligation to do nothing that shall detract from the dignity of the court, of which he is himself a sworn officer and assistant. He should at all time pay deferential respect to the Judges, and scrupulously observe the decorum of the court-room.

Administration of Justice in, its true spirit is only possible when members of Bar and Bench both are conscious not only of their rights but also of their limitations, when case is being heard. Hyper sensitiveness on the one side or rudeness on the other must be avoided at all cost. It is not uncommon in history of the administration of justice that tempers have risen high on either side but only for moments and the members of the Bar and Bench have forgotten what passed between them no sooner the cases are over.

This application is dismissed in limine.

Even if an arguable case is made out for the issuance of notice to the opposite party but the word "Judge", as referred to in Section 16 of the Act, completely excludes a Judge of the High Court and, in that view of the matter, the application will be futile and hence dismissed. [Harish Chandra Mishra And Ors. vs Hon’ble Mr. Justice Ali Ahmad, dt 28.9.1985 1986 (34) BLJR 63]

 

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