Contempt of Court : A Critical Appraisal.

Contempt of Court: A Critical Appraisal

Author: Harshit Sharma, Amity Law School,  M P.

1. Introduction

Before going into the depth analysis of Contempt of Court and the laws which governs the same concept, we must first have a look at the diverse meaning of contempt and its utility in the field of law. In general parlance, contempt is an act which has or ought to cause disrespect to anything or anyone which in general senses has to be obeyed, respected or followed.

According to the Oxford Dictionary, “Contempt is the state of being despised or dishonored; disgrace” or “(specifically in relation to COURTS) The offence of being disobedient to or disrespectful of a court of law and its officers”.[i]

Similarly, on account of the definition of ‘Contempt’, Halsbury has beautifully portrayed the concept of Contempt of Court as “consisting of words spoken or written which obstruct or tends to obstruct the administration of justice”.[ii]

Oswald also remarks in this behalf that, “Any conduct that tends to bring the authority and administration of law into disrespect or disregard or to interfere with or prejudice parties or their witness during litigation is considered to be contempt of court.”[iii]

IMAGE 1: Illustration of Contempt of Court.[iv]

In the Indian Context, the action of Contempt of Court is governed by the CONTEMPT OF COURT ACT, 1971 and the same defines the ‘Contempt of Court’ as ‘Contempt of Court means, Civil Contempt or Criminal Contempt” (Section-2(a).[v]

To further clarify the above definition, the Civil and Criminal Contempt is defined by the Act as:

“Section-2(b): Civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other processes of a court or wilful breach of an undertaking given to a court;

Section-2(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) 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;”[vi]

FLOWCHART 1: General types of Contempt of Court.[vii]

1. Historical Perspective of Contempt of Court

The concept of Contempt of Court owes its origin from the phrase‘Contemptus curiae’ in the English Law and the ancient era has witnessed the contempt cases in the King’s Court, where instead of Judges, King were the one who decided the cases & disputes that arose within his territory or Rajya.

The concept of ‘Contempt of Courts’ in India has its origin from British Administration, which originated from an undelivered judgement of J Wilmot in 1765, where all the judges said that ‘the power of contempt of court was necessary to maintain the dignity of judges and vindicate their authority.

In the landmark case of Surendra Nath Banerjeev/s. The Chief Justice and Judges of High Court at Fort William in Bengal[viii], Privy Council observed that “…a high court derives its power to punish for contempt from its own existence or creations. It is not a power, conferred upon it by law”. In 1926, the Contempt of court Act was passed to bring transparency in the concept of contempt of court and to punish for the contempt of subordinate courts.”

But this Act did not contain any provisions regarding the contempt of courts lower to Chief Courts and Judicial Commissioner’s court. Therefore, it was replaced by Contempt of Court Act, 1952.But the Act of 1952 was again replaced by Contempt of Court Act, 1971 on the recommendations of the committee headed byH. N Sanyal[ix]. This was done because of the dissatisfactory, uncertain and undefined nature of Contempt of Court Act, 1952.

Subsequently, Contempt of Court Act, 1971 was passed by the India Parliament in a very pragmatic way and it actually beautified the idea of justice and overhauled the entire law relating to contempt in the country.[x]

IMAGE 2: Contempt of Court.[xi]

• Constitutional Validity of Contempt of Courts Act 1971

The Constitution of India envisages the following provisions in relation to the Contempt of Court:

“Firstly, to provide, Entry 77 of List-I (Union List) provides “77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court.” And Entry 14 of List-III (Concurrent List) provides “14. Contempt of court, but not including contempt of the Supreme Court.”

Article 129states that the Supreme Court shall be a court of record and shall have all the powers of such court, including the power to punish for contempt of itself.

Article 215provides that every High Court shall be court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Article 142(2) showcases that the Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any document, or the investigation or punishment of any contempt of itself.

The Contempt of Courts Act is not violation of guarantee of equality and Article 14 as the classification of a founded on the intelligible differentia whichdistinguishes personsor things that are grouped together from other left out of the group and the differentia has a rational relation to the object thought to be achieved by the statute in question is reasonable.

Furthermore, as the existing law relating to contempt of court imposes reasonable restrictions within the meaning of Article 19(2) and therefore, it is not violative of the fundamental right to freedom of speech and expression guarantee by Article 19 (1)(a) of the Constitution.”[xii]

Hence, on the above contentions and provisions of the Constitution of India, the Contempt of Court Act of 1971 stands valid& intra vires to the Indian Constitution on all premises.

1. Punishment for Contempt of Court & Limitation for initiating Contempt Proceedings

The punishment for the Contempt of Court has been enshrined under Section-12 of the Contempt of Courts Act 1971, which is reproduced as follows:

“12. Punishment for contempt of court. —

(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: —(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both\:” Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Explanation. —An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

(2) Notwithstanding anything contained in any other law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.

(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.

(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person: Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.

(5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.

Explanation. —For the purposes of sub-sections (4) and (5), —

(a) “company” means anybody corporate and includes a firm or other association of individuals; and

(b) “director”, in relation to a firm, means a partner in the firm.”[xiii]

Thus, there are different provisions for individuals, companies in respect of Civil and Criminal Contempt.

Moreover, Section 20 the same Act has professed the Limitation period for initiating the contempt proceedings, from the time the contempt took place, which is hereby provided in the raw language of the Statute:

“20. Limitation for actions for contempt. —

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.”[xiv]

Analysing the limitation clause, it doesn’t provide the provision of condonation of delay and therefore as the period of 1 years is expired, the court is absolutely barred to initiate the Contempt Proceedings, which has been very well recognised by the Hon’ble Supreme Court in the case of Baradakanta Mishra Vs. J.Gatikrushna Misra[xv]. Thus, application of Section-5 of the Limitation Act 1963 in whole senses is inapplicable in this regard.

1. Procedure to be adhered during the Contempt Proceedings

The procedure regarding the contempt proceedings differs on two contexts, one for when the contempt is done on the face of the court itself and second when it is not done on the face of the court. I lieu of the same, section 14 of the Contempt of Court Act deals with the former, whereas latter is dealt by the provisions of Section 15 of the same Act.

Apart from the general principles of Natural Justice being adhered, the Section 14 provides for the following procedure for the continuance of the contempt proceedings before the Supreme Court and High Courts in India:[xvi]

“…. whenever it appears to the Supreme Court and the High Courts that a person appears to have committed contempt in its presence or hearing the court may cause such person to be detained in custody. And shall at any time before the rising of the court on the same day or as early as possible, thereafter:

1. Cause him to be informed in writing of the contempt with which he is charged.
2. Afford him an opportunity to make his defence in respect of the charge.
3. After taking such evidence as may be offered by such person and after hearing him proceed either forthwith or after adjournment to determine the matter of the charge.
4. Make such order for the punishment or discharge of such person as may be necessary.

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 placed before the Chief Justice with the statement of facts of the case for transfer before such judge as the Chief Justice may think fit and proper under the circumstances of the case.

However, it shall not be necessary for the judge or Judges in whose presence or hearing the contempt is alleged to have been committed to appear as a witness before the Court where the matter has been referred. The statement of facts of the case written by the judge or Judges while referring the matter to the Chief Justice shall be treated as evidence in the case.

In Sukhdev Singh vs. Teja Singh[xvii], the Apex Court observed that the judge himself before whom the action of contempt took place, should refrain from initiating and to prise over the contempt proceedings and for the purpose of the same, shall refer the case to Chief Justice or the person aggrieved on an application also can do so, for the nomination of appropriate bench for them disposal of the same. This is necessary to upheld the Principles of Natural Justice and to abide to the principle stating‘justice should not only be done, but it must appear to have been done’.

In those cases, where the Contemnor (person committed Contempt) has been detained in custody, during the pendency of the Contempt case, he may be released on Bail or on furnishing bond with or without sureties, that he shall continue to attend the Court proceedings.

In the second instance, where the Criminal Contempt has ben committed outside the Court, the following procedure provided under Section 15 is to be complied with:[xviii]

This form of contempt is also termed asConstitutive Contempt. Section 15(1) deals with cognizance of criminal contempt by courts of record whereas Section 15(2) deals with criminal contempt of sub-ordinate courts.

Section 15(1) provides that cognizance for criminal contempt can be taken by the Supreme Court and High Courts in the following manner:

1. On its own motion
2. On the motion of the Advocate General
3. On the motion of any other person, with the consent, in writing, of the Advocate General.
4. On the motion of such law officer in relation to the High Court for the Union Territory of Delhi as the central government may notify.

Section 15(2) provides that in case of criminal contempt of a sub-ordinate court, the concerned High Court may take action in the following manner:

1. On the reference made to it by the sub-ordinate court.
2. On the motion made by the Advocate General.
3. On the motion made by such law officer in relation to a Union Territory as the Central Government may specify.

Section 15(3) provides that every motion or reference shall specify the contempt of which the person charged is alleged to be guilty. The expression “advocate general” in this section means the following:

1. in relation to the Supreme Court, the Attorney General or the Solicitor General.
2. In relation to a High Court, the Advocate General of the states for which High Court has been established.
3. In relation to the court of the judicial commissioner, such law officer as the central government may specify.

Bar on Private Persons

Section 15 clearly provides that without the consent of the Attorney General or the Advocate general, as the case may be, an individual cannot bring a contempt case, the reason is quite clear, that it is for the purpose of saving court’s time and to avoid frivolous & flooding of the Contempt Cases (for personal interest or grudge) to the Courts of Law (Hari Kishan vs. Narottam Das Shastri).

Furthermore, if this procedure is not adopted, the petition so made to the Court, is liable to be dismissed on this ground only, without going into the merits of the case.[xix]

Serving of Notice is required

Moreover, in the cases of contempt committed outside the court, the Contemnor isn’t present in the court and therefore a notice is to be served on him as per the requirements of section 17 which provides that the notice should be served personally, unless the Court for the reasons recorded, directs otherwise.

The notice so required, shall be accompanied by the following documents:

1. In case of proceedings commenced on a motion, by the copy of the motion along with affidavit and material on which such motion is founded.
2. In case of proceedings on a reference by a subordinate court, by a copy of the reference.

If the court is of the opinion that the person charged under section 15 is likely to abscond or is likely to avoid the service of notice, the court may order the attachment of the property of such person. However, the court may release the property from attachment if the person appears and satisfies the court that he did not abscond or avoid the court’s notice. And person so charged with the Contempt offence, can also present his defence through affidavit, which is admissible in the Court of Law and the case may be decided on the same or after taking such evidence, as may be necessary for effectuating justice.

FLOWCHART 2: Defences which could be raised to evade Contempt Charges.[xx]

1. Conclusion & Suggestions

Law is regarded as the noblest of all professions, and it is the duty of the society to give respect and regard to the Court. Any action of disrespect, disregard or which hampers the justice delivery system to work effectively, requires to be sanctioned with the object to reform and deter other for not indulging in such type of activities. Therefore, the need of such law was required and it is must for the establishment of an independent & impartial judiciary.

But, even after analysing the whole scenario and laws regarding contempt, it is still a dilemma that how far the Freedom of Speech & Expression be exercised and what is that border line beyond which the charges of Contempt are attracted.

Moreover, there is no uniform or strict jacket test to determine, to what extent of speech & expression can attract Contempt Charges, as it very well depends on the will & discretion of the Judge and this pre-disposition or prejudice. Sometimes, it can go on for personal reasons too, which is a serious question posed by the same.

Therefore, it is beautifully quoted that,

“I will reward the media if they come out with the truth” “I personally believe that truth should be a defence in a contempt case”[xxi]

• Justice Khare

But what the truth is, all depends on the perception of the Judge and Society. As it is seen, nothing is truth or lie, the same is the manifestation of thoughts & ideas.

HEAD-NOTES

[i]English Oxford Dictionary, Contempt, ENGLISH OXFORD DICTIONARY (Jan. 28, 2019, 01:49 PM), https://en.oxforddictionaries.com/definition/contempt.

[ii]SRD Law Notes, Define Contempt, Civil and Criminal ContemptAccording to Contempt of Court Act 1971, SRD LAW NOTES (Jan. 28, 2019, 02:04 PM), https://www.srdlawnotes.com/2017/03/define-contempt-civil-and-criminal.html.

[iii]Law Teacher, Object of Law of Contempt, LAW TEACHER (Jan. 28, 2019), https://www.lawteacher.net/free-law-essays/administrative-law/object-of-law-of-contempt-administrative-law-essay.php.

[iv]Selina Lum, Keep calm and carry on commenting responsibly, THE STRAIT TIMES (Jan. 28, 2019, 01:53 PM), https://www.straitstimes.com/opinion/keep-calm-and-carry-on-commenting-responsibly.

[v]Indian Kanoon, Section- 2(a) of Contempt of Courts Act 1971, INDIAN KANOON (Jan. 28, 2019, 06:39 PM), https://indiankanoon.org/doc/638631/.

[vi] Indian Kanoon, Contempt of Courts Act 1971, INDIAN KANOON (Jan. 28, 2019, 06:46 PM), https://indiankanoon.org/doc/1396751/.

[vii]Held Law Firm, Three types of Contempt, HELD LAW FIRM (Jan. 28, 2019, 06:54 PM), https://www.heldlawfirm.com/10/types-of-contempt/.

[viii] Surendra Nath Banerjee v/s. The Chief Justice and Judges of High Court, I.L.R. 10 Cal. 109 (Privy Council).

[ix]In 1962 a Committee headed by H.N. Sanyal, the then Solicitor General of India, was appointed by the Government of India to review and suggest modifications in the law of contempt of court. The Committee in its report stated the summary jurisdiction to punish for contempt of court.

[x]Anubhav Pandey, All you need to know about Contempt of Court, IPLEADERS (Jan. 28, 2019, 07:22 PM), https://blog.ipleaders.in/contempt-of-court/.

[xi]Anupam Shukla, Contempt of Court: Concept and Practicality, KAILASHA FOUNDATION (Jan. 28, 2019, 07:28 PM), https://kailashafoundation.org/2017/11/23/contempt-of-court/.

[xii] SRD Law Notes, Constitutionality of the Contempt of Courts Act 1971, SRD LAW NOTES (Jan. 28, 2019, 07:57 PM), https://www.srdlawnotes.com/2016/02/constitutional-validity-of-contempt-of.html.

[xiii] India Kanoon, Section 12 of Contempt of Courts Act 1971, INDIAN KANOON (Jan. 28, 2019, 08:14 PM), https://indiankanoon.org/doc/269047/.

[xiv]Indian Kanoon, Section 20 in the Contempt of Courts Act 1971, INDIAN KANOON (Jan. 28, 2019, 08:22 PM), https://indiankanoon.org/doc/1436/.

[xv]Baradakanta Mishra Vs. J.Gatikrushna Misra, A.I.R. 1974 S.C. 2255 (India).

[xvi]Vidhi K. Kumar, Contempt of Court: Analysis, LEGAL SERVICES INDIA (Jan. 29, 2019, 07:26 AM), http://www.legalserviceindia.com/legal/article-472-contempt-of-court-analysis.html.

[xvii] Sukhdev Singh v/s. Teja Singh, A.I.R. 1954 S.C. 186 (India).

[xviii]Supra, xvi.

[xix]Biman Basu vs Kallol Guha Thakurta, Cr. A. No. 607 of 2005 (India).

[xx]Advocate John, Defences in Criminal Contempt, PATH LEGAL (Jan. 29, 2019, 08:02 AM), http://www.pathlegal.in/-Defences-in-Criminal-Contempt–blog-1281964.

[xxi]Pooja Vikram, Contempt of Court: An Analysis, LEGAL DESIRE (Jan. 29, 2019, 08:16 AM), https://legaldesire.com/contempt-court-analysis/.