Background:
Administration of justice is one of the divine duty of a civilized State and interference with it cannot be accepted. Image of a State depends on the administration of justice it provides to its subjects. Any violation to that derogates the reputation of the holy institution (Courts), which no State would bear. The present-day concept of Contempt originated from English law’s ‘les majeste’. In India, the concept existed even in the days of Kautilya. He mentioned:
“ Defamation of one’s own nation or village shall be punished with the first amercement …..; and that of goods or temples with the highest amercement.”[i]
“Any person who insults the King betrays the King’s Council, makes attempts, or disregards the sanctity of the kitchens of Brahman’s shall have his tongue off.”[ii]
He also provided that judges themselves were not above the contempt laws.[iii]
The Moghul period also followed the concept but the modern law of contempt was developed by British administration where all courts of record had the inherent power to punish for their contempt. Mayor’s Court of 1726, Supreme Court of Judicature(1774), Sadar Diwani Adalat(1781), High Courts at Calcutta, Madras, and Bombay(1861) were made Court of Record and they could punish for their contempt.
In 1926, the Contempt of Courts Act was passed but being an incomprehensive legislation, it was not very useful. After independence, Parliament enacted the Contempt of Courts Act, 1952. It tried to overcome the deficiencies of the previous legislation but failed to do so. It did not provide contempt proceeding against Judges, no grounds for the defense was there and it also failed to provide a procedure for contempt cases.
The comprehensive legislation was enacted as the Contempt of Courts Act, 1971. The other subsidiary allied aspects of contempt are covered by Indian Penal Code,1860(section 228), the Code of Criminal Procedure,1973(section 195, section 197 and section 340) and the Code of Civil Procedure,1908(Order XXXIX Rule 2A read with Section 151).
Meaning and Definition:
The term ‘Contempt of Court’ is too wide to define however jurists have tried to explain it. Oswald defines contempt as “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 witnesses during litigation.”[iv]
The Supreme Court of India also tried to cover the aspects of contempt and observed:
“If an impression is created in the minds of the public that the judges in the highest courts in the land act on extraneous consideration in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief that that can possibly be imagined. It is, therefore, a contempt.”[v]
Kinds of Contempt:
The Act of 1971, however, does not define the term contempt of court but Section 2(a) of the Act classifies contempt of court. It says “contempt of Court” means civil contempt or criminal contempt. Section 2(b) says- “civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or other processes of a Court…” “Criminal Contempt” is defined under section 2(c). It means any publication(either by words spoken or written, by signs, by visible representation or otherwise, which: lower downs or tends to lower down the authority of Court, or scandalizes or tends to scandalize the authority of Court, or interfere of tends to interfere with judicial proceeding or obstructs the administration of justice in any manner.
“Civil contempt involves only the willful disobedience of the Court’s order or breach of undertaking given to the Court while the criminal contempt involves the defiance of the Court revealed in conduct which amounts to obstruction or interference with the administration of justice.”[vi] “Criminal contempt is directed against the power and dignity of the Court and private parties have little, if any, interest in the proceedings for punishment.”[vii]
Procedure in contempt cases:
The rules to regulate Proceeding for Contempt of Supreme Court were framed by Supreme Court in 1975 and approved by the President of India. The Act of 1971 lays down the procedure in following sections:
Section 14. Procedure where contempt is in the face of the Supreme Court or A High Court.
This provision provides a complete procedure in itself. It does not apply to contempts in the face of the subordinate Courts. It only applies where the alleged offense has been committed in the presence or hearing of the Court. The Court may then cause such person to be detained in custody and before the rising of the Court shall give him notice in writing about his contemptuous charge. The Court shall also hear his part and then make such order for punishment or discharge. The sub-section 2 of the provision provides that the Judge who charges such person will not hear the contempt case and it shall be tried by some Judge other than him. The statement of the facts shall be placed before the Chief Justice of the Court and it shall be treated as evidence in the case and the Judge in whose presence or hearing the offense is alleged to have been committed shall not be required to appear as a witness. The Court may direct that the person charged with the alleged offense shall be detained in custody, but he shall be released on bail, with or without a surety bond.
Section 15. Cognizance of criminal contempt in other cases.
This section deals with the criminal contempt other than those under section 15. It provides that the Supreme Court or the High Court may take action on their own or on a motion made by, the Advocate-General, or any person with the consent of Advocate-General. In case of criminal contempt of a subordinate Court, the High Court may take action on a reference of the subordinate court or the Advocate General. Here “Advocate-General” includes “Attorney-General” and “Solicitor-General”.
Section 17. Procedure after cognizance.
It provides that notice to every person charged under section 15 shall be served personally. The notice shall be accompanied with the affidavits on which the motion has been made. The Court may attach his property if it thinks that such person may abscond. The person so charged may file an affidavit in his defense and the court may decide the matter on the affidavit or evidence so required and pass such order as may be required.
Section 18 provides that every case of contempt under section 15 shall be heard by a Bench not less than two Judges.
Section 20 provides the limitation period for commencement of the proceeding for contempt that is one year from the date on which the contempt is alleged to have been committed.
In Omprakash Jaiswal v. D.K. Mittal[viii], the Court held that it is only when the Court has found opinion that a prima facie case for initiating proceedings for contempt is made out and that the alleged contemners should be called upon to show cause why they should not be punished, then the Court can be said to have initiated proceedings for contempt.
Punishment: the punishment for contempt of Court may be simple imprisonment for a term which may extend to six months, or fine which may extend to two thousand rupees or both.
Apology: Section 12 makes it clear that the accused may be discharged or the punishment may be remitted on his apology if the Court is satisfied with that. However, an apology is not a weapon of defense to purge guilt. Apology tendered at the time the contemner finds that the Court is going to impose punishment is not apology liable to be rejected.[ix]
Section 19. Appeal.
An appeal is a right of the alleged contemner. The appeal may be done before a Bench of two judges, where the order is of a single judge or to the Supreme Court, where the order is of a Bench. The Appellate Court may order for execution of punishment, or suspension of the order, or the release of the appellant if he is in confinement. The limitation for filing the appeal in High Court is thirty days and in Supreme Court is sixty days.
Contempt by Judge, Magistrate or other person acting judicially
Section 16 makes Judges, Magistrates and other persons acting in judicial capacity liable for contempt of courts. These persons may be liable for their own court or any other court in the same manner as an individual is liable. But it provides them to make an observation or remark against any judgment or order of the subordinate court in an appeal or revision. These acts will not amount to contempt of court.
If the inferior or subordinate court does not follow the law laid down by a superior court, it will amount to contempt of court. Refusal by the inferior court to follow the law laid down by the superior court will, no doubt, result in the serious interference with the administration of justice. It will also bring the seat of justice into disrespect in the eyes of the public.[x]
Contempt by Advocates
Heating arguments often lead to contempt of court by advocates. Instances like using insulting language against a Judge, making scandalous allegations against a Judge, suppressing the facts to obtain a favorable order, imputation of partiality, unfairness against the Judge have resulted into contempt in past. Even if a council refuses to answer the questions of the court, he’ll be liable for contempt of Court.[xi] In re Ajay Kumar Pandey, Advocate,[xii] the Supreme Court has held that advocate using intemperate language and casting unwarranted aspersions on various judicial officers and attributing motives to them while discharging their judicial functions would be held guilty of gross contempt of Court.
Defences available to contemner
Sections 3 to 7 provides for the defenses available to a contemner in the proceeding. Section 3 talks about innocent publication and distribution of matter. A person shall not be guilty of publishing any matter which interferes or tends to do so or otherwise, the course of the judicial proceeding if at the time of publication he had no reasonable grounds for believing that the proceeding was pending. The same provision applies to distribution, if a person without such knowledge distributes the publication, that distribution shall not amount to contempt.
Section 4 talks about the fair and accurate report of a judicial proceeding. In Subhash Chandra v. S.M. Agarwal, AIR 1984, it was observed that ‘judicial proceeding’ means the day to day proceeding of the Court. The media report must represent the fair and accurate proceeding and not a one-sided picture.
Section 5 provides for fair criticism. No person making fair criticism on the merits on the merits of a decided case shall be guilty of contempt of Court.
Section 7 says that publication of information relating to proceeding in chambers or “in camera” not amount to contempt but except certain cases like where the public policy may be hampered and the court has prohibited the publication, or the information relates to a secret process or discovery of information which is an issue in the proceeding.
Section 6 says that when any complaint against a presiding officer of a subordinate court to any other subordinate court of the High Court shall not amount to contempt when it is done in good faith.
Conclusion
Uncourteous activities lead to contempt of Court. To avoid such unfortunate occasions the Bench-Bar relations must be strong. In words of Justice R.J. Kochar: “ If the independent judiciary is the pillar of the Democracy, the Bar is the Foundation of the independent Judiciary. The Bar is the mother of Bench….” It is up to the mutual understanding of the Judge and the Advocate to tackle tough situations. One is not supposed to defeat other. A balance between them would result in the better administration of judiciary. The rule of law should prevail and no one should be given an upper hand over others.
[i] Shamasastry, Kautilya’s Arthasastra, Fourth Edition, p. 219
[ii] Ibid., at p. 257
[iii] Ibid., at p. 252
[iv] Contempt of Court, Third Edition, p. 5.
[v] Aswini Kumar v. Arabinda Bose, AIR 1953 SC 75
[vi] Dulal Chandra Dhar v. Sukumar Banerjee, AIR 1958 Cal 474
[vii] American Jurisprudence, Vol. 17, pp 7-8(2nd Edn.)
[viii] AIR 2000 SC 1136
[ix] T.N. Godaverman Thirumulpad v. Ashok Khot, AIR 2006 SC 2007
[x] Barad Kant Mishra v. Bhimsen Dixir, (1973) 1 SCC 446
[xi] In re Vinay Chandra Mishra, AIR 1995 SC 2348
[xii] AIR 1998 SC 3299
