Exercising The Contempt Power- Procedure, Punishment And Exception

KEY TAKEAWAYS

• The contempt of court cases in India are governed by the Contempt of Court Act, 1971.
• Articles 129, 142(2) and 215 of the Constitution of India provide High Court and Supreme Court with the Contempt power.
• The proceedings of contempt are initiated suo motu by the Courts and dealt with in a summary manner.
• The offender is given a fair opportunity to defend themselves before convicting them.
• The punishment for contempt does not extend beyond 6 months of imprisonment and two thousand rupees fine.

INTRODUCTION

Since ancient times, the word “contempt” encompasses the acts which are insults to the Sovereign and the acts which are violative of the direct orders of the Sovereign. In the present legal framework, the most common and important form of contempt is Contempt of Court. The New English Dictionary provides that when the inferior court, servants of the court, officers of the law, or strangers disobey the rules, order or process of a court or disrespect the judges who are working in their judicial capacity, within or without the court, contempt of court is said to be committed.In the Common Law System,the courts have an inherent power to punish the contempt of the Court.

In India, various Statutory provisions have enshrined the power of the Judiciary to punish the contempt and the procedure related to the same for the dispensation of justice. The contempt of court is primarily governed by the Contempt of Courts Act, 1971.However, there are instances where judiciary cannot punish for contempt and are enlisted in the act as well.

CONTEMPT OF COURTS ACT, 1971

The Legislations for the contempt of court was formulated after referring to the related legislation of other countries. The first Contempt of Court Act of 1926 was enacted only in the State of Rajasthan and Saurashtra. The Contempt of Court Act of 1971 was formulated based on the recommendations of the report submitted in 1963 by a committee headed by H. N. Sanyal who was the then Additional Solicitor-General of India. The Act deals with the two forms of contempt- civil and criminal. It defines and limits the Contempt power of the Court and regulates the related procedure.

Section 2(b)- Civil Contempt is defined as the wilful disobedience to the court’s decision, decree, directive, order, writ, or other procedure or wilful breach of an undertaking given to a Court.

In M/S Ashok Paper Kamgar Union and Ors. v. Dharam Godha And Ors., AIR 2004 SC 105, the Supreme Court had observed that the term ‘wilful’ meant that the act or omission which led to the contempt of Court was done voluntarily and intentionally with the specific intent to do something forbidden by law or to omit from doing something that was required to be done by law. It was held that for the constitution of contempt of Court, the order of Court should be of a nature that the alleged offender would be capable of executing the order in normal circumstances and it would not require any extraordinary effort.

Section 2(c)- The following acts are included in the criminal contempt of court:

• Scandalizing or lowering the authority of the Court;
• Prejudicing, or interfering with the due course of a judicial proceeding; and
• Interfering with or obstructing the administration of justice through any form of publication.

In M.V. Jayarajan v. High Court of Kerala, Crl.A. No. 2099 of 2011, the appellant had delivered a speech in a public meeting where he had used unparliamentary words that were directed towards the High Court of Kerala. Further, he was unapologetic for his action. So, he was held to be guilty of contempt of Court.

Section 10- High Courts are even granted the jurisdiction to punish the subordinate court for its contempt.

Section 11- High Court has the jurisdiction to inquire into or try a contempt of itself or subordinate courts in cases where the contempt is allegedly committed within or outside the local limits of the jurisdiction of the High Court.

CONSTITUTIONAL PROVISIONS

In pre-independent India, the Contempt power of Court was quite vast with it being vested in the High Courts as well as the Courts of Princely State. In Independent India, the power is limited to High Court and Supreme Court only. The Constitution of India has laid down the following provisions related to the contempt power of the Court:

• Article 129- Provides that Supreme Court is a court of record and has the power to punish for contempt of itself.
• Article 142(2)- Empowers the Supreme Court to investigate and punish any person for its contempt and to order for the presence of the offender and the production of related documents before itself.
• Article 215- Outlines High Court as the court of records and conferred it the power to punish for contempt of itself.

The 274th Law Commission Report of India had provided that the power of the Supreme Court and High Courts to punish for contempt which is enshrined in the Constitution could not be rescinded by introducing any amendments.

In T. Sudhakar Prasad v. Govt. of A.P. and Ors., JT 2001 (1.) SC 204, it was observed that Articles 129 and 215 of the Constitution recognized the pre-existing jurisdiction of the Supreme Court and the High Courts by virtue of which they could punish for contempt of themselves. The jurisdiction contemplated by Articles 129 and 215 was inalienable and would not be barred by any rules of procedure except for the principles of natural justice.

RELATED PROVISIONS IN IPC

The following offences in the Indian Penal Code constitute the Contempt of Court:

• Section 175- Omission of production of documents or electronic records by a person who was legally bound to produce them to a public servant.
• Section 178- Public servant refusing to make oath or affirmation when duly required.
• Section 179- Refusing to provide a public servant who is legally authorized to question with the answer.
• Section 180- Refusing to sign any statement made by the person themselves when required by a legally competent public servant.
• Section 228- Intentionally insulting or interrupting public servant sitting in judicial proceedings.

CHAPTER XXVI OF CRPC

Chapter of XXVI of Criminal Procedure Code of 1973 provides for the provisions related to the offence affecting the administration of justice. Contempt of Court is one of the most common forms that affect the administration of justice. Section 345 of the CrPC outlines the procedure to be complied with in the cases of contempt.

In Bar Association v. Union of India & Anr, (1998) 4 SCC 409, the Supreme Court had held that the jurisdiction of the power of contempt is exercised to protect the administration of justice from being maligned rather than protecting the dignity of an individual judge. For the interest of the community in general, the authority of courts should not be imperilled and any unjustifiable interference in the administration of justice should be absent.

Sukhdev Singh Sodhi vs The Chief Justice of the Pepsu High Court,1954 SCR 454: AIR 1954 SC 186: 1954 Cri LJ 460,the Supreme Court had held that the Code of Criminal Procedure was not applicable in matters of contempt triable by the High Court. The High Court could deal with the matter summarily by adopting its own procedure. The only necessity was for the procedure to be fair and that the contemnor to be made aware of the charge against him and be given a fair and reasonable opportunity to defend himself.

PROCEDURE

The procedure to initiate contempt proceedings when the contempt is made in the face of the Court has been laid down in Section 14 of the Contempt of Court Act. The said section provides that when it is alleged or it appears to the Supreme Court or the High Court that a person is guilty of contempt of court, the Court suo motu initiates the proceedings against the person. The alleged offender might be detained in custody and the Court has to discharge the following duties as early as possible:

• Inform the offender of the contempt with which he is charged in the form of writing,
• Offer him the opportunity to defend himself against the charge,
• Proceed with the determination of the charge while considering the necessary and recorded evidence, and
• Accordingly, pass the order for punishing or discharging the offender.

It is provided that in cases where the contempt is allegedly committed in the face of the court, the charge is required to be tried by any Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed. This is practical in the interests of the proper administration of justice. The said provision does not necessitate the appearance of the Judge or Judges in whose presence or hearing the offence was allegedly committed as the witness. Further, during the pendency of the proceeding, the alleged offender could be kept in detention unless released on bail. For the bail, a bond for a sum of money as deemed fit by the Court can be executed with or without sureties condition that the offender will continue to be present at the time and place mentioned in the bond unless otherwise directed by the Court.

Section 15 of the Contempt of Court Act read with Section 17 of Section 18 outline the procedure to be followed in the criminal contempt cases. Section 345 of CrPC also provides for the procedure in the cases of contempt. The Supreme Court and the High Court take actions in such cases suo motu or on a motion made by the Advocate-General, or by any other person, with the consent in writing forwarded to the Advocate-General. The offender will be detained in custody and the offence will be taken into cognizance. The Court is required to record the fact constituting the offence along with the statement made by the offender and the finding and sentence. The offender is given a reasonable opportunity to show the cause why they should not be punished for the offence and then, the case is determined. For the offence committed under section 228 of the IPC, the nature and stage of the judicial proceeding of the Court which was subjected to contempt will be recorded along with the nature of the inflicted contempt.

The procedure followed in the trial proceedings is summary. In accordance with Section 17 (5) of the Contempt of Court Act, the offender can seek defence by filing an affidavit. The cases of criminal contempt are to be adjudicated by a Bench consisting of no less than two Judges. However, the same is not applicable for the Court of a Judicial Commissioner.

Section 20 of the Contempt of Court Act provides that the proceedings against the contempt of court have to be initiated before the expiry of a period of one year from the date on which the contempt was allegedly committed. The Supreme Court in Pallav Sheth v. Custodian and Ors., 2001 (7) SCC 549: 2001 AIR SCW 3025,had held that in cases of criminal contempt of subordinate Courts, the proceeding was required to be initiated by subordinate Courts within one year from the alleged date of contempt.

PUNISHMENTS

The Offender is punished for the contempt of the Court after they fail in the opportunity granted to them. Section 12 of the Contempt of Court Act provides that the offender charged with contempt of court will be punished with simple imprisonment extending for a term of six months or a fine of two thousand rupees, or both unless expressly provided in any statute. However, the court is barred from imposing the sentence in excess for a period extending beyond six months. For civil contempt, the Court can even detain the offender for a term which will not extend beyond six months instead of imposing a fine to meet the ends of justice. When a company is held guilty of contempt, the persons in charge of and responsible to the company for conducting business will be deemed to be guilty and will be punished with the leave of the court and they will be detained in the civil prison.

In Re: Arundhati Roy case, AIR 2002 SC 1375, the famous writer and activist had authored an article which misrepresented the Court proceedings and attempted to malign the institution of judiciary. The Supreme Court had opined that even in the affidavit filed by her, the respondent had demeaned the authority of the Court and tarnished its reputation and convicted her for contempt. She was imprisoned for a day and fined two thousand rupees.

In Prashant Bhushan and another, Suo Motu Contempt Petition (Crl) No. 1 of 2020 3 2019 SCC OnLine SC 1786 4, the accused who was a practising advocate was in constant limelight due to his criticism targeted at the Judiciary. His tweets in 2020 were taken into suo motu cognisance by the Supreme Court and a notice was issued to him providing an opportunity to defend himself. The Court had concluded that the tweets were lowering the authority of the Court and they were directed to the Supreme Court as a whole. Further, the accused did not apologise for the contempt committed by him. He was penalised with a nominal fee of one rupee which was required to be deposited with the Registry of the Court.The failure to carry out the deposit would lead to his imprisonment for three months and suspension of his practice licence.

PROCEEDINGS AGAINST LEGAL PROFESSIONALS

Equality has been placed in the Preamble and Part III of the Constitution of India. In the eyes of law, all citizens are equal. So, there are incidences when legal professionals are charged with contempt of court.

In Justice C.S Karnan vs The Hon'ble Supreme Court of India, AIR 2017 SC 3191, the petitioner was a sitting judge in the High Court of Calcutta when a seven Judge Bench comprising of senior-most members of the Supreme Court had instituted suo motu contempt against him and issued the notice for his presence before the court. The petitioner was stripped of his judicial duties and he was given more than ample opportunity to file his response. He had not availed his opportunity to tender his response and further, made contumacious statements to the press. He was held guilty of contempt and was sentenced for a period of 6 months and his petition assailing the conviction order was dismissed.

In Mahipal Singh Rana v. the State of UP, AIR 2016 SC 3302, the appellant who was an advocate was found guilty of criminal contempt for intimidating and threatening a Judge. For the Contempt, he was sentenced to short term imprisonment and fine and he was restrained from entering the premises of the court. He was even debarred from appearing and practising in the Court.

EXCEPTION

There are certain cases when contempt of court is not punishable as mentioned in Section 13 of the Contempt of Court Act.

• When it is not satisfactorily proved that the contempt is of such nature that it substantially interferes, or tends to substantially interfere with the due course of justice. In P. N. Duda vs V. P. Shiv Shankar & Ors., 1988 AIR 1208, 1988 SCR (3) 547,it was held that the speech given the Respondent had not obstructed or destroyed the Judicial Process and therefore, the offence of contempt was not constituted
• When the Court is satisfied that the contempt was in the public interest, the Court permits the justification by truth as a valid defence.

Section 12 of the Act provides that a sincere and genuine apology from the offender might discharge him or the penalty awarded to him might be remitted. In Suresh Chandra Poddar v. Dhani Ram, (2002) 1 SCC 766, the unconditional apology tendered by the contemnor was accepted and the contemnor was discharged of the offence by the Supreme Court. It was held that the Courts were expected to show judicial grace and magnanimity while dealing with the action for contempt.

The Contempt of Court Act from section 3 to section 6 provide for the exception to the contempt of Court.

• Section 3 of the Act provides that if at the time of publication, the person had no reasonable grounds to believe that a related proceeding was pending, the publication will be deemed to be innocent would not amount to contempt.
• Section 4 of the Act provides that the person publishing a fair and accurate report of a judicial proceeding or any stage will not be held guilty of contempt. In Rama Dayal Markarha v. State of Madhya Pradesh, [1978] 3 S.C.R. 497, it was held that fair and reasonable criticism of a judgment which was a public document or which was a public act of a Judge concerned with the administration of justice would not constitute contempt. The said criticismwould include the assertion that the judgment was incorrect or an error had been committed both with regard to law or established facts.
• Section 5 of the provides that the person publishing any fair comment on the merits of any case which has been heard and finally decided will not be held guilty of contempt.In E. M. Sankaran Namboodiripad v T. Narayanan Nambiar, 1970 AIR 2015, the Court had given freedom of speech and expression supremacy over the contempt power of the Court when there is no substantial and malicious contempt.
• Section 6 provides that a bona fide complaint made against the presiding officers of subordinate courts to another subordinate court, or to the High Court to which the court is subordinate does not constitute contempt.

CONCLUSION

In modern times, the judiciary is a refuge that comes to the rescue when the Legislature exceeds its limits. However, there is a lack of an institution to keep a check on the judiciary in case it exceeds its limits. There is an ongoing debate among legal scholars whether the contempt power of the Court is inherent to the Judiciary or not. In India, contempt power is considered to be inherent to the High Court and Supreme Court. On one hand, the contempt power of the Court ensures the administration of justice. On another hand, the excess use of this power will restrict the freedom of expression of people. The present legal framework, however, has enough safeguards to protect the freedom of people and consolidate the democratic structure of the country.