Contempt Proceedings – What? When? How? Why?

The phrase “Contempt of Court” is derived from the Latin words “contemptuous curiae”.¹ According to Merriam-Webster Dictionary, the word “contempt of court” means, “wilful disobedience to or open disrespect of a court, judge or legislative body.”² In simplest terms, it is an act committed by a person who challenges/diminishes/scandalizes the authority of the court order or undertaking. The judiciary, being an organ of the government is vital as it is responsible for the administration of justice. Any act or feeling that tries to scandalize or malign the authority of the courts will shake the belief of the general public which keeps them on a pedestal. Thus, the courts become duty-bound to punish any person who is trying to harm their reputation and keep the faith of people in the judiciary intact.

Contempt Laws: Origin

The concept of “contempt of court” is not modern but it finds its roots in history. Earlier, the theory that “kings can do no wrong or king is the supreme authority or one must respect the king” were revolving,³ and anyone who used to question or contradict the king was penalized. Thus, the contempt laws in India were found in the pre-independence era and the Contempt of Court Act, 1926 was the first piece of legislation dealing with the issue of contempt. The Act empowered all the High Courts to take cognizance of contempt of itself as well as subordinate courts and impose punishment on the offender.⁴ Post-independence, this Act was repealed by the Contempt of Courts Act, 1952 which also empowered the Courts of Judicial Commissioner to inquire into or try any contempt of itself or courts subordinate to it.⁵ Later, in the year 1960, a bill was introduced to consolidate and amend the existing contempt law in India. A special committee under the chairmanship of Mr. H.N. Sanyal was formed and submitted its report in 1963 and majority of recommendations were accepted and the Contempt of Courts Act, 1971 came into existence and repealed the Act of 1952.

What?

The Contempt of Court Act, 1971 was enacted to define and limit the powers of certain courts in punishing contempt of courts. Therefore, the Courts have to be judicious while exercising the powers conferred by the Act. S.2(a) provides that “contempt of court” means civil contempt or criminal contempt.⁶ So, broadly contempt can be put into two heads: criminal contempt and civil contempt. As per S.2(b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, write, or other process of a court or wilful breach of an undertaking given to a court.⁷ From the plain reading of the provision, it can be inferred that the violation of the order, decree, etc needs to be committed by the one who is deriving or expecting a benefit from the proceedings and it shall be intentional. The term “wilful” was defined in Ashok Paper Kamgar Union v. Dharam Godha and Ors. as “an act or omission which is done voluntarily and intentionally and with the specific intent to do that something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say with bad purpose wither to disobey or to disregard the law.”⁸ Therefore, to constitute contempt of court mens rea is an important element. Since mens rea is an essential element to constitute the wrong, the common defenses available for civil contempt of court are that the act was accidental or that the person was unaware of the directions.⁹

The Act defines “criminal contempt” u/s 2(c)¹⁰ and after plain reading of the provision broadly four elements can be identified to constitute criminal contempt- publication of any matter (by words, signs, or visible representations), scandalizing the authority of the court, interference with the proceedings, interference with the administration of justice. Thus, the courts are empowered to penalize anyone who attempts to shake the faith of the public in the administration of justice. Hence, criminal contempt is more grave in nature than civil contempt.

When?

The Courts can take cognizance of contempt when there is wilful disobedience of a court order, decree, or undertaking and also if a person attempts to scandalize the authority of the court, diminish its authority, interfere with the proceedings of the court, or interfere with the administration of justice. The phrase “administration of justice” is not defined by the Act and thus, it will differ from case to case but the bottom line is that the Courts shall do everything in their power to keep the faith of the public in the judiciary. However, the courts shall exercise the wide powers conferred by the Act cautiously.

Moreover, the contempt proceedings, either suo motu or on the application of an individual, cannot be initiated after 1 year from the date of the commission of the alleged offense.¹¹

How?

The cognizance of contempt cases can be taken by the Supreme Court or High Courts on its motion or if a private individual intends to file the complaint, then he has to seek the approval of the Advocate General or any other person as the Advocate General consents to.¹² After taking the cognizance, a notice needs to be served to the person charged or the court needs to record the reasons for not doing so. If the proceedings are commenced by the motion, then, the notice needs to be accompanied by the motion and affidavits, and if commenced on a reference of a subordinate court then, by the copy of the reference.¹³ The cases of criminal contempt shall be heard by the bench of at least two judges but an exception has been carved out for the Judicial commissioner.¹⁴

The Act has empowered the courts to punish the offender which may range from fine to simple imprisonment which may extend to 6 months.¹⁵ However, it is notable that the court has the discretion to decide the punishment depending upon the facts and circumstances of each case, and thus while determining the guilt and punishment of the wrongdoer, the courts shall keep in mind the purpose of the punishment i.e. compliance of the orders and protecting the authority of the court.¹⁶

Why?

The administration of justice has a vital role to play in maintaining law and order in society. The courts are the guardians and protectors of the rights of the citizens and thus, they are seen as the administrators of justice. The courts have to keep this faith of people alive by ensuring that no one lowers the authority of the court and if anyone does, they have to bear the consequences. However, the courts have to be very cautious while determining what constitutes the criticism of the court and vilification.¹⁷ The Constitution of India gave Courts the power to punish anyone for contempt of itself¹⁸ on one side then, the same Constitution gave the citizens the right to freedom of speech and expression.¹⁹ Thus, to balance the right to freedom of speech and the power of the court to take cognizance of contempt, criticism of the judgments needs to be welcomed as long as it does not hamper the reputation of the courts. However, no right or power is absolute and it can be restricted if anyone tries to cross the justifiable limit.

To conclude, the judiciary cannot be immune from criticism and has to exercise its wide contempt powers not on every occasion but only in special situations. Some broad guidelines were laid down for the Courts to follow while exercising this power which are as follows:

• Wise economy of use by the Court.
• Harmonize the constitutional values of free criticism.
• Avoid confusion between the personal protection of libeled judges and the prevention of obstruction of public justice.
• The fourth estate (media) shall be given free play.
• Not be hypersensitive even when distortions and criticism overstep the limits.
• Evaluate the totality of factors.²⁰