1

JAMIA MILLIA ISLAMIA

CLINICAL COURSE-III

CONTEMPT OF COURT AND ITS KINDS

{If we desire respect for the law, we must first make the law respectable……. Louis
D Brandeis}

Professional Ethics

Submitted to:

Mr. Sukesh Mishra

(Faculty, Clinical course- III)

Submitted by:- Butool Zehra , Sec-B, roll 09
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ACKNOWLEDGEMENT

I have written this project “CIVIL AND CRIMINAL CONTEMPT”, under the kind guidance of Mr.
Sukesh Mishra.

I have no words to express my sense of gratitude for Mr. Mishra for providing the necessary guidance
and constant encouragement at every step of the endeavor. The pain taken by him for the scrutiny of
rough drafts as well as their valuable suggestions to plug the loopholes therein have not only helped me
immensely in making this work see the light of day but above all has helped in developing an analytical
approach to this work. I am extremely grateful to my respected teacher for his co-operation and
guidance and his valuable time. I am highly indebted to the library staff of the college for the support in
cooperation extended by them from time to time.

With regards

Butool Zehra

Roll.No.- 09

Semester – IXth
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TABLE OF CONTENTS

1. RESEARCH METHODOLOGY…………………………………………………………4
2. INTRODUCTION…………………………………………………………………………6
3. CONTEMPT MEANING AND DEFINITION…………………………………………..8
4. ORIGIN AND DEVLOPEMNET OF LAW IN INDIA…………………………............10
5. CONTEMPT OF COUTY AND INDIAN JUDICIARY…………………………………20
6. OBJECT AND PURPOSE…………………………………………………………………24
7. KINDS OF CONTEMPT……………………………………………………………………26
8. DISTINCTION BETWEEN CIVIL AND CRIMINAL CONTEMPT…………………….31
9. PUNISHMENT UNDER COA……………………………………………………………..40
10. PERIOD OF LIMITATION………………………………………………………………42
11. DEFENSES IN CIVIL CONTEMPT………………………………………………………45
12. DEFENSES IN CRIMINAL CONTEMPT………………………………………………48
13. ARUNDHATI ROY CASE………………………………………………………………..51
14. REMEDIES AGAINST ORDER OF PUNISHMENT……………………………………54
15. PROCEDURE IN PROCEEDING………………………………………………………..55
16. CASE STUDIES……………………………………………………………………………59
17. ANALYSIS………………………………………………………………………………..65
18. NEED FOR FRESH LOOK……………………………………………………………….67
19. CONCLUSION………………………………………………………………………………70

RESEARCH METHODOLOGY

Method of Research
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The researcher has adopted a purely doctrinal method of research. The researcher has made extensive
use of the available resources at library of the Jamia Millia University and also the internet sources. The
approach has been primarily descriptive and analytical.

Aims and Objectives

The aim of the project is to present an overview of various aspects of contempt of court and its usability.

Scope and Limitations

Though the current topic is an immense project and pages can be written over the topic but due to
certain restrictions and limitations the researcher has not been able to deal with the topic in great detail.

The project limits itself in understanding the concept of contempt of court. This paper traces the
historical jurisprudence of the concept and the latest developments and the contempt as understood
under both UK systems and US.

Hypothesis

The law of contempt, which developed under the common law system, has been clearly defined by the
English courts. Even though the Indian courts have deliberated a number of times on contempt law, they
have given different interpretations and still the law of contempt is ambiguous under the Indian system.

Research Questions
1. What is contempt of court?
2. Why is there a necessity of this concept?
3. What is contempt understood in other jurisdictions?
4. Is the Contempt of Courts Act, 1971 a comprehensive legislation?
5. What is the response of Indian Judiciary to this concept?
6. What ought to be contempt of court?

Sources of Data:
The following sources of data have been primarily used in the project-
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1. Books

2. Journals

3. Cases

Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation

The researcher has followed the bluebook method of citation (19th ed.) throughout the course of this
research paper. The author has followed the foot note system for citation. A uniform mode of citation
has been adopted throughout the project. It is as follows:

Name of author, Title of book, Place of Publication, Name of the Publishers, Year of Publication, page
number.

Name of the Author, “Name of the Article”, Name of the Journal, Volume, Year, Page Number.
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INTRODUCTION

Contempt of court is a matter which is concerning the fair administration of justice and the main aim is to
punish whosoever hurts the dignity and authority of courts. According to Lord Diplock, he defines Contempt of
court in a following way:-

Although criminal contempt of court may take a variety of forms they all share a common characteristic: they
involve an interference with the due administration of justice, either in a particular case or more generally as a
continuing process. It is justice itself that is flouted by Contempt of court, not the individual court or judge who
is attempting to administer it.

According to Black’s Law Dictionary, it is the act of demeaning the court, preventing justice administration, or
disobeying a sentence of the court. It is criminal and can lead to fines or imprisonment.1

Generally speaking, anything that curtails or impairs the freedom of limits of the judicial proceedings, 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. Consisting of words spoken or written which
obstruct or tend to obstruct the administration of justice. Publishing words which tend to bring the
administration of Justice into contempt, to prejudice the fair trial of any cause or matter which is the subject of
Civil or Criminal proceeding or in anyway to obstruct the cause of Justice. In 1631, when a prisoner threw a
brickbat at the Judge and narrowly missed him, the prisoner’s right hand was ordered to be cut off and hung on
the gallows. In 1938, when the disgruntled litigant threw tomatoes at the Court of Appeal, consisting of Clauson
and Goddard JJ.2

According to section 2(a) of Contempt of Court Act, Contempt of court means civil contempt or Criminal
contempt. Sec 2(b) defines civil contempt and section 2(c) defines criminal contempt. Thus the legislature has
not defined contempt although it has defined civil and criminal contempt. This is so for the reason that contempt
cannot be confined within four walls of a definition. What would offend the court's dignity and what would
lower the court's prestige, is a matter which can be decided by the court itself and its for the court to deal with
each case of contempt under the facts and circumstances of that case.

However, in short contempt can be said to be an act or omission which interferes or tends to interfere in the
administration of justice. To constitute contempt it’s not necessary that there has been actual interference in the

1
https://legaldesire.com/contempt-court-analysis/
2
Vepa P. Sarthi, G. C. V. Subba Rao’s Commentary on Contempt of Courts Act, 1971, ALT Publications, Hyderabad, 1999 at 1 .
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administration of justice. If the act complained of, tends to interfere or attempts to interfere in the administration
of justice, may be taken as contempt. The expression 'administration of justice' is to be used in a very wide
sense. It is not confined to the judicial function of the judge but includes all functions of judges- administrative,
adjudicatory and any other function necessary for the administration of justice.

In a democracy, the purpose of the contempt power can only be to enable the court to function.

The power is not to prevent the master (the people) from criticizing the servant (the judge) if the latter does not
function properly or commits misconduct. Article 19(1)(a) of the Constitution gives the right of freedom of
speech and expression to all citizens. But Articles 129 and 215 give the power of contempt of court to the
higher judiciary, and this power limits the freedom granted by Article 19(1)(a).

How are these two provisions to be reconciled?

Once it is accepted that India is a democracy and that the people are supreme, the reconciliation can only be
affected by treating the right of the citizens to free speech and expression under Article 19(1)(a) to be primary,
and the power of contempt to be subordinate. In other words, the people are free and have the right to criticise
judges, but they should not go to the extent of making the functioning of the judiciary impossible or extremely
difficult.3

The test to determine whether an act amounts to contempt of court or not is this: does it make the functioning of
the judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court even if
it is harsh criticism. Much of our contempt law is a hangover from British rule. But under British rule India was
not free and democratic. Also, there was no Constitution containing provisions such as Article 19(1)(a). How
then can the law of those days be applicable today? The only situation where I would have to take some action
was if my functioning as a judge was made impossible. For example, if someone jumps up on to the dais of the
court and runs away with the court file or keeps shouting and screaming in court or threatens a party or a
witness.10 In a speech delivered on the topic "The Law of Contempt is it being stretched too far?" the doyen of
the Indian Bar Fali Nariman said the offence of scandalizing the court is a mercurial jurisdiction in which there
are no rules and no constraints.4

3
5Markandey Katju, Contempt of court: need for a second look, The Hindu, January 22, 2007, http://www.thehindu.com/todays-
paper/tp-opinion/contempt-of-court-need-for-a-second-look/article1785785.ece

4
Supra Note 2
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CONTEMPT OF COURT: MEANING AND DEFINITION

Meaning: The word 'Contempt' literally means "disobedience or disregard or neglect or violate". The person,
who commits contempt, is called 'condemner'. The expression 'Contempt of Court' means "willful
disobedience/disregard towards the Order/ Judgment of the Court of Law." It is an act or omission, which
interferes or tends to interfere with the administration of justice.

The meaning of the concept, 'Contempt of Court' has been well explained in Corpus Juris Secondum. The
Contempt of Court is disobedience to the Court by acting in opposition to the authority, justice and dignity
thereof. It signifies a willful disregard or disobedience of the Court's order. It also signifies such conduct as
tends to bring the authority of the Court and the administration of law into disrepute.

According to Halsbury, "Any act done or writing published which is calculated to bring a Court or Judge into
disrepute or to lower his authority or to interfere with the due course of justice or the lawful process of the
Court is contempt of Court".

Definition: It is very difficult to define the concept of 'Contempt of Court'. However, many attempts were made
to define the concept. Some of them are stated below:

Sir William Blackstine - 'Contempt of Court is a disobedience to the rules, orders, or process of a Court, or
against the King's prerogative.'

Abbott - 'Contempt of Court is disobedience to or interruption of, the orders or proceedings of a Court or
legislative body'.

Burrill - 'Contempt of Court is disobedience or disregard of authority of the Court.'

Blackburn - 'The phrase 'Contempt of Court' often, misleads persons not lawyers, and causes them to
misapprehend its meaning, and to suppose that a proceeding for contempt of Court amounts to some process
taken for the purpose of vindicating that personal dignity of the Judges, and protecting them from personal
insults as individuals. Very often it happens that contempt is committed by a personal attack on a Judge or an
insult offered to him; but as far as their dignity as individuals is concerned, it is of very subordinate importance
compared with the vindication of the dignity of the Court itself; and there would be scarcely a case, I think, in
which any Judge would consider that, as far as his personal dignity goes, it would be worthwhile to take any
steps.'
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Unique position of Judiciary in Administration of Justice

Role of courts and judges in modern times

 Need for maintaining independence of judiciary

 Need to respect status and decisions of judiciary

 Duty of all authorities in India to assist the courts in executing their orders

 Full faith and credit clause in the Constitution

 Possibility of willful disobeyance of courts’ orders

 Tendency to lower image of judiciary

Contempt of Courts Act, 1971:

Section 2(a) of the Contempt of Courts Act, 1971 provides that 'Contempt of Court' means civil contempt or
criminal contempt. Section 2(b) of the Act provides that 'civil contempt' means willful disobedience to any
judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to
a Court. Section 2(c) of the Act provides that 'Criminal contempt' means the publication (whether by words,
spoken or written or by signs or by visible representations or otherwise) of any matter or the doing of any other
act whatsoever which –

i. Scandalizes or tends to scandalize 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 proceedings; or
iii. Interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any
other manner.

The above definition contained in the Contempt of Courts Act, 1971 is not exhaustive. Actually it is not a
definition but classification of contempt of Courts. It merely indicates that the contempt may be civil contempt
or criminal contempt.
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Actually the Contempt of Court cannot be defined exhaustively. It is, thus, better to leave it to the court to deal
with each case as it comes and a right of appeal in all cases of contempt will cure whatever defect there may be
in the application of the law.

The main forms of contempt of Courts are insult to Judges, attacks upon them comments on pending
proceedings with a tendency to prejudice fair trial, obstruction to officers of the Court, witnesses or the parties,
abusing the process of the Court, breach of duty by officers connected with the Court and scandalizing the
Judges or the Courts.

The contempt proceedings are always with reference to the administration of justice. In determining whether or
not the act or omission complained of amounts to contempt of Court, the test, which is applied and should be
applied is whether in the circumstances, it is calculated to obstruct or interfere or tends to obstruct or interfere
with the administration of justice. With this, the contempt of Court means, 'an act or omission which interferes
or tends to interfere with the administration of Justice'.

ORIGIN AND DEVELOPMENT OF THE LAW OF CONTEMPT IN INDIA

It is a great question to every judicial system as to what “contempt of court” is. James Francis Oswald defines
contempt of court as “to speak generally contempt of court may be said to be constituted of the law into
disrespect or disregard, or to interfere with or prejudice parties litigant or their witness during the litigation”.
Lord Hadwick in 1742 made a three-fold classification of contempt:

The origin of the law of contempt of court in India can be traced from the English law. This law in India is
nothing but the off spring of the British administration of justice in India. Creation of different Courts of Record
in India necessarily meant the introduction of English Law of Contempt in some measure. 5
Establishment of the Court of Mayor and Corporation of Madras under the East India Company‘s Charter of
16876 was the earliest Court of Record created in India. Admiralty Court established under the Royal Charter of
1683 had the right to hear appeals and hence Admiralty Court was also considered a Court of Record. Later

5
VIII CAD 382: See also Report of the Committee on Contempt of Court, 4 (1963)
6
Charter granted by the Governor and Company of Merchants Trading into the East India, to the Mayor Aldermen and Burgesses of
Madras.
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Mayor‘s Court was created by the Charter of 17277, which was reconstituted by the Charter of 1753. These
courts had power to punish for contempt.

In pursuance of the Regulating Act 1773, the Mayor‘s Court at Calcutta was succeeded by the Supreme Court
established under a Charter granted in 1774. The Mayor‘s Court at Bombay and Madras were superseded by the
Recorder‘s Court at Madras. It was abolished by the Government of India Act, 1800 and the Supreme Court was
established in the place of Recorder‘s Court at Bombay by a Charter granted under the Statute of 1823. The
Recorder‘s Court and Supreme Court had the same powers for punishing for contempt as the superior courts of
England .The Supreme Courts were in turn succeeded by the High Courts under the High Court’s Act of 1861.
The High Court of Calcutta was a court of record in all its jurisdictions and therefore possessed power to
commit for contempt8. In 1886, the High Court of Allahabad was established under the High Court’s Act, 1861
and was constituted as a Court of Record.
The Division Bench of the Calcutta High Court considered this jurisdiction of the High Court in 1879 in Martin
v. Lawrence9. Mr. Justice White observed:

The jurisdiction of the court, under which this process of contempt issued is a jurisdiction that it has inherited
from the old Supreme Court and was conferred upon that court by the Charters of the authority of the then court
of King‘s Bench and the High Court of Chancery in Great Britain, and this jurisdiction has not been removed or
affected by the Civil Procedure Code.
The inherent powers of the High Courts to punish for contempt were later affirmed by Lahore10 and Patna High
Court11. Privy Council also accepted the same view in Ambard v. Attorney General, Trinidad and Tabago.12

These decisions show that the power to punish summarily for contempt is not created by statute but inherent in
every court of record.
Prior to the passing of the Contempt of Courts Act 1926 there was a conflict of opinion among the different
High Court as to their power to commit for contempt of subordinate court. Madras 13 and Bombay14 High Court

7
II Vestiges of Old Madras 1640-1800, 241,242(Charter of 1727, 249).
8
Re Abdool and Mehtaf (1867) 8 W.R. (Cr.) 32.
9
I.L.R. 4 Cal. 444 (1879).
10
In the Matter of Muslim Outlook, AIR 1927 Lah. 610.
11
Emperor v. Murali Manohar Prasad, AIR 1929 Pat 72.
12
AIR 1936 P.C. 141
13
In the Matter of K.Venkta Rao, 121, C. 239 (1921)
14
Re Mohandas Karamchand Gandhi, AIR 1920 Bom. 175.
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expressed the view that the High Courts could have jurisdiction to deal with contempt of the Mofussil Courts.
But the Calcutta15 High Court expressed the view that the High Court in India did not possess identical power in
matters of contempt of their subordinate courts as possessed by the Court of King‘s Bench in England. In 1926,
the Full Bench of the Allahabad High Court dealt with contempt of subordinate court under its inherent powers
as a court of record.

For making the concept of contempt more specific and for providing punishment for contempt of subordinate
courts, the first Indian statute on the law of contempt i.e., the Contempt of Courts Act was passed in 1926. It
was enacted to define and limit the powers of certain courts in punishing contempt of courts. When the
Contempt of Courts Act, 1926 (XII of 1926) was in existence in British India, various Indian States also had
their corresponding enactment. These States were Hyderabad, Madhya Bharat, Mysore, Pepsu, Rajasthan,
Travancore-Cochin and Saurashtra. Section 2 of the Act, 1926, empowered the High Courts of judicature to
exercise the jurisdiction, power and authority to punish contempt of subordinate court. The Act was amended in
1937 to make it clear that the limits of punishment provided in the Act related not only to contempt of
subordinate court but also to all cases.

Articles 12916 and 21517 of the Constitution of India made the Supreme Court and High Courts respectively as
Court of Record. Article 225, permits the High Courts to continue the jurisdiction and powers which they
possessed immediately before the commencement of the Constitution. Though the High Court as a Court of
Record had the power to punish contempt of it, doubt arose as to the power of the Court of Record to punish
contempt of subordinate
courts.

The Contempt of Courts Act, 1926 did not contain any provision with regard to contempt of courts subordinate
to Chief Courts and Judicial Commissioner‘s Court and also extra territorial jurisdiction of High Courts in
matters of contempt. So, the State enactments of the Indian States and the Contempt of Courts Act, 1926 were
replaced by the Contempt of Courts Act, 1952 (32 of 1952). Section 3 of the Contempt of Courts Act, 1952
conferred the power on the High Court’s including that of the Judicial Commissioner‘s Court to punish
contempt of subordinate court. Section 4 of the Act limited the punishment to be awarded in case of contempt.
15
Legal Remembrancer v. Motilal Ghose, 1913, ILR Cal. 173
16
Article 129: The Supreme Court shall be a Court of record and shall have all the powers of such a Court including the power to
punish for contempt of itself.
17
Article 215: Every Hugh Court shall be a Court of record and shall have all the powers of such a Court including the power to
punish for contempt of itself.
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The Contempt of Courts Act 1952 though sound so far as it goes touches only the fringes of the subject. While
its existing provisions should be continued there is need for widening considerably the scope of the Act. 18 The
unsatisfactory nature of the Contempt of Courts Act, 1952 necessitated the government to constitute a
Committee to study the matter for the proper functioning of the law of contempt.

An attempt was made in April, 1960 to introduce in the Lok Sabha a Bill to consolidate and amend the law
relating to Contempt of Courts. On an examination of the Bill, Government appears to have felt that the law
relating to contempt of courts in uncertain, undefined and unsatisfactory and that in the light of the
Constitutional changes which have taken place in the country, it would be advisable to have the entire law on
the subject scrutinized by a Special Committee set up for the purpose In pursuance of that decision, a
Committee was set up on July 29, 1961 under the Chairmanship of the late H N Sanyal, the then Additional
Solicitor General. The Committee made a comprehensive examination of the law and problems relating to
contempt of court in the light of the position obtaining in our own Country and various foreign Countries. The
recommendations, which the Committee made, took note of the importance given to freedom of speech in the
Constitution and of the need for safeguarding the status and dignity of courts and interests of administration of
justice.

The Sanyal Committee submitted its report on February 28, 1963 to define and limit the powers of certain
courts in punishing contempt of courts and to regulate their procedure in relation thereto. The recommendations
of the Committee have been generally accepted by the government after considering the view expressed on
those recommendations by the State Governments, Union Territory Administrations, the Supreme Court, the
High Courts and the Judicial Commissioners. The Joint Select Committee of Parliament on Contempt of Courts
examined the issue in detail and the Committee prepared a new Bill, the Contempt of courts Bill, 1968. The Bill
seeks to give effect to the accepted recommendations of the Sanyal Committee.

The recommendations of the Committee have been generally accepted by Government after considering the
view expressed on those recommendations by the State Governments, Union Territory Administrations, the
Supreme Court, the High Courts and the Judicial Commissioners.

Contempt Under Common Law- Position In United Kingdom

18
Report of the Committee on Contempt of Court, 9 (1963).
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Lord Justice Otton gave an overview of the concept of contempt of court. In England, contempt has inhered in
the judicial power to run the courts and to prevent interference with justice "since time immemorial". Contempt
protects the dignity of the Court, not the individual judge.

Contempt can be criminal or civil. Criminal contempt involves an intentional interference with the
administration of justice, while civil contempt is disobedience to orders or judgments of a court, with only
knowledge of the order or judgment, not intent to interfere, being needed. Civil contempt requires only a
preponderance of the evidence while criminal contempt requires proof beyond reasonable doubt. Another
significant distinction arises from whether the contempt occurs "in the fact of the court" or outside it; contempt
beyond the courtroom is much harder to prove.

English contemnors are not entitled to a trial by jury. Parliament enacted the Contempt of Court Act of 1981,
which for the first time imposed a two-year maximum jail sentence for civil and criminal contempt as well as
maximum fines. The court can use all its contempt powers but still suspend sentence if the contemnor promises
not to repeat the contumacious act and apologizes.

Lord Justice Otton described a fine of £40,000 against The Evening Standard newspaper, which had been
sustained by the Court of Appeal a week earlier for publishing the criminal records of defendants on trial for
explosives offenses with IRA links. England imposes limits with respect to reports of proceedings and
publication of material likely to interfere with the administration of justice. The result in The Evening Standard
case was very prejudicial, including a halt to the criminal trial. He also noted a reluctance to use the contempt
power for fear of creating a cause that spurs public sympathy as, for example, in various English coal strike
orders.

The main aim of contempt of court rules is to prevent potential jurors from being prejudiced for or against a
defendant because of what has been published in the media before or during a trial.

A jury is supposed to reach their decision only on the evidence produced in court. The jury must also presume
that the accused is not only innocent but also that he has no previous convictions.
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Contempt of Court is governed by two sets of rules.

1. The Contempt of Court Act 1981 applies to individual cases.

2. Common Law contempt can apply to individual cases and to the administration of the law generally.

One of the tests to determine contempt is whether the story creates a substantial risk that the course of justice
will be seriously impeded or prejudiced.

The important words are ‘substantial’ and ‘serious’. These are the tests by which the court decides whether the
story would create a substantial risk of serious prejudice the mind of anyone who read it and who was then was
selected to serve on the jury hearing the case.

Time: The longer the time between the story being published and the jury retiring to reach its verdict the less
chance there is of the story being in contempt. News desks should know the average time it takes in their Crown
Court area for a case to go from arrest to trial. If the story is published, say, on the night before the trial opens
then the risk of contempt is higher than if it were published months previously.

Proximity: The court will weigh up the chances of a juror having actually read the offending story. If the story
is published in the Northern Echo in Darlington and the trial is held in Cornwall then there is plainly little
chance of a substantial risk of serious prejudice because a potential juror could never be expected to have read
it.

Initial Impact: Presuming, though, that the story is likely to have been read by a potential juror then the court
will try to assess the impact the story would have had on him. It does so by determining how novel was the way
it was presented. A screaming Page One lead in the local paper would plainly have more impact than a down
page three-par story on page 18 of a national. Then the court would try to evaluate the:
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Residual Impact: The theory is that if a juror listens in court to all the evidence, and hears all the witnesses
cross-examined, and then is guided by the trial judge on what is, and is not, important than any initial
prejudicial impact the story might have had will fade away as the juror concentrates on the actual evidence.

The trend is towards liberalization when it comes to applying the Contempt of Court Act 1981. Judges seem to
have accepted that most pre-trial coverage, while maybe prejudicial, falls short of creating a substantial risk of
being seriously prejudicial. National tabloids have used lurid accounts of Geoff Knights beating up a taxi driver
and have been cleared of contempt. But each case is different. By using the above tests an editor can at least
make his own assessment of whether the particular story creates a substantial risk of serious prejudice.

There is a particular danger in revealing that the defendant has a previous conviction. A jury (which must
presume that a defendant has an unblemished past) would find that hard to forget.

The Contempt of Court Act 1981 ceases to be active when: The arrested person is released without being
charged - except when released on police bail. No arrest is made within 12 months of the issue of the warrant
the case is discontinued the defendant is acquitted or sentenced the defendant is found unfit to be tried, or unfit
to plead or the court orders the charge to lie on the file.

Newspapers are safe when they use police appeals for help in tracing a wanted man for whom a warrant has
been issued even though the ‘Danger Man’ or ‘ Find this Monster’ type of headline would plainly create a
substantial risk of serious prejudice especially as most such stories reveal his past convictions. This is classic
contempt of court territory but the Attorney General has promised not to prosecute because the public safety
outweighs the fugitives right to a fair trial. As soon as ‘Danger Man’ is arrested, however, the immunity ceases.

Section 3 of the Contempt of Court Act gives an editor a defence if, at the time of publication, having taken all
reasonable care, he did not know and had no reason to suspect that proceedings in the particular case were
active.
 17

Section 5 of the Contempt of Court Act gives protection to stories, which are a discussion of public affairs as
long as the risk of prejudice to a particular case is merely incidental to the wider discussion.

Civil proceedings: The Act states that civil proceedings become active as far as contempt risk is involved when
the case is set down for trial (put on the waiting list) or when an actual date is fixed for the case to be heard.

Pictures: A picture can be in contempt in the same way as a story if, for instance, the case hinged on witnesses
identifying the man in court or at an identity parade. And if you used a picture of the defendant handcuffed and
guarded by armed police it might also prejudice a juror.

The risk of contempt under the 1981 Act only starts when the Initial Step is taken - a person is arrested,
charged, or has a warrant or summons issued against him. Common Law contempt covers the time before that
initial step is taken but when a trial could plainly be seen to be imminent or pending. If a known criminal, for
instance, takes a group of people hostage and a newspaper identifies him and his previous convictions before he
is arrested or charged or a warrant is issued then there is plainly going to be a risk of contempt to proceedings
which will almost certainly take place. If the newspaper is prosecuted under Common Law contempt the
prosecution has to prove that the editor intended to create prejudice. The court can infer intent by taking account
of all of the circumstances leading to publication. Common Law contempt can also be used against articles
prejudicial to the course of justice generally, as distinct from the particular case governed by the 81 Act.

Position Under the American Legal System

Contempt of court is an act of disobedience or disrespect towards the judicial branch of the government, or an
interference with its orderly process. It is an offense against a court of justice or a person to whom the judicial
functions of the sovereignty have been delegated.

The American Jurisprudence defines contempt of court in Vol 17. It can be classified as follows:
 18

1. Despising the authority of the Judge or dignity of the court;

2. Any conduct which tends to bring the authority and administration of law into disrespect or disregard;
3. Any conduct which interferes or prejudices the parties to a litigation or their witnesses during a litigation;

4. Any conduct which otherwise tens to impede, embarrass, or obstruct a court or a judge in the discharge of
its or his duties;

5. A statute may define contempt but it can never be exhaustive.

In the United States of America freedom of speech was originally protected by the doctrine clear and present
danger propounded in Schenk v. United State In that case the Supreme Court of USA passed observations upon
the military censorship provisions of the Espionage Act of 1917, which imposed certain limitations upon press
and speech. Rejecting the contention Justice Holmes wrote an opinion unanimously concurred by the court,
upholding the Constitutionality of the Espionage Act. The right of speech he said “had never been an absolute
one at any time, in peace or in war. Free speech would not protect a man in falsely shouting fire in a theatre, and
causing a panic. When a nation is at war he added many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long as men fight and no court could regard
them as protected by any Constitutional Right.”

According to this view freedom of speech could be abridged only if the Government could show that there was
a clear and present danger to the state arising from the abuses of that freedom. This doctrine, however, was
jettisoned in Dennis v. United States.19 In that case the validity of the Alien Registration Act, 1940 was in
question. Vinson C.J. observed as follows “ In this case we are squarely presented with the application of the
clear and present danger test and must decide what the phrase imports.” The test of clear and present danger was
discarded and the test of clear and probable danger has been substituted. The time factor has been thus
eliminated from the test.

19
The Statute made it unlawful for any person to advocate, advice or teach duty, necessity desirability or propriety of overthrowing or destroying the
Government in the United States, by force or violence and penalized even a conspiracy to commit such forbidden acts. The petitioners, leading
members of the Communist Party, were charged with a conspiracy to form a party for teaching and advocating the overthrow of government by
force. They contended that the statute could not stand the Constitutional test of “clear and present danger” and that their conviction by the court
below was therefore liable to be set aside.
 19

Judged by the new test it was held that the impugned statute was constitutional, though it penalized even
conspiring to advocate the future overthrow of the state and no imminent danger is to be apprehended thereby.
The arm of the law has been lengthened thereby. No doubt Douglas J., in his dissenting opinion bewails that
free speech, the glory of our system of government, had been eclipsed by the majority ruling in Dennis case.

In Yates v. United States20 while appearing to adhere to the modification of the clear and present danger test, the
Supreme Court has in a measure really overruled the Dennis Case. In Yates case the Supreme Court set aside
the conviction of fourteen communists who had been convicted under Smith Act. It was held that the advocacy
of the overthrow of the Government as an abstract principle did not constitute an offence under the Smith Act. It
is only when action to that end, though it may not be immediate action, has been advocated, that the offence
would be committed. The decision in Yates case restored to some extent the protection to freedom of speech
which had been withdrawn in Dennis case. But his test is not applicable in India as this principle was rejected
by Justice Madhokar in 1961.27

Under the US law of contempt, the courts have recognized both direct and indirect contempt. Contempt is
indirect when it occurs out of the presence of the court, thereby requiring the court to rely on the testimony of
third parties for proof of the offense. It is direct when it occurs under the court's own eye and within its own
hearing. See Matter of Heathcock, 696 F.2d 1362, 1365 (11th Cir. 1983); United States v. Peterson, 456 F.2d
1135, 1139 (10th Cir. 1972). The requirement that direct contempt be committed in the presence of the court
does not limit direct contempts to those which take place in the courtroom, but some degree of formality usually
found in the courtroom setting must accompany an exercise of the judicial function for the proceedings to be in
the actual presence of the court. Matter of Jaffree, 741 F.2d 133 (7th Cir. 1984). Direct contempt for conduct in
the court's presence may be punished summarily. McGuire v. Sigma Coatings, Inc., 48 F.3d 902 (5th Cir. 1995).

20
(1957) U.S. 298.
 20

CONTEMPT OF COURT AND THE INDIAN JUDICIARY

The Media and the Judiciary share a need that neither can live without: you must have journalistic
independence and judges must have judicial independence. He further elaborated “ Hitler’s Germany is still
fresh in memory, so we can recall two of his major steps to consolidate his power when he became the
Chancellor. One was to destroy the free press; the other was to control the courts and eliminate an independent
judiciary. Knew and we know that no dictation can survive with an independent press and independent
judiciary.35

The power of the Supreme Court of India in dealing with the day-to-day affairs of the citizens has increased
many a fold during the past few decades. Looking at the pages of Law Reports prior to lifting of emergency will
reveal the irrelevance of the courts to a large part of the Indian population. It is after the lifting of emergency
from the 1980’s that the Supreme Court fully realized its potential. The failure of the Legislature and the
Bureaucracy to live up to the expectations in the eyes of the people put the Judiciary in a higher pedestal. It was
seen as the last resort for justice to the otherwise “justice starved” citizens of India. The Supreme Court of India
as well as other courts arose to the occasion in helping the poor and down trodden section of the society.

But it was precisely this magnanimous view taken up by the Supreme Court to look into almost all the aspects
of the other two wings that gave rise to criticisms. The criticisms were from the public, from the press and the
media. The view of the Supreme Court towards these criticisms were not always static. It kept on changing
from the stating that the judiciary’s shoulders are broad and going to the other extreme by punishing an
individual who had made a contempt of court. It is precisely those exercise of the contempt powers of the
Supreme Court and the Indian Judiciary in general over the past few decades, that will be dealt with in these
chapters. There is no better way to look at these exercise of power but to examine the judgments passed by the
Supreme Court and the High Court’s regarding this matter.
 21

CONTEMPT JURISDICTION OF SUPREME COURT, HIGH COURT AND SUBORDINATE

COURT

Contempt Jurisdiction of High Court and Supreme Court:

Articles 129 and 215 of the Indian Constitution declare the Supreme Court and High Courts respectively the
Courts of record and have inherent power to punish for contempt of Court. This power cannot be taken away by
the legislative enactment.

A Court of record has been defined in Corpus Juris Seconded as a Court, where the acts and judicial
proceedings are enrolled in a parchment for a perpetual memory and testimony, and which has power to impose
fine and imprison for contempt of its authority; a Court which is bound to keep a record of its proceedings are
enrolled in parchment for a perpetual memory or testimony, which rolls are called records of the Court, and are
of such question; a judicial organized tribunal having attributes and exercising function independently of the
person of the Magistrate designated generally to hold it and proceeding according to the course of common law;
and a Court having a seal.

In addition to that, the Contempt of Courts Act, 1971 provides the contempt jurisdiction of High Court and the
Supreme Court.

According to Section 11 of the Act, a High Court shall have jurisdiction to inquire into. Or try contempt of itself
or of any Court subordinate to it, whether the contempt is alleged to have been committed within or outside the
local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such
limits.

The proviso to section states that no High Court shall take cognizance of a contempt alleged to have been
committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Indian
Penal Code, 1860. This proviso excludes the jurisdiction of the High Court only when the acts come under the
Indian Penal Code, 1860. According to Section 10, every High Court shall have and exercise the same
jurisdiction, powers and authority in accordance with the same procedure and practice, in respect of Contempt
of Courts subordinate to it as it has to exercise in respect of Contempt of itself.

According to Section 14, when it is alleged, or appears to the Supreme Court or the High Court upon its own
view, that a person has been guilty of contempt committed in its presence or hearing the Court may cause such
person to be punished.
 22

Appellate Jurisdiction (Section 19): An appeal shall lie as of right from any order or decision of High Court in
the exercise of its jurisdiction to punish for contempt -

a) Where the order or decision is that of a single Judge, to a Bench of not less than two Judges of the Court.

b) Where the order or decision is that of a Bench, to the Supreme Court.

Power of Supreme Court and High Court to make rules: According to Section 23 of the Act, the Supreme
Court, as the case may be, any High Court, may make rules, not inconsistent with the provisions of this Act,
providing for any matter relating to its procedure.

Contempt jurisdiction of the Subordinate Court:

In case of the contempt committed in the face of the subordinate court, the subordinate Court can take
immediate action under Section 228 of the Indian Penal Code read with Section 345 and 346 of the Code of
Criminal Procedure 1973. Section 345 of the Criminal Procedure Code lays down the procedure for
investigation and punishment for the offences specified in Sections 175, 178, 179, 180 and-228 of the Indian
Penal Code committed in the view or presence of any civil, criminal or revenue Court.

Section 175 of the Indian Penal Code deals with the omission to produce document to public servant by person
legally bound to produce it.

It provides that whoever, being legally bound to produce or deliver up any document to any public servant as
such intentionally quits so to produce or deliver up the same, shall be punished with simple imprisonment for a
term which may extend to one month, or with fine which may extend to five hundred rupees or with both; or if
the document is to be produced or delivered up to a Court of Justice, with simple imprisonment for a term
which may extend to 6 months or with fine which may extend to Rs.1000/- or with both.

Section 178 of the Indian Penal Code deals with refusal to bind him by an oath or affirmation to state the truth,
when required so to bind him for a term which may extend to 6 months or with fine which may extend to one
thousand rupees or with both.

Section 179 of the Indian Penal Code deals with the case of refusing to answer a public servant authorized to
question. It provides that whoever being legally bound to state the truth on any subject to any public servant and
 23

the exercise of the legal powers of such public servant, shall be punished with simple imprisonment for a term
which may extend to six months or with fine which may extend to one thousand rupees or with both.

Section 180 of the Indian Penal Code makes provision for punishing the person for refusing to sign a statement
in certain conditions. It provides that whoever refuses to sign any statement made by him when required to sign
that statement by a public servant legally competent to require that he shall sign that statement, shall be
punished with simple imprisonment for a term which may extend to three months or with fine which may
extend to five hundred rupees or with both.

Section 228 of the Indian Penal Code deals with intentional insult or interruption to public servant sitting in
judicial proceeding. It provides that whoever intentionally offers any insult or causes any interruption to any
public servant while such public servant is sitting in any stage of a judicial proceeding shall be punished with
simple imprisonment for a term which may extend to six months or with fine which may extend to one thousand
rupees or with both.

Section 345 of the Code of Criminal Procedure lays down summary procedure for investigation and punishing
offenders for the offences specified in Sections 175, 178, 179, 180 or 228 of the Indian Penal Code. It provides
that when any such offence as is described in Sections 175, 178, 180 or 228 of the Indian Penal Code is
committed in the view or presence of any Civil, Criminal or Revenue Court, the Court may cause the offender
to be detained in custody and may at any time before the rising of the Court on the same day, take cognizance of
the offence and after giving the offender a reasonable opportunity or showing cause why he should not be
punished under this section, sentence the offender to fine not exceeding two hundred rupees and, in default of
payment of fine, to simple imprisonment for a term which may extend to one month, unless such fine be
sooner paid.

The procedure laid down for investigating and punishing offenders for the offences specified in the aforesaid
sections of the Indian Penal Code is summary. Section 345 applies to the offences specified in the aforesaid
sections of the Indian Penal Code only when they are committed in the view or the presence of the Court.
Section 346 of the Code of Criminal Procedure lays down the procedure in cases where the Court considers that
they should not be dealt with under Section 345, stated above. It provides that if the Court in any case considers
that a person accused of any of the offences referred to in Section 345 and committed in its view or presence
should be imprisoned otherwise than in default of payment of fine or that a fine exceeding two hundred rupees
 24

should be imposed upon him or such Court is for any other reason of opinion that the case should not be
disposed of under Section 345, such Court, after recording the facts constituting the offence and the statement
of the accused as herein before provided, may forward the case to a Magistrate having jurisdiction to try the
same and may require security to be given for the appearance of such person before such Magistrate or if
sufficient security is not given shall forward such person in custody to such Magistrate.

The Magistrate to whom any case is forwarded under this section shall proceed to deal with, as far as may be as
if it was instituted on police report. Section 351 of the Code of Criminal Procedure provides for appeal against
the conviction under Section 345, stated above. According to Section 351 any person sentenced by any court
other than a High Court under Section 345 may appeal to the Court to which decree or orders made in such
Court are ordinarily appealable.

OBJECT AND PURPOSE OF THE CONTEMPT OF COURTS ACT

The people of India have a lot of faith in the judiciary which is primarily entrusted with the duty of
administering justice. The primary purpose of giving courts contempt jurisdiction is then to uphold the majesty
and dignity of the courts and their image in the minds of the public. If such confidence and faith were allowed
to be shaken then this would have serious repercussions on the justice-delivery system of our country. The law
of contempt provides the necessary tool to the courts to check unwarranted attacks or efforts at undermining the
Rule of Law.

LAW POINT
For the concept of Contempt of Court, the Contempt of Court Act, 1971 was passed which dealt with such a
concept. Article 129 and 215 of the Constitution of India empowers the Supreme Court and High Court
respectively to punish people for their respective contempt. Section 10 of The Contempt of Courts Act of 1971
defines the power of the High Court to punish contempt of its subordinate courts. Power to punish for contempt
of court under Articles 129 and 215 is not subject to Article 19(1)(a).

Contempt of Court position under Indian Constitution is as following-

 Art. 129 :Supreme Court to be a court of record.—The Supreme Court shall be a court of record and
shall have all the powers of such a court including the power to punish for contempt of itself.
 25

 Art.215: High Courts to be courts of record.—Every High Court shall be a court of record and shall
have all the powers of such a court including the power to punish for contempt of itself.
 Art.144:Civil and judicial authorities to act in aid of the Supreme Court.—All authorities, civil and
judicial, in the territory of India shall act in aid of the Supreme Court.
 Art.141. Law declared by Supreme Court to be binding on all courts.— The law declared by the
Supreme Court shall be binding on all courts within the territory of India.
 Art.142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.— (1) The
Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is
necessary for doing complete justice in any cause or matter pending before it, and any decree so passed
or order so made shall be enforceable throughout the territory of India in such manner as may be
prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in
such manner as the President may by order prescribe.
 Art.261. (1) Full faith and credit shall be given throughout the territory of India to public acts, records
and judicial proceedings of the Union and of every State.

The Contempt of Courts Act, 1971 - Salient Features

 Innocent publication and distribution of matter - not contempt (Sec.3)
 Fair and accurate report of judicial proceeding - not contempt (Sec 4)
 Fair criticism of judicial act - not contempt(Sec.5)
 Complaint against presiding officers of subordinate courts when not contempt- in respect of any
statement made by him in good faith (Sec.6)
 Publication of information relating to proceedings in chambers or in camera - not contempt except in
certain cases (Sec 7 )
 Act not to imply enlargement of scope of contempt (Sec 9.)- Due regard to Constitutional Provisions
 Power of High Court to punish contempt of subordinate courts - Every High Court shall have and
exercise the same jurisdiction, powers and authority, in accordance with the same procedure and
practice, in respect of contempt of courts subordinate to it as it has and exercises in respect of contempt
of itself :
 Provided that no High Court shall take cognizance of a contempt alleged to have been committed in
respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal
Code.(45 of 1860) [Sec.10]
 26

KINDS OF CONTEMPT

The concept of contempt is a broad one, which has the capacity to encompass any act done in detriment of the
court. Contempt may range from disobedience to orders of the court to throwing of tomatoes at the Judges.
Broadly we can categorize contempt into two types: Civil Contempt and Criminal Contempt.

1. Civil contempt

2. Criminal contempt

CIVIL CONTEMPT

It has been defined under Section 2(b) of the Contempt of Courts Act, 1971.73The essential ingredient is
‘willful’ disobedience and not any and every disobedience due to various reasons such as delay due to
unavoidable circumstances, or inadvertence. It has to be proved that the disobedience was ‘willful’. It connotes
a ‘clear intention to flout’. A civil contempt involves disobedience to a Court’s order affecting the rights of
other parties to that order basically denying the rightful fruits of the suit to the other party. But Mens Rea has
been made an essential ingredient in the 1971 Act, which is a departure from the pre-existing law with the
introduction of the word ‘willful’. So civil contempt does not attract strict liability any more. It is sometimes
supposed that the ‘will’ being a party to the disobedience is not enough and that there should further be an
element of obstinacy, rebellion or defiance. In Worthington v. Adlib Club Ltd.74, the court held that the word
‘contumaciously’ as meaning was not different from ‘willfully’. In India also, the courts use the word
‘contumaciously’ in describing contempt and invariably use it disjunctively with ‘willful’ or ‘deliberate’.

In Deba Brata Bandopadhyaya v. State of West Bengal. 75, The Supreme Court observed that “if orders of stay,
bail, injunction, received from higher courts must be attended to promptly, and if there is a delay in dispatching
them or dealing with them the court may draw an inference of indifference and even contumaciousness.” In
Md.Ikram Hussain v. State of U.P.76, the court asked the appellant to produce his daughter in a matter for
habeas corpus. He made false excuses and did not produce her. He was found guilty of contempt. In Aligarh

Section 2(b) defines civil contempt as willful and deliberate disobedience of the order/decree etc of the court or
breach of undertaking to the court. From the above, it can be gathered that following are two ingredients of civil
 27

contempt which are required to be proved-

1. Disobedience of the order/decree etc of court or breach of undertaking

2. The disobedience/breach must be willful, deliberate and intentional

1. DISOBEDIENCE OF THE ORDER/DECREE OF COURT OR BREACH OF UNDERTAKING

Order of the court includes all kinds of orders- final, preliminary, ex-parte and contempt order but there must be
disobedience of the order and decree.

21
In the case of H. Puninder V. K.K.Sethi the Supreme Court has held in absence of the stay order in appeal
or revision of higher court, the order appealed against should be complied with, subject to any order passed at
later stage, otherwise it is open for the contempt court to proceed further on merit of the contempt case.

A different view has been taken by the SC in case of interim relief/stay order.

In case of State of Jammu and Kashmir V. Mohammad Yakub khan22 SC has held that where stay vacation
application has been promptly filed by the respondent against whom the stay order has been passed and the
same is pending for disposal the court shouldn't proceed in the contempt case unless and until the stay
vacation application has been decided.

So far as the breach of undertaking as contempt of court is concerned, the basis behind this is that the
contemptor obtains a beneficial order for himself from the court, by giving an undertaking and if he fails to
honor the undertaking at a later stage, he plays a serious fraud on the court and thereby interferes with the
administration of justice by bringing the court into disrespect.

An undertaking can be given before the court in the following ways:

(i) By moving an application or filing an affidavit before the court clearly stating the terms of the undertaking.

(ii) By giving s clear and express oral undertaking which is incorporated by the court in the order.

If any of the above two conditions are satisfied, a willful breach of the undertaking would amount to contempt
of court.

21
(1998) 8 SCC 640
22
JT 1992 (5) SC 278, 1992 (2) SCALE 424, (1992) 4 SCC 167, 1992 Supp 1 SCR 43, 1992 (2) UJ 720 SC, (1992) 2 UPLBEC 1166
 28

2.THE DISOBEDIENCE OR BREACH MUST BE WILFUL, DELIBERATE AND INTENTIONAL

Mere disobedience or breach of the court's order is not sufficient to constitute civil contempt. The disobedience
or breach must be willful, deliberate and intentional. The power of contempt can't be used unless the court is
satisfied beyond doubt that the contemptor has willfully, deliberately and intentionally violated the court's
order.

No court including contempt court is entitled to take trivialities and technicalities into account while finding
fault with the conduct of the person against whom contempt proceeding is taken.

If the order has been substantially complied with and a reasonable explanation has been given for the delay in
compliance of the order, the contempt will not lie because the violation is not willful and deliberate.

CRIMINAL CONTEMPT

Criminal contempt has been defined under section 2(c) of Court of Contempt Act. It provides that criminal
contempt means publication whether by words (spoken/written) or by signs or visible representation or
otherwise of any matter or the doing of any act whatsoever, which:

(i) Scandalizes or lowers or tends to scandalize or lower the authority of any court

(ii) Prejudices or interferes or tends to prejudice or interfere with the due course of any judicial proceeding.

(iii) Interferes or tends to interfere with the administration of justice in any other manner.

From the above definition, it can be gathered that criminal contempt has following four essentials.

1. PUBLICATION OF DOING AN ACT :

The word publication has been given a very wide meaning so far as contempt of court is concerned. It includes
words (spoken/written), signs and visible representation. It also includes the publication of any material in the
newspaper and magazines, the broadcasting of any material on the radio and exhibition of anything in cinemas,
theaters and television.
 29

If these materials contain anything which scandalizes or lowers or tends to scandalize or lower the authority of
any court, prejudices or interferes with the due course of any judicial proceeding or interferes or tends to
interfere with administration of justice, it will amount to criminal contempt of the court.

2. SCANDALIZING OR LOWERING THE AUTHORITY OF THE COURT :

Scandalizing might manifest it in various ways but in substance, it is an attack on individual judges in particular
or the court as a whole, with or without reference to a particular case, by casting unwarranted and defamatory
aspersions upon the character or the ability of the judges. Such conduct is punished as criminal contempt for the
reason that it tends to create distrust in the minds of common people and thereby shatters confidence of the
people in the judiciary.

In case of Arundati Roy, the Supreme Court made it clear that criticism which undermines the court dignity
can't be said to be fair criticism and can't be permitted under the garb of freedom of speech and expression as is
guaranteed by Article 19 (1)(a) of Constitution of India. Thus prosecution of persons for scandalizing the court
is not prohibited by constitutional right of freedom of speech and expression under Article 19 (1)(a).

In case of Dr. D.C Saxena V. CJI, the SC made it clear that writing/drafting in pleading or petition by which
defamatory allegations have been leveled against a judge in particular or court as a whole, would amount to
criminal contempt.

In case of U.P Residential Employee Cooperative Society V New Okhla Industrial Development
Authority23, it was held by the SC that filing of false affidavit in the court with a view to mislead the court will
amount to criminal contempt.

3. PREJUDICE OR INTERFERENCE WITH THE DUE COURSE OF ANY JUDICIAL PROCEEDING :

The publication which prejudices or interferes with the due course of any judicial proceeding is also taken as
criminal contempt of court. Media trial or trial by newspaper is not considered proper because it affects the
fairness of trial and is likely to cause interference with the administration of justice.

The knowledge of pendency of the case and reasonable grounds to believe that the case in pending is sufficient
to make out criminal contempt and the intention and motive of the publisher behind the content of publication is
not relevant for the purpose of criminal contempt. If it lowers the authority of the court and causes interference

23
1990 AIR 1325, 1990 SCR (3) 64
 30

with the due course of judicial proceeding in a case for criminal contempt is made out.

In civil cases, the pendency starts with the filing of the plaint and in criminal cases, with the filing of a
chargesheet or the issuance of summons or warrants. The pendency continues till the case is decided. In case an
appeal/revision is filed, pendency continues till the appeal or revision is decided. If appeal/revision is not filed,
pendency continues till the period of limitation for filing the same has not expired. Once it expires, pendency is
over.

4. INTERFERENCE/OBSTRUCTION WITH THE ADMINISTRATION OF JUSTICE IN ANY

OTHER MANNER:

The publication or doing of any act which interferes or obstructs or tends to interfere and obstruct in the
administration of justice in any other manner, is taken as criminal contempt of court. This clause is a
residuary clause, covering those cases of criminal contempt which are not expressly covered by section 2(c) of
the Contempt of Court Act.

The term 'administration of justice' is much wider than the term 'course of judicial proceedings'. Every
person in India is entitled to approach the court in order to secure justice and for the redressed of his grievances
and the court has to decide dispute between the parties as per law and equity.

Any conduct which tends to prevent or actually prevents a party to approach the court, amounts to criminal
contempt of court, for eg.writing a threatening letter to litigating party or his counsel preventing him from
attending the court, writing a letter to the judge or approaching him in order to influence his judicial conscience
or approaching a counsel for undue favor are all examples of interference with administration of justice and are
contempt of court.

An advocate is an officer of the court and undue interference with the advocate in the discharge of his
professional functions amounts to contempt of court. Casting aspersions on counsel or approaching him for not
defending a particular person amounts to criminal contempt of court.

In case of J.R Parashar V Prashant Bhushan24, the SC held that holding a dharna or resorting to strike by
itself may not amount to contempt of court but if in doing so the presiding officer of the court, its staff, the
police personnel and the litigating parties are prevented from approaching the court, it will amount to

24
(2001) 6 Supreme Court Cases 735)
 31

interference in the administration of justice and will be criminal contempt of the court.

DISTINCTION BETWEEN CIVIL AND CRIMINAL CONTEMPT

Civil contempt is basically wrong to the person who is entitled to the benefit of a court order while criminal
contempt involves defiance of the court revealed in conduct, which amounts to obstruction or interference with
the administration of justice. A helpful illustration is a case where the person restrained commits a breach, he is
guilty of civil contempt but a third party aiding and abetting a breach commits criminal contempt because he
interferes with the administration of justice. In A-G v. Times Newspapers Ltd.89, the House of Lords, on the
rationale behind the distinction held that “A distinction is sometimes drawn between what is described as ‘civil
contempt’, that is to say contempt by party to the proceeding in matter of procedure, and ‘criminal contempt’.
One particular form of contempt by party to proceedings is that constituted by an intentional act, which is in
breach of the order of a competent court.

Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction
or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of
the party for whose benefit the order was made and can waived by him. The intention with which the act was
done will, of course, be of the highest relevance in the determination of the penalty (if any) to be impose by the
court, but the liability here is a strict one in the sense that all requires to be proved its service of the order and
the subsequent doing by the party bound of that which is prohibited. When, however, the prohibited act is done
not by the party bound himself but by third party, a stranger to the litigation, that person may also be liable for
contempt.

There is, however, this essential distinction that his liability is for criminal contempt and arises not because the
contemnor is himself affected by the prohibition contained in the order but because his act constitutes a willful
interference with the administration of justice by the court in the proceedings in which the order was made.
Here the liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order
but an intention to interfere with or impede the administration of justice- an intention which can of course be
inferred from circumstances.”

But a decision of the Andhra Pradesh High Court90 failed to appreciate this distinction where the conduct of the
contemnor in instituting a suit and obtain in interim order of status quo and thereafter writing letters to the
Advocate Commissioner to stall a decree passed earlier were characterized as civil contempt in spite of the
 32

express finding that the offending acts were deliberately intended to thwart the earlier orders passed by the High
Court.

CONTEMPT OF COURT AND FREEDOM OF SPEECH-CONSTITUTIONAL ASPECT

“Were it left to me to decide whether we should have a government without newspapers or newspapers without
a government. I should not hesitate a moment to prefer the latter.”91

Though the concept of freedom of press is not a new one, it is very hard to find a suitable definition. Abraham
Lincoln has aptly put it when he said, “ the world has never had a good definition of it.”92 But people have
defined the concept of Freedom of Press and continue to do so. The concept was explained by William
Blackstone way back in 1769 “ The liberty of the press is indeed essential to the nature of a free state; but this
consists in laying no previous restraints upon publications and not in the freedom from censure for criminal
matter when published. Every freeman has an undoubted right to lay what sentiment he pleases before the
public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous,
illegal he must take the consequence of his own territory.”93

In 1977 the royal Commission on Press has emphasized the importance of, and defined the freedom of the press
as “ that degree of freedom from restraint which is essential to enable proprietors, editors and journalist to
advance the public interest by publishing the facts and opinions without which a democratic electorate cannot
make responsible judgments.

Prof Chafee said “the truth is, I think, that the framers had no very clear idea as to what they meant by the
freedom of speech or of the press, but we can say with reasonable assurance that the freedom which congress
was forbidden to abridge was not, for them, some absolute concept which had never existed on the earth.”94
Professor Baxi says that freedom of press means two or three things. “First it implies the freedom to have the
infrastructure required to set up a newspaper and to run it
 33

efficiently. Secondly, it means freedom to gather and report information. Thirdly, it means freedom to express
opinion.”95

But quite adverse view has also been put in by K. K. Mathew96 when he said “ the question of the freedom of
press has to be understood in the context of freedom for whom the publisher who has put in the money; the
worker who produces the paper, the advertiser who sustains it, the politician who runs the administration or the
reader who reads it? Freedom of the press is the freedom of the community, of society as a whole. It is not the
exclusive privilege of any of the four categories who are associated with the newspaper publication. The reader
who represents society, should have the ultimate freedom.

The eminent Jurist and writer Mr. Krishna Iyer has summed up what is Freedom of Press. According to him the
major contents of the freedom of press are:97

1. Freedom to gather information from diverse and antagonistic sources, on a competitive basis, free from any
monopolistic control from the government.

2. Freedom to inform the public true facts without fear or favor.

3. Right to have free access to sources of information.

The contempt of freedom of press has come quite a long way. There was a time in U.K. When the freedom of
Press wasn’t encouraged. Sit William Scrogg who became Lord Chief Justice in 1678, pronounced a judgment
that to publish a newspaper was illegal as, according to him, manifested an intention to commit breach of the
peace.98 On 24th February 1703 Daniel Defoe was fined 200 Marks and condemned to be pillared thrice to be
imprisoned indefinitely and to find sureties for his good behaviors during seven years for writing an anonymous
pamphlet called “shortest way with dissenters. Thus even though the church and state resorted to all methods to
suppress, corruption of youth or sedition. Such restraints through licensing and censorship came to be
accentuated after the invention of printing and the appearance of newspapers in 17th century, which
 34

demonstrated how powerful the press as a medium of expression is. It is in protest to such governmental
interference that the freedom of the press was built up in England.

A classic example for this situation would be John Milton’s99 “Aeropagtica” which was a protest addressed to
the long Parliament which had taken up licensing, after the abolition of star chamber. Milton Said: “Truth and
understanding are not such wars as to be monopolized and traded by tickets…give me the liberty to know to
utter and to argue freely according to conscience, above all liberties. Whoever knew truth put to worse in a free
and open encounter? Who knows not that truth is strong next to almighty; she needs no policies, no strategies,
no licensing to make her victorious; these are the shifts and defines that error makes against her power.”

It was result of such agitation that the Licensing Act of 1662 was eventually refused to be renewed by the
House of Commons in 1694 though reasons given were technical.

Thus, even though the concept of Press Freedom developed in United Kingdom, Sweden was the first country
in the world to recognize lawfully the freedom of press. The Swedish press Law of 1756 guaranteed a clear
protection or the press. The law of freedom of press was first promulgated in 1810 in Sweden. It was replaced in
1949 by a new Act, which enjoyed of being part of the Constitution itself. Certain amendments were made to
the Freedom of Press Act in 1976.100

We can see from Article 1 of Swedish Constitution that Swedish law expressly provides for freedom of press.
So is the case of United States. In America the struggle for freedom of Press had its greatest triumph when it
came to be guaranteed by written Constitutions, as a fundamental right. The First Amendment declared: “
Congress shall make no law…abridging the freedom of press.” In Bridges v. California101, the American
Supreme Court held that freedom of press will include the freedom to possess those means and equipment
which are necessary for the achievement of the object or goal for which freedom of the press is required

The Indian Constitution though has not recognized this right specifically under any of the freedoms the Indian
courts have read this freedom under freedom of speech and expression under Article 19(1)(a).102 Supreme Court
in Maneka Gandhi v. Union of India103 observed that “to be a fundamental right it is not necessary that a right
must be specifically mentioned in a particular article specifically, it may be a fundamental right if it is an
integral part of a named fundamental right or parties of the same basic nature and character as that fundamental
right. Every activity, which facilitates the exercise of the named fundamental right, may be considered integral
part of that right and hence be a fundamental right-freedom of press in Article 19.
 35

But the freedom of press impliedly provided under Article 19(1)(a) is not absolute. It is liable to reasonable
restrictions as imposed by an existing law or a law to be made by a state on various grounds like a) sovereignty
and integrity of India b) the security of the state c) friendly relations with foreign states d) public order e)
decency or morality f) or in relation with contempt of court and g) defamation or incitement to an offence.104

It is this nexus between freedom of press as impliedly provided in Article 19(1)(a) and its restriction based upon
contempt of court that will be dealt in detail in the coming chapters.

Contempt in the face of the Court (in facie)

This class of contempt is significant because the Court may act of its own motion. It applies when all the facts
leading to the contempt are all within the knowledge of the Court. Thus the Court may act of its own motion.

Insulting and contumacious behaviour in Court or the use of outrages and nnnnn provocative
language may constitute contempt. In Re Kumaraendran, An Advocate and Solicitor a defence counsel was
recorded to have shouted and behaved in a manner which was most unexpected in the Courtroom whilst the
proceedings were in session in the Sessions Court before the President of the Sessions Court. He later made an
application for the case to be heard before another judge or otherwise he would discharge himself from further
acting for the accused. The judge allowed his application to discharge himself. After the ruling was recorded,
the advocate said to the judge:
“If you say this (referring to the ruling), outside the Court, I will take on you certainly.”

He was found to be guilty of contempt in the face of Court and the judge exercised the summary
power to commit him to two days imprisonment. The remarks were viewed as contemptuous but the finding of
contempt was reversed on appeal on the grounds that the President had not afforded the advocate reasonable
opportunity to be heard and had not properly framed a charge of contempt against him.

In Karam Singh v Public Prosecutor, an advocate appealed against the summary conviction and
sentence of two weeks imprisonment on the grounds of contempt in the face of the Court. The facts disclosed in
the appeal record were that there was heated argument between the Magistrate and the appellant who was
appearing on behalf of the accused in the case. The Magistrate decided to deal with the appellant summarily. It
 36

was held by the High Court that a Magistrate‘s summary power to proceed of his own motion must never be
invoked unless the ends of justice really require such drastic measures.

However, starting from the 1980s, the approaches adopted by the Courts were more pragmatic. The advocates’
misbehavior or contumacious conduct has been given a stricter treatment.
In PP v Seeralan , a respondent, an advocate who was in Court holding a watching brief became emotional and
made nnnnn several allegations of bias against the Magistrate. He was ordered by the Magistrate to leave the
Courtroom, which he refused to do, saying that he had every right to be in the Court. He continued to make
allegations of bias against the Magistrate saying that the Magistrate was unfair and prejudiced. The
Magistrate eventually, after adjournment, took cognizance of the contempt committed and required the
respondent to show cause why he should not be punished. The respondent denied and he was then cited for
contempt with the imposition of a fine of RM 1,500 or, in default, one week‘s imprisonment.

Further, Re Zainur Zakaria is one of the notable and controversial cases of contempt of Court.
Zainur Zakaria was one of the lawyers for Anwar Ibrahim and was found in contempt during Anwar‘s trial. His
act of filing an application supported with an affidavit to disqualify the prosecutors from further prosecuting
the case (on the basis of fabrication of evidence on the part of the prosecuting team) was found contemptuous.
When the motion came up for hearing, the judge informed the parties that he intended to commence
proceedings for contempt against Zainur for having filed the motion. According to the judge it was scandalous
and frivolous thus undermining the integrity of the trial. Zainur was given the opportunity to tender an
unconditional apology to the Court, the Attorney General and the two prosecutors, which he refused. He was
asked to show cause and in doing so he explained that he filed the motion upon the instruction of his client.
Zainur applied for an adjournment to call for evidence but it was rejected by the judge. The Court
summarily cited him for contempt as his act had the tendency to deflect the Court from determining the issues
exclusively by reference to the evidence. He was sentenced to three months imprisonment.

This case went on appeal. The Court of Appeal upheld the High Court‘s decision but at the Federal Court level,
it was overruled. The Federal Court decided that the High Court judge had incorrectly applied the summary
procedure, resulting in injustice to Zainur. The refusal to grant an adjournment as requested by Zainur had
deprived him from the opportunity to answer the charge against him thus offending the principle of natural
justice.
 37

In the aftermath of Re Zainur Zakaria, there were unusual and extreme approaches in cases of contempt,
especially the use of summary power by the judges. Writing letters to Chief Registrars about a matter pending
before the Court could be the subject for contempt in the face of Court as decided in Koperasi Serbaguna
Taiping Barat Bhd v Lim Joo Thong .

The advocates are usually in a position where there is a conflict between his obligation to the Court and his duty
to his client. The advocates have the right of audience in Court to argue their clients‘cases fearlessly and
resolutely, but as an officer of the Court his obligation to the Court prevails over his duty to the client. His duty
to the Court remains paramount in the administration of justice. Therefore, the advocates have to carry the duty
and their clients ‘case professionally and give due Courtesy to the Court.

Contempt out of the Court (ex facie)

Most conduct committed out of the face of the court that is referred to interfere with the proper administration
of justice is contempt. This includes an attack on the integrity or impartiality of a judge if it interferes with or
prejudices those proceedings and a publication sub judice. These two types of contempt are also known as
publication contempt as it involves publication of material that tends to interfere with the proper administration
of justice .

Scandalizing a Court or a judge.

Contempt by scandalizing prohibits verbal or written attacks upon judges or Courts. It may also occur by speech
or writing that is intended to scandalize the Court itself, or by abusing parties to actions or by prejudicing
someone in favour of or against a party because the cause is heard and in the latter instance, misinterpretation
concerning parties may cause them to discontinue the action or to compromise or may deter other persons with
good causes of action from coming to Court.

Principle of common law of contempt as stated in R v Gray which Lord Russell of Killoween CJ defined as:
…Any act done or writing published calculated to bring a court or a judge of the court into contempt, or
to lower his authority, is a contempt of court. That is one case of contempt. Further, any act done or writing
published calculated to obstruct or interfere with the due course of justice or the lawful process of the courts is a
contempt of court. The former class belongs to the category which Lord Hardwicke L.C. characterized as
scandalizing a court or a judge.
 38

Any act done or writing published which is calculated to bring a Court or judge into contempt or to
lower his authority or to interfere with due course or justice of the lawful process or the Court, can amount to a
contempt of court . This not mean that the administration of justice may not be publicly or privately criticized.
Provided that critism should not amount to contempt but the problem lies in the fact that it is usually the judge
himself who determines what amount to fair criticism and what does not. The absence of any intention to refer
to a Court or a particular judge is material point in favour of a person alleged to be in contempt.

In 1999, another notable case of publication contempt arose. In Murray Hiebert

,the appellant, a Canadian, was a journalist and a correspondent for the magazine Far Eastern Economic
Review. He wrote and published an article relating to the respondent‘s case against her son‘s school which was
still pending. The respondent was the next friend of the plaintiff in the main suit and a wife to a judge of the
Court of Appeal at that time. The appellant wrote an article that contained amongst other claims that the
respondent‘s son was the son of a prominent judge of the Court of Appeal and that the trial of his case began in
less than seven months, insinuating that since the father is a prominent judge, he was able to influence the court.
The High Courtfound that the article imputed that by hearing the case earlier than an ordinary one the High
Court in hearing the case had been manipulated or influenced by the Court of Appeal judge. The article also
imputed that by continuing to hear the case, the High Court was unable to dispense justice with fairness and
impartiality. The High Court found the article contemptuous as it sought to influence the court to dismiss the
civil suit or to prejudice its mind by the adverse criticism stated in the article in a case that was pending.

Sub judice rule

An article written expressing an opinion on the merits of an issue that is before the Court and which accrues a
real risk that the fair trial of the action may be prejudiced can also amount to contempt. In a proper case, an
injunction may be issued to prevent the publication of the article25.

The media have an important role in publicizing certain matters that they believe are issues of public interests
and concerns. With regard to the court proceedings, the basic principle of ‘open justice‘ is applicable whereby
the court proceedings must be held in open court, and press and public have the right to attend, evidence is
communicated publicly and nothing is done to discourage the publication to the wider public of fair and
accurate reporting of those proceedings.

25
Attorney general v Times Newspaper Ltd [1973] 3 ALL ER 54
 39

The object of limiting what can be said during the currency of legal proceedings is to protect the fairness
of that trial. This is to avoid ‘trial by the media‘which could influence the participants in the proceeding. ‘Trials
by media‘ put at risk the due administration of justice in the particular proceedings. They could also undermine
confidence in the judicial system generally .

In PP v Abdul Samad b. Ahmad & Anor , the Court had to deal with the publication of an article while police
investigation was going on. The Court decided that contempt would be committed if it was known at the time of
the publication that police investigation was proceeding and that the prosecution was at the very least, under
consideration, even though no one has been officially accused of the offence.

CONTEMPT POWERS: JUDICIAL AUTHORITY IN TROUBLE

The power of the Courts to punish contempt would appear to be empty rhetoric as far as the source of this
power and the various attempts at its rationalization are concerned. It is not our intention to say that there is no
justification for such powers of the court which it claims to protect its dignity and authority. However, as has
been observed earlier, the advocates of this power of the court have presupposed the existence of the inherent
powers of the court to punish contemptuous acts, and have advanced numerous theories and justifications to
support their views. An often cited ground for upholding the enormous power of contempt is that of the
necessity to ensure ‘Rule of Law’.137 This is something the courtshave been repeatedly relying on to justify their
acts of punishing alleged contempt of their powers. In this light, the Arundhati Roy case 138 is worth special
mention since in that judgment, the Supreme Court of India made a determined effort to elucidate the need to
empower the

Courts with the power to punish contempt of its authority. However, it seems that the raison d’être behind the
existence of such a power is the lack of confidence of the Courts in their own capacity to earn respect from the
people. In fact, the need of any such power would be irrelevant if the Court realizes that it can have greater
authority by winning the confidence and respect of the people rather than enforcing its authority with penalties.
 40

PUNISHMENT UNDER THE CONTEMPT OF COURT ACT

Section 12 deals with the punishment for contempt of court. It provides as follows: Section 12(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 extent to 6 months or a fine which may extend up to rupees 2000 or both.

Provided that, the accused (of contempt) may be discharged or the punishment awarded may be remitted on
apology being made to the court's satisfaction.

EXPLANATION- An apology shall not be rejected merely on the ground that it is qualified or conditional if
the accused makes it bonafidely.

Where a person is found guilty of civil contempt and the court is of the opinion that imposing fine will not meet
the ends of justice and it is necessary to impose a sentence of imprisonment, the court may direct that he may be
detained in civil prison instead of sentencing him to simple imprisonment for such period not exceeding six
months, as it thinks fit.

Where, the person found guilty of contempt of court or in respect of the violation of any undertaking given to
the court, is a company, every such person who was in charge of the company at the time when the contempt
was committed shall be deemed to be guilty of contempt and the punishment may be enforced with the leave of
the court by detention in civil prison of such person.

Provided that, nothing contained in this sub-section shall render any such person liable to punishment, if he
proves that the contempt was committed without his knowledge or that he exercised all due diligence to
prevent its commission.
 41

DIFFERENCE BETWEEN CIVIL AND CRIMINAL CONTEMPT:

Following are the three differences between civil and criminal contempt :

1. Civil contempt involves willful and deliberate disobedience of the order or undertaking given to the
court.
Whereas, criminal contempt involves the defiance and insult of the court directly. There is neither any
order nor willful violation thereof in criminal contempt.

2. Civil contempt is a serious matter as the order obtained by one party against the other is disobeyed.
But, criminal contempt is more serious as it involves scandalizing or insulting the court directly and
thereby shaking the confidence, not only of the litigating parties but the general public as a whole.

3. In civil contempt private parties have interest because order obtained by one party against the other is
not complied with and therefore, one party is interested in getting the order complied with.
Whereas, in criminal contempt, private parties have little or no interest for the reason that criminal
contempt is directed against the court’s dignity.

PERIOD OF LIMITATION (SECTION 20) :

Section 20 deals with period of limitation for initiating contempt proceeding. Section 20 provides that no court
shall initiate contempt proceedings either on its own notions or otherwise after the expiry of one year from the
date on which contempt is alleged to have been committed. The period of limitation is applicable both in civil as
well as criminal contempt. Contempt proceedings can be initiated either by filing an application or by the court
itself suo moto. In both the cases, contempt proceedings must be initiated within one year from the date on
which contempt is alleged to have been committed.

In criminal contempt, contempt is alleged to have been committed the moment canalization of court or
interference with the administration of justice takes place. Consequently, the period of limitation immediately
starts running. But, in case of civil contempt the period of limitation does not start from the date of the order. It
starts running after expiry of period mentioned in the order after service of certified copy of the order upon the
other side. If no time limit is mentioned in the order, the order should be complied within a reasonable period.
The term “reasonable period” has been interpreted to be a period of three months from the date of service of
certified copy.
 42

FREE SPEECH & CONTEMPT LAW

Unfortunately, however, when it comes to contempt and scandalizing, the Court has adopted exactly the chain
of reasoning that it has rejected in the public order cases. As early as 1953, in Aswini Kumar Ghose v. Arabinda
Bose,26 the Court observed that “it is obvious that if an impression is created in the minds of the public that the
Judges in the highest Court in the land act on extraneous considerations in deciding cases, the confidence of the
whole community in the administration of justice is bound to be undermined and no greater mischief than that
can possibly be imagined.” Subsequently, in D.C. Saxena v. CJI, the Court held that “Any criticism about
judicial system or the judges which hampers the administration of justice or which erodes the faith in the
objective approach of the judges and brings administration of justice to ridicule must be prevented.

The contempt of court proceedings arise out of that attempt. Judgments can be criticized. Motives to the judges
need not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice
is one of the pillars on which democratic institution functions and sustains.” Notice the chain of causation the
Court is working with here: it holds faith in the administration of justice as a necessary pre-requisite to the
administration of justice, and prohibits criticism that would cause other people to lose their faith in the
judiciary.

This is exactly akin to a situation in which I make an argument advocating Marxist theory, and I am punished
because some people, on reading my article, might start to hold the government in contempt, and attempt to
overthrow it by violent means.27 Not only is it absurd, it is also entirely disrespectful of individual autonomy: it
is based on the assumption that the person legally and morally responsibly for a criminal act is not the actor, but
the person who convinced the actor through words and arguments, to break the law – as though individuals are
incapable of weighing up competing arguments and coming to decisions of their own accord. Later on, in the
same case, the Court holds that scandalizing includes “all acts which bring the court into disrepute or disrespect
or which offend its dignity or its majesty or challenge its authority.”

As we have seen before, however, disrepute or disrespect of an institution cannot in itself be a ground for
punishment, unless there is something more. That something more is actual disruption of justice, which is

26
AIR 1953 SC 75
27
Gautam Bhatia, Free Speech and Contempt of Courts – II: Article 19(1)(a) and Indian Law, CIS, April 15, 2014 sourced from
http://cis-india.org/internet-governance/blog/free-speech-and-contempt-of-courts-2013-ii-article-19-1-
 43

presumably caused by people who have lost their confidence in the judiciary, but in eliding disrepute/disrespect
with obstruction of justice, the Court entirely fails to consider the individual agency involved in crossing that
bridge, the agency that is not that of the original speaker. This is why, again, in its sedition cases, the Court has
gone out of its way to actually require a proximate relation between “disaffection” and public order breaches, in
order to save the section from unconstitutionality. Its contempt jurisprudence, on the other hand, shows no such
regard. It is perhaps telling that the Court, one paragraph on, adopts the “blaze of glory” formulation that was
used in an 18th century, pre-democratic English case. Indeed, the Court draws an express analogy with sedition,
holding that “malicious or slanderous publication inculcates in the mind of the people a general disaffection and
dissatisfaction on the judicial determination and indisposes in their mind to obey them.”30 Even worse, it then
takes away even the basic protection of mens rea, holding that all that matters is the effect of the impugned
words, regardless of the intention/recklessness with which they were uttered.

The absence of mens rea, along with the absence of any meaningful proximity requirement, makes for a very
dangerous cocktail – an offence that can cover virtually any activity that the Court believes has a “tendency” to
certain outcomes: 28
“Therefore, a tendency to scandalise the court or tendency to lower the authority of the
court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or
tendency to challenge the authority or majesty of justice, would be a criminal contempt. The offending act apart,
any tendency if it may lead to or tends to lower the authority of the court is a criminal contempt. Any conduct of
the contemnor which has the tendency or produces a tendency to bring the judge or court into contempt or tends
to lower the authority of the court would also be contempt of the court.”

The assumption implicit in these judgments – that the people need to be protected from certain forms of speech,
because they are incompetent at making up their own minds, in a reasonable manner, about it – was made
express in Arundhati Roy’s Case, in 2002. After making observations about how confidence in the Courts could
not be allowed to be “tarnished” at any cost, the Court noted that “the respondent has tried to cast an injury to
the public by creating an impression in the mind of the people of this backward country regarding the integrity,
ability and fairness of the institution of judiciary”, observed that the purpose of the offence was to protect the
(presumably backward) public by maintaining its confidence in the judiciary, which had been enacted keeping
in mind “the ground realities and prevalent socio-economic system in India, the vast majority of whose people
are poor, ignorant, uneducated, easily liable to be misled. But who acknowledly (sic) have the tremendous faith
in the dispensers of Justice.”

28
Supra notes 2
 44

So easy, indeed, to mislead, that there was no need for any evidence to demonstrate it: “the well-known
proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it misses to hit the
target. The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and
thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous
consequences are likely to follow resulting in the destruction of rule of law, the expected norm of any civilised
society.”32 The American legal scholar, Vince Blasi, has outlined a “pathological perspective” of free speech.
According to him, heightened protection of speech – even to the extent of protecting worthless speech – is
important, because when the government passes laws to regulate speech that is hostile towards it, it will, in all
likelihood, over-regulate purely out of self-interest, sometimes even unconsciously so.

This is why, if the Courts err, they ought to err on the side of speech-protection, because it is quite likely that
the government has over-estimated public order and other threats that stem out of hostile speech towards
government itself. The pathological perspective is equally – if not more – applicable in the realm of contempt of
Court, because here the Court is given charge of regulating speech hostile towards itself. 33Keenly aware of the
perils of speech suppression that lie in such situations, we have seen that the United States and England have
abolished the offence, and the Privy Council has interpreted it extremely narrowly.

The Indian Supreme Court, however, has gone in precisely the opposite direction. It has used the Contempt of
Court statute to create a strict-liability criminal offence, with boundlessly manipulable categories, which is both
overbroad and vague, entirely inconsistent with the Court’s own free speech jurisprudence, and at odds with
free speech in a liberal democracy.
 45

DEFENCES IN CIVIL CONTEMPT :

Following defenses can be taken by an alleged condemner in a civil contempt :

1. No knowledge of order : The general principle is that a person cannot be held guilty of contempt in
respect of an order of which he claims to be unaware. Law casts a duty upon a successful party to serve
the certified copy of the order on the other side either personally or by registered speed post.
Notwithstanding the fact that the order has been passed in presence of both the parties and their
counsels.
So, it can be successfully pleaded in defense that the certified copy of the order was not formally
served on the alleged condemner.

2. Disobedience or Breach was not willful : It can be pleaded that although disobedience or breach of
the order has taken place but it was due to accidental, administrative or other reasons beyond the
control of the party concerned. This plea can be successful only when the order has been complied
with and a reasonable explanation has been given for non- compliance thereof.

The Court may assess the intention of the party from the act done in the same way as a reasonable
prudent man would assess in the given circumstances.

3. Order disobeyed is vague or ambiguous : If the order passed by court is vague or ambiguous or it’s
not specific or complete, it would be a defense in the contempt or alleged condemner can raise a plea in
defense that the order whose contempt is alleged cannot be complied with as the same is impossible. In
case of R.N.Ramaul v. State of Himanchal Pradesh29 the Supreme Court directed the respondent
corporation to restore the promotion of the petitioner in service from a particular date. This direction
was complied with by the respondent corporation by treating him as promoted from that particular date
which was given in the order. But, the monetary benefits for that period were not paid by the respondent
corporation and as such the contempt petition was filed. Respondent Corporation took a defense that
monetary benefits were not paid to the petitioner because there was no direction in the order for payment
of monetary benefit and they cannot be held liable for contempt.

29
AIR 1991 SC 1171
 46

In case of Bharat Coking Coal Ltd. V. State of Bihar30, the Supreme Court clarified the legal position
by holding that where the order is incomplete and ambiguous, the parties should approach the original
court and get the order clarified by getting the ambiguity removed.

4. Order involves more than one reasonable interpretation : If the order whose contempt is alleged
involves more than one reasonable and rational interpretation and the respondent adopts one of them and
acts in accordance with one such interpretation, he cannot be held liable for contempt of court. However,
this defense is available only when a bonafide question of interpretation arises. The intention of bonafide
interpretation can be gathered from the fact that the order has been complied with by adopting one such
interpretation. In case of T.M.A. Pai Foundation v. State of Karnataka31 it was held that this defense
won’t be allowed if a doubt about the order has been deliberately created when actually there is no doubt
at all.

5. Compliance of the order is impossible : In proceedings for civil contempt, it would be a valid defense
that the compliance of the order is impossible. However, the cases of impossibility must be
distinguished from the cases of mere difficulty. In case of Amar Singh v.
K.P.Geetakrishnan, the court granted certain pensioner benefits to a large number of retired employees
with effect from a particular back date. The plea of impossibility was taken on the ground that the
implementation of the order would result in heavy financial burden on the exchequer. However, the plea
of impossibility was rejected by the court with the observation that although it’s difficult to comply with
the order but it’s not impossible to comply and therefore, it should be complied with.

6. The order has been passed without jurisdiction : If the order whose contempt is alleged, has been
passed by a court which had no jurisdiction to pass it, the disobedience or violation would not amount to
contempt of court for the reason that the order passed without jurisdiction is a void order and binds
nobody. In case of Krishna Devi Malchand V. Bombay
Environmental Action Group32, the Supreme Court clarified the legal position and held that if the
order is void, it cannot be ignored by the party aggrieved by it. The litigating party cannot assume the
role of Appellate or Revisional authority in order to say that the order os not binding upon them.
Consequently, if any party feels that the order has been passed by a court which had no jurisdiction to
pass it, he should approach the same court for seeking such declaration by moving an application for

30
1990 SCR (3) 744, 1990 SCC (4) 55
31
(2002) 8 SCC 481
32
(2011) 3. SCC 363
 47

recall of the order. If the application is rejected, the Appellate Court can be approached for such
declarartion.

7. In case of State of Jammu and Kashmir V. Mohr. Yaqub Khan33, the Supreme Court has held that
where stay petition application is pending, the Contempt Court should not proceed with the contempt
case till the stay vacation application is decided. So, in case of interim order having been passed by a
court which has no jurisdiction, a stay vacation application can be promptly file, raising the plea of lack
of jurisdiction.

8. In Dr. H. Puninder Singh V. K.K. Sethi34, the Supreme Court has held that if there is any stay order
passed by the Appellate Court, the contempt court cannot proceed. However, if no interim order
application is passed by the Appellate Court, the court can proceed and the order of the original court
should be complied with subject to any order passed by the Appellate Court at the final stage.

Procedural safeguards

The power to punish for contempt is a grave and weighty responsibility and one that can be easily
misused. For this reason, the authorities prescribe a number of safeguards. They are as follows:
i) An opportunity to be heard must be given to the alleged contemnor
ii) The alleged contemnor is required to be informed the precise charge against him and the
evidence that is tendered to prove the charge.
iii) The burden of proof is “proof beyond a reasonable doubt”
iv) In the case of contempt in the face of the Court, the judicial officer citing the alleged contemnor
should transfer the proceedings for contempt to another of their colleagues on the Bench and the
actual words uttered or act complained of so that the alleged contemnor is not entirely at the
mercy of presiding officer who may be motivated by ill will towards him or may record his own
impressions of the behaviour complained of rather than the true facts.

33
JT 1992 (5) SC 278
34
(1998) 8 SCC 640
 48

DEFENCES AVAILABLE IN CRIMINAL CONTEMPT

Sections 3 to 7, of the Contempt of Courts Act, deal with the defenses available in criminal contempt. These
defenses can be categorized in the following categories:

1) Innocent publication and distribution of matter - S.3 deals with this defense. If a criminal contempt is
initiated against a person on the ground that he is responsible for publication or for distribution of publication
which prejudices or interferes with the pending proceedings, the contemptner may take the following steps:

(a) he may plead under S. 3(1) that at the time of publication, he had no reasonable ground for believing
that the proceeding was pending.

(b) he may plead under S.3(2) that at the time of publication, no such proceeding was pending.

(c) he may plead under S.3(3) that at the time of distribution of publication, he had no reasonable ground
for believing that the matter (published or distributed by him) contained or was likely to contain any
material which interfered or obstructed the pending proceeding or administration of justice.

2) Fair and accurate report of judicial proceedings - S.4 of the Act provides that a person should not be held
guilty of Contempt of Court for publishing a fair and accurate report of any judicial proceedings or any stage
thereof.S. 7 of the Act provides Exception to the general principle that justice should be administered in public.
Sub sections (1) and (2) of S.7 provide that a person shall not be guilty of Contempt of Court for publishing the
text or for publishing fair and accurate summary of the whole or any part of the order made by the court in
camera (in Chamber) unless the court has expressly prohibited the publication of the proceedings on the
grounds of:

a) Public Policy

b) Public Order

c) Security of the State

d) Information relating to a secret process, discovery or invention, or, in excercise of the power vested in it.
 49

3) Fair criticism of Judicial Act - S.5 provides that a person shall not be guilty of criminal contempt for
publishing any fair comment on the merits of any case which has been finally decided. A defense can be taken
that the statement complained of (in respect of publication of which criminal contempt has been initiated) must
be in respect of a case which has been finally decided and not in respect of pending proceedings. Moreover, the
statement should come from the mouth of a knowledgeable person in the field of law and not from a litigating
party which has lost the case.

In short, fair criticism means that criticism which while criticizing the act of a Judge does not impute any
ulterior motive to him. In case of Arundhati Roy, the Supreme Court has held that judicial criticism can not be
invoked under the garb of Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of
India.

The Supreme Court further clarified that fair criticism of the judiciary as a whole or the conduct of a Judge in
particular may not amount to contempt if it is made in good faith and in public interest. To ascertain the 'good
faith' and 'public interest' the Courts have to take into consideration all the surrounding circumstances including
the person's knowledge in the field of law, the intention behind the comment and the purpose sought to be
achieved. A common citizen cannot be permitted to comment upon the Courts in the name of criticism by
seeking the help of Freedom of speech and expression for the reason that if it is not checked, it would destroy
the judicial institution itself.

In the present case, Arundhati Roy was not found to have knowledgeor study regarding the working of the
Supreme Courtor judiciary of the country and so the defense of fair comment in good faith and public interest
taken by her was rejected and she was punished for criminal contempt.

4) Bonafide Complain against the presiding officer of a sub-ordinate Court -S.6 provides that a person shall
not be guilty of contempt of court in respect of any statement made by him by way of complaint in good faith
concerning the presiding officer of any sub-ordinate court to the High Court or to the Court to which he is sub-
ordinate. The protection of this section will be available only when it is proved that the complaint was made in
good faith.
 50

In ascertaining the 'good faith' the intention and the purpose sought to be achieved by complaint will be taken
into consideration and it would be ensured that the same was not made with ulterior motive.

5) No substantial interference with due course of justice - By the Contempt of Courts (Amendment) Act,
2006, a new Section 13 has been substituted in place of existing S.13. This new S. 13 provides that
“notwithstanding anything contained in any law for the time being in force, no Court should impose a sentence
for Contempt of Court unless it is satisfied that the Contempt is of such a nature that it substantially interferes or
tends to interfere with the due course of justice.”

6) Justification by Truth -The amended S.13(2) provides that the Court may permit justification by truth as a
valid defense in any proceeding for criminal contempt if it is satisfied that it is in public interest. Thus, truth is
now a defense if it is in the public interest and Bonafide.

7) The statement complained of is open to different interpretations - If the words complained of are open to
two different interpretations and one of them indicates contempt while the other does not, the contemptner
cannot be punished for non compliance of one interpretation. But, in order to succeed in this defense, it is
necessary to prove that the order was complied with in respect of one interpretation. If the order is not complied
with at all, it cannot be proved that there was a reasonable doubt as to the interpretation of the order. On the
other hand, it will be presumed that a doubt is deliberately sought to be created so as to avoid the compliance of
the order.

8) Defamation of the Judge personally - If the publication or other act is merely a defamatory attack on the
judge and is not intended to interfere with the administration of justice, it will not be taken as contempt of court.
 51

The publication or other Act amounts to Contempt of Court only when it has nexus with the functioning of a
judge. The statement complained of may amount to Contempt of Court only when it is made against a judge in
his judicial capacity in the exercise of his judicial functions. However, in such a situation a judge is not
remediless and he has the same remedies available which are available to a common man. A defamatory attack
on a judge may be Libel or Slander and he has discretion to proceed for Defamation in civil, criminal or
simultaneous proceedings against the person concerned but he cannot be punished summarily under criminal
contempt of court. The object of Contempt law is to protect the confidence of the people in the administration of
justice and its object is not to prevent attacks upon the personal reputation of any individual judge. So, any
personal attack upon the judge unconnected with the office he holds, is dealt with under the ordinary rules of
Libel and Slander.

THE ARUNDHATI ROY CASE

The Arundhati Roy case has been the focal point of any discussion on the contempt powers of the Court in
recent times. Though it has been repeated time and again, still the background of this case needs to be
mentioned for the present paper. It is noteworthy that writer Arundhati Roy has faced contempt charges three
times including the one already mentioned. The first one was when she wrote an article entitled ‘The Greater
Common Good’ which was published in the Outlook magazine.35

The author had ridiculed the ‘tender concern’ that the Supreme Court judges had expressed in regard to the
availability of children’s park for the children of the tribal inhabitants who would be displaced when the
height of the Sardar Sarovar dam was increased. The author had pointed out the ground reality of the plight
of the hitherto happy, simple minded tribals who had been living among nature’s beautiful creations for ages
and who had now, not even been allotted any land for rehabilitation. However, such thoughts of the author
did not go down well with the supreme judicial authority of the country. Two judges of the Supreme Court
felt that these comments made by her were prima facie a misrepresentation of the proceedings of the Court
and constituted contempt of Court.

The Court failed to realize the fundamental relation between the authority of any institution, and the respect
and trust of the people that such institution commands. The trust in the honesty and integrity of the judges is
inspired by their work. If such a fundamental rule is respected and is actually practised, then certainly the
Courts can do without exercise of powers of contempt of court. However, it seems that it is not obsolete in
India despite the fact that Article 19(2) of the Constitution permits, inter alia, on the ground of contempt of

35
http://www.narmada.org/gcg/gcg.html
 52

court only ‘reasonable restrictions’ on the fundamental right to freedom of speech and expression, guaranteed
by Article 19(1) (a). So it is disheartening to note that although our law is based on English law, our courts
follow English precedents discarded as outdated in the very land of its origin, namely, UK.36

JUDICIAL INTERPRETATION OF CONTEMPT LAW IN OTHER INDIAN CASES

In light of the Arundhati Roy case, we can have a better understanding of such travesties of justice when two
earlier instances of contempt proceedings are compared. One being the Shivshankar’s case 37 wherein harsh
criticism of the judiciary was held not to be contemptuous; and the other is the Namboodripad’s case. In the
latter case, Namboodripad had been convicted for contempt for a speech which was a pure theoretical
statement on the role of the judiciary from a Marxist perspective. While criticizing the lack of a standard
code for execution of contempt proceedings, the critics have pointed out that the fact that Shivshankar was a
former judge of a High Court and later a minister in the central government was the difference between him
and Namboodripad.

REMEDIES AGAINST THE ORDER OF PUNISHMENT :

Following remedies are available against the punishment order under Contempt of Court Act :

1. Apology : The condemner may under apology to the court and the court may remit the punishment
awarded for contempt, if the court is satisfied that the apology has been made with real sense of
repentance.

In case of A.K. Pandey, the Supreme Court made it clear that the court is not bound to accept the apology
unless there is a feeling of repentance in the condemner. In case of M.C. Mehta V. Union of India38, the
Supreme Court further clarified that apology should not be used as a weapon of defense in case of contempt.
The apology must be tendered at the earliest opportunity. An apology will not be treated as an apology if
tendered at a time when court is going to impose a punishment. However, alongwith apology the defense
taken by condemner can be pleaded. Explanations to section 12(1) has enabled the condemner to put
forward his defense while pleading apology as this explanation has provided that apology should not be
rejected on the ground that its qualified or conditional if the accused makes it bonafide. Apology will help
the condemner if his explanation has been rejected.

36
S.P. Sathe, Accountability of the Supreme Court, ECONOMIC AND POLITICAL WEEKLY, April 13, 2002, at 1383.
37
P.N. Dua vs. P. Shiv Shanker and Ors., AIR 1988 SC 1208.
38
[1987] 4 S.C.C. 463
 53

In case of Haridas V. Smt. Usharani 39 the apology tendered by condemner was not found to be genuine
as the condemner repeatedly tried to assert that whatever he said was correct and he would prove it. And at
the same time he tendered apology. His apology was not found to be genuine and he was punished for
contempt.

2. Appeal : Contempt of court Act, 1971 has provided for the statutory right of appeal against the orders
of High Court passed in the exercise of its jurisdiction to punish for the contempt of the court. Prior to
this act there was no statutory right of appeal but even at that point of time the person punished under
the Contempt of Court Act was not remediless. The High Court itself could grant the certificate under
Article 134 of the Indian Constitution and where the High Court refused to grant such certificate, the
Supreme Court could entertain the appeal by granting special leave under Article 136 of the Constitution
of India.

So, the right of appeal prior to 1971 was dependant on the discretion of the court and it was not by the way
of right Section 19(1) of the act provides right of only one appeal. It provides that an appeal shall lie as of
right from any order or decision of the High Court in the exercise of its jurisdiction to punish for contempt.
If the order of punishment has been passed by single judge of High Court, there is right of appeal to the
division bench of not less than two judges of High Court. If the order of punishment is passed by a dicvision
bench then appeal will lie in Supreme Court.

However, in case of punishment order passed by single judge,the right of appeal gets exhausted once the
appeal is filed before the division bench and there is no further right of appeal under the Contempt of Court
Act. However, the remedy under Article 136 of Constitution will still be available and the Supreme Court
may grant leave to appeal under Article 136. Section 19(4) provides for the period of limitation for
preferring an appeal. It provides that an appeal under Article 19(1) shall be filed within thirty days to the
division bench of High Court and in case the order of punishment has been passed by division bench of
High Court then within sixty days to the Supreme Court from the date of the order appealed against. Section
19(2) deals with the power of Appellate Court during the pendency of appeal. It provides that during the
pendency of the appeal the Appellate Court may pass the following orders :

1. The execution of the punishment order shall remain suspended.

2. If appellant is under confinement imprisonment he may be released on bail.

39 Appeal (civil) 7948 of 2004

 54

3. The appeal may be heard notwithstanding that the appellant has not perched his contempt.

Section 19(3) provided that an appeal under section 19 will lie at the instance of the person aggrieved. A
proceeding for contempt is between the court and the condemner. A person who moves the application for
initiating contempt proceeding does not come within the category of person aggrieved and therefore he has no
locus to file an appeal, if his contention for initiating the contempt proceeding is rejected. If a person is found
guilty for contempt of court, an appeal will lie under section 19 that the instance of person who is found guilty
and is consequently punished. But, if a person is not found guilty of contempt proceedings and proceedings for
contempt is either dismissed or dropped against him then the informant or person who has moved the
application for initiating the contempt will have no right of appeal under section 19 of the Act.
In case of Varda Kant Mishra V. State of Orissa, it was clarified by Supreme Court that the order or the
decision of High Court refusing to initiate contempt proceedings or dropping the contempt proceedings or
acquitting the condemner (even if initiated the contempt proceedings) cannot be challenged by wayof appeal
under Section 19. It is only the order of punishment which can be challenged by way of appeal under section 19
of the act.
 55

PROCEDURE TO BE ADOPTED IN CONTEMPT PROCEEDINGS :

Section 14 of the contempt of court act deals with the procedure of contempt in the face of the court of record
whereas section 15 deals with the procedure in cases other than in the face of court of record. This is also
known as constructive contempt.

Article 129 provides that the Supreme Court and article 215 provides that every High Court shall be a court of
record and shall have all the powers of such court including to punish for its contempt. These court of records
have inherent power to punish for contempt and therefore these court of records can deal with such matter
summarily and can adopt their own procedure.

The only case to be observed by the courts of record while exercising the contempt jurisdiction is that the
procedure adopted must be fair and reasonable in which full opportunity should be given to the alleged
condemner to defend himself. No person should be punished for the contempt unless a specific charge against
him is distinctly stated and he is given a reasonable opportunity to answer it and to defend himself against such
charge.

The contempt proceedings are neither niether civil proceedings nor criminal. They are sui generis. Consequently
contempt proceedings will neither be governed by Civil Procedure Code nor by Code of Criminal Procedure.
Even the provisions of Indian Evidence Act will not be attracted in the contempt proceedings. The contempt of
court including the criminal contempt is not an offence within the meaning of Code of Criminal Procedure and
therefore a procedure prescribed by Code of Criminal Procedure for investigation, enquiry and trial of the
offence is not required to be followed in contempt proceedings.

The contempt of court and the power of the Supreme Court and High Courts to initiate proceedings for
contempt and pass punishment orders, is a special jurisdiction which is inherent in all the courts of record.
Section 5 of the Code of Criminal Procedure expressly excludes special jurisdiction from the scope of Code of
Criminal Procedure.
 56

PROCEDURE TO BE ADOPTED IN CASES OF CONTEMPT IN THE FACE OF THE COURT :

Section 14 deals with contempt in the face of the Supreme Court and High Courts and it provides that 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 defense 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 maythink fit and proper
under the circumstances of the case.

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.
 57

In Sukhdev Singh v Teja Singh, the Supreme Court observed that if the judge has been personally attacked, he
should not, as far as possible, hear the contempt matter and should refer the matter to Chief Justice for
nomination of some other Court, or, on the application of the person aggrieved. This is necessary keeping in
view the principle of law that no one should be a judge in his own cause, and, secondly justice should not only
be done, but it must appear to have been done.

In those cases where the Contemnor 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.

PROCEDURE OF CRIMINAL CONTEMPT COMMITTED OUTSIDE THE COURT

Criminal Contempt committed outside the Court, in other words, other than in the face of the Court, is known as
Constitutive 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:

 On its own motion

 On the motion of the Advocate General
 On the motion of any other person, with the consent, in writing of the Advocate General.
 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:

 On the reference made to it by the sub-ordinate court.

 On the motion made by the Advocate General.

 58

 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 judicial commissioner, such law officer as the central government may specify.

BAR ON PRIVATE PERSONS

Section 15 bars the private individuals to file contempt case without consent of the Advocate General. The
purpose of barring a private person from filing contempt procedure without the consent of Attorney General is
to save the court's time from being wasted in frivolous complaints.

In Hari Kishan V Narutham Das Shashtri, the SC held that the purpose of barring private person from filing
criminal contempt is to prevent the courts from being flooded with frivolous motions in order to serve personal
interest or grudge.

Once the matter is scrutinised by advocate general only such motions which have substance will receive the
court's attention.

In case of Biman Basu V A.G Thakurta40, the SC held that any petition of criminal contempt filed by any
private person without the consent of the Advocate General will not be maintainable and will be dismissed on
this ground alone.

40
(2005) 2 CALLT 1 HC, 2005 (2) CHN 330
 59

PROCEDURE TO BE ADOPTED IN CASES OF CONTEMPT COMMITTED OUTSIDE THE COURT

In cases of contempt committed outside the court, the contemptner isn't present in the court and therefore a
notice is to be served on him section 17 deals with this procedure. It provides that notice of every proceeding
under section 15 shall be served personally on the person charged unless the court for reasons to be recorded,
directs otherwise. The notice shall be accompanied:-

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.

Any person charged with contempt under section 15 may file an affidavit in support of his defense and the court
may decide the charge of contempt on the basis of his affidavit or after taking such evidence as may be
necessary.

Contempt of Courts-Some Case studies

1) M.B. SANGHI, ADVOCATE v. HIGH COURT OF PUNJAB AND HARYANA [AIR 1991 SC
1834:1991( 3 )SCC 600] –
Unable to secure an ad-interim stay in favor of his client, the appellant, a practicing Advocate, uttered
certain words imputing motives to the Sub-Judge in refusing to grant the stay.- Had the effect of
scandalizing the Court and impairing confidence of public in Court--Hence guilty of contempt Apology-
Tendering of--Not to serve as mere defense against rigors of law--Should reflect remorse and contrition
of contemnor--Tendering 'unqualified apology' in case Court finds him guilty--Not sincere-Contemnor
addicted to use of contemptuous language against Judges and tendering apology--Apology used merely
a device to escape--Not to be accepted--Use of contempt jurisdiction against erring members of legal
profession--Courts are slow in the hope that Bar Councils will take care to maintain ethical norms--
Decline in ethical values in the profession-Arrest of--Timely action by Bar Councils--Need for -held- “It
 60

is well-settled that an apology is not a weapon of defence to purge the guilty of their offence; nor is it
intended to operate as a universal panacea, but it is intended to be evidence of real contriteness.”

2) DELHI JUDICIAL SERVICE ASSOCIATION Vs. STATE OF GUJARAT [AIR 1991 SC 2176 :1991
SCC (4) 406]
Chief Judicial Magistrate, Nadiad, Gujarat--Assaulted, arrested on flimsy grounds, handcuffed, tied with
rope, photographs taken and published by Police Officers--Held constituted clear case of criminal
contempt--Contemnors-punishment--Quantum of punishment determined according to degree and extent
of part played by each contemnor--Guidelines laid down by Supreme Court in case of arrest and
detention of a Judicial Officer--To be followed by State Governments as well as High Courts--Judicial
Officer not to visit Police Station—Except in connection with official and judicial duties and with prior
intimation to District and Sessions Judge.

3) MOHD. ASLAM OBHURE v. UNION OF INDIA &STATE OF UTTAR PRADESH AND ORS.[ AIR
1995 SC 548:1994( 6 )SCC 442]
Willful disobedience of order of Court-Babri Masjid Case-Undertaking given by Chief Minister of a
State both in his personal capacity and on behalf Of his Government- Flagrant breach of undertaking-
Personal element shown in act of disobedience of order of Courts- Reasonable steps not taken to prevent
violation of order of court-Chief the State convicted of an offence: of Contempt of Courts-Sentence of
Minister of imprisonment of one day with fine of Rs. 2,000 imposed.

4) DELHI DEVELOPMENT AUTHORITY Vs. SKIPPER CONSTRUCTION [1995 SCC (3) 507]
Respondents violating directions of Court- Also filing suit in High Court in respect of same subject
matter regarding which their special leave petition had been dismissed -Suo Motu notice to respondents
by Court-Contemnors tendering apology-Held, respondents' actions amounted to Contempt of Court-
Apology is not a weapon of defense forged to purge guilt of offences -Contemnors sentenced to simple
imprisonment-However, sentence deferred subject to conditions. HELD –― Abuse of the process of
court calculated to hamper the due course of judicial proceeding or the orderly administration of justice
is a contempt of court.‖

5) IN RE: 1. SHRI SANJIV DATTA, DEPUTY SECRETARY,MINISTRY OF INFORMATION &

BROADCASTING [1995 SCC (3) 619]
 61

Contempt of Courts Act, 1971: Sec 2(c), 12-Contempt of Court- Suo moto contempt notice issued to a
public servant and his advocates-Affidavit filed in the Supreme Court containing allegations against the
Court- Allegations made with intention of casting aspersions on the Court and attributing motives to it-
Accusing the Court of making mockery of established policy of Government of India by permitting a
foreign agency to undertake broadcasting from India against national interest thereby undermining
sovereignty of the nation-Unconditional apology of public servant not accepted-Allegations made by the
contemnor were intentional- Made with full knowledge of its grave implications and therefore has
potentiality of mischief-If not curbed firmly, may assume proportion grave enough to sabotage the rule
of law. Unconditional apology of advocates- Accepted for want of knowledge of al-legations.

CITIZENS FOR DEMOCRACY v. STATE OF ASSAM [AIR 1996 SC 2193:1995(3)SCR 943:1995(3)SCC

743]
Constitution of India-Arts 14, 19, 21 and 32-Rights of under-trial prisoners- Safe custody- Use of
fetters-Not permissible- Handcuffs not to be forced on a prisoner -No authority with police and jail
authorities to direct handcuffing of any inmate- Magistrate may grant permission to handcuff prisoner -
Public Interest Litigation. Contempt of Courts Act-Handcuffing of under-trial prisoners-Directions given
by this Court-Mandate to be followed by police, jail authorities and by subordinate judiciary-Binding
directions issued.

7) DHANANJAY SHARMA v.STATE OF HARYANA AND ORS [1995 (3) SCR 964]
S.2(c)-Criminal contempt-Illegal detention of detenues by police officials in ranks of SP, DSP and SHO-
Habeas Corpus petition filed in Supreme Court- Police officials filing false affidavits and giving false
statements in Court- Besides, DSP and SHO effectively pressurising one of detenues to file false
affidavit and give false statement in Court-Even after report of C.B.I. establishing factum of illegal
detention of detenu by police personnel, latter filing false affidavits in Court denying the facts- Held
swearing of false affidavits in a court of law amounts to criminal contempt as it has not only the
tendency of causing obstruction in due course of judicial proceedings, but also to impede, obstruct or
interfere with administration of justice- SP, DSP and SHO punished for committing contempt of Court-
Their apologies rejected being not apologies of truly repentant persons but made with a view to escape
punishment-Conduct of Secretary, Department of Home in not filing affidavit in response to Court's
direction disapproved-Director General of Police warned to be careful in future-Apologies tendered by
these two, being genuine and bona fide, accepted.
 62

8) P.K. GHOSH, I.A.S. v.J.G. RAJPUT [AIR 1996 SC 513 : 1995(6)SCC 744]
Lawyer-Representing the case of a litigant-Elevation to High Court Bench- Hearing of contempt petition
arising out of the case represented-Propriety of-Held the Judge should have recused himself from
hearing the contempt-Order passed in contempt petition held vitiated.

9) Dr. D.C. SAXENA Vs. HON'BLE THE CHIEF JUSTICE OF INDIA [1996 SCC (7) 216]
Article 129-Contempt of Court - Writ petition filed before Supreme Court- Dismissed summarily by the.
Bench comprising Chief Justice of India as one of the Judges-Petitioner filing a second writ petition
against the Chief Justice of India levelling allegations against and imputing motives to the CJI for
dismissing his first writ petition-Writ petition containing intemperate language and scurrilous
accusations against the CJI-CJI allocating the petition to a Bench for hearing-Writ petition dismissed-
Contempt proceedings initiated against the petitioner-Held, allegations made in respect of the CJI in
performance of his judicial function intended to lower the authority of and respect for the Court and
office of the Judge-The allegations scandalise the Court-Scandalising judge or court tends to bring
authority and administration of justice into disrespect and disregard and tantamount to contempt-
Scurrilous abuse of a judge or court, or attacks on personal character of a Judge are acts of contempt-It is
duty of the Chief Justice of a Court to assign judicial work to his brother Judges-By assigning the second
writ petition to a Bench, CJI would not become a judge in his own cause- Petitioner committed contempt
of Court- Sentenced to simple imprisonment for three months.

10) THE COMMISSIONER, AGRA & Ors.Vs.ROHTAS SINGH & ORS [AIR 1998 SC 685]
Contempt of court- Commission of- By Government officials-Appearance of Law Officers to defend
Government officials against whom notices for contempt of court were issued for disobedience of order
of Court-Authorisation of- Held : State Government can authorise any of its Law Officers to appear and
defend such Government Officials- High Court not justified in striking down Government Order which
provided for a panel of Advocates for defending Government Officials in contempt petitions-High Court
cannot also give general directions that the litigation expenses in contempt proceedings would be borne
 63

not by the Government but by the Government Officials- However, in certain situations Advocate
General may decline to appear for an alleged contemnor who is a Government Official-Where the
conduct of the Government official is contumacious, the court can direct him to pay costs personally

11) M/S. CHETAK CONSTRUCTION LTD. Vs. OM PRAKASH & ORS. [AIR 1998 SC 1855 ]
Articles 215 and 129-Contempt of court-Jurisdiction-Exercise of- Appellant filed an affidavit before the
Single Judge of the High Court that he had learnt that the Single Judge purchased a flat from the
respondent and let it out- Appellant requested the single Judge to decide whether or not to hear the
appeal-Respondent did not deny the said allegation in his counter affidavit- Appellant filed a further
application making the same allegation supported by documentary evidence requesting the Judge to
rescue or relieve himself from hearing the appeal and transfer the same to any other Judge of the High
Court- Single Judge discontinued hearing the appeal but made certain remarks reflecting his feelings
against the appellant and his lawyers- Single Judge also suggested initiating of contempt proceedings by
Supreme Court on reference to it against the appellant and certain lawyers- Held: in the circumstances of
the case, although the Single Judge rightly discontinued hearing the appeal, his remarks which are not
based on objective considerations and contain general observations and irrelevant matters are conjectural
in nature and were disapproved- No case for contempt made out by Single Judge-Hence, suggestion for
initiating contempt proceedings by Supreme Court on reference to it by Single Judge, rejected

12) INDIAN AIRPORTS EMPLOYEES UNION Vs. RANJAN CHATTERJEE & ANOTHER [AIR 1999
SC 880:1999( 2 )SCC 537]
Civil contempt-Willful disobedience-Disobedience of order of court-Supreme Court directed
regularization of workmen upon abolition of contract labour system-However, certain workmen were
not regularised on the ground that the said direction did not apply to these workmen-Held, in order to
amount to "civil contempt" disobedience must be "willful"-If disobedience is based on interpretation of
court's order, notification and other relevant documents it does not amount to willful disobedience-
Further, the question of regularization has to be decided in appropriate proceedings-Contract Labour
(Regulation and Abolition) Act, 1970, S. 10. HELD : ― It is well settled that disobedience of orders of
Court, in order to amount to `civil contempt' under Section 2(b) of the Contempt of Courts Act, 1971
must be `willful' and proof of mere disobedience is not sufficient. Where there is no deliberate flouting of
the orders of the court but a mere misinterpretation of the executive instructions, it would not be a case
of Civil Contempt.”
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13) MIDNAPORE PEOPLES' CO-OP. BANK LTD. & ORS. V. CHUNILAL NANDA & ORS. [ 2006
(5) SCC 399]
Employee-Suspension-Enquiry Proceedings-Challenge to-Single Judge of High Court ordered de novo
enquiry- Delay in completion of enquiry-Filing of contempt petition by the employee-Single Judge of
the High Court directing the employer- Bank to reinstate the suspended employee and to pay arrears of
salary-Division Bench of the High Court dismissed the Letters Patent Appeal and also application for
condonation of delay-On appeal, Held: Appeal under Section 19 of the Contempt Act lies only against
the order of High Court imposing punishment for contempt-In a contempt proceeding, it is not
appropriate to decide any issue on merits-Single Judge of the High Court erred in issuing directions for
reinstating the employee and payment of arrears in a contempt proceeding-The order of Single Judge
was appealable in Terms of Clause 15 of the Letters Patent-Moreover, there was no
disobedience/breach/negligence on the part of the employer to provoke the Court to issue such
directions-Hence set aside-Constitution of India, 1950-Article 136.

20. Bihar Finance Service H.C. Coop. Soc. Ltd v.Gautam Goswami [DATE OF JUDGMENT:
05/03/2008]
Acquisition of land for construction of houses by a Society for its members - Initiation of land
acquisition proceedings - Award - Challenge to - Allowed by High Court quashing Notification for
acquisition - Supreme Court remitted the matter to High Court with a direction to dispose it off by
following the principles of individualized justice - High Court releasing certain lands in favor of Society
- On appeal, Supreme Court further released certain land in favor of Society - Not complied with by the
authorities - Contempt Petition - Held: Parameters of Jurisdiction of Supreme Court under 1970 Act are
well settled - While considering contempt application, the Court is primarily concerned with the
question as to whether the order passed by the Court attained finality - And if so, whether it was
complied with or not - Supreme Court could neither extend the jurisdiction to reopen the issues nor shall
it embark upon other questions which could be raised in original proceedings - When claim of parties
adjudicated upon and attained finality, it is not open for any party to go beyond the orders and seek to
take away/truncate the effect thereof - In view of undertaking given by the authorities for compliance of
the orders, the petitioner had to wait for a long time to get the possession of the land so acquired in terms
of order of the High Court as modified by the Supreme Court - However, in the facts and circumstances
 65

of the case, the Municipal Corporation is directed to take appropriate action with regard to sanction of
construction plans of buildings on the land in question - Directions issued - Land Acquisition Act, 1894
- Ss. 4, 5A, 6 and 40.

ANALYSIS

“The offence consists in interfering with the administration of law; in impending and perverting the course of
justice…It is not the dignity of the court which is offended, it is the fundamental supremacy of the law which is
challenged “-41Lord Clyde.

The main purpose behind the Contempt Act is to judge fairly without any disturbances and through this it
creates a trust on the citizens. This power given to judiciary should be used wisely and promptly. This Act
raises the dignity of the judiciary and protect it from any external pressure or disturbances. The Contempt of
Court Act, 1971 is imperative with reference to the concept of delivering of justice. Because of this Act, the
justice is delivered very quick and fast. But still there are many shortcomings in many of the sections of this
Act. In this article I will be suggesting a few ways to overcome the shortcomings. Some of them are:

 The court should have a mind to accept fair criticism. This will help the court to improve their way of
judgments and speedy trial.
 The Judiciary should have a clear image about the distinction of Contempt of court and Contempt of
Judge.
 The Act should be used at the last resort when the Judge have a very reasonable basis that the words or
acts results to Contempt.
 The element of Mens rea should be taken into consideration in Contempt of court Act.
 If the Judge feels that the act lowers the dignity of court , then it can also be given for a second opinion
to some committee or any other judicial opinion can be taken into consideration
 Contempt of Court should be applied to all citizens equally without any discrimination between common
individual and public figures.
 A proper criteria should be setup to check whether the act comes within the purview of Contempt of
Court.

41
Johnson V. Grant (1923) SC at 790.
 66

“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”- Justice Khare
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NEED FOR A FRESH LOOK AT CONTEMPT LAW

The present law of contempt of court in India is a hangover of the original law on this subject in England.
This originated from an undelivered judgment of J Wilmot in 1765, where the judge said the power of
contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority.
But whence comes this dignity and authority of judges? In England, in feudal times, it came from the king,
who was the fountain of justice, and would often decide cases himself. Later, when he had many other duties,
he delegated judicial functions to his delegates, who were called judges. Thus, in a monarchy, the judge
really exercises the delegated function of the king, and for this he requires the dignity, authority and majesty
which a king must have, to secure obedience. In feudal times, the king was supreme, and the people were his
subjects. They could not criticize him, and such criticism was punishable.

In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see
Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants.
Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty.
Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on
their own conduct, integrity, impartiality, and learning.

This view is accepted now even in England. As observed by Lord Salmon in AG vs Bbb42, “The description
contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect
the dignity of the court, but to protect the administration of justice”. “Justice is not a cloistered virtue,” said
Lord Atkin. “It must suffer the scrutiny and outspoken comments of ordinary men”.

In R. Vs. Commr. of Police 43Lord Denning observed, “Let me say at once that we will never use this
jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress
those who speak against us. We do not fear criticism, nor do we resent it.

For there is something far more important at stake. It is no less than freedom of speech itself…All that we
ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their
criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own
vindication”. Sometimes an upright judge is unjustifiably criticized. The best course of action for such a
judge is to ignore baseless criticism (but pay heed to honest and correct criticism). He should have broad

42
(1981) A.C. 303
43
(1968) 2 QB 150
 68

enough shoulders to shrug off baseless comments without getting perturbed or influenced.

Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided
the Spycatcher case (Attorney General vs. Guardian Newspaper ) “YOU FOOLS”. Fali Nariman, who was
present in England at that time, asked Lord Templeman, who was one of the majority, why the Judges did not
take contempt action. Lord Templeman smiled, and said that judges in England took no notice of personal
insults. Although he did not regard himself as a fool, others were entitled to their opinion.

In Balogh vs Crown Court at Albon, the defendant told the Judge “You are a humourless automaton. Why
don’t you self destruct?” The judge smiled, but took no action.

Now coming to the law of contempt in India, we find it is uncertain. Nariman described it in a speech as
‘Dog’s Law’. He quoted Bentham, who said that when a dog does something nasty we beat him for it.
Similarly, the laws in England become known only when someone is punished by the courts. The same is true
about the law of contempt in India, and thus it is a standing threat to freedom of speech. To illustrate, in
Duda’s case, a Union Cabinet minister said that the Supreme Court sympathized with zamindars and bank
magnates. He further said, “FERA violators, bride burners, and a whole horde of reactionaries have found their
haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for the haves”. No
action was taken against him. Nariman asked whether if such a comment had been made by an ordinary man
the court would have taken no action.

Moreover, in an earlier decision, in the case of Namboodiripad (former CM of Kerala), who accused
Supreme Court judges of being biased in favour of the rich, (an allegation similar to that of the Union
minister in Duda’s case) the court convicted Namboodiripad for contempt (AIR 1770 2015). Where is the
certainty or consistency in the law .

We have two provisions in our Constitution, Article 19(1)(a) which gives citizens freedom of speech, and
Articles 129 and 215 which give the Supreme Court and High Court the power of contempt. How are these
provisions to be reconciled. In my opinion, since Article 19(1)(a) is the right of the people who are supreme
in a democracy, while Articles 129 and 215 are powers of judges, who are servants of the people, the
reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is
only secondary. It follows that the contempt power cannot be exercised because people are criticizing a
judge. It can only be exercised if someone makes the functioning of the judge impossible e.g. if while a judge
 69

is hearing a case someone jumps on to the dias and tries to run away with the court file, or if he attacks or
threatens a witness. If someone calls a judge a fool inside the courtroom and goes away, in my opinion it is
not contempt, for he has not stopped the functioning of the court. But if he keeps shouting in court the whole
day, and despite warning does not stop, he is obviously not letting the court function, and this would be
contempt. After all disputes in society have to be adjudicated, and judges must decide cases to justify
payment of salaries to them. I submit that the time has come now for Parliament, the judiciary and others
concerned to take a fresh look at the law of contempt of court in the light of what I have said above, and
bring about necessary amendments.
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CONCLUSION

Anything that curtails or impairs the freedom of limits of the judicial proceedings, 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. Consisting of words spoken or written which obstruct or tend to
obstruct the administration of justice. Publishing words which tend to bring the administration of Justice into
contempt, to prejudice the fair trial of any cause or matter which is the subject of Civil or Criminal proceeding
or in any way to obstruct the cause of Justice.

An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it
bonafidely.

Section 12 deals with the punishment for contempt of court. It provides as follows: Section 12(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 extent to 6 months or a fine which may extend up to rupees 2000 or both.

Provided that, the accused (of contempt) may be discharged or the punishment awarded may be remitted on
apology being made to the court's satisfaction.

However, in short contempt can be said to be an act or omission which interferes or tends to interfere in the
administration of justice.

To constitute contempt it’s not necessary that there has been actual interference in the administration of justice.
If the act complained of, tends to interfere or attempts to interfere in the administration of justice, may be taken
as contempt. The expression 'administration of justice' is to be used in a very wide sense. It is not confined to
the judicial function of the judge but includes all functions of judges- administrative, adjudicatory and any other
function necessary for the administration of justice.