With knowledge, comes power to reason and to criticize the injustice. But at times, the reasoning capabilities can in turn lead to a country's way towards destruction through people's disbelief in the very popular and efficient working mechanism of the country. Court is a, one such organ of the country which can choke the country to death if it ever became corrupt or disorganised.
Hence, in order to keep it organised, efficient and productive and to control the not needed criticisms, the concept of 'Contempt of Courts Act' is much needed. Fortunately, India is one of the few legal systems where contempt of court is still prevalent and efficient. The circumstances are indeed happier inside our country as we all know that Judiciary would definitely assist the people in need, even if the other two organs of the Government give up to extend the hand of help.
So let's get deep down in order to research what exactly is contempt of court, how it originated and how well is the current statute functioning.
CONTEMPT OF COURTS ACT: ORIGIN AND HISTORY
The concept of Contempt of Court is eight hundred years old through the common law doctrine, 'Contemptus Curiae'. It follows from the common law principle in England which States to protect the judicial and decision making power of the King. Later, the King appointed several judges who had exercised this right of decision making on behalf of the king. The King since was not in the process of decision making, many people went on openly to disobey the judgement passed and since the judges were appointed directly by the King, disobedience actually meant disobedience of Kings' orders. This overtime, became punishable to the people disobeying their verdict or directives. This was first mentioned in the laws of King Henry-1, where it was called 'Contempt of Kings' Court'. Therefore, by the end of the 12th century Contempt of Court was a valid form of punishment to people who went on to flagrantly disobey the orders of the Kings' appointed judges.
However, in the 17th century the Court of Chancery added those cases under the ambit of Contempt of Court, where people have denied performance of the judgement by common law courts. This development however, led the Common Law Courts to put up Criminal and Civil Contempt however, a clear difference between the two was not made either in the seventeenth and eighteenth century. Initially, proceedings were initiated only against those cases where contempt was committed in the presence of the court, for an instance, in 1747, Thomas Martin who happened to be the 'Mayor of Great Yamouth' sent a bank note of £20 to Lord Hardwicke and Lord Chancellor however, when Lord Chancellor show-caused him, asking why contempt action should not be initiated against him, he sought pardon. However, owing to the dignity of his public office, Lord chancellor dropped actions against him. Another amusing instance in 1631, when a prisoner threw a brickbat at the Judge which barely missed him while he was brought before the court for trials. The Prisoner's right hand was ordered to be cut off and hanged in the gallows. These cases indicate how trials were conducted fairly and how the contempt of court originated through the very common principle of trial and error, which was followed by many common law countries in those days. However it was in 20th century (1906 to be precise) when Common Law Courts deliberated on having a defined statute on contempt of court and which matters should technically qualify itself to be called under the same. The Parliament came up with this in 1908 which was considered to be the first codified statute upon contempt of court. Many statutes were created and amended during the nineteenth and twentieth century (like in 1883, 1892, 1994 etc.) but flexibility and performance could be viewed only in the 1908 statute. It was indeed commendable on the part of the courts to keep trying and improving the provisions of The Contempt of Court and that's how an expert committee under the chairmanship of Lord Phillimore L.J. was appointed in 1971 if Administration of Justice Act of UK required any changes. The committee submitted its reviews and recommendations in 1974 which was accepted and binding by law in 1981.
In the late 1960s, one of the most deliberated contentions arose when the judges were forced to rethink if newspaper articles does, constitute a contempt of court. Thankfully, the recommendations given by the Lord Phillimore Committee suggested not to involve newspaper articles and journalists under the ambit of this act. Despite immediate attempt to rectify the anomalies, The European Court of Human Rights was of the view that UK's contempt law is not in compliance of the principles of free speech under Article 10 of the European Convention. (Sunday Times vs. V.K.) However, the court argued that in view of protecting such rights the UK Courts cannot allow disobedience to the judgement and breach of its order stating that these rights are already subjected to reasonable restrictions.
History & Origin of Contempt of Courts in India
The history of Contempt of Courts Act in India can be traced back to the time when East India Company was occupying territories inside India and this required the King under Charter of 1726 to allow for the establishment of a corporation in each Presidency and Town. This was the time which made English laws applicable in our country. The Courts of Mayor were constituted in each Presidency and were asked to deliberate over civil cases, under the said jurisdiction and also act as the Court of Record. Soon after, in 1774, Supreme Court of Judicature was established in Calcutta under The Regulating Act of 1773, replacing the Mayor's Court of the town. The Supreme Court of Judicature, at the primary level also attained few helping hands under the Indian High Courts Act, 1861 establishing High Court in the presidencies of Calcutta, Madras and Bombay which also had the power to punish for contempt. In 1867, Justice Peacock CJ laid down which courts have the power to punish for contempt and in his judgement in 'Abdul and Mehtab' (Supra) he mentioned that every Court of Record has the power to punish people for its contempt.
Further clarifications on this topic was made in Legal Rememberance v. Matilal Ghosh. The court observed that the powers of Indian courts to punish for contempt of court is arbitrary, unlimited and uncontrolled. The Court also observed that use of this law should be exercised with greatest caution as there was no upper cap on the fine or years of imprisonment for lowering the judicial dignity in the eyes of the people. In the meanwhile, many contentions arose upon the said topic between the different high courts existing at that time. One such contention was whether high courts are well within their rights to punish Subordinate Courts for its contempt. It is a point to be noted that this contention arose before the statute 'Contempt of Courts Act, 1926' coming into existence.
Continuing, the Madras and the Bombay High Court were of the view that subordinate courts come under their jurisdiction and they do have a right to exercise their power of contempt on such courts however, Calcutta High Court believed that India's contempt limitations are not identical to that in place in UK and hence, subordinate courts could not be punished for contempt. However, this anomaly was soon resolved in the Indian case Sukhdev Singh Sodhi v. The Chief Justice Teja Singh and Judges of the Pepsu High Court, where Justice Peacock mentioned and observed that Section 5 of Civil Procedure Code do give the rights to three Chartered High Courts to punish any organisation, person, entity and even subordinate courts for contempt if they find their speech or publication derogatory enough to lower the reputation and belief of the people in such courts.
However, in 1926, first act was passed namely 'Contempt of Courts Act, 1926' which defined and guided the high courts for the path that is supposed to be taken while exercising the power to punish for contempt. It expressly noted that High Courts can punish any court of equivalent hierarchy or of lower hierarchy, but not of upper one, for contempt, and this act also went on to define the upper limit of punishment that should be bestowed upon violators, to be imposed for the said contempt. However, in opposition to the said act, The Lahore High Court in the caseThe Crown v. Sayyad Habbib re-examined the position and observed that contempt jurisdiction is vested with every Indian Court and not just registered and chartered High Courts. The said anomaly was however rectified in the amendment of 1937, where the power to punish for contempt was vested with all the courts inside India (including the subordinate courts) and the amendment even went on to clarify and explain the upper cap on punishment that was mentioned in the act of 1926.
Despite the fact that the act of 1926 was applicable to the whole of India; few princely states (for example that of Hyderabad, Madhya Bharat, Mysore, Rajasthan, Travancore, Cochin, Saurashtra and Pepsu) had their own enactments for contempt which served its major drawback. A foreign country that was trying to keep the entire country united for a longer reign of rule was instead showing a way to people towards Independence owing to the variations and incapacity of the legislation to be enacted in the entire country uniformly. The Contempt of Courts Act had always been very crucial for maintaining and upkeeping the very dignity of the court in place, especially in countries where freedom of speech and expression is considered to be a fundamental right. The very origin of contempt of court was in order to draw a boundary between what people say and what people should be saying. Derogatory statements regarding the Judiciary could have been a source of unrest and violence especially in a country, where different movements and protests and hunger strikes were going on, for independence in parallel. The Contempt provisions were introduced in the country to build up people's beliefs in the Judiciary but such anomalies in a legislation were enough for people to see how united the ruling country was. The foreign ruling country is about to leave in a couple of decades and so will be the barbaric rights violative legislations that came in place with them.
CONTEMPT OF COURTS ACT, 1926
The act with an infinite drawbacks that it forced the judges of the court to ponder over many unanswered questions as to what constitutes contempt and what does not, the very Preamble of this act instead of defining contempt, expressly granted powers and authority to the judges of the High Court and Supreme Court to punish individuals for contempt. Another drawback that follows was that there was no upper cap on the punishment or fines that the judges can impose upon individuals for contempt. However, Section 12 of the said act was amended in 1937 which not only included and added the upper cap of punishment but also, mentioned that subordinate courts' power for contempt is similar to that of high courts. Article 215 after the enactment of the constitution vested the powers of High Court to punish for contempt however, in 10 Cal 109(B), the court of the Lordship of the Judicial Committee observed that by the common law principle, every Court vested to be a court of Record has the sole responsibility, duty and authority to punish individual violators, including legal bodies, for its contempt; and codes and legislations such as Criminal Penal Code of a country does not affect the jurisdiction of the said Court for punishing for contempt. The Court of Lordship went on to further observe that powers of the High Court in a country ruled by UK, is similar in the powers that English courts have, to punish for contempt. The very common question that comes for the act of 1926, if the act is still a failure despite so many interventions, references and guided pathways?
Unfortunately yes. There were many drawbacks in the said act which led to its entire repeal and placing of an entire new statute 'The Contempt of Courts Act, 1952'. Firstly, many princely states were running separate provisions for contempt in parallel violating the very Preamble of this act which expressly stated that the act will be applied throughout India uniformly. Secondly, the designation of the Judicial Commissioner was not so included in the Act of 1926, which should have been invested with equal power to punish for contempt. Thirdly, the high courts are vested with unlimited powers to punish for contempt as it did not have any fixed boundary marked as to define the exact jurisdiction of the said high court, moreover, it was also not defined as how to ensure that the alleged contemnor was within or outside the jurisdiction of a high court or within or outside of his own limits. Owing to all such blunders in an act, it made the Indians after independence to define as to what constitutes a contempt of court (although this was answered much later by the supreme court in the case 'State v. Padmakant Malriya & Anr., 1953'). The existing laws needed some amendments and it was indeed essential for the Parliament to deliberate and introduce legislation protecting the rights of the individuals and also upkeep the very dignity of the courts in order to ensure people's belief in the same.
CONTEMPT OF COURTS ACT, 1952
This could be called as the first statutory provisions for contempt in India. This extended to the whole of India except Jammu and Kashmir. The laws prevalent in the state of Rajasthan and Saurashtra relating to the Contempt of Courts Act, 1926, were repealed and this act, firmly placed powers in the hands of the high courts to punish the subordinate courts in cases for contempt. However, like the previous one, this act also went on to violate two of the most important fundamental rights which include 'Right to Freedom of Speech and Expression' and 'Right to Personal Life and Liberty'.
Owing to such ambiguities and debatable provisions, a bill was introduced in the Parliament by Mr. B Das Gupta on 1st of April 1960 to amend the disputed provision and align it to suit the contemporary developing India. When the Central Government decided to re-examine the said act, they indeed found flaws and they went on to form an expert committee in 1961 under the chairmanship of HM Sanyal which submitted its report in 1963. This committee could be called as the source of bringing in transparency and reliability in the amendment process of the said act. The reports of this committee were accepted and recommendations were reflected in the statute which is being followed today, 'Contempt of Courts Act, 1971'. The modern-day statute was enacted with all anomalies removed and with proper definitions and essentials as to what constitutes a contempt of court.
CONTEMPT OF COURTS ACT, 1971
With the introduction of this act, the limits and powers of certain courts were defined. It laid down the proper pathway as to what constitutes contempt and what punishment can be announced. Section 2(a) of this act went on to define what are the different contempts, firstly, Civil Contempt which was defined as the willful disobedience to any judgement or decree passed by a court and secondly, Criminal Contempts which was defined as the publication of any material, in writing, or through spoken words, or signs that tend to scandalize or lower the authority of the court in the eyes of public.
Following are the essentials for contempt proceedings in India :
Willful disobedience of any order, judgement or decree passed by any Court of the Republic, or
Scandalize or tends to scandalise, or lowers or tends to lower the authority of any court, or
Biasness, interferes or tends to interfere with the due course of any type of Judicial proceedings, or
Obstructs or tends to obstruct, interfere or tend to interfere with the administration of justice in any manner.
It is equally important to know as to what does not constitute a contempt of court under the said act. It is mentioned that fair, unadulterated findings and reportings of the cases in court will not constitute a contempt similarly, fair criticism of judicial decisions after the judgement is passed and petition disposed of will also not amount to any contempt. Moreover, truth was not a valid defense initially, as to escape the punishment for contempt as it was believed that Court can punish anybody for any derogatory statement, in order to protect the reputation of the Institution. However, in 2006, the Act was amended to include 'truth', as a valid defense if it was made in public interest and the motive was bonafide-ab-initio. Another defense which is allowed under the ambit of this act is if the person innocently publishes or commits an act without the knowledge of the fact that there were ongoing judicial proceedings in the court on the topic related to what he happened to publish.
Another important topic remains as to how contempt proceedings can be initiated against a person who happened to scandalize the authority of the court. The procedure laid down by the act for courts to initiate contempt proceedings include through suo-moto, that is, when courts themselves take the cognizance of the person who is happening to defame or lower the authority of the court. Courts are free to initiate suo-moto contempt proceedings against any person and a notice is to be sent to that person asking him or her to appear before the court. This can only be applied if the contemptuous act or words occur in the presence of a court. Persons so accused do have a right to defend himself and give valid explanations for such an act or speech. Courts also have the power to send the person under judicial custody during trial for contempt. However, in cases, where courts are unaware of the act or speech derogatory enough to scandalize or lower the authority of a court, the Contempt proceedings can only be carried out with the written assent of the topmost law officer, that is, Attorney General and Solicitor General in case of Supreme Court and for State's Advocate General in case of High Courts. Following which, the courts are bound to either take up or dispose the case as and how they believe.
The act currently in existence has expressly defined the punishment to the contemnor. It clearly defines that the contemnor can be sentenced with simple imprisonment of upto six months or with fine of upto ₹ 2000 or with both. According to Section 12 of The Contempt of Courts Act, 1971 a person can be forgiven by the court if the contemnor submits an apology before the court and it is entirely before the court to decide if the contemnor is liable for forgiveness.
Subsection 2 of the said section mentions that in no way punishment should exceed beyond the term mentioned in the above section.
Subsection 3 allows the court to announce the simple imprisonment to those held guilty of civil contempt, if the court thinks that mere fine will not do justice to the acts of the contemnor.
Subsection 4 and 5 goes on to define the procedures that the courts need to follow if contempt is committed by a company or its director or secretary, with the way of punishment remaining the same which is a maximum punishment of up to six months of simple imprisonment for up to a fine of ₹2,000 or with both.
All notable cases have been added from or after the year 2010:
M.V.Jayarajan vs. High Court of Kerala & Another :
In 2010, Communist Party of India (Marxist) (CPI(M)) leader M. Jayarajan went on to criticize and propagate hate speech against the Kerala High Court decision of banning meets in certain public places. The language so used was extremely harsh for the judges, and it was held that the language which could have incited violence in audience against the Judiciary and such speeches cannot be ignored. He was initially sentenced to six months of prison from the Kerala High Court, which got reduced to four months on appeal to Supreme Court.
Raj Pal Yadav vs. Murli Projects Pvt.Ltd:
In 2013, actor Rajpal Yadav and his wife Radha Yadav were sentenced to simple imprisonment by Delhi High Court for not appearing before the court in a suit filed by a Delhi based businessman for the recovery of ₹5 crores. Rajpal Yadav went on to an imprisonment period of 10 days however, his wife was sentenced to a days' imprisonment since she had an infant to take care of.
Justice C.S.Karnan vs. The Honourable Supreme Court Of India & Others:
In 2015, a judge named Justice Karnan serving the Madras High Court wrote a letter to the Supreme Court that the, then ongoing dispute on the treatment and welfare of the Dalit judges in the Judiciary is way too offensive to him as a person, and that he would initiate contempt proceedings against the then, Chief Justice of India, Justice HL Dattu. The Supreme Court taking cognizance of the letter, in turn initiated contempt proceedings against Justice Karnan and sentenced him to six months of imprisonment which he had to serve, despite resistance from his side.
In Re: Prashant Bhushan and Another(Suo moto contempt):
In 2020, a renowned lawyer and activist Prashant Bhushan posted a comment on Twitter on the present Chief Justice of India Justice Sharad Arvind Bobde, who had a picture captured being astride on an expensive motorbike, without wearing a mask. The comments were exclusively made for the CJI and not the trial or working of Judiciary on the whole, which arose discourses. The Supreme Court asked the lawyer to pay ₹ 1 as a punishment for The Contempt which indeed, turned out to be a funnier aspect of the whole judgement. However, Prashant Bhushan in return, filed a petition challenging the constitutionality of The Contempt of Courts Act which as a legislation has been given up by many other legal systems around the globe but is still existing in our country. This petition remains pending before The Honourable Supreme Court.
The Contempt of Courts Act, 1971 is undoubtedly, the most revised and the most refined statute in our country for contemnors who go on to criticize the working of the Judiciary. The Sanyal committee indeed tried their level best to make this flawless, meeting the demands of the Judiciary and the modern day criticisms which happens to be in surge, with education and literacy coming all the way to people which in turn, increases their reasoning capacity.
However one of the basic flaws that remain a flaw till date is that the Supreme Court has never went on to explain what words and what boundary if crossed would constitute a contempt. Many judgement of the Supreme Court are in sharp contrast to their own judgements delivered before. For an instance, in the case of Brahma Prakash Sharma & Ors. v. State of Uttar Pradesh, Supreme Court held that a contempt of court proceeding should not be initiated against a person if the said person has made remarks on the personal capacity of the judges which does not go on to interfere with the working of the Judiciary. This is in contrast to what happened in the Prashant Bhushan's case as it was a remark on the CJI astride on, an expensive motorbike and not on judiciary.
Certainly contempt statutes are required in India provided the number of people who keep defaming and spreading hate about the Judiciary among the masses. However, rectifying things like this would make this statute even more solid, concrete and flawless.
Dignath R. Sehgal, Contempt of Courts, Blog iPleaders. (2018)
Dinesh S. Chauhan, The Historical Perspective Of The Contempt Of Courts In India, Legal Services India. (Sept. 4, 2017)
K. Venkataraman, What is Contempt of Court, The Hindu. (Aug. 20th, 2020)
Monika Rahar, All About Contempt of Courts Act, 1971, Latest Laws. (May 20th, 2018)
Priyanka Oberoi, Contempt of Courts in India, Google Scholar. (March 1st, 2018)
V. Ramakrishna, The Contempts of Courts Act, 1971, VakilNo.1. (March 25th, 2013)
Hidayatullah National Law University,