I.

WRITTEN SUBMISSION

(Critical Analysis of Contempt of Courts Act,

1961)

INTRODUCTION

Contempt in its straightforward literal definition is disgrace, scorn or wilful disobedience. 1

Contempt in its legal conception is disrespect which attracts to legal recourse. 2 In Attorney-
General v. Times Newspapers Ltd,3 the phrase ‘Contempt of Court’ was defined as conduct
related to specific proceedings in a court of law which undermine the system or make it
harder for citizens to approach the court. Oswald has defined contempt of court as that
conduct which brings the authority and administration of the law into disregard, or to meddle
1 Tekchand J., The Law of Contempt of Court and of Legislature (4th ed., 1997), The University Book Agency,
Allahabad
2 Kaluram, In re, AIR 1966 M.P. 342
3 Attorney-General v. Times Newspapers Ltd, [1973] 3 W.L.R. 298
with or prejudice the interests of parties, the litigants or witnesses during the course of
proceedings.4
In India, the term “Contempt of Court” is defined under Section 2(a) of the Contempt of
Courts Act, 1971 (hereinafter referred to as “the Act”) which categorizes it as civil contempt
or criminal contempt. Further, Article 129 of the Constitution says that the Supreme Court
shall be the ‘Court of Record’ and it has all the powers of such courts including the power to
punish for contempt of itself. A ‘Court of Record’ is a Court that has its acts and proceedings
registered forever and as evidence. The authenticity of these records cannot be doubted and
they are considered to be a higher authority and anything stated against the truth of these
records comprises Contempt of Court. As per Article 142 (2), when laws are made by the
Parliament under the provisions of clause 1 of this Article, the Supreme Court has all the
power to make an order for securing the attendance of any person, production of any
document or the power to punish any person for its contempt.

NEED FOR CONTEMPT LEGISLATION

The law of contempt of Courts is for keeping the administration of justice pure and undefiled.
While dignity of the court is to be maintained at all costs, the contempt jurisdiction, which is
of a special nature, should be sparingly used.5 In pursuance of this, a Committee was set up in
1961 under the Chairmanship of the late Shri H.N. Sanayal 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.

SCOPE OF THE ACT

The first Indian stature 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. 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

4 Oswald’s, Contempt of Courts 3rd edition

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.

LEGISLATIVE HISTORY OF CONTEMPT ACT

In India there was no statutory law of contempt till 1926. Before 1926, the law of contempt in
India followed in entirely, British corresponding law which regulated superior courts of
record. The High Courts in India which were courts of record often adopted British legal
principles enunciated in regard to contempt law. The first legislation to deal with contempt of
courts in our country received statutory recognition in the form of the Contempt of Courts
Act, 1926. It was enacted to define and limit the powers of certain courts in punishing
contempt of courts. The Contempt of Courts Act, 1926, gave statutory powers to the High
Courts of Judicature established by Letters Patent to punish for the contempt of court of the
courts subordinate to them in order to resolve and clarify doubts.

The Contempt of Courts Act, 1952, repealed the Contempt of Courts Act, 1926 and
consolidated the provisions relating to the law of contempt so as to make it applicable to the
High Courts. No new powers were vested in the Courts. It merely recognised, defined and
limited the powers that already existed. This Act made two significant departures from the
Contempt of Courts Act, 1926. First, the expression "High Court'' was defined to include the
Courts of Judicial Commissioner which had been excluded from the purview of the Contempt
of Courts Act, 1926 and secondly, the High Courts, including the Court of a Judicial
Commissioner, were conferred jurisdiction to inquire into and „try contempt of itself or of
any Court subordinate to it‟. However the scope of the Contempt of Courts Act, 1952 Act
was not wide enough to define as to what constitutes contempt of the Court, apart from many
other flaws in provisions of the Act. The Contempt of Courts Act, 1952, was repealed and
replaced by the Contempt of Courts Act, 1971 upon the recommendation of the Committee
set-up up in 1961 that overhauled the law of contempt of courts in India.

IMPORTANT PROVISIONS OF THE ACT

A. Types of Contempt
Contempt of Court is divided into two categories:

5 Shakuntala Sahadevram Tewari v.Hemchand M.Singhania, (1990) 3 Bom CR 82 (Bom)

 a) Civil Contempt
Under Section 2(b) of the Act, civil contempt has been defined as wilful
disobedience to any judgment, decree, direction, order, writ or other process of a
court or wilful breach of an undertaking given to a court.
b) Criminal Contempt
Under Section 2(c) of the Act, criminal contempt has been defined as the publication
(whether by words, spoken or written, or by signs, or by visible representation, or
otherwise) of any matter or the doing of any other act whatsoever which:
i. Scandalises or tends to scandalise, 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 proceeding, or
iii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner.

B. Punishment for Contempt

Under Section 12, any conduct amounting to contempt of court may be punished
with simple imprisonment for a term which may extend to six months, or with
fine which may extend to two thousand rupees, or with both. However, the
accused may be discharged or the punishment which was awarded may be
remitted on apology being made by the person. Section 10 of the Indian Penal
Code provides that an apology shall not be rejected purely on account of it being
qualified or conditional if is made in good faith.

C. Contempt by Judicial Officers

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.6

D. Remedies against an order of Punishment

Under Section 13 of the Act, there is no punishment for conduct amounting to
contempt unless the contempt is of such a nature that the conduct complained of
substantially inhibits with the due course of justice. Technical contempt does not
suffice, it must be clear that the act of contempt would otherwise substantially
interfere with the due course of justice. 7 It was held in Baradakanta Mishra v.
The Registrar,Orissa High Court8 that technical contempt is to be ignored.
E. Contempt Proceedings
The following are the methods in which the Supreme Court or a High Court may
take cognizance of criminal contempt:
a) On its own motion;
b) On a motion made by the Advocate-General
c) On a motion made by any other person, with the consent in writing to the
Advocate-
General
d) In relation to the High Court for the Union territory of Delhi, by such Law
Officer as the Central Government may, by notification in the Official Gazette,
specify in this behalf, or any other person, with the consent in writing of such Law
Officer.

It was held in Manisha Mukherjee v. Ashoke Chatterjee9 that if the court fails to take
action under Section 14 then the procedure of Section 15 cannot be adopted later.

F. Procedure after Cognizance

A notice of every proceeding that falls under Section 15 has to be served
personally on the person who is charged with contempt of court, as per Section
17. Any person, who might abscond to avoid the service of such notice, can
have his property attached in the manner provided in the Code of Civil
Procedure, 1908. A notice of contempt is not appealable under Section 19 of the

6 The Contempt of Courts Act, 1971, Sec. 11.

7 Murray & Co. v. Ashok Kumar Newalia, AIR 2000 SC 833
8 Baradakanta Mishra v. The Registrar,Orissa High Court AIR 1974 SC 710
 Act.10

G. Appeals
The procedure for appeals is provided for under Section 19 of the Act. When the
High Court acquits the contemnor, no appeal lies; Subhash Chandra v.B.R.
Kakkar11. If the order of committal for contempt of court is made by a single
Judge of the High Court, an appeal lies to a Division Bench thereof; or by a
Division Bench of the High Court, an appeal lies to the Supreme Court, as of a
statutory right.12 An Appeal does not automatically operate as a stay of the order
appealed against.13

H. Limitation for Action of Contempt

No court shall initiate any proceedings of contempt, either on its own motion or
otherwise, after the expiry of a period of one year from the date on which the
contempt is alleged to have been committed.14

274th LAW COMMISSION REPORT

The Commission made the following observations in its report:

 High number of contempt cases: The Commission observed that there were a
high number of civil (96,993) and criminal (583) contempt cases pending in
various High Courts and the Supreme Court. It stated that amending the
definition of contempt may reduce the overall impact of the law and lessen the
respect that people have for courts and their authority and functioning.
 International comparison: In relation to the offence of ‘scandalising the
Court’, the Commission noted that that abolishing the offence in India would
leave a legislative gap.
 Source of contempt power: The Commission observed that the superior
courts (Supreme Court and High Courts) derive their contempt powers from

9 Manisha Mukherjee v. Ashoke Chatterjee, 1985 Cr LJ 1224

10 The Union of India v. Mario Coural Sa, AIR 1982 SC 691
11 Subhash Chandra v..B.R. Kakkar, (1992) 2 PunjLr 46 (P & H)
12 Mohammad Idris v..R.J. Babuji, (1984) 2 Crimes 880 (SC)
13 Hans Raj v. State of Himachal Pradesh, 1985 Cr LJ 1030
14 V.M. Kanade v. Madhao Gadkari, (1990) 1 Mah LR 544 (Bom)
 the Constitution. The Act only outlines the procedure in relation to
investigation and punishment for contempt. Therefore, deletion of the offence
from the Act will not impact the inherent constitutional powers of the superior
courts to punish anyone for its contempt. These powers will continue to
remain, independent of the Act.
 Impact on subordinate courts: The Commission argued that if the definition
of contempt is narrowed, subordinate courts will suffer as there will be no
remedy to address cases of their contempt.
 Ambiguity: The Commission observed that amending the definition of
contempt will lead to ambiguity. The Commission suggested retaining the
definition for the purpose of ensuring clarity.
 Adequate safeguards: The Commission noted that there are several
safeguards built into the Act to protect against its misuse. For instance, the Act
contains provisions which lay down instances that do not amount to contempt
and cases where contempt is not punishable. The Commission further noted
that the Act had withstood judicial scrutiny, and therefore, there was no reason
to amend it.

JUDICIAL INTERPRETATIONS OF KEY PROVISIONS

 In Ashok Paper Kamgar Union and Ors. v. Dharam Godha And Ors.,15 the
Supreme Court examined the provision of Section 2(b) of the Act that
defines the term civil contempt and held that the term ‘Wilful’ under Section
2(b) means an act or omission which is done voluntarily and intentionally
and with the specific intent to do something the law forbids or with the
specific intent to fail to do something the law requires to be done, that is to
say with bad purpose either to disobey or to disregard the law.
Therefore, in order to constitute contempt the order of the Court must be of
such a nature which is capable of execution by the person charged in normal
circumstances. It should not require any extra ordinary effort nor should be
dependent, either wholly or in part, upon any act or omission of a third party

15 Ashok Paper Kamgar Union and Ors. v. Dharam Godha And Ors, AIR 2004 SC 105
 for its compliance. This has to be judged having regard to the facts and
circumstances of each case.
 In Balasubramaniyam v. P. Janakaraju&Anr.,16 the High Court of
Karnataka, while elucidating on the principles relating to contempt law,
remarked that the definition of Civil Contempt includes wilful breach of an
undertaking given to a Court. Public interest requires that solemn
undertakings given to a Court with the intention of obtaining any benefit
should not be breached wilfully. It was observed that once litigants give an
undertaking to a Court, they should comply with it in all circumstances, the
only exceptions being fraud or statutory bar. They cannot break an
undertaking with impunity and then attempt to justify it.
 In the landmark judgement of Supreme Court Bar Association v. Union of
India &Anr.,17 the Apex Court dwelled into the constitutional powers vested
in it and examined the same under Article 129 read with Article 142(2) of
the Constitution of India and the power of the High Court under Article 215
of the Constitution to punish for contempt and remarked that no act of
parliament can take away the inherent jurisdiction of the
Court of Record to punish for contempt and the Parliament’s power of
legislation on the subject cannot, therefore, be so exercised as to stultify the
status and dignity of the Supreme Court and/or the High Courts, though such
a legislation may serve as a guide for the determination of the nature of
punishment which this court may impose in the case of established
contempt.
 Through the case of Sudhakar Prasad v. Govt. of A.P. and Ors,18 the
Supreme Court once again declared that the powers of contempt are inherent
in nature and the provisions of the Constitution only recognize the said pre-
existing situation. It was additionally held by the Apex Court that the High
Court cannot create or assume power to inflict a new type of punishment
other than the one recognized and accepted by Section 12 of the Contempt of
Courts Act, 1971.

16 Balasubramaniyam v. P. Janakaraju&Anr, 2004 (5) Kar. LJ 338

17 Supreme Court Bar Association v. Union of India &Anr, (1998) 4 SCC 409
18 Sudhakar Prasad v. Govt. of A.P. and Ors, (2001) 1 SCC 516
  In the case of Rama Narang v. Ramesh Narang and Anr.,19 the Supreme
Court held that the consent terms arrived at between the parties before it,
having been incorporated in the order passed by the court, any violation of
the said terms of the consent order and connected matters would tantamount
to violation of the Court’s order and therefore, be punishable under the first
limb of the Act.
 The Supreme Court in the case of Kanwar Singh Saini v. High Court of
Delhi,20 held that once the suit stood decreed, if there is a grievance of non-
compliance with the terms of the decree passed in the suit, a remedy is
available to the aggrieved person to approach the Execution Court but resort
cannot be had to contempt proceedings, by invoking Order XXXIX Rule 2A
of the Code of Civil procedure, 1908 as such a provision is available only
during the pendency of the suit and not after the conclusion of the trial.
Thus, it was held by the Apex Court that contempt jurisdiction cannot be
used to enforce a decree passed in a civil suit.
 In D.N. Taneja v. Bhajan Lal,21 the Supreme Court stated that any person,
who moves the court for contempt, only brings to the notice of the court
certain facts constituting contempt of court.

SUGGESTIONS

i. There is a lack of clarity regarding the law of contempt, as is clear from the
judgment in P.N. Duda v. P. Shiv Shanker.22 The speech delivered by the then
Union Law Minister P. Shiv Shanker was substantially close in content to the
one delivered by then the Chief Minister of Kerala, Mr. Nambudripad. However,
only Mr.Namburdipad was held to be guilty of contempt. This tends to create
doubt and a aversion in the minds of the people. There is a requirement to
reform the law of contempt to be more certain.
ii. The law of contempt should ultimately recognize that the court has to perform
the balancing act between free press and fair trial. The freedom of speech

19 Rama Narang v. Ramesh Narang and Anr, (2006) 11 SCC 114

20 Kanwar Singh Saini v. High Court of Delhi, CRIMINAL APPEAL NO. 1798 of 2009
21 D.N. Taneja v. Bhajan Lal, (1988) 3 SCC 26
22 P.N. Duda v. P. Shiv Shanker, AIR 1998 SC 1208
 guaranteed under Article 19(l)(a) has to be carefully and cautiously exercised, so
as to avoid interference in administration of justice.
iii. The contempt jurisdiction should be sparingly used with care and caution. The
press should be free to discharge its duties fearlessly in democracy set up. In
Democracy there is no need of judges to vindicate their authority. Therefore, for
maintaining confidence on the people in judiciary every criticism should not be
treated as an act of contempt of court.
iv. There should be an investigative process to examine all allegations of
corruption, bias and gross incompetence against the judges. This investigative
process should be located in the respective High Courts and also the subordinate
judiciary and for the Supreme Court in the Supreme Court itself. The
investigative process should be away from public reach and heard in camera and
it shall be contempt to publicize the proceedings of such an investigation.
v. The concept of ‘publication’ in Section 2(c) is not clear and can mean any kind
of
vi. ‘publication’ within the reach of the general public. ‘Private conversation’
should not be deemed to be contempt. Some elements of publication in a public
form or in a public place or to the general public or a public institution should be
introduced.
vii. The concept of a ‘qualified apology’ in Section 12 should be clarified so that
judges are clear that a person may plead his case on merits and apologise in the
alternative. If apology is tendered genuinely, a person should not be punished
for contempt of court.

BIBLIOGRAPHY

Cases

 Ashok Paper Kamgar Union and Ors. v. Dharam Godha And Ors, AIR 2004 SC
105
 Balasubramaniyam v. P. Janakaraju&Anr, 2004 (5) Kar. LJ 338
 Baradakanta Mishra v. The Registrar,Orissa High Court AIR 1974 SC 710
 D.N. Taneja v. Bhajan Lal, (1988) 3 SCC 26
  -General v. Times Newspapers Ltd, [1973] 3 W.L.R. 298
 Hans Raj v. State of Himachal Pradesh, 1985 Cr LJ 1030
 Kaluram, In re, AIR 1966 M.P. 342
 Kanwar Singh Saini v. High Court of Delhi, CRIMINAL APPEAL NO. 1798 of
2009
 Manisha Mukherjee v. Ashoke Chatterjee, 1985 Cr LJ 1224
 Mohammad Idris v..R.J. Babuji, (1984) 2 Crimes 880 (SC)
 Murray & Co. v. Ashok Kumar Newalia, AIR 2000 SC 833
 P.N. Duda v. P. Shiv Shanker, AIR 1998 SC 1208
 Rama Narang v. Ramesh Narang and Anr, (2006) 11 SCC 114
 Shakuntala Sahadevram Tewari v.Hemchand M.Singhania, (1990) 3 Bom CR 82
(Bom)
 Subhash Chandra v..B.R. Kakkar, (1992) 2 PunjLr 46 (P & H)
 Sudhakar Prasad v. Govt. of A.P. and Ors, (2001) 1 SCC 516
 Supreme Court Bar Association v. Union of India &Anr, (1998) 4 SCC 409
 The Union of India v. Mario Coural Sa, AIR 1982 SC 691
 V.M. Kanade v. Madhao Gadkari, (1990) 1 Mah LR 544 (Bom)

Statutes

 Indian Penal Code, 1860

 The Contempt of Courts Act, 1971

Books

 Oswald’s, Contempt of Courts 3rd edition

 Tekchand J., The Law of Contempt of Court and of Legislature (4th ed., 1997), The
University Book Agency, Allahabad