LAW OF CONTEMPT

Md.Shafiquz Zaman, IAS Director General & Spl. Chief Secretary to

Govt. of A.P. Dr.MCR HRD Institute of A.P.

Objective of the law of contempt

The object and purpose of contempt jurisdiction is:

• To uphold the dignity of law courts and their majesty.

• To sustain the confidence of the public in administration of justice

• Not to protect individual judge or magistrate nor to vindicate his or her personal prestige.

• For protecting his personal reputation and prestige the remedy lies in the action for libel and defamation under Section 499 of IPC.

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The Scope of Contempt of Court

• Unfortunately the Scope of Contempt or Court has not been defined either in the Constitution or in any other statute.

• It is believed that the Legislature had deliberately refrained from enacting or defining the scope of the law of contempt. The obvious purpose was to maintain ‘the elasticity of the law to enable it to reach the wide sweep of the diversity of situations that it has to meet.

(Continued) 3

(Continuation)

The Scope of Contempt of Court

• The Supreme Court has in F.M. Sankaram Namboodripad v. T. Naryanan

Nambiar. (1970) 2 SCWR 366, dealt with the definition thus: “There are many kinds of contempt. The Chief forms of contempt are

insult to Judges, attacks upon them, comment on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of courts, witnesses or the parties, abusing the process of the court, breach of duty by officers connected with the court and scandalising the Judges or the courts. The last form occurs, generally speaking, when the conduct of a person tends to bring the authority and administration of the law into disrespect or disregard. In this conduct are included all acts which bring the court into disrepute or disrespect or which offend its dignity affront its majesty or challenge its authority. Such contempt may be committed in respect of a single Judge or a single court but may, in certain circumstances, be committed in respect of the whole of the judiciary or judicial system.”

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Types of contempt • The Contempt of Courts Act of 1971 divides the

expression ‘contempt of court’ to mean two categories of contempt, viz.,

• (i) civil contempt &

• (ii) criminal contempt.

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Types of contempt

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.

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Criminal Contempt

• “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 —

– Scandalises or tends to scandalise, or lowers or tends to lower, the authority of any court ; or

– Prejudices or interferes or tends to interfere with the due course of any Judicial proceeding ; or

– Interferes or tends to interfere with, or obstructs or tends to obstruct the administration of Justice in any other manner.

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Categories of Criminal contempt

• Criminal Contempt has been further divided into two Categories;

– Direct that is either in the face of the court or within

the precincts of the Court (Section 14 of the Act)

– Constructive that is outside the view of the court.

(Section 15 of the Act)

(Continued)

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Difference between two types of Criminal Contempt

The difference between the two types of above cases is that of procedure. In the first case the Supreme Court or the High Court can directly charge the contemnor, hear him and order punishment, where as in the later case, every complaint has to be filed by the Advocate General or with the consent of the Advocate General.

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Reference through Advocate General

• In criminal contempt cases referred to in Section 15 of the Act, though the Court can take direct cognizance but generally it insists for a reference through Advocate General.

• When this provision for the consent of Advocate General was questioned, it was held that it was not violative of Article 14 of the Constitution, as the parliament thought that a restraint or check should be placed upon a citizen in a matter of criminal contempt for the sake of public good so that only tenable motions come before the Supreme Court or High Court and intervention of the Advocate General was provided for that purpose.

(J.P.Gupta v. O.P.Chakarvarty (1975) Cr. L J 164)

(Continued)

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(Continuation)

Reference through Advocate General is Justiciable

• If the Advocate General refuses to give consent to private persons for filing criminal contempt, the action of the Advocate General is justiciable.

( P.N.Duba v. P. Shivashankar and others, (1988) 3 SCC 167)

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Courts who can hear Contempts

• Supreme Court of India and High Courts can hear their own contempt and also contempt of all subordinate courts under their jurisdiction under Article 129 and 215 respectively of the Constitution.

• For this purpose, all Civil, Criminal and Revenue Courts, are courts within the meaning of the Contempts of Courts Act.

• Collector functioning under the Essential Commodities Act., 1955 is not a Court within the meaning of the Contempt of Courts Act.

(Vide State ot MP Vs. L.C. Bahiram 1<>82 MPJ 835{MP) Division Bench). • The Central Administrative Tribunal and A.P.State Administrative Tribunal,

though are subordinate courts to the High Court but they can hear their own contempt.

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Court’s views on Civil contempt

• The essence of contemptuous conduct consists in its wilful nature. Willful connotes the idea of deliberate or intentional as opposed to unintentional or bona fide conduct.

(Roshan La! Pokia v. Roshan La! Chankan, 1992 Cr U 1378)

• To constitute contempt there should be purposeful and clear intention to flout the order and lack of proper care and caution is not sufficient to punish a person for contempt.

(Indian Oil Corporation Ltd. V. Sheo Shankar Mishra, (1996) 1 East Cr PC 816

(Pat) : (1996) 1 BLJ 36 : (1995) 2 Pat LJR 875).

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Examples of contempt

• Secretary of the Congress Committee wrote a recommendatory letter to the District Magistrate about the facts of the case (AIR 1953 SC 185)

• Use of threats by letters or otherwise to a party while his case is subjudice or abusing in letters to persons likely to be witnesses (AIR 1962 SC-1172).

• Unnecessary delay in dealing with them may well furnish grounds for an inference that it was due to a natural disinclination and may constitute contempt. {AIR 1969 SC 189)

• The Chief Minister delivers a speech on a subject which is subjudice' in a writ petition before the High Court with full knowledge - it amounts to interference with administration of Justice ( AIR 1970 SC 1821).

(Continued)

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(Continuation)

Examples of contempt • Circular directing Magistrates to ignore the decisions of the -

High Court tantamounts to Contempt of Court (AIR 1961 SC 1315).

• "Judges are guided and dominated by class hatred, class, interests and class prejudices and where the evidence is balanced between a well-dressed potbellied rich man and a poor ill-dressed and ill-treated person, the Judge instinctively favours the former" -Chief Minister at a Press Conference -Contempt (AIR 1970 SC 2015).

• In the garb of transfer application, a person can not be allowed to make allegations of a serious nature, scandalizing the Court and imputing improper motives to the Judge trying the case - Contempt (AIR 1972 SC 989)

(Continued)

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(Continuation)

Examples of contempt • When petitioner was granted temporary custody of his minor

daughter and subsequently not present in court on given date but fleeing away out of India without permission of court, it amounted to criminal contempt on part of petitioner.

(Srinivasa Rao Kunbhari v. State of A.P., 1996 Cr L J 353 (AP) (1995) 2 An LT 210).

• A lawyer hurled shoes at the Judge in order to over awe, and to bully him (AIR 1981 SC 1382).

• Comments on pending proceedings with a tendency to prejudice fair trial.

(Continued)

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(Continuation)

Examples of contempt • A person walking into the chamber of a Magistrate and insisting on cancelling the

order he passed against him, else a serious consequence would follow.

• Assault on Magistrate.

• Insult to a Magistrate.

• Private Communication with a Judge or Magistrate about a subjudice matter

• Threatening a counsel in a case.

• Bullying witnesses

• Destroying documents in the custody of the Court.

• Breach of undertaking is misconduct amounting to contempt. (Tukarain v. S.M. Sayam, 1995 Cr U 577)

(Continued)

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(Continuation)

Examples of contempt • In another case of breach of undertaking it was held:

• “The Court passed an order directing the State to fix the pay scales under

Revision of Pay and Allowance Rules and to pay them all arrears of emoluments consequent to such fixation within a stipulated period. The respondent sought time for compliance of the order and time was extended. The counsel for the respondent gave an undertaking that the order would be complied with within the extended time. Subsequently the respondents instead of complying with the undertaking given, challenged the original order on the grounds that it would create an anomalous position in relation to the reports of the Pay Commission, that it would be against the public policy and that it would cause serious pressure on the exchequer etc.

(Continued)

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(Continuation)

Examples of contempt

Rejecting this, the Court said: “……during the hearing of the writ petition no such grounds were made out by the respondents as are now sought to be made here in the affidavits-in-opposition.

(Continued)

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(Continuation)

Examples of contempt • Even subsequent to the passing of the order it was not alleged

that compliance of the order would cause hardship to the Government. To the contrary, it was given to understand at different stages that the order would be complied with and extension of time was also taken for the purpose. And now a decision seems to have been taken by the Government that the orders passed on the basis of undertaking given would not be complied with and for that different lame excuses have now been set up. This conduct of the Government tends to bring the Court’s orders to disrespect, lower its prestige and interfere with the course of justice.” The Court held the contemnor was guilty after observing “It need not be emphasised that the violation of the Court’s order on the ground that its compliance would cause hardship to the Government makes the violation no less wilful than its positive defense.”

(Rabindranath Biswas v. B.C. Mookerji, Secretary,

Department of Land and Land Reforms, Govt. of W.B.,

(1988) 1 Cal HN 239). (Continued)

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(Continuation)

Examples of Contempt

• Suspension of petitioner from service in contemplation of departmental proceeding pending contempt proceedings, amounts to further act of contempt on part of contemner.

(Dr.) Subhash Chandra Pratihar v. (Mrs.) Leena Chakraborty, 1995 Cr U 707 (Cal) (1995) 1 Cal HN 104).

• Where a stay order gave a clear direction to the respondent-contemner to prepare inventory of liquor to be auctioned incorporating the brand name of the liquor and the contemner did not do so despite repeated requests taking the plea that list of liquor had already been prepared and fresh list was not necessary as that would amount to duplication, and the original list did not contain the brand names, it was held that disobedience of the stay order was wilful arid deliberate contempt of court.

(Mahendra Kumar v. State of Rajasthan, 1987 Cr U 627 (Raj)

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What is not Contempt?

• Notings in office file, even if derogatory to Court's Order do not constitute Civil or Criminal Contempt.

• The notings in the departmental files by the hierarchy of officials are meant for independent discharge of official duties and not for exposure outside, in a democracy, it is necessary that its steel frame in the form of Civil Service is permitted to express itself freely, uninfluenced by extraneous considerations.

(Reference : AIR 1987 S.C 1554 or (1987) 3 Section 34).

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(Continuation)

What is not Contempt? • When the order of the court is vague and ambiguous and capable of

more than one interpretation, any bonafide interpretation cannot constitute contempt of court.

• If the order passed by the court is capable of being understood in two ways and the contemnor interprets in one of those two ways, he should not be held guilty of contempt polled in favour of various candidates amounted to announcement of the result, the court was of the opinion that the respondent could honestly interpret this court's order, dated 30 August, 1973 in the manner in which he and viz., that he had merely been restrained from formally announcing the result of the election, the respondent will be absolved of his liability for the contempt alleged to have been committed by him.3

(Chanchal Singh v. Ram Sewak Misra, 1982 All LJ 966 at p. 969)

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Defences to a charge of Contempt

• Innocent, publication or distribution of matter Section'3).

• Fair and accurate report of judicial proceeding Section4).

• Fair criticism of judicial act .(Section 5)

• Complaint against the presiding officers-of Subordinate Courts to the High Court done in good faith (Section 6).

• Publication of information relating to proceedings in chambers or Camera (Section 7).

• An order passed by a Court without jurisdiction is void. Violation of such order is not contempt .

(1981 Cr.II 1880 and 1985 Cr.LJ 359) (Continued)

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(Continuation)

Defences to a charge of Contempt

• When High Court directed release of pensionary benefits to petitioner and Department released same after deducting Government dues, it was due compliance of High Court

direction. (State of Haryana v. LU. Dutt, (1995) 29 ATC 540 (SC).

• When non-compliance of directions of court was not wilful but on account of factor beyond control of contemners, contempt application dismissed.

(Toshniwaf Bandiju v. State of Punjab, (1996) 1 PLJR 475).

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What is not defence?

• Non-compliance of order of Tribunal after filing of SLP amounts to contempt unless order has been stayed.9

(Vinod Mani Diwakar v. Union of India, (1995) 29 ATC 12 (CAT Pat).

• Mere filing of appeal does not automatically operate as stay of order in appeal, and non-compliance of order as such will amount to contempt.

( Mantosh Kumar Singh v. State of Bih"*, (1996) 2 PL]R 317.)

• Transfer of an officer who was posted at relevant time can be no ground to defeat implementation of judgment/order.

(Firm Ganpat Ram Raj Kumar v. Kalu Ram, AIR 1989 SC 2285).

• Obtaining advice from the advocate and not obeying order is no defence. (Continued)

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(Continuation)

What is not defence?

• If a counsel advised a litigant not to obey the order of a court of law as such an ill-advice of counsel cannot be a valid defence in contempt proceedings. It is the duty of each and every person who is a party in a proceeding before a court to comply with the order of the court and if he has any grievance against the order he is free to file appeal or to make application before that court for modification or discharge of the same, but unless that order is stayed, varied or modified the party concerned has no justification to flout the order of the court.

(S.P.Agarwal v. R.R.Upadhya, 1978 Cr. L J 789 at p 795 (All)

(Continued)

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What is to be done? • The orders of the court should be complied forth with.

• If it is found that it is not possible to comply with the order, immediate

appeal should be filed and stay orders obtained.

• If stay orders are not granted, comply the orders of the court subject to the final outcome of the appeal.

• If the parties concerned find it difficult for one good reason or the other to implement the order within the time visualised in the Court’s order, the court thinks, it is obligatory on the part of such a party to approach the Court for extension of time instead of taking the attitude of violating the order and then trying to implement the order alter a contempt petition is filed.

(Balaji Krishna Tej v. Inspector of Schools, (1990) 70 Cut LT 402).

(Continued)

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(Continuation)

What is to be done?

In N. Jayaraju v. KG Penchalaiah, 1992 Cr LJ 4077,

"The judiciary and the executive are but two limbs of the State, the third being the Legislature. Each of the three wings have to function and act in unison and within their own bounds. While doing so each of them must respect the other as much as it expects its action to be respected by others. May be that in some cases the order may be couched in such a language that it may create some kind of doubt and confusion in the mind of those who have to comply with it but the best way, in such cases, is not to circumvent the order but to try as much as possible to comply with it first. If that may not be found feasible then to make an effort to approach the Court and seek clarification or modification of the order.“

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