Contempt of Court of Records
Court of Record has been defined as: “A Court whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, and which has power to fine and imprison for contempt of its authority.”
After the Constitution of India was promulgated in 1950, it appears that on Ist of April, 1960, a Bill was introduced in the Lok Sabha ‘to consolidate and amend the LAW relating to contempt of Court’. The Bill was examined by the Government which felt that LAW relating to contempt of Courts was “uncertain, undefined and unsatisfactory” and that in the light of the constitutional changes which had taken place in the country, it was advisable to have the entire LAW on the subject scrutinised by a special committee to be set-up for the purpose. Pursuant to that decision, the Ministry of LAW on July 29, 1961 set up a Committee under the Chairmanship of Shri H.N. Sanyal, Additional Solicitor General of India. The Committee came to be known as Sanyal Committee and it was required:
(i) to examine the LAW relating to contempt of Courts generally, and in particular, the LAW relating to the procedure for the punishment thereof;
(ii) to suggest amendments therein with a view to clarifying and reforming the LAW wherever necessary; and
(iii) to make recommendations for codification of the LAW in the light of the examination made.”
The committee inter-alia opined that Parliament or the concerned legislature has the power to legislate in relation to the substantive LAW of contempt of the Supreme Court and the High Courts subject only to the qualification that the legislature cannot take away the powers of the Supreme Court or the High Court, as a Court of Record, to punish for contempt nor vest that power in some other Court.
After the submission of the Sanyal Committee Report, the Contempt of Courts Act, 1952, was repealed and replaced by the Contempt of Courts Act, 1971 which Act was enacted to “define and limit the powers of certain Courts in punishing contempt of Courts and to regulate their procedure in relation thereto”. It would be proper to notice some of the relevant provisions of the 1971 Act at this stage.
Section 2(a), (b) and (c) of the Contempt of Courts Act, 1971 define contempt of Court as follows:
“2. Definitions.- In this Act, unless the context otherwise requires,-
(a) ‘contempt of Court’ means civil contempt or criminal contempt;
(b) ‘civil contempt’ means 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;
(c) ‘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) 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 proceedings; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”
Section 10 provides:-
“Section 10. Power of High Court to punish contempts 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 contempts of Courts subordinate to it as it has and exercises in respect of contempts 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 Panel Code, 1860 (45 of 1860).”
The punishment for committing contempt of Court is provided in Section 12 of the 1971 Act which reads:-
“12. Punishment for contempt of Court.- (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 extend to six months, or with fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.
Explanation.- An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
(2) Notwithstanding anything contained in any LAW for the time being in force, no Court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a Court subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the Court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary, shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.
(4) Where the person found guilty of contempt of Court in respect of any undertaking given to a Court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, which the leave of the Court, by the detention in civil prison of each such person:
Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission. (5) Notwithstanding anything contained in sub-section (4), where the contempt of Court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the Court, by the detention in civil prison of such director, manager, secretary or other officer.
An analysis of the above provision shows that sub-section (1) of Section 12 provides that in a case of established contempt, the contemner may be punished:
(a) with simple imprisonment by detention in a civil prison; or
(b) with fine; or
(c) with both.
A careful reading of sub-section (2) of Section 12 reveals that the Act places an embargo on the Court not to impose a sentence in excess of the sentence prescribed under sub-section (1). A close scrutiny of sub-section (3) of Section 12 demonstrates that the legislature intended that in the case of civil contempt a sentence of fine alone should be imposed except where the Court considers that the ends of justice make it necessary to pass a sentence of imprisonment also. Dealing with imposition of punishment under Section 12(3) of the Act, in the case of Smt. Pushpaben v. Narandas V. Badjani, (1979) 2 SCC 394 , this Court opined:
“A close and careful interpretation of the extracted section (Section 12(3)) leaves no room for dobut that the Legislature intended that a sentence of fine alone should be imposed in normal circumstances. The statute, however, confers special power on the Court to pass a sentence of imprisonment if it thinks that ends of justice so require. Thus before a Court passes the extreme sentence of imprisonment, it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation. Thus, the sentence of imprisonment is an exception while sentence of fine is the rule.”
Section 10 of the 1971 Act like Section 2 of the 1926 Act and Section 4 of the 1952 Act recognises the power which a High Court already possesses as a Court of Record for punishing for contempt of itself, which jurisdiction has now the sanction of the Constitution also by virtue of Article 215. The Act, however, does not deal with the powers of the Supreme Court to try or punish a contemner for committing contempt of the Supreme Court or the Courts subordinate to it and the constitutional provision contained in Arts. 142(2) and 129 of the Constitution alone deal with the subject.
In S. K. Sarkar, Member, Board of Revenue v. Vinay Chandra Misra, (1981) 1 SCC 436 , this Court opined:
“Articles 129 and 215 preserve all the powers of the Supreme Court and the High Court, respectively, as a Court of Record which include the power to punish the contempt of itself. As pointed out by this Court in Mohd. Ikram Hussain v. State of U.P., AIR 1964 SC 1625, there are no curbs on the power of the High Court to punish for contempt for itself except those contained in the Contempt of Courts Act. Articles 129 and 215 do not define as to what constitutes contempt of Court. Parliament has, by virtue of the aforesaid entries in List I and List III of the Seventh Schedule, power to define and limit the powers of the Courts in punishing contempt of Court and to regulate their procedure in relation thereto. Indeed, this is what is stated in the preamble of the Act of 1971.”
In Sukhdev Singh v. Hon’ble C. J. S. Teja Singh, (1954) SCR 454 , while recognising that the power of the High Court to institute proceedings for contempt and punish the contemner when found necessary is a special jurisdiction which is inherent in all Courts of Record, the Bench opined that “the maximum punishment is now limited to six month’s simple imprisonment or a fine of ` 2,000/- or both” because of the provision of Contempt of Courts Act.
In England, according to Halsbury’s LAWs of England 4th Edn. Para 97:
“There is no statutory limit to the length of the term of imprisonment which may be imposed for contempt of Court by the Court of Appeal, High Court or Crown Court. Similarly the statutory provisions relating to the suspension of sentences of imprisonment have no application to committals for contempt.
Although there is no limit to the length of the term which may be imposed, the punishment should be commensurate to the offence. Thus, where contempt is committed owing to a mistaken view of the rights of the offender, the punishment, where imprisonment is deemed necessary, should be for a definite period and should not be severe.”
Paras 99 and 100 to 105 of Halsbury’s LAWs deal with the other punishments which may be imposed for contempt of Court.
“99- Fines and security for good behaviour. The Court may, as an alternative or in addition to committing a contemner, impose a fine or require security for good behaviour.
As in the case of imprisonment, there is no statutory limit to the amount of a fine which the Court can impose.
100- Other remedies. As a further alternative to ordering committal, the Court may, in its discretion, adopt the more lenient course of granting an injunction to restrain repetition of the act of contempt. The Court may also penalise a party in contempt by ordering him to pay the costs of the application.
103- Fine. The Court may, as an alternative to committal or sequestration, impose a fine for civil contempt.
In assessing the amount of the fine, account should be taken of the seriousness of the contempt and the damage done to the public interest.
104- Other remedies. The Court may, in its own discretion, grant an injunction, in lieu of committal or sequestration, to restrain the commission or repetition of a civil contempt. The Court may in lieu of any other penalty require the contemner to pay the costs of the motion on a common fund basis.
105- Costs. The costs of an application for committal are in the discretion of the Court, and should be asked for on the hearing of the application. The respondent can as a general rule only be ordered to pay costs if he has been guilty of contempt. An action is maintainable in the Queen’s Bench Division to enforce an order made in the Chancery Division to pay the costs of a motion for committal.”
Thus, the recognised and accepted punishments for civil or criminal contempt of Court in English LAW, which have been followed and accepted by the Courts in this country and incorporated in the Indian LAW in so far as, civil contempt, is concerned are:
(i) Sequestration of assets;
(iii) committal to prison.
The object of punishment being both curative and corrective, these coercions are meant to assist an individual complainant to enforce his remedy and there is also an element of public policy for punishing civil contempt, since the administration of justice would be undermined if the order of any Court of LAW is to be disregarded with impunity. Under some circumstances, compliance of the order may be secured without resort to coercion, through the contempt power. For example, disobedience of an order to pay a sum of money may be effectively countered by attaching the earnings of the contemner. In the same manner, committing the person of the defaulter to prison for failure to comply with an order of specific performance of conveyance of property, may be met also by the Court directing that the conveyance be completed by an appointed person. Disobedience of an undertaking may in the like manner be enforced through process other than committal to prison as for example where the breach of undertaking is to deliver possession of property in a landlord tenant dispute. Apart from punishing the contemner the Court to maintain the Majesty of LAW may direct the police force to be utilised for recovery of possession and burden the contemner with costs, exemplary or otherwise.
In so far as criminal contempt of Court is concerned, which charge is required to be established like a criminal charge, it is punishable by
(i) fine; or (ii) by fixed period of simple imprisonment or detention in a civil prison for a specified period; or
In deciding whether a contempt is serious enough to merit imprisonment, the Court will take into account the likelihood of interference with the administration of justice and the culpability of the offender. The intention with which the act complained of is done is a material factor in determining what punishment, in a given case, would be appropriate.
The nature and types of punishment which a Court of record can impose, in a case of established contempt, under the common LAW have now been specifically incorporated in the Contempt of Courts Act, 1971 in so far as the High Courts are concerned and therefore to the extent the Contempt of Courts Act, 1971, identifies the nature or types of punishments which can be awarded in the case of established contempt, it does not impinge upon the inherent powers of the High Court under Article 215 either. No new type of punishment can be created or assumed.
As already noticed, the Parliament by virtue of Entry 77, List I is competent to enact a LAW relating to the powers of the Supreme Court with regard to contempt of itself and such a LAW may prescribe the nature of punishment which may be imposed on a contemner by virtue of the provisions of Article 129 read with Article 142(2). Since, no such LAW has been enacted by the Parliament, the nature of punishment prescribed, under the Contempt of Courts Act, 1971, may act as a guide for the Supreme Court but the extent of punishment as prescribed under that Act can apply only to the High Courts, because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the Supreme Court, except that Section 15 of the Act prescribes procedural mode for taking cognizance of criminal contempt by the Supreme Court also. Section 15, however, is not a substantive provision conferring contempt jurisdiction. The judgment in Sukhdev Singh’s case (supra) as regards the extent of “maximum punishment” which can be imposed upon a contemner must, therefore, be construed as dealing with the powers of the High Courts only and not of this Court in that behalf. We are, therefore, doubtful of the validity of the argument of the learned Solicitor General that the extent of punishment which the Supreme Court can impose in exercise of its inherent powers to punish for contempt of itself and/or of subordinate Courts can also be only to the extent prescribed under the Contempt of Courts Act, 1971. We, however, do not express any final opinion on that question since that issue, strictly speaking, does not arise for our decision in this case. The question regarding the restriction or limitation on the extentof punishment, which thisCourt may award while exercising its contempt jurisdiction may be decided in a proper case, when so raised.
Ref: AIR 1998 SC 1895 : (1998) 2 SCR 795 : (1998) 4 SCC 409 : JT 1998 (3) SC 184 : (1998) 2 SCALE 745