Common law Review Example

1. 1 INTRODUCTION AFTER DISCUSSING CONCEPT, HISTORICAL BACKGROUND AND CONSTITUTIONAL ASPECT IN THE PROCEEDING CHAPTERS, AN ATTEMPT HAS BEEN MADE IN THIS CHAPTER TO DISCUSS IN DETAIL THE PROVISIONS OF THE CONTEMPT OF COURTS ACT, 1971. RULE OF LAW IS THE BASIC PRINCIPLE OF GOVERNANCE OF ANY CIVILIZED AND DEMOCRATIC SOCIETY. THE PRINCIPLE ASSERTS SUPREMACY OF LAW BRINGING UNDER ITS PURVIEW EVERYONE, INDIVIDUALS AND INSTITUTIONS AT PAR WITHOUT ANY SUBJECTIVE DISCRETION.

IT CONNOTES THE MEANING THAT, “WHOEVER THE PERSON MAY BE, HOWEVER HIGH HE OR SHE IS, NO ONE IS ABOVE THE LAW NOTWITHSTANDING HOW POWERFUL AND HOW RICH HE OR SHE MAY BE. ” THERE CAN BE NO RULE OF LAW UNLESS THE BULWARK OF THAT GRAND CONCEPT „THE COURT OF JUSTICE? ARE KEPT ALIVE AT INSTITUTIONS BREATHING FREEDOM, OPENNESS AND JUSTICE. NO SOCIETY CAN EXIST WITHOUT LAWS AND LAWS HAVE NO MEANING, IF THEY CAN NOT BE ENFORCED. IT IS THROUGH THE COURTS THAT THE RULE OF LAW REVEALS ITS MEANINGFUL CONTENT. THE INDIAN CONSTITUTION IS BASED UPON THE CONCEPT OF RULE OF LAW AND FOR ACHIEVING THIS CHERISHED GOAL, THE FRAMERS OF INDIAN CONSTITUTION has assigned the special task to the judiciary.

1 THE JUDICIARY IS THE GUARDIAN OF THE RULE OF LAW. HENCE JUDICIARY IS NOT THE THIRD PILLAR BUT THE CENTRAL PILLAR OF THE DEMOCRATIC STATE. AN INDEPENDENT OR IMPARTIAL JUDICIARY IS THE SINE QUA NON OF A HEALTHY SOCIETY. IT IS THE LAST RESORT FOR THE COMMON PEOPLE OF A COUNTRY, AS THEY REPOSE THEIR ULTIMATE FAITH IN IT TO GET JUSTICE. THEREFORE, IT IS 1 Tek Chand, The Law of Contempt of Court and of Legislature, 2nd edition, the University Book Agency, Allhabad, 1949, p. 4. 175 ESSENTIAL FOR THE JUDICIARY TO BE PROTECTED FROM ALL SORTS OF EVIL LIKELY TO AFFECT THE ADMINISTRATION OF JUSTICE. FOR BETTER PROTECTION AND PRESERVATION OF PRESTIGE AND DIGNITY OF THE COURTS, THE LAW ON CONTEMPT OF COURT HAS EVOLVED.

SO, BROADLY SPEAKING, THIS LAW HELPS THE COURTS IN DISCHARGING JUSTICE KEEPING ITS STAND SUPREME IN THE EYE OF SOCIETY. ACTUALLY THIS LAW AIMS AT ENSURING THE ADMINISTRATION OF JUSTICE BY COURTS IN THE SOCIETY. THE ESSENCE OF CONTEMPT IS ACTION OR INACTION AMOUNTING TO AN INTERFERENCE WITH OR OBSTRUCTION TO OR HAVING A TENDENCY TO INTERFERE WITH OR TO OBSTRUCT THE DUE ADMINISTRATION OF JUSTICE. LOWERING THE DIGNITY OF THE COURT OR SHAKING CONFIDENCE OF THE PUBLIC IN IT IS UNDOUBTEDLY REPREHENSIBLE. BUT IF GENERAL REMARKS IMPUGNING THE INDEPENDENCE OF A COURT ARE MADE, SUCH REMARKS CAN TEND TO INTERFERE WITH OR OBSTRUCT THE ADMINISTRATION ONLY INDIRECTLY AND REMOTELY.

IN SUCH CASES THERE CAN BE NO WARRANT FOR THE EXERCISE OF THE EXTRAORDINARY POWERS WHICH THE COURTS POSSESS TO DEAL WITH CONTEMPT. THE POWER TO PUNISH FOR CONTEMPT ANY ONE WHO INTERFERES WITH THE ADMINISTRATION OF Justice is an inherent power vested in the judiciary. 2 THE LAW OF CONTEMPT IS BASED ON THE SOUND PUBLIC CONFIDENCE IN THE ADMINISTRATION OF JUSTICE. THE PURPOSE OF CONTEMPT JURISDICTION IS TO UPHOLD THE MAJESTY AND DIGNITY OF LAW COURTS AND THEIR IMAGE IN THE MINDS OF THE PUBLIC AT LARGE.

THE OBJECT OF THE DISCIPLINE ENFORCED BY THE COURT IN CASE OF CONTEMPT OF COURT IS NOT TO VINDICATE THE DIGNITY OF THE COURT OR OF THE JUDGE BUT TO PREVENT UNDUE INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE. The House of Lords in Attorney General v. Times Newspapers Ltd. 3, has rightly enumerated threefold purposes of the law of CONTEMPT: (I) TO ENABLE THE PARTIES TO LITIGATION AND THE WITNESSES TO COME BEFORE THE COURT WITHOUT OUTSIDE INTERFERENCE; (II) TO ENABLE THE COURTS TO TRY CASES WITHOUT SUCH INTERFERENCE; AND (III) TO ENSURE THAT AUTHORITY AND ADMINISTRATION OF LAW ARE MAINTAINED. 2 Felix Frank, Power of Congress over Procedure in Criminal Contempts in Inferior Federal Courts – A Study in Separation of Power’s, 37 Harvard Law Review, 1923, p.

1023. 3 1974 AC 273. 176 The Privy Council in Ambard v. Attorney General for Trinidad and Tobago,4 held that contempt primarily signifies DISRESPECT TO THAT WHICH OUGHT TO GET LEGAL REGARD. THE ORIGIN OF CONTEMPT JURISDICTION TRACES BACK ITS HISTORY TO THE MONARCHIC RULE OF ENGLAND WHERE CONTEMPT WAS AN OFFENCE MORE OR LESS DIRECT AGAINST THE SOVEREIGN AND ITS AUTHORITY. SO, THE SOURCE OF THE LAW OF CONTEMPT IS THE COMMON LAW CONCEPT OF THE ENGLISH COURTS AND THEIR DECISIONS.

THE JUDGES DERIVED THEIR AUTHORITY FROM THE MONARCH, AND IF DISRESPECT WAS SHOWN TO A JUDGE IT FOLLOWED THAT THE MONARCH HAD NOT BEEN VENERATED, A SERIOUS MATTER CALLING FOR ACTION IN LAW. PERHAPS IT CAN BE traced back to the Ecclesiastical Courts5, when ethics and law were NOT ESSENTIALLY DISTINCT FROM EACH OTHER, AND ANY ATTACK ON THE COURTS WOULD BE CONSIDERED AS MALICIOUS AND MISCHIEVOUS. IN ENGLAND THIS POWER HAS BEEN ENJOYED BY THE SUPERIOR COURTS. THE POWER TO COMMIT SUMMARILY FOR CONTEMPT IS CONSIDERED NECESSARY FOR THE PROPER ADMINISTRATION OF JUSTICE.

THE ENGLISH COURTSHAVE HELD THAT THE SUMMARY JURISDICTION BY WAY OF CONTEMPT PROCEEDINGS IN WHICH THE COURT ITSELF IS ATTACKED SHOULD BE EXERCISED WITH SCRUPULOUS CARE. In the much celebrated judgment of R. v. Almon6, Wilmot J. OBSERVED THAT CONTEMPT POWER IN THE COURTS WAS FOR VINDICATING THEIR AUTHORITY, AND IT WAS COEVAL WITH THEIR FOUNDATION AND INSTITUTION AND was a necessary incident to a court of justice7. It was probably the FIRST JUDGMENT IN THE LEGAL HISTORY THAT MARKED THE JUDICIAL INTERPRETATION OF THE CONTEMPT POWER IN ITS TRUE ESSENCE. THE JUDICIARIES ACROSS THE GLOBE WHERE THE COURTS HAVE BEEN ENTRUSTED WITH CONTEMPT JURISDICTION FOLLOW THE DICTUM OF WILMOT J.

THE ORIGIN OF THE LAW RELATING TO CONTEMPT OF COURT IS BURIED IN THE DEBRIS OF ENGLISH LAW WHICH PROVIDED THAT THE CONTEMPT OF THE 4 AIR 1936 PC 141. 5 The Ecclesiastical Court known as “Court Christian” or “Court Spiritual”, is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the middle ages in many areas of Europe these courts had much wider powers than before the development of nation states. They were experts in interpreting Canon law, a basis of which was the Corpus Juris Civilis of Justinian which is considered the source of the civil law legal tradition.

6 (1765) Wilm. 249 at p. 254. 7 Oswald’s, Contempt of Court, 3rd edition, Butterworth, London, 1993. 177 JUDGES WAS THE CONTEMPT OF THE KING WHICH MUST BE INCITED WITH CONDIGN PUNISHMENT. THE POWER IN THIS JURISDICTION IS WHOLESOME AS LONG AS IT IS GEARED TO THE LEGITIMATE OBJECT OF DEFENDING THE PROCESS OF JUSTICE. THE COURT CANNOT BEHAVE LAWLESSLY OR SECRETIVELY AND ITS TRANSPARENCY AS WELL AS BEHAVIOURAL PROPRIETY IS A NECESSARY COMPONENT OF FAIR TRIAL. THE AUTHORITY AND DIGNITY OF THOSE WHO ADMINISTER JUSTICE BETWEEN MAN AND MAN BY PROPER INTERPRETATION OF the law of the land must be protected. In State v.

Rajeshwari Prasad,8 the Apex Court observed that the freedom to seek justice and THE SATISFACTION OF THE LITIGANTS BY THAT JUSTICE DELIVERING THE TERM WITH THE LIBERTY OF THE PERSONS WHO HAVE SEEN OR HEARD OR KNOWN THE CONTENTIONS OF THE PATTIES TO GIVE OUT THEIR OBSERVATIONS, INFORMATION AND KNOWLEDGE WITHOUT FEAR, ARE CONSIDERED TO BE NECESSARY FACTORS FOR THE WELL BEING AND EXISTENCE OF THE SOCIETY, IT IS NECESSARY THAT THE LAW OF CONTEMPT MUST EXIST. IT MAY APPEAR HARSH, ARBITRARY, PENAL AND EVIL BUT STILL IT IS NECESSARY AFFORDING A PROTECTION TO ALL JUDGES, PARTIES AND WITNESSES AND THE PUBLIC.

THUS, THE PURPOSE OF CONTEMPT PROCEEDINGS IS TO SAFEGUARD THE DIGNITY OF COURTS AND THE ADMINISTRATION OF JUSTICE. THE OBJECT OF THE LAW OF CONTEMPT OF COURT IS TO MAINTAIN THE continuity of the crystal clear flow of the stream of justice. In Ram Surat Singh v. Shiv Kumar Pandey,9 the Court held that the object OF THE LAW OF CONTEMPT IS NOT TO PROVIDE A CLOAK FOR JUDICIAL AUTHORITIES TO COVER UP THEIR INEFFICIENCY AND CORRUPTION, OR TO STIFLE CRITICISM MADE IN GOOD FAITH AGAINST SUCH OFFICERS. ADMINISTRATION OF JUSTICE CANNOT BE EFFECTIVE UNLESS RESPECT FOR IT IS FOSTERED AND MAINTAINED.

Butler J.in King v. Watson,10 had stated that the law of CONTEMPT OF COURT IN ENGLAND HAS BEEN CONCEIVED IN THE INTEREST OF THE WELFARE OF THE PUBLIC: “NOTHING CAN BE OF GREATER IMPORTANCE TO THE WELFARE OF THE PUBLIC THAN TO PUT A STOP TO ANIMADVERSION AND CENSURES WHICH ARE SO 8 AIR 1966 All. 588. 9 AIR 1971 All. 170. 10 (1788) l TLR 205; cited in Aiyyar’s, Law of Contempt of Court, Parliament, Legislatures and Public Servants, Delhi Law House, Delhi, 1983, p. 349. 178 FREQUENTLY MADE ON COURTS OF JUSTICE IN OUR COUNTRY. THEY CAN BE OF NO SERVICE, AND MAY BE ATTENDED WITH THE MOST MISCHIEVOUS CONSEQUENCES.

” 1. 2 LEGISLATIVE MEASURES RELATING TO CONTEMPT IN INDIA IN INDIA, ALMOST ALL THE LAWS REPLICATE THE ENGLISH STATUTES AND CONTEMPT LAW IS NO EXCEPTION TO IT. THE BRIEF NARRATION OF LEGISLATIVE MEASURES OF THE LAW OF CONTEMPT OF COURT IN INDIA FROM THE CONTEMPT OF COURTS ACT, 1926 TO THE CONTEMPT OF COURTS ACT, 1971 IS USEFUL FOR THE PURPOSE OF PRESENT STUDY. 1. 2. 1 THE CONTEMPT OF COURTS ACT, 1926 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. 11It was ENACTED TO DEFINE AND LIMIT THE POWERS OF CERTAIN COURTS IN PUNISHING CONTEMPT OF COURTS. The Preamble to the Act12 stated: “WHEREAS DOUBTS HAVE ARISEN AS TO THE POWER OF A HIGH COURT OF JUDICATURE TO PUNISH CONTEMPT OF COURT AND WHEREAS IT IS EXPEDIENT TO RESOLVE THESE DOUBTS AND TO DEFINE AND LIMIT THE POWERS EXERCISABLE BY HIGH COURTS AND CHIEF COURTS IN PUNISHING CONTEMPT OF COURT. ”

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. 13 It is important to note that when the CONTEMPT OF COURTS ACT, 1926, WAS IN EXISTENCE IN BRITISH INDIA, 11 The Contempt of Courts Act, 1926 (Act No. XII of 1926). 12 Preamble to the Contempt of Courts Act, 1926. 13 Section 2 of the Contempt of Courts Act, 1926. 179 VARIOUS INDIAN STATES ALSO HAD THEIR CORRESPONDING ENACTMENTS.

THESE STATES WERE HYDERABAD, MADHYA BHARAT, MYSORE, PEPSU, RAJASTHA, TRAVANCORE-COCHIN AND SAURASJTRA. THE CONTEMPT OF COURTS ACT, 1926, WAS SUBSEQUENTLY AMENDED in 193714 to make it clear that the limits of punishment provided in THE ACT RELATED NOT ONLY TO CONTEMPT OF SUBORDINATE COURTS BUT ALSO TO ALL CASES. THE EFFECT OF WHICH WAS TO OMIT THE WORD “SUBORDINATE” FROM THE PREAMBLE OF THE CONTEMPT OF COURTS ACT, 1926 AND TO ADD A NEW PROVISO TO SECTION 3 OF THE LATTER ACT IN REGARD TO SENTENCE TO BE IMPOSED. 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. 1. 2. 2 THE CONTEMPT OF COURTS ACT, 1952 The Contempt of Courts Act, 195215, repealed the Contempt of Courts Act, 192616 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?. IRRESPECTIVE OF WHETHER THE CONTEMPT WAS ALLEGED TO HAVE BEEN COMMITTED WITHIN OR OUTSIDE THE LOCAL LIMITS OF ITS JURISDICTION AND IRRESPECTIVE OF WHETHER THE PERSON ALLEGED TO BE GUILTY OF COMMITTING CONTEMPT WAS WITHIN OR OUTSIDE SUCH LIMITS.

14 The Contempt of Courts (Amendment) Act, 1937. 15 The Contempt of Courts Act, 1952 (Act No. 32 of 1952). 16 As amended by the Contempt of Courts (Amendment) Act, 1937. 180 SECTION 3 OF THE CONTEMPT OF COURTS ACT, 1952 CONFERRED THE POWER ON THE HIGH COURTS INCLUDING THAT OF THE JUDICIAL COMMISSIONER? S COURT TO PUNISH CONTEMPT OF SUBORDINATE COURT. BUT NO HIGH COURT COULD TAKE COGNISANCE OF AN OFFENCE OF CONTEMPT BEFORE SUBORDINATE COURT WHICH WAS PUNISHABLE UNDER THE INDIAN PENAL Code, 1860.

Section 4 of the Act17 limited the punishment to be AWARDED IN CASE OF CONTEMPT. IN THE MATTER OF IMPOSITION OF PUNISHMENT FOR CONTEMPT OF COURT, SECTION 4 OF THE 1952 ACT PROVIDED: “SUCH AS OTHERWISE EXPRESSLY PROVIDED BY ANY LAW FOR THE TIME BEING IN FORCE, 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 PROVIDED FURTHER THAT:

NOTWITHSTANDING ANYTHING ELSEWHERE CONTAINED IN ANY LAW FOR THE TIME BEING IN FORCE, NO HIGH COURT SHALL IMPOSE A SENTENCE IN EXCESS OF THAT SPECIFIED IN THIS SECTION FOR ANY CONTEMPT EITHER IN RESPECT OF ITSELF OR OF A COURT SUBORDINATE TO IT. ” UNDER THE CONTEMPT OF COURTS ACT OF 1952 THREE CLASSES OF CONTEMPT WERE RECOGNISED (I) SCANDALISING THE COURT; (II) ABUSING PARTIES WHO ARE CONCERNED IN THE CASE; AND (III) PREJUDICING AGAINST PERSONS BEFORE THE CASE IS HEARD, IT CARRIED SET MEANING GIVEN TO IT BY JUDICIAL PRONOUNCEMENTS OF ENGLISH AND INDIAN COURTS. THE VALIDITY OF CONTEMPT OF COURTS ACT OF THE CONTEMPT OF COURTS ACT, 1952 WAS UPHELD BY THE PATNA AND BOMBAY HIGH COURTS.

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 17 Section 4 of the Contempt of Courts Act, 1952. 181 COURTS IN INDIA. 1. 2. 3 THE CONTEMPT OF COURTS ACT, 1971 THE LAW RELATING TO CONTEMPT OF COURT AS EXISTED PRIOR TO THE ACT OF 1971 WAS SOMEWHAT UNCERTAIN AND UNSATISFACTORY.

MOREOVER, THE JURISDICTION TO PUNISH FOR CONTEMPT TOUCHES TWO IMPORTANT FUNDAMENTAL RIGHTS INCLUDING THE RIGHT TO FREEDOM OF SPEECH AND expression and right to personal liberty. 18 It was, therefore, considered NECESSARY TO HAVE THE ENTIRE LAW ON THE SUBJECT SCRUTINISED BY A SPECIAL COMMITTEE. HENCE, A COMMITTEE WAS SET UP IN 1961 UNDER THE chairmanship of late H. N. Sanyal19. (i) HISTORY OF THE COTEMPT OF COURTS ACT, 1971 THE SANYAL COMMITTEE MADE A COMPREHENSIVE EXAMINATION OF THE LAW AND PROBLEMS RELATING TO CONTEMPT OF COURT IN COMPARISON WITH VARIOUS FOREIGN COUNTRIES. EVALUATING THE LAW RELATING TO CONTEMPT, THE doyen of the Indian Bar Mr.

Fali Nariman in his speech20 said the OFFENCE OF SCANDALIZING THE COURT IS A MERCURIAL JURISDICTION IN WHICH THERE ARE NO RULES AND NO CONSTRAINTS. HE AND OTHER WERE PERFECTLY CORRECT IN SAYING THERE SHOULD BECERTAINTY IN THE LAW,AND NOT UNCERTAINTY. AFTER ALL, THE CITIZEN SHOULD KNOW WHERE HE OR SHE STANDS. THERE ARE TWO REASONS FOR THE UNCERTAINTY IN THE LAW OF CONTEMPT OF COURT. FIRST, IN THE CONTEMPT OF COURTS ACT, 1952 THERE WAS NO DEFINITION OF „CONTEMPT.?

SECONDLY, EVEN WHEN A DEFINITION WAS introduced by the Contempt of Courts Act, 197121, there was no DEFINITION OF WHAT CONSTITUTES SCANDALIZING THE COURT OR WHAT PREJUDICES, OR INTERFERES WITH THE COURSE OF JUSTICE. WHAT COULD BE REGARDED AS SCANDALOUS EARLIER MAY NOT BE REGARDED AS SCANDALOUS TODAY AND WHAT COULD EARLIER BE REGARDED AS PREJUDICING OR INTERFERING with the course of justice may not be so regarded today. 22 18 Report of Committee on Contempt of Courts (1963). 19 H. N. Sanyal, the then Additional Solicitor General of India. 20 Speech delivered on the topic “The Law of Contempt –is it being stretched too far? ” 21 Section 2 of the Contempt of Courts Act, 1971. 22 Justice Markandey Katju, Judge, Supreme Court of India, Vol. XII, 2007 Cri. L. J. , p. 16. 182 THE H. N.

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 Courts23 examined the issue in detail and the Committee PREPARED A NEW BILL, THE CONTEMPT OF COURTS BILL, 1968.

THE BILL WAS TO GIVE EFFECT TO THE ACCEPTED RECOMMENDATIONS OF THE SANYAL COMMITTEE. THE RECOMMENDATIONS OF THE COMMITTEE MADE TOOK NOTE OF THE IMPORTANCE GIVEN TO THE FREEDOM OF SPEECH IN THE INDIAN CONSTITUTION AND OF THE NEED FOR SAFEGUARDING THE STATUS AND DIGNITY OF COURTS AND interest of administration of justice. 24 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.

ON THE BASIS OF THESE RECOMMENDATIONS, THE Contempt of Courts Act, 197125 was passed which can be described as A COMPREHENSIVE LEGISLATION. IN A VERY PRACTICAL MOVE AND IN AN EFFORT TO SANCTIFY THE IDEAL OF JUSTICE, THE CONTEMPT OF COURTS ACT, 1971, WAS ENACTED TO IDENTIFY AND PUNISH THOSE VERY PERSONS WHO, IN ANY WAY, PUT AN OBSTACLE IN THE PATH OF THE JUDICIARY TO DELIVER JUSTICE TO THE PEOPLE. ONE OF THE BASIC PRINCIPLES OF A SOUND JUDICIARY IS THAT EVERYONE IS ENTITLED TO A FREE AND FAIR TRIAL WITHOUT ANY PREJUDICE WHATSOEVER. THEREFORE, ANY ACTION, EITHER DIRECT OR INDIRECT, WHICH IS DETRIMENTAL TO THE JUDICIAL IDEAL OF JUSTICE IS SOUGHT TO BE PUNISHED UNDER THE CONTEMPT OF COURTS ACT. 23 Report of Joint Committee on Contempt of Courts Act, 1971 at p. 22. 24 Report of Joint Committee on Contempt of Courts Act, 1971. 25 The Contempt of Courts Act, 1971 (Act No. 70 of 1971).

It came into force w. e. f. December 24, 1971. 183 (ii) 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. The Hadi Hussain J. in re Nasir Uddin Haider,26 said that the CONTEMPT OF COURTS ACT, 1971 HAS BEEN ENACTED IN ORDER TO REMOVE DOUBTS WHICH HAVE ARISEN AS TO THE POWERS OF A HIGH COURT.

THE OBJECT AND PURPOSE OF CONTEMPT JURISDICTION IS TO UPHOLD THE MAJESTY AND DIGNITY OF LAW COURTS AND THEIR MAJESTY IN THE MINDS OF PUBLIC AND THAT THIS IS IN NO WAY WHITTLED DOWN. IF, BY CONTUMACIOUS WORDS OR WRITING, THE COMMON MAN IS LED TO LOSE HIS RESPECT FOR THE JUDGE, ACTING IN THE DISCHARGE OF ITS JUDICIAL DUTIES, THEN THE CONFIDENCE REPOSED IN THE COURSE OF JUSTICE IS RUDELY SHAKEN AND THE OFFENDER MUST BE PUNISHED. IN ESSENCE, THE LAW OF CONTEMPT IS THE PROTECTOR OF THE SEAT OF JUSTICE MORE THAN A PERSON OF THE JUDGE SITTING IN THAT SEAT. The Apex Court in Mohammed Yamin v. Om Prakash Bansal,27 held that the law of contempt of court is not the law for the PROTECTION OF JUDGES OR TO PLACE THEM IN A POSITION OF IMMUNITY FROM CRITICISM.

IT IS LAW OF THE PROTECTION OF THE FREEDOMOF INDIVIDUALS. EVERYONE IN A WELL VERSED COMMUNITY IS ENTITLED TO THE PROTECTION OF A FREE AND INDEPENDENT ADMINISTRATION OF JUSTICE. IT IS FOR THE PRESS TO ENLIGHTEN THE PUBLIC ON WHAT HAS BEEN DONE IN THE BRANCH OF GOVERNMENT FAIRLY AND FIRMLY, TO CRITICISE, WHAT HAS BEEN DONE WHERE CRITICISM APPEARS TO BE WARRANTED, BUT NEVER ATTEMPT TO INFLUENCE THE 26 AIR 1926 All. 623 at 625. 27 1982, Cr. L. J.322 (Raj. ). 184 COURSE OF JUSTICE OR TO UNDERMINE THE FAITH OF THOSE WHO LIVE UNDER PROTECTION OF THE LAW AND THE IMPARTIAL AUTHORITY OF THE COURTS.

THE PRESS IS JUSTIFIED IN MAKING FREE AND FAIR CRITICISM. THE HALL OF JUSTICE IS NOT A CLOISTERED VIRTUE. IN FACT, FOR JUSTICE, TO SHINE WITH ITS PRISTINE LUSTER, IT MUST BE BOLD, FREE AND SUBJECT TO PUBLIC SCRUTINY. SO, IF THE PRESS DOES CRITICIZE SOME PUBLIC ASPECTS OF A JUDGMENT, E. G. , IN THE REALM OF INTERPRETATION OF LAW, SEVERITYOF SENTENCE, ETC. , IT CANNOT BE CONTEMPT. BUT IF THERE IS AN ATTACK ON THE INTEGRITY OF JUDGES BY IMPUTING MOTIVE DISHONESTY OR INCOMPETENCE, ARBITRARINESS OR WANT OF INDEPENDENCE TO A JUDGE, IT WOULD BE EXCEEDING FREE A FAIR CRITICISM BY THE PRESS.

The Supreme Court in State v. Rajeshwari Prasad28, held that THE AIM OF THE LAW OF CONTEMPT WAS TO PROTECT THOSE WHOSE DUTY IT WAS TO ADMINISTER JUSTICE BETWEEN MAN AND MAN BY TRUE AND PROPER INTERPRETATION OF LAW, FROM INSULTS, ANNOYANCE AND EVEN OBSTRUCTION. PERSONS WHO SEEK JUSTICE AND PERSONS WHO HELP IN THE ADMINISTRATION OF JUSTICE ARE ALL ENTITLED TO BE PROTECTED. (iii) SCOPE OF THE CONTEMPT OF COURTS ACT IT IS VERY MUCH NECESSARY TO ASSESS THE SCOPE OF THE CONTEMPT OF COURTS ACT, 1971, BECAUSE THE TITLE OF THE ACT OFTEN MISLEADS PEOPLE TO THINK THAT THIS PIECE OF LEGISLATION TENDS TO PROTECT THE COURT AND THE FRATERNITY OF LAWYERS AND JUDGES, THEREBY KEEPING THEM ABOVE LAW.

GIVEN THAT THE JUDICIARY IS BOTH THE PROSECUTOR AND THE ADJUDICATOR, IT OFTEN LEADS THIS LEGISLATION TO BE MISCONSTRUED AS A VEIL OF PROTECTION FOR THE COURTS FROM EXTERNAL CRITICISM. INFACT, IF IT WERE SO, THEN IT WOULD BE NOTHING BUT AN ABUSE OF THE POWERS OF THE JUDICIARY AND A NEGLECT OF THE VERY IDEAL OF JUSTICE THAT IT WISHES TO PROTECT. THE PUNISHMENT UNDER THE CONTEMPT LAW IS INFLICTED NOT FOR THE PURPOSE OF PROTECTING EITHER THE COURT AS WHOLE OR INDIVIDUAL JUDGES FROM A REPETITION OF THE ATTACK BUT OF PROTECTING THE PUBLIC. THUS, CONTRARY TO THE AFOREMENTIONED COMMON PERCEPTION, THIS ACT IN NO WAY HANDS OVER SUPERFLUOUS POWER TO THE JUDICIARY.

MOREOVER, IT MUST BE REMEMBERED 28 A. 1. R. 1966 All. 588. 185 THAT THE POWER AND JURISDICTION OF THE COURTS UNDER THIS ACT FALLS UNDER EXTRA-ORDINARY JURISDICTION ALONE AND THIS ACTS AS A CHECK ON THE JUDICIARY. 1. 3 PROVISIONS OF THE COTEMPT OF COURTS ACT, 1971 THE PROVISIONS OF THE CONTEMPT OF COURTS ACT, 1971, DISCUSS IN DETAIL BELOW: 1. 3. 1 Preamble “An Act to define and limit the powers of certain Courts in punishing contempt of Courts and to regulate their procedure in relation thereto. ”

This Act was enacted29 to define and limit the powers of certain COURTS IN PUNISHING CONTEMPT OF COURTS AND TO REGULATE THEIR PROCEDURE IN RELATION THERETO. THUS, THE NEW CONTEMPT OF COURTS ACT, 1971 HAS BEEN ENACTED IN ORDER TO REMOVE DOUBTS WHICH HAD ARISEN AS TO THE POWERS OF A HIGH COURT. 1. 3. 2 Section 1: Short title and extent “(1) This Act may be called the Contempt of Courts Act, 1971. (2) It extends to the whole of India. Provided that it shall not apply to the state of Jammu and Kashmir except to the extent to which the provisions of this Act relate to contempt of the Supreme Court. ”

SECTION 1 OF THE CONTEMPT OF COURTS ACT, 1971 STATES THE SHORT TITLE AND EXTENT OF THE ACT. THIS ACT MAY BE CALLED THE CONTEMPT OF COURTS ACT, 1971 AND IT EXTENDS TO THE WHOLE OF INDIA, PROVIDED THAT IT SHALL NOT APPLY TO THE STATE OF JAMMU AND KASHMIR EXCEPT TO THE EXTENT TO WHICH THEPROVISIONS OF THIS ACT RELATE TO CONTEMPT OF THE Supreme Court. 30 In Shakuntala Sahadevram Tewari v. Hemchand M. Singhania,31 the Court held that the law of contempt of courts is FOR KEEPING THE ADMINISTRATION OF JUSTICE PURE AND UNDEFILED. WHILE THE 29 The Contempt of Courts Act, 1971(No. 70 of 1971) enacted by Parliament in the Twenty Second Year (24th December, 1971) of the Republic of India.

30 Article 370 of the Constitution of India: Temporary provisions with respect to the State of Jammu and Kashmir. 31 (1990) 3 Bom CR 82 (Bom). 186 DIGNITY OF THE COURT IS TO BE MAINTAINED AT ALL COSTS, THE CONTEMPT JURISDICTION, WHICH IS OF A SPECIAL NATURE, SHOULD BE SPARINGLY USED. 1. 3. 3 Section 2: Definitions “In this Act, unless the context otherwise requires: (a) ‘Contempt of Court’ means civil contempt or criminal contempt. (b) ‘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.

(c) ‘Criminal contempt’ means 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.

(d) ‘High Court’ means the High Court for a state or a union territory and includes the Court of the judicial commissioner in any union territory. ” (i) Contempt of Court IN SECTION 2 OF THE CONTEMPT OF COURTS ACT, 1971, THERE ARE FOUR DEFINITIONS VIZ. , ‘CONTEMPT OF COURT’, ‘CIVIL CONTEMPT’ ‘CRIMINAL CONTEMPT’ AND ‘HIGH COURT’. IT WAS FOR THE FIRST TIME THAT THE WORDS ‘CONTEMPT OF COURT’ HAD BEEN DEFINED IN THE CONTEMPT OF COURTS ACT, 1971. BEFORE THE ENACTMENT OF THE PRESENT ACT THE TERM ‘CONTEMPT OF COURT’ WAS NOT DEFINED. IT WAS CONSIDERED PROPER THAT A DEFINITION MAY BE ASSIGNED TO THE TERM AND DISTINCTION MAY BE MADE BETWEEN CIVIL CONTEMPT AND CRIMINAL CONTEMPT.

WITH THIS VIEW THE TERM ‘CONTEMPT OF COURT’ WAS DEFINED UNDER SECTION 2(A) OF THE CONTEMPT OF COURTS ACT, 1971, mean civil contempt and criminal contempt. In Queen v. Gray,32 it was held that the law relating to contempt of court is well SETTLED AS ACT DONE OR WRITING PUBLISHED WHICH IS CALCULATED TO BRING A 32 1900 (2) QBD 36 (40). 187 COURT OR A JUDGE INTO CONTEMPT, OR TO LOWER HIS AUTHORITY, OR TO INTERFERE WITH THE DUE COURSE OF JUSTICE OR THE LAWFUL PROCESS OF THE COURT, IS A CONTEMPT OF COURT. IT WOULD BE APPROPRIATE TO EXAMINE AND ANALYSE SOME LANDMARK JUDGMENTS OF THE APEX COURT RELATING TO CONTEMPT OF COURT TO KNOW ITS scope and area. In E. M. S. Namboodripad v. T. N.

Nambiar33, the APPEAL WAS AGAINST THE CONVICTION FOR CONTEMPT OF COURT. THE CONVICTION WAS BASED ON CERTAIN UTTERANCES OF THE APPELLANT, WHEN HE WAS CHIEF MINISTER, AT A PRESS CONFERENCE. MR. CHIEF JUSTICE HIDAYATULLAH WITH WHOM G. K. MITTER AND A. N. RAY, JJ. AGREED SPEAKING FOR THE SUPREME COURT EXPLAINED THE SCOPE OF LAW RELATING TO CONTEMPT AND OBSERVED: “THE LAW OF CONTEMPT STEMS FROM THE RIGHT OF THE COURTS TO PUNISH BY IMPRISONMENT OR FINE TO PERSONS GUILTY OF WORDS OR ACTS WHICH EITHER OBSTRUCT OR TEND TO OBSTRUCT THE ADMINISTRATION OF JUSTICE.

THIS RIGHT IS EXERCISED IN INDIA BY ALL COURTS WHEN CONTEMPT IS COMMITTED IN FACIE CURIAE AND BY THE SUPERIOR COURTS ON THEIR OWN BEHALF OR ON BEHALF OF COURTS SUBORDINATE TO THEM EVEN IF COMMITTED OUTSIDE THE COURTS. FORMERLY, IT WAS REGARDED AS INHERENT IN THE POWERS OF A COURT OF RECORD AND NOW BY THE CONSTITUTION OF INDIA… THERE ARE MANY KINDS OF CONTEMPT? S. THE CHIEF FORMS OF CONTEMPT ARE INSULT TO JUDGES, ATTACKS OR FAIR COMMENT ON PENDING PROCEEDINGS WITH A TENDENCY TO PREJUDICE FAIR TRIAL OBSTRUCTION TO OFFICERS OF THE COURTS, WITNESSES OR THE PARTIES ALONG WITH THE PROCESS OF THE COURT, BREACH OF

DUTY BY OFFICER 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 LAWS INTO DISRESPECT OR DISREGARD. THIS CONDUCT INCLUDED ALL ACTS WHICH BRING THE COURTS INTO DISREPUTE OR DISRESPECT, OR WHICH OFFEND ITS DIGNITY, AFFRONT ITS MAJESTY OR CHALLENGE ITS AUTHORITY. ” MR CHIEF JUSTICE HIDAYATULLAH FURTHER OBSERVED: “THE LAW PUNISHES NOT ONLY ACTS WHICH DO IN FACT INTERFERE WITH 33 AIR 1970 SC 2015. 188 THE COURTS AND ADMINISTRATION OF JUSTICE BUT ALSO THOSE WHICH HAVE THAT TENDENCY, THAT IS TO SAY LIKELY TO PRODUCE A PARTICULAR RESULT. ”

THE SUPREME COURT AFTER CITING SEVERAL WORKS AND TEACHING OF MARX AND ENGELS UPHELD THE SENTENCE OF CONTEMPT OF COURT. IT WAS THAT JUDGING FROM THE ANGLE OF THE COURTS AND ADMINISTRATION OF JUSTICE, THERE WAS NOT ASSEMBLAGE OF DOUBT THAT THE APPELLANT WAS GUILTY OF THE CONTEMPT OF COURT. THE SUPREME COURT OF INDIA SPEAKING THROUGH MR. JUSTICE I. D. Dua in Aligarh Municipality v. E. T. Majdoor Union34, has declared THAT A CORPORATE BODY CAN BE PUNISHED FOR CONTEMPT OF COURT. THE COURT HAS HELD A CORPORATION (MUNICIPAL BOARD IN THIS CASE) IS LIABLE TO BE PUNISHED BY IMPOSITION OF FINE AND BY SEQUESTRATION FOR CONTEMPT FOR DISOBEYING ORDER OF COMPETENT COURT DIRECTED AGAINST THEM.

IT IS COMMAND TO THOSE WHO ARE OFFICIALLY RESPONSIBLE FOR THE CONDUCT OF ITS FAIRS. The Supreme Court in Baradakant v. Registrar, Orissa H. C. 35, HAS HELD THAT THE DEFAMATORY CRITICISM OF A JUDGE FUNCTIONING AS A JUDGE EVEN IN PURELY ADMINISTRATIVE OR NON-ADJUDICATORY MATTERS AMOUNTED TO CRIMINAL CONTEMPT. THE IMPUTATIONS CONTAINED IN THE LETTERS HAVE GROSSLY VILIFIED THE HIGH COURT AND HAS SUBSTANTIALLY INTERFERED WITH THE ADMINISTRATION OF JUSTICE AND THEREFORE, THE APPELLANT WAS RIGHTLY CONVICTED OF THE OFFENCE OF THE CRIMINAL CONTEMPT.

WHERE THE ASSISTANT DIRECTOR PUBLIC RELATIONS AND INFORMATION OF MADHYA PRADESH, PUBLISHED A PRESS RELEASE ON THE JUDGMENT OF THE SUPREME COURT CONVEYING TO THE PUBLIC THAT THE ORDER OF THE HIGH COURT HAS BEEN REVERSED BY THE SUPREME COURT AND THEREBY, IMPLIEDLY CONVEYING THAT THE DETENTION OF PETITIONER HAS BEEN UPHELD. THE COURT ALTHOUGH ACCEPTED UNCONDITIONAL APOLOGY BECAUSE THE SAID NEWS WAS NOT PUBLISHED WITHOUT KNOWING THE CORRECT IMPLICATIONS OF THE HIGH COURT JUDGMENT. IN ACCEPTING THE UNCONDITIONAL APOLOGY, THE SUPREME 34 AIR 1970 SC 1767.

35 AIR 1974 SC 710. 189 COURT ON ONE HAND TOOK NOTICE THAT THE CONTEMNER HAD LACK OF KNOWLEDGE OR EXPERIENCE