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के मामलों में भी लचीला रुख अपनाया जाना चाहिए? दिल बड़ा करना चाहिए

यदि कोई ऐसे आरोपी की बात या वक्तव्य का समर्थन करता है जिस पर अदालत की अवमानना
का मामला चल रहा हो तो क्या वह भी अदालत की अवमानना की श्रेणी में आएगा?

क्या आपराधिक अवमानना (criminal defamation) के प्रवाधानों को खत्म कर दिया जाना

चाहिए?

May 23, 2018

The contempt law in India is governed by the Contempt of Courts Act, 1971 .
The Act defines civil contempt as 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. . Section 2(b) of the 1971 Act not only
encompasses willful disobedience to any judgment, decree, direction, order etc.
of a court, it also takes in its fold a willful breach of an undertaking given to a
court.
The Act empowers the Court to punish acts of contempt. The Supreme Court
and High Courts by virtue of being courts of record, have the inherent
jurisdiction to punish for contempt of court and the Contempt of Courts Act,
1971.

Some important decisions on Contempt Law are illustrated below to render a

holistic understanding of the subject:

Meaning of Willful Disobedience u/Section 2(b) of Contempt

of Courts Act, 1971
Ashok Paper Kamgar Union and Ors. vs Dharam Godha And Ors.[1] – In
this case, the Supreme Court examined the provision of Section 2(b) of
the Contempt of Courts Act, 1971 that defines the term civil contempt and held
that the term ‘Willful’ 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.
It signifies a deliberate action done with evil intent or with a bad motive or
purpose. 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
for its compliance. This has to be judged having regard to the facts and
circumstances of each case.
Willful Breach of Undertaking is a Civil Contempt
Balasubramaniyam v. P. Janakaraju & Anr.[2]– In this case, the High
Court of Karnataka observed that the orders of Courts have to be obeyed
unless and until they are set aside in appeal/revision.
While elucidating on the principles relating to contempt law the Court
remarked that the definition of Civil Contempt includes willful 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 willfully. No litigant can be allowed to wriggle away from a solemn
undertaking given to the Court, as it will open dangerous trends and defeat the
very purpose of giving undertakings to Court.
It was further 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. The breach of solemn undertaking given to a Court is a
serious matter and will have to be dealt with seriously.

Court’s Constitutional Right to Punish for Contempt

Bar Association vs. Union of India & Anr.[3]– In this case, the Supreme
Court dwelled into the constitutional powers vested in it 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 held as
follows:-
The Apex Court while examining this power 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.
Sudhakar Prasad vs. Govt. of A.P. and Ors.[4] – In this case also 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.
That the provisions of the Contempt of Courts Act, 1971 are in addition to and
not in derogation of Articles 129 and 215 of the Constitution. The provisions
of Contempt of Courts Act, 1971 cannot be used for limiting or regulating the
exercise of jurisdiction contemplated by the said two Articles.
Here 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.

Violation of Undertaking/Consent Terms is Contempt

Rama Narang vs. Ramesh Narang and Anr.[5]– In this case, the
respondent argued relating to the maintainability of the contempt petition filed
by the petitioner before Supreme Court by taking a plea that the consent order
recorded before the court did not contain an undertaking or an injunction of the
court and hence could not form the basis of any proceedings for contempt.
The Supreme Court in the aforesaid case 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 Section 2(b) of the Contempt of Courts Act,
1971.
Contempt Jurisdiction cannot be used to enforce a Decree
Passed in a Civil Suit
Kanwar Singh Saini v. High Court of Delhi[6] – In the case the Supreme
Court 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 had to contempt proceedings, by invoking Order XXXIX Rule 2A of the
CPC, 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.
D.N. Taneja vs. Bhajan Lal[7] – In this case 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. After furnishing the said
information, he may assist the court but at the end of the day, there are only
two parties in such proceedings, the court and the contemnor.

The story so far: Contempt of court, as a concept that seeks to protect

judicial institutions from motivated attacks and unwarranted criticism, and as
a legal mechanism to punish those who lower its authority, is back in the
news in India. This follows the initiation of contempt proceedings by the
Supreme Court of India, on its own motion, against advocate-activist
Prashant Bhushan.

How did the concept of contempt come into being?

The concept of contempt of court is several centuries old. In England, it is a
common law principle that seeks to protect the judicial power of the king,
initially exercised by himself, and later by a panel of judges who acted in his
name. Violation of the judges’ orders was considered an affront to the king
himself. Over time, any kind of disobedience to judges, or obstruction of the
implementation of their directives, or comments and actions that showed
disrespect towards them came to be punishable.

Comment | The chilling effect of criminal contempt

What is the statutory basis for contempt of court?

There were pre-Independence laws of contempt in India. Besides the early
High Courts, the courts of some princely states also had such laws. When the
Constitution was adopted, contempt of court was made one of the restrictions
on freedom of speech and expression. Separately, Article 129 of the
Constitution conferred on the Supreme Court the power to punish contempt of
itself. Article 215 conferred a corresponding power on the High Courts. The
Contempt of Courts Act, 1971, gives statutory backing to the idea.

What are the kinds of contempt of court?

The law codifying contempt classifies it as civil and criminal. Civil contempt
is fairly simple. It is committed when someone wilfully disobeys a court
order, or wilfully breaches an undertaking given to court. Criminal contempt
is more complex. It consists of three forms: (a) words, written or spoken,
signs and actions that “scandalise” or “tend to scandalise” or “lower” or
“tends to lower” the authority of any court (b) prejudices or interferes with
any judicial proceeding and (c) interferes with or obstructs the administration
of justice.

Also read | N. Ram, Arun Shourie and Prashant Bhushan move Supreme
Court against Contempt of Court Act

Making allegations against the judiciary or individual judges, attributing

motives to judgments and judicial functioning and any scurrilous attack on
the conduct of judges are normally considered matters that scandalise the
judiciary. The rationale for this provision is that courts must be protected
from tendentious attacks that lower its authority, defame its public image and
make the public lose faith in its impartiality.
 The punishment for contempt of court is simple imprisonment for a term up
to six months and/or a fine of up to ₹. 2,000.

What is not contempt of court?

Fair and accurate reporting of judicial proceedings will not amount to
contempt of court. Nor is any fair criticism on the merits of a judicial order
after a case is heard and disposed of.

Also read | Reviewing the Contempt of Courts Act

Is truth a defence against a contempt charge?

For many years, truth was seldom considered a defence against a charge of
contempt. There was an impression that the judiciary tended to hide any
misconduct among its individual members in the name of protecting the
image of the institution. The Act was amended in 2006 to introduce truth as a
valid defence, if it was in public interest and was invoked in a bona
fide manner.

The Spycatcher case

Explaining the law on the issue, Gupta referred to the aftermath of the
Spycatcher case adjudicated by the House of Lords in
1987. Spycatcher: The Candid Autobiography of a Senior Intelligence
Officer was written by Peter Wright, who worked for Britain’s MI5
intelligence service from 1955 to 1976.

While initially injunctions were issued against the book, co-authored

by Paul Greengrass, these were reversed after the Observer Media
Group published excerpts from the book. But the court held it liable
for the profits it made through the publication. 
After this judgment, British newspaper Daily Mirror published an
upside-down picture of three law lords with the caption, “You Old
Fools”. However, British judge Lord Sydney Templeman refused to
initiate contempt proceedings and said he was indeed old and whether
he was a fool was a matter of perception, though he personally thought
he was not one. 

Referring to this case, Gupta said that British judges take a “very
liberal view” of the contempt law.