CHAPTER-IY

CONSTITUTIONAL. PROVISIONS
REGARDING CONTEMPT OF
COURTS
 CHAPTER-IV
CONSTITUTIONAL PROVISIONS REGARDING
CONTEMPT OF COURTS

4.1 Introduction
The Supreme Court it not only the highest Court of record, but under

various provisions of the Constitution, is also charged with the duties and

responsibilities of correcting the lower courts and tribunals and of protecting

them from those whose misconduct tends to prevent the due protection them

from those whose misconduct tends to prevent the due performance of their

duties. The latter functions and powers of Apex Court are independent of

Article 129 of the Constitution. When, therefore, Article 129 vests Apex Court

with the powers of the court of record including the power to punish for

contempt of itself, it vests such powers in Apex Court in its capacity as the

highest court of record and also as a court charged with the appellate and

superintending powers over the lower courts and tribunal as detailed in the

Constitution. To discharge its obligation as the custodian of the administration

of justice in the country and as the highest court imbued with supervisory and

appellate jurisdiction over all the lower courts and tribunals, it is inherently

deemed to have been entrusted with the power to see that the stream of justice

in the country remains pure, that its course is not hindered or obstructed in any

manner, that justice is delivered without fear or favour and for that purpose all

the courts and tribunals are protected while discharging their legitimate duties.

To discharge this obligation, Apex Court has to take cognizance of the

deviation from the path of justice in the tribunals of the land, and also of

attempts to cause such deviations and obstruct the course of justice. To hold
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otherwise would mean that although Apex Court it charged with the duties and

responsibilities enumerated in the Constitution, it is not equipped with the

power to discharge them.1

“An advocate is at liberty, when addressing the Court in regular course,

to combat and contest strongly any adverse views of the Judge or judges

expressed on the case during its argument, to object to and protest against any

course which the Judge may take and which the advocate thinks irregular or

detrimental to the interests of his client, and to caution juries against ay

interference by the Judge with their function, or with the Advocate when

addressing them or against any strong view adverse to his client expressed by

the presiding Judge upon the facts of case before the verdict of the jury

thereon. An advocate ought to be allowed freedom and latitude both in speech

and in the conduct of his client’s case, it is said that a Scotch advocate was

arguing before a Court in Scotland, when one of the Judges, not liking his

manner, said to him, “It seems to me, Mr. Blank, that you are endeavouring in

every way to show your contempt for the Court.” “No,” was the quick
rejoinder, “I am endeavouring in every way to conceal it.”2

Thus the Supreme Court and High Court being Courts of Record have

power to punish for contempt of courts

Supreme Court as Court of Record

Article 129. Supreme Court to be a Court of Record:- This Supreme

Court shall be a Court of Record and shall have all the powers of such a court
including the power to punish for contempt of itself.
Supreme Court and High Court: Power to punish for Contempt:- Prior to

the enactment of the Contempt of Court Act, 1971 it was held that the High

1 In re, Vinay Chandra Mishra, A.I.R. 1995 S.C. 2348 at pp. 2357, 2358 (F.B.).
2 Extract from Oswald’s Contempt of Court, 3rd Edition, by Robertson.
 229 . '

Court has inherent power to deal with the contempt of itself summarily and to

adopt its own procedure, provided that it gives a fair and reasonable

opportunity to the contemnor to defend himself. But the procedure has now

been laid down under Section 15 of the Act in exercise of the power conferred

by Entry 14, List III of the Seventh schedule of the Constitution. Though the

contempt jurisdiction of the Supreme Court and the High Court can be

regulated by legislation by the appropriate legislature under Entry 77 of List I

and Entry 14 of List III in exercise of which the Parliament has enacted the

Act of 1971, the contempt jurisdiction of the Supreme Court and the High

Court is given a constitutional foundation by declaring to the “Courts of

Record” under Arts. 129 and 215 of the Constitution and, therefore, the

inherent power of the Supreme Court and the High Court cannot be taken

away by any legislation short of Constitutional Amendment. The Supreme

Court in Sukhdev Singh Sodhi3 observed that so far as contempt of the High

Court itself is concerned, as distinct from one of a subordinate Court, the

Constitution vests these rights in every High Court, so no Act of a legislature

could take away the jurisdiction and confer it afresh by virtue of its on

authority. It was held that thd High Court can deal with it summarily and adopt

its own procedure. All that is:necessary is that the procedure is fair and that the

contemnor is made aware of the charge against him and given a fair and

reasonable opportunity to defend himself.

Article 215 declares that every High Court shall be Court of Record

and shall have all the power to punish for contempt of itself. Whether Art. 215

declares the power of the High Court already existing in it by reason of its

being a Court of Record, or whether the Article confers the power as inherent
---------- -----------------j
3
AIR 1954 SC 186 : 1954 SCR 454.
 230

in a Court of Record, the jurisdiction is a special one, not arising or derived

from the Contempt of Court Art, 1952 and therefore, not within the purview of
either the Penal code or the Code of Criminal Procedure.4

Article 129 provides that the Supreme Court shall be Court of Record

and shall have all the powers of such a Court including the power to punish for

contempt of itself. Article 215 contains similar provisions in respect of a High

Court. Both the Supreme Court as well as the High Courts are Courts of

Record having powers to punish for contempt including the power to punish

for contempt of itself.5

The power of the Supreme Court: and the High Court under Art. 129

and Ait. 215 respectively cannot be restricted and trammeled by any ordinaiy

legislation including the provisions of the Contempt of Court Act and their

inherent power is elastic, unfettered and not subjected to any limitation. The

constitutionally vested right cannot be abridged by any legislation or abrogated

or cut down. Nor they can be controlled or limited by any statute or by any
provisions of the Code of Criminal Procedure or any Rules.6

Justice Chinnappa Reddy in advocate General, Bihar,7 observed:

“The Court has duty to protect the interest of the public in due

administration of justice and, so it is entrusted with the power to

commit for Contempt of Court, not in order to protect the

dignity of the Court against insult or injury as the expression

“Contempt of Court” may seem to suggest, but to protect and to

vindicate the right of the public that the administration of justice

R.L. Kapur, 1972 (1) SCC 651 AIR 1972 SC 858.

Delhi Judicial Service Association, 1991 AIR SC W 2419.
D. N Taneja, 1988 (3) SCR 888 (1988) 3 SCC 26.
1980 (3) SCC 311 AIR 1980 SC 946.
 231

shall not be prevented, prejudiced, obstructed or interfered

with.” i , |
Justice Chinnappa Reddy in Advocate General, Bihar* observed:

4.2 Broad Principles Relating to Criminal Contempts

Justice Krishna Iyer, in Re, S. Mulgaokar laid on broad guidelines for

•j

taking punitive action in matter of contempt of court. In this case89 a

newspaper published an article on a supposed code of judicial ethics. It was

wrongly assumed that the code was drafted by the Judges of the Supreme

Court. What happened was that the then Chief Justice of India addressed a

letter to the Chief Justices of the 'High Courts, Suggesting a meeting for

drafting such a code, in order to prevent lapses from the path of rectitude. The

Supreme Court, while dropping the contempt proceedings, laid down the

following principles: ' 1

(i) The first principle' is a wise economy in the use by the Court of its

contempt jurisdibtion. In Regina : v. Metropolitan 1Police

Commissioner10, Lord Denning observed “Let me say at once we

will never use that jurisdiction as a means to uphold our own

dignity that must rest on surer foundations. Neither will we use it to

suppress those who speak against us. We do not fear criticism nor

do we resent it. For there is something 'far more important at stake.

It is no less than the freedom of speech itself. But the Court’ should

act with seriousness and severity when justice is jeopardized by a

gross unfounded attack on Judges, if the attack is calculated to

obstruct the judicial process.

8 1980(3) SCC 311 AIR 1980 SC 946.

9 AIR 1978 SC 727 : 1978 (3) SCR 162 : 1978 SCC (Cr.) 403 : 1978 (3) SCC 339.
10 1968 (2) WLR 1204.
 232

(ii) The second principle is to harmonise the constitutional value of free

criticism and the need for a fearless curial process, and its presiding
functionary, the judge. Reliance was placed on R. v. Brett11, where

the judges were criticized as being out of touch with the people and

that the judiciary as an institution, forming an integral part of the

machinery of the state; but no action for contempt was taken.

(iii) The confusion between personal protection of a libeled Judge and

the prevention of obstruction of public justice should be avoided

since, only the latter is contempt, because of the community’s

confidence in that process;

(iv) The Fourth Estate should be given free play within reasonable and

responsible limits even when the focus of its critical attention is the

Court, including the Supreme Court, since it is a necessary

instrumentality in establishing and strengthening democracy.

(v) Judges should not be hypersensitive even where distortions and

criticisms overstep the limits. They should deflate vulgar

denunciation by dignified bearing and condescending indifference

and always treading the path of judicial rectitude;

(vi) If the Court considers the attack on the Judge scurrilous, offensive,

intimiditory or malicious beyond condonable limits the strong arm

of law must strike a blow on him who challenges the supremacy of

the Rule of Law by fouling its source and stream. Justice fails when

judges quail.

(vii) The law relating to contempt of court has to come within the

expression “reasonable restrictions” in the interest of public. Under

II
1950 WLR226.
 233

Art. 19(2) of the Constitution. Unlike the Phillimore Committee’s

Report in the U.KJ that the defence of public interest is not open to

the contemnor. ■ . ;

(viii) The contempt power is discretionary and its existence does not

oblige the Court to exercise it.

It is well established that it is not necessary to prove affirmatively that

there has been an actual interference with the administration of justice by

reason of such defamatory statement; it is enough if it is likely, or tends in any

1 'y
way, to interfere with the proper administration of law.

While inflicting punishment of two months simple imprisonment on the

petitioner who made wild allegations against the Chief Justice of the High
Court at Bombay in the SLP petition, the Supreme Court in Ashram M. Jain13

observed: 1 1

“The strains and mortification of litigation cannot be allowed to

lead litigants to tumish, terrorise and destroy the system of

administration of justice by vilification of Judges. It is not he

Judges vlfio need to be protected; Judges may well take care of

themselves. It is the fight and interest of the public in the due

administration ofjusti'ce that has to be protected.” !

The High Court without accepting the; apology tendered by the

contemnor, a practicing advocate, sentenced him with the fine of Rs. 1000 for

making derogatory remarks against the Subordinate Judge, the Supreme Court
in M.B. Singh,14 observed that the tendency of maligning the reputation of the

judicial officer by disgruntled elements who fail to secure the desired order is

12
Brahma Prakash, 1953 SCR 1169 AIR 1954 SC 10.
13
AIR 1983 SC 1151. ■ i
14
AIR 1991 SC 1834 : (1991) 3 SCC 600.
 234

ever on the increase and it is high time that is is nipped in the bud. When a

member of the profession resorts to such cheap gimmicks with a view to

browbeating the Judge into submission, it }s all the.more painful. The painful

job has to be performed to uphold the honour and dignity of the individual

judge and his office and the prestige of the institution.

In matter of contempt proceedings the High Court and the Supreme

Court has to follow the summary procedure. Where the contemnor has been

served with a notice of contempt and thereafter permitted to go through the

records and finally has been afforded a fair opportunity of putting forth his

explanation for the charge leveled against him it could not be said that the

order holding him guilty of committing contempt is vitiated by procedural

irregularities.

Where an advocate practicing in the High Court after having failed to

wrench a decision in his favour in his own cause which he prosecuted as party

in person has escalatingly scandalized the Court by making libelous

allegations against the sitting Judges of the High Court which are scurrilous,

highly offensive, vicious and intimidatory, malicious and beyond condonable

limits the same amounts to a flagrant onslaught on the independence of the

judiciary, destruction of the orderly administration of justice and challenge to

the supremacy of the Rule of law. The Advocate was sentenced to two months
imprisonment.15

4.3 Contempt of Court and Power of Supreme Court

Article 129 provides that the Supreme Court shall be a Court of Record

and shall have all the powers of such a Court including the power to punish for

contempt of itself. Article 215 contains similar provisions in respect of High

15 Pritam Pal, 1992 AIR SCW 681 AIR 1992 SC 904.

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Court. Both the Supreme Court as well as the High Courts are Courts of

Record having power to punish for contempt including the power to punish for
j
contempt of itself. The Constitution does not define “Court of Record”. This

expression is well recognized injudicial world. ;

In Jowitt’s Dictionary of English Law, “Court of Record” is defined as:

“A Court whereof the acts and judicial proceedings are enrolled for a

perpetual memorial and testimony, and which has power to fine and

imprison for contempt of its authority.”

In Warton’s Law Lexicon, “Court of Record” is defined as:

“Court are either of records where their acts and judicial proceedings

are enrolled for a perpetual memorial and testimony and they have
power to fine and imprison; or not of record being Courts of inferior

dignity, and in a less proper sense the King’s Court-and these are not

entrusted by law with any power to fine and imprison the subject of the

realm, unless by the Express provision of some Act of Parliament.

These proceedings are no enrolled or recorded.”

The Supreme Court initiated the contempt proceedings against the

police officials for interfering with the administration of justice over the
incident of arrest, assault and handcuffing of the Chief Judicial Magistrate.16 It

was held that the Central Legislature has no legislative competence to abridge

or extinguish the jurisdiction or the power conferred on the Supreme Court

under Art. 129 of the Constitution. The Parliament’s power to legislate in

relation to the law of contempt relating to the Supreme Court is limited,

therefore, the Contempt of Courts Act does not impinge upon the Supreme

Delhi Judicial service Association, 1991 (4) SCC 406 SCC 406 AIR 1991 SC 2176.
 236

Court’s power with regard to the contempt of the Subordinate Courts under

Art. 129.

Entry 77 List I of the Seventh Schedule read with Art. 246 confers

power on the Parliament to enact law with respect to the constitution,

organization, jurisdiction and the power of the Supreme Court including the

contempt of the Supreme Court. The Parliament is thus competent to enact law

relating to the powers of the Supreme Court with regard to the contempt of

itself. Such a law may prescribe the procedure to be followed and it may also

prescribe the maximum punishment which could be awarded and it may

provide for appeal and other matters.

There is no provision in the Contempt of Courts Act, 1971 curtailing

the Supreme Court’s power with regard to the contempt of the Subordinate

Courts, Section 15 on the other hand expressly refers to the Supreme Court’s

power of taking action for the contempt of the Subordinate Court.

While construing Art. 129, it is not permissible to ignore the

significance and impact of the inclusive power conferred on the Supreme

Court. Since the Supreme Court is designated by the Constitution as a Court of

Record and as the founding fathers were aware that a superior Court of Record

had the inherent power to indict a person for the contempt of itself as well as

the Courts inferior to it, the expression “including” was deliberately inserted in

Art. 129. Article 129 recognized the existing inherent power of a Court of

Record in its full plenitude including the power to punish for the contempt of

the inferior Courts, if Art. 129 is susceptible to two interpretations, the

interpretation which would preserve the inherent jurisdiction of the Supreme

Court, being the superior Court of Record, can be accepted to safeguard and

protect the subordinate judiciary, which forms the very backbone of the
 237

administration of justice. The Subordinate Courts administers justice at the

! \
grass root level, their protection is necessary to preserve the confidence of the

people in the efficacy of the i Courts and to ensure unsullied flow of justice at

its base level.

The Supreme Court has the appellate jurisdiction under Section 19 of

the Contempt of Court Act, but that does not divest it of its inherent power

under Art. 129 of the Constitution. The conferment of appellate power on the

Court by a statute does not and cannot affect the width and amplitude of

inherent powers of the Supreme Court under Art. 129 of the Constitution. The

plea that the Supreme Court has no isupervisory jurisdiction over the High

Courts or other Subordinate Courts, and therefore, it does not possess powers

which the High Courts have under Art. 215 is misconceived. Since the

Supreme Court has the power of judicial superintendence and control over all

the Courts and Tribunals functioning in the entire territory of the country, it

has a corresponding duty to protect and safeguard the interest of the inferior

Courts to ensure the flow of stream of justice in the Courts without any

interference from any quarter. 1

Contempt of High Court and Power of Supreme Court to take

Cognizance and punish:— Article 129 declares the Supreme Court a Court of

Record and it further provides that the Supreme Court shall have all the

powers of such a Court including the power to punish for the contempt of

itself. The expression used in Art. 129 is not restrictive instead it is extensive

in nature. If the framer of the Constitution intended that the Supreme Court

shall have the power to punish for contempt of itself only, there was no

necessity of inserting the expression “including the power to punish for

contempt of itself. The Article confers powers on the Supreme Court to

I i
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punish for the contempt of itself and in addition, it confers some additional

powers relating to the contempt as would appear from the expression

‘including’.
In the Delhi Judicial Service Association,17 the Supreme Court while

construing Art. 129 held that it is not p^ripissible to ignore significance and

impact of the inclusive powers conferred on the Supreme Court. Since the

Supreme Court has been designated as the Court of Record and as superior

Court of Record it has inherent power to indict a person for the contempt of

itself as well as courts inferior to it.

The Supreme Court has to take cognizance of the deviation from the

path of justice in the tribunals of the land and also of the attempts to cause

such deviation and obstruct the course of justice. To hold otherwise would

mean that the Supreme Court is not equipped with the power to discharge its

constitutional duties. The Supreme Court: can take cognizance of the contempt
of the High Court and punish the contemnor.18

4.4 Abuse of Process of Court Criminal Contempt

In Advocate General, state of Bihar v. Madhya Pradesh Khair

Industries}9 The respondent was moving application after application and

obtained orders of stay of proceedings in order after order in a writ petition

filed before a single Judge of a High Court. The Supreme Court held:

(i) None of the applications is bone fide but an abuse of the process of

the Court. They were intended only for obstructing the due process

of the proceedings in a money suit in the lower court. Therefore, it

17
1991 AIR SCW 2419 : (1991)4 SCC 406.
18
Re: Vinay Ch. Mishra, 1995 (2) SCC 584 AIR 1995 SC 2348.
19
AIR 1980 SC 946 : 1980 (2) SCR 1172 : 1980 Cr. LJ 684 : 1980 (3) SCC 311 1980 SCC
(Cr.) 688 : 1980 Cr. LR 260 & 715 SC : 1980 UJ474.
 ■ 239 •

i ■

was a case of obstructing the administration of Justice and hence the

respondents were guilty of contempt of Court.

i

(ii) Deceiving the Cpurt or the Court’s officers, by intentionally

suppressing facts or placing false material before the Court, would

constitute contempt. .

(iii) Each application was daring raid, and hence, even though the

respondents tendered unconditional apology, the respondents

deserved punishment for their reprehensible conduct.

(iv) The public have an interest, an abiding and real interest and vital

stake1 in the effective arid orderly administration of justice, as,

unless justice is so administered there' is a peril to all rights and

liberties perishing! Law should not be seen to sit by limply, while

those' who defy it: go free and those who seek its protection lose

hope. :

(v) Every abuse of the process of the Court would not constitute a

criminal contempt of court, but if it is calculated to obstruct the

course of a judicial proceeding or the’administration of justice, it

would amount to 'criminal contempt. It may be that certain minor

abuses of the process of the Court may be suitably dealt with

between the parties by striking out pleadings under the prdvisions

of Order VI, Rule 16, or in some other manner. But, on the other

hand it may be necessary to punish as contempt of court a Conduct

which abuses and makes a mockery of the judicial process and

which thus extends its pernicious influence beyond the parties to the

action and affects the interest of the public in the administration of

Justice {para 38 of the Halsbury’s Laws England 4th Edition, Vol.
 240

9}. The Court has a duty of protecting the interest of the public in

the due administration of justice, and so, it is entrusted with the

power to commit for contempt of court, not in order to protect the

dignity of the Court may seem to suggest, but to protect and

vindicate the right of the public that the administration of justice

shall not be prevented, prejudiced obstructed or interfered with.

4.5 Scurrilous Attack Against Judges - Criminal Contempt

In C.K. Daphtary v. O.P. Gupta20, the respondent was District Judge

and he was dismissed by the State Government. The High Court set aside the

dismissal, but in appeal the Supreme Court of India confirmed the dismissal.

Presumably infuriated by this, the respondent published a pamphlet against

one of the Judges containing scurrilous matter against the Judge, that the

judgment was full of errors of fact and circulated the pamphlet to members of

Parliament suggesting impeachment of the learned Judge and also discussed

the matter in the Supreme Court Bar Association. The petitioner, President of

the Bar Association, moved the Supreme Court for taking action for contempt

of Court against the respondent. Holding the respondent guilty of contempt of

Court, the Supreme Court held:

(i) A scurrilous attack on a Judge in relation to a judgment to his or his

past conduct has an adverse effect on the administration of justice,

because, in our country it will have the inevitable effect of

undermining the confidence of the public in the judiciary and if

confidence in the judiciary goes, there is an end to the

administration of justice;

20 AIR 1971 SC 1132 : 1971 SCR (Supp.) 76 : 1971(1) SCC 626 : 1971 Cr. LJ 844 : 1971
SCC (Cr.) 286.
 241

(ii) An allegation that: one of the Judges hearing the case toed the line

and surrendered his own judgment to the. other learned Judge,

amounts to flagrant contempt. The statement was obviously made to

bring the alleged conduct of the Judge under “misbehaviour’’ in Art.

24(4); |

(iii) If a judgment is criticized as full of errors due to the dishonesty of

the Judge it is contempt. It will not be open to the contemnor to

show that there were errors, once dishonesty is attributed. If

evidence is allowed to justify such allegations it will encourage

frustrated litigants to abuse the Judge. ■ '

(iv) In matters of contbmpt the Court can adopt its own procedure. All

that is required is that it should be fair. Contempt action can be

taken suo motu by the Court or at the instance of the Attorney

General or Advocate General. Therefore, the Court can entertain a

petition at the instance of the bar association which is: vitally

interested in the rhaintenance of the dignity of the Court and the

administration of justice. 1

(v) An apology must be sincere and not cdnditional especially when it

is coupled with fresh averments.
(vi) Article 129 emphasises that the power to commit for contempt of
court exists in a Court of Record. Assuming it has to satisfy the
requirement of the restriction on freedom of speech being
i )

reasonable, the existing law in the 1952 Act only imposes

i

reasonable restrictions.
(vii) Delay in taking action for contempt is not fatal. [But under sec. 20
■ i • •
of the 1971 Act, a period of limitation of one year is provided for

taking action for contempt] .

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(viii) If a person circulates pamphlets containing matters which amount to

contempt of court, he is also guilty of committing contempt of

Court.

(ix) The words used in the pamphlet must be given their plain meaning.

There can be no more flagrant contempt than to say that a Judge

“toed the line of another judge” i.e., he surrendered his own

judgment to the dictation of another or in deference to another.

(x) The contempt alleged should be precise.

(xi) Merely because other persons have not been impleaded as

contemnors does not exonerate the person actually impleaded any

the less guilty.

Allegation Against Judge - Contempt of CourtArticle 129 shows that the

Supreme Court has all the power of a Court of Record, including the power to

punish for contempt of itself, and Art. 142(2) goes further and enable the

Supreme Court to investigate any contempt of the Supreme Court.

Every criticism is not contempt. One of the test to ascertain whether the

criticism is calculated to interfere with the due course of justice or power

administration of law; whether it tends to create distrust in the popular mind

and impair confidence of the people in the Court of Law. These tests have

been the part of the meaning of the expression contempt of Court from before

the Constitution and are still a part of its meaning - a meaning which the

framer of the Constitution must have known when they used the expression.21

The law of contempt as laid down by the British and Indian Courts

imposes reasonable restrictions on the exercise of the right of freedom of

21 B.B. Das Gupta. AIR 1954 Pat. 203 ; (1953) ILR 32 (Pat.) ; Brahma Prakash Sharma,
AIR 1954 Sc 10 (1953) SCR 1169.
 243

speech and expression and the previous laws continues to be in force even
f

after the amendment of the Article 19(2) of the Constitution. The conditions in

India are different from those prevailing in America. The language of our-

Constitution requires us to see (after the amendment of Art. 19) whether the

restrictions are reasonable.22 i

The freedom of speech and expression including the freedom of the

press is subject to the reasonable restriction of the law of contempt, is borne

out by Clause (2) of Article T9 of the Constitution. The Judges by reason of

their office are precluded from entering into any controversy in the columns of

the public press, nor can enter the arena and do battle upon equal terms in
newspapers as can be done by ordinary citizens.23 !

Newspaper published Articles scandalizing the High Court and the

Chief Justice in his administration thereof, by allegations implying that the

Chief Justice had constituted a packed Bench. It was held that the Article
constituted contempt of Court.24 An Article which would leave on the mind of

an ordinary reader the clear impression that the injustice ad been deliberately

done on political grounds to some of the accused who are apparently innocent.

The Article attributes to judicial dishonesty to the Judges and publication of

such Article constitutes a contempt of Court.25

The Full Bench of the Lahore High Court in K.L. Gauba,26 observed

that the book published by an advocate of the High Court contained most

scandalous allegations of improper and even corrupt motives against Judges of

the Court. Held' it was deliberately calculated to interfere with and bring into
i . • . i

22 Lakhan Singh, AIR 1953 All 342: (1953) ILRl All. 796.
23 Vikar Ahmed, AIR 1954 Hyd. 175: (1954) ILRHyd. 270.
24 Moti Lai Ghosh, AIR 1918 Cal. 1988 : (1918) ILR45 (Cal.).
25 Marmadule Pickhall AIR 1923 Bom. 8.
26 AIR 1942 Lah. 105 (FB) : (1942) ILR 23 Lah. 411
 244

contempt the administration of justice in this province and to lower the

prestige of the Court. It was a clear case of contempt of Court. In Tushar Kanti

Ghosh,27 the Full Bench of the High Court disallowed the advocate’s

application to examine the witnesses in defence. It was held in Sukhdev Singh

Sodhi,28 that the Code of Criminal Procedure does not apply in matters of

contempt triable by the High Court. The High Court can deal with it

summarily and adopt its own procedure. All that is necessary is that the

procedure is fair and that the contemnor is made aware of the charges against

him and given a fair and reasonable opportunity to defend himself.

The fact that the booklet was printed for the use the members of

Parliament only as draft of proposed impeachment motion would not absolve

the contemnor when its circulation by him in public at large was proved and

there was no proof that the booklet was published under the authority of the

Parliament. Publication and circulation of a booklet in public containing

allegations that the Judge has made up his mind about the decision of a case

and manipulated to get the erroneous judgment delivered from another judge

of the Bench and controlled the hearing was thus ascribing dishonesty to the

Judge and the charge of contempt is established against the publisher of the

Article. The Court is not required to draw up formal charge against the

contemnor. The Supreme Court imposed sentence of simple imprisonment of

two months on the advocate of the Supreme Court for gross contempt of the

Court. The Court directed the arrest of the contemnor and he be committed to
civil prison for two month.29

AIR 1935 Cal. 419.

AIR 1954 SC 186 : 1954 SCR 454.
O.P. Gupta, AIR 1971 SC 1132.
 245

4.6 Professional Misconduct of Advocate - Contempt of Court

i -
Section 10 of the Contempt of Courts Act. 1971 like Section 2 of the 1926

Act and Section 4 of the 1952 Act recognizes the power which a High Court

already has, as a Court of Record for punishing for the contempt of itself,

which jurisdiction now has the sanction of the Constitution also by virtue of

Art. 215. The Act however does not deal with the power of the Supreme Court

to try or punish a contemnor for committing the contempt of the Supreme

Court or the Court subordinate to it and the constitutional provisions contained

in Art. 142(2) and Art. 129 alone deals with the subject.

Articles 129 and 2151 preserves all the powers of the Supreme Court

and the High Court respectively as a Court of Record which included the
power to punish the contempt of itself. As pointed out Mohd. Ikram Hussain30

there is no curb on the power of the High Court to punish for contempt of itself

except those contained in the Contempt of Courts Act. Articles 129 and 215

does not define as to what constitutes contempt’s of Court. The Parliament has

by virtue of the entries in List I and List III of the Seventh Schedule, pbwer to

define and limit the powers of the Courts in punishing the contempt of Court
and to regulate their provision in relation thereto.31'
I
4.7 Notice by Advocate to Judge Containing Scurrilous Allegations

-Criminal Contempt 1

In L.D. Jaikwal v. State of U.P.32, after the conclusion of a trial in

which the accused, for whom he was appearing, was convicted, the advocate
filed an application before the Court in which it' was stated, I am making a
complaint against you to the highest authorities in the country, that you are

30
AIR 1964 SC 1625. , :
31
Vinay Chandra Mishra, (1981) 1 SCC 436 : AIR 1981 SC 723.
32
AIR 1984 Sc 1374 : 1984(3) SCC 405 : 1984 (3) SCR 833 : 1984 Cr. LR 277 (SC) :
1984 Cr. LJ 993 : 1984 SCC (Cri.) 421 : 1984(1) Scale 862 : 1984 LKJ 942.

!• I 1 i
 246

corrupt and do not deserve to be retained in service. As for the quantum of

justice I will never bow down before you. You should feel ashamed of
yourself that you are contaminating the seat of justice”. The High Court found
him guilty of contempt of court under sec. 2(c)(i) and imposed a sentence of
imprisonment for one week. Dismissing his appeal, the Supreme Court held;
(i) By the very nature of his work a judge’s decision is bound to
displease one side or the other, but that should not expose him to
the risk of any resentment by the disgruntled party or his advocate
in the form of an attack on the court. That jis the reason, why the
court exercises its jurisdiction sparingly and with circuftispection
and imposes punishment only because, to adopt an attitude of
leniency in such a case would be at the cost of principle and at the
expense of the judge who has been scandalised. It is unthinkable
that a judge cannot work with fearless independence, because, a
disgruntled member of the Bar can publicly humiliate him and
disgrace him with impunity. In such a case, he cannot be allowed to
escape with the mere tendering of an apology.
(ii) An apology should not be a paper apology. Any expression of
sorrow, regret and contrition, should come from the heart and not
drizzle out of a pen. There is a whole lot of difference between
saying T am sorry’ and really feeling sorry for what has been done.
The court will not subscribe to the ‘say-sorry-and-forget’ School of
Thought in the administration of its contempt jurisdiction.
4.8 Advocate-Notice to Court Containing Scandalous Allegations -

Criminal Complaint

In Shamsher Singh Bedi v. High Court of Punjab and Haryana,33 an

advocate drafted a notice to the Magistrate. It contained remarks which were

33
AIR 1995 SC 1974 : 1995 Cr. L.J. 3627.
 247 .

i
scandalous and likely to interfere with the administration of justice.; It was

alleged that the magistrate I refused bail, not to displease the police. The

Supreme Court held that the; advocate was guilty of contempt and that it was

not necessary to prove actual interference with the administration of Justice.

That the notice was drafted on instructions and referred to the individual

magistrate only was no defence.

4.9 Advocate Using Threatening Language - Criminal Complaint

The Supreme Court in Vinay Chandra Mishra,34 found the contemnor,

an advocate, guilty of committing criminal contempt of the Court for having

interfered with and “obstructing the’ course of justice by trying to threaten,

overawe and overbear the Court by using insulting, disrespectful and

threatening language. While; awarding the punishment, keeping in view the

gravity of contemnacious conduct of the contemnor the Court awarded

suspended sentence of six nionths S. 1, to remain suspended for a period of

four years and the Court also held that the contemnor shall stand suspended

from practicing as an Advocate for a period of three years.

The Supreme Court held:

(i) Brazenness is not 'outspokenness; and arrogance is not fearlessness.

Use of intemperate language is not an assertion of right nor jis a

threat an argument. Humility and servility are not the same and

being courteous and polite is not lowering once dignity. !

(ii) An Advocate should be a gentleman, enjoying the respect of his

colleagues and th^ Court. This he can do only if the acts with self

: restraint and a respectful attitude towards the Court. He should

1995 AIR SCW 3488 : (1995)2 SCC 584.

1
 248

present the facts and law correctly, without any over Statement,

suppression or distortion.

(iii) The acts indulged in by the contemnor are all calculated to interfere

with and obstruct the course of justice. To try to overawe the Court

and prevent it from doing its duty of administering justice brings the

authority of the Court and the administration of justice into

disrespect and disrepute and undermines and erodes the very

foundation of the judiciary by shaking the confidence of the public

in the ability of the Court to deliver free, fair and impartial justice.

(iv) The foundation of a democratic society is the rule of law and the
judiciary is the guardian of the rule of law. In a democracy, were,
there is a written constitution, which is above all individuals and
institutions, where a power of judicial review is conferred on the
Supreme Court and the High Courts the judiciary has a special duty
which is additional to the ordinary duty of adjudicating on disputes.
This special duty is to see that all other bodies do not exceed the
limits of their authority. It the judiciary is to perform the duty
effectively the dignity and authority of the Court must be respected
and protected, whatever the consequences may be. Otherwise, the
constitutional structure will crumble. Any conduct which may lead
to such a situation would be treated as criminal contempt and
punished accordingly.
4.10 Scurrilous Attack by Advocate on Courts in Petitions and Affidavits

- Criminal Contempt

In Re, Ajay Kumar Pandey,35 the contemnor, an advocate, used

scurrilous language against members of the Subordinate Judiciary as well as

35
1998(7) Supreme 473.
 249

learned Judges of the High Court, in various petitions and affidavits and
i

SLP’s. In spite of time being given by the Supreme Court of India, to delete

objectionable expressions, the contemnor persisted in such language in . an

adamant and defiant attitude.:

The Supreme Court held, that an advocate has no wider protection then
!

a layman. In view of the fact that he had committed gross contempt of court, a

deterrent punishment should be imposed. Accordingly, he was sentenced to

imprisonment for 6 months and a fine of Rs. 1000/-.

Aggrieved by the direction that the contemnor shall stand suspended

from practicing as an advocate for Advocate for a period of three years issued

by the Court by invoking powers under Arts. 129 and 142 of the Constitution,

Supreme Court Bar Association filed a petition under Art. 32 for a declaration

that it is only the Bar Council which have exclusive jurisdiction to inquire into

and suspend or debar an advocate from practicing law or for professional or

other misconduct. The point for consideration before the Supreme Court was

whether the Supreme Court can while dealing with contempt proceedings in

exercise of the powers under Art. 129 and Art. 142 of the Constitution can
debar a practicing lawyer from carrying on his profession as a lawyer.36 The

Five Judges Bench held that though the power jof the Supreme Courfiis very

wide, it is yet limited and' cannot be expended to include the power to

determine whether an advocate is also guilty of “professional miscondu'ct” in a

summary manner giving a go bye to the prescribe procedure under the

Advocates Act. The Supreme Court cannot in exercise of its jurisdiction under

Act. 142 read with Art. 129 of the Constitution, while punishing a contemnor

for committing a contempt of Court, also impose a punishment for suspending

_____________________ t' i j
36
Supreme Court Bar Association, 1998(4) SCC 409 = AIR 1981 SC 723.

I
 250

his licence to practice, where the contemnor happens to be an advocate. Such

punishment cannot be imposed by taking recourse to the appellate power

under Section 38 of the Contempt of Courts Act. 1971 while dealing with a

contemnor in a contempt proceedings.

While expressly overruling the decision reported in 1995 AIR SCW

3488 (supra) the Court held that punishing a contemnor advocate, while

dealing with contempt of Court case by suspending his licence to practice, a

power otherwise statutorily available only to the Bar Council of India, on the

ground that the contemnor is also an advocate, is not permissible in exercise of

the jurisdiction under Art. 142. The construction of Art. 142 must be

functionally enforced by the statutory purposes of the Article viz., to do

complete justice between the parties.

4.11 Criticism of Judiciary by Press

When the Courts have the power to take action against a person who
does an act or publishes a writing which is calculated to bring a court or Judge
into contempt or to lower his authority or to obstruct the due course of Justice
or due administration of law. In such cases, the Court would exercise
circumspection and judicial restraint in the matter of taking action for
contempt of Court. The Court has to take into account the surrounding
circumstances and the material facts of the case and on conspectus of them to
come to the conclusion whether becausb of some contumacious conduct or
other sufficient reasons the person proceeded against should be punished for
the contempt of Court.37
In Perspective Publication Ltd.,38 the Supreme Court reviewed the

entire case law and observed as follows:

37'
Kedar Prasad Sinha, AIR 1972 SC 1515 (1518): (1972) 3 SCR 183.
3S
AIR 1971 SC 221 : (1969) 2 SCR 779.
 251

(1) It will not be right to say that committals for contempt for scandalizing

the Court have become obsolete.

(2) The summary jurisdiction by way of contempt must be exercised with

great care and caution and only when its exercise is necessary for the
: i
proper administration ,of law and justice.

(3) It is open to anyone to express fair, reasonable and legitimate criticism

of any act or conduct of a Judge in his judicial capacity or even to make

a proper and fair comment on any decision given by him because

justice is not a cloistered virtue and She must be allowed to suffer the

scrutiny and respectful, even though outspoken, comments of ordinary

men.

(4) As distinction must be made between a mere libel or defamation of a

Judge and what amounts to a contempt of Court. The test in each case

would be whether die impugned publication is a mere defamatory

attack on the Judge or whether it is calculated to interfere with the due

course of justice or the proper administration of law by the Court. It is

only in the latter case that it will be punishable as contempt.

(5) Alternatively the test1 will be whether the wrong is done to the Judge

personally or it is done to the public. To borrow from the language of

Justice Mukherjee (as he was then) Brahma Brakash Sharma’s case,39

the publication of disparaging statement will be an injury to the public

if it tends to create an1 apprehension in the mind of the people regarding

the integrity, ability,' or fairness of the judge or to deter actual and

prospective litigants from placing complete reliance upon the Court’s

39
AIR 1954 SC 10 : 1953 SCR 1169.
 252

administration of justice or if it is likely to cause embarrassment in the

mind of the Judge himself in the discharge of his judicial duties.”

Fair and temperate criticism of the Supreme Court or any other Court,

even if strong, may not be actionable, attributing improper motives, or tending

to bring the judge or the courts into hatred and contempt or obstructing

directly or indirectly with the functioning of the Courts is serious contempt of

which notice must and will be taken. Respect is expected not only from those

to whom the judgment of the Court is acceptable but also from those to whom

it is repugnant. Those who err in their criticism by indulging in vilification of

the institution of the Courts, administration of justice and the instruments

through which the administration acts, should take heed for they will act at

their own peril. The Court sounded the warning to the persons embarking on
the path of criticism.40

There are two primary considerations which should weigh with the

Court when it is called upon to exercise the summary powers in case of

contempt committed by scandalizing the Court itself. In the first place, the

reflection on the conduct or character of a Judge in reference to the discharge

of his judicial duties would not be contempt if such reflection is made in the

exercise of the right of fair and reasonable criticism which every citizen

possesses in respect of public acts done in the seat of justice. It is not by

stifling criticism that confidence in the Court can be created.41

The Supreme Court awarded quick punishment for scandalizing

publication.42

R.C. Cooper, AIR 1970 Sc 1318 : (1970) 2 SCC 298.

Brahma Prakash Sharma, AIR 1954 SC 10 : 1953 SCR 1169.
C.K. Daphtary, 1971 (1) SCC 626 AIR 1971 SC 1132.
 253

In Special Reference Case No. 1/1964,43 the Supreme Court observed

j ■ '

that the power tb punish for contempt, large as it is, must always be exercised

cautiously, wisely, and with!circumspection. Frequent and indiscriminate use

of this power in anger or irritation would not help to sustain dignity or status

of the Court, but may sometimes affect it adversely. Wise judges never forget

that the best way to sustain the dignity and status of their judgments, the

fairness and fearlessness, and objectivity of their approach, and by the

restraint, dignity and decorum which they observe in their judicial conduct.

The judiciary cannot be immune from criticism. But when the criticism

is based on obvious distortion or gross mis-statement and made in a manner

which seems designed to loWer respect for the judiciary and destroy public
! | - ; l

confidence, it cannot be ignored. It is not correct to say that the discretion

should be frequently or lightly used nor the Court should restrain from using
! i
the weapon even when its use is need. The question whether the attack is
i
malicious or ill intentioned, may be often difficult to determine yet, the
i
language in which it is made, the fairness, the factual accuracy, the logical
i4
soundness of it, the care taken in justly and properly analyzing the materials

before the maker of its, are important considerations. Moreover, in judging

; • ' i

whether it constitutes a contempt of Court or not the Court is not concerned

more with the reasonable and probable effects of what is said or written then
i

with the motives laying behind what is done. The decision on whether the
! ' i
discretion to take action for contempt of Court should be exercised in one way
. i
or the other must depend on the totality of facts and circumstances.44

43 AIR 1965 SC 745.

44 In Re : S. Mulgaokar, 1978 (3) SCC 339 = AIR 1978 SC 727. :

■ ' I I

i i
 254

4.12 Publication of a scandalous Item of News About Supreme Court

Judge without Verification - Criminal Contempt

In Re, Harijai Singh,45 a newspaper published a news item that the

Minster concerned had granted, out of his discretionary quota, petrol pump

outlets to the sons of a Supreme Court Judge. Hen notice for taking action for

contempt was issued, the editor and publisher stated that the news was

published on information furnished by a senior journalist and the journalist

stated that he got the information from a source which was highly reliable in

the past. On verification they stated that it was found to be incorrect and

therefore, they published an apology in the newspaper immediately. Further,

they also tendered an unconditioned apology in Court and expressed sincere

remorse. The Supreme Court of India, held that all that the three editor,

publisher and journalist - were guilty of contempt, because, they have acted

irresponsibly without making any attempt to verify or truth of such an item of

news which is an allegation of a very serious nature.

4.13 Police Placing False Evidence Before Court— Criminal Contempt

In Afzal v. State of Haryana46, a Superintendent of Police and his

subordinate police officials had made false statements, fabricated false records

and placed them before the Supreme Court of India. The Supreme Court found

all of them guilty of giving false evidence under Sec. 193, IPC, and also found

the superintendent guilty of contempt of Court under Art. 129, and sentenced

him to undergo 6 months R. 1.

1996(6) SCC 466 : 1996(8) JT 332 : 1996 Scale 728 : 1996(7) Supreme 293 : 1996(4)
CLT 110 (SC).
AIR 1996 SC 2326 : 1996(3) CCR 148(SC) : 1996(7) SCC 397 : 1996 Cr. LJ 1679 :
1996(1) JT 328 : 1996(1) Scale 340 : 1996 SCC (Cr.) 424 : 1996 (1) Supreme 397 :
1996(1) AD 537 (SC) : 1996(1) Crimes 59 (SC).
 255

4.14 Publication, when matter is pending in Court : Obstruction to

administration I of justice Amounting to Contempt

There are innumerable ways by which attempts can be made to hinder

or obstruct the due course of administration of justice in Courts, one type of

such interference is to be found in cases where there is an act or publication

which scandalised the Court itself. A situation of this type was considered by
the Supreme Court in Brahma Prakash,47 and the principles governing a case

of that type were discussed in details in the judgment of the Court. But in Hira

Lai Dexit,48 the Supreme Court considered whether the publication of leaflet

printed in Hindi by one of the ' appellant within the Court constituted

obstruction to justice or not. The Court held that the object of writing and

particularly publishing at the time within the Court was clearly to affect the

minds of the Judges and to Reflect them from the strict performance of their

duties. The offending passage and the time and place of publication certainly

tended to hinder or obstruct the due administration of justice and*1 was a

contempt of Court. The Supreme Court invoked the power of contempt and

directed Hira Lai Dixit to be arrested and committed to civil prison to undergo

simple imprisonment for a fortnight.

The Court delineated ;in details the power of contempt of the Supreme

Court and when the same can be invoked. It is not necessary that there should

be an actual interference with the course of administration of justice l-mt it is

enough it the offending publication is likely or if it tends in any way to

interfere with the proper administration of law. The summary jurisdiction

exercised by superior Courts: in punishing contempt’s of their authority exists

47 1953 SCR 1169 AIR 1954 SC 10. ' :

48 1955 (1) SCR 677 AIR 1954 SC 743.
I

! ! I

I
 256

for the purpose of preventing interference with the course of justice and for

maintaining the authority of law as is administered in the Court and thereby

affording protection to public interest in the purity of the administration of

Justice. This extraordinary power must be sparingly exercised but where the

public interest demands it, the Court will not shrink from exercising it and

imposing punishment even by way of imprisonment.

4.15 Newspaper Article criticizing decision of Supreme Court: Attributed

improper motives to the Judges - Criminal Contempt

The oft cited decision of the Privy Council in Andre Paul.49 Was cited

by the Supreme Court in the first reported decision after independence on the
contempt of the Supreme Court in. Aswini Kumar Ghosh.50 The Privy Council

observed:

“The path of criticism is a public way, the wrong-headed are

permitted to err therein; provided that the members of the public

abstains from imputing improper motives to those taking part in

the administration of justice and are genuinely exercising a right

of criticism and not acting in malice or attempting to impair the

administration of justice, they are immune. Justice is not a

cloistered virtue, She must be allowed to suffer the scrutiny and

respectful even though outspoken comments of ordinary

In Aswini Kumar Ghosh (supra), the Times of India in their issue dated

30-10-1952 published a leading Article under the heading ‘A disturbing

decision’ and the Article proceeded to attribute improper motives to the Judges

affecting the dignity and prestige of the Court. It was held that the Article

AIR 1936 PC 141.

AIR 1953 SC 75.
 257

transgressed the limits of fair and ‘bona fide’: criticism but had a clear

tendency to affect the dignity; and prestige of the Court. The Article in question

was thus a gross contempt of the Court. It created; an impression on the minds

of the people that the Judge in the highest court in the land acts on extraneous
i

consideration in deciding cases and the confidence of the whole community in

the administration of justice is bound to be undermined. The Supreme Court,

however, accepted the unconditional apology tendered by the respondents and

directed that the apology to be given wide publicity.

4.16 Contempt proceedings against the Editor, Times of India dropped

The show cause notide was issued to the Editor of the Times of India
on 11-01-1978 as to why the proceedings of contempt shall not be drawn up
against him under Art. 129 of the Constitution in respect of the statements
made in the news item in respect of the hebeas corpus case S. Shukla51, and the
judgment of the Supreme Court in the case, the Majority of the Judges,
considering the facts and circumstances, considered it fit case the proceeding
against the newspaper for the contempt of the Supreme Court should not be
drawn. Chief justice Beg in his minority opinion held that, if responsible daily
newspaper publishes what cduld be regarded, in addition to being defamatory
and abusive, as gross contempt of the Supreme Court for having taken; one of
the two views possible on a jquestion it must be considered whether time has
come to remind, such people ;of what the law says about it and what their duty
are to the Supreme Court, to the public, and to the individual maligned.52
4.17 Publication of False Report - Criminal Contempt

In Re- Chandigarh News line,53 a wrong news item was published that

Supreme Court of India ha'd passed a particular order, which was'totally

AIR 1976 SC 1207.

In re : Sham Lai, 1978 (2) SCC 479 AIR 1978 SC 489.
1998 (6) Sc 162.
 258

misleading. Four days later the newspaper published an apology. In contempt

proceedings, against the editor and the reporter, the contemnor admitted their

mistake and serious lapse and tendered an unconditional apology. Being

satisfied that the respondents were truly repent and the Supreme Court

dropped contempt proceedings after warring the contemnor to be more careful

in future

4.18 Publication of Article in Magazine to Improve Condition of Litigant

and Judicial System - No Criminal Contempt54

The contempt proceedings was initialed on the ground that an article

published in the said magazine in respect of administration of justice by

subordinate judiciary in U.P. However, during the said proceedings the

appellants rendered an unconditioning apology and the same was accepted by

the High Court. However, the grievance is that the High Court has made

certain observations which, if taken seriously, no newspaper were be in a

position here after even to make fair criticism regarding the functioning of the

administration of subordinate judiciary. The observations made by the High

Court do not in any manner prevent media from writing any Article making

fair criticism without undermining integrity and dignity of the Judiciary and

which are not detrimental to the cause of Judiciary as a whole.

4.19 Forging of Orders of High Court by its Employees - Criminal

Contempt
The contemnors, the employees of the High Court forged the order of
the Court to show undue favour to a group of students for helding examination
in an institution who were not otherwise eligible. The Supreme Court
sentenced the two employees of the Court to six months imprisonment.55

54
Ashwani Kumar Goel v. Anil Kumar 1994 SCC (Cri) p. 1485.
55
Re : Bineet Kumar Singh, 2001 (5) SCC 501 AIR 2001 SC 2018.
 259

4.20 Contempt of Supreme Court and High Court, power to punish

Period of limitation

The Supreme Courts and the High Courts are the Courts of Record and

the Constitution has given them the powers to punish for contempt. This

power cannot be abrogated or stultified by providing a period of limitation for

initiating the proceedings for contempt. Section 20 of the Contempt of Courts

Act, 1971 cannot restrict the power of the Supreme Court or the High Court to
punish for contempt as provided under Arts. 129 and 215 of the Constitution.56

The punishment provided by the Tribunal for violation of the injection order

by transferring property was affirmed by the Supreme Court.

4.21 Whether Speaker of Assembly is immune from punishment -

Criminal Contempt

The Power of the Supreme Court is not confined merely'to the

provisions of the Contempt of Courts Act, 1971 and the Rules framed there

under but is a plenary to punish any person for the contempt of Court, and for

that purpose to require his presence in person' in the Court. Article 129

provides that the Supreme C6urt shall be a Court of Record and shall have the

powers of such a Court including the power to punish for contempt of itself.

Art. 142 provides for enforcement of decrees and orders of the

Supreme Court and lay down that the Supreme Court shall have all and every

power to make any order for the purpose of securing the attendance of any

person, the discovery or production of any documents, or the investigation or

punishment of any contempt bf itself.

Article 144 contains the constitutional obligation of all the authorities

in the territories' of India to act in aid of the Supreme Court.

56
Pallav Singh, 2001 (7) SCC 549 AIR 2001 SC 2763.
 260

The Speaker while deciding the question of disqualification of Member

of the Legislative Assembly under the Tenth Schedule of the Constitution acts

as a statutory authority, in which capacity the Speaker’s decision is subject to

judicial review by the High Court and the Supreme Court. Inspite of the said

order by the Supreme Court Dr. H. Borobabu Singh, speaker of the Manipur

Legislative Assembly continued to resist the implementation of the said order

made by the Court. Then I. Manilal Singh, the Secretary of the Assembly who

tried to implement the order of the Supreme Court was made to undergo

voluntary retirement as he earned the displeasure of the Speaker for making

attempt to implement the order of the Supreme Court. In the motion of

contempt in I. Manilal Singh,51 the Supreme Court directed the Speaker of the

Assembly to appear in person to answer the charges of criminal contempt

committed by him by act done which was not performed as the Speaker of the

House and the only reason given by him through his counsel was that he being

the Speaker of the Assembly, was immune from the process of the Court. The

Court held that the contemnor was not immune from the process of the

Supreme Court even in a contempt proceedings when prima facie case of

criminal contempt was made out against him requiring his personal appearance

to answer the charge and be present at the hearing. The immunity given under

Art. 361 of the Constitution is not to a Speaker.

The Supreme Court directed the Government of India to produce the

contemnor, in person in the Supreme Court on the next date of hearing taking

all such steps as were necessary for the purpose including use of minimum

force which would be required for compliance of the direction of the Court.

57
1994 Supp. (1) See 718 AIR 1994 SC 505.
 261

4.22 Apology tendered not accepted, advocates sentenced to S.I.

A lawyer does not enjoy any special immunity under the Contempt of

Court Act when he is found to have committed gross misconduct by shouting

slogan in the open Court and also hurled his shoes toward the Court and

intimidated the Court to get favourable order. The Court held that the action of

the contemnor advocate was most reprehensible and has the tendency to

interfere with the administration of justice and undermine the dignity of the

Court and majesty of law. The apology tendered by the advocate was not

accepted as it did not appear to be bona fide but only made to avoid
i
punishment. The Advocate sentenced to suffer S.I. for four months.58

4.23 False report regarding death of undertrial prisoner, Supdt. of Police

; i

sentenced
■ i ! i
The show cause notice was issued to A.K. Sinha Casshyap, Supdt.

Police, Hailakandi as to why he should not be held guilty of contempt of

i . :
Court. The allegation against the contemnor is that a shocking case of police

brutality leading to the death of an undertrial prisoner was sought to be

i

covered by him by untrue and misleading report sent to the Supreme Court
i . 1

followed by a false affidavit. The Superintendent of Police in his affidavit

ignored the injuries in his report. The Supreme Court came to the conclusion
I 'I :
that the contemnor had deliberately forwarded inaccurate report misleading the

Court and had intentionally interfered with course of justice. The Supreme

Court declined to accept the apology tendered and sentenced the contemnor to

simple imprisonment for three months.59

58
ReNandLalBalwani, 1999 (2) SCG 743 AIR 1999 SC 1300.
59
The Secretary, Hailakandi Bar Association, 1996(9) SCC 75 AIR 1996 SC 1925.
 262

4.24 Power of Supreme Court to do Complete Justice

In a landmark judgment in DDA v. Skipper Construction Co. (&) Ltd.m

a builder was sentenced to jail for committing contempt of the Court and

defrauding others in deliberate disobedience of the Supreme Court’s order.

The Court held that under Arts. 129 and 142 the Court had power to make

appropriate orders to do complete justice. The respondent (Skipper

Construction Company) had purchased a plot of land in auction from Delhi

Development Authority (DDA) as he hacj offered the highest did in a sum of

Rs. 9.82 crores. The company did not pay the bid amount as per terms of the

bid and obtained extensions a number of times. When DDA started the

proceeding to cancel the bid, the Skipper went to the Court which stayed the

cancellation of the bid. DDA applied for vacating the stay but nothing

happened except repeated adjournments. Even before the permission to enter

upon the plot and make construction was granted under the revised agreement,

Skipper was selling plots to various persons and receiving monies. In 1990 the

High Court passed an order permitting Skipper to commence construction on

plots subject to deposit of more than Rs. 8 crores within one months and stop

all farther construction till the said payment was made and also provided that

in case of default in payment the licence shall stand terminated and DDA

would be entitled to re-enter the plot. Skipper availed to deposit the amount

and approached the Supreme Court by way of special leave petition. The

Supreme Court granted an interim order subject to Skipper depositing Rs. 2.5

crores within one month another sum of Rs. 2.5 crores before 8.4.91 and

expressly prohibited Skipper from inducting any person in the building and

creating any right on favour of third parties. In spite of the said prohibitory

60
(1990)24 SCC 622.
 263

orders from the Court, the respondent issued advertisement in the leading

newspapers of Delhi inviting persons to purchase the space in the proposed

building. The SLP was dismissed and where after, DDA re-entered the plot

and took possession of property along with building as provided in the orders

of the High Court. It also forfeited the amounts paid till then. But before the

said date, the Skipper had collected about rupees fourteen crores from various

parties agreeing to sell the space in the proposed building. Thereupon the

Supreme Court initiated suo motu contempt proceedings against the director of

the company Tejwant Singh and his wife and by invoking power under Arts.

129 and 142 sentenced therm to imprisonment and imposed fine on them. The

power under Aft. 142 is meant to supplement the existing legal framework to

do complete justice between parties-and not to suppliant it.

In a number of cases the Supreme Court! has exercised its power of

contempt to punish erring ; bureaucrats who were either found guilty of

disobeying certain Court’s orders for enforcing fundamental rights of citizens

or were charged with corruption. In 1995 for the first time since independence

a senior IAS officer was convicted for contempt of courts and sentenced to

imprisonment by the highest Court. Mr. A AO, Senior, IAS officer of Manipur

who was found guilty under the Prevention of Corruption Act 1947, and

Indian Penal Code for awarding a contract on exorbitant rates to a person who
was blacklisted by him.61 Similarly, a senior Haryana IPS officer M.S.

Ahlawal was sentenced to one year’s rigorous imprisonment and punishment

for criminal contempt for fabrication and forgery of document in connection

with a case of wrongful confinement of two minor boys.62 In another case a

61 The Hindustan Times, Oct. |15,1995.

62 The Hindustan Times, Jan. 19, 1996.

I
 264

senior IAS officer of Karnataka Mr. VaSudevan was sent to jail for contempt

of court.

The Court has rightly asserted that its power under Art. 129 of the

Constitution to make public servants aware of their duties and perform it in a

responsible manner and also warned them that they would be held accountable

for administrative inaction.

4.25 Like Supreme Court High Court is also Court of Record

Every High Court shall be a Court of Record and shall have all the

powers of such a Court including the power to punish for contempt of itself.

4.26 Contempt of High Court: Power tb Punish

Art. 215 of the Constitution provides that every High Court shall be a

Court of Record of the Constitution provides that every High Court shall be a

Court of Record and shall have all the power of such a Court including the

power to punish for contempt of itself. In other words, the High Court derives

its jurisdiction to punish for contempt from Art. 215 of the Constitution. When

the High Court does not impose any punishment on the alleged contemnor, the

High Court does not exercise its jurisdiction or the power to punish for the

contempt. The Jurisdiction of the High Court is to punish and when no

punishment is imposed by the High Court, it is difficult to say that the High

Court exercised its jurisdiction or power conferred on it by Art. 215 of the

Constitution.63

4.27 Contempt of subordinate Court: High Court power to punish taking

cognizance suo motu

Since Art. 215 of the Constitution states that every High Court shall be

a Court of Record and shall have all the powers of such a Court, it follows that

63 D.N. Taneja, 1988 (3) SCR 888 (1988)3 SCC 26.

 265

through that Article the Constitution preserved to the High Courts its power as

a Court of Record to punish contempt of the subordinate Court.

Art. 129 and Art. 215 preserve all the powers of the Supreme Court and

the High Court, respectively, as a Court of Record, which includes the power

to punish the contempt of itself. There is no curb on the power of the High

Court to punish for contempt of itself except those contained in the Contempt

of Court Act. Art. 129 and Ajrt. 215 do not define as to what constitutes

contempt of Court. The Parliament has enacted the Contempt of Courts Act to

define and limit the powers of the Courts it, punishing the contempt of Court

and to regulate their procedure in-relation thereto. The Court of Revenue

Record, is a Court ‘subordinate to the High Court’ within the contemplation of

Section 10 of the Act. 1

The High Court may refuse to take cognizance on its own motion on a

petition directly moved by !a private person feeling aggrieved. But if the

petitioner is a responsible member of legal profession, it may act suo motu,

more so, if the petitioner Advocate prays that the Court should act suo motu.

Harmoniously construed, Section 15(2) does not restrict the power of the High

Court to take cognizance of and punish contempt of subordinate Court, on its

own motion. However, this mode of taking suo motu cognizance of the

contempt of the subordinate Court should be resorted to sparingly in grave and

serious cases.64 ■.

4.28 Contempt proceedings1, before High Court: Special Jurisdiction, Cr.

P.C. no Bar

The power of the High Court to institute the proceedings for contempt

of Court and punish are of special jurisdiction. Art. 215 of the Constitution

64
S.K. Sarkar, 1981 (1) SCC 436 AIR 1981 SC 723.
 266

gives every High Court the right and the power to punish a contempt of itself.

Neither the Supreme Court nor any Legislature can deprive the High Court of

the power which is vested in it as a Court of Records, the Criminal Procedure

Code cannot be a bar to such proceedings and High Court can adopt its own

procedure. The Supreme Court is not competent to transfer the proceedings

from one High Court to another.65

4.29 Civil Contempt: High Court Rules providing for hearing by another

Judge, not void

Art. 215 saves the inherent power of the High Court as a Court of

Record to suitably punish the contemnor who is alleged to have committed

civil contempt of its order. Rule 4(a) of Chapter XXXV-E of the High Court

Rule which permits hearing of a petition alleging civil contempt of the order of

a Bench of the High Court by a learned Judge to whom such work is assigned

by the Chief Justice and who is other than the Judge or Judges who have

passed the concerned order, is not violative of Art. 215 of the Constitution.

The Chief Justice is empowered by Art. 255 read with Rules framed
thereunder to assign the task to other Bench.66

4.30 Contempt, advocate raising slogan scandalizing Court : Procedure

must be followed

On 15.7.94 four advocates led by Dr. L.P. Mishra entered the Lucknow
Bench of the Allahabad High Court and while the Court (Division Bench of
Justice B.M. Lai and Justice A.P. Singh) was in the midst of hearing a writ
petition raised slogan and asked the Judges to step down. The Advocate Dr. L.P;
Mishra caught hold of Justice A.P. Singh and forced the Court to rise and then
used abusive language against Justice B.M. Lai. After sometime the Court
65
Sukhdev Singh, 1954 SCR 454 AIR1954 SC 186.
66
High Court, Allahabad, 1997 (3) SCC 11 AIR 1997 SC 1186.
 267

reassembled and took a serious note of the contemptuous conduct on the part of

the advocates and in exercises of the power under Art. 215 of the Constitution

punished the advocates to one month simple imprisonment and fine of Rs. 1000
each. The Court directed the Registrar to take steps to enforce the Order.
The Advocates moved before the Supreme Court. The Supreme Court
set aside the order of sentence passed by the High Court on the ground that the
High Court held the appellant guilty of contempt of Court without following the
procedure prescribed by law. Rules 7 of the Allahabad High Court Rules, 1952

provides that the High Court should inform in writing of the contempt with which
the person concerned is charged and if the person pleads guilty, his plea shall be

recorded and the Court may, in its discretion convict him. An opportunity of
defence against the charge should be provided if the person pleads not guilty and,
if necessary, evidence should be recorded. The Court may order for punishment or

discharge the person as the case may be. The Supreme Court remanded the matter
to the High Court for reconsideration. /

4.31 High Court, correction of errors : Plenary jurisdiction

No matter is deemed to be beyond the jurisdiction of a superior Court

unless it is expressly shown to; be so, while nothing is within the jurisdiction of an

inferior Court unless it is expressly shown on the face of the proceedings that the

particular matter is within the ’cognizance of a particular Court. A High Court, for
example, is a Court of universal jurisdiction and superintendence in certain
classes of actions, and cannot be deprived of its ascendancy by showing that some
other Court should have entertained a particular action. Halsbury’s Laws of
England (4th Edn. Yol. 10 para 713).

The High Court in India are superior Courts of Record. They have original
and appellate jurisdiction. They have inherent and plenary powers. Unless

67
L.P. Mishra, 1998 (7) SCC 379 AIR 1998 SC 3337.
 268

expressly or impliedly barred, or the discretionary jurisdiction of the Supreme

Court, the High Courts have unlimited jurisdiction. The High Court, as the Court

of Records, has a duty to keep all its record^ correctly and in accordance With law.

If any apparent error is noticed by the High Court in respect of any orders passed
/o

by it, it has the power and the duty to correct it.

4.32 Contempt of Court: Disobedience by District Magistrate was due to his

absence, apology accepted

The High Court ordered the release of the detenu under the preventive

detention and on the following day the order of the High Court reached the office

of the District Magistrate but the detenu was not released. In HP. Singh, it was

found that the District Magistrate was away from the Head Quarter on tour and

there was no wilful disobedience of the Order by the District Magistrate. The

apology tendered was accepted and the District Magistrate was held no personally

guilty of the contempt.

4.33 Contempt, jurisdiction : Chief Justice jurisdiction to distribute business,

order without assignment invalid
It is well settled that the power under Art. 215 of the Constitution of India

cannot be exercised by the learned Single Judge of the High Court without being
7fi
conferred upon such authority or jurisdiction by the Chief Justice.

It was observed that the administrative control of the High Court vests in

Chief Justice alone and it is his prerogative to distribute business of the High

Court both judicial and administrative. The Puisne Judges can only do that work

Naresh Sridhar, AIR 1976 SC 1 : (1966)3 SCR 744 ; M.V. Elisabeth, AIR 1993 SC 1014;
1993 AIR SCW 177:1993 Suppl. (2) SCC 433; M.M. Thomas, 2000(1) SCC 666 AIR
2000 SC 540.Naresh Sridhar, AIR 1976 SC 1 : (1966)3 SCR 744 ; M.V. Elisabeth, AIR
1993 SC 1014; 1993 AIR SCW 177:1993 Suppl. (2) SCC 433; M.M. Thomas, 2000(1)
SCC 666 AIR 2000 SC 540.
69
1953 Cr. L.J. 1837 AIR 1953 SC 436.
70
Raj Kishore Yadov, (1997) 1 UPLBEC 26 ; Raj Kishore Yadov, AIR 1997 SC 1186 :
(1997) 3 SCC 11; Prakash Chand, AIR 1998 SC 1344: (1998)1 SCC 1; Dr. L.P. Mishra
(1998) 7 SCC 379 : AIR 1998 SC 3337.
 269

which is allotted to them by the Chief Justice or under his directions. No Judge or
a Bench of Judges can assume jurisdiction in a case pending in the High Court
unless the case is allotted to him or them by the Chief Justice.
In M/s Gokul Dairy?1' it was held that the order passed by the learned

Single Judge by issuing contempt notice and ultimately sending the party to the
jail on the ground of committing contempt of Court. Since no contempt

jurisdiction was assigned to him by the Chief Justice, The order passed was
without jurisdiction and the same was set aside. The Court reasoned that any order

which a Bench or a Single Judge may choose to make in a case that is not placed
before them or him by the Chief
* I
Justice or in accordance with his direction is an

order without jurisdiction and void. ,

In is concluded that Supreme Court and High Courts have inherence

powers to punish for contempt of courts of itself and subordinate judiciary.

The Introduction of the contempt of courts Act, 1971, in the statute b<?ok has

been for the purpose of securing a feeling of confidence of the people in

general and for due and proper administration of justice in the country. It is a

power weapon in the hands of the law courts by reason wherefor the exercise

of jurisdiction must be with due case and caution and for larger interest. The

contempt jurisdiction must be exercised with caution to protect the interest of

Judiciary as a whole and to maintain Independence of Judiciary.

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71
AIR 2002 All 70.