Types, Punishment, Defences - Contempt of Court Act, 1971 - The Red Carpet

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Sunday, September 26, 2021

Types, Punishment, Defences - Contempt of Court Act, 1971

 



Introduction

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.

Roman"; font-size: 12pt; font-variant-east-asian: normal; font-variant-ligatures: normal; font-variant-position: normal; vertical-align: baseline; white-space: pre-wrap;">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. 


Kinds of Contempt 

The law codifying contempt classifies it as civil and criminal. Civil contempt is fairly simple. It is committed when someone willfully disobeys a court order, or willfully breaches an undertaking given to court. Criminal contempt is more complex. It consists of three forms: 

  1. words, written or spoken, signs and actions that “scandalize” or “tend to scandalize” or “lower” or “tends to lower” the authority of any court 

  2. prejudices or interferes with any judicial proceeding, and, 

  3. interferes with or obstructs the administration of justice.


What constitutes as contempt 

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.


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.


Contempt Of Courts Act, 1971

Definition and Types of Contempt of Court 

Section 2(a) of the Act defines contempt in general and states that ““contempt of court” means civil contempt or criminal contempt.” It can thus be said that contempt of court is of two types –

  1. Civil Contempt defined under Section 2(b)

  2. Criminal Contempt defined under Section 2(c)

Section 2(b)  talks about Civil Contempt, it states –

“wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court”

The term ‘wilful’ means doing an act voluntarily which is forbidden by the law or omission to do something which law requires a person to do. Its purpose is to compel a party to obey the order or decree of the court which is made against him. It is essentially of private nature and is for the benefit of the party in whose favour the order has been passed.

Section 2(c)  defines Criminal Contempt as –

““criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which— 

  1. scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

  2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or  >

  3. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner”

Therefore, the essentials of Criminal Contempt can be listed as follows –

  1. Scandalizing the authority of court – The concept of scandalizing the authority of courts has been borrowed from English law. Therefore, as per this essential any act or publication by which the authority of court is lowered constitutes to Criminal Contempt. This covers the publications made against the act done by the Judge as a Judge and does not include the averments made against the private acts of a judge, which are outside the scope of his duty. 

The main objective of this section is to protect and uphold the authority of the court. Any publication which deters the prospective litigants from relying upon the administration of justice by the court or creates the apprehension in the minds of the public about the ability or fairness of a judge constitutes the offence of criminal contempt by scandalizing the authority of the court.


  1. Interference with the course of judicial proceedings – This provision is based on the principle that “every person has the right to a fair trial”. There are multiple ways by which there could be interference in a fair trial and media trial is one such way. It is not necessary that there is an actual interference with the proceedings and any act which is likely to interfere with it also constitutes as criminal contempt. Any publication which prejudices or interferes with the due course of any judicial proceeding would amount to criminal contempt of court. Media trial or trial by newspaper is not considered proper because it effects the fairness of trial and is likely to cause interference with the administration of justice.


The knowledge of pendency of the case and reasonable grounds to believe that the case in pending is sufficient to make out criminal contempt and the intention and motive of the publisher behind the content of publication is not relevant for the purpose of criminal contempt. If it lowers the authority of the court and causes interference with the due course of judicial proceeding it would amount to criminal contempt.


In civil cases, the pendency starts with the filing of the plaint and in criminal cases, with the filing of a charge sheet or the issuance of summons or warrants. The pendency continues till the case is decided. In case an appeal/revision is filed, pendency continues till the appeal or revision is decided. If appeal/revision is not filed, pendency continues till the period of limitation for filing the same has not expired. Once it expires, pendency is over.


  1. Interference with the administration of justice – The publication or doing of any act which interferes or obstructs or tend to interfere and obstruct in the administration of justice in any other manner, would amount to criminal contempt of court. This clause is a residuary clause, covering those cases of criminal contempt which are not expressly covered by section 2(c) of the Contempt of Court Act.


The term 'administration of justice' is much wider than the term 'course of judicial proceedings'. Every person in India is entitled to approach the court in order to secure justice and for the redressal of his grievances and the court has to decide dispute between the parties as per law and equity. 


Any conduct which tends to prevent or actually prevents a party to approach the court, amounts to criminal contempt of court, for eg. writing a threatening letter to litigating party or his counsel preventing him from attending the court, writing a letter to the judge or approaching him in order to influence his judicial conscience or approaching a counsel for undue favor are all examples of interference with administration of justice and are contempt of court.


An advocate is an officer of the court and undue interference with the advocate in the discharge of his professional functions amounts to contempt of court. Casting aspersions on counsel or approaching him for not defending a particular person amounts to criminal contempt of court.



Punishment Under The Contempt Of Courts Act

The punishment for the Contempt of Courts Act is provided under Section 12 of the Act. Section 12  states –

“12. Punishment for contempt of court.—(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.

(2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it. 

(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit. 

(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person: Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission. 

(5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.”

High Court and Supreme Court are bestowed with the power to punish for the contempt of the court.

Under Section 12 of Contempt of Court Act, 1971, a contempt of court can 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.

However, in civil cases if the court considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.

The court is not supposed to impose a sentence for contempt of court in excess of what is prescribed under this section either in respect of itself or of a court subordinate to it.
An accused may be discharged or the punishment awarded may be remitted on apology being made by the accused to the satisfaction of the court. An apology is not supposed to be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.



Defenses Available Against Contempt Of Court Proceeding 

The Contempt of Courts Act provides for several defenses to a defendant against contempt proceeding such as – 

  1. No Knowledge or Innocent Publication – 

Section 3 of the Act provides defence to a person who innocently believes that publication of such matter will not obstruct the proceedings of the court or to person who has no reasons to believe that a proceeding was pending in the court. It states – 

“3. Innocent publication and distribution of matter not contempt.—(1) A person shall not be guilty of contempt of court on the ground that he has published (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at that time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending. 

(2) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, the publication of any such matter as is mentioned in sub-section (1) in connection with any civil or criminal proceeding which is not pending at the time of publication shall not be deemed to constitute contempt of court. 

(3) A person shall not be guilty of contempt of court on the ground that he has distributed a publication containing any such matter as is mentioned in sub-section (1), if at the time of distribution he had no reasonable grounds for believing that it contained or was likely to contain any such matter as aforesaid.”

Therefore, the general principle is that a person cannot be held guilty of contempt in respect of an order of which he claims to be unaware.

S.3 deals with this defense. If a criminal contempt is initiated against a person on the ground that he is responsible for publication or for distribution of publication which prejudices or interferes with the pending proceedings, the defendant may take the following steps –

  1. he may plead under S. 3(1) that at the time of publication, he had no reasonable ground for believing that the proceeding was pending.

  2. he may plead under S.3(2) that at the time of publication, no such proceeding was pending.

  3. he may plead under S.3(3) that at the time of distribution of publication, he had no reasonable ground for believing that the matter (published or distributed by him) contained or was likely to contain any material which interfered or obstructed the pending proceeding or administration of justice.


  1. Fair and Accurate Report of Judicial Proceedings

Section 4 of the Act provides that a person cannot be held guilty if they have reported the proceedings of the court accurately and fairly. It states – 

“Fair and accurate report of judicial proceeding not contempt.—Subject to the provisions contained in section 7, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.”

S.4 of the Act provides that a person should not be held guilty of Contempt of Court for publishing a fair and accurate report of any judicial proceedings or any stage thereof. S. 7 of the Act provides Exception to the general principle that justice should be administered in public. Sub sections (1) and (2) of S.7 provide that a person shall not be guilty of Contempt of Court for publishing the text or for publishing fair and accurate summary of the whole or any part of the order made by the court in camera (in Chamber) unless the court has expressly prohibited the publication of the proceedings on the grounds of:

  1. Public Policy

  2. Public Order

  3. Security of the State

  4. Information relating to a secret process, discovery or invention, or, in exercise of the power vested in it.


  1. Fair Criticism

Section 5 of the Act exempts fair criticism from the purview of contempt. It states –

“5. Fair criticism of judicial act not contempt.—A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided”

S.5 provides that a person shall not be guilty of criminal contempt for publishing any fair comment on the merits of any case which has been finally decided. A defense can be taken that the statement complained of (in respect of publication of which criminal contempt has been initiated) must be in respect of a case which has been finally decided and not in respect of pending proceedings. Moreover, the statement should come from the mouth of a knowledgeable person in the field of law and not from a litigating party which has lost the case. In short, fair criticism means that criticism which while criticizing the act of a Judge does not impute any ulterior motive to him. In case of Arundhati Roy, the Supreme Court has held that judicial criticism cannot be invoked under the garb of Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India.

The Supreme Court further clarified that fair criticism of the judiciary as a whole or the conduct of a Judge in particular may not amount to contempt if it is made in good faith and in public interest. To ascertain the 'good faith' and 'public interest' the Courts have to take into consideration all the surrounding circumstances including the person's knowledge in the field of law, the intention behind the comment and the purpose sought to be achieved. A common citizen cannot be permitted to comment upon the Courts in the name of criticism by seeking the help of Freedom of speech and expression for the reason that if it is not checked, it would destroy the judicial institution itself.


  1. Bona fide complaint against presiding officers

Section 6 of the Act states –

“6. Complaint against presiding officers of subordinate courts when not contempt.—A person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate court to— 

(a) any other subordinate court, or 

(b) the High Court, 

to which it is subordinate”

S.6 provides that a person shall not be guilty of contempt of court in respect of any statement made by him by way of complaint in good faith concerning the presiding officer of any sub-ordinate court to the High Court or to the Court to which he is sub-ordinate. The protection of this section will be available only when it is proved that the complaint was made in good faith.
In ascertaining the 'good faith' the intention and the purpose sought to be achieved by complaint will be taken into consideration and it would be ensured that the same was not made with ulterior motive.


  1. No substantial interference with due course of justice.

Section 13 of the Act states –

By the Contempt of Courts (Amendment) Act, 2006, a new Section 13 has been substituted in place of existing S.13. This new S. 13 provides that “notwithstanding anything contained in any law for the time being in force, no Court should impose a sentence for Contempt of Court unless it is satisfied that the Contempt is of such a nature that it substantially interferes or tends to interfere with the due course of justice.

Clause (b) of Section 13 of Contempt of Court Act, 1971 that was introduced recently by 2006 amendment, allows the accused to raise the defense of justification by truth of such contempt, if the court is satisfied that it is in public interest and the request for invoking the said defence is bona fide.

However, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.


  1. Justification by truth.

The amended S.13(2) provides that the Court may permit justification by truth as a valid defense in any proceeding for criminal contempt if it is satisfied that it is in public interest. Thus, truth is now a defense if it is in the public interest and bonafide.


  1. The statement complained of is open to different interpretations.

If the words complained of are open to two different interpretations and one of them indicates contempt while the other does not, the contemptner cannot be punished for non-compliance of one interpretation. But, in order to succeed in this defense, it is necessary to prove that the order was complied with in respect of one interpretation. If the order is not complied with at all, it cannot be proved that there was a reasonable doubt as to the interpretation of the order. On the other hand, it will be presumed that a doubt is deliberately sought to be created so as to avoid the compliance of the order.


  1. Defamation of the judge personally

If the publication or other act is merely a defamatory attack on the judge and is not intended to interfere with the administration of justice, it will not be taken as contempt of court.

The publication or other Act amounts to Contempt of Court only when it has nexus with the functioning of a judge. The statement complained of may amount to Contempt of Court only when it is made against a judge in his judicial capacity in the exercise of his judicial functions. However, in such a situation a judge is not remediless and he has the same remedies available which are available to a common man. A defamatory attack on a judge may be Libel or Slander and he has a discretion to proceed for Defamation in civil, criminal or simultaneous proceedings against the person concerned but he cannot be punished summarily under criminal contempt of court. The object of Contempt law is to protect the confidence of the people in the administration of justice and its object is not to prevent attacks upon the personal reputation of any individual judge. So, any personal attack upon the judge unconnected with the office he holds, is dealt with under the ordinary rules of Libel and Slander.






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