Clinical Project

7/29/2019 Clinical Project

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Supreme Court Rules-Contempt of court

TABLE OF CONTENTS

S.No Content Page No.

1. Acknowledgement 3

2. Methodology 4

3. List of cases 5

4. preface 7-10

5. Chapter 1 10-16

6 Chapter 2 17- 48

7 Chapter 3 49-58

8 Chapter 4 59-67

9 Chapter 5 68-7510 Chapter 6 76-82

11 Newspaper Reports 83

12 Bibliography 84-85

ACKNOWLEDGEMENT

Clinical Course-IV Page 1 of 96


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It is indeed my proud privilege to expressmy deep sense of gratitude and

indebtness to our respected teacher

Professor Dr. Nuzhat Parveen Khan, for

her inspirational guidance at every stage

of my study, and further for her scholarlyinspiration and affectionate

encouragement throughout the period of

my research.

http://www.jmi.ac.in/FLaw/nuzhat_law.pdfhttp://www.jmi.ac.in/FLaw/nuzhat_law.pdf


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METHODOLOGY

This assignment for Clinical Course-IV,

on the topic Contempt Of Court, has

been compiled after a methodical and

comprehensive research on the

subject. The Doctrinal method of

research used for the study includes

substance from books, journals,

articles, and reports. I have also used

news articles from leading daily

newspapers, and press reports

available on various websites.



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LIST OF CASES

AG v. Leveller Magazine Ltd. [1979] AC 440, p. 449.

Amrita Bazar Patrika case 45 Cal 160

Attorney-General v Times Newspapers Ltd(1973) 3 All ER

54

Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985)

Delhi Judicial Service Assn. v. State of Gujarat, (1991)

4SCC 406

Dulal Chandra v. SukumarAIR 1958 Cal. 474

Home Office v. Harman [1983] 1 AC 280, 310; [1982] 1 All.

ER 532, 542 , HL.

Isbill v. Stovall, Rex. CIV.App.92 S.W.UD. 1057.

King v. Almon 97 E.R 94

King v. Clements106 E.R 918

Ramirez v. State, 279 Ga. 13 (608 SE2d 645) (2005).

Re OSullivan; Ex parte OSullivan v Commonwealth Bank

of Australia (1995) 129 ALR 295.

Re, Shortridge, 99 Cal 526, 34, p.227

Supreme Court Bar Association V. Union of India, (1998)

4SCC 409;

SurendraNathBanerjee v. The Chief Justice and Judges of

the High Court at Fort William in BengalI.L.R 10 Cal. 109

United States v. Rylander, 460 U.S. 752 (1983)



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Justice is not a cloistered virtue.She must be allowed to suffer thescrutiny and respectful eventhough outspoken comments ofordinary men..................Lord

Atkin

Judges are priests in the temple of justice as observed by Ranold

Dworkin in Laws Empire. Whereas we would say lawyers are

worshippers of goddess of justice in the temple. Worshippers through

the medium of priests have to reach the goddess of justice. For the

same, both are necessary and in absence of one, another is

incomplete. Hence, lawyers and judges have to co-ordinate, co-operateand collectively work towards the delivery of justice. Bench and bar

need to harmonise and balance their functioning to achieve the sacred

goal, i.e justice. However, situation might arise when both could be

pitted against each other, i.e a situation of bench versus bar and the

conduct of these worshippers (lawyers) then, while pressing their views

on the bench may amount to Contempt of court.

The topic of Contempt of Court often comes up for discussion and

comment. Some talk of reforming the Law of Contempt, others suggest

abolishing this power in Courts altogether, etc. The attempt in this

project is to give the subject a new look by going into the Fundamental

Principles. The basic principle in a democracy is that the people are



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supreme. It follows that all authorities, whether Judges, Legislators,

Ministers, Bureaucrats, etc. are servants of the people. Thus, the

preamble to the Constitution of India emphasize upon the republican

and democratic character of our Constitution, and show that all power

ultimately stems from the People.

Once this concept of popular sovereignty is kept firmly in mind it

becomes obvious that the people of India are the masters and all

authorities in India (including the Courts) are their servants. Surely the

master has the right to criticize the servant if the servant does not act

or behave properly. It would logically seem to follow that in a

democracy the people have the right to criticize the Judges.1 Why then,

it may be asked, should there be a Contempt of Courts Act which to

some extent prevents people from criticizing Judges or doing other

things which are regarded as Contempt of Court? This is a question

which calls for a close examination, and this is what is attempted here.

Contempt of Court, because of its controversial nature, has created

contradictory opinions among the jurists as well as scholars. Thecontempt jurisprudence with the common law origin has been

transmitted into the Indian jurisprudence by the Courts of Record

through several charters. Our Constitution has acknowledged and

accepted this jurisdiction by conferring the status of Court of Record to

the Supreme Court and High Courts. A country embedded in the

concept of rule of law should give due respect to the law and the organ

which applies the law and administers justice. This organ which

possesses neither the muscle power nor the money power has to

extract due obedience to its orders only through this jurisdiction. But

difficulty arises when this jurisdiction clashes with the invaluable rights

1 2007 CriLJ/16 XII Justice Markandey Katju, Judge, Supreme Court of India



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of citizens as well as those of the Press, as enshrined in the

Constitution. It becomes all the more difficult when it interferes with

the functioning of administrative authorities, corporations and the like.

This is where it poses different questions. What constitutes a contempt

of court? When and how this jurisdiction has to be exercised? In what

way is the judiciary, one of the organs of the state, justified in

controlling other organs of the state and also rights of citizens in the

name of contempt jurisdiction?



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Parameters of study

The study of the subject is of much practical value in a modern

democratic society where freedom of speech and expression is

guaranteed by the constitution. It is possible that an abuse of the

freedom may affect the impartiality and authority of the court, and

hence become detrimental to the dignity of the court. Such abuse has

to be checked by the judiciary by the use of its contempt jurisdiction.

This seems to be the only way to check the increasing modern

tendency to question the power of all duly appointed authorities.

This project on Contempt of Court for Clinical course- IV, focuses on

the above stated issues concerning the Indian judiciary, along with

making an in-depth study of the Law of Contempt in other countries

and proposes alterations that may be brought about in the existing law

in India.



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CHAPTER- I

Origin and Evolution of theLaw of Contempt



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Introduction

Contempt of court is a broad, common law doctrine. It was described

by Joseph Moscovitz, as the Proteus2 of the legal world, assuming an

almost infinite diversity of forms. 3The law of contempt is essentially

concerned with interference with theadministration of justice. It was

clearly defined by Lord Diplock in a relatively modern case in the

following words:

Although criminal contempt of court may take a variety of forms they

all share a common characteristic: they involve an interference with

the due administration of justice, either in a particular case or more

generally as a continuing process. It is justice itself that is flouted by

contempt of court, not the individual court or judge who is attempting

to administer it.4

Genesis of the concept of Contempt of

Court

The law of contempt of court is of fundamental contemporary

importance though it is of ancient origincontemptus curiae has

been a recognised phrase in english law since the twelfth century.

Contempt power first originated in the United Kingdom and has been

largely developed at common law. Superior courts of record have

inherent powers of punishing for contempt whether committed inside

or outside the court. Inferior courts may be conferred power by statute

to punish for contempt committed ex facie.5

2A mythological sea god capable of changing shape at will.3J. Moskovitz, Contempt of Injunctions, Civil and Criminal (1943) 43 Col. LR 780.4AG v. Leveller Magazine Ltd. [1979] AC 440, p. 449.5 Justice V.R Krishna Iyer; Contempt of Court; 6th Edn. Eastern Book Company, Lucknow



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When we trace the history of Rule of Law and its place of origin in the

name of England, Bill of Magna Carta automatically strikes our mind.

Contempt of court (contemptus curiae) is also traced to the annals of

judicial history of English Law, from the 12th Century( the period of King

John 1215). Development of contempt in the legal sense is related to

the principals whereby punishment meted out to restrain disobedience

to the king and his court and their administrative state, which could

cause hindrance to the course of administration to the justice. In teh

Anglo- Saxon laws and through Domesday books, the records of the

Curia Regis and the British Parliament the first treaties on the law and

year books, references to law of contempt may be traced in its

inchoate and rudimentary shape. However the law of punishing

Contempt of Courtto restrain disobedience to the king and his courts

and other acts which impeded the smooth course of administration of

justice was crystallized on sound footing from 14th century onward.

Origin and development of the concept of

contempt of court in England

The law of contempt of court is a branch of law which originated and

developed in a manner quite different from other laws. Judges created

the contempt jurisdiction and claimed it was a natural adjunct to their

adjudicating work. A law which began as a convenient method toenforce their orders was subsequently used to extract respect from the

challenges of the press. Phillimore committee stated the same in

following words;-

the law relating to contempt of court has developed over the

centuries as a means whereby the courts may act to prevent or punish



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conduct which tends to obstruct, prejudice or abuse the administration

of justice either in relation to a particular case or generally.6

In ancient period king as the fountain of justice used to hear the cases

for himself. But due to burden of work he was forced to delegate the

function to an organ created by him. Sir William Holdsworth recognised

the same in the following words..........

The common law courts were royal courts and the judges of these

courts were royal justices.

The phrase Contempt of Court (contemptus curiae) has been in use in

English law for eight centauries and the offence is as old as the law.

The law conferred the power to enforce discipline within its precincts

and punish those who fail to comply with its orders.7

The idea of contempt of the King is referred to as an offence in the

laws set forth in the first half of the twelfth century. Contempt of the

kings writ was mentioned in the laws of King Henry-I. In the same laws

there was a mention of pecuniary penalty for contempt or disregard of

orders. Thus in England before the end of twelfth century contempt of

court was a recognized expression and applied to the defaults andwrongful acts of the suitors.8

After making a study of cases in the 13th Century John Charles Fox

concluded that there was no indication of trial of contempt out of court

in the ordinary course of law and many cases of contempt in court

were tried by indictment and not by a summary process. 9If the

contempt is confessed there was no need for trial by jury and such

cases of contempt were disposed off by sentence upon confession. 10

The earlier form of procedure was attachment by bill, when trial by jury6 Supra 27 See Oswald, Contempt of court 1 (1910). This early origin of the contempt law has beenacknowledged by Encyclopedia Britannica (Vol.6-p. 414, 3 rd Edn.) and also by Joseph H Beale inhis article Contempt of Court, Criminal and Civil 21 Harv. L.R 161 (1908)8 John Charles Fox The nature of Contempt of Court37 L.Q.R., 191, 194 (1921)9 Ibid at 198.10 Ibid at 199.



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was followed, unless the accused confessed. Later the star chamber

practice of attachment and examination without jury was substituted

for the procedure by bill. 11

From 14th century onwards the jurisdiction of the Kings justice to

punish contempt of a criminal nature summarily was limited to the

offences not heinous, committed in court in actual view of the justices.

The summary jurisdiction was held to extend to all contempts whether

committed in or outside the court.12

By 16th century, contempt committed out of court was punished by

common law, only after trial in ordinary courts and not by any

summary process. 13 Contempt by strangers out of court were tried by

information or by attachment and examination in the common law

courts. This practice continued through 18th century and the procedure

by attachment and examination were confirmed by the opinion of Chief

Justice Wilmot in King v. Almon14 and finally established as law by

Justice Holrayed in King v. Clements15.

In the year 1888 Libel Act was passed and it permitted fair and

accurate reports of judicial proceedings. But contempt proceedingswere followed against erring publishers.16 Provisions regarding

contemptuous publication have been re-enacted in a modified form in

section 3 of contempt of court act, 1981. The County Courts Act of

1959 provided for punishment to any person who willfully insulted the

judge of the county court., jurors, witnesses or any officer of the court,

including courts other than courts of record. In England as well as in

Scotland contempt came to be identified with summary procedure.

11 Ibid12 John Charles Fox The summary process to punish contempt25 L.Q.R 238, 252 (1909).13 See John Charles Fox Supra n. 414 97 E.R 9415 106 E.R 91816 R v. Parke (1900-3) All E.R 721



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Development of the law of contempt of

court in India

The law of contempt of court in India is nothing but the offspring of the

British Administration of justice in India. Creation of different courts of

record in India necessarily meant the introduction of English law of

contempt in some measure.17

Establishment of the Court of Mayor and Corporation of Madras under

the East India Companys charter of 1687 was the earliest court ofrecord created in India. Admiralty court established under the Royal

Charter of 1683 had the right to hear appeals and hence admiralty

court was also considered a court of record. Later mayors court was

created by the Charter of 172718, which was reconstituted by the

Charter of 175319. These courts had power to punish for contempt. In

pursuance of the Regulating Act, 1773 the mayors court at Calcutta

was succeeded by the Supreme Court established under a chartergranted in 1774. The Mayors court at Bombay and Madras was

superseded by the Recorders court at Madras. It was abolished by the

Government of India Act, 1800 and the Supreme Court was established

in its place by the charter of 1801. A Supreme Court was established in

the place of Recorders Court at Bombay by a Charter granted under

the statute of 1823. The recorders court and the Supreme Court had

the same power as the superior courts in England. The superior courts

were in turn succeeded by the high courts under the High Courts Act of

1861. The High Court of Calcutta was the court of record in all its

jurisdictions and therefore possessed power to commit for contempt. In

17 Report of the committee on Contempt of Court, 4 (1963)18 II Vestiges of Old Madras 1640-1800, 241-242(Charter of 1727, 249)19 Id. at 439-440 (charter of 1753, 253)



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1886, the High court of Allahabad was established under the High

courts Act , 1861 and was constituted a court of record.

The leading authority on the subject is the Privy Council and its

decision in SurendraNathBanerjee v. The Chief Justice and Judges of

the High Court at Fort William in Bengal20 it was held by Justice

Peacock that the High Courts in the presidencies are superior courts of

record and the offence of contempt and the powers of High Court for

punishing it, are the same there as in the country , not by virtue of the

Penal Code for British India, and the Code of Criminal Procedure 1882,

but by virtue of the common law of England.

Further article 129 and 215 of our Constitution made the Supreme

Court and High Courts as courts of records. Though the High Court as a

court of record had the power to punish contempt of itself, doubt arose

as to the power of the court of record to punish contempt of sub-

ordinate courts. Also there was no general law providing for

punishment of contempt of these courts. The Indian Penal Code 1862

made certain acts constituting specific offences punishable as

contempt. For making the concept of court more specific and forproviding punishment for contempt of subordinate courts , the

contempt of courts act, 1926 act was passed. Section 2 of the Act

empowered the High Courts of judicature to exercise the jurisdiction,

power and authority to punish contempt of subordinate courts. The act

was amended in 1937 to make it clear that the limits of punishment

provided in the act related not only to contempt of subordinate courts

but also to all cases. The contempt of court act 1952 touched only the

fringes of the subject. While its existing provisions should be continued

there is need for widening considerably the scope of the act. The

unsatisfactory nature of this act necessitated the government to

constitute a committee in 1961 with H.N Sanyal as chairman to study

20 I.L.R 10 Cal. 109



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the matter and make recommendations for the proper functioning of

the law of contempt, because the government felt that the law relating

to contempt of court was uncertain, undefined and unsatisfactory. On

the basis of the recommendations made by the committee, contempt

of courts act 1971 was passed which can be described as a

comprehensive legislation.

The English and the Indian authorities are based on the basic

foundation of inherent power of court of record having jurisdiction to

correct the judicial orders of subordinate courtsinherent powers of a

superior court have remained unaffected even after codification of the

contempt law.



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CHAPTER-II

What constitutes contemptof Court?

Definition and Meaning

What is a court?It is21 an agency of the Sovereign created by it directly or indirectly

under the authority, consisting of one or more officers, established and

maintained for the purposes of hearing and determining issues of law

and fact regarding legal rights and alleged violations thereof and of

applying the sanctions of the law authorized to exercise its powers in

due course of law at times and places previously determined by lawful

authority.22

A court is also described23 as an organized body with defined powers,

meeting at certain times and places for the hearing and decision of the

causes and other matters brought before it, and aided in this, its

proper business, by its proper officers, viz. Attorney and Counsel to

present and manage the business, clerks to record and attest its acts

and decisions, and ministerial officers to execute its commands and

secure due order in its proceedings.

What is contempt of court?

21 Blacks Law Dictionary, 4th edn. 42522 Isbill v. Stovall, Rex. CIV.App.92 S.W.UD. 1057.23 Ex parte Gardner, 22 Nev 280,39P.570 (p.404, para 68)



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No satisfactory definition of contempt can be had24, because the

offence is manifesting itself in a variety of ways. But the classical and

celebrated explanation as given by Lord Hardwicke L.C in St. James

Evening Post case25 has obtained general acceptance.

Contempt is generally defined as an act of disobedience to an order of

a court, or an act of disrespect of a court.26

Therefore anything that curtails or impairs the freedom of limits of the

judicial proceedings must of necessity result in hampering of the

administration of Law and in interfering with the due course of justice.

This necessarily constitutes contempt of court.

Oswald defines contempt to be constituted by any conduct that tends

to bring the authority and administration of law into disrespect or

disregard or to interfere with or prejudice parties or their witnesses

during litigation.

Halsburydefines contempt as consisting of words spoken or written

which obstruct or tend to obstruct the administration of justice.

Black Odgers enunciates that it is contempt of court to publish wordswhich tend to bring the administration of Justice into contempt, to

prejudice the fair trial of any cause or matter which is the subject of

Civil or Criminal proceeding or in anyway to obstruct the cause of

Justice.

According to Blacks Law Dictionary27 Contempt is generally defined

as an act of disobedience to an order of a court, or an act of disrespect

of a court.

24 Report of the committee on contempt of court, 48 (1974)25 (1742) 2 Atk. 46926

See e.g. Black's Law Dictionary, 4th Ed. p. 390 (West's 1968)

27 4th Ed. p. 390 (West's 1968)



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In the Contempt of Courts Act, 70 of 1971 the provision in section 2

defines;

Civil contempt means wilful disobedience to any judgment,

decree, direction, order, writ, or other process of a court or wilful

breach of an undertaking given to a court;

criminal contempt means the publication(whether by words,

spoken or written or by signs or by visible representations or

otherwise) of any matter or the doing of any other act,

whatsoever which-

(i) scandalizes or tends to scandalize, or lowers or tends to

lower the authority of any court; or

(ii) prejudices, or interferes or tends to interfere with, the due

course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends

to obstruct, the administration of justice in any other

manner.

The aforesaid definition may be subject to criticism as a legislative

encroachment on the judicial power to demarcate what exactly is

contempt of the court in a given set or circumstances.

It is however apposite to refer the oft-quoted Lord Hardwicks three

fold classification of contempt28 which is:

Scandalizing the Court itself. Abusing parties who are concerned in the causes, in the

presence of court.

Prejudicing the public against persons before the cause is heard.

28 St. James Evening Post Case, (1742) 2 Atk 469.



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Colorado law defines contempt as one of the following actions that

have the general effect of disobedience or disrespect for a court or an

order of the court:29

Disorderly or disruptive behavior, a breach of the peace, boisterous

conduct or violent disturbance toward the court, or conduct that

unreasonably interrupts the due course of judicial proceedings;

Behavior that obstructs the administration of justice;

Disobedience or resistance by any person to, or interference with,

any lawful writ, process, or order of the court; or

Any other act or omission designated as contempt by statute.

In American Jurisprudence30 it has been pointed out that generally

speaking. He whose conduct tends to bring the authority and

administration of the law into disrespect or disregard, interferes with

or prejudices parties or their witnesses during a litigation31 or

otherwise tends to impede, embarrass or obstruct the court in the

discharge of its duties, is guilty of contempt.32

Object and policy of the Law of Contempt

The root principal behind Contempt of Court is that the foundation of

the judiciary is the trust and the confidence of the people in its ability

to deliver fearless and impartial justice and as such no action can be

permitted which may shake the very foundation itself. The purpose of

contempt jurisdiction is to uphold the majesty and dignity of the courts

of law. It is an unusual type of jurisdiction combining the jury, the

judge and the hangman and it is so because the court is not

29 C.R.C.P. 107(a)(1)30 2nd Edn., Vol 17 p.6, S.331 Ex parte Earman, 85 Fla 297 3132 Re, Shortridge, 99 Cal 526, 34, p.227



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adjudicating upon any claim between the litigating parties. This

jurisdiction is not exercised to protect the dignity of an individual judge

but to protect the administration of justice from being maligned. Power

to punish for contempt is for maintenance of an effective legal system.

Contempt jurisdiction cannot, however be invoked to wreak personal

vengeance against the alleged contemnors. The quintessence of

contempt jurisprudence is obstruction of or interference with the

administration of justice. The key to the courts authority is peoples

confidence in that great institution and what shakes his faith is a blow

to democracy. So, independent of royal beginnings, no democracy can

be functional if justice is jejune and lacks the power to punish whoever

challenges or chokes its authority. On fundamentals, contempt

jurisdiction is basic to the rule of law. And be you ever so high the law

is above you. The court being the principal instrumentality of law and

justice, contempt power, wisely understood and rightly used, has a

democratic basis. This hermeneutic perspective makes contempt

power a peoples tower tall enough to command obedience when

justice is at stake and authoritarian contumacy attacks judicialsupremacy.

Courts are courageous, not cowardly, are not hypersensitive but do not

retreat from audacious effrontery. Courts are unduly sensitive to fair

comment or even outspoken comments being made about their

judgments and orders made objectively, and fairly and without any

malice, but no one can be permitted to distort orders of the courts and

deliberately give a start to its proceedings, which have the tendency to

scandalize the court or bring it to ridicule, in the larger interest of

protecting the administration of justice. When the contemner

challenges the authority of the court, he interferes with the

performance of duties of judges office or judicial process or

administration of justice or leads to generation of tendency of bringing



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the judiciary into contempt. In the general interest of the community it

is imperative that the authority of the courts should not be imperiled

and there should be no unjustifiable interference in the administration

of justice.

While the existing law of contempt has the sanction of the constitution,

should it satisfy the test of reasonableness so that it may be justly

classified as a reasonable restraint rather than an arbitrary

empowerment. The American test of clear and present danger is far

more liberal than the Indian conception on contempt of law. The

freedom of the press is a value too dear to be sacrificed even as

freedom of speech of the individual cannot be left to the mercy of

judicial maverick.

Classification of the Law of Contempt

Contempt may be director indirect. Contemptis direct when the act (or omission) occurs in

the presence of the judge or so near to the

judge that it may be perceived by his or her

senses (e.g., obscenities shouted in the

hallway outside the courtroom loudly enough

to be heard by the judge). Indirect contemptis

contempt which is not direct (e.g., an ex-wife

who refuses to pay court-ordered child support;

a lawyer who does not show up for a scheduled

docket call).



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The distinction matters because direct contempt may be punished

"summarily," i.e. with some but quite minimal due process.33 By

contrast "[where the misbehavior is not in the immediate presence of

the court so that it may act on its own knowledge of the facts,

summary punishment is not authorized."34

In a summary contempt proceeding, "objectively observable and

describable behavior that causes an articulable interference with the

administration of justice must be demonstrably present."35 The conduct

must have occurred in open court and "threaten a court's immediate

ability to conduct its proceedings."36

In common law jurisdictions, contempt of court has traditionally

been classified as either in facie curiae (in front of the court) or

ex facie curiae (outside the court), or as criminal or civil. The

latter distinction can be confusing because it has nothing to do

with whether the proceedings are criminal or civil.

Criminal contempt occurs when there is interference with or disruption

of criminal or civil court proceedings. Examples include yelling in the

court room, publishing matters which may prejudice the right to a fair

trial (trial by media), or criticisms of courts or judges which may

undermine public confidence in the judicial system (scandalizing the

court).

Civil contempt occurs when a person disobeys a court order and is

subject to sanctions, such as a fine or imprisonment. The purpose of33 See: In re Terry, 128 U. S. 289 (9 SC 77, 32 LE 405) (1888); Offutt v. United States, 348 U. S.11 (75 SC 11, 99 LE 11) (1954).34 MeDaniel v. State, 202 Ga. 409 (414 SE2d 536) (1992), quoting Moody v. State, 13 1 Ga. App.355, 359 (2) (206 SE2d 79) (1974).35 In re Shafer, 216 Ga. App. 725,726 (455 SE2d 421) (1995).36

International Union v. Bagwell, supra; Ramirez v. State, 279 Ga. 13 (608 SE2d 645) (2005).



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civil contempt is not only to enforce court orders, but also to maintain

public confidence in the judicial system since the administration of

justice would be undermined if the order of any court of law could be

disregarded with impunity.37

Civil contempt can be defined as, wrong to the person who is entitled

to the benefit of a court order. It is a wrong for which the law awards

reparation to the injured party; though nominally it is a contempt of

court it is fact a wrong of a private nature. Civil Contempt is a sanction

to enforce compliance with an order. It means willful disobedience to

any judgment, decree, writ or other process of court.

As Lord Scarman has pointed out, the distinction between the two may

have less relevance today, but it still useful for classification purposes:

The distinction between civil and criminal contempt is no longer of

much importance, but it does draw attention to the difference between

on the one hand contempts such as scandalizing the court, physically

interfering with the course of justice, or publishing matters likely to

prejudice a fair trial, and on those other contempts which arise fromnon-compliance with an order made, or undertaking required in legal

proceedings.

As was observed in Home Office v. Harman38 the distinction between

civil and criminal contempt is no longer of much importance, but it

does draw attention to the differences between on the one hand

contempt such as scandalizing the court, physically interfering with

the course of justice, or publishing matter likely to prejudice a fair trial,

and on the other those contempts which arise from non-compliance

with an order made, or undertaking required, in legal proceedings. The

former are usually the business of the attorney general to prosecute by

37 Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985)

38 [1983] 1 AC 280, 310; [1982] 1 All. ER 532, 542 , HL.



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committal proceedings (or otherwise); the latter constituting as they

do an injury to the private rights of a litigant, are usually left to him to

bring to the notice of the court. And he may decide not to act; he may

waive, or consent to, the non-compliance.

A further distinction to be made in the area of contempt law is whether

the contempt charged is civil or criminal in nature. The difference

between civil and criminal contempt is the remedy sought. If the

purpose of the contempt order is remedial, such as to compel the

contemnor to obey a court order, the contempt is civil. If the purpose

of the contempt order is to punish past wrongful conduct, and thereby

preserve the dignity and integrity of the court, the contempt is

criminal.

Particularly when the sanction to be imposed is imprisonment, the

court will require a present ability to perform as of the time of the

contempt hearing. For example, in Bowen,39 the Florida Supreme Court

stated, "[b]ecause incarceration is utilized solely to obtain compliance,

it must be used only when the contemnor has the ability to comply."

In civil matters, disobedience or resistance to a court order is the mostcommon application of the rule. This is often referred to as indirect or

constructive contempt because the act of disobedience is done out of

the direct site or hearing of the court. Direct contempt occurs in the

presence of the court at trial or during various court proceedings.

In Dulal Chandra v. Sukumar40 it was held that the line between civil

and criminal contempt can be broad as well as thin. Where the

contempt consists in mere failure to comply with or carry out an order

of a court made for the benefit of a private party then it is plainly civil

contempt and it has been said that when the party in whose interest

the order was made moves to the court, for action to be taken in

39 Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985)40 AIR 1958 Cal. 474



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contempt against the contemnor with a view to an enforcement of his

right ,the proceedings are in the form of an execution. In such a case

there is no criminality in the disobedience, and the contempt as it is

not criminal. If however contemner adds defiance of the court to

disobedience of the order and conducts himself in a manner, which

amounts to obstruction with the course of justice, the contempt

committed is of a mixed nature, partaking as between him and the

opponent as civil and between him and the court of the state as

criminal contempt.

CRIMINAL CONTEMPT- BY THE INDIVIDUAL AND THE PRESS-

THE COMMON GROUNDS

Criminal contempt as also stated above has been classified into two

categories; they are direct criminal contempt or contempt in the face

of the court and indirect criminal contempt or contempt through words

spoken, written or through publication made outside the court. Direct

criminal contempt is treated as specific offence and it is dealt with in

the Indian penal code.41

Corresponding procedure is contained in theCriminal Procedure Code. 42

Constitutional guarantee of freedom of speech and expression does

not permit either the individual or the press to commit contempt of

court. The purpose of the contempt jurisdiction is to safeguard the

administration of justice from undue interference and verbal attacks

from any agency. The judiciary though competent to use the contempt

power used it only sparingly.43 It cannot as a rule be too sensitive. Free

and fair criticism of the judicial act motivated by bona fide reasons has

to be permitted, but scurrilous attack on the judiciary motivated by

mala fides has to be viewed seriously and should be restricted. Before

41 Section 22842 Sections 480-48743 N.G.Shelat, Contempt of Court, XII Gujarat Law Reporter (Jnl.) XIII (1972)



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the passing of the Contempt of Courts Act, 1971, the law of contempt

of court in India especially as it related to the press was based on the

common law principles as adopted by the Indian courts from time to

time. Two enactments which preceded the 1971 Act, one in the year

1926 and another in the year 1952 have not made any mention about

constructive contempt. Contempt of Courts Act, 1926 empowered the

High Courts constituted under the Letters Patent to exercise Contempt

jurisdiction in case of contempt of sub-ordinate courts so also that of

chief Court.44 It also restricted the punishment to be given to the

contemner.45 Contempt of Courts Act , 1952 also dealt with the power

of the high court to punish contempt of sub-ordinate courts and also

restricted the punishment to be awarded. 46 Further the High Court was

made to include Judicial Commissioners court also.

Situations resulting in Contempt of

Court

Improper pressure on parties

It is a contempt of court to put improper pressure on a party to court

proceedings. InAttorney-General v Times Newspapers Ltd (1973) 3 All

ER 54, the House of Lords was considering a newspaper article relating

to legal proceedings then on foot against manufacturers of the drug

44 Ibid.45 Section 3 of the 1926 Act.46 Section 4 of the 1952 Act.



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thalidomide. The article attacked the manufacturer for making a small

settlement offer. That article included the following statements:

the thalidomide children shame Distillers;

The settlement offer does not shine as a beacon against pretax profits

last year ... and company assets;

Distillers could and should think again.

The House of Lords:

held that it was a contempt of court to use improper pressure to

induce a litigant to settle a case;

was divided as to whether the criticism in the article amounted

to improper pressure or was fair and temperate.

Prejudging result of proceedings

In the abovementioned case the House of Lords also considered a

proposed article containing detailed evidence and argument to show

that the thalidomide manufacturers had not exercised due care. The

House of Lords held that the proposed article would be contempt

because the fair trial of the proceedings would be prejudiced.

In Australia a broadcast occurred shortly before the commencement of

criminal proceedings. The broadcast:

was concerned with the Age tapes, not with the criminal

proceedings;

made statements which the NSW Court of Appeal held to imply

that the accused person was guilty;

was held by that Court to be a contempt of court.



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Also in Australia, a prominent public officer was asked by a journalist

for his view of a court order overturning a conviction of a person and

granting a fresh trial. The officer expressed his belief that the accused

person was innocent and that a different result would be achieved at

the fresh trial. That statement was held to be a contempt of court.

An Inquiry into Matters Covered by Court Proceedings

Situations can arise where the subject matter of a particular court case

is also a matter, or related to a matter, of public interest into which a

Government might wish to conduct an inquiry. In that event, the

question arises whether the conduct of the inquiry would amount to a

contempt of court. The position has been summarised as follows:

The discussion of public affairs and the denunciation of public abuses,

actual or supposed, cannot be required to be suspended merely

because the discussion or the denunciation may, as an incidental but

not intended by-product, cause some likelihood of prejudice to a

person who happens at the time to be a litigant.

(Ex parte Bread Manufacturers Ltd47)

The High Court of Australia has stated that the conduct of a Royal

Commission would constitute a contempt of court if it actually

interfered with the administration of justice or had a real and definite

tendency to do so: Victoria v BLF 48

Factors which a court will take into account in deciding whether the

conduct of an inquiry constitutes contempt of related court

proceedings include:

47(1937) 37 SR (NSW) 242 at pages 24925048(1982) 152 CLR 25.



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Whether the court proceedings are civil or criminal As is to be

expected, a court will be especially vigilant to protect the

integrity of criminal proceedings.

Whether the facts in the court proceedings will be determined by

a judge or by a jury A court will be concerned at the prospect of

a jury being influenced by a related inquiry but will generally

regard a judge as not being capable of being so influenced.

The extent to which the inquiry is examining matters covered by

the court proceedings If the inquiry avoids considering, or

receiving evidence relating to, the guilt or innocence of the party

in the court proceedings, the inquiry is far less likely to be held to

be in contempt of court.

Whether the inquiry is being held in public or in private

Obviously, if an inquiry being held in private, the potential for a

jury to be influenced by its proceedings is remote.

Does the inquiry have compulsory evidence gathering powers

An inquiry which was exercising a power to compel a person to

disclose information or documents relevant to that persons casein court proceedings might be held to be in contempt of court,

especially where the information or documents were prejudicial

to that persons case in the court proceedings.

The extent to which the particular proposed conduct by the

inquiry is authorised by statute The more detailed the statute

establishing the inquiry, the less likely it is that the inquirys

conduct pursuant to that statute would be a contempt of court.

Disclosure of documents to the court

It is vital to ensure either that a court order requiring disclosure of

documents is fully complied with, or that any deficiency in compliance



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is brought to the courts attention. In a case in Australia, the facts as

found by the court were as follows. A government officer received a

court subpoena on a Friday morning. The subpoena required

production of documents the following Monday morning. The officer

conducted a search for documents within Australia. That search

revealed no documents answering the subpoena. The officer arranged

for the court to be informed that there were no documents answering

the subpoena. In subsequent proceedings it became apparent that the

relevant department had held documents at an overseas post. The

Court held the officer guilty of contempt and ordered the officer to pay

costs of several thousands of dollars. The court clearly intimated that,

if it had found the contempt to have been deliberate, a more severe

penalty would have been imposed. If time did not permit a full and

thorough search, the court should have been so informed and

requested to grant further time.

Use of documents obtained by a courts compulsory

process

Subject to certain qualifications, a party to court proceedings who

receives information pursuant to the courts compulsory process is

subject to an implied undertaking, given to the court, not to use or

disclose the information except for the purpose of those proceedings.

The undertaking applies to all forms of a courts compulsory process,

eg. subpoena, discovery, interrogatories, orders requiring production of

affidavits or witness statements. A breach of the undertaking (eg. by

disclosure of the information to the media or for the purpose of

another court case) is a contempt of court.

The qualifications are:



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the court may grant leave for the proposed use or disclosure, or

the person from whom the information was obtained may

consent to the use or disclosure;

the undertaking ceases upon the information being admitted into

evidence in open court.

Eg. Eltran Pty Ltd v Westpac Banking Corporation (1990) 98

ALR 141; Sentry Corporation v Peat Marwick Mitchell &

Co (1990) 24 FCR 463.

It has been held that the implied undertaking exists in relation to

information obtained by compulsory process in the Administrative

Appeals Tribunal: Otter Gold Mines Ltd v McDonald(1997) 147 ALR 322.

Statements about a judge

A statement that a judges conduct in court, or the judges decision,

has been influenced by some factor other than the evidence in court

and the judges view of the law, can be a contempt of court. For

example, a statement by a union official that union action had been

the main reason for a particular court decision was held to be

incorrect and a contempt of court Gallagher v Durack(1983) 45 ALR

53. This is because such a statement undermines the administration of

justice by lowering the authority of the court in the minds of the

general public.

Conversely, a statement that a judges decision showed that the judge

was a racist judge was held not be a contempt of court:Attorney-

General for NSW v Mundey49. In the circumstances of that case, the

statement was accepted as being a statement about racism generally

49(1972) 2 NSWLR 887



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in Australian society and thus not being an attack upon the judge or

court as such, but an attack upon society, and its laws (at page 913).

Also, it is no contempt of court to criticise court decisions when thecriticism is fair and not distorted by malice and the basis of the

criticism is accurately stated. To the contrary, a public comment fairly

made on judicial conduct that is truly disreputable (in the sense that it

would impair the confidence of the public in the competence or

integrity of the court) is for the public benefit: Nationwide News Pty Ltd

v Wills50Abuse of a judge in the court proceedings themselves will

generally be a contempt of court. Otherwise, attacks on a judges

personal reputation will be left for determination under the law of

defamation, unless the attacks also undermine the administration of

justice.

Improper pressure on a witness or juror

Punishing an employee for being a witness or juror, or pressuring a

witness about what evidence to give, can be a contempt of court.

Destruction of documents

It can be a contempt of court to destroy documents likely to be

required for court proceedings, even if:

no subpoena has yet been issued for their production;

the documents were not essential for the proceedings.

Inhibiting access to courts

50(1992) 177 CLR 1 at 389.



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It is a contempt of court to engage in conduct having a real tendency

to put pressure on litigants, witnesses and other persons who must be

left to come and go in connection with court business free from threat

or harassment: Registrar v Unnamed Respondent(unreported) Miles

CJ ACT Supreme Court 16/3/94. Arresting, or taking photographs of, a

litigant in court precincts has been held to be a contempt. However,

there is no general law that all service of process within the precincts

of a court constitutes a contempt of that court: Re OSullivan; Ex parte

OSullivan v Commonwealth Bank of Australia (1995) 129 ALR 295.

Service of a bankruptcy notice in court precincts has been held not to

be a contempt of court. Service of a witness summons would probably

generally also not be a contempt of court. Each case needs to be

considered on its own facts.

Breaching a court order

A person can commit a contempt of court by breaching an order

directed to that person. Also, it has been held that a newspaper

which published material, knowing that another newspaper was

injuncted from publishing that material, was guilty of contempt of

court. The consequence of the publication was to nullify the

injunction against the other newspaper: Attorney-General v Times

Newspapers Ltd51

Procedure for Contempt dealings

The criminal contempt of court undoubtedly amounts to an offence

but it is an offence sui generis and hence for such offence, the

procedure adopted both under the common law and the statute law

51(1991) 2 WLR 995.



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even in this country has always been summary. However, the fact

that the process is summary does not mean that the procedural

requirement, viz., that an opportunity of meeting the charge, is

denied to the contemner. The degree of precision with which

the charge may be stated depends upon the circumstances. So long

as the gist of the specific allegations is made clear or otherwise

the contemner is aware of the specific allegation, it is not always

necessary to formulate the charge in a specific allegation. The

consensus of opinion among the judiciary and the jurists alike

is that despite the objection that the Judge deals with the

contempt himself and the contemner has little opportunity to

defend himself, there is a residue of cases where not only it is

ustifiable to punish on the spot but it is the only realistic way of

dealing with certain offenders. This procedure does not offend

against the principle of natural justice, viz., Nemo judex in sua

causa since the prosecution is not aimed at protecting the Judge

personally but protecting the administration of justice. The

threat of immediate punishment is the most effective deterrentagainst misconduct. The Judge has to remain in full control of the

hearing of the case and he must be able to take steps to restore

order as early and quickly as possible, The time factor is crucial.

Dragging out the contempt proceedings means a lengthy

interruption to the main proceedings which paralyses the court for a

time and indirectly impede the speed and efficiency with which

justice is administered. Instant justice can never be completely

satisfactory yet it does provide the simplest, most effective and

least unsatisfactory method of dealing with disruptive conduct in

Court. So long as the contemner's interests are adequately

safeguarded by giving him an opportunity of being heard in his



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defence, even summary procedure in the case of contempt in the

face of the Court is commended and not faulted.

Infact in the opinion of Oswald, a court of justice should have such

power to punish brevi manu to vindicate its own dignity. A summary

and quick mode of meeting out punishment to the contemnor if he is

guilty is very efficacious in inspiring confidence in the public as to the

institution of justice. Without such protection courts would go down in

public respect and the maintenance of law and order will be in

jeopardy. In theAmrita Bazar Patrika case52, Mukherjee, J.., discussing

the need for the brevi manu procedure said:

the principle deducible from these cases is that the punishment

is inflicted for attacks of this character upon judges not with a view to

protect the court from a repetition of the attack, but with a view to

protect the public from the mischief they will incur if the authority of

the tribunal be undermined and impaired.

In the 1971 Act the provision in Section 14 retains the summary

procedure in cases of ex-facie contempt. In the matter of what istermed constructive contempt i.e contempt as to acts or writings

outside the court which is brought later to the notice of the court teh

procedure is entirely different (vide sections 17 and 18 of the 1971

Act). It must be remembered that only courts of record can claim such

summary powers. These summary powers of the Supreme Court and

the High courts as courts of record are in no way effected by or limited

by the procedure set out in sections 14, 15, 17 an d18 of the 1971 Act.

These court of record do, even after the passing of the 1971 Act, have

their inherent and long established powers to deal summarily in

matters of contempt. 53

52 45 Cal 16053 Supreme Court Bar Association V. Union of India, (1998) 4SCC 409; Delhi Judicial Service Assn. v.

State of Gujarat, (1991) 4SCC 406



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Also apart from the Contempt of Court Act, 1971, we have Rules to

regulate proceedings for contempt of the Supreme Court, 1975. The

rules have been made in furtherance of the Supreme Court Rules, 1966

and for exercise of the powers under section 23 of the Contempt of

Courts Act, 1971, read with article 145 of the Constitution of India and

all other powers enabling it in this behalf. The above stated rules also

contain Performa for sending notice of contempt and warrant of

commitment of contempt etc. the rules are as herein stated under:-



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RULES TO REGULATE PROCEEDINGSFOR CONTEMPT OF THE SUPREME COURT,

197554

In exercise of the powers under section 23 of the Contempt of Courts

Act, 1971, read with article 145 of the Constitution of India and all

other powers enabling it in this behalf, the Supreme Court hereby

makes, with the approval of the President, the following rules:

1. (1) These Rules may be called the Rules to Regulate Proceedings for

Contempt of the Supreme Court, 1975.(2) They shall come into force on the date of their publication in the

Official Gazette.

PART I

2. (1) Where contempt is committed in view or presence or hearing of

the Court, the contemner may be punished by the Court before which

it is committed either forthwith or on such date as may be appointed

by the Court in that behalf.

(2) Pending the determination of the charge, the Court may direct that

the contemner shall be detained in such custody as it may specify:

Provided that the contemner may be released on bail on such terms as

the Court may direct.

PART II

3. In case of contempt other than the contempt referred to in rule 2,

the Court may take action: -

(a) suo motu, or

(b) on a petition made by Attorney General, or Solicitor General, or

54Vide G.S.R. 142, dated 24th January, 1975 (w.e.f. 1-2-1975).



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(c) on a petition made by any person, and in the case of a criminal

contempt with the consent in writing of the Attorney General or the

Solicitor General.

4. (a) Every petition under rule 3(b) or (c) shall contain: -(i) the name,

description and place of residence of the petitioner or petitioners and

of the persons charged;

(ii) nature of the contempt alleged, and such material facts, including

the date or dates of commission of the alleged contempt, as may be

necessary for the proper determination of the case;

(iii) if a petition has previously been made by him on the same facts,

the petitioner shall give the details of the petition previously made and

shall also indicate the result thereof;

(b) The petition shall be supported by an affidavit.

(c) Where the petitioner relies upon a document or documents in his

possession or power, he shall file such document or documents or true

copies thereof with the petition.

(d) No Court-fee shall be payable on the petition, and on any

documents filed in the proceedings.5. Every petition under rule 3 (b) and (c) shall be posted before the

Court for preliminary hearing and for orders as to issue of notice. Upon

such hearing, the Court, if satisfied that no prima facie case has been

made out for issue of notice, may dismiss the petition, and, if not so

satisfied direct that notice of the petition be issued to the contemner.

6. (1) Notice to the person charged shall be in Form I. The person

charged shall, unless otherwise ordered, appear in person before the

Court as directed on the date fixed for hearing of the proceeding, and

shall continue to remain present during hearing till the proceeding is

finally disposed of by order of the Court.



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(2) When action is instituted on a petition, a copy of the petition along

with the annexures and affidavits shall be served upon the person

charged.

7. The person charged may file his reply duly supported by an affidavit

or affidavits.

8. No further affidavit or document shall be filed except with the leave

of the Court.

9. Unless otherwise ordered by the Court, seven copies of the paper

book shall be prepared in the Registry, one for the petitioner, one for

the opposite party and the remaining for the use of the Court. The

Paper Book in the case shall be prepared at the expense of the Central

Government and shall consist of the following documents:-

(i) Petition and affidavits filed by the petitioner,

(ii) A copy of, or a statement relating to, the objectionable matter

constituting the alleged contempt,

(iii) Reply and affidavits of the opposite party,

(iv) Documents filed by the parties,

(v) Any other documents which the Registrar may deem fit to include.10. The Court may direct the Attorney General or Solicitor General to

appear and assist the Court.

11. (1) The Court may, if it has reason to believe, that the person

charged is absconding or is otherwise evading service of notice, or if

he fails to appear in person or to continue to remain present in person

in pursuance of the notice, direct a warrant bailable or non-bailable for

his arrest, addressed to one or more police officers or may order

attachment of property. The warrant shall be issued under the

signature of the Registrar. The warrant shall be in Form II and shall be

executed, as far as may be, in the manner provided for execution of

warrants under the Code of Criminal Procedure.



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(2) The warrant shall be executed by the officer or officers to whom it

is directed, and may also be executed by any other police officer

whose name is endorsed upon the warrant by the officer to whom it is

directed or endorsed.

(3) Where a warrant is to be executed outside the Union Territory of

Delhi, the Court may instead of directing such warrant to police officer,

forward it to the Magistrate of the District or the Superintendent of

Police or Commissioner of Police of the district within which the person

charged is believed to be residing. The Magistrate or the police officer

to whom the warrant is forwarded shall endorse his name thereon, and

cause it to be executed.

(4) Every person who is arrested and detained shall be produced

before the nearest Magistrate within a period of twenty-four hours of

such arrest excluding the time necessary for the journey from the

place of arrest to the Court of the Magistrate, and no such person shall

be detained in custody beyond the said period without the authority of

a Magistrate.

12. The Court may, either suo motu, or on motion made for thatpurpose, order the attendance for cross-examination, of a person

whose affidavit has been filed in the matter.

13. The Court may make orders for the purpose of securing the

attendance of any person to be examined as a witness and for

discovery or production of any document.

14. The Court may pass such orders as it thinks fit including orders as

to costs which may be recovered as if the order were a decree of the

Court.

15. Save as otherwise provided by the rules contained herein, the

provisions of the Supreme Court Rules, 1966, shall, so far as may be,

apply to proceedings in relation to proceedings in contempt under this

Part.



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PART III

16. Where a person charged with contempt is adjudged guilty and is

sentenced to suffer imprisonment, a warrant of commitment and

detention shall be made out in Form IV under the signature of the

Registrar. Every such warrant shall remain in force until it is cancelled

by order of the Court or until it is executed. The Superintendent of the

Jail shall in pursuance of the order receive the person so adjudged and

detain him in custody for the period specified therein, or until further

orders.



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THE SUPREME COURT RULES, 1966

FORM I

NOTICE TO A PERSON CHARGED WITH CONTEMPT OF COURT

[Rule 6]

IN THE SUPREME COURT OF INDIA

(Original Jurisdiction)

Whereas your attendance is necessary to answer a charge of Contempt of Court

by (here briefly state nature of the contempt).

You are hereby required to appear in person (or by Advocate if the Court has so

ordered) before this Court at New Delhi on the_________day of_____200__ at 10.30

oclock in the forenoon.

You shall attend the Court in person* on the _________day of______200__and

shall continue to attend the Court on all days thereafter to which the case against you

stands adjourned and until final orders are passed on the charge against you.

Herein fail not.

Dated this _______day of ____200__

(SEAL)

REGISTRAR

*To be omitted where the person charged is allowed or ordered to appear by

Advocate.



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FORM II

WARRANT OF ARREST

[Rule II]



To

(Name and designation of the person or persons who is or are to execute the warrant)

Whereas ___________of_____________is charged with committing contempt of

this Court, you are hereby directed to arrest the said______and to produce him before this

Court on the_______day of______200__ at 10.30 oclock in forenoon.

Herein fil not.

(If the Court has issued a bailable warrant, the following endorsement shall be

made on the warrant)

If the said_______shall give bail in the sum of Rs._________with one surety in

the sum of Rs._________( or two sureties each in the sum of Rs.__________) to attend

before this Court on the _______day of_____200___, at 10.30 oclock in the forenoon

and to continue so to attend until otherwise directed by this Court, he may be released.

(SEAL) REGISTRAR



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FORM III

BOND AND BAIL-BONDS AFTER ARREST UNDER A WARRANT IN TH

E SUPREME

COURT OF INDIA


I,____________(name) of_____________being brought before the District

Magistrate of_____________(or as the case may be) under a warrant issued to compel

my appearance to answer to the charge of contempt of the Supreme Court do hereby bind

myself to attend the Supreme Court on the _________day of_________next, to answereto the said charge, and to continue so to attend, until, otherwise directed by the Supreme

Court, and in case of my making default herein, I bind myself to forfeit to Union India,

the sum of rupees______________________

Dated this__________day of____________200___

(SIGNATURE)

I do hereby declare myself surety for the above named of_________that he shall

attend before_____________in the Supreme Court on the __________day

of_________next, to answer to the charge on which he has been arrested, and shall

continues to attend until otherwise directed by the Supreme Court, and, in case of his

making default therein, I bind myself to forfeit to Union of India, the sum of

rupees_______________.

Dated this_________day of______200__

(SIGNATURE)



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FORM IV

WARRANT OF COMMITMENT FOR CONTEMPT

[Rule 16]



To the Superintendent (or Keeper) of the Jail at__________

Whereas at the Court Holden on this day (name and description of the contemner)

has been adjudged by the Court guilty of willful contempt of Court, and he has been

sentenced to suffer imprisonment for the period___________(here specify the term)and/or to pay a fine of rupees_______

This is to authorise and require you, the Superintendent (or Keeper) of the said

Jail, to receive the said (name of the contemner) into your custody, together with this

warrant, and him safely to keep in the said Jail for the said period of (term of

imprisonment) or for such shorter period as may hereafter be fixed by order of this Court

and intimated to you. You are directed to return this warrant with an endorsement

certifying the manner of its execution.

You are further directed that while the said__________is in your custody,

produce the said__________before the Court, at all times when the Court shall so direct.

Given under my hand and the seal of the Court, this_________day

of______200__

(SEAL)REGISTRAR



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Defences to Contempt

Impossibility of Performance: A Complete Defense

In any contempt proceeding for failure to obey a court order, the

inability to obey the particular order is a complete defense.55 This is

known as the "impossibility of performance" defense. This defense will

be available so long as the inability to comply or the impossibility to

perform was not created by the individual to whom the order is

directed at the time of, or close in time to, the court's order being

issued.

The court will examine the nexus in time between the date the

impossibility was created and the date the court's order issued. If a

nexus is found between these two dates such that it can be shown by

the requisite burden of proof that the defendant knew or reasonably

should have known at the time the impossibility was created that a

court order would enter, the court will likely find the impossibility wascreated in bad faith and the impossibility of performance defense will

likely be lost.

The impossibility of performance defense is outlined by the Second

Circuit Court of Appeals in the case ofBadgley v. Santacroce:56

The purpose of civil contempt, broadly stated, is to compel a reluctant

party to do what a court requires of him. Because compliance with a

court's directive is the goal, an order of civil contempt is appropriate

"only when it appears that obedience is within the power of the party

being coerced by the order."57 A court's power to impose coercive civil

contempt is limited by an individual's ability to comply with the court's

55 United States v. Bryan, 339 U.S. 323, 330 (1950)56 800 F.2d 33 (2nd Cir. 198657 Maggio v. Zeitz, 333 U.S. 56, 69, 92 L.Ed. 476, 68 S.Ct. 401 (1948).



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coercive order. 58A party may defend against contempt by showing

that his compliance is "factually impossible."59 In the arena of asset

protection planning, the creation and funding of the planning structure

takes place well in advance of any dispute or claim giving rise to

proceedings in which a subpoena, court order compelling action, or the

like will issue. As such, the time nexus between the creation of the

trust (i.e., what one might claim is the act that creates the inability to

perform) and the issuance of some future subpoena or court order, will

be absent. In this case, the defense of impossibility of performance can

be expected to be a complete defense to a proceeding of contempt of

court When determining whether an alleged contemnor has the ability

to comply with a court's order, the court is generally limited to

examining the facts and circumstances that exist at the time the order

is issued that create the impossibility on the part of the contemnor.

Thus, in the Rylander case, 60the court ordered Rylander to produce

certain corporate documents. At the time the order entered, Rylander

did not have possession of the documents and was no longer a

corporate officer. Because insufficient proof was offered to showRylander had actual possession of the documents and that he did not

have access to the documents without committing some extreme act,

the United States Supreme Court permitted his defense of impossibility

and ruled Rylander could not be held in contempt of the court's order.

Self-Created Impossibility and Good Faith Inability to comply with a

court's order will not be recognized as a valid defense in those

situations where the impossibility to perform was self-created for the

specific purpose of avoiding a court's order or subpoena that has been

58 Shillitani v. United States, 384 U.S. 364, 371, 16 L.Ed. 2d 622, 86 S.Ct. 1531 (1966); Maggio v.Zeitz, supra, 333 U.S. at 72-73.59 United States v. Rylander, 460 U.S. 752, 757, 75 L.Ed. 2d 521, 103 S.Ct. 1548 (1983).

60United States v. Rylander, 460 U.S. 752 (1983)



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or is about to be issued.61 In other words, the mere fact that the

defendant created the impossibility is not of particular relevance. It is

when the defendant creates the impossibility that is important.

In situations where courts have examined the issue of self-created

impossibility, the courts have consistently ruled that contempt will not

apply unless the alleged contemnor acted in bad faith. Bad faith will

not be found unless there exists some nexus in time between the

creation of the impossibility and the issuance of the court's order or

subpoena. In the Blaine case,62Blaine claimed he was unable to comply

with a court's order to produce corporate documents, for which he

served as president, on the basis he had transferred all of the

documents to his attorney five months prior to being served with the

subpoena. When the order to produce the documents was issued,

Blaine's attorney returned the documents to him, but several files were

missing. When the attorney and Blaine testified they did not know the

whereabouts of the missing files, the court found no basis for a finding

of bad faith and thus no contempt. Specifically, the court ruled, "it

must appear by the legal preponderance of the evidence that . . . atthe time of the service of the subpoena [the defendant] had possession

or control of the documents."63

Contrast the result in Blaine with the result in Goldstein. In the latter

case, the Second Circuit Court of Appeals found the defendant's

inability to comply with a subpoena for the production of documents to

have been created in bad faith.64 The defendant disposed of

documents subject to the subpoena eleven days prior to the issuance

of the subpoena and had reason to know the subpoena would be

61See 17 C.J.S. Contempt 19 (63)

62See Federal Trade Commission v. Blaine, 308 F. Supp. 932 (N.D. Ga. 1970); see also Ex parteFuller, 50 S.W. 2d 654 (Mo. 1932)63

Id. at 932-3364

United States v. Goldstein, 105 F.2d 150 (2nd Cir. 1939)



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issued at or about the time he undertook to dispose of the documents.

As such, the court found the defense of impossibility of performance to

be ineffective.

Proving Good Faith

As part of the showing of good faith, the defendant needs to be

prepared to prove there was no ability to perform. Specifically, the

defendant must show he took steps within his power to comply with

the court order and must offer proof to this extent.65

Furthermore, the inability must be shown to have existed for a period

of time sufficient to avoid a nexus in time being established between

the time the inability to perform arose and the time the order or

subpoena issued.

For asset protection planning purposes, the earlier steps are taken to

move the assets offshore and into the complete control of the foreign

trustee, the more likely the impossibility defense will prevail. Thus, the

more tenuous the nexus in time, the more difficult it will be for the

court to find bad faith on the part of the alleged contemnor. In

addition, the defendant must make all reasonable attempts to comply

with the court's order and adequately document all such efforts.

Tendering & Acceptance of apology

The apology to be available to the contemnor must be sincere and

unconditional. It must be definite and must be made early enough inthe proceedings to merit full consideration. The Supreme court in Re

Vinay Chandra Mishra66 [the alleged contemner] had rejected the

65Stotler and Co. v. Able, 870 F.2d 1158 (7th Cir. 1989); Foust v. Denato, 175 N.W.2d

403 (Iowa 1970)

66 AIR 1995 SC 2348; (1995) 2 SCC 584



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apology on the following grounds; The contemner has no doubt

tendered an unconditional apology on 7th October, 1994 by

withdrawing from record all his applications, petitions, counter

affidavits, prayers and submissions made 619 at the Bar and to the

court earlier. We have reproduced that apology verbatim earlier. In

the apology he has pleaded that he has deeply and regretfull realised

that the situation, meaning thereby the incident, should never have

arisen and the fact that it arose has subjected him to anguish

and remorse and a feeling of moral guilt. That feeling has been

compounded with the fact that he was a senior advocate and was

holding the elective posts of the President of the High Court Bar

Association and the Chairman of the Bar Council of India which by their

nature show that he was entrusted by his professional fraternity to set

up an example of an ideal advocate. He has guiltily realised his ailure

to approximate to this standard resulting in the present

proceedings and he was, therefore, submitting his unconditional

apology for the incident in question.

We have not accepted this apology, firstly because we find that theapology is not a free and frank admission of the misdemeanor he

indulged in the incident in question. Nor is there a sincere regret

for the disrespect he showed to the learned Judge and the Court, and

for the harm that he has done to the judiciary. On the other hand,

the apology is couched in a sophisticated and garbed language

exhibiting more an attempt to justify his conduct by reference to

the circumstances in which he had indulged in it and to exonerate

himself from the offence by pleading that the condition in which the

"situation" had developed was not an ideal one and were it ideal, the

"situation" should not have arisen. It is a clever and disguised

attempt to refurbish his image and get out of a tight situation by not

only not exhibiting the least sincere remorse for his conduct but by



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trying to blame the so-called circumstances which led to it. At the

same time, he has attempted to varnish and re-establish himself as a

valiant defender of his "alleged duties" as a lawyer.

Secondly, from the very inception his attitude has been defiant and

belligerent. In his affidavits and application, not only he has not shown

any respect for the learned Judge, but has made counterallegations

against him and has asked for initiation of contempt proceedings

against him. He has even chosen to insinuate that the learned

Judge by not taking contempt action on the spot and instead writing

the letter to the Acting Chief Justice of the High Court, had adopted a

devious way and that he had also come to Delhi to meet " meaningful"

people. These allegations may themselves amount to contempt of

court. Lastly, to accept any apology for a conduct of this kind and

to condone it, would tantamount to a failure on the part of this Court

to uphold the majesty of the law, the dignity of the court and to

maintain the confidence of the people in the judiciary. The Court

will be failing in its duty to protect the administration of justice

from attempts to enigrate and lower the authority of the judicialofficers entrusted with the sacred task of delivering justice. A failure

on the part of this Court to punish the offender on an occasion such

as this would thus be a failure to perform one of its essential duties

solemnly entrusted to it by the Constitution and the people. For

all these reasons, we unhesitatingly reject the said so called apology

tendered by the contemner.



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CHAPTER-III

Constitutional Aspect of

Contempt of Court



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Contempt of court vis-a-vis Freedom ofSpeech and expression

Let me say at once that we will never use this jurisdiction as a means

to uphold our own dignity. That must rest on surer foundations. Nor

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 freedom of speech itself.Lord

Denning

The Constitution has no doubt been created by the people. But this

instrument has itself created the Courts, which means that the people

in their wisdom realized that there must be a forum (or fora) where

disputes between the people could be resolved and grievances of the

people redressed peacefully.

It is in the nature of things that in every society there will be disputes

between the people and grievances of the people. If there is no forum

to resolve these disputes and redress these grievances peacefully,

they will be resolved violently with bombs, guns, knives and lathis.

Hence the judiciary is a great safety valve. By giving a hearing to a

person having a grievance, and by giving a verdict on the basis of

settled legal principles, the Court pacifies that person, otherwise the

grievance may erupt violently. The judiciary thus maintains peace in

society, and no society can do without it.

Looking at it from this angle one can immediately realize that in a

democracy the purpose of the Contempt of Court power can only be toenable the Court to function. The power is not to prevent the master

(the people) from criticizing their servant (the Judges) if the latter do

not function properly or commit misconduct.



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Article 19(1)(a) of the Constitution gives the right of freedom of speech

and expression to all citizens. But Articles 129 and 215 give the power

of Contempt of Court to the higher judiciary, and this power limits the

freedom granted by Article 19(1)(a). How are these two provisions to

be reconciled?

In my opinion once it is accepted that India is a democracy, and that in

a democracy the people are supreme, the reconciliation can only be

affected by treating the right of the citizens of free speech and

expression under Article 19(1)(a) to be primary, and the power of

contempt to be subordinate. In other words, the people are free, and

have the right to criticize Judges, but they should not go to the extent

of making the functioning of the judiciary impossible or extremely

difficult. Thus the test to determine whether an act amounts to

Contempt of Court or not is this : does it make the functioning of the

Judges impossible or extremely difficult? If it does not, then it does not

amount to Contempt of Court, even if it is harsh criticism.67

In a speech delivered on 1.12.2001 in Jaipur on the topic The Law of

Contempt is it being stretched too far? The doyen of the Indian Bar,Mr. Fali N

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