338 CHAPTER - 7 PUNISHMENT AND PROCEDURE FOR CONTEMPT OF COURT Since the dawn of history, contempt of court was treated as a serious offence as it leads to interference with administration of justice. 1 In India, as discussed earlier, the contempt power of courts was recognized only by the advent of British rule that too by establishing courts of record. 2 At present, punishment for contempt of court is invoked by the lower courts under the relevant provisions of Indian Penal Code and Civil Procedure Code 3 . The Supreme Court’s contempt jurisdiction is established under Article 129 and the High Courts could invoke contempt jurisdiction under Articles 227 and 215 of Indian Constitution and under the Contempt of Courts Act, 1971 4 . When a proceeding is initiated for contempt of court under the relevant provisions of Indian Penal Code, the same is governed by the Criminal Procedure Code and the Indian Evidence Act. 5 Further for interference with administration of justice, which is the crux of contempt of court, punishments ranging from capital punishment to one month’s simple imprisonment, with or without fine could be imposed under the relevant provisions of the Indian Penal Code. 6 Similarly the significance and application of provisions under the Civil Procedure Code to enforce directions or orders of the Court to ensure due administration of justice and effect of noncompliance of the same is also dealt with. 7 Further contempt proceedings initiated by the Supreme Court and the High Courts under Articles 129 and 215 as courts of record, punishment which could be imposed, procedure to be followed and judicial response to such proceedings have already been discussed. 8 This chapter focuses on 1 Eric Fleisig-Greene, Why Contempt is Different: Agency Costs and "Petty Crime" in Summary Contempt Proceedings, 112 Yale L J 1223, 1224 (2003). It was pointed out that a court without contempt power would be at best a mere debating society, and not a court. It is, and must be, a power arbitrary in its nature, and summary in its execution. Id at 1223. 2 For details see Chapter- 2, Origin and History of Contempt power, Pp. 33 - 35. 3 Id at Pp. 39 - 63. 4 For details see Chapter - 4, Indian Constitution and Contempt of Court. 5 For details see Chapter- 2, Origin and History of Contempt Power. 6 Id at Pp. 35 - 58. 7 Id at Pp. 58 - 63. 8 See Chapter - 4, Indian Constitution and Contempt of Court.
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CHAPTER - 7
PUNISHMENT AND PROCEDURE FOR CONTEMPT OF COURT
Since the dawn of history, contempt of court was treated as a serious offence
as it leads to interference with administration of justice.1 In India, as discussed earlier,
the contempt power of courts was recognized only by the advent of British rule that
too by establishing courts of record.2 At present, punishment for contempt of court is
invoked by the lower courts under the relevant provisions of Indian Penal Code and
Civil Procedure Code3. The Supreme Court’s contempt jurisdiction is established
under Article 129 and the High Courts could invoke contempt jurisdiction under
Articles 227 and 215 of Indian Constitution and under the Contempt of Courts Act,
19714. When a proceeding is initiated for contempt of court under the relevant
provisions of Indian Penal Code, the same is governed by the Criminal Procedure
Code and the Indian Evidence Act.5 Further for interference with administration of
justice, which is the crux of contempt of court, punishments ranging from capital
punishment to one month’s simple imprisonment, with or without fine could be
imposed under the relevant provisions of the Indian Penal Code.6 Similarly the
significance and application of provisions under the Civil Procedure Code to enforce
directions or orders of the Court to ensure due administration of justice and effect of
noncompliance of the same is also dealt with.7 Further contempt proceedings initiated
by the Supreme Court and the High Courts under Articles 129 and 215 as courts of
record, punishment which could be imposed, procedure to be followed and judicial
response to such proceedings have already been discussed.8 This chapter focuses on
1 Eric Fleisig-Greene, Why Contempt is Different: Agency Costs and "Petty Crime" in Summary Contempt Proceedings, 112 Yale L J 1223, 1224 (2003). It was pointed out that a court without contempt power would be at best a mere debating society, and not a court. It is, and must be, a power arbitrary in its nature, and summary in its execution. Id at 1223. 2 For details see Chapter- 2, Origin and History of Contempt power, Pp. 33 - 35. 3 Id at Pp. 39 - 63. 4 For details see Chapter - 4, Indian Constitution and Contempt of Court. 5 For details see Chapter- 2, Origin and History of Contempt Power. 6 Id at Pp. 35 - 58. 7 Id at Pp. 58 - 63. 8 See Chapter - 4, Indian Constitution and Contempt of Court.
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punishments for contempt of court under the Contempt of Courts Act, 1971, and
procedure to be followed in such proceedings.
Traditionally in England as well as in United States, courts have exercised
their contempt power to impose fines and imprisonment within ill-defined, perhaps
arbitrary boundaries.9 Often punishments for contempt were severe, cruel and
barbarous10 and assumed its full vigor when it was committed in the face of the
court.11 The generally cited example from English law for barbarous punishment was
reported as early as in 1631. The conduct which formed the basis of contempt
proceeding was committed before Richardson, C.J, sitting at Salisbury Summer
Assizes.12 In that case the prisoner having been adjudged guilty of felony, threw
something against the judge who decided the matter. The conduct was treated as
contempt in the face of the court. An indictment was immediately drawn and as
punishment his right hand was cut off and he was immediately hanged.13 Similarly in
1634 one James William, a felon threw a stone at a judge on the Bench for which he
was at once indicted, convicted and judged to have his right hand cut off - and it was
executed accordingly in open court.14 Further the amputated hand was fixed over the
entrance gate of Chestre Castle, where it remained for some years.15 In Ex Parte
Burrows,16 breaking open a desk at Court Registrar’s Office was treated as a case of
contempt and punishment was imposed. Under common law, it was not necessary that
for attracting severe punishment, the offence must have been committed against the
judge. Riots in the superior courts or in the premises of the courts were also treated as
serious wrongs and were severely dealt with. Thus one Bellingham was sentenced to
have his hand cut off for riot in the court.17 Assault committed in the courts presence
against witnesses or such other persons associated with judicial proceeding often
9 Thomas C. Ackerman, Standards of Punishment in Contempt Cases, 39 Cal L R 552, 552 (1951). 10 George Stuart Robertson, Oswald’s contempt of court 237 (Butterworth London 3rd ed. 1993). 11 For details regarding contempt in the face of court, see Chapter 5, Classification of Contempt - Rationale and Need For Pp 312 - 340. 12 Excerpted in Gordon Borrie and Nigel Lowe, The Law of Contempt 10 (Butterworths London 1973). 13 Id. 14 Anon (1634), Chester Docket Book (1603-52), 166, excerpted in Robertson, Oswald’s Contempt of Court at 42 (cited in note10).
15 Id. In another instance when a judge was attacked with an egg the culprit was committed to prison and was discharged only after five months. In re Congrave (1877), Seton, judgment and orders (ed.6),465; Times, March 17, excerpted in Robertson, Oswald’s Contempt of Court at 42 (cited in note10).
16 (1803) 8 ves 535, excerpted in Robertson, Oswald’s Contempt of Court at 14 (cited in note10). 17 4 Bl.Comm.III; 1 East, P.C 408, excerpted in Robertson, Oswald’s Contempt of Court at 43 (cited in
note 10).
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attracted severe punishments.18 In spite of the severe nature, the history of punishment
for contempt shows that common law precedents afford little guidance in the way of
concrete limits either to trial courts in administering punishment, or to appellate
courts in reviewing it.19 However cutting off the right hand of the contemnor was a
common punishment until the early seventeenth century.20
It seems that, under common law, even in modern period it would be difficult
to establish a universal formula to prescribe quantum of punishment.21 However in
modern period, punishment for contempt of court has turned comparatively merciful22
and is now limited to imprisonment, fine, apology, cost and order for good behavior.23
In English law, although civil contempt is treated as essentially a wrong done to the
person who is entitled to the benefit of the order or judgment concerned, it is well
accepted that it involves element of obstruction to fair administration of justice also
and may accordingly be punished in the same manner as a criminal contempt.24
Imprisonment
Imprisonment is the most commonly invoked modern form of punishment for
contempt of court irrespective of whether the contempt is civil or criminal. For
contempt committed in the face of the court, the punishment can be immediate and
imposed by the judge sitting in the court at the time even if the contempt is directed
18 Thus in Davis’s case, 73 E. R. 415, when all the courts were sitting in Westminster Hall, one John Davis hit a witness with his right fist and threatened to hang him for giving evidence against his friend. The conduct was treated as a serious case of contempt. As punishment, the offender was imprisoned for life, forfeited all his lands, tenements, goods and chattels and also his right hand was cut off. Excerpted in Borrie and Lowe, The Law of Contempt at 11(cited in note 12). 19 Ackerman, 39 Cal L R at 552 (cited in note 9). In determining proper punishment for contempt of court, common law approaches contempt under three different heads – criminal, coercive civil, and compensatory civil. The differentiation is based on the principle that different purposes and rules govern each. Id. 20 See Oldfield’s case (1610), 12 Co. Rep.71, Wallers case (1634) Cro. Car. 373, excerpted in Borrie and Lowe, The Law of Contempt at 11(cited in note 12). 21 Ackerman, 39 Cal L R at 561 (cited in note 9). Recently the Pakistan Supreme Court disqualified Yusuf Raza Gilani as Gilani as Prime Minister after his conviction for contempt of court. See The Hindu June, 20 – 2012. P. 1. 22 It has been pointed out that the courts have also shown some self-consciousness about the exercise of the summary contempt power, and at times have limited some of its harshness through judicial interpretation and the technique has been treated as more effective than direct legislation in this regard. Ronald Goldfarb, The Constitution and Contempt of Court, 61 Mich L Rev 283, 285 (1962). 23 Robertson, Oswald’s contempt of court at 237 (cited in note 10). See also Morris v The Crown office, [1970] 1 All ER 1079. In this case describing the powers of criminal contempt in modern days it was observed that the powers at common law remain intact. It is a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over to be of good behavior and keep the peace, and to bind over to come up for judgment if called on. Id at 1083. 24 Lord Hailsham, 9 Halsbury’s Laws of England 3 ( Butterworths London 4th ed. 1974).
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against the judge himself.25 The important point to note in this regard is that, under
common law, there was no statutory limit to the length of the term of imprisonment26
and it was purely at the discretion of the court.27 The only restriction was that regard
must be paid to the severity of the offence and surrounding circumstances while
awarding punishment.28 Thus Mathew, J in Re Davies29 observed thus:30
The punishment should be commensurate with the offence. It may be severe where the contempt is grave: as for instance in the rare cases where an insult is offered in the court to the judge who presides, or where a deliberate attempt is made to interfere with the due and ordinary method of carrying out the law. On the other hand, where it appears that the act done is due to a mistaken view of the rights of the offender, the punishment, where imprisonment is deemed necessary, should be for a definite period and should not be severe.
This observation led to two conclusions. First contempt of court is a criminal offence.
Second, the punishment for contempt of court must commensurate with the gravity of
the offence. This could be achieved only if imprisonment is for a fixed term. Based on
this judgment, later in Attorney General v James,31 it was observed that in the case of
criminal contempt, the period of imprisonment should be for a fixed term as for
punishment for any criminal offence is a settled law.32 Thus imprisonment without
specifically mentioning the period of detention, came to an end.
Though the judgment established that criminal contempt is a criminal offence,
the question whether criminal contempt is just like any other criminal offence and all
principles applicable to conviction of criminal offences are equally applicable to
25 Nigel Lowe & Brenda Sufrin, The Law of Contempt 469 (Butterworths London 1996). 26 Eliahu Harnon, Civil and Criminal Contempts of Court 25 Mod L R 179, 185 (1962). 27 Arthur L. Goodhart, Newspapers and Contempt of Court in English Law, 48 Harv L Rev 885, 909 (1935). 28 To determine what is adequate punishment, the court must consider the extent, the seriousness, and the wilfulness of the defiance. Ackerman, 39 Cal L R at 554 (cited in note 9). 29 (1888) 21 QDB 236. 30 Id at 238. In deciding what punishment should be imposed, a court may give regard to the fact that the contempt was unintentional and that the published material dealt with matters of public concern. The Court may also reach the conclusion that although contempt had been committed, taking into account the publisher's reasons for publishing the material and the nature of the material, the contempt does not warrant punishment. Sally Walker, Freedom of Speech and Contempt of Court: The English and Australian Approaches Compared, 40 ICLQ 583, 589 (1991). 31 (1962) 1 All ER 255. In this case the proceeding was initiated for an order of discharge of a criminal contemnor from prison who was sentenced for an indefinite period. When the contemnor was in prison he apologised for the contempt and begged that his apology may be accepted and he may be set free. The court found that he is entitled to a release on the basis of apology. However the Court of Appeals looked into much broad question, whether a person could be committed for an indefinite period for criminal contempt of court. Id at 256. 32 Id at 256. Subsequently the same rationale was followed in Re B. (J.A) (an infant), (1965) 2 All ER 168. In this case the contempt was by attempting to prejudice the course of justice by making threats to induce a witness to refrain from giving evidence. The court committed the contemnor for a fixed term without deciding whether committal for a fixed term is necessary or not. Id at 175.
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conviction for criminal contempt also remained unsettled. This question was
specifically considered in Morris v Crown Office.33 In this case the convicted persons
for criminal contempt raised an argument that they are entitled to the benefits under
section 17 (2) of the Criminal Justice Act 1948 which provided that no court should
impose imprisonment on a person under twenty one years of age unless the court was
of the opinion that no other method of dealing with him was appropriate.34 It was
argued that, in the present case, requirements under the Act were not complied with.35
It was further contended that as the appellants were sentenced to three months
imprisonment, the judge was bound to suspend the sentence and not to imprison them
at once.36 The crucial question was whether the Criminal Justice Act was applicable to
a committal for contempt of court. Rejecting the contentions of the appellants, it was
held that the protections under the statute were not applicable to them as criminal
contempts could not be equated with other offences.37
The developments regarding maximum period of imprisonment for committal
for criminal contempt were not applicable to civil contempts. Formerly civil
contempts by noncompliance with court orders were dealt by committal for a fixed or
for an indefinite term.38 The duration of the term of imprisonment for civil contempt
depended upon the purpose for which committal was being employed.39 Committal
for a fixed term was treated appropriate where the object was punishment for past
disobedience.40 However when committal is being employed for remedial or coercive
purposes, an indefinite term may be preferred carrying maximum incentive for the
contemnor to comply with the original order and get released.41 The importance of
33 (1970) 1 All ER 1079. A group of welsh young University students who were under the age of 21, by prearrangement invaded a court of Royal Courts of Justice, London when a judge was hearing a case. They interrupted the court proceeding by shouting slogans, scattering pamphlets and singing. The conducts of the contemnors were to attract public opinion to their agitation to preserve the Welsh language. 34 S. 17 (2) of Criminal Justice Act 1948 reads- : No court shall impose imprisonment on a person under twenty one years of age unless the court is of opinion that no other method of dealing with him is appropriate; and for the purpose of determining whether any other method is of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition. 35 Morris v Crown Office, (1970) 1 All ER 1079, 1081. 36 Id at 1082. 37 Id at 1083. 38 Ronald L. Goldfarb, The contempt power 58 (Columbia University Press 1964). 39 Id at 59. 40 Id. 41 See Gompers v Buck’s Stove and Range Co., 221 US 418, 442 - 443(1911).
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this distinction regarding punishment in civil contempt was highlighted in
Danchevsky v Danchevsky,42 where Lord Denning observed thus:43
It seems to me that when the object of committal is punishment for a past offence, then, if he is to be imprisoned at all, the appropriate term is a fixed term. When it is a matter of getting a person to do something in the future - and there is a reasonable prospect of him doing it - then it may be quite appropriate to have an indefinite order against him and to commit him until he does do it. But if there is no such prospect – as here – there should not be an indefinite term.
However the punishment of imprisonment for contempt underwent substantial change
in English law by the enactment of the Contempt of Court Act 1981.44 The
characteristic change brought by the Act regarding punishment was that it provided
for a maximum of two years imprisonment in the case of committal by superior courts
and a maximum of one month imprisonment in the case of committal by inferior
courts.45 Thus now committal for an indefinite term is no longer permissible under
English law even as a coercive method in civil contempt cases. Giving a beneficial
interpretation to statutory provision, the Court of Appeal in Villiers v
Villiers,46observed that the maximum punishment mentioned under the statute applies
regardless of whether it related to one or more applications for committal.47
Accordingly a court cannot on the same occasion activate a suspended sentence and 42 (1974) 3 All ER 934. In a dispute between divorced couple, the court directed the husband to vacate their matrimonial home and co- operate with the sale of the house. The refusal of the husband to comply with court order was treated as contempt of court and a committal order to keep the husband in prison for not less than three months from date of order unless he agrees to vacate the premise and otherwise comply with the order of the court was passed. Aggrieved by the order, husband appealed to Court of Appeal. The Court observed that if there was reasonable alternative method available for ensuring obedience to court orders that alternative should be taken instead of resorting to initiation of civil contempt proceeding for enforcement of court orders. Id at 937. Appeal was allowed in this case on the ground that alternative method for enforcing court orders were available by enforcing a warrant for possession under S. 47 of the Supreme Court of judicature (Consolidation) Act 1925 read with S. 74 of the County Courts Act 1959. Id. 43 Id at 937. 44 Explaining the position before the 1981 Act it was pointed out that under the previous law, committals for criminal contempt were for a fixed term and there was no limit to the sentence that could be imposed. Committals for civil contempts (e.g. disobedience to court orders) were sine die, until such time as the contemnor chose to obey, as the purpose was coercive rather than punitive. S. H. Bailey, The Contempt of Court Act 1981, 45 Mod L R 301, 313 (1982). 45 S. 14 (1) of Contempt of Courts Act 1981 reads:- In any case where a court has power to commit a person to prison for contempt of court and (apart from this provision) no limitation applies to the period of committal shall (without prejudice to the powers of the court to order his earlier discharge) be for a fixed term, and that term shall not on any occasion exceed two years in the case of committal by a superior court, or one month in the case of committal by an inferior court. 46 [1994] 2 All ER 149. In August 1992, a judge imposed a suspended twelve month’s committal order on the appellant for breach of a non-molestation order granted to his wife. In January 1993, he was again committed for further breaches of the order. The judge imposed eighteen months imprisonment in respect of further breaches and activated the suspended twelve months imprisonment, making a total of two and half years imprisonment. The appellant appealed on the ground that the sentence was in excess of maximum sentence provided for by section 14 (1) of the Contempt of Courts Act 1981. 47 Id at 154.
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impose a new sentence which together exceed the maximum limit allowed by the
section.48
Under English law, whatever may be the position of punishment under ancient
law, it is now well established that, the power to imprison is the major sanction which
could be imposed for contempt of court, and accordingly should be exercised only in
most serious cases.49 The seriousness of contempt will be judged by reference to the
likely interference with the due administration of justice and the culpability of the
offender with the latter perhaps being the key factor.50 Thus, now under English law,
the punishment of imprisonment and its policy is well settled. However the matter is
quite different under U S law.51 Though under U S law also, imprisonment forms the
most common punishment for contempt of court and it is difficult to establish a
general formula to prescribe punishment for contempt.52 The general policy followed
under U S law regarding punishment for civil contempt is that sanctions must be
sufficiently flexible to punish all types of offenses and to produce compliance with
any type of order.53 The punishment for contempt of court under U S law is developed
from common law. Following the common law under U S law also there was no
maximum limit regarding imprisonment for contempt of court and the imprisonment
for civil contempt of court is theoretically at the discretion of the court.54 However the
discretion of the court in this regard is limited by different principles. The limits on
punishment vary with the type of contempt involved.55 In civil contempt
imprisonment is usually imposed as a coercive method to comply with the court order.
Thus in coercive civil contempt, imprisonment by imprisoning the contemnor to an
indefinite term is treated as more suitable than a fixed term.56 If the punishment is for
48 Id 49 Lowe and Sufrin, The Law of Contempt at 527 (cited in note 25). 50 Id. 51 For general discussion regarding contempt power of courts in America see Wilbur Larremore, Constitutional Regulation of Contempt of Court, 13 Harv L Rev 615 - 626 (1900). 52 Ackerman, 39 Cal L R at 561 (cited in note 9). 53 Id. 54See Stephen Jones, Prisoners' Rights and Contempt of Court, 45 Mod L R 707, 708 (1982). 55 Ackerman, 39 Cal L R at 552 (cited in note 9). 56 See Gompers v Buck Stove and Range Co., 211 US 418, 442 (1911). The proceeding which led to the contempt in this case started out of strike in Buck Stove and Range Company. In 1906 the workers of Buck Stove and Range Company in St. Louis, Missouri, struck for a nine-hour day. ‘The American Federationist’ of Labor, a Magazine headed by Gompers, which has a wide circulation among the public, run a notice listing Buck's Stove & Range Company along with other companies under the heading "We Don't Patronize." The notice demand for boycott of products manufactured by the company. Thereupon the company obtained an injunction forbidding this boycott. The terms of the injunction restrained the Magazine from publishing any statement that there was or had been a boycott
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vindicating the authority of the court rather than coercing a party to do something or
compensating for the injuries caused, it is treated as criminal contempt.57 Though
some states have placed statutory limits on fine and prison terms which may be
imposed for criminal contempt, generally the maximum punishment for criminal
contempt of court is also theoretically at the discretion of the courts governed and
guided by common law and constitutional principles.58
Primarily the restriction on punishment for criminal contempt, which is at the
discretion of the court, is based on the principle of abuse of discretion.59 This
approach is coupled with yet another concept that the sanctions applied in criminal
contempt cases must be sufficient to adequately punish the offender, but no more.60
To determine what is an adequate punishment, the court must consider extent,
seriousness and wilfulness of the defiance.61 The next such restriction is based on the
constitutional prohibitions against cruel and unusual punishments.62 Thus a sentence
of 476 days in jail and a fine of $ 4760 for leaving a state to avoid obeying a court
order was reversed on the constitutional ground of cruel and unusual punishment.63
The subsequent development regarding restriction on power of the court to
punish for contempt is linked with jury trial. Originally contempts were not tried by
against the Buck's Stove & Range Company. For refusal to obey the injunction, Samuel Gompers and two other labour leaders were convicted for contempt of court. On appeal to Supreme Court, the Court refused to reexamine the validity of the injunction issued by the lower court. However, the convictions were reversed on the ground that the contempts were civil in nature but the lower court had treated them as criminal. In this case the Court looked into the essential differences between civil and criminal contempts. Id at 442. 57 Id at 441. 58 The provisions of the California codes CAL. PEN. CODE section 1205 is typical example of the statutory restrictions on sentences for criminal contempt. California imposes an absolute ceiling of $500 as fines and five days on jail sentences in the case of judgments of contempt rendered by superior courts and $100 and one day on judgments of inferior courts. The fines, if not paid, can be satisfied by imprisonment at the rate of $ 2.00 per day. Excerpted in Ackerman, 39 Cal L R at 557 (cited in note 9). 59 United States v. United Mine Workers,330 US 258 (1947). See also William R. Worth, Constitutional Law: Due Process: Punishment for Direct Contempt of Court, 47 Mich L Rev 1218, 1219 (1949). 60 In re Michael, 326 US 224, 227 (1945). 61 United States v United Mine Workers, 330 US 258, 303 (1947). 62 U. S. Constitution VIII Amendment provides that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. For details regarding history of Constitution VIII Amendment and U S reservations with international agreements on torture and inhumane punishment see http://www.cfr.org/humanitarian-law/us-constitution-8th-amendment/p9195. Last visited on 16-02-2012. The significance of this Amendment is that a punishment could be examined in light of the basic prohibition against inhuman treatment, and to preserve the basic concept of the dignity of man by assuring that the power to impose punishment is exercised within the limits of civilized standards. See Trop v. Dulles, 356 US 86, 100 (1958) 63 Kenimer v State, 63 S.E.2d 280 (1951), excerpted in Ackerman, 39 Cal L R at 555 (cited in note 9).
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jury.64 Gradually the law discarded the absolute denial of jury trial. Even now it is not
well settled regarding the categories of contempts which types require jury trial.65 The
controversy of jury trial in criminal contempt proceeding specifically came for the
consideration of the U S Supreme Court in Green v United States66 were a three years
imprisonment of the contemnor imposed without jury trial was upheld by the Supreme
Court on the ground that the constitutional safeguards regarding jury trial is not
applicable to contempt proceedings.67 However, in the dissenting opinion Justice
Black opined that denial of jury trial is an anomaly in law.68 It was further observed
that the defendants were entitled to be tried by a jury in full accordance with all the
procedural safeguards required by the Constitution for all “criminal prosecutions”.69
The majority view in Green v United States has undergone change and the minority
view was partially accepted as law in Bloom v Illinois.70 In this case the question was
regarding the application of the Fifth Amendment to the American Constitution which
provides that “no person shall be held to answer for a capital or otherwise infamous
crimes, unless on a presentment or indictment of a Grand Jury”.71 The U S Supreme
Court in this case treated criminal contempt as a ‘crime’ in the ordinary sense;
violation of the law a public wrong which is punishable by fine or imprisonment or
64 Goldfarb, The Contempt Power 169 (cited in note 38). 65 Id. 66 2 L Ed 2d 672 (1958). The petitioners who were released on bail pending appellate review on their conviction for conspiracy to violate the Smith Act, failed to surrender upon affirmation of their conviction. After some four and half years they surrendered voluntarily and publically. In a criminal contempt proceeding tried without a jury, in the District Court, the petitioners were found guilty of contempt in wilfully disobeying the surrender order and were sentenced to three years imprisonment. The Court of Appeal affirmed the sentence and thus the matter reached before United States Supreme Court. 67 This approach was based on the principle that criminal contempt is not a crime but simply an exercise of inherent function of judiciary and the constitutional rights are not applicable to such proceeding. Id at 690. See also Fleisig - Greene, 112 Yale L J at 1234(cited in note 1). 68 Green v United States, 2 L Ed 2d 672, 693 (1958). 69
Id at 694. 70 20 L Ed 2d 522 (1968). The petitioner in this case was convicted by an Illinois state court for criminal contempt and sentenced to twenty four months for wilfully petitioning to probate a will falsely prepared and executed after the death of the putative testator. In the contempt proceeding, Petitioner made a timely demand for jury trial which was refused. The conviction was upheld by Illinois Supreme Court holding that neither State law nor Federal Constitution provided a right to jury trial in criminal contempt cases. on appeal to United States Supreme Court, the Court held that right to jury trial is a right guaranteed by the Federal Constitution, and the same is applicable to contempt cases also. 71 The Fifth Amendment to U S Constitution provides that No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. For details regarding Fifth Amendment to U S Constitution see http://caselaw.lp.findlaw.com/data/constitution/amendment05/. Last visited on 12- 02- 2012.
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both.72 Under this standard, the right to a jury trial for contempt and for ordinary
crimes is coextensive: both are considered "serious" ones as the accused faces a
potential punishment in excess of six months imprisonment.73 On this rationale a
sentence of twenty four months imprisonment was regarded as severe form of
punishment which could have been imposed only through jury trial and it was a
constitutional error to deny the petitioner that right.74 Thus the punishment of
imprisonment for contempt of court under U S law is regulated by constitutional
principles and principles developed by the courts.
Indian position
Before the commencement of the Contempt of Courts Act, 1926, the
punishment for contempt of court was dealt by applying Indian Penal Code and
common law principles.75 The Contempt of Courts Act brought substantial changes in
this regard. Contrary to English position, in India, from the very beginning of the
1926 Act, the statutes contained maximum punishment which could be imposed on
the contemnor for proved contempt. Thus the 1926 Act provided that the maximum
imprisonment for contempt proceeding initiated under the Act is six months simple
imprisonment and a fine of rupees two thousand.76 The same punishment was
followed in 195277 and 1971 Acts.78 Thus for proved contempt of court, the question
72 20 L Ed 2d 522, 528 (1968). 73 The petty crimes or minor offences are treated as offences which lead to punishment less than six months. For details see Felix Frankfurter & Thomas G. Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv L Rev 917, 934-65 (1926). 74 Id at 534. The Court further observed that respect for judges and courts is not entitled to more consideration than the interest of the individual not to be subjected to serious criminal punishments without the benefit of all the procedural protections worked out carefully over the years and deemed fundamental to system of justice. Genuine respect, which alone can lend true dignity to judicial establishment, will be engendered, not by the fear of unlimited authority, but by the firm administration of the law through those institutionalized procedures which have been worked out over the centuries. Id at 532-533. The court even went to the extent of suggesting that little credence could be placed in the notion that the independence of judiciary hangs over the power to try contempts summarily and additional time and expense possibly involved in submitting serious contempts to juries will seriously handicap the effective functioning of the courts. Id at 533. 75 For details see Chapter - 2, Origin and History of Contempt Power. 76 S. 3 of Contempt of Courts Act 1926 reads;- save as otherwise provided by any law for time being in force, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees or with both. 77 S. 4 of Contempt of Courts Act 1952 reads:- Limit of punishment for contempt of court.- Save as otherwise provided by any law for time being in force, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees or with both: 78 S. 12 of Contempt of Courts Act 1971 reads: - 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
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of unlimited imprisonment or fine or punishment solely at the discretion of the court
was unknown under the Contempt of Courts Act.
Till the 1971 Act, in India, there was no statutory classification of contempt
under civil and criminal heads and there was no differential treatment in punishments.
However the 1971 Act adopted a different approach in this regard where civil and
criminal contempts were dealt under two specific heads with differential treatments in
punishments.79 Under the present law, the normal punishment for civil contempt is
fine of maximum two thousand rupees.80 Sending a person to prison for civil
contempt is not the general policy of law. Imprisonment is imposed on the person
who is liable for civil contempt where the court finds that fine will not meet the ends
of justice.81 Even in such cases the contemnor can be detained only in civil prison for
a period up to six months.82 Thus civil contempt is treated as less serious and
punishment is much lenient under Indian law.
Apology
Apology is also a recognized form of punishment for contempt of court under
the common law. Thus where a bank note was sent by a possible litigant as a present
to Lord Chancellor, on submission of a simple apology he was at once discharged.83
Similarly in Morris v Crown Office84, lesser punishments were imposed on the
contemnors who had moved sincere apologies on time and heavier penalties were
simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees or with both: 79 For details see Chapter 5, Classification of Contempts – Rationale and Need for, Pp. 153 - 162. See also Smt. Pushpaben v Narandas v Badiani (1979) 2 SCC 394. 80 The U S law recognizes differential treatments in imposing fine for civil contempts and criminal contempts. Under that system, in a criminal contempt proceeding, the fine goes to the state. On the other hand, in a proceeding for civil contempt, the fine is payable to the private plaintiff. Joseph Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Colm L R 780, 804 (1943). 81 See Smt. Pusphpaben and another v Narandas V Badiani and another, (1979) 2 SCC 394. In this case the Supreme Court observed that a close and careful interpretation of punishment for civil contempt of court leaves no room for doubt that the Legislature intended that a sentence of fine alone should be imposed in normal circumstances. The statute, however, confers special power on the Court to pass a sentence of imprisonment if it thinks that ends of justice so require. Thus before a court passes the extreme sentence of imprisonment, it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation. Thus, in civil contempt sentence of imprisonment is an exception while sentence of fine is the rule. Id at 396. 82 Clause (3) of S. 12 reads -: 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 civil prison for such period not exceeding six months as it may think fit. 83 Martin’s case (1747), 2 Russ, & M 674 n, excerpted in Robertson, Oswald’s contempt of court at 244 (cited in note 10).
84 (1970) 1 All ER 1079.
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imposed on those who refused to move apology.85 The fact that the contemnor has
moved an apology is relevant under Australian law also while imposing punishment.86
Following the common law, apology was recognized as a form of punishment under
U S law. Normally in U S law apology is accepted where the contempt is in the face
of the court and the aggrieved party is the court itself.87
Indian position
Since the 1926 Contempt of Courts Act, the plea of apology was specifically
incorporated in the Acts and thus got a statutory basis.88 Often the contemnor may be
discharged on a genuine apology being made to the satisfaction of the court89. But to
discharge the contemnor on the basis of the apology, it must be genuine and sincere90.
An apology merely to protect against the rigour of law is not an apology.91 Further if
it is an empty formality it may not be accepted.92 It should not be a farce and a trick to
avoid serious punishment for contempt of court93. Even in situations where apology is
found valid, it is not a panacea for all consequences.94 Whether or not an apology may
85 A fine of £ 50 on each of the contemnors were imposed who moved apologies. However, a sentence of three months imprisonment were imposed on those who refused to move apology on the argument that what they did was a matter of principle and did not feel able to apologise. Id at 1080. 86 See Bovis Lend Lease Pty Ltd v Construction Forestry Mining and Energy Union (No 2) [2009] FCA 650. The Court pointed out following considerations relevant to the determination of an appropriate penalty for contempt (i). The contemnor’s personal circumstances (ii). The nature and circumstances of the contempt (iii). The effect of the contempt on the administration of justice (iv). The contemnor’s culpability (v). The need to deter the contemnor and others from repeating contempt (vi). The absence or presence of a prior conviction for contempt (vii). The contemnor’s financial means; and (viii). Whether the contemnor has exhibited general contrition and made a full and ample apology. http://www.abcc.gov.au/Legalactionandinformation/Interventionsandsubmissions/Documents/DecisionBovisLendLeavevCFMEUFCA650.pdf. Last visited on 14-01-2011. 87 United States v. Markewich, 261 Fed. 537 (S.D.N.Y.1919), excerpted in Ackerman, 39 Cal L R at 555 (cited in note 9). 88 The proviso to section 3 of Contempt of Courts Act, 1926 reads: - Provided that the accused may be discharged or the punishment may be remitted on apology being made to the satisfaction of the Court: Similarly proviso to section 4 of the Contempt of Courts Act, 1952 reads:- Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court: Proviso to section 12 of Contempt of Courts Act, 1971 reads:- provided the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. 89 The general principle applicable to apology is that the conduct for which the apology is given is such that it can be ignored without compromising dignity of the court. Vishram Singh Raghubanshi v State of U.P., AIR 2011 SC 2275, 2281. 90
Ranveer Yadav v State of Bihar, (2010) 11 SCC 493, 499. 91 Chandra Shashi v Anil Kumar Verma,(1995) 1 SCC 421, See also M.B. Sanghi v High Court of Punjab and Haryana, AIR 1991SC 1834. In this case it was observed that an apology in contempt proceeding is not a weapon of defense to purge the guilty of the offense; nor it is intended to operate a universal panacea, but intended to be evidence of real contriteness. Id at 1839. 92 Prem Surana v Additional Munsiff and Judicial Magistrate, (2002) 6 SCC 722. 93 O.P.Sharma v High Court of Punjab and Haryana, AIR 2011 SC 2101, 2110. 94 M.B. Sanghi v High Court of Punjab and Haryana, (1991) 3 SCC 600.
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be accepted and whether the contemnor may be discharged on the basis of the
apology, are all at the discretion of the court. This discretion is exercised taking into
account facts and circumstance of each case.95 Further in spite of an apology, where
the conduct of the contemnor was so reprehensible as to warrant condemnation by the
imposition of sentence, apology may be rejected.96 There are no recognized hard and
fast rules to identify in what circumstance an apology can be accepted and when it can
be rejected. However the Courts have laid down a number of criteria in this regard.
Primarily, if the apology is not sincere,97 but only a tactic to avoid serious
punishments, it is only to be rejected.98 Similarly if the contemnor is playing with the
word apology, such an apology could not be taken into consideration.99 A belated
apology, 100 apology on an afterthought, or one made at the verge of imposing severe
punishment are not treated as apologies.101 On the same rationale, an apology made
only at appeal stage would not be considered.102 The proper method of tendering an
apology is to offer it in the first hand in the open court and thereafter make the
submission in defense of his conduct.103 The general approach of the court regarding
apology was laid down in Chunnilal Ken v Shyamlal Sukhram and others.104 In this
95 In Re Bola Nath, AIR 1961 Pat.1. 96 Ranveer Yadav v State of Bihar, (2010) 11 SCC 493, 499. See also In Re: Vinay Chandra Misra, (1995) 2 SCC 584, 619. 97 It seems that the test to distinguish whether an apology is sincere or not is subjective. The courts in this regard generally distinguish between heartfelt apology and paper apology. The heartfelt apology come out of sincere regret and from heart but paper apology come from pen and is just a trick to escape from severe punishments. See L.D. Jaikwal v State of U.P., (1984) 3 SCC 405, 406. See also Dinabandhu Sahu v The State of Orissa, (1972) 4 SCC 761. 98 The State v Krishna Madho and others, AIR 1952 All. 86, 87. The Allahabad High Court Lucknow Bench in this case observed that that the question whether the court should or should not accept the apology would depend upon the circumstances of each particular case. Even if the court accepts the apology, it may still inflict punishment upon an accused person. Id. 99 Prem Surana v Additional Munsif & Judicial Magistrate and another, (2002) 6 SCC 722. This was a case were an advocate slapped a Magistrate in the open court and using most abusive and unseemly language. Finding the lawyer guilty of gross criminal contempt of the court, rejecting the apology the High Court sentenced the contemnor to undergo simple imprisonment for six months and to pay a fine of rupees two thousand disregarding the apology moved by him. Id at 727-728. 100 Unless apology is offered at the earliest occasion it is liable to be rejected, See C. Elumalai & Co v A.G.L. Irudayaraj & Anr., AIR 2009 SC 2214. 101 T.N. Godavarrman Thirumulpad v Ashok Khot, (2006) 5 SCC 1. In this case Supreme Court observed that apology is an act of contrition. Apology is not a weapon of defence to purge the guilty of their offence, nor it is intended to operate as a universal panacea, but it is intended to be evidence of real contriteness. Unless apology is offered at the earliest opportunity and in good grace it is liable to be rejected. Id at 17. 102 See Ex – Capt. Harish Uppal v Union of India and Another, (2003) 2 SCC 45. 103 Giani Ram v Ramnath Dutt, AIR 1955 Raj. 123. 104 AIR 1959 M. P. 50.
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case explaining the importance and ingredients of a genuine apology, the Madhya
Pradesh High Court observed thus:105
An apology usually mitigates the offence and if it is unreserved, the Court may accept it. But it does not follow that because an apology is offered, the court must accept it. I have my own doubt whether the apologies tendered in this case can be deemed to be an apology at all. Instead of tendering apology in the open court, the three non petitioners have resorted to a procedure which detracts from the merits of it. They quietly go to the Deputy Registrar’s office, and hand over the petitions, purporting to be their apologies. This sort of behavior is an afterthought of contemnors conceived in the hope of avoiding consequences. There is no evidence of real contriteness and the manner in which the contemnors have acted leaves much to be desired.
Further there cannot be both justification and apology for the reason that the two are
incongruous.106 Thus in In Re Vinay Chandra Misra, the Supreme Court observed:107
We have not accepted his apology, firstly because we find that the apology 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 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.
Though the apology is to be made to the satisfaction of the court, the statute is silent
as to whom the apology may be made. But as the court is to be satisfied regarding the
apology, a normal conclusion which could be drawn in this regard is that the apology
must be moved to the court. However, In re: Harijai Singh and another,108 when
contempt was committed against a judicial officer by publication of a report through a
newspaper, the Court instructed the party to publish the apology with adequate
importance in the newspaper which published the matter which led to contempt
proceeding. Similarly in Court on its own motion v K.K. Jha,109 direction was issued
to the contemnor to make apology to the District Judge against whom the allegations
were made. In Virender Kumar and others v Manik Chandra Gupta and another,110
105 Id at 52. See also M/S. Ma Santhoshi Transport v Sasim Kr. Barui, AIR 2007 Cal. 130. The Calcutta High Court pointed out that it is now a settled law that mere tendering of unconditional apology can’t be a weapon of defence to purge the guilty of their offence; nor it is a universal panacea but it depends upon the real contriteness of the alleged contemnor. Id at 134. 106 M.Y. Shareef v Honble judge of the Nagpoor High Court, AIR 1955 SC 19 107 (1995) 2 SCC 584, 619, See also Haridas v Usha Rani Banik, AIR 2007 SC 2688, 2694. 108 (1996) 6 SCC 466. 109 AIR 2007 Jha. 67, See also High Court of Karnataka v Chirman Das,1997 (3) Crimes 210. Direction was given to news paper (Economic Times) to publish unconditional apology to judge. Similarly when some allegation is made against a District Judge through writ petition, 110 1980 (Supp) SCC 780.
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the appellant was punished for scandalizing a magistrate by publication of an article.
On appeal to Supreme Court, reducing the period of imprisonment, Court directed the
Editor to make apology to the magistrate who was scandalized and also to publish the
apology through newspaper which published the scandalizing remarks.111
Whatever may be the nature of contempt, as in English law, in Indian law also,
if a proper apology was made at the relevant time, even if the court reaches the
conclusion that taking into account the gravity of contempt, the contemnor could not
be discharged on the basis of apology, the fact that apology was made at relevant time
may be taken into consideration while imposing punishment. Thus in R.K. Garg v
State of H.P,112 though the conduct of the contemnor was treated as having the effect
of serious interference with administration of justice,113 on appeal to Supreme Court,
taking into account the apology made by the contemnor, the punishment of six months
imprisonment imposed by the High Court was reduced to one month imprisonment.114
Similarly in Dhananjay Sharma v State of Haryana and others,115 though the conduct
of all the contemnors were serious in nature including filing of false affidavits before
the court, lesser punishments were given to the contemnors who had moved apology
on time and serious punishments were imposed to those whose apologies were
rejected.116 Highlighting the importance of proper apology in contempt cases in
Suresh Chandra Poddar v Dhani Ram,117 Supreme Court observed that section 12 of
the Contempt of Courts Act, 1971, had indicated a caution that while dealing with the
powers of contempt, the court should be generous in discharging the contemnor if he
tenders an apology to the satisfaction of the court.118 However, recently the courts are
more vigilant in dealing with apology as persons guilty of contempt of courts are
misusing apology to escape from serious punishments. Thus in T.M.A. Pai
Foundation and others v State of Karnataka and others,119 the Supreme Court
observed that it is necessary to erase an impression which appears to be gaining the
111 Id. 112 (1981) 3 SCC 166. 113 The appellant contemnor in this case was a lawyer. Annoyed by dismissal of a petition moved by the appellant, he hurled his shoe at the judge which hit him on his shoulder. On contempt proceeding initiated by the Himachal Pradesh High Court, the appellant was sentenced to simple imprisonment for six months and a fine of rupees two thousand. Id at 167. 114 Id at 169. 115 (1995) 3 SCC 757. 116 Id at 781-783 . 117 (2002) 1 SCC 766. 118 Id at 769. 119 (1995) 4 SCC 1.
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ground that the ‘mantra’ of unconditional apology is a complete answer to violations
of court orders.120
Fine
Fine is the second important punishment for contempt of court. It may be
imposed with or without sentence of imprisonment.121 The imposition of fine as a
punishment for contempt of court was developed from Norman law.122 Under the
Norman law it was common to forfeit an offender’s property for contempt of court.
Later this was changed to a form of punishment, fine.123 Though imposition of fine is
a well recognized form of punishment, originally under English law there was
considerable doubt regarding imposition of fine in civil contempt proceedings. This
was based on an approach that civil contempt is only to assist a party and in such
proceeding fine has no significance at all.124 However the position was changed by
recognizing that if committal could be made as a penalty for past disobedience there is
nothing wrong for imposing fine also.125 As in the case of imprisonment, under
common law, there was no limit regarding quantum of fine and the same was at the
discretion of the Court.126 However in deciding the amount of fine, the courts would
take into consideration not only likelihood of interference with due administration of
justice and the culpability of the offender, but also the means of the offender to pay
the fine.127 The Contempt of Court Act 1981 changed the position of punishment of
fine also. Under the Act, though there is no statutory limit regarding maximum fine
which could be imposed by superior courts,128the lower courts could impose only a
120 Id at 7. 121 Anthony Arlidge and David Eady, The Law of Contempt, 319 (Sweet and Maxwell London 1982) 122 Goldfarb, The Contempt Power 12 (cited in note 38). 123 Id. 124 C.J. Miller, Contempt of Court 71 (Oxford University Press London 2000). 125 See Phonographic Performance Ltd Amusement Caterers (Peckham) Ltd., [1963] 3 All ER 463, Re the Agreement of the Mileage Conference Group of the Tyre Manufacturers’ Conference Ltd., [1966] 2 All ER 849, Steiner Products Ltd. V Willy Steiner Ltd., [1966] 2 All ER 387, Re W (B) an Infant, [1969]1 All ER 594. 126 Lowe and Sufrin, The Law of Contempt at 529 (cited in note 25). See also R v Thomson News Papers, Ltd., ex parte A-G, [1968] 1 All ER 268. In this case, the newspaper proprietors were fined £5000 for publishing what was admittedly a serious contempt of court by publication which prejudicially affected fair trial. Id at 271 127The court may also consider the extent of the defendant's resources and the prospective gain or loss from continuation of the contempt. Ackerman, 39 Cal L R at 559 (cited in note 9). 128 Id.
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maximum of £ 2,500 as fine.129 Based on this position of law there are instances of
imposition of heavier penalties in particularly serious contempts.130 Thus in A.G.v
Hislop,131 both the editor and the publisher of a magazine, Private Eye, were fined £
10000 each. In Australian law also, following the common law, originally there was
hesitation for the court to impose fine in civil contempts.132 However with the change
of English approach, the approach of Australian courts also changed and fine was
recognized as a form of punishment even for civil contempts.133 In Australian Meat
Industry Employees Union v Mudginberri Station Pty Ltd,134 the Australian High
Court went one more step ahead and fine was imposed as a coercive measure in civil
contempt proceeding. In this case a fine of $ 10000 for past disobedience and a further
fine of $ 2000 per day for maintaining a picket line by the defendant union in breach
of an injunction were imposed.135 It was pointed out that contempt of court is a
distinctive offence attracting remedies which are sui generis. The remedy could be
129 S.14(2) reads:- In any case where an inferior court has power to fine a person for contempt of court and (apart from this provision) no limit applies to the amount of the fine, the fine not on any occasion exceed £ 2,500. 130 The heaviest penalty reported for contempt of court in English law is on the publishers of Sun newspaper. The amount of fine imposed on the newspaper was £ 80000 and £ 20000 on the editor for publishing the photograph of a man charged with murder shortly before he was picked out of an identity parade. Excerpted in Lowe and Sufrin, The Law of Contempt at 530 (cited in note 25). 131 [1991] 1 All ER 911. The proceeding in this case arose out of two publications. The articles alleged that the wife of a notorious mass murderer either did nothing or lied to the police to ensure her husband to argue alibi. The article further alleged that by doing so she was defrauding the Department of Social Security. The Attorney General applied to the Court for initiation of contempt proceeding alleging that the publication amounted to a contempt of court under common law and under the Contempt of Court Act 1981. The Court of Appeal observed that the articles would seriously impede or prejudice administration of justice and thus would amount to contempt of court. Id at 925. 132 See Australian Consolidated Press Ltd. V Morgan, (1965) 112 CLR 483. The case relates imposition of a fine of £ 1,500 for violation of an undertaking given to Supreme Court of New South Wales. On appeal to the High Court of Australia expressed doubts regarding imposition of fine in civil contempt proceeding. Id at 511. However appeal was allowed mainly on the ground that undertaking given to the court was vague and ambiguous. Id at 516. 133 Flamingo Park Pty. Ltd. v Dolly Dolly Creation Pty. Ltd., (1985) 57 ALR 247. 134 (1986) 161 CLR 98. The respondent in this case, Mudginberri Station Pty Ltd. was engaged in the business of meat processing works. A dispute arose between the appellant, Australasian Meat Industry Employees' Union and Mudginberri over the system of payment of salary which was newly introduced. As a protest against the payment system, a picket line was established by the appellant Union. The Federal Court granted an interlocutory injunction restraining the Union and its members from setting up or maintaining any picket line which will adversely affect the functioning of the respondents. The Union in breach of the order continued setting up and maintaining the picket line. In the contempt proceeding, the Federal Court imposed a fine of $ 10,000 and a daily fine of $ 2,000 for the days during which the defiance was continued. Against this order of the Court, the Union approached the High Court of Australia on the main ground that the Federal Court had no power to impose an anticipatory punishment for future default in complying with a court order. Id at 104. 135 Id at 103.
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chosen by the court no more but no less.136 Thus in the same proceeding, fine was
imposed to serve punitive and coercive purposes.137
In U S law also imposition of fine as a coercive method is recognized and
there is no statutory limit regarding fine. Thus in United States v United Mine
Workers of America,138 the Supreme Court ordered the payment of fine of $ 700,000
and an additional fine of $ 2,800,000 if the defendant union failed to comply with a
labour injunction within five days.139 The limiting factor on coercive fine followed
under U S law is that, while fine must be sufficiently stringent to produce compliance
with court orders, it should not be greater than what is absolutely necessary.140 The
later development regarding imposition of fine is coeval with the development of
punishment of imprisonment. Thus it seems that as in the case of imprisonment, now
a day, the validity of quantum of fine imposed by the court is decided on the basis of
constitutional principles and by applying principle of abuse of discretion. The
approach in this regard is clear from the decision of U S Supreme Court from United
Mine Workers of America v Bagwell,141 where the U S Supreme Court observed that a
fine of $ 52 million was unquestionably serious contempt sanction which could not
136 Id at 115. 137 However, in the dissenting judgment J Brennan adopted a different view and observed that an order which imposes a fine accruing from day to day and which is intended to take effect without further judicial order cannot operate with respect to the future. It was also opined that the imposition of a fine is a judicial act and if the fine is to be quantified by reference to a period during which a contempt continues, that period must be judicially determined and the same cannot be left to the sheriff or other officer charged with the execution of the Court's order to quantify the fine. Id at 117 138 330 US 258 (1947). In this case, after contract negotiations broken down between the miners union and coal operators in 1946, the Federal Government determined that the resulting shortage of coal had created a national emergency. Ultimately Government seized the mines on 21 May 1946, claiming coal production to be essential to both the war effort and to sustaining the domestic economy in the transition from war to peace. The union, with the silent approval of its president, John L. Lewis, refused to work in government held mines until a contract had been signed. The government in turn secured an injunction against further work stoppages, and when the workers refused to return to the pits, the district court fined the union $ 3,500,000 and Lewis $ 10,000 for contempt of court. On appeal the Supreme Court, Court directed to pay a fine of $ 700,000 and to pay an additional fine of $2,800,000, if the Union failed to comply with the order within five days. Id at 304 – 305. 139 Id at 306. 140 See In re Michael, 326 US 224, 227 (1945). 141 512 US 821 (1994). In this case a Virginia trial court warned the United Mine Workers of America Union to refrain from certain unlawful strike-related activities. Over the course of the next few months, the union had disregarded the warning more than 400 times, the court fined them more than $ 64 million in what it termed civil fines. Out of this $ 52 million were payable to the State of Virginia and the remaining $ 12 million was payable to the plaintiff. After the strike was settled, the court refused to cancel the fines, despite the fact that the strike settlement had called for their cancellation. The Court ruled that the fines $ 52 million were payable to the state, not the mining company, and that the settlement could not therefore cancel them. The Virginia Court of Appeals reversed the decision and cancelled the fines in accordance with the settlement agreement, but on further appeal, the Supreme Court of Virginia reinstated the fines which were payable to State of Virginia. It was held that the union had been warned in advance and could have avoided the fines, meaning that it controlled its own destiny. Thus ultimately the matter reached before the U S Supreme Court.
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have been imposed without a jury trial though the trial court proceeded on the
rationale that the imposition of fine is civil in nature and jury trial was not required.142
Under the U S law the compensatory civil contempt proceedings are used
directly to recompense a party to an action.143 In such cases the award of fine is
regulated by the principle that the compensatory fine should be equal in amount to the
actual damages proved.144 Such fine is ordinarily payable to the court for the benefit
of the injured party, or directly to the party himself.145 As the fine is to compensate
the damage caused to the party, in some cases the compensatory fine may lead to
imposition of heavy amount. Thus a gravel company was fined $ 1500 for discharging
hydraulic tailings in violation of an injunction.146 Similarly $ 5000 fine for perjury
was imposed when false testimony prevented the complainant from collecting a
lawful debt of that amount.147 In another case a fine of $ 3050 was imposed for
disobeying a court order to return an insurance fund of that amount over to a
receiver.148 A fine of $ 250,642 was assessed against a mining company that
undermined city streets in violation of an injunction.149
Fine forms an important punishment for contempt of court under Canadian
law. Under the Canadian law also there is no statutory limit regarding fine and is
imposed at the discretion of the court taking into account the gravity of interference
with administration of justice and injury caused to the parties.150
142 Id at 838-839. 143 Ackerman, 39 Cal L R at 559 (cited in note 9). 144 Campbell v. Motion Picture M. Operators, 151 Minn. 238, 186 N.W. 787 (1922), excerpted in Ackerman, 39 Cal L R at 558 (cited in note 9). 145 See Gompers v. Buck Stove & Range Co., 221 US 418 (1911), see also United States v. Mine Worker, 330 US 258 (1947). 146 In re North Bloomfield Gravel Min. Co., 27 Fed. 795 (C.C.D. Cal. 1886), excerpted in Ackerman, 39 Cal L R at 560 (cited in note 9). 147 Malmud v. Blackman, 177 Misc. 162, 30 N.Y.S. 2d 174 (Sup. Ct. 1941), excerpted in Ackerman, 39 Cal L R at 560 (cited in note 9). 148 Mendelsohn v. Rosenberg, 248 App. Div. 743, 288 N.Y. Supp. 792 (1936), excerpted in Ackerman, 39 Cal L R at 560 (cited in note 9). 149 Scranton v. Peoples Coal Co., 274 Pa. 63, 117 Atl. 673 (1922), excerpted in Ackerman, 39 Cal L R at 560 (cited in note 9). 150 Poje v Attorney – General of British Columbia, [1935] 2 DLR 785, see also Re Tilco Plastics Ltd v Skurjat, (1966) 57 DLR (2d) 596, Re AG for Nova Scotia and Miles, (1971) 15 DLR (3d) 189, Re Brunswick Electric Power Commission, (1977) 73 DLR (3d) 94, United Nurses of Alberta v AG for Alberta, (1992) 89 DLR (4th) 609
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Indian position
Fine is a recognized form of punishment for contempt under Indian law also.
Under the Indian law, through the 1926151, 1952152 and 1971153 Contempt of Courts
Acts, whether the contempt is civil or criminal, fine is limited to a maximum of two
thousand rupees154.
Cost
Cost is the next recognized punishment for contempt of court. Under the
common law the court has complete discretion whether to order one or another party
to pay cost in contempt proceeding.155 Thus in R v Daily Herald, ex Parte Bishop of
Norwich,156 cost was ordered between the solicitor and the client.157 Similarly R v
Border Television Ltd, R v New Castle Chronicle and Journal Ltd, ex p A-G,158 the
Chronicle and Journal were ordered to pay two – third and Border Television one –
third of the Attorney’s cost.159 Normally cost is ordered if contempt is technical or it
was too venial to justify its being brought to the attention of the court.160 Further there
are instances from common law where the court was convinced that an offender who
was directed to pay cost has no means, discharged the contemnor without paying the
cost which he had been ordered to pay.161
151 S. 3 of the Contempt of Courts Act, 1926 reads-: Save as otherwise provided by any law for time being in force, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees or with both: 152 S. 4 of Contempt of Courts Act of 1952 reads -: Limit of punishment for contempt of court.- Save as otherwise provided by any law for time being in force, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees or with both: 153 S. 12 of the Contempt of Court Act of 1971 reads- Punishment for contempt of court-: 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. 154 For details regarding judicial approach in India with respect to fine as a punishment in civil and criminal contempts see Chapter -5, Classification of Contempt – Rationale and Need For, Pp. 155 – 156. 155 Antony Arlidge and David Eady, The Law of Contempt 323(Sweet & Maxwell London 1982) . 156 [1932] 2 K.B. 402. 157 Id at 404. 158 (1979) 68 Cr App R 375. 159 Id at 381. 160 See Attorney General v Times Newspaper. [1973] 3 All ER 54, 61 See also Weston v Central Criminal Court, Courts’ Administrator, [1976] 2 All ER 875. 161 West Ham Corporation v Cunningham (1906), Times Oct.12, excerpted in Robertson, Oswald’s contempt of court at 243 (cited in note 10).
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Indian position
In India also it is not uncommon to impose cost in contempt proceedings.
Normally cost is awarded in civil contempts and the contemnor is released by
imposing cost if his conduct is not so serious to impose imprisonment or fine.162 But
there are instances where high amount is imposed as cost in contempt proceedings.
Thus in Sebastian M. Hongray v Union of India,163 in a writ proceeding, the Supreme
Court ordered for the production of Mr. Daniel and Mr. C. Paul, who were taken into
custody by the military before the Court. The failure to produce them was treated as
civil contempt, imposing exemplary costs of rupees one lakh each on the
respondents.164 In D.S. Poonia v Yumnam Dimbajit Singh and another,165 the
Supreme Court converted a punishment of one month imprisonment and a fine of two
thousand rupees ordered by the Assam High Court in a criminal contempt to a cost of
rupees five thousand to be paid to the Supreme Court Legal Service Committee.166
Similarly in Zahira Hasibullah Sheikh (5) and another v State of Gujarat & others,167
162 See Principal, Rajni Parekh Arts, K.B. Commerce and B.C.J. Science College Khambhat and another v Mahenra Ambalal Shah (1986) 2 SCC 560, 568. In criminal contempt cases cost is awarded when the court feels that taking into account the gravity of offence or other surrounding circumstances imposition of fine is not required. See Bijoyananda Pataik v Balakrishna Kar, AIR 1953 Ori. 249, 254 163 (1984) 3 SCC 81. 164 Id at 85. 165 (2003) 3 SCC 513. The case arose out of violation of an order of Assam High Court. In this case Respondent 2 was appointed on deputation to the post of Assistant Chief Electoral Officer. The petitioner challenged this deputation through a writ petition on various grounds. In the proceeding Respondent 1 was restrained from extending the period of deputation of respondent 2 beyond specified date. The Court further directed to frame recruitment rules and finalise recruitment instead of deputation before the specified date. The directions of the Court were not complied with which led to contempt proceeding. Taking into account the gravity o interference with administration of justice, the court converted the civil contempt proceeding into a criminal one. Respondent 1 was punished to one month’s imprisonment and to pay a fine of rupees two thousand and Respondent 2 was punished to fifteen days imprisonment and to pay a fine of rupees one thousand. Id at 516. Both respondents appealed to Supreme Court. 166 Id at 518. 167 (2006) 3 SCC 374. In this case one Zahira Habibullah Sheikh was one among the key witness in a prosecution case. The trial court acquitted the accused person on the basis of the statements made by the witnesses, mainly Zahira. Subsequently an application was moved before the Gujarat High Court, highlighting the necessity of accepting additional evidence on the basis of statement made by Zahira. In the application, Zahira, who was projected as the star witness stated that she was intimidated, threatened and coerced to depart from the truth and to make statement in the trial court which did not reflect reality. The High Court rejected the application. On appeal, the Supreme Court ordered retrial of the case in state of Maharashtra. While the trial was on before a court in Maharashtra, a few days before the scheduled appearance of witness in the trial court, Zahira gave a press statement and changed her version and disowned statements made in the Supreme Court and various bodies like National Human Rights Commission. In the press conference she stated that what she had stated before the trial court in Gujarat earlier was correct. The statement was treated as contempt of court and contempt proceeding was initiated by the Supreme Court. See also Sunkara Lakshminarasamma v Sagi Subba Raju, (2009) 7 SCC 460. In this case for contempt by filing false affidavit before Supreme Court, an exemplary cost of rupees 25000 was imposed. Id at 462.
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for a criminal contempt of court, Supreme Court awarded a cost of rupees fifty
thousand in addition to simple imprisonment for one year.168 However it is to be noted
in this regard that the Contempt of Courts Act in India is silent about cost as a
punishment for contempt of court. It seems that cost as a punishment for contempt of
court is imposed by the Indian courts following common law principles in this
regard.169
Bond for good behavior
Bond for good behavior is the least severe punishment recognized for
contempt of court under the common law. Thus in R v Castro, Skipworth’s case,170
offender was ordered to give his own security of £ 500 and find one more surety to
the same amount. Similarly in Morris v The Crown Office171 a bond for good behavior
for twelve months was imposed on the contemnors.172
Indian position
Bond for good behavior is recognized as punishment for contempt of court
under Indian law also. Thus in Rajesh Kumar v Amrawati Bharati,173 bond for good
behavior for a sum of rupees three thousand was imposed as punishment for contempt
of court. The reason for adopting the most lenient punishment in this case was that the
parties involved in the contempt proceeding were husband, wife, child, and their in -
laws. Imposing bond for good behavior for a period of three years, Supreme Court
made the following conditions:174
Accordingly we direct the petitioner husband to appear before the Chief Judicial Magistrate, Allahabad and enter into a bond in the amount of Rs 3000 for a period of three years assuring that he would keep peace and be of good behavior and will in no way try to harass, torture or annoy the respondent Smt. Amrawati Bharti, his wife and minor son Sandeep. He will not in any manner directly or indirectly disturb the custody of Sandeep which has been handed over by this court to his mother Smt.
168 Hasibullah Sheikh v State of Gujarat, (2006) 3 SCC 374, 398. 169 See Sebastian M. Hongray v Union of India, (1984 ) 3 SCC 81, 85. 170 (1873) LR 9 QB 230, 241. Excerpted in Lowe and Sufrin, The Law of Contempt at 530 (cited in note 25). 171 [1970] 1 All ER 1079. 172 Id at 1084. 173 (1985) 3 SCC 609. Petitioner and respondent in this case were husband and wife. A son was born in the wedlock. As there were serious problems between husband and wife, the petitioner husband thrown out the respondent from the house and denied the custody of their minor child. When the respondent initiated legal proceeding for production of child before court, the petitioner filed affidavits denying the custody of the child. On C.B.I. inquiry it was revealed that that the affidavits were false and the child was in the custody of the petitioner. This led to the present contempt proceeding. Id at 612- 613. 174 Id at 613.
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Amrawati Bharati which order is final. In case of the breach of any of the conditions of the bond, petitioner shall appear before this court to receive the punishment, which we postpone.
Reprimand
It seems that there is no reported case under English law where reprimand was
imposed as a specific punishment for contempt of court under common law. However
in Hoshiam Shavaksha Dolikuka v Thrity Hoshie Dolika,175 the High Court of
Bombay directed the appellant to be detained in civil prison for three months in
addition to a fine of rupees one thousand for wilfully violating the order of the Court.
On appeal, the Supreme Court, converted the punishment to reprimand for the
conduct and gave a warning to the appellant not to repeat any such contempt in
future.176
Other unusual forms of punishments
There are instances in which the courts deviated from common and recognized
forms of punishments. Thus in Sita Ram Sahu v Smt. Lalpari Devi & others,177
contrary to a stay order issued by a court, a premise was demolished. When the matter
reached before the Supreme Court, it was observed thus:178
We take a lenient view of the matter but not without direction. We direct that the respondents shall reconstruct the portion of the building which is to be given to the petitioner within six months from today and he shall be reinducted as a tenant not for three years as stated by the Panchayat, but just like any other tenant without terms as to period. The petitioner shall not be asked to pay enhanced rent or revised rent for the new premises but the old rent only.
Similarly in Murray & Co. v Ashok KR. Newatia and another,179 in a criminal
contempt proceeding initiated under the Contempt of Courts Act, the Supreme Court
punished the contemnor to pay a fine of rupees two thousand and five hundred,180
disregarding Contempt of Courts Act which provides for maximum fine of rupees two
thousand. In Shri C.K. Daphtary and others v O.P. Gupta,181 though the conduct was
175 (1982) 2 SCC 577. 176 Id at 582. 177 AIR 1991 SC 1054. 178 Id at 1055. 179 (2000) 2 SCC 367. 180 Id at 379. 181 1971(1) SCC 626. Aggrieved by a decision taken by a Bench of Supreme Court consisting of Shah and Hegde JJ against the respondent, a pamphlet was printed, published and widely circulated by him. The pamphlet contained scurrilous aspersions of bias against both the Judges. Id at 630. In the contempt proceeding the main contention of the Respondent was that the pamphlet was prepared to initiate an impeachment proceeding against the judge for that no contempt proceeding was
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publication which adversely affected the dignity of courts and thus amounted to
criminal contempt, Court punished the contemnor to civil prison for two months.182 It
is to be noted in this regard that sending a person to civil prison as punishment is
recognized under the Contempt of Courts Act only for civil contempt.
The study shows that the punishment for contempt of court under Contempt of
Courts Act is not adequate to deal with serious interference with administration of
justice. Much severe punishment especially fine is required to deal with serious
contempts is necessary in India. Even the available punishment under the Contempt of
Courts Act is imposed by the courts with much hesitation and courts often lean in
favour of mercy. Thus in E.M. Sankaran Nampoothiripad v T. Narayanan
Nambiar,183though the Supreme Court reached the conclusion that some of the
statements made by E.M. Shankaran Nampoothiripad, the then Chief Minister of
Kerala, in a press conference had the effect of scandalizing the court, adopting a
liberal attitude the Supreme Court observed:184
As regards sentence we think that it was hardly necessary to impose a heavy sentence. The ends of justice in this case are amply served by exposing the appellant’s error about the true teachings of Marx and Engels (behind whom he shelters) and by sentencing him to a nominal fine to Rs.50/-. In default of payment of fine he will undergo simple imprisonment for one week.
Similar attitude was taken by the Supreme Court In re, Arudhati Roy.185 The conducts
of the contemnor which include criticizing the judiciary, attributing lack of integrity
against judges and conducting ‘dharna’ in front of Supreme Court to protest against
various decisions of Supreme Court in relation to Narmada Dam construction were
maintainable. Court rejected this argument and sentenced the contemnor to civil prison for two months. Id at 653. 182 Id at 653. See also Delhi Development Authority v Skipper Construction and Another (1995) 3 SCC 507. Here a contempt proceeding was initiated for wilful violation of court order. Though the court treated wilful disobedience as civil contempt, and Contempt of Courts Act was considered by the Court for dealing with civil contempt, ultimately the contemnor was punished to pay a fine of rupees fifty thousand and simple imprisonment of six months invoking the power of Supreme Court under Article 129 of the Constitution. Id at 524. 183 1970 (2) SCC 325. The appellant in this case, the then Chief Minister of Kerala, in a press conference stated that, Marx and Engels considered judiciary as an instrument of oppression. Id at 329. He further alleged that judges were guided by class hatred and class prejudice. It was also said that where the evidence balanced between a well-dressed pot-bellied rich man and a poor, ill-dressed and illiterate person, the judges instinctively favored the former. Id at 330. The speech was treated as contempt of court and appellant was sentenced to pay a fine of Rs 1000 or to undergo simple imprisonment of one month by the High Court of Kerala. Id at 329. Against the conviction appeal was moved to Supreme Court. The main contention of the appellant before the Supreme Court was that his statement in the press conference was exposition of his political ideology and it is protected under the first clause of Article 19 (1) which guarantees freedom of speech and expression. Id at 334. 184 Id at 340. 185 AIR 2002 SC 1375.
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found serious contempts and bound to infect the judiciary and administration of
justice seriously. However, regarding punishment the Court observed:186
As the respondent has not shown any repentance or regret or remorse, no lenient view should be taken in the matter. However showing the magnanimity of law by keeping in mind that the respondent is a woman, and holding that better sense and wisdom shall dawn upon the respondent in the future to serve the cause of art and literature by her creative skill and imagination, we feel that the ends of justice would be met if she is sentenced to symbolic imprisonment besides paying a fine of Rs.2000/-.
Thus showing maximum leniency under principle of magnanimity of law, a token
imprisonment of one day was imposed with a fine of Rupees two thousand and in
default of payment of fine, simple imprisonment for three months was also imposed.
In this case it seems that the Supreme Court has taken into consideration a number of
aspects for imposing the most lenient punishment of one day’s simple imprisonment
which include the facts that the contemnor is a woman and a famous author. The
attitude adopted by the Court may be out of magnanimity and self restraint but it
seems that when interference with administration of justice is committed by persons
who are highly placed, the matter is taken lightly. Similarly in Tarun Bharat Sangh,
Alwar v Union of India and others,187 though the contemnors conduct was highly
serious and bound to infect the judiciary and administration of justice severely, the
punishment was limited to giving a severe warning.188 Further in S.P. Sawhney v Life
Insurance Corporation of India,189 though the Court reached the conclusion that the
conduct of the contemnor amounted to serious contempt, taking into account the
advanced age and physical condition of the contemnor, he was exempted from
punishment.190
The psychology of the court behind such a lenient attitude was clearly laid
down in Chandra Shashi v Anil Kumar Verma.191 In this case though the conduct of
the contemnor was serious, including fabricating false document regarding Court
orders, imposing two weeks imprisonment, the Supreme Court observed that the
Court have traversed the untreaded path guardedly, because the assumption of
186 Id at 1396. 187 (1995)1 SCC 150. 188 Id at 155. 189 (1991) 2 SCC 318. 190 Id at 321. 191 (1995) 1 SCC 421.
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contempt jurisdiction by a court requires zealous and careful movement as the
affected party faces a summary trial and the prosecutor himself act as a judge.192
Thus the fact that in contempt proceeding, complainant, prosecutor and the
hang man are the same person and the proceeding is summary in nature, persuade the
court to adopt a lenient attitude in imposing punishments.193
When we take into account the punishment for contempt of court, it seems that
the same is statutorily governed in India from the 1926 Act onwards. Its significance
can be understood from the fact that the punishment for contempt of court in other
common law countries like Australia, Canada America are even now basically at the
discretion of the court governed by vague principles. Though the punishment for
contempt of court in English law is now substantially regulated by the Contempt of
Courts Act 1981, the maximum fine which could be imposed by superior courts is
even now at the discretion of the court. It is to be further noted in this regard that such
an imperfect statute was enacted in England only in 1981. Thus the punishment for
contempt of court is in a better position in India compared to other common law
countries. However the advanced position in India can be effective only if the courts
stick on to the punishments mentioned under the Act. The study shows that the courts
often deviate from punishments contained in the Contempt of Courts Act even in
cases where the proceeding is initiated under the Act. The difficulty of the courts to
stick on to the punishment under the Contempt of Courts Act may be that the
punishment for contempt of court under the Act especially fine is not adequate to deal
with all contempt cases. It seems that the defect in this regard could be rectified only
by an amendment to the Contempt of Courts Act by enhancing punishment especially
fine to deal with serious interferences with administration of justice. At the same time
the court must confine to the statute while imposing punishments. Otherwise it will
not only be a clear negation of rule of law but also violation of basic principles of
punishment.
Procedure in contempt cases
The law of contempt is distinguished from the general criminal law by its
curious procedure which deprives an accused of the safeguards normally vouchsafed
192 Id at 428. 193 See also M.B. Sanghi v High Court of Punjab and Haryana, AIR 1991 SC 1834.
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in law.194 Under the English law where contempt is committed in facie curie, there is
no formalized procedure as such. The offender is simply dealt with on the spot and
fined or committed to prison.195 This power is usually treated as inherent power of
courts.196 Till the 17th century, contempt was treated procedurally in the ordinary
course of law and summary punishment was meted out only when the accused
specifically confessed guilt.197 The development of summary process for contempt of
court is from the famous Anon case.198 In this case, after being convicted for felony, a
man threw a brickbat against Chief Justice who decided the case. The conduct was
treated as contempt and he was immediately punished.199 The judgment led to the
concept that when there was immediacy and physical relation with the contemptuous
act, such misconduct must be summarily punished by the courts because without this
power of punishment, the courts could not perform their functions and the kingdom
would standstill if justice was not immediate.200 The consequence of the judgment
was the development of the distinction between contempt committed in the face of the
court and contempt committed not in the face of the court. This distinction continued
for invoking summary proceeding till the eighteenth century.201 Thus for facie curie
contempt, no formalized procedure was available. The offender was simply dealt with
on the spot and appropriate punishments were imposed at the discretion of the court.
However for contempts which are not in the face of the court, the proceedings were
formalized, by way of an application for an order of committal which must be moved
before a superior court and summary procedure was not applicable.202
It has been pointed out that the origin of summary procedure for non ex facie
contempt is from a historical error.203 The summary procedure for such type of
contempt was first applied in Almon’s case,204 which came before the Court of the
Kings Bench in 1765. Though the judgment was prepared by Wilmont J in 1765 itself,
194 James Young, The Contempt of Court Act 1981, 8 BJLS 243, 243(1981). 195 Joseph H. Beale, Contempt of Court, Criminal and Civil, 21 Harv L Rev 161, 164 (1908). 196 Miller, Contempt of Court at 71(cited in note 121). See also Lowe and Sufrin, The Law of Contempt at 465 (cited in note 25). 197 John Fox, The Nature of Contempt of Court, 37 LQR 191, 194 (1921). 198 Anon. (1631), excerpted in Goldfarb, The Contempt Power 15 (cited in note 38). 199 For further details see, Chapter – 2, Rationale behind Contempt Power, p. 28. 200 Goldfarb, The Contempt Power 15(cited in note 38). 201 Harold J. Laski, Procedure for Constructive Contempt in England, 41 Harv L Rev 1031, 1034 (1928). 202 Goldfarb, The Contempt Power 15(cited in note 38). 203 Goodhart , 48 Harv L Rev at 899 (cited in note 27). 204 (1765) Wilm. 243, 97 ER 94, cited in Miller, Contempt of Court at 72 (cited in note 124).
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the same was never delivered due to some technical reasons.205 However the
judgment was published by Wilmont’s son in 1802 which claimed that the superior
common law courts had the power to summarily deal with even non ex facie
contempts.206 It was also claimed that this summary form of procedure was founded
upon immemorial usage.207 However, no authority was cited in support of the
proposition. It was further pointed out that, as the judgment was not delivered, the
same was not helpful as an authority to establish summary jurisdiction in contempt
cases.208 In spite of all these, Wilmont’s ratio received wide acceptance and summary
procedure was recognized for all categories of contempt though Almons case was
specifically concerned with contempt by scandalizing the court.209Thereafter the
summary procedure to punish all categories of contempt whether ex facie or non ex
facie was firmly established in English and other common law countries.210 The
advantage of summary action is that it can be taken and completed in an exceedingly
short time.211 The Phillimore Committee also justified the summary process of
contempt based on urgency with which the conduct may need to be dealt.212 Thus the
power of the superior courts of record to deal with contempt summarily was got well
established. This led to the thinking that the superior courts of common law without
the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their
process and punish for contempt.213 Similar approach was taken by the Supreme
205 The reason for the non delivery of the judgment was that the rule nisi to attach Almon was wrongly titled The King v Walkes, the Sergent who has to deliver the judgment did not consent to the amendment of the title. Although a new proceeding was begun, it was dropped due to change of government. Excerpted in Miller, Contempt of Court at 72 (cited in note 124). 206 It was pointed out that there was no sound rationale for the decision. In fourteenth century and later, contempt of criminal nature committed out of court were tried in ordinary course of law and not by summary process. It was also pointed out that how and when the alteration of the practice was brought about remains to some extent a matter of conjecture. John Charles Fox, The summary Process to Punish Contempt C LQR 354, 370-371 (1909). 207 Goodhart, Newspapers and Contempt of Court , 48 Harv L Rev at 899 (cited in note 27). 208 Id. 209 Borrie and Lowe, The Law of Contempt at 255(cited in note 12). See also, Harold J. Laski, Procedure for Constructive Contempt in England, 41 Harv L Rev 1031, 1034 (1928). 210 See Rex v. Clement, 4 B. & Aid. 218 (K. B. 1821), excerpted in Goodhart, Newspapers and Contempt of Court, 48 Harv L Rev at 899 (cited in note 27). 211 Stanford Law Review, Summary Contempt: A Sword or a Shield? 2 Stan L Rev 763, 765 (1950). 212 Report of Phillimore Committee on contempt of court, Paragraph 21, Excerpted in Surinder K. Puri, Iyers Law on Contempt of Courts 1265 (Delhi Law House 3rd ed 2004). 213 But courts of limited jurisdiction could not claim such contempt power. Such courts can claim contempt power only to the extent conferred by the statute or to protect its functions. See The Queen v Forbes ex p. Bevan, (1972) 127 CLR 1,7. In this case one Willian John Forbes applied to the Common Wealth Industrial Court for an order under Conciliation and Arbitration Act of 1904 against John Walter Bevan, the secretary of the Boiler and Blacksmiths Society of Australia and other members of the society. In the proceeding an ex parte order was passed restraining the society from withdrawing money from the society’s bank account except money reasonably required for ordinary daily
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Court of Canada, holding that constitutional amendment would be required to deprive
superior courts of their inherent power to punish contempts summarily. 214 But the
matter is not easy when contempt was committed against lower courts. In such
situation, if the contempt is in the face of lower courts, the lower courts could punish
the contemnor immediately. However if the contempt is not in the face of the court,
the power to initiate contempt proceeding is vested with the Divisional Court of the
Queen’s Bench Division which exercises protective jurisdiction in respect of
interference with administration of justice over inferior courts as per Rules of the
Supreme Court.215
Regarding the initiation of contempt, the principle was that the court may act,
ex mero motu (that is, of its own motion or initiative where the contempt is committed
in the face of the court).216 Though an ex mero motu proceeding could be initiated for
contempts which are not in the face of the court, now a days such proceedings are
rare.217 Regarding contempts which are not in the face of the court, in general, an
application may be moved by an aggrieved person even though not directly affected
by the relevant conduct.218 Subsequently through case laws, it was established that
criminal contempt proceeding could be initiated only with the consent of Attorney –
General.219 Later the consent of the Attorney - General for initiation of contempt
proceeding was included in the Contempt of Courts Act 1981.220 However a thorough
reading of the Contempt of Court Act 1981 would indicate that if the proceeding does
functioning of the society. Id at 2-3. The question before the High Court of Australia was whether a breach of the injunction could lead to contempt of court. The Court made a distinction between court of inherent jurisdiction and court of limited jurisdiction. It was observed that the court of inherent jurisdiction have without any authorizing provision vested with contempt powers. Id at 7. However the Common Wealth Industrial Court was treated as a court with limited jurisdiction devoid of inherent jurisdiction and contempt power of such court is limited only to protect their functions. Id at 8. 214 J. P. v Mac Millan Bloedel Ltd., (1996) 130 DLR (4th) 385. It seems that similar approach was taken by the Supreme Court of India regarding its contempt jurisdiction under Article 129. It was observed that no Act of Parliament can take away the contempt jurisdiction of Supreme Court under Article 129 short of an amendment to the Constitution. See Delhi Judicial Service Association v State of Gujarat, (1991) 4 SCC 406, 445. See also Pritam Pal v High Court of Madhya Pradesh, (1993) Supp (1) SCC 529, 540. For detailed discussion see Chapter - 4, Indian Constitution and Contempt of Court. 215 Miller, Contempt of Court at 76 (cited in note 124). It was pointed out that the Queen’s Bench Division watches over the proceedings of inferior courts not only to prevent them from exceeding their jurisdiction or otherwise acting contrary to law but also to prevent persons from interfering with course of justice in such courts. Hailsham, 9 Halsbury’s Laws of England 31 (cited in note 24). 216 Id at 113. 217 The only recently reported case where ex mero motu proceeding was initiated for constructive contempt is Re Lonbro PLC, [1989] 2 All ER 1100. 218 Metropolitan Police Commissioner, ex p. Blackburn (No.2), [1968] 2 All ER 56. 219 See Duffy, ex p v Nash, [1960] 2 All ER 833. 220 S. 7 of the Contempt of Courts Act 1981 reads-: Proceeding for a contempt of court under the strict liability rule (other than Scottish proceedings) shall not be instituted except by or with the consent of the Attorney General or on a motion of a court having jurisdiction to deal with it.
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not fall under the strict liability rule dealt under the 1981 Act,221 the consent of
Attorney - General as a statutory requirement is not necessary and the requirement of
consent of the Attorney - General in such proceeding is governed by judicial
decisions.
U S Position
The procedure for contempt of court had a chequered history in the United
States.222 In the United States, though criminal contempt is treated as having all
characters of offence,223 unlike other offences, there is no prosecution, no summons,
nor is there a right to trial by jury.224 In the U S law the summary process for
contempt of court was recognisd in the late eighteenth century in Republica v
Oswald,225 where M’ Kean C J was called to consider the jurisdiction of
Pennsylvanian courts to punish imputations of partiality made against the judges.
Following Almon principle, it was held that, the court was vested with summary
jurisdiction to deal with contempt.226
The summary contempt power of the Federal Court was subsequently
recognized by the Congress by including Section 17 in the Judicature Act 1789, which
provided that all the said courts of United States should have power to fine or
imprisonment, at the discretion of the said courts all contempt of authority in any
cause or hearing before the same.227 However it was felt that there was considerable
chance for misuse of power which persuaded the Congress to enact the Federal
Contempt Statute in 1831 which limited the scope of summary power to punish
contempt of Federal Courts. The Act with some minor modifications now provides in
18 U S C S 401 which reads:
221 For details regarding strict liability rule under Contempt of Courts Act 1981, see Chapter - 5, Classification of Contempt - Rationale and Need for Pp. 239 - 245. 222 Miller, Contempt of Court at 133 (cited in note 124). 223 Wilbur Larremore, Constitutional Regulation of Contempt of Court, 13 Harv L Rev 615, 622 (1900). 224 Lowe and Sufrin, The Law of Contempt at 469 (cited in note 25). See also Herbert Barry, Contempt of Court, 10 Va L Rev 289, 292 – 293 (1924). 225 1 Dallas 319 (1788), excerpted in Miller, Contempt of Court at 133(cited in note 124). 226 Id. 227 The summary contempt power is criticized on the ground that right to be judged by a fair and impartial tribunal is one of the most basic elements of due process. It was pointed out that there is a potential for bias or at least the appearance of bias in every contempt proceeding because the judge is considering conduct that allegedly constitutes an affront to the institution he represents, if not to himself personally. Richard B. Kuhns, The Summary Contempt Power: A Critique and a New Perspective, 88 Yale L J 39, 62 (1978).
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A court of United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as (1) Misbehavior of any person in its presence or so near thereto as to obstruct the
administration of justice; (2) Misbehavior of any of its officers in their official transaction; (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or
command.
Obstruction to administration of justice falling outside of section 401 is not
susceptible to summary punishment as contempt. Thus in Nye v United States,228 the
U S Supreme Court held that the crucial ‘so near there to’ phrase as used in the first
sub section of Section 401 should be construed in a narrow and geographical, rather
than in a causative, sense.229 The judgment confined summary method of procedure
within the very narrow bounds in the Federal statute. This led to a further situation
that the summary method of procedure has no application to contempt by
publication.230
The power of the court to subject an alleged contemnor to immediate
committal without the benefit of a formalized evidentiary hearing was further
restricted by the Federal Rules of Criminal Procedure. Rule 42(a) of Federal Rules of
Criminal Procedure provides that such summary course may be followed only if the
judge certifies that he saw or heard the conduct constituting the contempt and that it
was committed in the actual presence of the court.231 Otherwise rule 42 (b) requires
that the contempt to be prosecuted on notice, which must state the essential facts
constituting the cranial contempt charged, grant the defendant a reasonable time for
the preparation of his defense etc.232
228 313 US 33 (1941). 229 Id at 49. 230 Herbert Barry, Contempt of Court, 10 Va L Rev 289, 292 (1924). 231 Rule 42 (a) of Federal Rules of Criminal Procedure reads-: Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of records. Excerpted in Harris v United States, 15 L ed 2d 240, 242 (1965). 232 Rule 42 (b) of Federal Rules of Criminal Procedure reads-: A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an Act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the
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Thus the power of the court to punish a person instantaneously got restricted.
The power of the judge to deal with the contemnor personally and without the benefit
of evidentiary hearing was further limited by subsequent developments through case
laws. Thus in Mayberry v Pensylvania,233 the Supreme Court held that a judge who
was subjected to personnel vilification and abuse must disqualify himself from
dealing with the contempt if he waited to act until after the end of the trial.234 The
rationale for this approach was based on the concept of due process of law. It was
observed that if a judge was seriously vilified as in the present case, he became
necessarily embroiled in a running bitter controversy and no one so cruelly slandered
could likely to maintain that calm detachment necessary for fair adjudication.235 The
judgment indicates that a judge may still deal with a contemnor personally, provided
he acts instantly and does not postpone the matter until the trial is over.
Further under U S law the procedure for contempt is linked with constitutional
principles. Until recent years, contempt of court was treated as falling outside the
protections afforded by the Constitution. Thus in United States v Barnett,236 the U S
Supreme Court held that contempt of court was not governed by constitutional
protection of jury trial.237 However doubts were expressed by majority as to whether
penalties in excess of those provided for petty offences could be imposed without
affording opportunity for jury trial.238 Subsequently in Bloom v Illinois,239 doubts
defendant’s consent. Upon a verdict or finding of guilt he court shall enter an order fixing the punishment. Excerpted in Harris v United States, 15 L Ed 2d 240, 243(1965). 233 27 L Ed 2d 532 (1971). In this case Petitioner and two codefendants were tried in a state court for prison breach and holding hostages in a penal institution. Though they had appointed counsel as adviser, they represented themselves. During the trial the petitioner repeatedly engaged in disruptive conducts and made insulting and slanderous remarks to the judge. At the end of the trial they were found guilty of the charges. However, before imposing sentence on the verdicts the judge pronounced them guilty of criminal contempt. He found that petitioner had committed one or more contempts on 11 of the 21 days of trial and sentenced him to not less than one nor more than two years for each of the 11 contempts. Id at 534- 535. 234 Id at 540. 235 Id. 236 12 L Ed 2d 23(1964). The proceeding in this case arose from the efforts of a Negro to gain admission as a student to the University of Mississippi. Contempt proceedings were initiated against the Governor and Lieutenant Governor of Mississippi for disobeying injunctive orders issued by the Court. In the Criminal contempt proceeding, the alleged contemnors demanded trial by jury and the Court of Appeals, being evenly divided, certified to the U S Supreme Court the question whether they were entitled to trial by jury. 237 Id at 31 – 32. 238 Id at 32. See also Cheff v. Schnackenberg, 384 U S 373 (1966). 239 20 L Ed 2d 522 (1968). In this case for wilfully petitioning to admit to probate a will falsely prepared and executed after the putative testator's death, the Petitioner was convicted for criminal contempt and sentenced to 24 months' imprisonment. His request for a jury trial was refused by the trial court on the basis of ratio laid down in United States v Barnett. The Illinois Supreme Court affirmed his conviction and the matter reached before the Supreme Court.
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expressed in Barnett case got approval. In this case contempt proceeding was initiated
for the production of a forged will and an Illinois State Court rejected a request for
jury trial and imposed a sentence of twenty four months. On appeal to Supreme Court,
it was held that criminal contempt was not deemed to be a serious offence requiring
the protection of jury trial.240 However if the punishment imposed for contempt was
more than for petty offence, a trial by jury was held to be required.241 Since twenty
four months imprisonment was treated as serious punishment, Bloom’s appeal was
allowed.242
Thus the distinction between petty and serious offences was made applicable
to contempt cases also. The consequence of the judgment was that, if the punishment
exceeds more than six months imprisonment, jury trial becomes a constitutional right.
The fine for criminal contempt case is more confusing since no clear rationale can be
laid down to distinguish between petty and serious offences. However in United Mine
Workers of America v Bagwell,243 the U S Supreme Court observed that it was
unnecessary to answer the difficult question where the line between petty and serious
contempt fines should be drawn.244
The principle laid down in Bloom v Illinois was subsequently extended to
contempt committed in the face of the court even if the punishment was instant.245It is
further pertinent to note that though the Almon rule from England brought the
summary procedure rule to the United States also, for contempts ex facie and non
exfacie, it is a surprise to note that the U S Supreme Court also accepted that the
Wilmot’s ratio was not based on any historical antecedent as claimed. The simple fact
that the summary procedure was followed for pretty long period was treated as the
justification for continuing summary procedure in the U S law. Thus Justice
Frankfurter, in Green v United States,246 observed thus:247
The fact that scholarships has shown that historical assumptions regarding the procedure for punishment of contempt were ill - founded, hardly wipes out a century and a half of the legislative and judicial history of federal law based on such
assumption.
240 Id at 526. 241 Id. 242 For petty offence the maximum punishment is six months imprisonment. See 18 USC, S. 1(3). 243 512 U S 821 (1994). 244 Id at 837. 245 Codispoti v Pennsylvania, 418 U S 506(1974), see also Lewis v U S, 518 US 322 (1996) 246 356 U S 165 (1958). 247 Id at 190.
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Following the common law, summary procedure is recognized for contempt of court
in Australia also.248
Procedure for contempt of court - Indian position
By virtue of Section 106 of the Government of India Act, 1915 the contempt
jurisdiction of the High Courts was allowed to be continued for all High Courts then
in existence and Section 113 of the Act authorized the establishment of new High
Courts by letters patent with the same authority, powers and jurisdiction. Based on
these provisions, the Lahore High Court was established by letters patent in 1919 as a
court of record.249 In 1926 the Lahore High Court looked into its own contempt
jurisdiction in Habib, son of Sadullah Khan, in the matter of.250 Explaining its own
contempt jurisdiction Broadway, J observed that Lahore High Court as a court of
record had jurisdiction to deal summarily with contempt of court.251 Thus the power
to punish summarily for contempt was not created by any statute but was treated as an
inherent power vested with every court of record.252
In India, unlike the English or the U S approaches, the summary proceeding
cannot be explained on the basis jury trial. But summary trial for contempt of court
has been explained as avoidance of elaborate rules of criminal trial.253 The primary
248 See James v Robinson, (1963) 109 CLR 593. This was an appeal to the High Court of Australia against the decision of Supreme Court of Western Australia. In this case an article was published in Sunday Times, which allegedly tend to prejudice the fair trial of the respondent, Brian William Robinson who was being sought by police in connection with two murders. The Supreme Court of Western Australia, on a summary trial, punished the appellant who was the editor of a news paper, to pay a fine of £ 1,000. Id at 593 - 594. Before the High Court the appellant mainly contended that for contempt committed outside the court, no summary proceeding was permissible. Id at 600. This argument was rejected and after citing series of decisions from common law countries the Court observed that summary proceeding even for contempt committed outside the court is firmly established. Id at 602. However the appeal was allowed on the ground that proceeding was not pending at the time of publication. Id at 607. See also Re Colina ; Ex p. Torney (1999) 73 AJLR 1576. 249 See Sukhdev Singh Sodhi v The Chief Justice and Judges of The Pepsu High Court, [1954]1SCR 454, 457. 250 AIR 1926 Lah.1. 251 Id at 2. See also In re, Abdul Hasan Jauhar, AIR 1926 All. 623. 252 In the matter of Muslim Outlook, AIR 1927 Lah. 610, 611. See also Emperor v Murli Manohar Prasad, AIR 1929 Pat. 72, 75. 253 Thakur Prasad Dubay, Contempt of Court in British India & Summary Powers of the High Court to Punish it, AIR (J), 33, 38 (1942). See also In re Vinay Chandra Misra, (1995) 2 SCC 584, were it was held that the criminal contempt of court undoubtedly amount to an offence but it is an offence sui generis and hence for such offence, the procedure adopted both under common law and the statute law even in India has always been summary. Id at 609 , In Daroga Singh v B.K. Pandey, (2004) 5 SCC 26, it was observed that the procedure prescribed under the Code of Criminal Procedure or under the Evidence Act is not attracted to the proceeding initiated under section 15 of the Contempt of Courts Act. The High Courts can deal with such matters summarily and adopt its own procedure. The only caution that has to be observed by the court in exercising this inherent power of summary procedure is that the procedure followed must be fair and the contemnors must be made aware of the charges
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justification for summary jurisdiction in contempt cases in India is based on the
rationale that the power is vested only with the High Courts and not in the subordinate
judiciary.254 The chances of misuse and misapplication at the hands of the highest
court of the land are thus very rare. The second justification for summary proceeding
is that punishment is limited to six months imprisonment and fine of rupees two
thousand.255 Thus, though the summary procedure for contempt proceeding was
recognized even before the enactment of Contempt of Courts Act, 1926, the 1926 and
1952 Acts were silent about the procedures to be followed in contempt cases and the
summary procedures followed by the English courts were continued in India. Later
the nature of contempt proceeding was looked into by the Supreme Court in Sukhdev
Singh v Teja Singh,256 where the Supreme Court observed as follows:257
The power of the High Court to institute proccedings for contempt and punish were where necessary is a special jurisdiction inherent in all courts of record. Section 1 (2) of the Criminal procedure Code excludes special jurisdiction from its scope. Hence the Code of Criminal Procedure does not apply in matters of contrmpt triable by the High Courts. The High Courts can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemnor is made aware of the charge against him and given a fair and reasonable opportunity to defend himself.
However the 1971 Act brought substantial changes in this regard. Section 14 of the
Act specifically incorporated the procedures to be followed when the contempt is in
the face of the High Court or the Supreme Court as the case may be.258 The
leveled against them and given a fair and reasonable opportunity. Id at 45, In The State v Padma Kant Malaviya, AIR 1954 All. 523, it was observed that the Contempt proceedings are not governed by Code of Criminal Procedure, Id at 525. State of Uttar Pradesh v Ratan Shukla, AIR 1956 All. 258, it was held that contempt proceedings are neither criminal proceedings nor civil proceedings and are sui generis. Id at 262. 254 Dubay, AIR (J), 33, 39 (1942) (cited in note 253). 255 Id at 38. 256 AIR 1954 S C 186. 257 Id at 188. See also Sher Singh v Raghu pati Kapur, AIR 1968 Punj. 217. 258 S. 14 of the Contempt of Courts Act, 1971 reads- Procedure where contempt is in the face of the Supreme Court or a High Court : - (1) When it is alleged, or appears to the Supreme Court or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the Court may cause such person to be detained in custody, and, at any time before the rising of the Court, on the same day, or as early as possible thereafter, shall-
(a) cause him to be informed in writing of the contempt with which he is charged; (b) afford him an opportunity to make his defence to the charge; (c) after taking such evidence as may be necessary or as may be offered by such person and
after hearing him, proceed either forthwith or after adjournment, to determine the matter of the charge; and
(d) make such order for the punishment or discharge of such person as may be just. (2) Notwithstanding anything contained in sub – section (1), where a person charged with contempt under that sub – section applies, whether orally or in writing, to have the charge against him tried by some Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, and the Court is of opinion that that it is
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procedures include informing the alleged contemnor in writing regarding charge,
giving opportunity to make his defence, transferring the matter to some other judge
for trial from the judge in whose presence or hearing the offence is alleged to have
been committed on such an application.259 Further section 15 of the Act contains
procedures to be followed in cases of criminal contempts other than those mentioned
in section 14 of the Act.260 It is well accepted that proceedings under section 14 and
practicable to do so and that in the interests of proper administration of justice the application should be allowed, it shall cause the matter to be placed, together with statement of facts of the case, before the Chief Justice for such directions as he may think fit to issue as respect the trial thereof. (3) Notwithstanding anything contained in any other law, in any trial of a person charged with contempt under sub – section (1) which is held, in pursuance of a direction given under sub – section (2), by a Judge other than the Judge or Judges in whose presence or hearing the offence is alleged to have been committed, it shall not be necessary for the Judge or Judges in whose presence or hearing the offence is alleged to have been committed to appear as a witness and the statement placed before the Chief Justice under sub – section (2) shall be treated as evidence in the case. (4) Pending determination of the charge, the Court may direct that a person charged with contempt under this section shall be detained in such custody as it may specify: Provided that he shall be released on bail, if a bond for such sum of money as the Court thinks sufficient is executed with or without sureties conditioned that the person charged shall attend at the time and place mentioned in the bond and shall continue to so attend until otherwise directed by the Court: Provided further that the Court may, if it thinks fit, instead of taking bail from such person, discharge him on his executing a bond without sureties for his attendance as aforesaid.
259 However in Leila David (6) v State of Maharashtra and others, (2009) 10 SCC 337, it was observed that section 14 of the, 1971, does not preclude the court from taking recourse to summary proceedings when a deliberate and wilful contumacious incident takes place in front of judges eyes and the public at large. Id at 345. It is doubtful whether the approach adopted by the Supreme Court in this regard is correct. It seems that the procedures under section 14 are mandatory and Court cannot waive the procedures in any circumstance. For detailed discussion in this regard see Chapter - 4, Indian Constitution and Contempt of Court, Pp. 120 – 121. See also Chapter -5, Classification of Contempt – Rationale and Need for, Pp. 302 – 303. 260 S. 15 of the Contempt of Courts Act 1971 reads-: Cognizance of criminal contempts in other cases.- (1) In the case of criminal contempt, other than a contempt referred to in section 14, the Supreme Court or the High Court may take action on its own motion or on a motion made by-
(a) the Advocate General, or (b) any other person with the consent in writing of the Advocate General, or (c) in relation to the High Court for the Union territory of Delhi, such law officer as the
Central Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with the consent in writing of such Law Officer.
(2) In the case of any criminal contempt of a subordinate court, the High Court may take action on s reference made to it by the subordinate court or on a motion made by the Advocate General or in relation to a Union Territory, by such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf. (3) Every motion or reference made under this section shall specify the contempt of which the person charged is alleged to be guilty. Explanation.- In this section the expression “Advocate General” means,-
(a) in relation to the Supreme Court, the Attorney General or the Solicitor General; (b) in relation to the High Court, the Advocate General of the State or any of the
States for which the High Court has been established. (c) In relation to the court of a Judicial Commissioner, such Law Officer as the
Central Government may, by notification in the Official Gazette, specify in this behalf.
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section 15 of the Contempt of Courts Act contemplate two entirely different types of
contempt of court with mutually exclusive procedures.261 Thus if the contempt is in
the face of the High Court or the Supreme Court the proceeding must be in
accordance with section 14 and in such cases the procedure under section 15 could not
be availed.262
Under section 15, the Supreme Court and the High Courts can take cognizance
in different ways. Primarily action can be taken on its own motion263. Action can be
taken on a motion made by anyone with the consent of the Advocate General or on a
motion made by the Advocate General himself. In the case of criminal contempt of a
subordinate court, as per clause (2) of section 15, the High Court is the competent
authority to initiate contempt proceeding. The High Court may take action on a
reference made to it by the subordinate court or on a motion made by the Advocate
General or in relation to a union territory, by such law officer as the Central
Government may, by notification in the Official Gazette, specify in this behalf. Thus
as per the Act, the Supreme Court has no jurisdiction for contempt committed against
lower courts and the matter is to be dealt by the High Courts.
When a motion has been admitted, notice has to be issued to the alleged
contemnor. When a proceeding is initiated for contempt of court, the court is not
bound by the Code of Criminal Procedure or Indian Evidence Act.264 However the
degree of proof required in contempt cases is the same as for any criminal offence.265
The general principle in this regard is that in the matter of taking proceeding for
contempt of court, the court is guided by its own procedure to be followed in the facts
and circumstance of each case ensuring that the contemnor is getting full opportunity
to make his defence and no principle of natural justice is violated in following such
261 Manisha v Ashoke, 1985 Cr L J 1224, 1230. 262 Id. 263 See Beeman Basu v Kallol Guha Thakurta, AIR 2010 SC 3328. In this case it was observed that if the High Court is prima facie satisfied that the information received by it regarding commission of a subordinate court is not frivolous and the contempt alleged is not technical it may in its discretion act suo motu and commence the proceeding against the contemnor. Id at 3332. 264 V.G. Peterson v O.V Forbes, AIR 1963 SC 692. The case related to attachment of property of the contemnor on his non appearance before the court and the application of section 87 of the Code of Criminal Procedure Court in such attachment of property for contempt of court. The question in this regard was whether the attachment and release of the property must be in accordance with the provisions of the Criminal Procedure Code. Id at 695. see also Daroga Singh v B.K. Pandey, (2004) 5 SCC 26 265See Chhotu Ram v Urvashi Gulati, (2001) 7 SCC 530, 532. See also Abdul Karim v Prakash, (1976)1 SCC 975, 982.
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procedure.266 However an application to initiate proceedings for action on the ground
that civil contempt has been committed must contain a copy of the order of the court
alleged to have been disobeyed, the date on which it was disobeyed, the manner in
which it was disobeyed, and the name of the person who disobeyed it.267
The unique nature of section 15 is that the court could take notice of the
contumacious act without any extraneous aid. The information to the court could
come from any source and proceeding could be initiated by the court suo motu
without any affidavit.268 Even the consent of Advocate General is unnecessary for
such proceedings.269 Again under Cl (2) of section 15, in the case of criminal
contempt of subordinate court, action can be taken on a reference made to the High
Court by the subordinate court or on a motion made by the Advocate General. It was
pointed out that there is nothing in sub – section 2 of section 15 which would prevent
the High Court to take cognizance suo motu in respect of contempt of a subordinate
court.270 In appropriate cases even if the Advocate General refuses to give his consent
to initiate prosecution, the party can approach the court for initiating contempt
proceeding as a suo motu proceeding and in such cases the complaint moved by the
party without the consent of the Advocate General can be treated as information and
contempt proceeding can be treated by the High Court suo motu.271
The importance and significance of the Advocate General giving consent for
initiating contempt proceeding was considered by the Patna High Court in Harish
Chandra Misra v Hon’ble Mr. Justice S. Ali Ahmed,272 where it was pointed out that
266 Mohd Vamin v Om Prakash, (1982) 1 Cr L R 322, 330 267 Shamshul Hasan v Kuber Nath, 1975 Cri L J 898, 898 268 State of U.P. v Radhey Shyam, (1983) 2 Cr L J 1153, 1163 269 Haji Rasheed v Mohammed v D. Ramanujan, AIR 1986 Mad. 119. In this case it was observed that the consent in writing of the Advocate General is requisite only for a person moving the motion for contempt of court. But there is no such restriction or requirement when the court wants to initiate action on its own motion under section 15. Id at 121. See also P. Rahim v M.V. Jayarajan, AIR 2011 Ker. 12. 270 State v R.N. Patra, 1976 Cri L J 440, 444. 271 B. K. Misra v Chief Justice Orissa High Court, AIR 1974 Ori. 1, 6. See also P.N. Duda v Shiv Shankar, (1988) 3 SCC 167. However In Re M.V. Jayarajan 2011 (4) KLT 570, proceeding seems to be much strange. In this case a petition was moved by an advocate against the respondent without the consent of the Advocate General. In the petition necessary directions were sought against the Advocate General to grant consent and made Advocate General a party in the proceeding. It was further prayed that suo motu contempt proceeding may be initiated in case if consent of Advocate General was a found prerequisite. Id at 603-604. It seems that the proceeding is not incompliance with the Contempt of Courts Act. A contempt petition can be moved with the consent of the Advocate General or suo motu. But it is doubtful whether a proceeding could be initiated to give direction to the Advocate General to give consent or in alternative to initiate a suo motu proceeding. 272 AIR 1986 Pat. 65. This was a case were contempt proceeding was initiated against a judge of Allahabad High Court by three advocates of the same High Court for alleged contempt committed by
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the procedure was intended to ensure by the Advocate General who was holding the
constitutional post that the proceeding was not out of personal vendetta but intended
to uphold the dignity of the court.273 The requirement of consent of Advocate General,
Attorney General or such other law officer under section 15 cannot be treated as a
mere formality but it has the salutary purpose of avoiding fictious complaints being
initiated as contempt of court.274
In practice contempt matters are generally heard on affidavits. However, when
the interest of justice requires, oral examination of defendants and witnesses are
permissible.275 Procedure after cognizance of criminal contempt is incorporated in
section 17 of the Act.276 As per section 17, notice has to be served personally on the
person charged unless the Court for reasons to be recorded directs otherwise. The
notice shall be accompanied by copies of affidavits if any on which such motion is
founded or copy of reference by subordinate court if the motion was founded on a
the Judge by making insulting and uncharitable remarks against an advocate of Allahabad High Court while hearing a civil revision application for hearing. Id at 67. It seems that though with regard to the requirement of consent of Advocate General, judges expressed unanimous opinion, N.P. Singh J adopted the view that written consent of the Advocate General is a must for initiating contempt proceeding. Id at 71. S.K. Choudhuri J observed that, though normally consent of Advocate General is necessary, if consent is refused, ordinarily the court will be reluctant to entertain a petition for contempt unless in the opinion of the High Court the case is of such a nature and importance that the High Court should exercise this power suo motu. Id at 76. Thus according to him though consent of Advocate General is highly important it cannot be treated as a must. P.S. Sahay J favoured the latter view. Id at 77. It seems that other judges who heard the mater (Uday Sinha and Birendra Prasad Sinha) did not express any opinion in this regard. 273 Id at 71. See also One Earth One Life v Sindhu Joy, 2007 (1) KLT 897, 902. 274 State of Kerala v M.S.Mani, (2001) 8 SCC 82, 84. 275 State of U.P. V Deg Raj Singh, (1983) Cri L J 866, 871, See also In Re M.V. Jayarajan, 2011 (4) KLT 570. 276 S. 17 of the Contempt of Courts Act, 1971 reads- Procedure after cognizance.- (1) Notice of every proceeding under section 15 shall be served personally on the person charged, unless the Court for reasons to be recorded, directs otherwise. (2) The notice shall be accompanied,-
(a) in the case of proceedings commenced on a motion, by a copy of the motion as also copies of the affidavits, if any, on which such motion is founded; and
(b) in case of proceedings commenced on a reference by subordinate Court, by a copy of the reference.
(3) The Court may, if it is satisfied that a person charged under Section 15 is likely to abscond or keep out the way to avoid service of the notice, order the attachment of his property of such value or amount as deem reasonable. (4) Every attachment under Sub – section (3) shall be effected in the manner provided in the Code of Civil Procedure, 1908 (5 of 1908), for the attachment of property in execution of a decree for payment of money, and if, after such attachment, person charged appears and shows to the satisfaction of the Court that he did not abscond or keep out of the way to avoid service of the notice, the Court shall order the release of his property from attachment upon such terms as to costs or otherwise as it may think fit. (5) Any person charged with contempt under Section 15 may file an affidavit in support of his defence, and the court may determine the matter of the charge either on the affidavits filed or after taking such further evidence as may be necessary, and pass such order as the justice of the case requires.
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reference made by the subordinate court as the case may be. As per cl. (3) and (4) of
section 17, if the court is satisfied that a person charged for criminal contempt is
likely to abscond or keep out of the way to avoid service of notice, can order
attachment of his property of such value or amount as it may deem reasonable in
accordance with the manner specified under the Code of Civil Procedure for the
attachment of property in execution of a decree for payment of money. However, if
after the attachment, the person charged appears and shows to the satisfaction of the
court that he did not abscond or keep out of the way to avoid service of a notice, the
court shall order the release of his property from attachment upon such terms as to
costs or otherwise as it may think fit.
As per clause (5) of section 17, a person charged with criminal contempt under
section 15 may file an affidavit in support of his defence. Though the proceeding for
criminal contempt of court is summary in nature, section 17 provides that in addition
to affidavits the court may take such further evidence as may be necessary to pass
such order as justice of the case requires.277 However, the important point to note in
this regard is that the procedure under section 15 as well as under section 17 is
applicable only in criminal contempt cases. Regarding civil contempts, the procedures
under section 15 and 17 are not applicable, and the High Court can deal with the
matter summarily adopting its own procedure.278 In such cases what is necessary is
that the procedure must be fair and the contemnor must be aware of the charge against
him and he must be given a fair and reasonable opportunity to defend himself.279
Except when the contempt is heard by a Court of Judicial Commissioner,
section 18 of the Contempt of Courts Act provides that hearing of criminal contempt
must be by Benches of not less than two Judges.280 Thus a judge sitting singly has no
277 It seems that the words pass such order as the justice of the case requires has a much wider connotation in contempt proceedings which persuades the court to adduce evidence which could be collected from different quarters, including collecting media reports when contempt is by scandalizing the court through media and by examining witnesses. See In Re M.V. Jayarajan, 2011 (4) KLT 570. The Court further observed that once the act which prima facie shows that a contempt of court has been committed, is brought to the notice of the court, it is for the court to decide whether the contempt had been committed or not or whether it is appropriate to take action or to drop the proceeding. All these questions are primarily between the court and the contemnor. See also Shri. Amrit Nahata v Union of India, AIR 1986 SC 791. 278
See Union of India v Mario Cabral, (1982) 3 SCC 262, 264. 279 Suhkdev Singh v Hon’ble Justice Teja Singh, AIR 1954 SC 186,190. 280 S. 18 of the Contempt of Courts Act, 1971 reads – Hearing of criminal contempt to be by Benches.- (1) Every case of criminal contempt under Section 15 shall be heard and determined by a Bench of not less than two judges. (2) Sub – section (1) shall not apply to the Court of Judicial Commissioner.
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jurisdiction to determine a criminal contempt.281 However the provision is applicable
only regarding criminal contempt and not to civil contempt. Thus a civil contempt
proceeding could be entertained by a single judge. Similarly for contempt committed
facie curie also the procedure under section 18 is not applicable. Further it is to be
noted that the legal phrase ‘heard and determined’ shall not be applied to any and
every step taken in contempt jurisdiction but has relevance to the final trial and
adjudication of criminal contempt. It would have no relevance to the preliminary
process laid down in sections 15 and 17 of the contempt proceedings.282
If sections 15, 17 and 18 are applicable only to criminal contempt which are
not ex facie, section 19 which deals with appeals against any order or decision of the
High Court in exercise of its jurisdiction to punish for contempt apply to both civil
and criminal contempts. As per section 19,283 appeal shall lie against the decision of a
single judge to a Bench of not less than two judges of the High Court and where the
decision is that of a Bench, to the Supreme Court. However as per proviso to section
19 (1), where the order or decision is that of the Court of Judicial Commissioner in
any Union Territory, such appeal shall lie to Supreme Court. Sub - section (2) of
section 19 deals with the procedures to be followed by the appellate court while
pending the appeal. When the appeal is pending, the appellate court may suspend the
execution of punishment and if the applicant is in confinement he be released on bail.
Further as per cl. (3), where any person aggrieved by any order against which an
appeal may be filed, satisfies the High Court that he intends to prefer an appeal, the
281 Chhangalal Mittal v Mohanlal Mittal, 1982 Cri L J 2199 , 2201. 282 Durga Prasad Gupta v Sahadeb Dey, 1994 Cri L R (Cal.) 172, 185, excerpted in Puri, Iyers Law on Contempt of Courts at 479 (cited in 212). 283S. 19 of the Contempt of Courts Act, 1971 reads-: Appeals.- (1) An appeal shall lie as of right from any order or decision of High Court in the exercise of its jurisdiction to punish for contempt –
(a) where the order or decision is that of a single judge, to a Bench of not less than two judges of the Supreme Court.;
(b) where the order or decision is that of a Bench, to the Supreme Court: Provided that where the order or decision is that of the Court of the Judicial Commissioner in any union territory, such appeal shall lie to Supreme Court. (2) Pending any appeal, the appellate court may order that- (a) the execution of the punishment or order appealed against be suspended; (b) if the applicant is in confinement, he be released on bail; and (c) the appeal be heard notwithstanding that the appellant has not been purged his contempt. (3) Where any person aggrieved by any order against which an appeal may be filed satisfies the High Court that he intends to prefer an appeal, the High Court may also exercise all or any of the powers conferred by sub–section (2). (4) an appeal under sub – section (1) shall be filed – (a) in case of an appeal to a Bench of the High Court, within thirty days;
(b) in the case of an appeal to Supreme Court, within sixty days from the date of the order appealed against.
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High Court may exercise all or any of the powers conferred by sub section (2) of
section 19. Evidently as per section 19, an appeal lies not only against an order
imposing substantive punishment but also against an order which has been passed in
exercise of its contempt jurisdiction. Thus an order passed under section 11 of the Act
which empowers the High Courts to inquire into the alleged contempt is itself subject
to appeal.284 However an order initiating proceeding for contempt by notice issued
under section 17 of the Act is not appealable under section 19.285 Sub - section (4) of
section 19 incorporates the period of limitation for appeal. Thus an appeal shall be
filed to a Bench of the High Court within thirty days and in the case of an appeal to
the Supreme Court the time limit is sixty days from the date of the order appealed
against.
Yet another point to note in this regard is that an appeal lies only against an
order of punishment or an adverse finding and an informer or a person who moves the
court for action being taken under the Contempt of Courts Act, against another person
is not an aggrieved person and an appeal at his instance is not maintainable.286 Section
20 of the Act deals with limitation period for contempt actions.287 The limitation
period under the Limitation Act has no application in contempt proceedings.288
Irrespective of whether the contempt is civil or criminal, whether it is initiated on
court’s own motion or otherwise, no contempt proceeding could be initiated after the
expiry of one year from the date on which the contempt is alleged to have been
committed. The generally accepted view is that procedure under section 20 is
applicable not only when the contempt proceeding is initiated under the Contempt of
Courts Act but also when the contempt proceeding is initiated under Article 215 of
Indian Constitution.289 Thus in Advocate General A.P. v A.V. Koteswara Rao,290 it
284 Puri, Iyers Law on Contempt of Courts at 480 (cited in 212). 285 Union of India v Mario Cousal, AIR 1982 SC 691, 693. 286 Mohd. Mahmood v A. Ramakrishnan, 1995 Cr L J 3034, 3040. See also Md. Kamarudjama v Elabonina Ramesh, 1999 Cr L J 1925, 1998. J.S. Parihar v Ganpat Duggar, AIR1997 SC 113, 114. However in Baradakanta Mishra v Justice Gatikrushna Misra, 1975 (3) SCC 535, it was observed that that though acquittal in criminal contempt is not appealable under section 19, remedy against acquittal is available under Article 136 of the Constitution. Id at 543. Same view was taken in Tamilnad Mercantile Bank Share Holders Association (2) v S.C. Sekar and others (2009) 2 SCC 784, 803. See also Chandramati Devi v Rajib Bora, AIR 2011 Gau. 193. 287 S. 20 of the Contempt of Courts Act, 1971 reads-: Limitation for actions for contempt.- No court shall initiate any proceeding for contempt, either on its own motion or otherwise, after the expiry of one year from the date on which the contempt is alleged to have been committed. 288 Devi Kishan v Mohanlal Verma, 2000 Cri L J 3619, 3622. 289 V.M. Kanade v Madhav Gadkari, 1990 Cri L J 190, 193. For details regarding initiation of contempt proceeding under Article 215 of the Constitution See Chapter - 4, Indian Constitution and Contempt of Court, Pp 132 - 134.
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was observed that section 20 of the Act does not intend to abrogate the power of High
Court under Article 215 wholly or partially.291 The power can be exercised in all their
amplitude within the period of one year prescribed under section 20 of the Act.292
The commonly accepted approach regarding the commencement of limitation
period is the date on which the contempt is alleged to have been committed and not
from the date of knowledge.293 However a different view was adopted in Sudesh
Kumar v Jai Narain,294 where it was observed that the period was to be reckoned from
the time when the court became aware of the commission of contempt and not from
the date on which the act comprehended to be contemptuous of the court was
committed by the contemnor. The Punjab and Haryana High Court accepted the first
view295 and observed that for limitation to run from a point of time so uncertain as the
knowledge of the court itself or when it was brought to its notice, would introduce
element of uncertainty for the start of point of limitation which would be contrary to
the spirit of the Act.296 It was further observed that the contrary view would lead to a
situation that an action for criminal contempt can be visualized after many years of its
actual commission which would frustrate the very purpose of legislature in
introducing a period of limitation. 297
Yet another point to note in this regard is the meaning of initiation of
contempt proceeding. The statute provides that ‘no Court shall initiate a contempt
proceeding’. Thus the bar for initiating contempt proceeding is imposed on the court.
In other words it is immaterial whether the party has moved a motion or a reference
for initiation of contempt proceeding within one year or not. The whole question is
whether the court has initiated the proceeding within the limitation period mentioned
290(1984) 2 Cri L J 1171. 291 Id at 1176. Same view was taken by Kerala High Court in Rajan Nair v Mohan, 1993) 1 KLT 782 where it was observed that section 20 of the Contempt of Courts Act does not take away the power to punish for contempt under Article 215 of the Constitution but the power is required to be exercised within the time prescribed under section 20 of the Act. Id at 789. 292 See High Court of Karnataka v Y.K. Subbabba, 1990 Cri L J 1159, 1163. See also Advocate General A.P. v Gopal, 1996 Cri L J 3724, 3730, Yogesh P. Sukhanadi v State of Gujrat, 1997 Cr L J 560, 569 293 Venkataramanappa v D.K.Kaikar, AIR 1978 Kar. 57. In this case it was observed that the bar contained in section 20 is absolute and it bars initiation of any proceeding for contempt after the expiry of the period of one year from the date on which the contempt is alleged to have been committed. Id at 60. Same view was taken by Gujarat High Court in Dineshbhai v Kripalu Co – Op. Housing Soiety, AIR 1980 Guj. 194, 200. See also decision of Patna High Court in State of Bihar v Ambika Roy, 1991 Cr L J 82, See also Rajan Nair v Mohanan, (1993) 1 KLT 782, 788. 294 1974 PLR 123,126, excerpted in Puri, Iyers Law on Contempt of Courts at 494 (cited in 212). 295 Manjit Singh v Darsan Singh, 1984 Cri L J 301. 296 Id at 304. 297 Id.
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under the Act. Thus in Om Prakash Jaiswal v D.K. Mittal298 the Supreme Court
observed that neither by filing or presenting an application or petition for civil
contempt nor when the Court receives a motion or reference from the Advocate
General, contempt proceeding could be said to be initiated.299 It was further observed
that even on receipt of any such document, the routine direction of the court to issue
notice without application of mind also could not be treated as initiation of contempt
proceeding.300 It is only when the court has formed an opinion that a prima facie case
for initiating proceedings for contempt is made out and that the respondents or the
alleged contemnors should be called upon to show cause why they should not be
punished, the court can be said to have initiated proceedings for contempt.301 The
literal interpretation of section 20 followed by the Supreme Court has led to a strange
situation. Even if the contempt motion or reference was moved well within time, there
may be situations where contempt proceedings got barred for the court has not
initiated proceeding within time. Or the failure for the initiation of contempt
proceeding within time may be for technical reasons. 302 Still in such cases the
contempt proceedings may got time barred. The injustice caused in such situation is
much severe in civil contempt proceeding for the reason that an important objective of
civil contempt proceeding is to provide relief to a party who is affected by non
compliance with court orders or undertaking given to the court.303 The defect in this
regard could be rectified only by an amendment to section 20 of the Act providing
that no court shall initiate any contempt proceeding if motion or reference for
initiation contempt proceeding was not filed before the Court within one year from
298 AIR 2000 SC 1136. The contempt proceeding in this case was initiated out of a breach of undertaking given to Allahabad High Court in a writ proceeding. Though the Court directed to issue notice to the contemnor, it was not issued within one year. After one year the contempt proceeding was dropped as the same is barred under section 20 of the Act. Id at 1137. Aggrieved by the decision, appeal was moved to Supreme Court. The question before the Court was whether an order to issue notice would amount to initiation of contempt proceeding. Id at 1139. Based on this approach in suo motu contempt proceeding the issuance of notice itself could be treated as initiation of contempt proceeding because in such cases the notice was issued by the Courts after the application of mind. See Pallav Sheth v Custodian, AIR 2001 SC 2763, 2777. 299 Om Prakash Jaiswal v D.K. Mittal, AIR 2000 SC 1136, 1137. 300 Id. 301 Id. 302
See Om Prakash Jaiswal v D.K. Mittal, AIR 2000 SC 1136. In this case the proceeding was actually initiated by the party well within time. However there was no application of mind by the court and it was observed that no contempt proceeding was initiated within time. See also Rajan Nair v Mohanan, (1993) 1 KLT 782. In this case the delay in filing the contempt petition was for the reason that the court was on vacation. On the very day of reopening of the court contempt petition was filed. But court rejected the petition holding that one year has elapsed since the contempt was committed. Id at 789. 303 For details see Chapter - 5, Classification of Contempt – Rationale and Need for.
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the date on which the contempt is alleged to have been committed. Only by such an
amendment to section 20 of the Act, the anomaly in this regard could be rectified.
The procedures contained in sections 14, 15, 17, 18, 19 and 20 cover only the
fringe of the procedure to be followed in contempt cases. Further the procedural
formalities under sections 14, 15, 17 and 18 are not applicable to civil contempt
proceedings. The lacuna in this regard is remedied by section 23 of the Act by
empowering the High Court and the Supreme Court to make rules providing for any
matters relating to its procedure not inconsistent with the provisions of the Contempt
of Courts Act, 1971.304 On the basis of section 23, rules were framed by the Supreme
Court and the High Courts. The Supreme Court formulated rules in 1975.305 The rules
provide that where contempt is committed in the view, presence or hearing of the
court, the contemnor 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 this behalf.306
Pending determination of the charge, the Court may direct that the contemnor shall be
detained in custody or may be released on bail on such terms as the court may
direct.307 With regard to contempts other than those committed in the view, presence
or hearing of the court, contempt proceeding could be initiated (a) suo motu, (b) on a
petition made by the Attorney General or the Solicitor General or (c) a petition made
by any person, and in case of a criminal contempt with the consent in writing of the
Advocate General or the Solicitor General.308 The petition shall contain the name,
description and place of residence of the petitioner and the person charged, the nature
of contempt alleged, details of the allegation for the proper determination of the case
and details of previous petition made if any.309 The rules further provide that the
petition shall be supported by affidavits and documents or true copies of
documents.310 If the proceeding is on the basis of a petition made by the Attorney
General, or on a petition made by a person with the consent in writing of the Attorney
General or the Solicitor General, the petition shall be posted before the Court for
304 S. 23 of the Contempt of Courts Act, 1971 reads -: Power of Supreme Court and High Court to make rules.- The Supreme Court, or, as the case may be, any High Court may make rules, not inconsistent with the provisions of this Act, providing for any matter relating to its procedure. 305 Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, Published in the Gazette of India, Part 11, dt. 1-2-1975, w.e.f. 1-2-1975. 306 Rule 2 (1). 307 Rule 2 (2). 308 Rule 3. 309 Rule 4 (iii). 310 Rule 4 (b &c).
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preliminary hearing and for orders as to the issuance of notice. If the court is satisfied
that no prima facie case has been made out for issuing notice, may dismiss the
petition, and if satisfied that a prima facie case is brought out, direct that notice shall
be issued to the contemnor.311 When action is instituted on a petition, a copy of the
petition along with annexures and affidavits shall be served upon the person
charged.312 Though contempt proceeding is basically on the basis of affidavits, as per
Rule 12, the court may, either suo motu, or on a motion made for that purpose, order
for the attendance of cross examination, of a person whose affidavit has been filed in
the matter. The rule also empowers the Court to pass orders as it thinks fit orders as to
costs.313
Rules were framed by the High Courts also in exercise of the power conferred
under section 23 of the Act. Though as per the High Court rules, as specified under
the statute, criminal contempt proceedings must be heard by a Bench consisting of not
less than two judges, there is no uniformity regarding civil contempt proceedings.
Some High Courts rules provide that the civil contempt proceedings must be heard by
a single judge314 and some other High Court rules provide that it must be heard by a
Bench consisting of not less than two judges315. The Bombay High Court Rules
provide that every petition or reference in respect of civil contempt of subordinate
court or a Bench of the High Court presided over by a single judge shall be heard and
disposed by a single judge316, in other cases, civil contempts shall be heard by a
Division Bench317. Some High Court Rules provides that that every application for
civil contempt shall be normally posted before the Judge or Judges in respect of
whose judgments, decree, direction, order, writ or other process the contempt is
311 Rule 5. 312 Rule 7. 313 Rule 14 reads-: The Court may pass such orders as it thinks fit including orders as to costs which may be recovered as if orders were a decree of the court. 314 Rule 4 (a) of Allahabad High Court Rules 1977, reads-: Every case relating to civil contempt shall be presented before a Bench of single Judge constituted for that purpose. See also Rule 13 of Andhra Pradesh High Court Rules to Regulate Proceedings for Contempt of Subordinate Court and of the High Court Under the Contempt of Courts Act, 1971 (Central Act), 1981. 315 See Rule 6 of the High Court of Karnataka (Contempt of Court Proceedings) Rules, 1981, reads: Taking of Cognizance:- Every proceeding for contempt shall be dealt by a Bench not less than two judges. See also Rule 166 of Contempt of Courts (Kerala High Court ) Rules. 316 Rule 18 of the Contempt of Courts (Bombay High Court) Rules, 1971. 317 Rule 20 of Contempt of Courts (Bombay High Court) Rules, 1971.
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alleged for orders as to whether notice shall issue to the alleged contemnor318. Only in
their absence the matter may be dealt by some other Judges319.
The Madhya Pradesh High Court Rules320 provide that civil contempt cases
shall ordinarily be heard and decided by a Civil Division Bench and criminal
contempt shall ordinarily be heard by a Criminal Division Bench321. The rules famed
by some High Courts provides for preliminary hearing before issuance of notice322.
While in some other cases a preliminary hearing must be conducted by the
subordinate court which make the reference of the contempt to the High Court and a
report of the preliminary hearing must be included along with the reference323.
According to some High Court rules the contempt petition shall originally dealt by the
administrative side at the first instance324. Others provide that initial hearing must be
made by the court which referred the matter to the High Court. A unique procedure
for enforcement of decree, direction, order, writ, judgment etc of a court for persistent
continuance of the contempt even after punishing the contemnor for disobedience of
judgment, decree, etc is contained in the Madras High Court Rules. Thus as per rule 9
(5), in such cases the property of the contemnor may be attached in the manner
provided for the attachment of property in the execution of decree for money, and the
said attachment shall continue until the said person complies with the judgment,
decree, direction, order, writ or other process of the court or undertaking given to the
court.325
318 Rule 6(2) Madras High Court Rules, 1975, reads: Every such application shall be posted before the Judge or Judges in respect of whose Judgment, Decree, Direction, Order, Writ or other process the contempt is alleged for orders as to whether notice shall issue to the alleged contemnor. See also rule 15 of The Calcutta High Court Rules, 1971, see also Rule 12 of Andhra Pradesh High Court Rule. 319 Rule 6 (3) of Madras High Court Rules, 1975. 320 The High Court of Madhya Pradesh (Contempt of Court Proceedings) Rules, 1980. 321 Rule 3(a) of the High Court of Madhya Pradesh (Contempt of Court Proceedings) Rules, 1980. 322 See Rule 13 of Andhra Pradesh High Court Rules, See also Rule 8(i) of The High Court of Karnataka (Contempt of Court Proceedings) Rules, 1981. 323 See Rule 6, of the Contempt of Courts (Bombay High Court) Rules, 1971. 324 See Rule 164 of Contempt of Courts (Kerala High Court) Rules, 1971, see also Rule 5 (2) of Madras High Court Rules, 1975. 325 Rule 9 (5) of Madras High Court Rules regarding reference by a Subordinate Court reads- : If, at the end of the time limited in the warrant of imprisonment, the person in contempt persists in his disobedience of the judgment, decree, Direction, Order, Writ or other process of Court or undertaking given to the Court, his property may be attached in the manner provided for the attachment of property in execution of a decree for money, and the said attachment shall continue until the said person complies with the Judgment, Decree, Direction, Order, Writ or other process of Court or the undertaking given to the Court in all things to be immediately performed and gives such security as the court directs for compliance with the other parts of the Judgment, Decree, Order, Writ or the process of Court or the undertaking given to the Court, if any, at the future days and time thereby appointed or until the Court orders the property to be released.
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The Orissa High Court Rules provide that a reference by the subordinate court
except the Courts of District and Sessions Judges shall be forwarded to the respective
District and Sessions Judge, who shall transmit the same to the High Court326. The
Andhra Pradesh High Court Rules goes one more step ahead and provides that even
after the contemnor is punished for civil contempt, if he persists with contempt with
regard to the same matter in respect of which he is punished, his property may be
attached and the said attachment may be continued until the contemnor complies with
the court order327.
Thus the rules framed by the Supreme Court and the High Courts regarding
procedures in contempt cases are highly vague and no uniform or general policy can
be formulated in this regard. The lack of uniformity in this regard is more serious
regarding civil contempt proceedings. This is because of the reason that, regarding
civil contempt, the rule making power of the High Court is wider. It further seems that
some of the incidental rules framed by the High Court regarding cost in civil contempt
proceedings and attachment of property in case of non compliance with court order or
undertaking given to the court even after the contemnor was punished and undergone
punishment, is not in consonance with the provisions of the Act for the Act only
empowers the High Court to make rules relating to its procedure. It is to be further
noted that Delhi, Gujarat and Jammu and Kashmir High Courts have not yet framed
rules in this regard.
A better option in this regard is to deal with the main procedural formalities
regarding civil and criminal contempts in the Act itself and give the residue to be
governed by rules. Further to ensure uniformity the rules must be framed by a single
agency like the Supreme Court or the Central Government. An amendment to the
Contempt of Courts Act is necessary to achieve this.
326 Rule 5 (c) of the Contempt of High Court of Orissa and Courts Subordinate to it (Regulation and Proceedings Rules), 1975reads-: All references made under Rule 2 (d) by the Subordinate Courts except the Courts of District and Sessions Judges shall be forwarded to the respective District and Sessions Judges for report who shall transmit the same to the High Court expeditiously. 327 Rule 35 of Andhra Pradesh High Court Rules 1981 reads -: In the case of Civil Contempts, even after the alleged contemnor is punished, if he persists in contempt with regard to the same matter in respect of which he is punished, his property may be attached in the manner provided for the attachment of property in execution of a decree for money and the said attachment shall continue until the said person complies with orders of Court and gives such security as the Court directs for compliance with the said orders in future as per the directions of Court or until the Court orders the property to be released.
