CHAPTER-II

CONCEPT OF CONTEMPT
OF COURT AND ITS
DEVELOPMENT
 CHAPTER-II
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CONCEPT OF CONTEMPT OF COURT AND ITS

DEVELOPMENT
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2.1 Introduction I
Early man was free to act in any manner he liked and his will to do an
!
act depended upon the strength of his limbs, strengthened by the use of arms,

which he developed day by day. That instinct to prevail over another survives

even to this day, both in social life and international spheres. Even today, there
i
is a race to control the world not only by use of weapons, but also by the
j .
j
control of economic conditions. The society was formed by our first ancestors

to bring peace, without which no development is possible. If a man is in

constant fear of losing his limb, life or livelihood, the creative spirit in him

remains dormant.

Therefore, it was agreed that individual liberties be curtailed to some

extent and disputes between 'the warring groups be settled by an independent

agency. This agency came to be called the ‘King’. It was for the King to

decide disputes arising between men, who chose him to be King. The King

formulated certain guidelines which were termed laws. Every one in the

society was expected to act in such a manner so as not to come in conflict with

these laws. If there was disobedience to the laws, punishment was awarded for

the same. In early stages of society, the King 'personally disposed of the

disputes.1

As the society expanded, disputes increased in number. It was not

possible for the King personally to settle all the disputes. He, therefore,
I .
1 See Iyer’s, Law on contempt of courts, 4th Edition p. 24. ,
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appointed persons to perform his duties. This is how “Courts” came into

existence. Most; of the disputes were settled by the Courts on the basis of

guidelines given by the Kirjg. Still the King retained his right to hear any

dispute himself.,

In this way, the decisions given by the Courts were the decisions of the

King in law. If the King’s authority could not be questioned, then authority of

the Courts could not be questioned, too. If the King could not be abused or

scandalized, so also the Courts could not be abused or scandalized. Just as the

proceedings before the King! could not be prejudiced, or obstructed: similarly

I

the proceedings before the Cdurt could not be prejudiced or obstructed.1

If any one interfered in the administration of justice, he was liable to be

punished. It is the genesis ofithe law of contempt of Courts. King’s word was
law. He could not be disobeyed. If a person was asked to stay, he had to stay.
If he was asked to depart, he had to depart. Anyone, howsoever high fie may
be, could be punished for disobedience. The punishment had no limits. The
I

condemned man could lose his property,.liberty, limbs or even his life. Since
i ; •

the King had the right to punish, he also had the right to pardon. A sincere
apology for any lapse could save the man from the wrath of the King.
The authority of the King traveled down to: superior courts. Their word
was also final, in the ladder: of various stages of the litigation. No one could
question the authority of the Courts. No one could humiliate the Courts or
scandalize them. No one could prejudice or obstruct the course of justice.
Anyone who did all this, wasi punished.2
Yet for a long time, the law on the subject remained in a confused state.

Different Judges describe cdntempt of Court in different ways. For the first

time, it was Wilmot, J., who pronounced the law on the subject with precision.

2
Ibid.

1
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In the case of R. v. klmon,3 the facts were, that one John Almon, a

book-seller, published a litjiel on Lord Mansfield, the Chief Justice. An

attachment of the person of John Almon was obtained, but in the warrant of

attachment by mistake, instead of writing R. v. Almon, R. v. Wikes was written.

Mr. Justice Wilmot (as he;then was) urged Sergeant Glyn to accept the

amendment, but he as a man of honour, did not agree. The mistake was fatal

and the proceedings were dropped. Wilmot, J., thus could not deliver the

judgment, which he had written out. The judgment was written in 1765, but it

came to light when Wilmot’s son published it in 1802, as “Notes of Judges’

Opinions and Judgments” (1765 Wilmot 243).

The judgement is the cornerstone of the law on the subject. Wilmot, J.,

in this case says, as follows:

“The power which the Courts in ‘Westminster Hall have of

vindicating their own authority, is coeval’ with their foundation

and institution; it is:a necessary incident to every Court of

Justice, whether of record or not, to fine and imprison for a

contempt to the Court' acted in the fact of it.4 And the issuing of

attachments by the Supreme Courts of Justice in Westminster

Hall, for contempts' out of Court, stands upon the same

immemorial usage, as! supports the whole Fabric of the Common1

Law; in as much the lex terrae, and within the exception of

Magna Charta, as I the issuing any other legal process

whatsoever.”5

He was followed by Cockbum, C.J. in these words :

3 (1765) Wilm. 243.

4 Sparks v. Martyn, (1669)1 Vent. 1.
5 R. v. Almon, (1765) Wilm. 243 at p. 254.
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“In the case of the Superior ■ Courts at Westminster, which represent the one

Supreme Court of the land, this power was coeval with their original

constitution, and has always been exercised by them. These Courts were

originally carved out of the jone Supreme Court, and are all divisions of the
(

aula Regis, where it is saidj the King in person dispensed justice, and their

power of committing for contempt was an amanation of the royal authority, for
any contempt of the Court, would be a contempt of the sovereign.”6

The dictum of Wilmot, J., was followed by successive Courts and

constitutional authorities not only in England, but also in America. Reference

may be made to Constitutional Limitations : by Cooley.7 8Suterhland, J., in

Michaelson v. United Statesf to Corpus Juris Secundum;9 *and Brewer, J., in

Besset v. W.B. Cankey Co.10 ;

2.2 Rationale and Object of Power of Contempt '

Rule of law is the basic rule of governance of any civilized democratic

polity. It is foundational feature of our Constitution and the right to obtain
judicial redress is a feature of its basic structure.11 Judicial independence is one
of the facets of rule of law. It is through the courts that the rule of law reveals
its meaningful content. Protection of the administration of justice is, therefore,
as imperative as its existence for the civilized functioning of any free and
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egalitarian social order. The law of contempt secures public respect and
confidence in the judicial process and provides the sanction for any act or
conduct which is likely to destroy or impair such respect and confidence.

R. v. Lefroy, (1873) L.R. 8. Q.B. 134 at p. 137 ; vide Oswald’s Contempt of Court, 3rd
Ed., pp. 2, 3.
8th Ed., Volume I, p. 668. i I
(1924) 69 Law Ed., p. 162.
Vol. XVII,;para. 13.
(1903) 194 U.S. 324 at p. 326 : 48 Law Ed., p. 997.
State ofHaryana v. Bhajan Lai 1992 Supp (1) 335, Minerva Mills Ltd. v. Union of India
(1980) 3 SCC 625.
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Relaying upon Wilmont’s opinion in Rex v. Almon12 explains the

rationale of power of contempt in the sense that the usual criminal process to

punish contempts was found to be cumbersome and slow, and therefore the

courts at an uncertain date j assumed jurisdiction themselves to punish the

offence summarily, brevi mqnu, so that cases might be fairly heard, and the

administration of justice not interfered with. A Court of justice without power

to vindicate its own dignity, to enforce obedience to its mandates, to protect its

officers, or to shield those who are entrusted to its care, would be an; anomaly

which could not be permitted to exist in any civilized community.

In Brahma Prakash Sharma v. State of U.P.13 40, it is pointed out that

the object of contempt powe'r is not to afford protection to judges personally

from imputations to which tliey may be exposed as individuals but is intended

as protection to the public whose interest would be very much affected, if by

the act or by the conduct of any party the authority of the Court is lowered and

the sense of confidence which the people have in the administration of justice

by it is weakened.

The power to punish for contempt any one who interferes with the

administration of justice is an inherent power vested in the judiciary.14 This

may appear to be an arbitrary power, because the role of prosecutor and

adjudicator is combined in. one person or one body of persons. But' it is a

1765 Wilmonts notes of opinions, 243.

1953 SCR 1169 (hereinafter referred to as ‘Sharma case’) j
“The particular aspects of inherent power ... concerns their incidental capacity to remove
obstructions to the discharge of their work. The conventional description - of such
obstruction is contempt and the mode of dealing with it is characterized as the power of
courts to punish for contempt. The fact of obstruction to courts is as old as English courts
and so also the endeavour to remove them” Felix Frankfurter, “Power of Congress over
Procedure in Criminal Contempts in Inferior Federal Courts - a Study in Separation of
Powers” 37 Harv. L. Rev. 1010, 1023 (1923-24).
 27

necessary power for the protection of the impartial administration of justice to

maintain the majesty of law. i

i
. i

Contempt jurisdiction which is special15 in its character originated in

England and developed over* the centuries as a means of enforcing the orders

of the court. j

The use of the phrase “contempt of court” though criticized as

misleading16 still continues to be a good one. It is of ancient origin yet of

fundamental contemporary importance.17 It has always served as a continuing

protector of the fundamental supremacy of law.

I

One of the basic principles of any civilized system of justice is that a

person is entitled to fair trial free from prejudice. One purpose of the law of
contempt is to provide sanctions against any word or conduct which ip likely
to prejudice fair trial. There is no unanimity of opinion as to the exact
purpose of the law of contempt. Lord President Clyde,18 Phillimore

Two special features of contempt jurisdiction as given by Phillimore Committee Report

(Report of the Committee op Contempt of Court,) 1974 are:
i) Summary procedure one of the outstanding features of contempt of court is the
summary procedure which is unknown to any other branch of law. It is an
inherent jurisdiction vested upon the superior courts. One consequence of the
use of this summary procedure is that while proof of contempt must be
established beyond reasonable doubt, the person alleged to be in contempt does
not enjoy the benefit of some of the safeguards of the ordinary criminal law (at
p.!8) See also Johh Charles Fox, “The Summary Process to Punish Contempt.”
25 X.Q.R. 238 (1909). The Nature of Contempt of Court 37 L.Q.R. 191 (1921).
ii) Mental element - The mental element required to create liability for contempt
depends on the forpi the contempt takes. In some areas of the law, particularly as
it affects the press, the liability does not for the most depend upon the proof of
intent.. In these areas therefore liability in contempt is strict. This contrasts with
the position in the ordinary criminal law (at p. 9.)
Lord Cross in Attorney General v. Times News Papers Ltd. (1974) A.C. 273, 322. See
also Report of the Committee on Contempt of Court 6 (1974).
CJ. Miller, Contempt of Court 1, (1976).
The phrase “contempt of court” does not in the least describe the true nature of the class
of offence with which we are here concerned ... The offence consists in interfering with
the administration of the law, in impeding and perverting the course ofjustice... It is not
the dignity of the court which is offended a petty and misleading view of the issue
involved - it is the fundamental supremacy of law which is challenged Johnson v. Grant,
(1923) S.C: 789,790. ' :

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Committee,19 and justice Frankfurter20 expressed the opinion that the contempt
law exists for the maintenance of fundamental supremacy of law.
Justice Tek Chand,21 V.G. Ramachandran22 and the Allahabad High .Court23
' ! • " •

are of the view that the purpose of contempt law is to maintain the supremacy
; ’ !

of courts of justice and the stream of justice unsullied. Justice V.R. Krishna
Iyer,24 K.J. Aiyar25 and the' Delhi High Court26 emphasized that contempt

jurisdiction exists for the protection of the rights of the public.

In a democratic society, the three organs of the government namely the

executive, the legislature and the judiciary are expected to perform their

functions within their limitations for the benefit of the public. No one organ is

expected to interfere with the functioning of the other. Though judiciary is

The term suggests in general that the law exists to protect the dignity of judges, whereas
in fact it exists to protect the administration ofjustice and in the words of Lord Clyde the
fundamental supremacy of law. Report of the Committee on Contempt of Court, 6 (1974)
It is a mode of vindicating the majesty of law in its active manifestation against
obstruction and outrage Frankfurter in Offur v. U.S. (1954) 348 U.S. 11.
Tek Chand stated two reasons for substantiating his view. In the first place decree of law
courts on account of their inexorable nature could not be flouted without serious risk to
the victim of judicial displeasure ... the authority of the judges is supreme and they are
therefore in a position to command dutiful and prompt obedience... In the second place
according to the time honoured legal fiction, the king who is ultimate, source of all
judicial authority is supposed to be present in person in all courts though he is visible
only to the eye of law. Justice Tek Chand Contempt of Court and Legislature, 1, 2(1949).
There can be no doubt that the purpose of contempt jurisdiction is to uphold the majesty
and dignity of law courts and their image in the minds of the public and that this in no
way is whittled down. V.G. Ramachandran, contempt of Court, 6 (1983).
Allahabad High Court also expressed the same view in State v. Rajeswari Prasad AIR
1966 All. 588, 589 and in Ramsurat Singh v. Shivakumar AIR 1971 All. 170, 172.
Punishment is inflicted not for the purpose of protecting either the court as a whole or
individual judges of the court, from a repetition of the attack but .of protecting the public
and especially whose who either voluntarily or by compulsion are subject to > the
jurisdiction of the court from mischief that will incur if the authority of the tribunal is
undermined or impaired. Daradakants Misra v. Registrar, Orissa High Court AIR 1974
S.C. 710, 732. !
The law of contempt is intended to be a protection to the public. Those interests would be
very much affected if by the act or the conduct of any party, the authority of the court is
lowered and the sense of confidence which people have in the administration ofjustice by
it, is weakened. K.J. Aiyar, Contempt of Court Legislatures and Public Servants, 3,
(1983).
Delhi High Court also expressed a similar view in Omesh Saigal v. R.K. Dalmia AIR
1969 Del. 214, 218. i
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entrusted with the function of administration of justice, it cannot claim

superiority over other two; organs and hence it has to be given all the

requirements needed for upholding the majesty of law, particularly when it has

neither the power of purse nor the power of the police. So, through contempt
i ‘ :
proceedings, the judiciary performs its function of proper administration of

justice and safeguards the rule of law. But the contempt jurisdiction which is

extraordinary in its character, should not be used for the personal protection of

judges. This jurisdiction is applied against any authority or person whenever

there is any kind of interference in the administration of justice. The judiciary

uses the weapon of contempt jurisdiction to caused by the executive or the

individual or the press.

In Chhotu Ram v. Urvashi Gulati,27 while explaining the object and

purpose of the Act it was held: ' 1

“The introduction of the Contempt of Courts Act, 1971 in thd

statute-book has been for the purposes of securing a feeling of

confidence of the people in general and’ for due and proper-

administration of justice in the country. It is a powerful weapon

in the hands of the law courts by reason where for the exerciser

of jurisdiction must be with due care and caution and for larger

interest. '

As regards the burden and standard of proof, the common legal

phraseology “he who asserts must prove” has its due application in the matter

of proof of the allegations said to be constituting the act of contempt. As

regards the “standard of proof’, be it noted that a proceeding under the

extraordinary jurisdiction of the court in terms of the provisions of the

27 2001(7) SCC 530.

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Contempt of Courts Act is quasi-criminal, and as such, the standard of proof

required is that of a criminal proceeding and the breach, shall have to be

established beyond all reasonable doubt.

Lord Denning (in Brambelvale Ltd., Re, (1969)3 All. ER 1062) lends

concurrence to the aforesaid-and the same reads as below: (All, ERpp. 1063

H-1064C).

“A contempt of court is an offence of a criminal character. A man may

be sent to prison for it. It must be satisfactorily proved. To use the time-

honoured phrase, it must be proved beyond reasonable doubt. It is not proved

by showing that, when the man was asked about it, he told lies. There must be

some further evidence to incriminate him. Once some evidence is given, then

his lies can be thrown into the scale against him. But there must be sdme other

evidence..... Where there are two equally consistent possibilities open to the

court, it is not ' right to hold that the offence is proved beyond reasonable

doubt.”

2.3 Origin and Development of Contempt of Court in England

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

developed in a manner quitb different from other laws. Judges created the

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

work. A law which began as1 a convenient method to enforce their orders was

subsequently used ,to extract respect from the challenges of the' press.

Phillimore Committee stated the same thing in the following words:

The law relating to contempt of court has developed over the

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

punish conduct which tends to obstruct; prejudice or abuse the

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administration of justice either in relation to a particular case or

OR
generally. ;

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

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

to an organ created by him. I Sir William Holdsworth recognised the same in

the following words:

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

royal justices. From these facts three consequences followed: (1) the king had

a large control over the business before the courts, we have been that in early

days the king actually decided the cases; and there are instances of this

practice in Henry-III, Edward -1 and Edward - IPs reigns.29

The phrase contempt !of court (Contemptus curiae) has been in use in

English law for eight centuries and the offence is as old as the law, The law

conferred the power to enforce discipline within its precincts and punish those
who fail to comply with its orders.30

Report of the Committee on Contempt of Court. 2 (1974)

Sir William Holdsworth, History of English Law Vol I, 194(1969). On this early origin of
courts of law and administration ofjustice . Tek Chand states:
Early kings used to hear the grievances of their subjects personally.
Administration of justice was a paramount duty of the English Kings in
early times... The history of English law courts is the history of the
delegation of judicial powers by the king to the council. The
experiences of the times led to the emanation of its various offshoots
e.g.; the courts of Exchequer, common pleas and later on of common
law. The Curia Regis the mother of Royal courts still retained the
residue of justicej and gave birth to the Court of Chancery in the
fifteenth century, and during the Tudor periods to the Court of Star
Chamber, Courts of Requests and Admiralty. The establishment of the t
Judicial Committee of the Privy Council, necessitated by the growth of
the British possessions overseas is a much later creation of the reserve
power of the King’s Council. Law of Contempt of Court and
Legislature, 3(1949).
See Oswald, contempt of Court 1 (1910). This early origin of the contempt law has been
acknowledged by Encyclopaedia Britannica (vol. 6 - p. 414 3rd edn.) and also by Joseph
H. Beale in his article “Contempt of Court Criminal and Civil” 21 Harv. L.R. 161 (1908).
 32

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

set forth in the first half of the twelfth century. Contempt of the king’s writ

was mentioned in the laws! of king Henry-I. In the same laws there was
i ■ ' ■

mention of pecuniary penalty for contempt or. disregard of orders. Thus in

England before the end of the twelfth century contempt of court, was a

recognized expression and applied to the defaults and wrongful acts of

suitors.31

After making a study of cases in the thirteenth century John Charles

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

otherwise than in the ordinary course of the law and many cases of contempt
in court were tried by indictnient and not by a summary process.32

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

such cases of contempt were: disposed ,off by sentence upon confessioii.33 The

earlier form of procedure was attachment by bill, when trial by jury was

followed, unless the accused confessed. Later the Star Chamber practice of

attachment and examination without jury was substituted for the procedure by
bill.34 ■ ' 1

From fourteenth century onwards the jurisdiction of the King’s Justices

to punish contempts of a criminal nature summarily was limited to 'offences

not heinous, committed in 1 court in the actual' view of the justices. The

summary jurisdiction was held to extend to all contempts whether committed

in or out of court.35 11

John Charles Fox “The Nature of Contempt of Court” 37 L Q K 191,194 (1921).

Id. at 198. !
Id. at 199.
Ibid.
John Charles Fox, “The summaiy process to punish contempt” 25 LQR238, 252 (1909).

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Later, the law of contempt identified two types of contempt, civil and

criminal. Civil contempt appears to have originated in the seventeenth century

j . ,
from the practice of the Court of Chancery.36

Civil contempt of court provides for punishment of a person who

refused to comply with the orders of a court. Consequential sanction will be

committal to prison or fine.

Criminal contempt includes any kind of interruption or interference in

the administration of justice in or out of court. But contempt committed out of

court was punished in the sixteenth century, by common law, only after trial in

the ordinary courts and not by any summary process.37 A distinction was made

between contempt in court and out of court in the case of strangers. Contempt

by strangers out of court Were tried by information or by attachment and

examination in the common law courts. This practice continued through the

eighteenth century and the procedure by attachment and examination was

confirmed by the opinion of Chief Justice Wilmot in Alon’s38 case and finally

established as law by Mr. Justice Holrayed in The King v. Clementa.39 '

Contempt in the face of the court includes any act which interferes with

the administration of justice such as throwing missiles at judges, insulting any

person in court,! impeding thb passage into or out of court by those who have

business there and the like. Summary power is used to punish such acts.1

The act of printing and publishing brought into prominence another

form of criminal contempt discussed as indirect criminal contempt or

constructive contempt. 1 ;
l

36 Report of the Committee on Contempt of Court, 10 (1974).

37 See John Charles Fox Supra n. 4.
38 King vc. Almon 97 E.R. 94.
39 106 E.R. 918.
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The origin of indirect!contempt is traceable from the opinion expressed

by Lord Hardwicke L.C. in St. James Evening Post40 case. , ;

Scandalising the court, abusing parties and prejudicing mankind against

persons before the cause is heard41 are instances of indirect criminal contempt.

Further extension of the law of constructive contempt could be seen in

the opinion of Wilmot J. in Almon’s42 case. In this case a pamphlet was

published accusing Lord Mansfield of officiously, arbitrarily and; illegally

making an out of court order.; The opinion states as follows:

The power, which the courts in West Minister Hall have of

vindicating their own authority is coeval with their first)

foundation and institution, it is a necessary incident to every

court of justice, whether of record or not to fine and imprison

for a contempt to the court, acted in the face of it and the issuing;

of attachments by the Supreme Courts of Justice in West

Minister Hall, for contempts out of court, stands upon the same)

immemorial usage as supports the whole fabric of the common

law. ... But when the nature of the offence of libeling judges for

what they do in their judicial capacities, either in court or out of

court, comes to be considered, it does, in' my opinion become

more proper for an attachment than any other case whatsoever43

40 (1742) 2 Atk. 469. There are three different sorts of contempt. One kind of contempt is
scandalizing the court itself. There may likewise be a contempt of this court in abusing
the parties who are concerned in causes here. There may also be contempt of court in
prejudicing mankind against persons before the cause is heard.
41 Id. at 470,471.
42 Supra n. 11.
43 Id. at 99
Though John Charles Fox criticized Wilmot’s view, he admitted that Wilmot’s opinion
was adopted by succeeding judges without question and without examination of earlier
authorities.
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This opinion has been referred to in a latter case44 as the most valuable

exposition of law on the subject. Criminal contempt may also be tried by

indictment or information but these procedures were rarely adopted.45 As

stated by the Committee on Contempt of Court, though the historical reasoning

of the judgment has been criticized by the learned authorities, the opinion
expressed by Wilmot in King v. Almon,46 has long been accepted and applied

by the courts as the firmly established basis of the modem law on the subject.47

Had this important transformation not taken place, the nature of contempt
jurisdiction in relation to the press might have been different.48 The necessity

to have this summary jurisdiction has been justified by subsequent verdicts.49

In the year 1888 Libel1 Act was passed and it permitted fair and accurate

reports of judicial proceedings. But contempt proceedings were followed

against erring publishers.50

Regarding jurisdiction of courts to deal with constructive contempt,

there have been different judicial opinions.

In R. v. Odham Press Ltd.51 and in R. v. Griffiths Ex. P. Attn Gen51, it

was held by Queen’s Bench Division that lack of knowledge regarding

imminence of proceedings could not be cited as justification for contemptuous

As per Lod Esher M.R. in Reg v. Johnson (1887)2 Q B D 72.

See J.C. Fox. “The writ of Attachment” 40 L Q R43, 59 (1924).
Supra n. 11. |
Report of the Committee on Contempt of Court, 2 (1974).
R.L. Goldfarb, The Contempt Power 25 (1963).
Me Leod v. St. Abyn 1899 A.C. 549 R. v. Tibbits and another [1900-3] All. E.R. Rep.
896-901. In this case Lod Alverstone C.J. expressed : “Publications of that character have
been punished over and over again as contempt of court, where the legal proceedings
pending did not involve trial by jury and where no one would imagine the minds of the
magistrates or judges charged with the case would or could be induced thereby to swerve
from the straight course. (Id. at 901).
R. v. Parke (1900-3) All E.R. 721.
(1956)3 Q.B.D.494.
(1957)2 Q.B.D. 379.
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publications. But section ill53 of the Administration of Justice Act,

I96054 reversed this position! This provision had been reenacted in a modified

form in section: 355 of the Cpntempt of Court Act 1981. The County : Courts
j

Act, 1959 provided for punishment to any person who willfully insulted the

judge of the County Courts, jurors, witnesses or any officer of the court

including courts other than court of record.

In England as well as. in Scotland contempt came to be identified with

summary procedure.56

Justice Buckley commenting on the right of the press to publish a

pending case observed:

S. 11 of the Administration of Justice Act, 1960 reads: Innocent publication and

distribution.
i. A person shall not be guilty of contempt of court on the ground that he has
published any matter calculated to interfere with the course of justice in
connection with any proceedings pending or imminent at the time of publication
if at that time (having taken all reasonable care) he did not know and had no
reason to suspect that the proceedings were pending or that such proceedings
were imminent, as the case may be.
ii. A, person shall not be guilty of contempt of court on the ground that he has
distributed a publication containing such matter as is mentioned in sub. Sec. (1)
of this section if at the time of distribution (having taken all reasonable care) he
did not know that it contained any such matter as aforesaid and had no reason to
suspect that it was likely to do so.
iii. The proof of any fact tending to establish a defence afforded by this section to
any person in proceedings for contempt of court shall lie upon that person.
The report of the British section of the International Commission of Jurists presided over
by Lord Shawcross, was published in April 1959 and it formed the basis of certain
provisions relating to contempt of court embodied in the Administration of Justice Act,
1960.
S. 3 : Delhece of innocent publication or distribution.
i. A person is not guilty of contempt of court under the strict liability rule as the
publisher of any matter to which that rule applies if at the time of publication
having taken all reasonable care he does not know and has no reason to suspect
that relevant proceedings are active. i
ii. A person is not guilty of contempt of court under strict liability rule as the
distributor of a publication containing any such matter if at the' time of
distribution (having taken all reasonable care) he does not know that it contains
such matter and has no reason to suspect that it is likely to do so.
iii. The burden of proof of any fact tending to establish a defence afforded by this
section to any pers'on lies upon that person.
Supra n. 20 p. 3. i

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The rights of the press to comment on any matter of general

public interest, as long as the comment is fair comment; is a,

matter of very great public interest, but it is a right which is

subject to certain restrictions, one of which is that the organs of

the press must not be used in a way to prejudice the proper trial

of actions in the courts of the country.57

Until the decision of the House of Lords in the Sunday Times58 case,

the test of constructive contempt formulated by the courts were all based on
the concept of prejudice or, improper interference with legal process. The
Divisional Court.59 In thei Sunday Times case granted an injunction

restraining the publication on the ground that it would be contempt of court.

But the Court of Appeal60 decided that there was no contempt as the words

complained , of did not create, a serious risk of interference with the course of
justice, and discharged the injunction.61 On appeal the House of Lords

reversed the decision by applying the test of prejudging the issue. Lord Reid
observed that trial by news paper was wrong and should be prevented.62

Being aggrieved by the decision of the House of Lords, the Sunday

Times and the journalists applied to the European Court of Human Rights63 as
the ban on publication violated Art. 10 of the European Convention. The
i ' I

majority ruled that the Court was faced not with a choice between two
conflicting principles but with a principle of freedom of expression that is
subject to a number of exceptions which must be narrowly interpreted.64

Justice Buckely in Vine Products v. Meckenzie and Co. (1965) All E.R. 53.
Attorney General v. Times flews Papers Ltd. (1973)3 AH- E.R. 54.
Attorney General v. Times News Papers Ltd. (1973)3 All E.R. 1136.
Attorney General v. Times flews Papers Ltd. (1972) 1 All E.R. 815.
Id. at 824. . ;
Supra n. 31 p. 64. I
The Sunday Times v. United Kingdom (1979)2 EHHR, 24.
Id at 281.

i
 38

The Court was of jthe opinion that the “Thalidomide Disaster”

published by Sunday Times against which the contempt case was pending, was

a matter of public concern, and the public had a right to be properly informed.

The article was moderate in tone and presented both sides of the case and it in

no way impaired judicial: authority. Hence, the Court concluded that

interference complained of did not correspond to a social need sufficiently

pressing to outweigh the public interest in freedom of expression.

In 1974, a Committee on Contempt of Court chaired by Justice

Phillimore had laid down the:basic test for deciding contempt by publication.

The test of contempt is whether the publication complained of creates a

risk that the court of justice! will be seriously impeded or prejudiced.65 The

committee recommended that a defence on the line of general ; public

discussion should be created by statute.66 At the same time the Committee
recommended that public benefit should not be made as a defence.6? These

recommendations of the Committee found a place in the Contempt of Court

Act 1981.68 j
On a reading of the Act it is clear that it mainly deals with the ‘strict

liability’ rule and its application to publications which affect the judicial
proceedings. However uncertain its definition and scope may be in some
respects contempt of court is undoubtedly one of the great contributions .the
common law has made to the civilized behaviour of a large part of the world
beyond the continent of Europe where the institution was unknown.69 (

. j i

65 Supra n. 20 p.48,49.
66 Id. at 61. j
67 Ibid.
68 The contempt of Court Act; 1981 is the result of the report filed by Phillimore Committee
and also the decision of the European Court of Human Rights.
69 F.A. Mann, “Contempt of Court in the House of Lords and European Court of Human
Rights” 95 L.Q.R. 348, 349(1979)

1
 39

2.4 Development of the Law of Contempt in India

The law of contempt -of court in India is nothing but the off spring of

the British administration ofjustice in India. Creation of different courts of

record,70 in India necessarily meant the introduction of English Law of

i -

Contempt in some measure.71;

Establishment of the Court of Mayor and Corporation of Madras under

the East India Company’s Charter of 168772 was the earliest court of record

created in India. Admiralty Court established under the Royal Charter of 1683

had the right to hear appeals and hence Admiralty Court was also considered a
court of record. Later Mayor’s court was created by the Charter of 1727,73

which was reconstituted by the Charter of 1753.74 These courts had power to

punish for contempt.

In pursuance of the Regulating Act, 1773 the mayor’s Court at Calcutta

was succeeded by the Supreme Court established under a charter granted in

1774. The Mayor’s Court at Bombay and Madras were superseded by the

Recorder’s Court at Madras. It was abolished by the Government of India Act,

1800 and the Supreme Court was established in its place by the Charter of

A Court of Record has been defined as a court where the acts and judicial proceedings are
enrolled in parliament for a perpetual memorial and testimony and which has power to
fine and imprison for contempt of its authority... Courts not of record are those of
inferior dignity which have no power to fine or imprison and in which proceedings are
enrolled or recorded and all courts which do not come within the definition of a Court of
Record are courts not of record. (XV The Corpus Juris 720, 721) The proceedings of a
Court of Record preserved in its achieves are called records and are conclusive evidence
of that which us recorded therein: II Halsbury’s Laws of England 527 (3rd Edn.) I may
briefly say that a court of record is a court the records of which are admitted to be of
evidentiary value and they are not to be questioned when they are produced before any
court. That is the meaning of the words “Court of Records”... the court shall have the
power to punish for contempt of itself. Dr. B.R. Ambedkar VIII C A D 382.
Report of the Committee on Contempt of Court 4 (1963).
Charter granted by the Governor and Company of Merchants Trading into the East
Indies, to the Mayor Aldermen and Burgesses of Madras (at p. 88).
II Vestiges of Old madras 1640 - 1800,241, 242 (Charter of 1727, 249).
Id. at 439-440 (Charter of 1753, 253.)

i
 40

1801. A Supreme Court was established in the place of Recorder’s Court at

Bombay by a Charter granted under the Statute of 1823. The Recorder’s Court

and Supreme Court had the;same powers for punishing for contempt as the

superior courts of England. The Supreme Courts were in turn succeeded by the
i !

High Courts under the High Courts Act of 1861. The High Court of Calcutta

was a court of record in all its jurisdictions and therefore possessed power to
commit for contempt.75 In 1886, the High Court of Allahabad was established

under the High Courts Act, 1861 and was constituted a court of record.

The Division Bench of the Calcutta High Court considered this

jurisdiction of the High Court in 1879 in Martin v. Lawrence?6 Mr. Justice

White observed:

The jurisdiction of the court, under which this process (of

contempt) issued is a jurisdiction that it has inherited from the

old Supreme Court and was conferred upon that Court by the

Charters of the authority of the then court of King’s Bench and

the High Court of' Chancery in Great Britain, and this

jurisdiction has not been removed or affected by the Civil

Procedure Code.”77 '

By virtue of section '106 of the Government of India Act, 1915 the

same jurisdiction, powers an authority, were allowed to be continued in all

High Courts then in existence. Section 113 of the Act authorised the

establishment of new High Courts by Letters Patent with the same authority,

powers and jurisdiction. In 1919 the Lahore High Court was established by

Letters Patent as a court of record. In 1925 that High Court punished a

75
In Re ABdool and Mehtaf (1867)8 W.R. (Cr.) 32.
76
I.L.R. 4 Cal. 444.
77
Id, at 445.
 41

contempt of itself in a summary manner in Habib, son of Sadullah Khan, in the

matter of.78 In this case it was observed by Broadway. J:

: • I ' •

The authorities on the subject have been carefully examined by

me and I am satisfied that this court as a court of record has

70
jurisdiction to deal summarily with contempts of this nature.

The leading authority on the subject is the Privy Council and its
decision in Surendranath Banerjee v. The Chief Justice and Judges of the
High Court at Fort William in Bengali It was held by Justice Peacock that

the High Court in the presidencies are superior courts of record and the
offence of contempt and the powers of High Court for punishing it, -are the
same there as in the country,;not by virtue of the Penal Code for British India,
and the Code of Criminal Procedure 1882, but by virtue of the common law of
England.81

The inherent summary powers of the High Courts to punish for

contempt were later affirmed by Lahore82 and Patna83 High Courts. Privy

Council also accepted the same view in Ambard v. Attorny General, Trinidad
and Tabago.M These decisions show that the power to punish summarily for

contempt is not created , by statute but inherent in every court of record. The

Government of India Act, 1935 continued the power, authority and special
summary jurisdiction of various High Courts then existing.85

: • I

78 Air 1926 Lah. 1 (Full Bench).

79 Id. at 2.
80 I.L.R. 10 Cal, 109.
81 Id, at 132.
82 In the matter of Muslim Out look AIR 1927 Lah. 610.
83 Emperor v. Murali Manohar Prasad, AIR 1929 Pat. 72.
84 AIR 1936 P.C. 141.
85 Section 220(1) of the Government of India Act 1935 declared that every High Court shall
be a court of record and by Section 223, the existing courts were allowed to continue, the
summary jurisdiction and powers which they had immediately before the commencement
of Part III of this Act.
! I i
 42

Arts 12986 and 21587 of our constitution made the Supreme Court and
i

High Courts respectively as cjourts of record. Art. 225, permits the High Courts

to continue the jurisdiction land powers which they possessed immediately

before the commencement df the constitution. Though the High Court as a

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

the power of the court of record to punish contempt of subordinate courts.

Prior to the passing of the Contempt of Courts Act 1926, there was a

conflict of opinion among the different High Courts as to their power to

commit for contempt of subordinate courts. Madras88 and Bombay89 High

Courts expressed the view that the High Courts could have jurisdiction to deal
with contempts of the mofussil courts. But the Calcutta High Court90

expressed the view that the High Courts in India did not possess identical

powers in matters of contempt of their subordinate courts as possessed by the

Court of King’s Bench in England. !

In 1926, the Full Bench of the Allahabad High Court deailt with
contempt of subordinate court under it inherent powers as a court of record.91

There was no general law providing for punishment of contempt of

these courts. The Indian Pdnal Code 186292 made certain acts constituting

specific offences punishable as contempt.

Art. 129 : The Supreme Court shall be a court of record and shall have all the powers of
such a court including the power to punish for contempt of itself.
Art. 215 : Every High Court shall be a court of record and shall have all the powers of
such a court including the power to punish for contempt of itself.
In the Matter of K. Venkat Rao 121.C. 293.
In re Mohandas Karamcharid Gandhi AIR 1920 Bom. 175.
Legal Remembrancer v. Mqtilal Ghose, 1913, ILR Cal. 173.
In re. Hadi Hussain v. Nassiruddin Maider, AIR 1926 All. 623.
Sections 191 to 229 of the Indian Penal Code : S. 191 deals with giving false evidence; S.
192 fabricating false evidence; Ss. 201 to 204 Disappearance of evidence and false
information; Ss. 206-210, Abuse of the process of court; S. 228 contempt of court; Ss.
217-223, 225A Unlawful acts of public servants.
 43

For making the concept of contempt more specific and for providing

punishment for contempt of subordinate courts, the Contempt of Courts Act,

1926 was passed. Section 293of the Act empowered the High Courts of

judicature to exercise the jurisdiction, power and authority to punish contempt

of subordinate courts. ;

The Act was amended in 1937 to make if clear that the limits of

punishment provided in the Act related not only to contempt of subordinate

courts but also to all cases.

The 1926 Act did not contain any provision with regard to contempt of

courts subordinate to Chief'Courts and Judicial Commissioner’s Court and

also extra territorial jurisdiction of High Courts in! matters of contempt.' So the

Contempt of Courts Act 1952 was passed to remove these doubts and this Act
replaced the 1926 Act. Section 394 of the Contempt of Courts Act 1952

conferred the power on the High Courts including that of the Judicial

Section 2 of the 1926 Act:

i. Subject to the provisions of sub-section (3), the High Courts of Judicature
established by Letters Patent shall have and exercise the same jurisdiction
powers and authority in accordance with the same procedure and practice in
respect of contempts of courts subordinate to them as they have and exercise in
respect of contempt of themselves. *1
ii. Subject tot eh provisions of sub-section 3a Chief Court shall have and exercise
the same jurisdiction and powers and authority in accordance with the same
procedure and practice in respect of contempt of itself as a High Court referred
to in sub. Sec. (1).:
iii. No High Court shall take cognizance of a contempt alleged to have been
committed in respect of a court subordinate to it where such contempt is an
offence punishable under the Indian Penal Code.
Section 3 of the 1952 Act:, |
i) Subject to the provisions of sub-section 2 every High Court shall have
and exercise the same jurisdiction, powers and authority in accordance
with the same procedure and practice, in respect of contempt of courts
subordinate to it has and exercise in respect of contempt of itself.
ii) No High Court shall take cognizance of a contempt alleged to have
been committed in respect of a court subordinate to it where such
contempt'is an offence punishable under the Indian Penal Code.

!
 44

Commissioner’s Court to punish contempt of subordinate courts. Section 4 of

the Act limited the punishment to be awarded in case of contempt.

The Contempt of Courts Act 1952 though sound so far as it goes,

■ | ■

touches only the fringes of the subject. While its existing provisions should be
continued there is need for widening considerably the scope of the Act.95 The

unsatisfactory nature of the Contempt of Courts Act, 1952 necessitated the

government to constitute a Committee in 1961 with H.N. Sanyal as Chairman

to study the matter and make recommendations for the proper functioning of

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

contempt of court was uncertain, undefined and unsatisfactory. On the basis of

the recommendations made by the Committee, Contempt of Courts Act, 1971

was passed which can be described as a comprehensive legislation.

Contempt by publication, though used to be punished by the court of

record in exercise of its inherent jurisdiction had not been regulated either1 by

the Contempt of Courts Act 1926 or by the 1952 Act. Its development till the

passing of the Contempt of Courts Act, 1971 was! based on case law only. So

the development of contempt by publications is traced in the succeeding pages.

Criminal contempt has been classified into two categories. They are

direct criminal contempt or contempt in the face of the court and indirect

criminal contempt or contempt through words spoken, written or through

publication made outside the court.

: Direct criminal contempt is treated as specific offence and it is dealt

with in the Indian Penal Code.96 Corresponding procedure is contained in the
Criminal Procedure Code.97

95 Supra n. 44 p. 9.
96 Section 228.
97 Sections 480-487.
 45

Indirect criminal contempt or contempt through publication was first

considered by the Calcutta High Court in the Matter of William Taylor.98

The question for consideration was whether libel committed out’of

court was punishable by the court as contempt of court. Justice Peacock

expressed the following view;.

1

All I claim is that there shall be no misrepresentation and no willful or

unfair concealment of facts and that those who deny infallibility to the judges
shall not claim infallibility for themselves.99

This principle was followed in the Matter of Banks and Fenwick100 in

the year 1869. For the first time an editor was punished in the Bangalee
case,101 for making an adverse comment on an English Judge. By punishing

Surendranath Banerjee, the bditor, the court clearly established its contempt

jurisdiction on indirect contempt and made it clear that the court could ’impose

punishment irrespective of the apology made to the court. The Privy Council

also accepted the court’s jurisdiction and refused to interfere on the question of

punishment. 1 ‘

At the turn of the nineteenth century, the contempt jurisdiction was not

really a thorn bn the sides of the publishers. The press simply continued to

make comments about the administration of justice. Very little notice was

taken of these comments. The contempt jurisdiction of the court was sparingly

invoked by litigants and the courts, as such comments had no tendency to

prejudice the trial.102 1

Reported years later in AIR; 1918 Cal. 713.

Id. at 735, 736.
Reported later in AIR 1918 Cal. 752.
Surendranath Banerjee v. The Chiefjustice and Judges of the High Court at Fort William
in Bengal. ILR 10 Cal. 109,
Rajeev Shavan, Contempt df Court and the Press 45 (1982)
 46

In Legal Remembrancer v. Motilal Ghose,103 the Calcutta High Court

refused to follow the summary process. So also, in E. v. Balakrishna Govinda

Kulkarni,m Bombay High Court expressed doubts as to the use of siimmary

procedure in constructive contempts. But the same: High Court in the Matter of

Tusharakanthi Ghose Editor of Amrit Bazar Patrika105 early laid down that the

High Court had jurisdiction to deal with constructive contempt in a summary

manner.

The jurisdiction of the Supreme Court as a court of record to punish for

contempt of lower court was considered by the Supreme Court in In re Vinaya

i i
Chandra Mishra106 and the court held:
; i i ■ . ■.
The English and the Indian authorities are based on the basic
i
foundation of inherent power of Court of Record having
- I , !

jurisdiction to correct the judicial orders of subordinate courts

I ; ;
... inherent powers of a superior court of Record have remained

unaffected even after codification of contempt law.107

Thus the application of Contempt of Courts Act, 1971, when the

contempt proceedings are taken up by the High Courts and Supreme Court, is
i

very much limited because those courts exercise jurisdiction as a court of

record.

Supra n. 63.
AIR 1922 Bom. 52.
AIR 1935 Cal. 419.
(1995)2 SCC 584.
Id. at 605.
 47

The question of constructive contempt was considered by Bombay,108

Calcutta,109 Lahore,110 Madras111 and Ludhiana112 High Courts. Bombay High

Court in Mohandas Karamchand Gandhi’s113 case, rejecting the argument that

the press had a right to discuss questions of public importance and to indulge

in public criticism laid down the principle that the contempt process was a

summary process, affording practically no defences and truth was no defence

and fair comment was not a permissible plea. In this case Gandhiji published

certain documents during the pendency of the case. The court further stated

that principles which were quite familiar in England were imperfectly known

or understood in India and that the respondents had paid more attention to the

liberty of the press than to the duties which accompany that and every other
liberty.114 The same principle was followed by the Calcutta High Court in

Bankin Chandra Paira v. Antinda Bazar Patrika}15 In this case Ananda Bazar

Patrika during the pendency 'of a criminal case published a report in which it

was stated: I

“It is desirable that either bail bonds of the accused should be

cancelled till their trial is finished or arrangements made for
providing police guards.” This passage was held to have the
effect of interfering with the free exercise of judicial discretion

In re Mohandas Karamchand Gandhi AIR 1920 Bom. 175 E. v. Balakrishna Govinda

Kulkarni, AIR 1922 Bom. 52.
Motilal Ghose and others III re (1917) ILR45 cal. 169 Ananta Lai Singh v. Alfred Hendry
Watson, AIR 1931 Cal. 257; In the matter of Tusharkanti Ghose, Editor Amrit Bazar
Patrika AIR 1935 cal. 419; Bankin Chandra Paira v. Ananda Bazar Patrika,MR (37)
1950 Cal. 129.
In re Subramanian, Editor, Tribune AIR (30) 1943 Lah. 329; Crown v. AminrUd-Din-
Sahrait AIR 1949 Lah 266.
P.S. Tuljaram Rao v. Sir James Taylor, Governor Reserve Bank of India AIR (26) 1939
Mad. 257.
Mohammed Ibrahim v. Bhopal Singh AIR 1948 Ludh., 131.
AIR 1920 Bom. 175.
Id. at 180. j
AIR (37) 1950 Cal. 129.
 48

by the trying magistrate.116 Madras High Court further

liberalized the principle of pendency of proceedings to cases
which are about to come before the court in P.S. Tuljaram Rao
v. Sir James Taylor, Governor Reserve Bank of India}11 It was
held that to comment bn a case which was about to come before
the court with his knowledge of the fact was just as much a
contempt as comment on a case actually launched.118
So also the test of real prejudice or substantial interference was
accepted by the Calcutta High Court in Ananta Lai Singh v. Alfred Hendry
Watson.119 In this case Rankin CJ. observed:
The court’s jurisdiction in contempt is notito be invoked unless
there is a real prejudice which can be regarded as a substantial
interference with the due course of justice. It is not very
theoretical tendency that will attract the actions of court in its
very special jurisdiction. The purpose of the court’s action is a
practical! purpose and it is reasonably clear on the authorities
that this; court will not exercise its jurisdiction upon a mere
question of propriety where the tendency of the article to do,
harm is slight and jthe character and circumstances of the,
comment is otherwiseisuch that it can properly be ignored”.120

Id. at 133. , :
AIR (26) 1939 Mad. 257.
Id. at, 259 The Same principle was followed by the Lahore High court in In Re
Subramaniyan, Editor Tribune AIR 1943 Lah. 329. It was held that the proceedings need
not actually be pending and that it was sufficient that the proceedings were imminent to
the knowledge of the person charged with contempt.
AIR 1931 Cal. 257 The test of real prejudice as laid down by Rankin C.J. in Ananta Lai
Singh v. Alfred Hendry Watson was followed by the Ludhiana High Court in Mohammed
Ibrahim v. Bhopal Singh AIR 1948 Ludh. 131.
Id. at 261. The same principle was followed by Lahore High Court in In re
Subramaniyan, Editor Tribune, AIR 1943 Lah. 329; the publication of matter which tends
to or is calculated to interfere with the due course ofjustice may amount to contempt, but
before a court will take notice of such publication the court must be satisfied that the
matter published tended substantially to interfere with the due course justice or was
calculated substantially to create prejudice in the public mind.
 49

It was further liberalized and accepted as tendency to poison the fountain of

justice by the same High Court in In the matter of Tusharakanthi Ghose, Editor
Amrit Bazar Patrika.121 In this case it was held that it was immaterial whether

the attack on the judge was with reference to a cause about to be tried or

actually under trial or recently adjudged, in each instance the tendency was to

poison the fountain of justice, to create distrust and to destroy the confidence

„ of the people in the courts which were of prime importance to them in the
>
I; protection of their rights and liberties.122
%\
'•£ \ Scandalising the court, as a test of constructive contempt was also
^cepted by the Calcutta High Court in In the matter of Tushar Kanti Ghosh,

^^Editor Amrit bazaar Patrika.’23 In this case it was held that the court had the

right to punish scandalizing the court by summary procedure as contempt. The

same principle was followed by the Lahore High Court in Crown v. Amin-ud-

Din-Sahrait.m

In this case it was held that the published article clearly amounted to

contempt of the High Court 'as it scandalizes, ridicules and creates disrespect

and contempt for a distinguished member of the High Court, grossly

misrepresents court proceedihgs and tends to interfere with the due course of

justice by intimidating the judge and undermining public confidence in the

administration of justice.125 '

Judge loathe to take proceedings for their own contempt and do not mind any

honest criticism of the judgments ... But if motives are attributed to a judge

and it is alleged that he gave a wrong decision intending to favour a particular

121
AIR 1935 Cal. 419.
122
Motilal Ghose and others in re I.L.R. 45 Cal. 169,234,235.
123
Supra n. 94.
124
AIR 1949 Lah. 266.
125
Id. at 269.
 50

party or to oblige or to please or in fear of a particular person or authority, the

position is different because; the suggestion then is that the very fountain of

justice is tainted and consequently that judgment that stream out of that

fountain is impure an decontaminated. In such cases, it is the bounden 'duty of

the court to step in to remove a potential menace to the confidence of the

public in their judges.126

Interfering with the administration of justice, prejudicing fair trial and

scandalizing the court have been generally the tests of constructive contempt.

2.5 Legislative History of Contempt Law in India

The law in India before Independence' and the framing of our

Constitution was modeled on the pattern of the English concept. The English

decision, subject to the statutory provisions of the Indian law, formed the basis

for the decisions of the Indian courts. It may be recalled here that law in

England is not codified laW but is governed by the principles evolved at

common law. Independence of India and its Constitution, by its very nature

have brought about ideological as also legal changes resulting from the form

of government adopted here.1 But such changes affect the form and procedure

without materially affecting the concept of the lawl

2.5.1 Contempt of Courts Act, 1926

The first attempt at a comprehensive legislation relating to contempt of

courts in India was the Contbmpt of Courts Act, 1926, hereinafter referred to

as the 1926 Act. The salutary concept of limiting the punishment which could

be awarded in contempt cases was introduced by this Act. But it was far from

a comprehensive piece of legislation. The Act, as pointed out by the Sanyal

Committee report, had many shortcomings and flaws in the sense that it did
126
Ibid.
 51

not contain any provision with regarded to contempt of courts subordinate to

: i
courts other than High Courts, that is, chief courts and judicial commissioner’s

courts. It was equally silent with regard to the powers of contempt of courts of

judicial commissioners. If subordinate courts or superior courts in one area

required protection, it was obvious that the courts in other areas also required a

like protection. The Act also did not deal with the extra-territorial jurisdiction
of high courts in matters of contempt.”127

2.5.2. Contempt of Courts Act, 1952

Keeping in mind the shortcomings and flaws in the 1926 Act, it was

repealed and replaced by the Contempt of Courts Act, 1952, hereinafter

referred to as the ‘1952 Act’. The 1952 Act made two significant departures

from the 1926 Act. First, thd expression “High Court” was defined to include

Courts of the Judicial Commissioner which had been excluded from the

purview of the 1926 Act. Secondly, the High Court (including the Cohrt of a

Judicial Commissioner) (was conferred jurisdiction to inquire into and try a

contempt of itself or of any court subordinate to it, irrespective of whether the

contempt was alleged to halve been committed within or outside the local

limits of its jurisdiction and irrespective of whether the person alleged to be

guilty of the contempt was within or outside such limits. : :

Commenting on the 1952 Act and the state1 of the law of contempt as it
stood after the 1952 Act, the Sanyal Committee,128 observed as follows:

The 1952 Act is sound as far as it goes. While its provisions

may be retained, its stope requires to be widened considerably.1

The policy of the legislature has so far been to leave the

127 Report of the committee on Contempt of Courts, 1963 (Sanyal Committee Report), p. 8
as quoted by S. Pal, Law of Contempt, at p. 9.
128 Sanyal Committee Report, p. 9 as quoted by S. Pal, law of contempts, p. 10.
 52

formulation of the law of contempt to the courts. They only

safeguards provided in the law are that the power to punish for

contempt (subject to the limited exception as to contempt in the

face of the court for which provision is made in the Indian Penal

Code) is vested in the superior courts and limits are set to the

punishment which may be awarded by the courts. Before the

Constitution came into force there was no statutory provision for

appeals from decisions of High Courts in contempt cases though

the Privy Council after some initial reluctance finally asserted

its jurisdiction to hear appeals in contempt cases. The High

Courts and the Suprerhe Court have interpreted the provisions as

to appeals contained in the Constitution as sufficiently wide to

permit appeals in such cases from High Courts to the Supreme

Court. ;

The Act of 1952, however, was found to be inadequate and vague for

want of statutory definitions of several aspect of the law. Consequently the

necessity was realized that a penal law like contempt of court which should be

more precise and definite in its implications, particularly in view of the

fundamental right to freedom of speech and expression guaranteed by the

Constitution under Article 19(1 )(a).

In legal remembranc'e, Bihar v. Bibhuti Bhusan Das Gupta,129 the

validity of the 1952 Act was challenged on the'ground that the expression

“contempt of court” has not been defined and it amounts to unreasonable

restriction on the fundamental right of a citizen guaranteed by Article 19(l)(a).

But the validity was upheld and it was said that 1952 Act, because it does not

129 AIR 1954 Pat. 203. 1

 53

define “contempt” is not dn unreasonable restriction. The Court further

observed that the framers of the Constitution considered it unnecessary to

define the term as it carries a set meaning given to it by judicial

pronouncements of English and Indian Courts. The Act, therefore, was not

void. The observations made! by the court in aforementioned case were quoted
with approval by the Bombay,130 Andhra Pradesh131 and Punjab High

Courts.132

2.5.3 Contempt of Courts Act, 1971

Realising that the existing law relating to contempt of courts is

somewhat uncertain, undefined and unsatisfactory in the sense that the

jurisdiction to punish for contempt touches upon two important fundamental

rights of the citizen, namely, the right to personal liberty and the fight to

freedom of expression. It was, therefore, considered advisable that the entire

law on the subject be scrutinized by a special committee. In pursuance of this,

a committee was set up in 1961 under the Chairmanship of the late Shri H.N.

Sanyal, the then Additional Solicitor General. The Committee was required

(i) to examine the law relating to contempt of courts generally, and in

particular, the law relating to the procedure for the punishment

thereof; 1

(ii) to suggest amendments therein with a view to clarifying and

reforming the law wherever necessary; any

(iii) to make recommendations for codification of the law in the light of

the examination m'ade.

130
Damyanti G. Chandiramani v. Vaney, AIR 1966 Bom 19.
131
Advocate-General ofA.P, v. Ramana Rao, 1967 AP 299.
132
Sher Singh v. Raghupati, AIR Punj. 217.
 54

The Committee first considered the opinion of Desai, J. in State v. Padma

Kant Malviya,133 and held that the parliament had the power to legislate in

relation to the substantive law of contempt of Supreme Court and High

Courts134 subject to three limitations. ;

(i) It (contempt power) cannot be abrogated, nullified or transferred to

; j j

some other body, save by an amendment of the Constitution.

(ii) Parliament’s power to legislate as to contempt ought not to be so

exercised as to stultify the status and dignity of these courts.
(iii) Legislation in relation to contempt imposing unreasonable
restrictions on the right of citizens to freedom of speech and
expression will be, protanto unconstitutional.
The Committee made a comprehensive examination of the law and problems

relating to contempt of court in the light of the position obtaining in our own
i
country and various foreign countries and realizing the complex nature of
contempt of court decided not to attempt defining it. The recommendations
which the Committee made, took note of the importance given to the freedom
of speech in the Constitution and of the need for safeguarding the status and
I
dignity of courts and interest of administration of justice. Accepting the
recommendations of the Sanyal Committee the new act of Contempt of
i , : - I

Courts Act was passed in 1971.

2.5.4 Sanyal Committee had made the following recommendations in

chapter XII of the Report
Our main conclusions and recommendations may be summarised as

follows:

AIR 1954 All. 523. According to Desai J. legislature had no power to define contempt of
court. The court of record has the exclusive power to define and determine what amounts
to contempt. (Id. at 530).
Report of the Committee on Contempt of Court. 15 (1963). i
 55

(1) Confidence in the administration of Justice is essential for the preservation

of our liberty and nothing should be done which may tend to undermine that

confidence.

(2) At the same time, , as the jurisdiction to punish for contempt trenches upon

two important fundamental rights, namely, the right of personal liberty and

freedom of speech and expression - rights which are of vital importance in any

democratic system - the law of contempt of Court should be viewed mainly

from the stand point of these rights rather than on the basis of its origin or its

present position in other countries.

(3) The Contempt of Courts, 1952, though sound so far as it goes, touches only
the fringes of the subject. While its existing provisions should be continued,

there is need for widening considerably the scope of the Act.

(4) Under the Constitution, Parliament is contempt to legislate on contempt of

Courts subject only to the limitations that it cannot (i) abrogate, nullify or

transfer to some other authority, the power of superior Courts to punish for

contempt, (ii) exercise its power so as to stultify the status and dignity of the

superior Courts, and (iii) impose any unreasonable restrictions on the

fundamental right of the citizbn to freedom of speech and expression.

(5) Contempt cannot be defined except by enumerating the heads under which

it may be classified - heads which can never be exhaustive- and a definition

merely incorporating such heads under which criminal contempt, or even

contempt as a whole is generally classified, would be useless as a definition

and is totally unnecessary.

(6) Delimitation of the contempt of contempt' by the exclusion of any

particular head is not possible as none of the recognised heads has become

I
I
 56

obsolete. The assumption once made that contempt by scandalizing has

become obsolete has been proved to be erroneous.

(7) Want of knowledge of a pending proceeding, whether civil or criminal,

should afford a complete defence to a person accused of contempt.

(8) The rule of contempt in relation to imminent proceedings may be abolished

I .
so far as civil cases are concerned. As regards criminal cases, want of

knowledge should be a complete defence as in the case pending proceedings.

Further, where in respect of an offence, no arrest has taken place, a

presumption should be drawn in favour of the alleged contemner, that

proceedings are not imminent.

(9) A case which has reached the stage of execution shall not be deemed to be

a pending case for the purpos'e of the law of contempt.

(10) An innocent distributor of a newspaper or other publication, that is to say,

a person who had no reasonable grounds for believing that a publication

distributed by him contained any offending matter, shall not be guilty of

contempt of Court.

(11) The burden of establishing any of the defences aforesaid shall be on the

alleged contemner.

(12) The contempt proceeding in respect of the publication of the text or a fair

and accurate summary of the whole or any part of an order made by a Court
I
sitting in chambers or in camera shall not be competent unless the Court has

expressly prohibited the same in exercise of any power conferred by any

enactment for tlie time being in force. ’

(13) Cases of contempt in violation of secrecy should be confined within

clearly defined limits and secrecy may be enjoined with regard to judicial

proceedings only in exceptional Cases mentioned in paragraph 5.1 of Chapter

 57

VIII. Contempt proceedings in relation to cases of secrecy should be initiated

only when no other punishment is prescribed.

(14) Some of the existing defences open to an alleged contemner may be given

express statutory recognition.; These are:

t

(i) that a person shall not be guilty of contempt Tor publishing any fair and

accurate report of a judicial proceeding or any stage thereof;

(ii) that a person shall not be guilty of contempt for publishing any fair

comments on the , merits of any case which has been heard and finally decided

or on the conduct of any Judge if it be for the public good, the question of

public good being in each case a question of fact; 1 1

(iii) that a person shall not be guilty of contempt in respect of any statement

made by him in good faith' concerning the presiding officer of any Court

subordinate to a: High Court, say, to the Chief Justice of that High Court.

(15) As a matter of caution it may be provided that the provisions

recommended for inclusion in the Bill shall not be construed as in any way

enlarging the scope of contempt as otherwise understood or as affecting any

other defence which may be open to an alleged contemner.

(16) The general rules of procedure applicable in contempt cases should be

formulated clearly. 1

(17) In the case of contempts committed in the face of the Court, the present

summary powers of Courts have to be continued and a simple procedure

consisting of oral appraisal bf the charge to the contemner, the giving of an

opportunity to him to make his defence and provisions as to bail and custody,
on the lines suggested in adopted. I

(18) Applications for transfer of proceedings for contempt committed in the

face of the Court may be entertained by the Judge in whose presence the
 58

contempt is committed and if he feels that in the interests of;proper

administration of Justice the application should be allowed, and that it is

practicable to do so, he should cause the matter to be placed before the Chief

Justice for his directions. ;

(19) A criminal contempt (other than a contempt committed in the face of the

Court) should be heard only by a Bench of not less than two Judges except in

cases where the Court consists of one Judge, e.g., Court of the Judicial

Commissioner. That contempt may be taken cognizance of only on a motion

or on a reference made by some other agency. That is to say, in the case of the

Supreme Court, the motion may be made by the Attorney-General or a person

authorised by him, and, in the case of a High Court, by the Advocate-General

or a person authorised by him. Such motion may be made either on be, or at

the instance of the Court concerned. Where the contempt is that of a

Subordinate Court, action may be taken on a reference made by the Court.

(20) The motion or reference should specify the act constituting the contempt

and the law should embody provisions as to service of notice Af the

proceedings, and as to the defence of the person charged on the lines indicated.

(21) A provision may be made that no Court shall punish any one for contempt

unless the contempt is of such a nature as substantially to interfere with the

due course of Justice.

(22) The provisions of the Contempt of Courts Act, 1952, as to punishment

and apology may be continued but it may be made clear that in cases 'of civil

contempt, where fine is not an adequate punishment, the punishment of simple

imprisonment to be awarded1 should consist of detention in a civil prison for a

term hot exceeding the prescribed statutory period.

 59

(23) It may also be provided that in cases where the person found guilty of

contempt in respect of any undertaking given to a Court is a corporation, the

punishment may be enforced; with the leave of the Court, by the detention in a

civil prison of the directors or principal officers of the corporation.

(24) Every order of punishment for contempt shall state the facts constituting

the contempt, the defence of the person charged, the substance of the evidence

taken, if any, as well as the finding and the punishment awarded.

(25) Provision may be made for an appeal as of right from any order or

decision of a High Court in the exercise of its jurisdiction to punish for

contempt. The appeal should lie to a Bench of Judges of the High Court where

the order or dedision is of a single Judge. Where the order or decision is of a

Bench the appeal should lie to the Supreme Court.' 1

(26) The rule of practice as to ‘purge’ of contempt may work hardship in many

cases and therefore both the appellate Court and the Court from whose

Judgment or order an. appeal is being preferred should have the power'to stay

execution of the sentence, to release, the alleged contemner on bail and to hear

the appeal or allow it to be heard, notwithstanding the fact that the appellant

has not urged himself of the contempt.

(27) The Supreme Court may, in the interests 6f uniformity, be conferred

power to make rules to supplement where necessary the rules of procedure

recommended by us. It may also be provided that the Supreme Court may

make rules in relation to High Courts only after consulting the High Courts.

Draft Bill We have appended to this Report a1 draft Bill incorporating the

recommendations which we have made in this Report. An endeavour has been

made to: set forth in clear cut terms the implications of our recommendations in
the Bill. >
 60

2.6 Difficulties involved in defining contempt of court

As to what constitutes contempt of court is of great significance for two

reasons firstly contempt of court is one of reasonable restrictions which can be

imposed on freedom of speech not only in India but also in UK and the US.

Secondly, the court can punish for contempt only when the act complained of,
i •

falls under the definition of contempt.

2.7 Definition and Meaning

No satisfactory definition of the term contempt of court can be had,135

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

and celebrated explanation ks given by Lord Hardwicke L.C. has obtained

general acceptance:

There are three different sorts of contempt. One kind of

contempt is scandalizing the court itself. There may be likewise

a contempt of this coiirt in abusing parties who are concerned in!

j'

causes here. There may also be a contempt of this court in

prejudicing mankind against persons before the cause is

heard.136

This explanation includes different instances of contempt which later on are

characterized as criminal contempt, though it is silent about disobedience of

Report of the Committee on Contempt of Court 48 (1974). The same view was expressed
by Shawcross Committee also “Not the least of the difficulties in this field (definition) is
that contempt, being a growth of the common law,! has no authoritative definition or
limitation... it can be defined in the most general terms” Shaw cross Committee Report 4
(1959). See also Niyogi J. | in Telhara Cotton Ginning Co Ltd. v. Kashinath ILR 1940
Nag. 69. “It is indeed difficult and almost impossible to frame a comprehensive and
complete definition of contempt of court. The law of contempt covers the whole field of
litigation itself. The real end of a judicial proceedings civil or criminal, is to ascertain the
true facts and dispense justice ... Anything that tends to curtail or impair the freedom of
the judicial, proceedings must of necessity result in hampering the due administration of
law and in interfering with the course ofjustice’ (at pp. 71,72).
Re Read and Hugginson (St. James Evening Post case) (1742)2 Atk 469,470-471.
 61

the orders of the court, as a pioneer attempt to define the term, it deserves

appreciation. ;

American jurisprudence gave a better explanation for contempt of

court. It states:

Generally speaking the whose conduct which tends to brig the

authority and the administration of the law into disrespect or

disregard, interferes with or prejudices parties or their witnesses

during a litigation or otherwise tends to impede, embarrass or

obstruct the court in discharge of its duties is guilty of

contempt.137 i

2.7.1 Position in U.K.

The Contempt of Court Act, 1981 of England till date does not contain

any definitions of contempt of court. The expression contempt of court has

been a recognized in English law from the 12th Century. In England attempts

were made to codify the law relating to contempt with a view to check the

arbitrary summary and restrict jurisdiction of courts in treating contempts. But

all that jurists had done was to describe the various instances of contempt. The

judges have only decided whether in the cases coming before them, the

specific acts alleged constitute , contempt of court or not.

Because the offence had been manifesting in variety of ways, and it

was in fact not possible to attempt any exhaustive or satisfactory definition of

‘contempt of court.’ It was left to the court to adjudicate and determine as to

what particular action of a delinquent can be characterized or branded as a

contempt in fact as well in latv. '

137
17 Am. Jur 2d 3.
 62

Although there is no specific definition of contempt of court in

England, the judges are guided by the principle that to constitute contempt of

court the acts on the offences! should relate to the administration of justice.

2.7.2 Position in India ;

In the 1926 Act and the 1952 Act there was no definition of contempt

of court at all whether civil or criminal. The Sanyal Committee

recommendations also did not contain any definition of civil or criminal

contempt. The constitution of India also does not contain definition of

contempt of court neither does any other statute.

In the law of contempt difficulty and vagueness start at the definition

stage itself. Contempt in to root sense signifies; disrespect to that which is
entitles to respect or regard and the expression ‘contempt of court’ has been a
recognized phrase in English law from the 12th century.
The difficulties involved in defining contempt were aptly pointed out
■ , i

by the Sanyal Committee in the sense that.... Right till the present century,
; . .' !
these doctrines and procedures were never subjected to legislative scrutiny
with the result that the law of contempt had, as it were, a wild growth. Each
new precedent was not declaratory but creative of the law. Each new 'type of
attack on the administration Of justice received a corresponding elaboration or
extension of the contempt law.138
The committee further observed: -

We would certainly not favour a definition which may have the

effect of placing undue fetters on the courts thereby rendering
them powerless to deal with great evils threatening or likely to
threaten the administration ofjustice.139 '

138
Sanyal Committee Report, p. 19,
139
Id. at 24. !
 63

But absence of a clear definition may debar persons from expressing opinion
on matters requiring judicial dr legislative reform.140

“The ingenuity of the* judges and of those who are concerned to defeat

or defy justice has rendered contempt almost protean in its character” said
Craies.141 And even now it may well be said the categories of contempt are

not closed. The result is that there are contempts and contempts ranging from

mere disobedience to orders of the court and involving only a wrong of a

private nature as between the parties to a suit at one end and contempts

involving physical violence or large scale blackmail or mudslinging by means

of publication on the judge at the other end. In view of the haphazard

development inherent in the process of development of law by judicial

presents, it is not possible to attempt neat and clear cut classifications of the

various branches of the law of contempt and in view of the possibility :of new

types of contempt arising in future, it is not possible to demarcate the area of

operation of the law of contempt. It is for these reasons that judges and jurists

have not succeeded in formulating a comprehensive and complete definition of

the concept of contempt of courts.

The report of the Joint Select Committee of Parliament on the Bill

suggested that a suitable definition is the one, which was evolved by the Joint

Select Committee. In engrafting the definition, the Joint Select Committee

observed that it had followed the well known and familiar classification of

contempts into “civil contempts” and “criminal contempts” and had given

essential indications and ingredients of each class on category of contempt.

Cited by Goodhart, “Newspaper and contempt of Court in English Law”, 48 Harv L. Rev.
885,886(1935). :
 64 :

Keeping in mind the recommendations made by the Sanyal Committee

and incorporating the definition of contempt of court drafted by the Joint

Select Committee, the new act of Contempt of Courts Act, 1971 was; passed
in 1971. | :

2.8 Nature of Contempt Proceedings

Contempt proceeding is sui generic. Contempt proceedings though not

criminal, are of quasi-criminal nature. It has peculiar features which are not

found in criminal proceedings. The contempt proceedings are peculiar because

firstly: Contempt of court is not an offence within the meaning of section 4(2)
i' -

of the criminal procedure code. The alleged contemnor is also not an accused

within the meaning of section 5 of the Indian Oaths Act, 1873. Similarly

accused contemnor is also hot a person accused of an offence within the

meaning of Article 20(3) of the constitution. An offence under the criminal

jurisdiction is tried by a Magistrate or a judge and the procedure of trial is

regulated by the Cr. P.C. which provides an elaborate procedure for framing of

charges, recording of evidence, cross-examination, argument and the

judgment. But charge of contempt is tried on summary process without any

fixed procedure: as the court is free to evolve its own procedure. Unlike the

trial for a criminal offence ho oral evidence is ordinarily recorded and the

usual practice is to give evidence by affidavits.

i
Secondly : Neither the Cr. PIC.142 nor the CPC are applicable to the contempt

proceedings. The Contempt of Courts Act, however, provides for procedures

under Section 14, 15, 17 'and 18 thereof. But, how far these statutory

procedures if at all affect the inherent jurisdiction of the High Courts and their

power to adopt their own procedure, or indeed, to follow their own procedures

142 Sukhdev Singh v. Tej Singh 1954 SCR 454. 1

 65

is still an open question. This act itself, to, and not in derogation of, the

provisions of any other law relating to contempt. Since the procedures which

had been followed by the High Courts have the constitutional sanction by

recognition thereof and also:have been held to be procedures established by

[
law within the meaning of Article 21 of the Constitution,143 they cannot be

affected by the provisions of the Act.

Thirdly : The procedure is contempt cases is summary, unaffected by the law

of evidence. It is because of these peculiar features of contempt proceedings

there is an impelling why judges and jurist, foreign and Indian, have always

suggested that contempt should be conducted with care, caution and

circumspection.' 1 :
In Supreme Court Bar Association v. Union of India,144 a Constitution
Bench described the special jurisdiction to punish for contempt as an “unusual
type” combining “the jury, the judge and the Hangman” and explained this
apparent anomaly on the ground that the court was not adjudicating upon any
claim between litigating parties.145
( 1
Contempt proceedings do not partake the character of a traditional list,
i ! • - %
In the legalistic sense a contempt proceeding is not a dispute between two

parties but is “primarily between the court and the person who is alleged to

have committed the contempt of court”.146 The person who informs the court

bring to the notice of the court that anyone has committed contempt if such

court is not in the position of a prosecutor. He is simply assisting the court so

I

that the dignity and the majesty of the court is maintained and upheld.147

i . i ' :

143 State v. Mr. P.AIR 1959 Bom 182.

144 1998(4) SCC 409.
145 Ibid at p.429. I i
146 State ofMaharashtra v. Mahaboob S. Allibhoy 1996(4) SCC 411 at p. 414.
147 Ibid. ,
 66

2.9 Mens Rea and Contempt of Court

Presence of mens rea to do an act is an essential ingredient in fixing

culpability of an accused in criminal proceedings. However in contempt

proceedings, especially in eases of criminal contempt, it is not so. It is

sufficient if the dignity of the court is lowered: even though there was .no

intention to do so.

This position is amply demonstrated in the case of In Re : Hari Singh :

In Re: Vijay Kumar.148 The facts of this case in brief are that on 10-03-1996

there was a news item captioned as “PUMPS FOR ALL” in the Sunday

Tribune wherein it was alleged, inter-alia, that two sons of a senior judge of

the Supreme Court have been allotted petrol pumps out of the discretionary

. quota of the Petroleum Minister. A similar news1 item was also published in

Hindi Newspaper Punjab Kesari dated 10.03.1996. The Supreme Court

taking note of the two news items by order dated 13.03.1996 issued notice to

the secretary, Ministry of Petroleum and Natural Gas to file an affidavit

offering his comments and response to the facts stated in the aforesaid two

news items. After verificatibn of records it was found that the news item

referred above were patently false. The court issued show cause notices to

both editors and publishers I of the newspapers as to why they may not be

punished for contempt of court. 1

The editors and publishers of both the papers admitted that the news

item published with regard to the said allotment was not correct and therefore

tendered unqualified apology and prayed for mercy and pardon. It was pleaded

by the alleged contemnors ttiat a highly reliable source who had earlier given

(1996)6 SCC 466.

i
 67

much reliable information gave this information which was believed by them

to be true but turned out to be incorrect, (emphasis;supplied).

Justice Faizan Uddin speaking for the court said” ... but this cannot be

accepted as valid excuse. It;may be stated that at common law, absence of

intention or knowledge about the correctness of the contents of the. matter

published will be of no avail for the editors and publishers for contempt of

court”149 (emphasis supplied)

Similar position exist in the U.K. Section 1 of the Contempt of Court

Act, 1981 excludes the intention in contempt cases in the following words:

S.l “In this act, the Strict liability rule’ means the rule of law1

whereby1 conduct of! court as tending to interfering with the

course of justice in particular legal proceedings regardless of

intent to do so.” (emphasis supplied) ;

In the U.S . the position is similar in the sense that the intention is not as
essential ingredient in committing contempt of court.150
It must however be remembered that absence of intention or knowledge
is quite a relevant factor for the determining the quantum of punishment,
which may be awarded.151 Invariably the quantum of the punishment is more
; i '

in the cases where the intention to commit the contempt of court is present. It
1 I
was observed in A.G. v. Times Newspapers Ltd. that the intention with which
act was done will of course, be of the highest relevance in the determination of
the penalty to be imposed by the court.152
In another case, Director Journal of Police, W.B. and Ors.- Where due

to agitation by certain committed the District Judge and other Judges were not

Id. at p. 474. I
Bridges v. California 314 US 252 (1941).
Ibid.
(1991)2 All ER 398
! i

1
 68

able to enter the Court building and Courts were not functioning at all for last

one months, however, inspite of request by District Judge and inspite of

lodging of a G.D. disclosing commission of a cognizable offence provided

under Penal Code, the District magistrate, District Superintendent of Police

and Inspector In Charge of Local police station refused to even start

investigation of case by internationally over looking provisions of Ss. 340 and

1411 of Penal Code and knowing fully well that fundamental rights of citizen

u/Art. 22(2) of Constitution would be violated, resulting in interference in due

administration of justice of a grave nature. It was held that such allegation if

found true would constitute criminal contempt, there need not be some

positive Act on the part of the condemners, however, the effect of the' willful

inaction of those of facers was more than that of any positive act on their part

in disrupting the due administration of justice. Moreover, the fact that no

judicial case in the district was taken up for the last one month itself indicates

that there was constitutional breakdown for one month in the said district for

the irresponsible act and disobedience shown to the administration of justice

on the part of those officers. Moreover, the fact that a G.D. was : lodged

complaining obstruction to'the entry of the employees of the court was

sufficient for taking action to see the judiciary could function in the district in

accordance with the constitution of India and further request for police help at
the instance of the District Judge was unnecessary.153

2.10 Discretion of Court in Contempt Proceedings 1

The question of committal or non-committal is one for the discretion of

the court before whom the application to commit is brought and as Lord Poster

153
2007 Cri. L.J. 1955 (Calcutta High Court).
 69

stated in Ali Mohammed v. Emperor.154 “Unless there is found to be a serious

disregard for the principles of natural justice, their Lordships would be slow to

interfere with that discretion”. But the High Court should not entertain

summary proceeding if a person can be sufficiently punished by some other

Tribunal.155 Though there is no bar for a court to commit in cases, where

i - ;

another remedy exists yet this factor is itself a matter for the court to consider

when exercising its discretion in committal for contempt. Desirability of speed

and the necessity of ensuring that the orders of the court are obeyed are also

matters of judicial consideration.

The court has a solemn duty to exercise its powers to proceed for
contempt only in cases of redl and serious moment, when there has been really
a serious interference with the course of justice. Once it is established that was
the case, the fact that the publication also constitutes a libel may not deter the
High Court from intervening and punishing the contemnor.156 In the instant
f l '

case157 the alleged histories! of the prisoners and of the complainant were
published. They could not be evidence in the pending case. In commenting on
the untrustworthiness of the evidence which may be led in the criminal case,
the contemnors were held to have committed gross and serious contempt. It
became the duty of the High Court to intervene in such cases and punish the
contemnor. i •
2.11 Necessity of Summary Jurisdiction in Contempt Proceedings i

The need for summary powers has been eloquently stated in 'Rex. v.

Almon:m ; 1

154
AIR 1945 PC 147.
155
Kisan Krishnji v. Nagpur Conference ofSocieties ofSt. Vincent de Paul,, AIR 1943 Nag.
334.
156
Smt. Padmavatty Devi Bhargava v. R.K. Karanjia, AIR 1963 MP 61. ;
157
Ibid.
15S
1765 Wilm 243. 1 ;
 70

“The powers which the courts in Westminster Hall have of

vindicating their authority is coeval with their first foundation

and institution. It is a necessary incident to eveiy court of justice

whether of record or ;not to fine and imprison for contempt to:

I - '

the court acted in the [face of it”. Contempt is an offence to the

court and not to the person who sits as a Judge. Ergo an insult to

the court if not punished will create a general dissatisfaction in

the minds of the public as to the dignity, solemnity and efficacy

of courts of justice. A court of justice should in the opinion of

Oswald have such power to punish brevi manu to vindicate its

own dignity. A summary and quick mode of meting out

punishment to the contemnor if he is guilty is very efficacious in

inspiring confidence in the public as to the institution of justice:

Without such protection courts would go down in public respect

and the maintenance df law and order will lie in jeopardy. In the
Amrita Bazar Patrika case,159 Mukerjee, J., discussing the need

for the brevi manu procedure said, “The principle deducible

from these cases is that punishment is inflicted for attacks of this

character upon Judges not with a view to protect the court from

a repetition of the attack, but with a view to protect the public

from the mischief they will incur if the authority of the Tribunal

be undermined and irripaired”.

The antagonists of this theory of summary jurisdiction argue that such

powers are archaic, not in corisonance with judicial principles, such as:

159
45 Cal 160.
 71

(1) No one ought;to be his own judge or the tribunal of his own

affairs. j

(2) No one can at once be a suitor and a Judge.

(3) A person ought not to be a judge in his own cause because he

cannot at once be a Judge and an adversary.

It will be seen that in case of direct contempts in the face of court, the court

which is not of record can act summarily under Section 228, I. P. C. The

superior Courts of Record can punish even constructive contempt (in fact any

kind of contempt, direct or outside of it, of itself or its subordinate courts)

summarily. The objection regarding non-appealability, unlimited duration of

conviction or fine have been remedied by the Contempt of Courts Act. It will

be noted that unless the same Judge deals with the contempt the fair progress

of trials and due course of justice will be delayed and frustrated. The same

Judge can dispose of the matter in an admirably shorter time and the

contemnor is in a way prevented from taking false defences. To reduce the

court to the position of a private prosecutor and ask the court to figure as a

prosecution witness in another court and subject it to cross-examination on

facts, is all ever so humiliating to the prestige of th!e court.

Oswald would put the1 case for a summary method thus:160 1

“It is now the undoubted right of a superior court to commit for

contempt. The usual Criminal process to punish contempts was

fund to be cumbrous and slow and therefore the courts at an

uncertain date assumed jurisdiction themselves to punish the

offence summarily ‘ Oreir Memo’, so that the cases might be'

fairly heard and the administration of justice not interfered with.1

160
Pages 8, 9.'
 72

A court of justice without power to vindicate its own dignity to

enforce obedience to jits mandate, to protect its officers or to

shield those who are entrusted to its care, would be an anomaly

which could not be permitted to exist in any civilized

community.” I
In Mcleod v. St. Aubyn,161 Lord Morris urged that contempt power was

“a weapon to be sparingly used and always with reference to the interests of

the administration of justice”. The further statement of Lord Morris that

committals for contempt by scandalizing have become obsolete in England

cannot be fully supported. *One would, however, agree that the summary

method should not be resorted to unless the interests of administration of

justice compel it as where the attack on court is unwarranted and deserved to

be checked by resort to the sOreir Memo' procedure.162 The court in suitable

cases has also the power to act exmars motu.m But as Lindly, L.J., put it “the

court ought to be very chary1 in committing people for contempt. Particularly

in cases of fanciful contempts”.164 1

We would say that whether in England or in India, the summary power

has been sparingly used and further that it is necessary to safeguard the:dignity
of courts, and the interests of the parties to the cause. We can only say that the
summary power may not be, resorted to wherever a less arbitrary remedy is
available. The question is not whether technically a contempt was committed
but whether it was of such a nature as to justify and require the court to
interfere summarily.165

1899 A.C. 549 : 68 LJ 137 (PC).

Ben v. Stewart, (1920) 28 CLR, 429.
Re the Echo Sydney Morning Herald Newspapers, (1883).
Seaward v. Paterson, (1897)1 Ch. 545.
Hunt v. Clarke, (1889) 58 LJ QB 490.

i
 73

In modern days when respect for law and order is not high, when

people think more of their rights than duties, and when litigants do not show

high respect for: keeping decorum in courts, it appears to be salutary to retain

the summary method of proceeding in contempt to inspire respect for the

majesty of law and law courts.

But summary powers1 are not to be exercised arbitrarily. It should be

carefully exercised and should not be resorted to if a less arbitrary remedy is

available,166 or if the offence is trivial or technical.167 It should be very

sparingly used. The standard of proof in regular criminal trials and in trials of

contempt ‘brevi maniC is the same. In the ultimate analysis it has been found

that summary powers for punishment of contempt is a real public necessity.

In the 1971 Act the1 provision in Section 14 retains, the summary

procedure in cases of ex facie contempt (vide comments in Chapter III infra).

In the matter of what is termed constructive contempt i.e. contempt as to acts

or writings outside the court which is brought later to the notice of the court

the procedure is entirely different (vide sections 17 and 18 of the 1971 Act). In

view of the fact that there has been a lot of criticism as to the existence of this

summary power of court and its user, it appears* necessary to refer in some

length to the historical background of the summary power. It must be

remembered that only Courts of Record can claim such summary powers.

These summary powers of the Supreme Court and the High Courts in India as

Courts of Record are in no way affected by or limited by the procedure set out

in Sections 14, 15, 17 and 18 of the 1971 Act. These Courts of Record do,

Hunt v. Clarke, 58 LJ QBH 490.

Legal Remembrancer v. Motilal Ghose, ILR 41 Cal 173.
I
 74

even after the passing of the 1971 Act, have their inherent and long established

powers to deal summarily in matters of contempt. •

2.12 Provisions of the Contempt of Courts Act are Quasi Judicial

It was held that no doubt the jurisdiction that the Court exercises in

cases of alleged contempt is iquasi-criminal and the Court must be satisfied on

the material before it that Contempt of Court was in fact committed. But that

satisfaction may be derived from the circumstances of the case.168

There is no room for controversy that where the contempt consists in an

attack upon the Court, the proceedings instituted to vindicate its dignity, are of

criminal nature, even though khe attack has been made in connection with civil

suits or appeals either actually decided or pending or about to be taken up for

disposal.169 :

Proceedings for contempt are in the nature of criminal proceedings, it is

not quite correct that the position of the alleged contemner is that of an

accused person who cannot file an affidavit or make a statement on oath.170

Contempt of Court is an offence which is dealt with by the Indian Penal

Code, or the Code of Criminal Procedure : nor is it an offence under any other
law.171 '

A contemner is not in the same position as an accused person. An

accused person within the rAeaning of Sec. 5 of the Oaths Act must;be one

who is accused of. having committed an offence as defined in the General

■' i . ' .

Bank ofIndia v. Vijay Transport (2000)8 S.C.C. 512 at p. 525 at p. 525 : AIR 2001 S.C.
1293 : 2001 Cr. L.J. 732 at p. 739 (S.C.); See also Mrityuanjoy Das v. Sayed Haribur
Rehman (2001)3 SCC 739 at p. 746. ,
Tarif Kanti Biswas, In the matter of, AIR. 1918 Cal. 988 at p. 1018; See also V.A.
Kanade v. Shri Madhav Gqdkari, Editor, Daily Lok Satta, 1989 (3) Bom. C.R. 515 at p.
524. '
170
Subrahmanyan, Editor, Tribune, In re, AIR 1943 Lah. 329 at p. 346.
171
Benjamin Guy Homiman, In re, AIR 1944 Bom. 127 at p. 129.
 75

Clauses Act. It has also been 'noticed earlier that an offence which a contemner
! - ; j :

commits does not fall within that definition.172

The jurisdiction under which the Court acts when it punishes a

contemner is a “special jurisdiction” which has been conferred on it or it

inherent in it as a Court of Record, and the procedure, which the Court has

followed and follows is a “special procedure” within the meaning of Sec. 5(2),

Cr. P.C. Therefore, contempt of Court is neither an offence within the meaning

of Sec. 5(2), Cr. P.C., nor is the procedure prescribed by the Code in regard to
investigation, inquiry and trial of an offence.173

Contempt proceedings are neither civil nor criminal but sui generis. A

High Court punishes contempt of Court as a Court of Record in exercise of its

inherent jurisdiction and the procedure that it adopts is governed neither by the

Code of Civil Procedure nor by the Criminal Procedure Code.174

Proceedings in contempt, are of a quasi criminal character and all the

rules of Court must be observed in strictness.175 !

The High Courts in India continue to have power to deal with contempt

of themselves in the same manner as a Court of Record has under the Common
Law of England.176 1

It cannot' be said that the Public Spirited People or the Body of persons

instrumental in bringing the public interest litigation cannot be summoned and

dealt with appropriately under the contempt jurisdiction of the Court under the

Contempt of Courts Act, 1971. No decision makes such exception for such

Public Spirited People or the Body of Persons if they fall within scope and
_ . ,
172 State v. Padma Kant Malviya, AIR 1954 All. 523 at pp. 535, 536.
173 Ibid, at p. 535.
174 Ch. Shyam Sunder v. Dau Dayal Khanna, AIR 1956 All. 79 at p. 80.
175 Weston v. Editor, Printer and Publisher of the Bengalee, 15 C.W.N. 771 at p. 774.
176 In the mater of Lala Harkishan Lai, AIR 1937 Lah. 479 at p. 499.
 76

ambit of the Contempt of Court Act, 1971. Sub-sec. (b) of Sec. 2 of the Act,

1971, defines Civil Contempt and says that it would mean willful disobedience

to any judgment, decree, direction, order, writ or . other process of a Court of

willful breach of an undertaking given to a Court, they could certainly be

summoned and dealt with under the provisions of the Contempt of Courts Act,

1971. Merely because they happen to be the Public Spirited People or the

Body of Persons bringing a litigation before the Court as a Representative

Social Action cannot be permitted to go out of the scope and the ambit of the

provisions contained in the Contempt of Courts Act, 1971. Of course, before

branding them as guilty for'the Civil Contempt (herein Civil Contempt)’ or

Criminal Contempt, the necessary ingredients shall have to be established

against them.177 1

If jurisdiction in a criminal matter is conferred by Cl. 2 of the Letters

Patent it cannot1 be disputed that ex facie contempt of a Judge of the Court is

criminal in its nature- it would be a sentence or order passed in the exercise of

criminal jurisdiction within Cl. 15 of the Letters Patent.178

Contempt is a special subject and the jurisdiction is conferred by a

special set of laws peculiar to Courts of Record.179

The jurisdiction to award punishment for contempt of Court is an

extraordinary jurisdiction and it is exercised in a summary fashion.180

A contempt is not an offence within the meaning of Sec. 5(2) of the Cr.

P.C., nor is the contemner an accused within the meaning of Sec. 5 of the

Oaths Act or within the meaning of Art. 20, sub-clause (3) of the Constitution

177 Gujarat Housing Board v. Peoples Union for Civil Liberties, 1999 (1) Guj. L.R. 238 at
pp. 242-43. , ■
178 S. Govind Swaminathan, Iri re, AIR 1955 Mad. 121 at p. 127.
179 Sukhdev Singh v. Hon’ble C.J.S. Teja Singh, AIR 1954 SC 186 at p. 188.
180 State v. Tribhuvan Nath Verma, AIR 1969 Pat. 262 at p. 266.
 77
!

of India. Contempt is an offence to the Court and not to the person who sits as

a Judge Ergo, an insult to the Court, if not punished, will create a general

dissatisfaction in the mind iof the public as to the dignity, solemnity and

efficacy of the Courts of Justice.181

The offence of contempt being quasi criminal in nature is to be deemed

as completed, the moment the offending remarks have been made and any

subsequent order of Court expunging them will not have the effect of wiping
out the wrong done, or the contempt committed.182

2.13 Distinction between Defamation and Contempt of Court

A defamatory statement upon the conduct1 of a judge in respect of his

judicial duties may certainly come under Section 499 of Indian Penal Code

and it may be open to judge to take steps against the libeler in the ordinary

way for vindication of his character and personal dignity as a judge; but such

defamatory statement may or may not amount to contempt of court, which is

something more than mere defamation and is of different character.

In defamation injury is to a private individual whereas in contempt of

court the injury is to the public at large. What is made punishable in the IPC is

the offence of1 defamation ;as defamation and not as contempt of court.

However, if defamation of a court/judge amounts to contempt of court,

proceeding can certainly be taken under the Contempt of Courts Act, quite

apart from the fact that other remedy may be open to the aggrieved officer

under section 499, of Indian Penal Code.

Before we proceed further with the on discuss on the various judicial

pronouncements on this topic, it would be worthwhile to refresh our memories

i : :
181
State ofU.P. v. Deg. Raj Singh, (1983)1 Cr. L.J. 866 atp. 871 (All.).
182
C. Hariprasadv. G. Vasantha, Pai, 1966 Cr. L.J. 421 atp. 424.
 78

vis-a-vis the object of contempt power which we discussed in the preceding

paragraphs. It was observed: that the rationale behind contempt power is to

uphold the dignity of the court as an institution and not afford protection to a

judge as an individual.

Therefore, it is in this; background that the court has drawn a line as to

when a statement amounts to defamation or contempt of court or both.

The quintessence of the contempt power is protection of the public not

judicial personnel.183 This point has been carried home well by the Supreme

Court of the United States. The distinction between defamation and contempt

of court has been dealt with1 by Justice Bowen in' Helmore v. Smith,in the

following words:

“The object of the discipline enforcement by the Court in case

of contempt of Court is not to vindicate the Dignity of the Court

or the person of the Judge, but to prevent undue interference

with the administration of justice.” (emphasis supplied)

Justice Douglas in the landmark case of Craig v. Harney,185 observed

that: 1

“The law of contempt is not made for the’ protection of judges

who may be sensitive to the winds of public opinion. Judges are

supposed to be men of fortitude, able to thrive in a hardy

climate.” (emphasis supplied)

Similarly Lord Morris in Macleod v. St. Aubin,m very rightly observed

that the power summarily to commit for contempt is considered necessary for
i : ;

Krishna Iyyer, in (1974)1 SCC 374.

(1887)35 ChD 449,455. '
331 US 367,376 (1947). :
186
(1899) A.C. 549.
 79

the proper administration of justice. It is not to be used for the vindication of a

judge as a person. In that c^se he must resort to action for libel or criminal

information.

Scandalisation of the. Court is a species of contempt and may take

several forms. A common; form is the vilification of the judge.' When

: i
proceedings in contempt are taken for such vilification is of the Judge as a
1 R7
judge or it is the vilification of the Judge as an individual. In Queen v. Gray,

it was rightly observed that if the vilification is of the judge as an individual

I
then the Judge is left to his private remedied and the Court has no power to

commit for contempt. If the vilification is of the Judge as Judge then the court

will proceed to exercise the jurisdiction with scrupulous care and in cases,

which are clear, and beyond reasonable doubt. The jurisdiction is not intended

to uphold the personal dignity of the judges. That must rest on surer

foundations. Judges rely on their conduct itself to be its own vindication.

The fact that a statement is defamatory so far as the judge is concurred

does not necessarily make it contempt. The distinction between a libel and a
contempt was pointed out by'a committee of the Privy Council, in the 'famous

case of Ambard v. Attorney-General for Trindad and Tobago,188 to which a

reference was made by the secretary of State in 1892. The facts of the case in

brief are that a man in the Bahama Islands, in a letter published in a colonial

newspaper criticized the Chief Justice of the colony in an extremely ill chosen

language which was sarcastid and pungent. There was a veiled insinuation that

he was an incompetent judge and a shirker of work and writer suggested in a

way that it would be a providential thing if he were to die. A strong board

187
(1900)2 QB 36.
188
1936 A.C. 322.
 80

constituting of 11 members reported that the letter complained though it might

have been made the subject of proceedings for libel, was not, in the
i

circumstances, calculated to obstruct or interfere with the course of justice or

the due administration of the law and therefore did not constitute a contempt

of court (emphasis supplied).!

It was followed and approved by the High Court of Australia in King v.

Nicholls.m

The same principle was reiterated by Lord Atkin in the case of Debi

Prasad v. Emperor.190 In that case the appellant had suggested falsely that the

Chief Justice of the Allahabad High Court had, in his administrative capacity,

issued a circular to the Judicial Officers under, his jurisdiction enjoining on

them to raise contributions to the war-funds which, it was said, would lower

the prestige of the court in the eyes of the people. In holding that the

imputation did not constitute contempt of court but, at the most, a personal

defamation of the Chief Justice in his individual capacity, Lord Atkin said:

When the comment in question in the present case is examined,

it is found that there is no criticism of any judicial act of the

Chief Justice, or any 'imputation on him for anything done of

: omitted to be done by him in the administration of justice. It

cannot be said that' there is any criticism of him in his

administrative capacity, for, as far as their Lordships have been

• , i
informed, the administrative control of the subordinate courts of

the province, whatever it is, is exercised, not by the Chief

Justice, but by the court over which he presides. 1
I
189
12 Com LR280.
190
AIR 1943 PC 202.
 81

In one of the landmarks judgement on the law of contempt of court in

India, Justice Mukerhjee in\ Bathinda Ramakrishna Reddy v. The State of

Madras,191 speaking for a 5:judge bench (Patanjali Shatri C.J., Mehr' Chand

Mahajan, Mukherjee, Das Chandrasekhra Aiyar, J.J) observed that “A libeler’s

reflection upon the conduct ;of a judge in respect of his judicial duties may

certainly come under section 499 of IPC and it may be open to the judge to

take steps against the libellor in the ordinary way for vindication of his

character and personal dignity as a judge, but such libel may not amount to

contempt of court.”
Justice jkukherjee in Reddy’s,192 case with approval, the observations

made by Privy Council in Surendra Nath Banerjee v. The Chief Justice and

Judges of the High Court}92 The privy Council said that although contempt

may include defamation but;an offence of contempt is something more than

defamation and is of a different character. When the act of defaming a judge is

calculated to obstruct or interfere with the due course of justice or' proper
administration of law it woulk certainly amount to contempt.

The observations made by Justice Mukherjee in the Reddy’s case were

again upheld in Brahma Prakash Sharma v. State of Uttar Pradesh}94 The

court observed “It must be observed that in Section 2, Section 3 and section 13
of the Contempt of Courts Xct is to the interference with course of justice or
i . •

obstruction of the administration of justice or scandalizing or lowering the

authority of the Court-not the judge. The highlights the judicial area as entitled

to inviolability and suggests a functional rather than a personnel or

191 1952 SCR 425.

192 Ibid. i
193 1 ILR 10 Col 109 at 131.
194 1953 SCR 1169. :
 82

institutional immunity. The; unique power to punish for contempt of itself

inheres in a court qua courts in its essential roe of dispenser of pubic justice.

The phrase logical image projected by the catena of expressions like Court,

course of justice, administration of justice, civil and criminal proceedings,

judicial proceedings, merits of any case, presiding hfficer of the Court, judicial

proceeding before a court sitting in chamber or in camera, undertaking given

to a court, substantial interference with the due course ofjustice, etc, occurring

in the various sections of the Act, the very conspectus of the statutory

provisions and the methods and raison d’etre of the jurisdiction persuade us to

the conclusion that the text of the act must take its colour from the general
/

context and confine the contempt power to the judicial cum para-judicial areas

including those administrative functions as are intimately associated with the

exercise ofjudicial power.”

Distinguishing defamation from contempt Justice Mukherjee in

Sharma’s case195 observed that when attacks or comments are made oh judge
or Judges, disparaging in character and derogatory to their dignity, case should
be taken to distinguish between what is a libel on judge and what amounts
really to contempt of court.
The positions is that a defamatory attack on a judge may be a libel so
!

far as the judge is connected and it would be open to him to proceed against
i .

the libellor in a proper section if he so chooses. If however, the publication of

the disparaging statement is calculated to interfere with the due course of
justice or proper administration of law by such courts, it can be punished
summarily as contempt. One is a wrong done, to the judge personally while
other is a wrong done to the public. , i

Id. at p. 1179.
 83

In case of B.M. Khodade v. Kumar Saptarshi respondents, a social

s' ■ ..

work in a press conference ^making allegation of corruption against Deputy

Charity commissioner had passed order in Scheme application after taking

j :

money-It is contempt of Deputy Charity commissioner of such nature that it

substantially interferes or tends substantially to interfere with due course of

justice and consequently respondent deserved to be punished-Respondent not

entitled to protection of S. 6 because it is a defamation.196

The concept of contempt of court has evolved gradually. It has very

important role to play in the administration of Justice. Its object is not to

protect corrupt 'Judges but to maintain independence of Judiciary. However,

the contempt jurisdiction being of extra ordinary' nature should be sparingly

used by the courts.

196
2007 Cri. L.J. 571 (Bombay HC).