INTRODUCTION
Rule of Law is the basic principle of
governance of any civilized and democratic society. The principle asserts
supremacy of law bringing under its purview everyone, individuals and
institutions at par without any subjective discretion. There can be no Rule of
Law unless the bulwark of that grand concept „the Court of Justice‟ is kept
alive at institutions breathing freedom, openness and justice. No society can
exist without laws and laws have no meaning, if they can not be enforced. It is
through the Courts that the rule of law reveals its meaningful content.
The
judiciary is the guardian of the Rule of Law. Hence judiciary is not the third
pillar but the central pillar of the democratic state. An independent or
impartial Judiciary is the sine qua non of a healthy society. It is the last resort for the common people of
a country, as they repose their ultimate faith in it to get justice. Therefore,
it is essential for the Judiciary to be protected from all sorts of evil likely
to affect the administration of justice.
For better protection and preservation of prestige and dignity of the
courts, the law on contempt of court has evolved. So, broadly speaking, this
law helps the courts in discharging justice keeping its stand supreme in the
eye of society. Actually this law aims at ensuring the administration of
justice by courts in the society.
The
law of contempt is based on the sound public confidence in the administration
of justice. The purpose of contempt jurisdiction is to uphold the majesty and
dignity of law courts and their image in the minds of the public at large. The
essence of contempt is action or inaction amounting to an interference with or
obstruction to or having a tendency to interfere with or to obstruct the due
Administration of Justice. Lowering the dignity of the court or shaking
confidence of the public in it is undoubtedly reprehensible.
1.
Contempt of Court
Contempt of court is the offense of being disobedient to or
disrespectful towards a court of law and its officers in the form of behavior
that opposes or defies authority, justice, and dignity of the court. It manifests itself in willful
disregard of or disrespect for the authority of a court of law, which is often
behavior that is illegal because it does not obey or respect the rules of a law
court.
Sec.
2 (a) of the contempt of court act says, contempt of court mean civil contempt
or criminal contempt. The Act does not define the term Contempt of Court but
simply says that there are two kinds of contempt of co
urt,
first is civil contempt and the second
one is criminal contempt of court. In Queen v. Gray, it was held that
the law relating to contempt of court is well settled as act done or writing
published which is calculated to bring a court or a judge into contempt, or to
lower his authority, or to interfere with the due course of justice or the
lawful process of the Court, is a contempt of court.
2.
CIVIL
CONTEMPT OF COURT
Sec.
2 (b) defines civil contempt as willful & deliberates disobedience of the
order, decree etc, on breach of undertaking given to the Court.
From
the above definition it can be gathered that the following are 2 ingredients of
civil contempt which are required to be provide:-
1. Disobedience
of the order, decree etc. of the court or breach of any undertaking of the
court.
2. The
disobedience or breach must be willful deliberate or intentional.
I.
Disobedience
of the order
There
must be disobedience of the order decree etc. of the court or breach of any
undertaking of the court. Order of the court includes all kinds of orders(Final
order, ex-part order, Interim order, Consent order).
In
case of Dr. H. Phunendra Singh vs. K.K.
Sethi the S.C. held that in absence of stay order in appeal or execution of
the higher Court the order appealed against should be complied with subject to
an order passed at later stage otherwise it is open for the contempt court to
provide further on merits of the contempt case. Mere pendency of the appeal or
revision without there being any stay order pass by the High Court will not
entitle the contemnor to avoid the compliance of the order.
However, in case of interim
order/stay order a diff. view has been taken by the Supreme Court in case of J & K vs. Mohd. Yakub Khan.
The Court has held that where stay vacation application has been promptly filed
by the applicant against when the stay order has been passed & the same is
pending for disposal, the contempt court should not proceeds in the contempt
case unless & untill the stay vacation application is decided.
So far as the breach of undertaking
as contempt of court is concerned the basis behind this is that the contemnor
obtains a beneficial order for himself from the court by giving an undertaking
& if he fails to honour the undertaking at a later stage, he plays serious
fraud on the court & there by interferes with the administration of
justice.
II.
Disobedience
must be intentional
The
disobedience or breach of the order of the court is not sufficient to
constitute civil contempt. The disobedience or breach must be willful
deliberate or intentional. The power of contempt cannot be used unless the
court is satisfied beyond doubt that the contemnor has willfully intentionally
deliberately violated the order of the Court.
No
court including contempt of court in entitled to take trivialities &
technicalities into account, while finding fault with the conduct of the person
against whom contempt proceeding in taken.
If
the order has been substantially complied with and a reasonable explanation has
been given for the delay in compliance of the order the contempt will not lie
because the violation is not willful & deliberate.
3. CRIMINAL
CONTEMPT OF COURT
Criminal
contempt has been defined by Sec. 2 (c) it provides that 'Criminal contempt' means the publication
(whether by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other act
whatsoever which:
(i)
Scandalizes or lowers the authority of
any court.
(ii)
Prejudices or interfere or tends to prejudice
or interfere with the due course of any judicial proceedings.
(iii)
Interferes or tends to interfere with
administration or justice in any other manner.
From
the above definitions it can be gathered that following are the four essential
ingredient of Criminal Contempt-
(1) Publication or doing of any act
The word publication has been given a
very wide meaning so far as the court of contempt in concern. It includes words
(spoken or written), sign and visible representation. It also includes the
publication of any mentioned in the newspaper and magazine, broadcasting and
the exhibition of any thing in cinemas. If these materials contain anything
which scandalizes on lowers or tends to scandalize or lowers the authority of
any court or prejudices or interferes with the due course of any judicial
proceeding on tends to interferes with the administration of justice it will
amount to criminal contempt of the court.
(2) Scandalizing or lowering the
authority of the court
Scandalising
might manifest itself in various ways. But in substance it is an attack on an
individual judge in particular or the court as a whole with or without reference
to a particular case by casting unwarranted and defamatory persons upon the
character or ability of the judges. Such conduct is punishable as a criminal
contempt for the reason that it tends to create distrust in the mind of the
common people and there by shatter the confidence of the people in the
judiciary.
In case of Arundhati Roy Supreme Court made it clear that criticism which
undermines the dignity of the court cannot be said to be fair criticism and
cannot be permitted under the garb freedom of speech and expression as guaranteed
by art. 19(1) (a) of the Constitution of India. Thus prosecution of person for
scandalizing the court is not prohibited by constitutional right or freedom of
speech and expression under Art. 19(1)(a).
In case of Dr. D.C. Saxena vs. C.J.I Supreme court made it clear that writing/drafting
in pleadings or petitions by which defamatory allegation has been labeled against
the judge in particulars or a court as a whole would amount to criminal
contempt.
(3) Prejudice on interference with
the due course of any judicial proceeding (Media Trial)
Publication which prejudices or
interferes with due course of any judicial proceeding is also taken as criminal
contempt of court. Media trial (a trial by newspaper) is not consider proper because
it affect fairness of trial and is likely to cause interference with the
administration of justice. Even in England & U.S. Media trial is considered
to be wrong and it taken as contempt of court Act. The knowledge of pendency of
the case and reasonable ground to believe that the case is pending is
sufficient to make out criminal contempt and intention and motive of the
publication behind the publication is not relevant for the purpose of the
criminal contempt. If it lowers the authority of the court a case of criminal
contempt is made out.
The pendency in civil cases starts
with the filing of the plaint and in criminal cases with the filing of charge
sheet or issuance of summons or warrant. Pendency continued till the case is
decided. In case of appeal or revision is filed, pendency continued till the
appeal or revision is decided. If the appeal or revision is not filed, the
pendency is continued till the period of limitation for filing the same has not
replied.
(4) Interference or obstruction
with administration of justice in any other manner
The publication or doing of any act
which interferes or obstructs or tends to interfere or obstruct in the administration
of Justice in any other manner, is taken as a criminal court of contempt. This
clause is a residuary clause as it cover those cases of criminal contempt which
are not extremely covered by sub. Clauses (i) & (ii) of Sec. 2(c) of the
Act. The term administration of justice is much wider than the terms court of
judicial proceedings. Every person in India is entitle to approach the court in
order to secure justice and for the redressal of grievances and the court has
to decide the dispute between the parties as per the law of equity. Any conduct
which tends to prevent or actually prevent a party to approach the courts
amounts to criminal court of contempt.
An
advocate is an officer of the court and therefore undue interference with the
advocate in the discharge of his professional functions amounts to criminal contempt
of court. Casting as person on counsels or approaching him for not defending a
particular person amount to criminal contempt of court.
The
difference between civil and criminal contempt
Following
are the three difference b/w civil and criminal contempt:-
1.
Civil contempt includes willful
and deliberate disobedience of the order or undertaking given to the court,
where as criminal contempt involves & the defamation and insult of the
court directly. There is neither any order nor willful violation there of in
criminal contempt.
2.
Civil Contempt is a serious
matter as the order obtain by one party against the other is disobeyed but
criminal contempt is more serious as it involves scandalizing or insulting the
court directly and thereby shaking the confidence not only of the litigating
parties but the general public as a whole.
3.
In Civil contempt private
parties have interest because order obtain by one party against other is not
complied with and one party is interested in getting the order complied with.
Whereas in criminal contempt private Parties have little or no interest for the
reason that criminal contempt is directed against the dignity of the court and
it is a crime against public at large.
Period
of Limitation
Sec. 20 Provides that no court shall
initiate contempt proceeding either on its own motion or otherwise after the
expiring of one year from the date on which contempt is alleged to have been
committed. The period of limitation is applicable both in civil as well as in
criminal contempt.
In criminal contempt, contempt alleged
to have been committed the moment scandalisation of court or interference with
administration of justice takes place. Consequently the limitation of period
immediately running but in case of civil contempt the period of limitation does
not start from the date of the order, it starts running after the expiry of
period mention in the order after service or certified copy of the order upon
the other side. If no time limit in mention in the order, the order should be
complied with within reasonable period. The term reasonable period has been
interpreted to be a period of 3 month from the date of service or certified
copies.
DEFENCES IN
CIVIL CONTEMPT:
Following defenses can be taken by an alleged
contemnor in civil contempt:-
1. No
knowledge of order: The general principle is that
a person cannot be held a guilty of contempt in respect an order of which he
claims to be unaware. It can be successfully placed as a defense that certified
copy of order was not formally served on the alleged contemnor.
2. Disobedience or breach was not
willful: It can be pleaded that although disobedience or
breach of order has taken place but it was neither willful nor intentional and
it was due to accidental, administration or other reasons beyond the control of
the party concern.
3. Order Disobeyed
is vague & Ambiguous: If
the order whose contempt is alleged to have been committed is vague or
ambiguous it would be a defense that the order cannot be complied with as it is
not specific.
4. Order involves more than one
reasonable interpretation: If the order
whose contempt is alleged to have been committed involves more than one
reasonable and rational interpretation and respondent adopts one of them and
acts in accordance with one such interpretation, he cannot be held liable for
contempt of court.
5. The compliance of the order is impossible- In proceedings for civil contempt it would be a
valid defense that the compliance of the order is impossible. However the cases
of impossibility must be distinguished from the cases of mere difficulty.
In case of Amar Singh vs. K.P. Gita Krishnan the court granted certain pensionary benefits to a
large number of retired employees with effect from a particular back date. The
plea of impossibility was taken on the ground that the implementation of the
order would result in heavy financial burden on the exchequer.
The plea of impossibility was
rejected by the court with the object that although it is difficult to comply
with the order but it is not impossible to comply with & therefore it
should be complied with.
6. The order has been passed without
jurisdiction: If
the order whose contempt is alleged has been committed by a court which had no
jurisdiction to pass it. Disobedience or violation of that order would not amount
to contempt of court for the reason that the order passed without jurisdiction
is a void order & a void order binds nobody.
DEFENSES Available in Criminal Contempt
Section 3 to 7
of the contempt of court act; deal with the defenses available in criminal
contempt. These defenses can be categories in the following categories.
1. Innocent
publication and distribution of matter-
Sec. 3 deals with this defense.
If criminal contempt proceeding is initiated against a person on the ground
that he is responsible for publication or for distribution of publications
which prejudices or interferes with the pending proceedings. The contemnor may
take the following pleas:
a.
Under sec. 3(1) he may plead that
at the time of publication he had no reasonable ground for believing that the
proceeding was pending.
b.
He may plead under sec. 3(2)
that at the time of publication, no such proceeding was pending.
c.
He may plead us/ 3(3) that at
the time of distribution or publication he had no reasonable ground for believing
that the matter (published or distributed by him) contained or was likely to
contain any material which interfere on obstructed the pending proceeding or
administration of justice.
2. FAIR AND
ACCURATE REPORTS OF JUDICIAL PRECEDENCE
Sec. 4 of the Act provides that the person shall
not be guilty of contempt of court for publishing a fair and accurate report of
a judicial proceeding at any stage.
Sec. 7
of the Act provides exception to the general principle that justice should be
administered in public. Sub. sec. 1 and 2 of sec. 7 provide that a person shall
not be guilty of contempt of court for publishing the text or for publishing
fair and accurate summary of the whole or any part of the order made by the
court in chamber. Unless the court has expressly prohibited the publication of
the proceedings on the following grounds: (a) public policy (b) public order (c)
security of the state (d) information relating to a recruit process, discovery
or invention or in service of the power vested in it.
3.
FAIR CRITICISM OF THE JUDICIAL ACTIVISM
Sec. 5 provides that the person shall not be
guilty of criminal contempt for publishing any fair comment on the merits of
any case which has been finally decided. The statement should come from the
mouth of a knowledge person in the field of law and not from a litigating party
which has lost the case. In short fair criticism means that criticism which
while criticizing the act of the judge does not include any alterior motive to
him.
6.
BONAFIDE COMPLAINT
Sec.
6 provides that a person shall not be guilty of
contempt of court in respect of any statement made by him by way of compliant
in good faith concerning the presiding officer of any subordinate court to the
High Court or to the court to which he is subordinate.
7.
NO SUBSTANTIAL INTERFERENCE WITH DUE
COURSE OF JUSTICE
By contempt of court Amendment
Act, 2006, a new section 13 has been substituted in place of existing section
13. This new Sec. 13 provides that notwithstanding contain anything in law for
the time being in force, no court shall impose a sentence for contempt of court
unless it is satisfied that the contempt is of such nature that it substantially
interferes or tends to interfere with the due course of justice. There should
be real and actual interference with the due course of justice.
8. Truth
The amended section 13 (2)
provides that the court may permit justification by truth as a valid defense in
any proceeding for criminal contempt if it is satisfied that it is in a public
interest.
9.
Defamation of the Judge Personally
If the publication or other Act
in merely a defamatory attack on the judge and is not intended to interfere
with the administration of justice, it will not be taken as contempt of court. The
statement complained of may amount to contempt of court only when it is made
against the judge in his judicial capacity in the exercise of his judicial
function. However, in such a situation
a judge is not remedy less and he has the same remedies available which are
available to a common man in case of defamation.
Punishment
under the contempt of court Act 1971 & Remedies against the order of the
court
Section 12(a) says that save as otherwise
expressly provided in this Act or in any other law, a contempt of court shall
be punished with simple impermanent for a term which may extend to six months
or with fine which may extend to two thousand rupees or with both. Provided
that the accused of contempt may be discharged or the punishment awarded may be
remitted on an apology being made to the satisfaction of the Court. An apology shall not be rejected
merely on the ground that it is qualified or conditional if the accused makes
it bonafidely.
Where a person in found guilty of
civil contempt & the court is of the option that imposing fine alone will
not amount the end of justice & it is necessary to impose a sentence of
impressments, the court may direct that he may be detained in civil prison
instead of sentencing him simple imprisonment for such period not exceeding 6
month as it may think fit.
Where
the person found guilty of contempt of court on it respect of violation of any
undertaking given to court in a company, every such person, who was when in charge
of the company at the time when the contempt was committed shall be deemed to
be guilty of contempt and the punishment may be enforced with the leave of the
court by detention in civil prison of each such person. Provided that nothing
contained in this sub-section shall render any such person liable to the
punishment if he proves that the contempt was committed without his knowledge
or that he exercised all due diligence to prevent its commission.
Conclusion
The
contempt power in a democracy is only to enable the court to function
effectively, and not to protect the self-esteem of an individual judge. The
foundation of judiciary is based on the trust and the confidence of the people
in its ability to deliver fearless and impartial justice. When the foundation
itself is shaken by acts which tend to create disaffection and disrespect for
the authority of the court by disrupting its working, the edifice of the
judicial system gets eroded. Judiciary by punishing the guilty infuses faith in
the supremacy of law and omnipotence of justice. Every offender is to be
punished for contumacious acts under the relevant contempt laws, but it is
extremely important to make it sure by the judiciary that these provisions are
not to be misused.
It
can be adequately inferred that the Contempt of Courts Act, 1971 is of
paramount importance in the context of sustaining the concept of justice. It
aides to make the process of administering justice expeditious as well as
upholds the dignity and faith the people have bestowed in the judicial system
of the country. In itself, it abstains from any form of arbitrariness. It gives
every organization or individual charged under the act reasonable grounds to
defend it or himself, as the case may be. The restrictions, it imposes, is just
and fair in them. Moreover, it recognizes the equal footing of all people in
the country by bringing the judiciary and its officials within its ambit.
During
the course of discussion it has been found several loopholes/contradictions in
the provisions of the Contempt of Courts Act, 1971. So it is submitted that for
the desired results these loopholes should be pleased by making necessary
amendments in the Contempt of Courts Act, 1971.
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