Civil Contempt: Section 2(b)
Chapter Forty-Eight
Syllabus topic 4.1 Contempt of Courts Act, 1971
Pages 256 to 260 of 355
In one line
Civil contempt is deliberately disobeying a court's order, or breaking a promise made to a court.
In exam wording: section 2(b) of the Contempt of Courts Act 1971 defines civil contempt as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking given to a court.
The definition
Section 2(b): "'civil contempt' means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court."
The definition has two limbs, and each has three elements. Set them out and most problems answer themselves.
| Limb one | Limb two | |
|---|---|---|
| The act | disobedience | breach |
| The mental element | wilful | wilful |
| The thing | a judgment, decree, direction, order, writ or other process of a court | an undertaking given to a court |
"Wilful" is the whole of the mental element
This is where civil contempt cases are won and lost, and a student who can only say "disobedience" will lose the question.
Wilful means deliberate and intentional. The contemnor knew of the order, understood what it required, and chose not to comply.
It is not made out by:
- inability, where the person genuinely cannot comply, for instance because the property has been sold to a third party or the money does not exist;
- a bona fide misunderstanding of an order that is genuinely ambiguous;
- accident or oversight, without more, though repeated oversight begins to look deliberate;
- compliance that is late but genuine, though delay may be evidence of wilfulness.
It is made out by knowledge plus a decision not to comply, including compliance in form while defeating the order in substance, which is sometimes called disobedience in spirit.
The reason for the requirement is the one in chapter [What Contempt of Court Is, and Where the Power Comes From]: contempt can end in imprisonment and touches personal liberty under Article 21, so the Act sets a high mental threshold.
What can be disobeyed: the six words
"Judgment, decree, direction, order, writ or other process of a court."
The list is wide on purpose, and two of its words are worth pausing on.
"Direction." Not every judicial command is a formal order. A direction given in the course of a hearing, if clear, is within the definition.
"Or other process." A residuary phrase catching summonses, warrants and the like.
The order must be one of a court, and it must be in force. An order that has been stayed, set aside or has expired cannot be disobeyed.
And the order must be clear. A person cannot wilfully disobey a command he cannot understand. Where an order is ambiguous, the ambiguity tells against wilfulness, which is why applicants for injunctions are well advised to ask for orders in specific terms.
Civil Contempt: Section 2(b)
The second limb: undertakings
"Wilful breach of an undertaking given to a court."
An undertaking is a promise made to the court, usually by a party through counsel, on the faith of which the court refrains from making an order. A defendant says he will not alienate the property; the court accordingly does not grant an injunction.
Why breaking it is contempt. Because the court acted on it. Had the undertaking not been given, the court would have made an order, and the party obtained an advantage from the promise. Breaking it is therefore not a mere breach of contract but an interference with the court's own process.
Note the difference from limb one. In limb one the court commanded; in limb two the party promised. That is why an undertaking is described as being given to the court and not to the other side, and why the other side's consent does not release it: only the court can.
Section 12(4) and (5) show how seriously the Act treats undertakings by companies, and they are dealt with in chapter [Punishment for Contempt: Section 12].
Civil contempt compared with criminal contempt
| Civil, section 2(b) | Criminal, section 2(c) | |
|---|---|---|
| Nature of the wrong | disobedience of an order; a wrong to the party who obtained it, and to the court | interference with justice itself; a wrong to the public |
| Who is affected | usually an identified party with a right under the order | the administration of justice generally |
| Mental element | wilful disobedience or breach | the doing of the act; the three limbs each carry their own test |
| Typical purpose of the proceeding | to enforce the order and secure compliance | to punish and to vindicate the authority of the court |
| Punishment | section 12(1), and by section 12(3) detention in a civil prison where a fine will not meet the ends of justice | section 12(1), simple imprisonment, fine, or both |
| Can it be purged by compliance? | usually yes, since the object is compliance | an apology under the proviso to section 12(1) is the route |
Section 12(3) is the provision that marks civil contempt out: "Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit."
So a civil contemnor who must be imprisoned goes to a civil prison, not to ordinary imprisonment, and for not more than six months. That distinction is examinable and is often missed.
Civil Contempt: Section 2(b)
The limitation point
Section 20: "No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed."
This applies to civil contempt as it does to criminal. Where an order has been disobeyed continuously, the question when the contempt was "committed" matters, and the leading case is Pallav Sheth v. Custodian, AIR 2001 SC 2763, which examined when the one-year period begins to run and what amounts to initiation for that purpose. Chapter [Contempt Procedure: Sections 14, 15, 17, 18 and 20] takes it up.
A worked example
On 3 January a civil court restrains Mr Rane from "transferring, alienating or creating any third-party rights in the suit property" until further orders. Six things follow.
On 20 January he sells the property. Knowledge plus a deliberate act contrary to the order. That is wilful disobedience within section 2(b), and it is civil contempt.
He says he had not been served with the order. If true, that answers wilfulness: he cannot deliberately disobey what he does not know of. The applicant must therefore prove knowledge, which service ordinarily supplies.
He says he thought "creating third-party rights" did not cover an outright sale. A bona fide misunderstanding of a genuinely ambiguous order tells against wilfulness. But this order says "transferring, alienating or creating any third-party rights", which is not ambiguous, so the defence fails.
He instead grants a thirty-year lease, saying he has not sold anything. Compliance in form, defeat in substance. A lease creates third-party rights and is within the order's terms.
In a different matter he had told the court through counsel that he would not part with possession, and the court therefore refused an injunction. He then parts with possession. That is limb two: wilful breach of an undertaking given to a court. The other side's later agreement does not release him, because the undertaking was given to the court.
What punishment? Section 12(1) allows simple imprisonment up to six months, a fine up to two thousand rupees, or both. But this being civil contempt, if the court considers a fine will not meet the ends of justice and imprisonment is necessary, section 12(3) requires detention in a civil prison for not more than six months instead of simple imprisonment.
And the time limit? By section 20 no proceeding may be initiated after one year from the date the contempt is alleged to have been committed.
Civil Contempt: Section 2(b)
What beginners get wrong
Disobedience alone is not enough. It must be wilful.
Inability is a defence, because it negatives wilfulness.
An undertaking is given to the court, so the opposite party cannot waive it.
Civil contempt is not confined to decrees. Directions, writs and other process are included.
A civil contemnor goes to a civil prison under section 12(3), not to ordinary imprisonment.
Section 20 applies to civil contempt too.
Quick revision
- Section 2(b): civil contempt is (i) wilful disobedience to any judgment, decree, direction, order, writ or other process of a court, or (ii) wilful breach of an undertaking given to a court.
- Wilful means deliberate and intentional: knowledge of the order plus a decision not to comply. Not made out by inability, a bona fide misunderstanding of an ambiguous order, or mere accident.
- The order must be of a court, in force, and clear.
- An undertaking is a promise on the faith of which the court refrained from making an order; it is given to the court, so the other party cannot release it.
- Civil contempt wrongs the party who holds the order and the court; criminal contempt wrongs the administration of justice.
- Section 12(3): a civil contemnor who must be imprisoned is detained in a civil prison for not more than six months, instead of simple imprisonment.
- Section 20: no proceeding may be initiated after one year from the date the contempt is alleged to have been committed.
Test yourself
1. State the definition of civil contempt. Wilful disobedience to any judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking given to a court.
2. What is the significance of the word "wilful"? It supplies the mental element. The contemnor must have known of the order, understood what it required, and deliberately chosen not to comply. Inability to comply, a bona fide misunderstanding of a genuinely ambiguous order, or mere accident will not do, and the requirement exists because contempt touches personal liberty.
3. Why is breaking an undertaking contempt rather than merely a broken promise? Because the undertaking is given to the court, and the court acts on it, typically by refraining from making an order the party would otherwise have faced. The party obtains an advantage from the promise, so breaking it interferes with the court's own process. Only the court, and not the opposite party, can release it.
4. How does imprisonment differ between civil and criminal contempt? Section 12(3) provides that where a person is found guilty of civil contempt and the court considers a fine will not meet the ends of justice and imprisonment is necessary, it shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for a period not exceeding six months.
Civil Contempt: Section 2(b)
5. A defendant complies with the letter of an injunction but defeats its purpose. Is that civil contempt? It can be. Compliance in form while defeating the order in substance is disobedience in spirit, and where the terms of the order cover what was done, as where an order restraining the creation of third-party rights is met by granting a long lease, the disobedience is wilful.
6. Does any time limit apply? Yes. Section 20 bars any court from initiating contempt proceedings, on its own motion or otherwise, after the expiry of one year from the date on which the contempt is alleged to have been committed, and it applies to civil contempt as well as criminal.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself for the same subject.