Punishment for Contempt: Section 12

Three points.

It applies only to civil contempt.

It is mandatory once the conditions are met: the word is shall. Where the court considers a fine insufficient and imprisonment necessary, it must direct detention in a civil prison rather than pass a sentence of simple imprisonment.

The maximum is the same, six months.

The reason for the distinction is that civil contempt is disobedience of an order made for a party's benefit, and the object is compliance rather than punishment, so the contemnor is treated as a civil debtor is treated rather than as a criminal.

Section 12(4) and (5): companies

These two sub-sections deal with contempt in respect of an undertaking given to a court where the contemnor is a company, and with contempt by a company generally.

Section 12(4): where the person found guilty of contempt in respect of any undertaking given to a court is a company, then every person who at the time the contempt was committed was in charge of, and was responsible to, the company for the conduct of its business, as well as the company, is deemed to be guilty, and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person.

Proviso: no such person is liable if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.

Section 12(5): notwithstanding sub-section (4), where the contempt by a company is proved to have been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer, that person also is deemed guilty and may be detained in civil prison with the leave of the court.

Explanation: "company" means any body corporate and includes a firm or other association of individuals; and "director", in relation to a firm, means a partner.

This is the standard vicarious-liability structure familiar from other statutes, and the two defences in the proviso to sub-section (4), absence of knowledge and all due diligence, are what a question on it turns on.

Section 13(a): no sentence for trivial contempt

Section 13, substituted by the Contempt of Courts (Amendment) Act 2006, Act 6 of 2006, provides in clause (a) that notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.

Read it with section 12 and the position is: contempt may be found on conduct that merely tends to scandalise or interfere, because that is what section 2(c) says; but a sentence may not be imposed unless the interference is substantial. It is a filter on punishment, and it was Parliament's response to the criticism that the offence was too wide.

The apology, which is where cases are actually decided

The proviso allows the accused to be discharged, or the punishment remitted, "on apology being made to the satisfaction of the Court."

The Explanation is the provision students forget: "An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide."

So the statutory test is bona fides, not form. A conditional apology, honestly meant, is not to be rejected merely for being conditional.

But bona fides is judged by conduct, and the leading modern statement is Vishram Singh Raghubanshi v. State of Uttar Pradesh, AIR 2011 SC 2275, decided 15 June 2011, where an advocate behaved contumaciously towards a court and later tendered an apology. The Court held that an apology is not a weapon of defence to purge a guilty conscience, that it must be sincere and offered at the earliest opportunity, and that an apology tendered only when the contemnor finds the court against him does not attract the proviso.

The contrast case is In Re: Arundhati Roy, AIR 2002 SC 1375, where no apology was tendered and the statements were defended; the Court convicted and imposed simple imprisonment for one day together with a fine. And in Rajendra Sail v. Madhya Pradesh High Court Bar Association, AIR 2005 SC 2473, the Court dealt with the weight to be given to an apology tendered late.

The practical rule, which is what a good answer states: an apology works if it is early, unconditional in substance, and genuine. It fails if it is late, tactical, or offered as an alternative to an argument that has just been lost.

What a sentence actually looks like

The reported cases show how modest the punishments are, which surprises students.

• In Re: Prashant Bhushan, Suo Motu Contempt Petition (Crl.) No. 1 of 2020: convicted 14 August 2020 for two tweets; on 31 August 2020 a fine of one rupee, in default three months' simple imprisonment and debarment from practice for three years.
• In Re: Arundhati Roy: one day's simple imprisonment and a fine.
• Namboodiripad: the fine imposed by the High Court was reduced by the Supreme Court.
• In Re: Vinay Chandra Mishra: six weeks' simple imprisonment suspended for four years, and a suspension of practice which Supreme Court Bar Association v. Union of India later held to be beyond the Court's power in a contempt proceeding.

The pattern is that the finding matters more than the sentence. The jurisdiction exists to vindicate the administration of justice, not to punish severely, and section 13(a) now reinforces that.

A worked example

An advocate, told that his adjournment is refused, shouts at the judge that the court is corrupt and that he will have him transferred, and refuses to sit down until the court rises.

Which contempt? Criminal contempt under section 2(c)(i) and (iii), and it is in the face of the court, so the procedure is section 14, dealt with in chapter [Contempt Procedure: Sections 14, 15, 17, 18 and 20].

What punishment is available? Under section 12(1), simple imprisonment up to six months, a fine up to two thousand rupees, or both. By section 12(2) no court may exceed that, whatever any other law says.

Can the court impose more because the conduct was gross? No. The cap is absolute.

He apologises at once, in open court, unreservedly. The proviso to section 12(1) allows the court to discharge him or remit the punishment on an apology made to its satisfaction. On Vishram Singh Raghubanshi the qualities that matter are sincerity and that it was offered at the earliest opportunity, both of which are present.

Instead, he argues for two days that his words were justified, loses, and then apologises. The Explanation says an apology is not to be rejected merely because it is qualified or conditional if made bona fide, but on Vishram Singh Raghubanshi an apology is not a weapon of defence to purge a guilty conscience and one offered only when the contemnor finds the court against him does not attract the proviso.

Suppose the conduct was trivial, a single muttered remark that nobody but the stenographer heard. Section 13(a) forbids a sentence unless the court is satisfied the contempt substantially interferes, or tends substantially to interfere, with the due course of justice.

Change the facts to a company. A company gave an undertaking to the court not to fell trees on the land and then felled them. Under section 12(4) the company and every person in charge of and responsible to it for the conduct of its business are deemed guilty and may be detained in civil prison with the leave of the court, unless such a person proves the contempt was without his knowledge or that he exercised all due diligence. Under section 12(5), a director, manager, secretary or other officer with whose consent or connivance, or by whose neglect, the contempt was committed is also deemed guilty. By the Explanation, a firm is a company and a partner is a director for this purpose.

What beginners get wrong

The fine is two thousand rupees. It has not been raised.

The imprisonment is simple, not rigorous.

Section 12(2) is an absolute cap, notwithstanding any other law.

A civil contemnor goes to a civil prison under section 12(3), and the word is shall.

A conditional apology is not automatically bad. The Explanation says so; the test is bona fides.

But a late or tactical apology fails. Vishram Singh Raghubanshi.

Section 13(a) bars the sentence, not the finding.

Quick revision

• Section 12(1): simple imprisonment up to six months, fine up to two thousand rupees, or both. Proviso: discharge or remission on apology made to the satisfaction of the Court. Explanation: an apology shall not be rejected merely because it is qualified or conditional if made bona fide.
• Section 12(2): no court may exceed that sentence for contempt of itself or of a subordinate court, notwithstanding any other law.
• Section 12(3): for civil contempt, where a fine will not meet the ends of justice and imprisonment is necessary, the court shall direct detention in a civil prison for not more than six months instead of simple imprisonment.
• Section 12(4): for contempt of an undertaking by a company, the company and every person in charge of and responsible to it are deemed guilty, enforced with the leave of the court by detention in civil prison; proviso, no liability if the person proves absence of knowledge or all due diligence.
• Section 12(5): a director, manager, secretary or other officer with whose consent or connivance or by whose neglect the contempt was committed is also deemed guilty. Explanation: company includes a firm; director in relation to a firm means a partner.
• Section 13(a), from Act 6 of 2006: no sentence unless the contempt substantially interferes or tends substantially to interfere with the due course of justice.
• Apology: Vishram Singh Raghubanshi, not a weapon of defence to purge a guilty conscience, must be sincere and at the earliest opportunity. Arundhati Roy, none tendered, one day's simple imprisonment and a fine. Rajendra Sail, a late apology. Prashant Bhushan, a fine of one rupee.

Test yourself

1. State the punishment for contempt. Simple imprisonment for a term which may extend to six months, or fine which may extend to two thousand rupees, or both, under section 12(1), save as otherwise expressly provided in the Act or in any other law.

2. Can a court exceed that? No. Section 12(2) provides that notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.

3. How is a civil contemnor imprisoned? By detention in a civil prison for a period not exceeding six months, under section 12(3), where the court considers that a fine will not meet the ends of justice and that imprisonment is necessary. The provision is mandatory in those circumstances and displaces a sentence of simple imprisonment.

4. Is a conditional apology always rejected? No. The Explanation to the proviso to section 12(1) provides that an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. The test is good faith rather than form.

5. What did Vishram Singh Raghubanshi say about apologies? That an apology is not a weapon of defence to purge a guilty conscience, that it must be sincere and offered at the earliest opportunity, and that an apology tendered only when the contemnor finds the court against him does not attract the proviso.

6. When may a company's officer be punished for the company's contempt? Under section 12(4), where the contempt is in respect of an undertaking given to a court, every person who at the time was in charge of and responsible to the company for the conduct of its business is deemed guilty, unless he proves the contempt was committed without his knowledge or that he exercised all due diligence. Under section 12(5), a director, manager, secretary or other officer with whose consent or connivance, or by whose neglect, the contempt was committed is also deemed guilty. A firm is a company for this purpose and a partner is a director.

7. What is the effect of section 13(a)? That no court shall impose a sentence under the Act unless satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere, with the due course of justice. It restrains punishment rather than the finding of contempt.