What Contempt of Court Is, and Where the Power Comes From

The power can reach where the Act does not. That is what Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176, (1991) 4 SCC 406, decided 11 September 1991 by K.N. Singh, Kuldip Singh and N.M. Kasliwal JJ, decides.

Facts. A Chief Judicial Magistrate at Nadiad was assaulted, handcuffed and tied with a rope by police officers, and photographed in that condition. Proceedings were brought in the Supreme Court.

Held. The Supreme Court, as a court of record under Article 129, has the power to punish for contempt not only of itself but of the whole judiciary including subordinate courts, and that power is not derived from, and cannot be limited by, the Contempt of Courts Act 1971.

A student who thinks the Act is the source of the power cannot explain how the Supreme Court punished a contempt of a Magistrate's court, because the Act gives that jurisdiction to the High Court by section 10.

What the Act says about itself

The Act confirms the position in three places, and quoting them is what makes an answer solid.

Section 22: "The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law relating to contempt of courts."

Section 9: "Nothing contained in this Act shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which would not be so punishable apart from this Act."

Section 8: "Nothing contained in this Act shall be construed as implying that any other defence which would have been a valid defence in any proceedings for contempt of court has ceased to be available merely by reason of the provisions of this Act."

Read together: the Act adds to the law, it does not enlarge what is contempt, and it does not remove defences that existed before. That is the profile of a regulating statute, not a creating one.

Section 24 repeals the Contempt of Courts Act 1952, which the 1971 Act replaced.

Why the Act was passed

The Statement of Objects and Reasons is worth a sentence in an answer.

It records that the existing law was felt to be "somewhat uncertain, undefined and unsatisfactory", that the jurisdiction touches two fundamental rights of the citizen, the right to personal liberty and the right to freedom of expression, and that the whole law was therefore examined by a committee set up in 1961 under the chairmanship of H.N. Sanyal, then Additional Solicitor-General. The Bill gave effect to the accepted recommendations of the Sanyal Committee, which took due note of the importance given to freedom of speech in the Constitution and of the need to safeguard the status and dignity of courts.

So the Act's purpose was to define and confine an uncertain inherent power, in the interest of liberty and free speech.

What contempt is, in outline

Section 2(a): "'contempt of court' means civil contempt or criminal contempt."

That is the whole scheme in one line, and the two limbs are the next two chapters.

Civil contempt, section 2(b), is wilful disobedience to a judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking given to a court.

Criminal contempt, section 2(c), is the publication of any matter or the doing of any other act which scandalises the court, prejudices or interferes with a judicial proceeding, or obstructs the administration of justice in any other manner.

Section 2(d) defines "High Court" as the High Court for a State or Union territory, including the court of the Judicial Commissioner in any Union territory.

What the jurisdiction protects

This is the proposition every good answer on contempt contains, and it comes up again in every later chapter.

Contempt protects the administration of justice, not the dignity of the individual judge. A judge who is personally insulted outside court has the remedies any citizen has. What contempt addresses is conduct that impairs the working of the courts: orders that are flouted, proceedings that are prejudiced, witnesses that are frightened, and public confidence that is destroyed.

E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, AIR 1970 SC 2015, decided 31 July 1970 by M. Hidayatullah CJ with G.K. Mitter and A.N. Ray JJ, is the case that says so. The Chief Minister of Kerala had said at a press conference that judges are guided and dominated by class hatred and class interests, instinctively favour the rich against the poor, and that the judiciary is an instrument of oppression. The Court held that it amounted to criminal contempt by scandalising the court, that his plea of expounding a Marxist theory of the State did not save him, and that the law of contempt protects the administration of justice rather than the personal dignity of judges, an attack of that kind on the judiciary as an institution lowering its authority in the eyes of the public. The fine imposed by the High Court was reduced.

The two fundamental rights in tension

MU's topic is "the Contempt Law and Practice", and an examiner may ask for the balance.

Article 19(1)(a) guarantees freedom of speech and expression, subject to reasonable restrictions under Article 19(2), which expressly names contempt of court as a ground.

Article 21 guarantees personal liberty, and contempt can end in imprisonment.

So the jurisdiction sits on top of two fundamental rights, which is why the Act contains so many provisions saying what is not contempt: sections 3 to 9 and section 13, dealt with in chapter [What Is Not Contempt: Sections 3 to 9 and Section 13]. Those sections are the statutory expression of the balance the Sanyal Committee was asked to strike.

A worked example

Four incidents, and the question in each is where the power comes from.

One. A litigant disobeys a High Court injunction. The High Court proceeds. Its power is Article 215 as a court of record, regulated by the Act, and the contempt is civil under section 2(b).

Two. A newspaper publishes an article alleging that a High Court judge decided a pending case for money. The High Court proceeds for criminal contempt under section 2(c)(i) and (ii). Again the power is Article 215.

Three. Police officers assault and handcuff a Chief Judicial Magistrate. The Supreme Court proceeds. Its power is Article 129, and on Delhi Judicial Service Association it extends to contempt of the whole judiciary including subordinate courts, and is not limited by the Act, which would otherwise have sent the matter to the High Court under section 10.

Four. Somebody argues that because no section of the Act names the conduct, it cannot be contempt. Section 9 is the answer in one direction: the Act does not enlarge what is contempt. But the Articles are the answer in the other: the power is inherent in a court of record, and section 22 says the Act is in addition to and not in derogation of other law.

Change one fact. Suppose Parliament amended the Act to abolish the contempt jurisdiction. It could not achieve that, because the power is conferred by Articles 129 and 215 and an ordinary law cannot take away what the Constitution confers. What Parliament can do, and has done in section 12(2), is cap the punishment.

What beginners get wrong

The Act does not create the power. Articles 129 and 215 confirm an inherent power of a court of record.

"Court of record" is not merely about keeping records. It carries the contempt power with it.

Article 142(2) is subject to Parliament; Articles 129 and 215 are not.

Contempt protects the administration of justice, not a judge's dignity.

Section 9 does not narrow the offence. It says the Act does not enlarge it.

Section 22 is an addition clause, not an exclusive code clause.

Quick revision

• Article 129: the Supreme Court is a court of record with all the powers of such a court including the power to punish for contempt of itself. Article 215: the same for every High Court.
• Article 142(2): subject to any law made by Parliament, the Supreme Court has, as respects the whole of India, all and every power to secure attendance, discovery or production, and the investigation or punishment of any contempt of itself.
• The Act regulates, it does not confer: section 22, in addition to and not in derogation of other law; section 9, does not enlarge what is contempt; section 8, does not remove pre-existing defences; section 24, repeals the Contempt of Courts Act 1952.
• Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 2176: a Chief Judicial Magistrate at Nadiad assaulted, handcuffed and tied with a rope by police; the Supreme Court under Article 129 may punish contempt of the whole judiciary including subordinate courts, a power not derived from and not limited by the Act.
• Section 2(a): contempt means civil or criminal contempt. Section 2(d) defines High Court.
• Purpose: the Statement of Objects and Reasons records the law was uncertain, undefined and unsatisfactory, that the jurisdiction touches personal liberty and freedom of expression, and that the Act gives effect to the Sanyal Committee of 1961.
• Namboodiripad: the law of contempt protects the administration of justice, not the personal dignity of judges.

Test yourself

1. What do Articles 129 and 215 say, and what is the significance of the word "including"? That the Supreme Court and every High Court shall be courts of record and shall have all the powers of such a court including the power to punish for contempt of itself. "Including" shows that the contempt power is named as one of the powers a court of record already has, so the Articles confirm an inherent power rather than creating a new one.

2. Does the Contempt of Courts Act 1971 create the power to punish for contempt? No. Section 22 provides that the Act is in addition to and not in derogation of other law relating to contempt, and section 9 that nothing in the Act implies that any act is punishable as contempt which would not be punishable apart from the Act. The Act regulates and confines the power.

3. How could the Supreme Court punish a contempt of a Magistrate's court? Because under Article 129, as a court of record, its power extends to contempt of the whole judiciary including subordinate courts, and that power is not derived from and cannot be limited by the Act. That was decided in Delhi Judicial Service Association v. State of Gujarat, where a Chief Judicial Magistrate had been assaulted, handcuffed and tied with a rope by police officers.

4. What does the contempt jurisdiction protect? The administration of justice, not the personal dignity of judges. Namboodiripad so holds, treating an attack on the judiciary as an institution as contempt because it lowers its authority in the eyes of the public.

5. Which committee's recommendations does the Act give effect to, and why was it set up? The Sanyal Committee, set up in 1961 under the chairmanship of H.N. Sanyal, then Additional Solicitor-General, because the existing law was felt to be uncertain, undefined and unsatisfactory and because the jurisdiction touches the citizen's right to personal liberty and right to freedom of expression.

6. Can Parliament abolish the contempt jurisdiction by amending the Act? No. The power is conferred by Articles 129 and 215 of the Constitution and an ordinary law cannot take away what the Constitution confers. Parliament can regulate procedure and cap the punishment, as section 12 does, and Article 142(2) is itself expressed to be subject to any law made by Parliament, but Articles 129 and 215 are not.