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

In one line

The power to punish for contempt is not given by the Contempt of Courts Act; it belongs to a court of record, and the Constitution confirms it.

In exam wording: Articles 129 and 215 of the Constitution declare the Supreme Court and every High Court to be courts of record having all the powers of such a court including the power to punish for contempt of itself, and the Contempt of Courts Act 1971 regulates rather than confers that power.

Start where MU starts: the Articles

Article 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."

Article 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."

Read the words carefully, because four of them decide questions.

"Shall be a court of record." A court of record is a court whose proceedings are enrolled as a permanent memorial and testimony, and whose records are conclusive evidence of what they contain. Historically, and this is the point, such a court also has the inherent power to punish for contempt of itself.

"Shall have all the powers of such a court." So the Constitution confers the whole bundle that attaches to that status.

"Including the power to punish for contempt of itself." The word is including. The contempt power is named as one instance of the powers of a court of record, not created as something new. That is why the power is spoken of as inherent.

"Of itself." On the face of the Articles the power is over contempt of that court. Chapter [Contempt of Subordinate Courts: Sections 10, 11 and Section 15(2)] deals with how contempt of a subordinate court is reached.

Article 142(2) adds a further power for the Supreme Court: "Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself."

Note the opening words: "subject to the provisions of any law made in this behalf by Parliament". Article 142(2) is expressly subject to Parliament; Articles 129 and 215 are not.

Why the source matters

This is not a technical point, and a student should be able to give two consequences.

The Act cannot take the power away. Because the power is constitutional and inherent, a provision of the Contempt of Courts Act cannot abolish it. The Act can regulate procedure and can limit the punishment, and section 12(2) does exactly that, but it cannot destroy the jurisdiction.