Enforcing the Order: Contempt of Court
Chapter -Five
Syllabus topic 6, "Remedies"
Pages 315 to 317 of 430
In one line
A writ is worth what its enforcement is worth, and what enforces it is the power to send an officer to prison.
In the wording a student can write in an exam: civil contempt is defined by section 2(b) of the Contempt of Courts Act 1971 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; it is punishable under section 12 with simple imprisonment up to six months or a fine up to two thousand rupees, or both, subject to the power to accept an apology.
The provisions
Section 2(a). Contempt of court means civil contempt or criminal contempt.
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.
Section 2(c). Criminal contempt means the publication of any matter or the doing of any other act which scandalises or tends to scandalise or lowers or tends to lower the authority of any court, or prejudices or interferes or tends to interfere with the due course of any judicial proceeding, or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner.
Section 10. The High Court has the same jurisdiction, powers and authority in respect of contempt of courts subordinate to it as it has in respect of contempt of itself.
Section 11. A High Court has jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty is within or outside those limits. For administrative law this matters because the officer who disobeys is often posted at a district headquarters or at a State secretariat far from the seat of the court, and section 11 removes the argument that he is beyond its reach.
Section 12(1). A contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both, with a proviso that the accused may be discharged or the punishment remitted on an apology made to the satisfaction of the court; and an Explanation that an apology shall not be rejected merely because it is qualified or conditional if it is made bona fide.
Section 12(3). Where a person is found guilty of civil contempt and the court considers that a fine will not meet the ends of justice and that imprisonment is necessary, it shall direct that he be detained in a civil prison for a period not exceeding six months.
Enforcing the Order: Contempt of Court
The word that decides most cases: wilful
Disobedience is not contempt unless it is wilful. Three consequences follow, and they are the practical law.
A bona fide misunderstanding of the order is not contempt. If the direction is capable of two readings and the officer adopted one, the proceeding fails.
Impossibility is not contempt. Where funds have not been sanctioned or a statute has intervened, the officer must show what he did rather than merely assert difficulty.
Delay may be contempt. An order to decide within eight weeks, not complied with for a year and with no explanation, is wilful.
The constitutional footing
Article 129 makes the Supreme Court a court of record with all the powers of such a court including the power to punish for contempt of itself, and Article 215 does the same for every High Court. So the power does not depend on the Act; the Act regulates its exercise and prescribes the punishment.
Article 142(2) gives the Supreme Court, subject to any law made by Parliament, 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.
What contempt does for administrative law
It makes a mandamus real. An order directing an authority to decide within a time is enforced by contempt and by nothing else.
It makes a continuing mandamus possible. The public interest jurisdiction described in [How Public Interest Litigation Actually Works] depends on it.
It reaches the officer personally. The State is an abstraction; a secretary who is asked to explain in person, on affidavit, tends to comply.
And it is used sparingly. Courts prefer compliance to punishment, and an unconditional apology with compliance usually ends the matter, which is what the proviso to section 12(1) contemplates.
A worked example
A High Court directs a municipal corporation to decide a shopkeeper's application for the restoration of his licence within eight weeks. Nothing happens for a year. He files a contempt petition against the commissioner.
The order is a direction of a court, so section 2(b) applies. Disobedience is established by the passage of time. Wilfulness is presumed unless explained, and the explanation must be on affidavit and specific. In practice the commissioner will decide the application before the returnable date, tender an apology, and the court will accept it under the proviso to section 12(1) and drop the proceeding, which is exactly the result the shopkeeper wanted.
What this does NOT mean
It does not mean a contempt petition is a way of reopening the case. A party who wants a different order must appeal, not allege contempt.
Enforcing the Order: Contempt of Court
It does not mean the punishment is severe. Six months and two thousand rupees; the value of the jurisdiction is in the summons rather than the sentence.
It does not mean every breach is punished. Wilfulness is essential, and an apology may be accepted.
Quick revision
Section 2(b): civil contempt is wilful disobedience of a judgment, decree, direction, order, writ or other process, or wilful breach of an undertaking. Section 10 gives the High Court the same power over subordinate courts as over itself, and section 11 gives it that jurisdiction whether the contempt or the contemnor is inside or outside its local limits. Section 12 prescribes simple imprisonment up to six months or a fine up to two thousand rupees or both, with an apology bona fide made not to be rejected merely because it is qualified; section 12(3) provides for detention in a civil prison for civil contempt. Articles 129 and 215 make the power constitutional, and Article 142(2) preserves it for the Supreme Court. Wilfulness is the operative word.
Test yourself
1. Define 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 maximum punishment? Simple imprisonment up to six months, or a fine up to two thousand rupees, or both, and for civil contempt detention in a civil prison up to six months where a fine will not meet the ends of justice.
3. Why does wilfulness matter so much? Because a bona fide misunderstanding of the order or a genuine impossibility of compliance is not contempt, so the enquiry is into the officer's state of mind and his explanation.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.