Contempt Proceedings

The phrase “Contempt of Court” is derived from the Latin words

“contemptuous curiae”.1 According to Merriam-Webster Dictionary, the
word “contempt of court” means, “wilful disobedience to or open
disrespect of a court, judge or legislative body.” 2 In simplest terms, it is an
act committed by a person who challenges/diminishes/scandalizes the
authority of the court order or undertaking.

S.2(a) Contempt of Court Act, 1971 provides that “contempt of court”

means civil contempt or criminal contempt. So, broadly contempt can be
put into two heads: criminal contempt and civil contempt.

As per S.2(b) “civil contempt” means wilful disobedience to any judgment,

decree, direction, order, write, or other process of a court or wilful breach
of an undertaking given to a court. From the plain reading of the
provision, it can be inferred that the violation of the order, decree, etc
needs to be committed by the one who is deriving or expecting a benefit
from the proceedings and it shall be intentional. The term “wilful” was
defined in Ashok Paper Kamgar Union v. Dharam Godha and
Ors. as “an act or omission which is done voluntarily and intentionally and
with the specific intent to do that something the law forbids or with the
specific intent to fail to do something the law requires to be done, that is
to say with bad purpose wither to disobey or to disregard the law.”
Therefore, to constitute contempt of court mens rea is an important
element. Since mens rea is an essential element to constitute the wrong,
the common defenses available for civil contempt of court are that the act
was accidental or that the person was unaware of the directions.

The purpose of the proceeding for the civil contempt is not only to punish
the contemner but also to exercise enforcement and obedience to the
order of the Court. In Vidya Sagar v. Third Aditional District Judge,
Dehradun, 1991 Cr LJ 2286, it was held that Civil Contempt, actually,
serves dual purpose:
(i) Vindication of the public interest by punishment of contemptuous
conduct; and

(ii) Coercion to compel the contemner to do what the Court requires of

him.

To constitute ‘Civil Contempt' the followings are required to be proved:

1. There is disobedience of the order, decree, etc. of the Court or breach

of undertaking given to the Court; and

2. The disobedience or breach is willful.

Civil contempt of court most often happens when someone fails to adhere
to an order from the court, injuring a private party’s rights. For example,
failure to pay court-ordered child support or alimony can lead to
punishment for civil contempt. The aggrieved party, such as a parent who
has not received court-ordered child support payments, may file an action
for civil contempt.

The following are some of the common actions that would constitute civil
contempt of court:

 Failure to follow the Marital Settlement Agreement of divorce decree

 Failure or refusal to provide the court-ordered alimony, child
support, or spousal support payments
 Failure to comply with the terms of the child visitation order or
parenting plan
 Failure or refusal to give back property ordered by the court to be
returned
 Violation of protective order or no contact order.

The Act defines “criminal contempt” u/s 2(c) and after plain reading of the
provision broadly four elements can be identified to constitute criminal
contempt- publication of any matter (by words, signs, or visible
representations), scandalizing the authority of the court, interference with
the proceedings, interference with the administration of justice. Thus, the
courts are empowered to penalize anyone who attempts to shake the faith
of the public in the administration of justice. Hence, criminal contempt is
more grave in nature than civil contempt.

When does a contempt lie

The Courts can take cognizance of contempt when there is wilful

disobedience of a court order, decree, or undertaking and also if a person
attempts to scandalize the authority of the court, diminish its authority,
interfere with the proceedings the court, or interfere with the
administration of justice. The phrase “administration of justice” is not
defined by the Act and thus, it will differ from case to case but the bottom
line is that the Courts shall do everything in their power to keep the faith
of the public in the judiciary. However, the courts shall exercise the wide
powers conferred by the Act cautiously.

Moreover, the contempt proceedings, either suo motu or on the

application of an individual, cannot be initiated after 1 year from the date
of the commission of the alleged offense.

How a content lies

The cognizance of contempt cases can be taken by the Supreme Court or

High Courts on its motion or if a private individual intends to file the
complaint, then he has to seek the approval of the Advocate General or
any other person as the Advocate General consents to.12 After taking the
cognizance, a notice needs to be served to the person charged or the
court needs to record the reasons for not doing so. If the proceedings are
commenced by the motion, then, the notice needs to be accompanied by
the motion and affidavits, and if commenced on a reference of a
subordinate court then, by the copy of the reference.13 The cases of
criminal contempt shall be heard by the bench of at least two judges but
an exception has been carved out for the Judicial commissioner.14

The Act has empowered the courts to punish the offender which may
range from fine to simple imprisonment which may extend to 6 months.15
However, it is notable that the court has the discretion to decide the
punishment depending upon the facts and circumstances of each case,
and thus while determining the guilt and punishment of the wrongdoer,
the courts shall keep in mind the purpose of the punishment i.e.
compliance of the orders and protecting the authority of the court.

Why a contempt lies

The administration of justice has a vital role to play in maintaining law and
order in society. The courts are the guardians and protectors of the rights
of the citizens and thus, they are seen as the administrators of justice.
The courts have to keep this faith of people alive by ensuring that no one
lowers the authority of the court and if anyone does, they have to bear
the consequences. However, the courts have to be very cautious while
determining what constitutes the criticism of the court and vilification. The
Constitution of India gave Courts the power to punish anyone for
contempt of itself on one side then, the same Constitution gave the
citizens the right to freedom of speech and expression. Thus, to balance
the right to freedom of speech and the power of the court to take
cognizance of contempt, criticism of the judgments needs to be welcomed
as long as it does not hamper the reputation of the courts. However, no
right or power is absolute and it can be restricted if anyone tries to cross
the justifiable limit.

To conclude, the judiciary cannot be immune from criticism and has to

exercise its wide contempt powers not on every occasion but only in
special situations. Some broad guidelines were laid down for the Courts to
follow while exercising this power which are as follows:

 Wise economy of use by the Court.

 Harmonize the constitutional values of free criticism.
 Avoid confusion between the personal protection of libeled judges
and the prevention of obstruction of public justice.
 The fourth estate (media) shall be given free play.
 Not be hypersensitive even when distortions and criticism overstep
the limits.
 Evaluate the totality of factors.
The Calcutta High Court in Legal Remembrancer v. Motilal Ghose
has explained the difference between civil contempt and criminal
contempt. The distinction between civil and criminal contempt is of
fundamental character. While criminal contempt offends the public and
consists of conduct that offends the majesty of law and undermines the
dignity of the Court, civil contempt consists in failure to obey the order,
decree, direction, judgment, writ or process issued by courts for the
benefit of the opposing party.

The Allahabad High Court in Vijay Pratap Singh v. Ajit Prasad, has held that
a distinction between a civil contempt and criminal contempt seems to be
that in a civil contempt the purpose is to force the contemner to do
something for the benefits of the other party, while in criminal contempt
the proceeding is by way of punishment for a wrong not so much to a
party or individual but to the public at large by interfering with the normal
process of law diminishing the majesty of the court. However, if a civil
contempt is enforced by fine or imprisonment of the contemner for non-
performance of his obligation imposed by a court, it merges into a criminal
contempt and becomes a criminal matter at the end. Such contempt,
being neither purely civil nor purely criminal in nature, is sometimes called
suigeneris.

Appeals

Section 19 (1) of the Act provides that an appeal shall lie as of right from
any order to decision of High Court in the exercise of its jurisdiction to
punish for contempt - (a) Where the order or decision is that of a single
judge, to a bench of not less than two judges of the Court.

(b) Where the order or decision is that of a bench, to the Supreme Court.
Provided that where the order or decision is that of the Court of the
judicial commissioner in any union territory, such appeal shall lie to the
Supreme Court.
Section 19 (2) of the Act provides for Pending of any appeal. The
appellate Court may order that –

(a) The execution of the punishment or order appealed against be

suspended;

(b) If the appellant is in confinement, he be released on bail; and

(c) The appeal be heard notwithstanding that the appellant has not
purged his contempt.

Section 19 (3) of the Act provides that where any person aggrieved by any
order against which an appeal may be filed satisfied the High Court that
he intends to prefer an appeal, the High Court may also exercise all or any
of the powers conferred by sub section(2).

Section 19 (4) of the Act provides for limitation for Appeal. According to
this sub-section, an appeal under sub-section (1) shall be filed –

(a) in the case of an appeal to a Bench of the High Court, within thirty
days ;

(b) in the case of an appeal to the Supreme Court, within sixty days, from
the date of the order appealed against.

Section 19 of the Contempt of Courts Act, 1971, deals with appeals. Right
to appeal to higher court against the decision of lower court has been
specifically given in the present Act. Prior to this, the position was not
clear. Appeals were heard by the Privy Council on the ground that the
action in the contempt of court cases was made in the name and on
behalf of the Sovereign hence the Privy Council could hear the appeal
(Court on its Own Motion v. Kasturi Lal, AIR 1980 P&H 72, at p.
73). The Apex Court in S. P. Wahi v. Surendra Singh, held that it is not
each and every order passed during the contempt proceedings that is
appealable. In Subhash Chandra v. B.R. Kakkar, it was held that when
the High Court acquits the contemner, no appeal lies. If the order of
committal for contempt of court is made -

(a) By a single judge of the High Court, an appeal lies to a division bench
thereof; or (b) By a division bench of the High Court, an appeal lies to the
Supreme Court, as of a statutory right.

The punishment for Contempt of Court is mentioned in Section 12 of the

Contempt of Court Act, 1971, and authorities of punishment are given to
the High Court and the Supreme Court of India. As per Section 12(1), the
punishment includes imprisonment up to six months or fine up to Rs.
2,000 or both. In some cases, the accused may get a discharge or revoke
the awarded punishment if he or she makes an apology and that apology
should satisfy the Court. The apology made in the bona fide will not be
rejected on the ground of conditional or qualified.

Later, according to the Section 13 of the amendment of the Act, called as

the Contempt of Court (Amendment) Act, 2006, Contempt of Court cannot
be punishable under certain circumstances or in certain cases.

Under Section 13(a) of the Contempt of Court (Amendment) Act, 2006, no

court under this Act will be punished for Contempt of Court until and
unless it is satisfied that the nature of the Contempt is substantially
interfered or tends to substantially interfere with the due course of justice

Under Section 13(b) of the Contempt of Court (Amendment) Act, 2006, the
Court may give the justification of the truth if the act is done in the public
interest and the request of invoking defence is bona fide.

Section 13 has been added in the Contempt of Court Act, 1971 after
amendment in 2006. The new Act may be called The Contempt of Court
(Amendment) Act, 2006. This Section tells that contempt of court cannot
be punished under certain circumstances or certain cases.
Clause (a) of Section 13 of the Contempt of Court (Amendment) Act, 2006
states that no Court under this Act shall be punished for Contempt of
Court unless it is satisfied that the Contempt is of such a nature that it
substantially interferes or tend to substantially interfere with the due
course of Justice.

Clause (b) of Section 13 of this Act states that the court may give the
defence on the justification of truth if it finds that the act done in the
public interest and the request for invoking that defence is bona fide.