When and how to initiate contempt proceedings before High Court?

Before answering above question, I would first go through the law of Contempt of courts.

Contempt of Court refers to showing disrespect to the dignity or authority of the court.

Civil Contempt

According to Section 2 (a) of the Contempt of Courts Act 1971, contempt of courts civil contempt or criminal contempt. Section 2(b) defines Civil Contempt as willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. For example, a person who has been ordered by a court to pay child maintenance, and he fails to obey it, then he will be liable for civil contempt. Civil contempt aims to restore the rights of the party wronged by the failure to abide by the court’s order and to move an underlying proceeding by resolving it.

It is important to note that the breach of a court’s order is not sufficient to constitute civil contempt. Such a breach or disobedience must be deliberate, willful and intentional. The Court shall be satisfied beyond doubt that the person has deliberately violated the court’s order. Such orders also include directions, decree, ex-parte, preliminary orders, writ order or an undertaking given to a court.

According to Section 11 of the Contempt of Courts Act 1971 the High Court shall have the jurisdiction to inquire into or try contempt of itself or of any other court subordinate to it. As per Section 12 of the Act, a contempt of court may be punished with simple imprisonment for a term which may extend to six months or with fine extending to two thousand rupees or both. Provided that the accused may be discharged or punishment may be remitted on apology being made to the satisfaction of the court.

Criminal Contempt

Section 2 (c) of the Contempt of Courts Act 1971 defines criminal contempt as – (i) the publication of any matter by words, spoken or written, or by gesture, or by signs, or by visible representation or (ii) doing of any act which includes:

a) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court or
b) Prejudices or interferes or tends to interfere with the due course of any judicial proceeding, or
c) Interferes or tends to interfere with, or obstruct or tends to obstruct, the administration of justice in any other manner.

Contempt proceedings can be initiated either by filing an application or by the court itself suo moto. In both the cases, contempt proceedings must be initiated within one year from the date on which contempt is alleged to have been committed.

Article 129 of the Constitution of India provides that the Supreme Court and Article 215 provides that every High Court shall be a court of record and shall have all the powers of such court including to punish for its contempt.

Section 14 deals with contempt in the face of the Supreme Court and High Courts and it provides that whenever it appears to the Supreme Court and the High Courts that a person appears to have committed contempt in its presence or hearing the court may cause such person to be detained in custody.
And shall at any time before the rising of the court on the same day or as early as possible, thereafter:

1. Cause him to be informed in writing of the contempt with which he is charged.
2. Afford him an opportunity to make his defense in respect of the charge.
3. After taking such evidence as may be offered by such person and after hearing him proceed either forthwith or after adjournment to determine the matter of the charge.
4. Make such order for the punishment or discharge of such person as may be necessary.

Criminal Contempt committed outside court (also known as Constitutive Contempt): Section 15(1) provides that Supreme Court and High Courts can take cognizance of Criminal Contempt in the following manner-

1. On its own motion
2. On the motion of the Advocate General
3. On the motion of any other person, with the consent, in writing, of the Advocate Genera;
4. On the motion of such law officer in relation to the High Court for the Union Territory of Delhi as the Central Government may notify.

In case of a criminal contempt of a subordinate court, the concerned High Court may take action in the following manner-

1. On reference made to it by the subordinate court
2. On the motion made by the Advocate general
3. On the motion made by such law officer in relation to a Union Territory as the Central Government may specify.

It is trite to mention that private persons/individuals are barred from filing any contempt procedure without the consent of the Advocate General.[1] The purpose of this provision is to prevent the courts from being flooded with frivolous cases in order to serve personal interest or grudges. The matter shall be scrutinized by the Advocate General before it receives the Court’s attention. Where in such a case the contemnor is absent from court then he/she shall be served a notice of every proceeding personally, unless the court for reasons to be recorded, directs otherwise.[2]

In the renowned cases of Seaward v. Paterson[3] and Lord Wellesley v. Earl of Mornington[4] it has been decided that a third person may be liable in contempt if with knowledge of the order, he aids and abets a breach of the order by the person enjoined. Courts in the United Kingdom maintain that an injunction can only restrain a party to a proceeding from doing an act although it may restrain him from doing the act by himself or his agents and a third party is not held to be in contempt of an order restraining a named person except that person, who aids and abets the commission of the breach. It is based on the principle that Courts cannot and will not permit interference in the due administration of justice.

In the case of Tamilnad Mercantile Bank Share Holders’ Welfare Association v. S.C.Sekar and Others[5] the Supreme Court had held that even an irregular order can be set aside by the same court or by a higher court and an aggrieved person cannot be left without a remedy and access to justice is a human right and in certain situations, it is even a fundamental right. If the High Court decides on the issue and makes a direction relating to the merits of the dispute between the parties, the aggrieved person may even challenge it in an intra-court appeal. This order of the Supreme Court was passed while they declined to interfere with an order passed by the Division Bench of this court. The Division Bench had held that the provisions of appeal under Section 19(1) of the Contempt of Courts Act, cannot be restricted only to a case of punishment imposed by the Court in Contempt proceedings and such a right of appeal can also be extended, where an order adversely affecting the parties are passed and they held that when the interim order passed by this court in contempt petition was incidental to and inextricably connected to the rights of the Board of Directors, even though the parties were third parties to the contempt petition, they could appeal against the order adversely affecting them and the opinion of the Division Bench was, even in case of any order passed adversely affecting any person, certainly he would be entitled to prefer an appeal, as otherwise he would be left with no effective remedy.

The Contempt of Courts Act, 1971 though empowers courts to punish those who willfully disobey court’s directions or disrespect their sanctity, it has also been criticized for restricting the freedom of speech and expression, to speak against the court’s functioning and to suppress people’s criticism of the courts.

The discretion that a judge has in determining whether there is contempt and its punishment has been a debatable issue in the eyes of many, because the contempt power has given too much authority to the Judges who do not exercise restraint in the punishment meted out to contemnors.

Hence, this particular statute though wields a lot of power amongst higher judiciary, it shall be exercised judiciously and in tandem with the fundamental rights of individuals along with principles of natural justice and equity.

What is not contempt of court?

Fair and accurate reporting of judicial proceedings will not amount to contempt of court. Nor is any fair criticism on the merits of a judicial order after a case is heard and disposed of.

Is truth a defence against a contempt charge?

For many years, truth was seldom considered a defence against a charge of contempt. There was an impression that the judiciary tended to hide any misconduct among its individual members in the name of protecting the image of the institution. The Act was amended in 2006 to introduce truth as a valid defence if it was in the public interest and was invoked in a bona fide manner.