The Law Of Contempt

"Ever since its first publication in 1992, this books has been widely appreciated by all who are interested in the subject. The present new revised Fourth Edition 2006 covers a wider territory. Apart from the courts, it now examines contempt of legislatures and tribunals. The presentation is in four parts. Part-1deals with the constitutional provisions. Part-2 contains the commentaries on the Contempt of Courts Act, 1971, Part-3 is a brief overview of the contempt powers of the Tribunals. And Part-4 traces the elements of contempt jurisdiction of the legislatures. The law of contempt continues to have high contemporary relevance. It plays a vital role in the orderly and fair administration of justice and arms the legislatures to enforce discipline and ensure uninterfered progress of their proceedings. In the ultimate analysis, it is an indispensable aid in the constitutional functioning of our basic democratic institutions. Some Reviews........ .....It is most useful and informative and will be a valuable addition to my library. N.A. Palkhivala .....Samaraditya Pal has collated case law not just from India but from all relevant jurisdictions and analysed it with discernment and insight. The chapters on legislative history and genesis of the Contempt of Courts Act, 1971 as well as those on innocent publication and fair reporting of judicial proceedings will be of interest to lay readers as well as practicing lawyers. The discussion on pre-judgement of proceedings is also very interesting especially the thalidomide case where each court took a different view upon whether the article published by the Sunday Times amounted to contempt. ....In essence.... the commentary is lucid and concise and will be of assistance to all those who are concerned with the administration of justice. The Financial Express"".....the author has dealt with this subject as precisely as possible....He has explained the principles underlying the statutory provisions as judicially explained in the leading cases and the application of those principles in other illustrative cases. The author has quoted extensively from many judgments of the leading cases, and culled the principles that are laid down...The historical background has been also given in the Appendix of the book. A very useful book for the professional lawyers. All India Reporter .....The exhaustive commentary of the Contempt of Courts Act.... as made by Pal.... has touched on various aspects of the offence..... The book is likely to be useful to law students, lawyers, journalists and publishers. The Sunday Times of India .....Although the book is smaller in size than any other book, it is the best book in recent times on the subject. Samaraditya has shown how to explain a complicated topic of law in simple and easy style. Aajkaal"

The Law of Contempt—Contents

Contents
PART I
CONSTITUTION, CONTEMPT OF COURTS AND LEGISLATURES
CHAPTER 1
CONSTITUTION AND CONTEMPT OF COURT
Constitutional power of the Supreme Court and the High Courts: Articles 129 and 215 3
Inherent power 3
Rule of law and contempt 6
Courts of Record & Contempt power 7
Extent of the Constitutional Power: Duty to protect the judicial system 8
Article 142 10
Freedom of Speech and Contempt : Articles 19(1)(a) and 19(2) of the Constitution 11
Legislative competence 11
Limitations on legislative power 15
CHAPTER 2
CONSTITUTION AND CONTEMPT OF
LEGISLATURES
Constitutional provisions 17
Privileges within Article 105(3) and Article 194(3) 19
Power to commit for contempt 19
Power conferred on Parliament and State Legislatures 20
The power and its exercise 20

PART 2
THE CONTEMPT OF COURTS ACT, 1971
CHAPTER 3
THE CONTEMPT OF COURTS ACT, 1971
(ACT NO. 70 OF 1971)
S. 1. Short title and extent. 23
Legislative History 23
Contempt of Courts Act, 1926 23
Contempt of Courts Act, 1952 24
Genesis of Contempt of Courts Act, 1971 25
Statement of Objects and Reasons of the Act 25
Act not an exhaustive code 26
S. 2. Definitions 26
Nature of contempt proceedings 31
Defining contempt of court 34
Civil Contempt and execution proceedings 35
Categories of contempt not closed by definitions 36
Distinction between Civil and Criminal Contempt 37
Civil Contempt 40
Judgment, decree, direction, order, writ or other process of a court or undertaking given to a court 41
Classification of orders, directions, etc. 42
According to nature of the judgment, order, etc. 42
(a) Mandatory 42
(b) Prohibitory 42
According to the stage of proceedings in which made 42
(a) Final 42
(b) Interim or interlocutory 42
According to the nature of the proceedings in which made 43
According to the basis of the order 43
Writ or other process of a court 44
Writs under the Constitution 44
Status quo orders 45
Undertaking to court 47
Meaning of undertaking 47
Giving of undertaking 48
Breach of representation not amounting to undertaking 49
Amendment of law subsequent to undertaking 50
Undertaking must be authorised/legal 51
Legal effect of undertaking 51
Express and Unqualified 53
Construction 53
To court 54
Breach of Negative undertaking 54
Undertaking contained in compromise decree 54
Explaining content to the person undertaking 57
Undertaking based on assumption which undertaker knows is false 57
Power to punish and direct closure of breach 58
Undertaking not affected by subsequent false claim of right 58
Form of undertaking 59
Filing of undertaking 59
Breach of undertaking by companies 59
Illustrative cases of breach of undertaking amounting to con-tempt 59
Meaning of court 61
Disobedience to judgment, order etc. and breach of undertak-ing 65
— What constitutes disobedience or breach/non-compliance 65
— Partial non-compliance amounts to contempt 71
— Violation/Circumvention 72
— Territorial jurisdiction 76
— Mixed Question 76
— Consequential benefits 84
— Special status of Supreme Court judgments 85
— Supreme Court’s request: whether order 85
— Continuing breach or repeated violations 86
— Illustrative cases of breach/disobedience 87
— Persons liable for disobedience and breach 89
— Parties to the proceeding 89
— Non-Resident Foreigner 89
— Third parties persons who are not parties to the proceeding 90
Generally 90
The principle in seaward cases 90
Illustrative cases : Third party liability 97
Form of the order 100
Vicarious liability of Officers of the State and Corporate Bod-ies 100
State 100
Corporate Bodies 103
Judgments and Orders of general application 105
Third parties who have not aided or abetted 106
Legal status of acts resulting from the breach 107
Disobedience or Breach must be wilful 107
Criminal Contempt 108
The publication 109
The doing of any other act 110
Scandalising the Court [sub-clause (3)] 111
Scandalising distinguished from defamation/libel 113
Scandalising distinguished from discourtesy 113
Mulgaokar guidelines for testing scandalising 114
Not obsolete 115
Illustrative cases relating to scandalising the court 122
Mens Rea and scandalising the court 133
Interfere with the due course of judicial proceedings [sub-clause (ii)] 133
Reason for the rule 133
Conflict with freedom of speech 134
Prestoppage of newspaper publication 137
Courts’ power to postpone publication 139
Freedom of speech and postponement of publication 141
Correlation of publication to the proceedings 142
Actual prejudice or interference not essential 143
The different means of prejudice or interference 152
Publications 152
Prejudgment of proceedings 152
Publications concerning the character of the accused 157
Publication of confession 158
Publications calculated to prejudice the court’s ability to de-termine true facts 159
Premature publication of evidence 159
Publications after verdict but before sentence 159
Publication of pleadings not necessarily a contempt 160
Publication criticising witnesses 160
Publication criticising parties 161
Publication of trade warnings pending litigation 161
Publication of advertisements offering rewards for evidence 162
Publication distorting Judgment of Court 162
Notings made by officers in files 163
Liability of persons associated with publication 164
Newspapers/Magazines/Books 165
Editor 166
Author 167
Printer 168
Newspaper Reporter 168
Proprietors/Publishers 169
Distributors 170
Broadcasting 170
Television, broadcasting and film 170
Authority running the broadcasting station 170
Producers 170
Broadcasting Reporter 171
Newscasters 171
Members of the Public 171
Film Producers, Distributors and Proprietors of Cinemas 171
Electronic Media 171
Source of information: Privilege 172
The role of the Press Council 177
Caution in criticising judicial acts 178
Editor’s responsibility for all matter published in the newspa-per 179
Confidence to be respected 180
Doing of Other Acts 180
Aiding and abetting a civil or criminal contempt 180
Threat or coercion or pressure to compel a party to adopt a particular course of action in relation to a judicial proceed-ing 181
Seeking assistance from a third party for enforcing a Court Order 182
Parallel Proceedings 184
Threatening Judges 187
Interference with decision-making process 188
Conduct directly interfering with Judicial Proceedings 189
Conduct having effect of interfering with functioning of a Judge 190
Filing forged/fabricated document misleading report: Swear-ing false affidavit, making misleading statements: disown-ing statements earlier made 191
Non-filing pleadings within time directed 196
Inspection of Court Records without leave of Court 196
Residuary Clause [Sub-clause (iii) of s. 2(c)] 196
Publication 197
Doing of Other Acts 199
(1) Physical obstruction to access 200
(2) Obstruction to justice 200
(3) Bandh & closure of court 201
(4) Defiance in attending court 201
(5) Interference with officers of court 202
(a) Interference with the possession of Receivers, Liquidators, Special Officers, Sequestrators, Advocate Commissioners 203
(b) Interference with property otherwise in custo-dia legis 206
(c) Interference with Counsel 207
(d) Interference with process-servers 209
(e) Interference with Sheriffs and Bailiffs 210
Interference with witnesses 210
Interference with parties 214
Interference with Judges 216
Interference with wards of courts 218
Withholding information 219
Withholding of applications to High Court 219
Forum Shopping 220
Contempt by Counsel 220
Various kinds of contempt by counsel: 223
Picketing/strike/Civil or Criminal 228
Boycotting of Courts/Strikes: Obstructing course of justice 229
Allegations in transfer petitions 230
Disruption of court proceedings 232
Contempt by litigants appearing in person 240
Contempt by Receivers, Liquidators etc. 240
Contempt by Judges 241
Abuse of Process of Court 241
Proceedings intended to obstruct the course of justice 242
Acts which involve forging or altering of process itself 246
Acts which involve falsehoods intended to deceive court 246
Acts which misuse the process thereby prejudicing other per-sons 247
Improper Public Interest Litigation 248
Other cases of abuse 248
Contempt in the face of the court 249
Taking notes of court proceedings or tape recording proceed-ings 253
Other cases of Interference 255
S. 3. Innocent publication and distribution of matter not contempt 256
General scope 257
The person charged had, at the time of publication, no reason-able grounds for believing that the proceeding was pending [sub-section (1)] 258
If the proceedings are not pending at the time of publication [sub-section (2)] 260
(a) Civil proceedings 260
(b) Criminal proceedings 261
Termination of proceedings: The Explanation 261
A person charged with distribution of publication, if at the time of distribution he had no reasonable grounds for be-lieving that the publication contained or was likely to con-tain such contumacious matter referred to in sub-section (1) [sub-section (3)]. 262
S. 4. Fair and accurate report of judicial proceeding not contempt 265
Fundamental Right of Freedom of Speech and Expression 265
Section applies to reporting of judicial proceedings in open court 266
Open justice principle 266
Sanyal Committee 267
Types of Reporting 269
Reports must be fair and accurate 269
Subject to the provisions of section 7 271
S. 5. Fair criticism of judicial act not contempt 271
General 272
Sanyal Committee 272
Fair comment 272
Justice is not a cloistered virtue 273
Test of fair comment 276
Fair criticism 276
Illustrative cases 279
S. 6. Complaint against presiding officers of subordinate courts when not contempt 281
Scope 281
Sanyal Committee 282
The statement must be made in good faith 282
Subordinate court 283
S. 7. Publication of information relating to proceedings in cham-bers or in camera not contempt except in certain cases 283
Scope 284
Sanyal Committee 285
Reporting of proceedings in chambers or in camera [sub-section (1)] 285
Fair and accurate report 285
The exceptions 285
Publishing orders [sub-section (2)] 286
S. 8. Other defences not affected 286
Scope 289
Sanyal Committee 289
Defences in civil contempt 289
The order which is disobeyed was passed without jurisdiction 289
(i) Meaning of “jurisdiction” 289
(ii) Effect of a decree or order made without jurisdiction 290
(iii) Position vis-a-vis contempt 291
(iv) Erroneous order 294
The order which is disobeyed is ambiguous 295
The order is vague 296
Order made is per incurium 298
When a question of interpretation of the order is involved 299
Substantial compliance 302
Compliance of directions contained in the order dependent upon determination of other facts 303
Not a party to proceeding 303
The person charged had no knowledge of the order which is disobeyed 303
(i) Prohibitory Orders 304
(ii) Mandatory Orders 305
(iii) Orders contained in undertakings 307
Order obtained by misrepresentation 307
Determination involves enquiry into disputed questions of fact 307
The disobedience was not wilful 309
(i) Absence of wilful culpability 309
(ii) Casual or accidental and unintentional acts 322
(iii) No knowledge of order 323
(iv) Impossibility of compliance with order 323
(v) Subsequent events 325
(vi) Acting on superior officer’s order 325
s(vii) Acting on subordinate’s proposal 326
(viii) Bona fide view of the order though not legally or otherwise sustainable 326
(ix) Fear of Reprisal 327
The order or decree was made with the consent of parties 328
Consent Order 328
Where the order was obtained by suppression of facts 329
The applicant has failed to prove the allegations beyond rea-sonable doubt 330
(a) Burden of proof 330
(b) Standard of proof 330
Defence of autrefois acquit or rule against double jeopardy 332
Multiple punishments for continuous breach not permissible 332
When there are contradictory orders 333
The act complained of not covered by the order 333
Time for performance not specified 333
Original order obtained by non-disclosure of facts 334
Acting on superior’s orders 334
Technical contempt 334
Other defences 334
Defences in criminal contempt 335
Absence of Mens Rea 335
(i) Mens Rea 335
(ii) Nature of Criminal Contempt Proceedings 336
(iii) Lack of intention is not a defence 336
(iv) Strict liability 337
(v) Knowledge and intention: Distinction 339
(vi) The Better Approach 339
(vii) As a mitigating circumstance 340
Vicarious liability in criminal contempt 340
Truth of imputations against Judges and 2006 amendment 341
Defence of public interest 347
Mulgaokar Guidelines 348
No imminent danger 348
Publication not calculated to obstruct the course of justice 348
Mere defamation of the judge personally 349
Words complained of open to different interpretations 349
Words complained of had no nexus with the functioning of a judge 349
Advocate acting in professional capacity 350
No Defence 350
(1) Principle of self-incrimination 350
(2) Acting on legal advice 351
(3) Alternative remedy 351
(4) Mere filing of appeal without stay 354
(5) Application for vacating the order violated is pending 357
(6) Limitation for appeal has not expired 357
(7) Administrative inconvenience or chaos 357
(8) The order is not correctly recorded 358
(9) Subsequent compliance 358
(10) Disobedience in another capacity 359
(11) Merits of the dispute in the main proceedings 359
(12) Subsequent statutory intervention/change in law 360
(13) Compliance to be consistent with law 361
(14) Person directed not in position to comply with order for supervening difficulty 361
(15) Transfer of the officer 362
(16) Justifying violation for achieving unrelated purpose 362
S. 9. Act not to imply enlargement of scope of contempt 362
S. 10. Power of High Court to punish contempts of subordinate courts 363
General 363
Power is discretionary: 1971 Act and Or. 39, R. 2A of CPC 364
Effect of Proviso: 1971 Act and IPC 365
S. 11. Power of High Court to try offences committed or offenders found outside jurisdiction 367
S. 12. Punishment for contempt of court 368
Nature of the power to punish 370
Recent trend 373
Not exhaustive 375
Costs 376
Reprimand 376
Security for good behaviour/Injunction against repeating con-tempt 377
Admonition 377
Compensation 377
Punishment under other laws not excepted 377
Extradition: Contempt by foreigner 382
Extent of punishment 383
Power to detain before sentence 384
Concurrent sentencing 385
Different punishment for different contemners 385
Suspension of sentence 385
Companies and firms 386
Apology 387
Public apology 398
Apology coupled with justification 398
Punishment in spite of apology 399
Acceptance of apology 399
Sequestration 400
Breach of undertakings and contracts: Power to award damag-es 401
Power to give additional directions/consequential relief 402
Power to make interim order in a contempt proceeding 411
Injunction to restrain contempt 411
Not to be treated as precedent 412
Mitigating circumstances 412
Breach of unconditional undertaking 417
Probation 419
Aggravating circumstances 420
Appeal Court and Sentence 422
Discharge from Imprisonment 422
S. 13. Contempts not punishable in certain cases 423
Legislative changes (2006) 423
Technical Contempt [S. 13(a)] 425
Delay in deciding representation—Whether amounts to con-tempt 427
Clause (a) covers civil and criminal contempt 428
Due Course of Justice 428
S. 14. Procedure where contempt is in the face of the Supreme Court or a High Court 430
Sanyal Committee 431
Contempt in the face of the court 432
Suo motu cognizance 432
Compliance with natural justice 433
Pretrial detention and bail 434
S. 15. Cognizance of criminal contempt in other cases 434
Scope 436
Constitutional validity 436
Cognizance under section 15(1) 436
Procedure 438
Suo motu cognizance 438
Consent of the Advocate General 442
Judicial Review of Exercise of Discretion 443
Manner of Initiation of Proceedings under this section 445
Criminal contempt of subordinate courts [sub-section (2)] 446
Meaning of reference in sub-section (2) 448
Reference not compulsory 448
Remedy against refusal to refer 448
Rejection of the reference 448
S. 16. Contempt by Judge, Magistrate or other person acting judi-cially 449
General 449
Meaning of Judge : Whether Judges of Supreme Court/High Courts included 450
Judicial Officers 454
Illustrative cases 455
S. 17. Procedure after cognizance 457
General 458
Sub-section (1) 459
Sub-section (2) 460
Sub-section (3) 460
Sub-section (4) 460
Sub-section (5) 461
S. 18. Hearing of cases of criminal contempt to be by Benches 461
Limited application of the section 462
Section as judicially interpreted 462
Sanyal Committee Report 462
S. 19. Appeals 463
General 464
Appeals prior to the 1971 Act 466
Forum 469
Maintainability of appeal under section 19 469
Who can appeal: locus standi 469
Nature of order appealable under section 19(1) 471
Final orders concluding contempt proceedings 472
Appeals from interlocutory orders in contempt proceedings 481
Order recording undertaking in contempt proceedings 483
Related/consequential orders made pursuant to the order violation of which is complained 483
Guidance from the law in England 484
Need for legislative interference 485
Exhaustion of the right under section 19 486
Appeal under Letters Patent 486
Special leave to appeal to the Supreme Court 492
Materials before the Appellate Court 493
Further evidence before Appellate Court 493
Sub-section (2) 493
Sub-section (3) 494
Sub-section (4) 494
No Review 494
No judicial review under Articles 32 or 226 495
Locus for Review 496
S. 20. Limitation for actions for contempt 496
General 496
Constitutional validity 497
Jurisdictional bar 499
Article 215 500
Suo motu initiation 500
When time starts running 500
When time stops running/When is a proceeding initiated 501
Section not concerned with conclusion of proceeding 506
Pleading of limitation not necessary 506
Extension under section 5 of Limitation Act 506
Whether a continuous offence for the purpose of this section 508
Plea in Appeal 510
Limitation for contempt committed before commencement of 1971 Act 510
S. 21. Act not to apply to Nyaya Panchayats or other village courts 510
S. 22. Act to be in addition to, and not in derogation of, other laws relating to contempt 510
General 511
Power to prevent abuse of process 511
Contempt proceedings amounting to abuse of process 512
Remedy of a person against whom malicious or frivolous con-tempt proceedings are initiated 513
S. 23. Power of Supreme Court and High Courts to make rules 514
General 516
Some general principles of procedure 518
Strict compliance of procedural rules 518
Initiation of Proceedings 519
Notice of all facts constituting contempt must be given : Natural Justice 520
Fresh charge when rule nisi/notice issued on another charge 522
Pre show cause notice and direction to attend 523
Facts to be stated on affidavits except when Court proceeds suo motu 523
Natural Justice/Face of Court 524
Res judicata 524
The Indian Evidence Act, 1872 strictly not applicable 525
Non-signing of petition not fatal 525
Abatement and substitution 525
Contempt proceedings cannot be compromised inter-partes 526
Withdrawal of proceedings 527
Parties 527
Form of Committal Order 529
Power to make interim order 530
Order made in contempt proceedings not executable under Civil Procedure Code 530
Each contemner must file a separate affidavit 530
Additional affidavit by contemner 531
Effect of contemner not filing affidavit/counter 531
Personal presence of person against whom contempt is alleged 532
Appointment of Amicus curiaea 534
Summons to produce persons against whom the allegations are made 534
Moving and hearing before the same Judge 534
The Supreme Court caution 536
Choice of forum: Merger principle 537
Intervention by persons not parties to contempt proceedings 540
Representation of the State 541
Costs against public officers 541
Procedure for tendering apology 542
Right of contemner to be heard—purging the contempt 542
Striking out defence 546
Territorial jurisdiction 546
Service of committal order 546
Effect of procedural defects 546
S. 24. Repeal 547
PART 3
CONTEMPT OF TRIBUNALS
CHAPTER 4
TRIBUNALS
General 551
Power to punish for contempt 552
Articles 323A & 323B Tribunals 552
Jurisdiction of Articles 323A & 323B Tribunals for pre-transfer violation of High Court Order 555
Other Tribunals 556
Contempts in the face of the Tribunal 557
Procedure and Practice 558
Appeal 558
PART 4
CONTEMPT OF LEGISLATURES
CHAPTER 5
SOURCE AND NATURE OF THE POWER
Source of the Power 561
The Power and its Nature 564
CHAPTER 6
PRIVILEGES AND THEIR BREACH
Privileges 567
Specific privileges 568
Freedom of speech in the legislatures 568
Publication of debates and proceedings 573
Cognizance of proceedings 574
Freedom from arrest 577
CHAPTER 7
CONTEMPT POWER
Categories not closed 581
Indirect contempt: Breach of privilege 582
Direct contempt: Acts of interference and lowering authority 582
Disobedience to orders and rules of the legislatures 582
Misconduct of members 583
Professional services by members 585
Misconduct by officers of the legislatures 587
Misconduct by witnesses 587
Misconduct by strangers 587
Interference with civil servant assisting the legislatures 589
Publications of offensive character 589
Illustrative cases not amounting to breach of privilege or contempt 590
CHAPTER 8
PUNISHMENT
Reason for the power 593
Form of punishment 594
Committal 594
Implication of committal 594
Warrants of committal 594
Period of imprisonment 595
Execution of warrants 595
Fine 595
Reprimand or admonition 596
Prosecution 596
Expulsion and suspension from membership 596
CHAPTER 9
PROCEDURE
Governed by rules 599
Consent of the speaker 599
Leave of the House 600
Consideration of the question by the House 600
Complaint against members and non-members 600
Complaints against members or officers of the other House 600
Committee of privileges 601
CHAPTER 10
JUDICIAL REVIEW AND PRIVILEGE
The general position 603
Indian legislatures not superior courts of record 605
Courts are final arbiter of existence and extent of powers and privileges 606
No jurisdiction of courts vis-a-vis freedom of speech 607
APPENDICES
App. ‘A’ Rules made under Section 23 of the Contempt of Courts Act, 1971 611
(1) Rules made by the Supreme Court of India 611
(2) Rules made by the Allahabad High Court 616
(3) Rules made by the Andhra Pradesh High Court 620
(4) Rules made by the Bombay High Court 630
(5) Rules made by the Calcutta High Court 639
(6) Rules made by the Delhi High Court 646
(7) Rules made by the Gauhati High Court 647
(8) Rules made by the Gujarat High Court 653
(9) Rules made by the Himachal Pradesh High Court 659
(10) Rules Made by the Jammu and Kashmir High Court 665
(11) Rules made by the Karnataka High Court 666
(12) Rules made by the Kerala High Court 674
(13) Rules made by the Madhya Pradesh High Court 676
(14) Rules made by the Madras High Court 681
(15) Rules made by the Orissa High Court 684
(16) Rules made by the Patna High Court 690
(17) Rules made by the Punjab and Haryana High Court 695
(18) Rules made by the Rajasthan High Court 701
(19) Rules made by the Sikkim High Court 702
App. ‘B’ The Contempt of Courts Act, 1952 709
App. ‘C’ Sanyal Committee Report 711
App. ‘D’ The Contempt of Courts Act, 1971 759
App. ‘E’ Report of the Joint Select Committee of Parliament on Con-tempt of Court (Bhargava Committee) 767
App. ‘F’ The Contempt of the Courts Bill, 1968 (Bill No. VIII-B of 1968) (As Reported by the Joint Committee) 781
App. ‘G’ The Contempt of Courts (CAT) Rules, 1992 789
App. ‘H’ The Central Administrative Tribunal (Contempt of Courts) Rules, 1986 799
App. ‘I’ Forms prescribed by Cr. P.C. 809
Subject Index 811-862