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Contempt of Court: A Global Comparison

Wrongs are often forgiven, but contempt never is. Our pride remembers it forever¯ -Sir. Lord Chesterfield.

Contempt of court¯ this topic was all over the news and media recently. So, what actually is the principle of contempt of court? It is an offence of being disobedient to or disrespectful of a court of law and its officers. Contempt of court is a matter which concerns the administration of justice and the dignity and the authority of judicial tribunals[1]

 This has been clearly defined under section 2 (a) as the interpretation clause of the Contempt of court Act. If we go by the definition given under this act contempt of court is nothing but it is civil or criminal contempt. Further, the sub-clause (b) and (c) of section 2 of the contempt of court act have defined both types of contempt that is civil and criminal contempt in a detailed manner. There is the concept of fundamental rights in our country which has given citizens so fundamental rights.

As said by Salmond it is not important what law is but it is important where the law is given, by what is that law-governed. So these fundamental rights are given to us by the Constitution Of India which is also believed to be the GRUND NORM of our country.

In Kapildeo Prasad Sah & Ors. V. State of Bihar & Ors.[2]and T.N Godavarman Thirumulpad through the Amicus Curiae v. Ashok Khot & Ane., AIR2006 SC2007, the Supreme Court held that disobedience of the court's order would be a violation of the principle of Rule of Law. The Law of contempt can thus be considered to be the thread that holds together the fundamental structure of the constitution. And maintenance of the dignity of the court is one of the cardinal principles of Rule of Law.

We all are aware that no one can change the fundamental structure of the Indian Constitution as they are believed to be the pillars of our constitution. Article 19 of the Indian constitution gives us the right to freedom of speech and expression[3]. But this doesn't mean that you can say whatever you want.

The right to freedom of speech and expression does not embrace the freedom to commit contempt of court[4].And while exercising the right to freedom of speech and expression if a citizen tries to assail the dignity of the court, or undermine the authority, the court may invoke the power to punish for contempt, under Article 129 or 215 as the case may be. Any law made by the Parliament or the application of any existing law in relation to contempt of court, would tantamount to a reasonable restriction on the freedom of speech and expression[5] and Het Ram Beniwal & Ors. V. Raghuveer Singh & Ors.[6] . If people are allowed to say or express whatever he or she wants the dignity of many of the authorities will be in danger. So, there is a line which is not to be crossed by anyone in the matter of court and if he or she does so he can be punished by the court for its contempt.

Provisions which give court power to punish for its contempt
  • Article 129 Of the Indian Constitution:
    It says that supreme court will be a court of records and it will have all the powers which a court has and this power also includes the power for punishing for its contempt[7]
     
  • Article 215 of the Indian Constitution:
    It says that all the high courts will be court of records and it will have all the powers which a court has and this power also includes the power for punishing for its contempt[8].
     
  • Article 142 Of the Indian Constitution:
    This article grants the power to the Supreme Court for passing any decree to do complete justice¯[9].
     
  • Supreme court observed in the case of Pallav Sheth v. Custodian & Ors.[10] that there is no doubt that Supreme Court and High Courts are courts of record, and that the constitution has given them the power to punish for contempt which power cannot be abrogated or stultified.
     
  • Section 345 of the Criminal Procedure Code:
    Says that when an offence given in section 175, section 178, section 179, section 180 or section 228 of the Indian Penal Code is committed in the view or presence of any civil, criminal, or Revenue court, the court may cause the offender to be detained in custody[11].

    And may at any time before the rising court on the same day, take the cognizance of the offence and after giving the offender a reasonable opportunity of showing cause why he should not be punished under this section, sentence the offender to fine not exceeding two hundred rupees and in default of payment of fine, to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid.

    However In Arun Paswan,S.I. V. State of Bihar & Ors.[12], the Supreme Court held that a perusal of Section 345 of the Code of Criminal Procedure shows that offences under Section 175,178,179,180 or 228 of Indian Penal Code would constitute contempt only if they are committed in the view or presence of the Court which also means that they do not amount to contempt if committed not in the view or presence of the court.
     
  • Section 10 of the Contempt of court Act, 1971:
    This section gives power to the high courts to punish for the contempt of its subordinate court[13].
     
  • Section 11 of the Contempt of court Act,1971:
    This section talks about the Power of the High Court to try offences committed or offenders found outside jurisdiction[14].
     
Types of Contempt of court
  • Civil Contempt:
    Civil contempt is defined under section 2(b) of the Contempt of court act, 1971. The main ingredient for civil contempt is that there should be disobedience. This disobedience is mentioned here with respect to any judgment, decree, direction, order, writ, or other processes of the court. The second part talks about the wilful breach of an undertaking given to court[15]. This means that if someone gives an undertaking to a court, also after he was aware of all the conditions mentioned in that undertaking breaches such condition that would amount to civil contempt.
     
  • Criminal Contempt:
    Criminal contempt is defined under section 2(c) of the contempt of court act ,1971. The main ingredient for criminal contempt is a publication weather by words, spoken or written, or by signs, or by visible representation, or otherwise of any matter and the second part talks about any act which will[16]:
    1. scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court.
    2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings.
    3. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Procedure for Contempt of court
The the procedure of Contempt of court starts with section 14 of the contempt of court Act, 1971. Section 14 says When it is alleged or appears to the Supreme Court or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the court may cause such person to be detained in custody, and, at any time before the rising of the court, on the same day, or as early as possible thereafter[17], shall:
  1. Should inform him/her about the reason for which he is being charged for contempt in writing.
  2. The the court will give him an opportunity to take defense against such charge.
  3. And then the court will take all the evidence given by such person and after hearing the matter shall determine weather the charge against him is fair or unjust.
  4. After that the court shall either punish the person or discharge him as the court may think.
Section 15 of the Contempt of Court Act,1971 tell us about the procedure in the case of criminal contempt[18]. Also, Section 20 Of the Contempt of court acts tells us that No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed[19].

Which means that now court can start a proceeding if the date on which that contempt was committed was 1 year ago. Section 18 of the Contempt of court act,1972 says that if the contempt is of such nature which lies within Section 15, it should be heard by a bench which should not have less than 2 judges.

Some Exception given under Contempt of court Act, 1971
  • Section 3 of the Contempt of court Act, 1971:
    This section tells that an innocent publication and distribution of matter will not amount to contempt of court. When a person published something, which lies under section 2(b) or 2(c) of the contempt of court act,1971 and he had no reasonable grounds for believing that the proceeding was pending it will not amount to contempt of court[20].
     
  • Section 4 of the Contempt of Court Act,1971:
    This section tell that a person will not be held guilty of contempt of court if he has published a fair and an accurate report of judicial proceeding[21].
     
  • Section 5 of the Contempt of Court Act,1971:
    This section tells that a person will not be held guilty of contempt of court if he publishes any fair comment on the merit of any case which has been heard and finally decided[22].
     
  • Section 6 of the Contempt of court Act,1971:
    This section tells that a person will not be held liable for contempt of court if he makes a statement in good faith relating to the officer of a subordinate court, to any other subordinate court or the high court[23].
     
  • Section 7 of the Contempt of Court Act,1971:
    This section tells that a person shall not be guilty of contempt of court for publishing a fair and accurate report of the judicial proceeding before any court sitting in chambers or in camera except on some of the cases[24].
     
  • In Ashwini Kumar Ghose & Anr. V. Arabinda Bose & Anr.[25], the Supreme Court held that while fair and reasonable criticism of a judicial act in the interest of public good would not amount to contempt, it would be gross contempt to impute that judges of the court acted on extraneous consideration in deciding a case.

Punishment of contempt of court

Section 12 of the contempt of court act ,1971 talks about the punishment which can be given by the courts for its contempt. 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. This section also talks about the situation in which the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court[26].

While in the case of a company, we all know that a company is a separate legal entity, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced with the leave of the court, by the detention in the civil prison of each such person.

History and Amendments
Till now I have explained the concept of contempt of court and what it actually is now at the current time. Now let's see how did this concept of contempt of court has evolved and what was the actual root of it. To understand the origination of this concept we have to look in history that is pre-independent India. As we all know there was the rule of East India Company in India before independence. There was a royal order which was known as charter at that time.

The charter of 1726 was for the establishment of Corporations in each presidential town. This charter played a very crucial role in the formation of the legal system in India. Introduction of Mayor court was done in each of the presidency towns and was authorised to deal with all the civil cases [27]. In the year 1774, the mayor court of Calcutta was replaced by the Supreme court of judicature at Fort Williams, Calcutta under the regulating Act 1773.

The mayor courts of madras and Bombay were also replaced by Supreme Court by the Government of India Act,1800. These courts which originated at that time had the same powers for punishing for its contempt as the Superior Courts in England. In 1861 Supreme Courts were succeeded by High Courts and they had to inherit the power to punish for its contempt. In 1867, Peacock C.J laid down the rules related to power to punish for contempt broadly

In Re: Abdool and Mahtab and said that there can be no doubt that every court of record has the power of summarily punishing for contempt. In Legal Remembrancer v Matilal Ghose & Ors.[28],the court found out that the power of the courts for contempt was arbitrary, unlimited and uncontrolled¯ and therefore should be exercised with the greatest caution: that this power merits this description will be realized when it is understood that there is no limit to the imprisonment that may be inflicted or the fine that may be imposed save the court's unfettered discretion and that the subject is protected by np right of general principle. The division bench of the Calcutta High Court considered this jurisdiction of the high court in1879 in Martin v. Lawrence[29].

The Contempt of Court Act. 1926 was the first statute in India that constituted the laws related to contempt of court. Later the Act of 1926 was amended in 1937 to clarify the limits of punishment given in the Act was not only related to Sub-ordinate courts but also the other courts. The act of 1926 was repealed and replaced by the contempt of court Act,1952. Here the term High Court was defined and said it included the Judicial Commissioner.

Later on, April 1, 1960 a bill was introduced in Lok Sabha which was to amend the laws relating to contempt. The bill said that the existing laws were uncertain, undefined and unsatisfactory. A committee was formed for looking after the problems which were proposed in that bill. The chairman of that committee was Shri. H.N. Sanyal was the additional Solicitor general at that time. He and his committee then formed a report and it was submitted in 1963. The recommendation of the committee was accepted by the government after consulting with the state government. And then the Contempt of court Act,1971 was enacted repealing and replacing the previous act.

Contempt Laws in other countries
United States of America
In USA contempt of court can be, direct or indirect and civil or criminal. Let's see the concept of direct and indirect first. Direct contempt of court is when the act of contempt is done in the presence of the presiding judge. In the case of direct contempt, the judge tells the party about the act which he has committed amounts to disruption of the court or the tribunal. Then the person is given an opportunity to respond to the allegation, after hearing the party the judge can sanction the punishment immediately.

While in the case if indirect contempt the contempt is been done outside the court and it consists of disobedience of a court's prior order. A person who has been alleged of such contempt is firstly given a notice about the charge on him. Secondly an opportunity for hearing all the pieces of evidence which he or she wants to present before the honorable court. And then the case is decided, so is the punishment if found guilty.

Now let's see the concept of criminal and civil contempt of court in the USA. Contempt of court in a civil suit is not believed to be a criminal offense but, in some cases, it was seen that some of the civil contempt intended to harm the reputation of the plaintiff, the judge, or the court.

Thus, the case was accordingly delt by the court. When the offender is punished for criminal contempt, the contempt must be proved beyond a reasonable doubt, and once the charge is proved then the punishment is to be given unconditionally. While when a person is accused of civil contempt, he is only imposed with the sanction till the order of the court is disobeyed, once it has been obeyed the sanction is removed. The burden of proof is much lighter in the case of civil contempt as compared to criminal contempt[30].

England
Here the contempt laws have been codified in the Contempt of Court Act, 1981. The types of contempt recognised by the country are either civil contempt or criminal contempt. The maximum punishment which is been given under criminal contempt in Contempt of Court Act,1981 is imprisonment of two years.

Contemptuous behaviour toward the judge or magistrates while holding the court, tending to interrupt the due course of a trial or other judicial proceeding, may be prosecuted as "direct" contempt. The term "direct" means that the court itself cites the person in contempt by describing the behaviours observed on the record. Direct contempt is distinctly different from indirect contempt, wherein another individual may file papers alleging contempt against a person who has willfully violated a lawful court order.

In England, the crown court is the superior court according to the Senior Courts Act,1981 and the crown courts have power to punish for the contempt of criminal nature. The punishment can be given in the following cases:
  1. Contempt in the face of the court.
  2. Disobedience of courts order.
  3. Breach of undertaking given to the court.
It is at the discretion of the court if it finds the case to be urgent the court can order the imprisonment or if the contempt is indirect in nature the Attorney General can intervene and the Crown Prosecution Service will institute criminal proceedings on his behalf before a Divisional Court of the Queen's Bench Division of the High court Of Justice of England.

Magistrates' courts also have powers under the 1981 Act to order to detain any person who "insults the court" or disrupts its proceedings until the end of the sitting. Upon contempt being admitted or proved the District Judge who was sitting as a magistrate may order committal to prison for a maximum of one month, impose a fine of up to £2,500 or both. So, these were provisions relating to criminal contempt, now let's have a look at how a civil proceeding is been dealt with in England.

In civil proceedings, there are two ways when a person is said to have committed contempt. Firstly, when a summons order is issued in the favour of the person and he or she did not come to the court on the given date. In the past time, a writ of Latitat was issued but now a bench warrant is issued which directs the arrest of the individual and to keep him in custody till the court appoints the next sitting.

If the person gives an apology later to the court, then he can be given bail after the arrest. Secondly, if he or she fails to comply with the court's order. A copy of the order which includes a penal notice, notice informing the recipient that if they do not comply, they are subject to imprisonment, is given to the person concerned. Even after that, they breach the order, proceedings can be started and the person involved can be sent to prison.

In practice, this rarely happens as the cost on the claimant of bringing these proceedings is significant and in practice, imprisonment is rarely ordered as an apology or fine are usually considered appropriate[31].

Hong Kong
In Hong Kong Judges from the Court of Final Appeal, High Court, District Court and the members of various tribunals and Coroner's Court all of them has the power to punish for its contempt in the face of the court which comes from the legislation of common law. This includes insulting a judge or justice, the witness of officers of the court, interruption in the proceedings of the court, interference in the course of justice, misbehaving in the court, leaving the court without the permission of the court during a proceeding, disobedience of a judgement or order of the court, breaching an undertaking given to the court and breaching a duty which is imposed on a solicitor by rules of the court. In case of using threatening or insulting language for a Magistrate, the magistrate can summarily sentence the offender to a fine at level 3 and to imprisonment for 6 months[32].

Conclusion
The Law's which punishes for the act of Contempt of court, shouldn't be believed to be a threat to the Fundamental rights that have been granted by the Indian Constitution itself. Right to speech doesn't include the right to contempt. Every citizen of India is provided with the right to freedom of speech and expression but contempt of court falls under the exception of this fundamental right.

Decency, morality, defamation and public order and incitement of offences are some of the other restrictions on right to freedom of speech and expression. In order to maintain the decorum of the court, it is really important for a nation to have strict laws regarding contempt of court. Citizens of a nation should have respect within themselves for the judicial system in order to have faith in it. Where there is respect, faith is incorporated automatically.

Not only India but many of the leading nations have incorporated laws that punish for contempt of court. This should not be seen as a restriction on any fundamental right rather It should reflect the positive side of the judicial system. Judiciary in the name itself includes justice, tries to meet the end of justice in every case which comes to it. Isn't it our responsibility to give justices/respect to the Justice Provider¯ of the nation? Yes, it is.

End-Notes:
  1. A. Ramalingam v. V. V. Mahalinga Nadar, AIR 1966 Mad. 21
  2. Kapildeo Prasad Sah & Ors. V. State of Bihar & Ors., (1999) 7 SCC 569
  3. Indian Const.art 14
  4. State of Bombay v. P.,AIR1959 Bom 182
  5. J.R. Parashar v. Prashant Bhushan,AIR 2001 SC 3395
  6. Het Ram Beniwal & Ors. V. Raghuveer Singh & Ors , AIR 2016 SC 4940
  7. Indian Const.art 129
  8. Indian Const.art 215.
  9. Indian Const.art 142.
  10. Pallav Sheth v. Custodian & Ors., AIR 2001 SC 2763
  11. The Criminal Procedure Code,1973 § 345
  12. Arun Paswan,S.I. V. State of Bihar & Ors ,AIR 2004 SC 721
  13. The Contempt of Court Act,1971 § 10
  14. The Contempt of Court Act,1971 § 11.
  15. The Contempt of Court Act,1971 § 2 cl.2.
  16. The Contempt of Court Act,1971 § 2 cl.3.
  17. The Contempt of Court Act,1971 § 14.
  18. The Contempt of Court Act,1971 § 15.
  19. The Contempt of Court Act,1971 § 20
  20. The Contempt of Court Act,1971 § 3.
  21. The Contempt of Court Act,1971 § 4.
  22. The Contempt of Court Act,1971 § 5.
  23. The Contempt of Court Act,1971 § 6.
  24. The Contempt of Court Act,1971 § 7.
  25. Ashwini Kumar Ghose & Anr. V. Arabinda Bose & Anr ,AIR 1953 SC 75
  26. The Contempt of Courts Act, 1971
  27. M P Jain, outlines of Indian and constitutional History¯ (Lexis Nexis; Sixth edition(2010)
  28. Legal Remembrancer v Matilal Ghose & Ors ,(1914) I.L.R 41 Cal,173
  29. Martin v. Lawrence, (1879)ILR 4 Cal 655
  30. https://www.law.cornell.edu/wex/contempt_of_court
  31. https://www.gov.uk/contempt-of-court
  32. https://www.info.gov.hk/gia/general/201802/07/P2018020700514.htm

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