3.

3 GENERAL POSITION IN INDIA ON CONTEMPT UNDER CONTEMPT OF COURT

ACT 1971.

Before the existence of Contempt of Court Act 1971, India had enacted Contempt of
Court Act 1952, replacing the one in 1926.1 After several amendments were made, this act
was still found to be defective in many aspects. At that point of time, there word contempt
itself was not defined under the act, even the defences available for the contemnor were not
laid out as well as the procedures for the proceeding. Later, after some more alterations and
presentation of bill, they finally came to a conclusion with Contempt of Court Act 1971.2

Under the current Act, the definition for the word contempt was finally provided.
Section 2(a) of the Contempt of Courts Act of 1971 defines contempt of court as civil
contempt or criminal contempt.3 Similarly as applicable in common law, in India, the
contempt of court is also divided into two types which are civil contempt and criminal
contempt.4

Under Section 2(b) of the Act, civil contempt has been defined 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.5 Distinctly, criminal contempt under the act, in light of
Section 2(c) of the Act, criminal contempt means the publication (whether by words, spoken
or written, or by signs, or by visible representation, or otherwise) of any matter or the doing
of any other act whatsoever which:

(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court,
or

1
Origin and Development of Contempt Law in India <http://www.srdlawnotes.com/2016/11/origin-and-
development-of-contempt-law.html> accessed 12 June 2017.
2
Ibid.
3
Contempt of Court Act 1971
4
Rituj Chopra, The Concept of the Contempt of Court <http://www.legalserviceindia.com/article/l255-
Contempt-of-Court.html>
5
Note 3 at
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial
proceeding, or

(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration
of justice in any other manner.6

Apart from that, the importance of having a statutory law to govern certain offences is
to have the procedure of the trials laid out hence to be followed. According to the Act, by
virtue of Section 14, if a person is charged for the offence of contempt, the court may detain
him in custody either on the same day or as early as possible; give him a notice of the charge
in writing; allow him for the opportunity to make his defence to the charge; and after such
hearing, the court is responsible to make decision either immediately or after adjournment.7
However, it is undeniable that this act still invited criticism of the citizens on certain extent.
Among all suggestions to improvise the act, one of them suggestions is to correct the
procedure to punish for offences against the due administration of justice is to punish such
offences as ordinary offences through the ordinary procedure as far as practicable.8 It is
irrefutable that this would allow for the room of betterment in balancing the power between
the higher judiciary and the lower courts as well as the High Courts and the people.

Moving on, another disputable yet enthralling part in law of contempt is regarding the
range of punishments where generally, the objective of sentencing in criminal contempt is
considered retributive. However, for civil contempt, if disobedience is proven, the contemnor
can be detained until he frees himself by correcting his mistakes.9 Based on Contempt of
Court Act 1971, Section 12 provides the offence under this act may be punished with simple
imprisonment for a term which may up to six months, or with fine which may up to two
thousand rupees, or with both. Provided that the accused may be discharged or the

6
Ibid.
7
Note 3 at
8
Object of Law of Contempt <https://www.lawteacher.net/free-law-essays/administrative-law/object-of-law-
of-contempt-administrative-law-essay.php>
9
Mohd Sheriff, Shukriah, The Contempt Power: A Sword or A Shield? A Study of the Law and Practice of
Contempt of Court in Malaysia., Durham University, 2010.
<http://etheses.dur.ac.uk/536/1/Shukriah_Mohd_Sheriff_-_Ph.D_in_Law_Thesis_2010.pdf?DDD19+>
punishment awarded may be remitted on apology being made to the satisfaction of the
court.10 It can be said that India is one step ahead as it has explicitly bestows their law of
contempt by having their range of punishments clear. In fact, the limit is clearly given upon
the judges not to punish any person more than as specified in the provision. Nevertheless, in
circumstances where a person is found guilty of a civil contempt, alternatively, if it is found
that the fine is insufficient and will not meet the ends of justice and that a sentence of
imprisonment is necessary, the court shall punish him in a civil prison for such period not
exceeding six months as it may think fit.11 Conclusively, India has been efficient as the
ranges of punishments regarding contempt are codified into their CCA 1971.

Under common law, the civil and criminal contempt is different. There are at least
three categories of common law criminal contempt i.e. contempt in the face of court,
contempt by scandalising a court or a judge and contempt by sub judice comments. However,
in term of application, it was no far differ. In India, both types of contempt are subjected to
the act. Section 2 (c) (i), (ii), (iii) CCA 1971 covers criminal contempt. Although the Indian
definition is broad and may perhaps cover nearly all the situations of contempt in facie, it
would appear section 2 (c) (iii) specifically recognises the principle that the category of
contempt in facie should not be closed because it provides a safety net for punishment of
contempt that occurs in any other manner.12

A criminal contempt is more serious and aggravated from the civil contempt. This is
why in most cases, for civil contempt, apology has satisfies the court unlike in criminal where
even if the court accepts such apology, the punishments will not quash from granted. Even
so, civil contempt may amount to criminal contempt, if the contemnor neglects to obey the
Courts orders already given in the previous instance.13

10
Note 3 at
11
Ibid.
12
Note 9 at
13
Sam Malhotra, Difference between Civil Contempt and Criminal Contempt
<http://www.shareyouressays.com/116835/difference-between-civil-contempt-and-criminal-contempt>