Contempt: defences, procedure, punishment and contempt by judges

1. Defences: what is not contempt

• Innocent publication and distribution (section 3). A person who publishes matter interfering with a pending proceeding is not guilty if he had no reasonable grounds for believing the proceeding was pending. Publication about a proceeding that is not pending is not contempt under this head at all. A distributor is not guilty if he had no reasonable grounds to believe the publication contained such matter (except for unregistered books and newspapers). The Explanation defines when proceedings are pending: a civil case from filing of the plaint, a criminal case from the filing of the charge-sheet or issue of summons or warrant, and until appeal or revision is decided or the time for it expires.
• Fair and accurate report of judicial proceedings (section 4), subject to section 7.
• Fair criticism of a judicial act (section 5). Fair comment on the merits of a case that has been heard and finally decided.
• Complaint against presiding officers of subordinate courts (section 6). A statement made in good faith concerning the presiding officer of a subordinate court, to another subordinate court or to the High Court to which it is subordinate, is not contempt.
• Proceedings in chambers or in camera (section 7). A fair and accurate report is not contempt unless publication is prohibited by law or by the court, the sitting was for reasons of public order or security of the State, or it concerns a secret process or invention.
• Other defences preserved (section 8). Any defence valid before the Act remains available.
• No substantial interference (section 13(a)). No sentence may be imposed unless the contempt substantially interferes, or tends substantially to interfere, with the due course of justice. Trivial or technical contempt is not punished.
• Truth (section 13(b)), inserted by the Contempt of Courts (Amendment) Act, 2006. The court may permit justification by truth as a valid defence if satisfied that it is in the public interest and the request to invoke it is bona fide. Before 2006, truth was held to be no defence. In In re Prashant Bhushan, 2020 INSC 522, the Court held the plea of truth on the facts to be neither bona fide nor in the public interest.

Section 9 adds that nothing in the Act enlarges the scope of contempt, and section 21 excludes nyaya panchayats and village courts.

2. Procedure

• Contempt in the face of the Supreme Court or a High Court (section 14). The court may detain the person, inform him in writing of the charge, give him an opportunity of defence, take evidence and decide, the same day or as soon as possible. He may ask for trial by another judge, and the matter then goes to the Chief Justice.
• Other criminal contempt (section 15). The Supreme Court or High Court may act on its own motion, or on a motion by the Advocate-General (the Attorney-General or Solicitor-General for the Supreme Court), or by any other person with the written consent of the Advocate-General. For a subordinate court, the High Court acts on a reference by that court or on a motion by the Advocate-General.
• Notice and hearing (section 17). Personal service of notice with copies of the motion; the contemnor may file an affidavit in defence; property may be attached if he absconds.
• Bench (section 18). Criminal contempt under section 15 is heard by a Bench of not less than two judges.

3. Punishment and apology: section 12

• Simple imprisonment up to six months, or fine up to two thousand rupees, or both (section 12(1)). No court may exceed this for contempt of itself or of a subordinate court (section 12(2)).
• Apology. The contemnor may be discharged or the punishment remitted on an apology made to the satisfaction of the court. An apology is not to be rejected merely because it is qualified or conditional, if bona fide. But it must be sincere and timely; an apology tendered as a tactic after persisting in the contempt may be refused: L.D. Jaikwal v. State of U.P., 1984 INSC 111.
• Civil contempt (section 12(3)). Where a fine will not meet the ends of justice, detention in civil prison up to six months instead of simple imprisonment.
• Companies (section 12(4) and (5)). Persons in charge, and directors or officers by whose consent or neglect the contempt occurred, are liable.
• Limits on the Supreme Court. The Supreme Court’s power under Article 129 is not confined by the Act, but it cannot suspend an advocate’s licence as a punishment for contempt; that belongs to the Bar Councils: Supreme Court Bar Association v. Union of India, 1998 INSC 183, (1998) 4 SCC 409.

4. Limitation and appeal

• Section 20. No court shall initiate contempt proceedings after one year from the date on which the contempt is alleged to have been committed. In Pallav Sheth v. Custodian, 2001 INSC 353, (2001) 7 SCC 549, the Court held that where the contempt was concealed by fraud, time runs from its discovery.
• Section 19. An appeal lies as of right from a High Court’s order punishing contempt: from a single judge to a Bench of two or more judges within thirty days; from a Bench to the Supreme Court within sixty days. The appellate court may suspend the punishment and grant bail.

5. Contempt by judges: section 16

A judge, magistrate or other person acting judicially is liable for contempt of his own court or of any other court in the same manner as any other individual. Remarks made by a judge about a subordinate court in an appeal or revision before him are excluded. A magistrate who defies the High Court’s orders, or a judge who abuses a litigant or advocate so as to obstruct justice, can be proceeded against.

6. Problem

Mr. X filed a complaint against a judge, alleging that he is taking bribes or is otherwise influenced, with the superior officer for enquiry. Has X offended the law of contempt?

Law. Section 2(c)(i): scandalising a court is criminal contempt. Section 6: a statement made in good faith concerning the presiding officer of a subordinate court, to the High Court to which it is subordinate (or another subordinate court), is not contempt. Section 13(b): truth may be pleaded if in the public interest and bona fide. Rule 1 of the Bar Council of India Rules says that where there is proper ground for serious complaint against a judicial officer it is the right and duty of an advocate to submit the grievance to proper authorities.

Application. X did not publish his allegation to the public or shout it in court; he took it to the authority that can enquire into it. That is the channel the law approves. If the judge is of a subordinate court and the complaint went to the High Court (or the District Judge), section 6 protects X provided he acted in good faith, meaning with due care and attention and some basis for the allegation, not out of spite after losing a case. If the complaint is reckless, false and made to pressure the judge in a pending case, the protection is lost and the complaint itself may be contempt. If the judge is of a High Court, section 6 does not apply in terms, but a bona fide complaint to the Chief Justice is not contempt either, and section 13(b) is available if the allegation is true.

Conclusion. X has not committed contempt if his complaint was made in good faith to the proper superior authority. He would be guilty only if it was mala fide or made recklessly without basis, or if he gave it publicity calculated to scandalise the court.

How this is examined

For the defences question, take sections 3 to 8 and 13 in order, with the 2006 amendment highlighted. For punishment, section 12 and the apology proviso, with SCBA on the Supreme Court’s limits. The complaint problem was set in December 2018.