Enforcing Decrees and Upholding Dignity: Contempt and Miscellaneous Practice

Article 129 declares the Supreme Court a court of record with all the powers of such a court, including the power to punish for contempt of itself. Article 142(2) adds that, subject to any law made by Parliament, the Court has every power to make orders for securing the attendance of any person, the discovery or production of documents, and the investigation or punishment of any contempt of itself. The Contempt of Courts Act, 1971 defines contempt, prescribes the punishment and procedure, and applies to the Supreme Court and the High Courts alike.

The power under Article 129 is inherent and is not created by the Act, but the Court exercises it consistently with the Act. In Pallav Sheth v. Custodian, the Court held that the one-year limitation in Section 20 applies to contempt proceedings under Articles 129 and 215 as well, because providing a period of limitation regulates the power rather than abrogating it. It also held that proceedings are initiated, for this purpose, when an application is filed or the Court issues notice on its own motion within one year of the alleged contempt.

The power has limits. In In Re: Vinay Chandra Mishra, the Court found an advocate guilty of contempt of a High Court Judge and, besides imposing a suspended sentence, suspended his right to practise for three years. A Constitution Bench in Supreme Court Bar Association v. Union of India overruled the decision to that extent, holding that suspension or removal of an advocate's licence is a matter for the Bar Councils under the Advocates Act, 1961, and cannot be imposed in exercise of contempt jurisdiction, though the Court may refuse to hear an advocate in contempt until the contempt is purged.

Civil contempt, under Section 2(b), is wilful disobedience of any judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking given to a court. The word 'wilful' carries the weight of the definition. A party who has not complied because the order is ambiguous, because compliance was genuinely impossible, or because of a bona fide understanding of what the order required is not ordinarily held guilty, though the Court will then direct compliance with the order as properly understood.

Undertakings given to the Court are taken seriously. In Rama Narang v. Ramesh Narang, the Court held that wilful breach of consent terms incorporated in its order is civil contempt, even if the terms contain no express undertaking to the Court, and that the possibility of executing the decree does not bar contempt proceedings. Parties should therefore consider carefully the terms of any consent order or undertaking, including the time within which it is to be performed.

Contempt proceedings are quasi-criminal. In Kanwar Singh Saini v. High Court of Delhi, the Court held that the standard of proof is the same as in other criminal cases, that the alleged contemnor is entitled to the benefit of doubt, and that contempt jurisdiction cannot be used to enforce a decree in a civil suit, for which the Code of Civil Procedure provides execution. The contempt court cannot adjudicate new questions or grant relief going beyond the order said to have been disobeyed.

Criminal contempt, under Section 2(c), consists of publishing anything or doing any act that scandalises or tends to scandalise, or lowers or tends to lower, the authority of any court; that prejudices or interferes with the due course of any judicial proceeding; or that interferes with or obstructs the administration of justice in any other manner.

The Act protects legitimate speech. Section 3 protects innocent publication, Section 4 protects fair and accurate reports of judicial proceedings, and Section 5 protects fair comment on the merits of a case that has been heard and finally decided. Section 13 provides that no one is to be punished unless the contempt substantially interferes, or tends substantially to interfere, with the due course of justice, and, since 2006, allows truth to be pleaded as a defence where the court is satisfied that it is in the public interest and the plea is bona fide.

Cognizance of criminal contempt of the Supreme Court is taken on its own motion, or on a motion by the Attorney-General or the Solicitor-General, or by any other person with the written consent of either of them. In In Re: Prashant Bhushan, the Court took cognizance on its own motion and held a lawyer guilty of criminal contempt for two posts on social media about the Court and the Chief Justice, and later imposed a nominal fine of one rupee. The case prompted wide debate about the boundary between criticism and contempt, which remains a matter of judgment on the facts of each case.

Section 12 provides for simple imprisonment of up to six months, a fine of up to two thousand rupees, or both. In civil contempt, where a fine would not meet the ends of justice, the court may direct detention in civil prison instead. The contemnor may be discharged, or the punishment remitted, on an apology made to the satisfaction of the court, and an apology is not to be rejected merely because it is qualified or conditional if it is made bona fide.

The courts look at the substance of an apology rather than its form. An apology offered at the outset, with an effort to comply, carries weight; one offered only when punishment appears certain, or accompanied by continued defiance, does not. In civil contempt the Court's primary concern is that the order be obeyed, and it frequently gives a party who has not complied an opportunity to do so before deciding whether to punish.

Section 19 provides an appeal as of right from an order of a High Court in the exercise of its jurisdiction to punish for contempt: from a single Judge to a Bench of the High Court, and from a Bench to the Supreme Court. An appeal to the Supreme Court must be filed within sixty days of the order. The appeal lies against an order imposing punishment; an order declining to initiate proceedings or dropping them is not appealable under Section 19, and directions on the merits issued in contempt proceedings must be challenged by the ordinary remedies.

Pending the appeal, the punishment may be suspended and, if the appellant is in custody, he or she may be released on bail. Since contempt orders often require the authority concerned to take specific steps within a time limit, an application for extension of time is frequently a better course than defending non-compliance.

Article 142(1) empowers the Court to pass any decree or make any order necessary for doing complete justice in any cause or matter pending before it. The power is used, for example, to dissolve marriages that have irretrievably broken down and to bring all proceedings between the parties to an end on a settlement, to quash criminal proceedings arising out of private disputes that have been resolved, and to mould relief where the strict application of the law would leave a party without an effective remedy.

The power supplements the law; it does not supplant it. As the Constitution Bench explained in Supreme Court Bar Association v. Union of India, Article 142 cannot be used to achieve something that a statute expressly prohibits, and it is ordinarily invoked only where the matter is already before the Court.

Much of the day-to-day work in a pending or disposed-of matter is done through miscellaneous applications: for directions, for extension of time to comply with an order, for impleadment or intervention, for vacation or modification of an interim order, for substitution of legal representatives, and for condonation of delay. Each must be supported by an affidavit and must state precisely what is sought and why.

Applications filed after a matter has been finally disposed of call for particular care. In Delhi Administration v. Gurdip Singh Uban, the Court held that an application described as one for 'clarification' or 'modification' that in substance seeks review cannot be used to bypass the procedure for review petitions, which are decided by circulation; such applications deserve to be rejected outright. The Court applied the same approach in Supertech Ltd. v. Emerald Court Owner Resident Welfare Association, dismissing an application to modify a final judgment directing the demolition of two residential towers as an attempt to reopen it.

Where a party to a pending appeal dies, an application to bring the legal representatives on record must be made within ninety days of the death under Article 120 of the Limitation Act; if it is not, the appeal abates as against the deceased, and an application to set aside the abatement must be made within sixty days under Article 121, with an application for condonation of any further delay. Delay in these and other applications is assessed on the principles explained in Collector, Land Acquisition, Anantnag v. Mst. Katiji and later decisions, discussed in the guide to limitation and condonation of delay.

A contempt petition should annex the order said to have been disobeyed, proof that it was communicated to or known by the respondent, and the correspondence calling for compliance, and should identify precisely which direction was not complied with. Where compliance depends on an authority's decision, the petition should name the officer responsible, since contempt is personal.

A respondent served with notice should place on affidavit the steps taken towards compliance, the reasons for any delay and, where needed, an application for extension of time. Where the order is genuinely unclear, the proper course is an application for clarification made promptly, not a decision to wait and see.