Today in open Court when Item No. 37 was called on,
the petitioners appeared in person. Several ladies
appeared along with a gentleman and they addressed the
Court in very intemperate and offensive language. The
address was more against the Members of the Bench than on the merits of the case. To say the least, this is
unfortunate. The persons who appeared, became very
agitated and one of them threw a footwear at the Bench.
At the time the learned Solicitor General of India was
present in Court and two other learned Additional
Solicitors General were also present along with a large
number of advocates. Ultimately, those agitated persons
were actually taken out of the Court by some other
Advocates and by security personnel.
To my mind this is prima facie an incident where
provisions of Section 14 of the Contempt of Courts Act,
1971 (hereinafter the Act) can be invoked.
Learned Justice Pasayat called for the Registrar
(Judl.) of this Court and was pleased to pass an order to
the following effect:
“Today when these matters were taken
up suddenly the contemnors started
shouting and used very offensive,
intemperate and abusive language and even
one had gone to the extent of saying that
the Judges should be jailed for having
initiated proceedings against them. They
said that Judges are not interferring with
orders by various Judges of the Bombay
High Court, are to be punished for not
taking care of their so-called fundamental
rights. Even one of them threw a chappal
at the Judges. This happened in the
presence of the learned Solicitor General
of India, two learned Additional Solicitor
General and a large number of learned
counsel including the President of the
Supreme Court Advocate of Record
Association.
This conduct is contemptuous. There is
no need for issuing any notice as the
contemnors stated in open Court that they
stand by what they have said and did in
Court. The Registrar is directed to take
the following four persons into custody
from the Court premises:
1. Annette Kotian D/o A. Kotian, R/o 1.
Madhav Baug, Brahim Society, Naupada Thana –
400602; (aged 23 years)
1. Dr, Sarita Parikh D/o Kishore Bansilal
R/o F.16, Juhu Apartments, Juhu Road, Juhu
Mumbai -49; (aged 31 years)
1. Leila David W/o Neil David R/o 22, West
View 1st Pastalane, Colaba, Mumbai -5; (aged
75 years)
1. Pavithra Murali D/o Murli R/o Jeevan
Akash Forjett Street, Tardev, Mumbai -36
( aged 23 years)
They shall suffer three months simple
imprisonment.
Rest of the matters shall be listed after
three weeks.”
His Lordship by this order directed the Registrar
(Judl.) to send persons named above to prison, as
according to His Lordship, they have acted in an indecent
manner which is apparently contumacious in the face of
the Court. His Lordship thus also sentenced them as
above.
Just before that, the learned Solicitor General has
addressed the Court and suggested that instead of taking
those persons into custody, the Court may restrain them
from entering any Court premises except in cases where
they have to answer any charge or defend themselves. In
support of the said contention the learned Solicitor
General of India relied on Arlidge, Eady and Smith on
Contempt, Second Edn. 1999 paragraph 14- 106:
“14-106: Against that background, the
Vice- Chancellor concluded that it would be
quite inappropriate to deal with the matter by
way of imprisonment, the purpose of which in
such a case “would be to mark the displeasure
of the Court about the contempt that had been
committed and to punish the perpetrator””. He
said that a person suffering from the mental
infirmity in question did not require
punishment, and the Court’s displeasure had
been connoted by the judgments the Vice-
Chancellor had given. He focused therefore
rather upon the need to protect court officials
in the future, both in the High Court and in
county courts generally, and granted
injunctions restraining the bringing of any
action of making any claim in an action already
brought except by a next friend, the persons
were also restrained by injunction from
“entering any court premises save as may be
necessary to answer subpoenas.”
To that suggestion of the learned Solicitor General,
I pointed out in open Court that in our country the law
of contempt is not dependent solely on Common law
principles, but the exercise of contempt jurisdiction in
India is regulated in accordance with the provisions of
the said Act. It is of course true that the Supreme Court
has its inherent power. Apart from the power conferred on
it under the said Act, it has inherent power under Art.
129 of the Constitution to punish for contempt of itself.
This Court also has power under Article 142 of the
Constitution.
In matters of initiating a contempt proceeding
against erring litigants and where contempt takes place
in the face of the court, the procedure has been
statutorily prescribed under Section 14 of the said Act.
The said Section is based on the Recommendation of the
Sanyal Committee and paragraph 4 of the Recommendation on
which Section 14 has been modelled may be very
instructive and is set out hereunder:
“4. From what we have stated, it is clear
that it is not wise to modify in any manner the
summary powers of Courts to deal with contempts
committed in their presence. We, therefore,
feel that the Court should, in cases of
criminal contempt committed in its presence, be
able to deal with the contempt forthwith or at
any time convenient to it after informing the
person charged with contempt orally of the
charge against him and after giving him an
opportunity to make his defence to the charge,
pending determination of the charge, the person
charged with contempt may be detained in such
custody as the Court deems fit. Wherever the
matter is not disposed of forthwith, we also
feel that the person charged should be enlarged
on bail pending determination on the execution
of a bond for due appearance for such sum and
with or without sureties as the Court considers
proper. We are happy to note that this is
generally the practice.”
(emphasis supplied)
The relevant provisions of Section 14(1) of the Said
Act run as under:
“S. 14. Procedure where cotempt is in the
face of the Supreme Court or a High Court. -
(1) 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, shall-
(a) cause him to be informed in writing
of the contempt with which he is charged;
(a) afford him an opportunity to make his
defence to the charge;
(a) after taking such evidence as may be
necessary or as may be offered by such person
and after hearing him, proceed, either
forthwith or after adjournment, to determine
the matter of the charge; and
(a) make such order for the punishment or
discharge of such person as may be just.”
It is clear from a perusal of Section 14(1) of
the said Act that in initiating a contempt
proceeding and when contempt is allegedly committed in
the face of the Court, the Court has to inform the
alleged contemnors in writing the charge of contempt and
then afford them an opportunity to make their defence to
the charge and thereafter on taking such evidence as may
be necessary or as may be offered by the persons and
after hearing them, proceed either forthwith or after
adjournment to determine the matter of the charge and may
make such order for the punishment or discharge of such
persons as may be just.
These four steps provided under Section 14(1) of the
Act are mandatory in nature.
These steps have been engrafted under the Statute
following Common Law traditions in other countries and
also possibly keeping in view the age old principle that
in contempt proceedings, the Court acts both as Judge and
an accuser, rolled into one, and the Court must act with
utmost restraint and caution and must follow all the
procedural requirements since the liberty of persons is
involved.
Under Section 14(4) of the Act, the Court may
temporarily take the alleged contemnor in custody but it
cannot imprison him/her by way of punishment without
following the safeguards under sub-section 14(1) of the
Act.
Mere unilateral recording in the order that the
contemnors stand by what they said in Court is not a
substitute for compliance with the aforesaid mandatory
statutory requirement.
Apart from that at that time when the alleged
offending acts were committed by those persons the
Court’s atmosphere was so surcharged that no such offer
could be validly made.
In other Common law jurisdictions where such clear
statutory provisions are not there, same principles of
caution which is akin to Section 14 of the said Act have
been judicially evolved while dealing with a case of
contempt in the face of the Court. Reference in this
connection may be made to the decision of the High Court
of Australia where in a case it has been laid down:
“It is well-recognised principle of law
that no person ought to be punished for cotempt
of Court unless the specific charge against him
be distinctly stated and an opportunity of
answering is given to him……..The gist of the
accusation must be made clear to the person
charged, though it is not always necessary to
formulate the charge in a series of specific
allegations. The charge having been made
sufficiently explicit, the person accused must
then be allowed a reasonable opportunity of
being heard in his own defence, that is to say
a reasonable opportunity of placing before the
court any explanation or amplifications of his
evidence and any submissions of fact of law,
which he may wish the Court to consider as
bearing either upon the charge itself or upon
the question of punishment. Resting as it does
upon accepted notions of elementary justice,
this principle must be rigorously insisted
upon. (Coward V. Stapleton (1953) 90 CLR 573,
579-80).
Similar principles have been laid down by the
Supreme Court of Canada in B.K. Vs. The Queen:
“There is no doubt in my mind that he was
amply justified in initiating the summary
contempt procedures. I, however, find no
justification for foregoing the usual steps,
required by natural justice, of putting the
witness on notice that he or she must show
cause why they would not be found in contempt
of court, followed by an adjournment which need
be no longer than that required to offer the
witness an opportunity to be advised by counsel
and, if he or she chooses, to be represented by
counsel. In addition, upon a finding of
contempt there should be an opportunity to have
representations made as to what would be an
appropriate sentence. This was not done and
there was no need to forego all these steps.”
(1996) 129 DLR (4th) 500)
Reference in this connection may be made to a
decision of this Court in Dr.L.P. Misra Vs. State of U.P.
reported in (1998) 7 SCC 379.
A somewhat similar incident, may be of a graver
import, happened in Allahabad High Court on 15.7.1994
when a group of Advocates entered the Court room,
shouting slogans and asking the Court to stop its
proceedings. As the Court continued, the advocates went on to the dais and tried to manhandle the Judges and
uttered very abusive language against one of the Members
of the Bench. The abusive utterances were:
“Tum sale with jaao nahien to jann se maar
daalenge. Tumne Chief Justice se kaha hai ki
Lucknow ke Judges 5000 rupya lekar stay grant
karte hain aur stay extend karte hain. Aaj 2
baje tak agar tum apan boriya bistar lekar
yahan se nahien bhag jaate ho to tumhe jann se
maar daalenge.”
The learned Judges retired to their Chambers and
then re-assembled and passed an order holding the
Advocates guilty by imposing sentence of imprisonment and
fine. In doing so, the learned Judges invoked the High
Court’s power under Article 215 of the Constitution.
Against that order, an appeal was filed to this Court.
It may be noted that power of the High Court under
Article 215 of the Constitution is in similar terms as
the power of the Supreme Court under Article 129 of the
Constitution.
The learned three Judge Bench of this Court in L.P.
Misra (supra) set aside the order of Allahabad High Court
as the same was passed without following the procedure
prescribed under the law. In doing so the learned Judges
referred to Section 14 of the said Act and the rules of
Allahabad High Court Rules (para 6 page 381 of the
report). Those rules and the provisions of Section 14
(1)(a)(b)(c)(d) of the said Act are almost similar in
terms. This Court also held that the power of the High
Court under Article 215 has to be exercised in accordance
with the procedure prescribed by law (Para 12 page 382 of
the report).
The safeguards statutorily engrafted under Section
14 of the Act are basically reiterating the fundamental
guarantee given under Article 21 of the Constitution.
This guarantee which possibly protects the most precious
fundamental right is against deprivation of one’s
personal liberty “except according to procedure
established by law”. This Court, being the guardian of
this right, cannot do anything by which that right is
taken away or even abridged and especially when the Court
is acting suo motu.
For these reasons in the instant case, with great
respect to His Lordship Justice Pasayat, I cannot agree
with His Lordship’s view of sending these persons to
prison for having allegedly committed contempt in the
face of the Court without following the mandate of Law
under Section 14(1) (a) (b) (c) and (d) of the Act.
I am of the view that this Court’s power under
Article 142 of the Constitution is not meant to
circumvent clear statutory requirements.
The opening words of Article 142 shows that the
Supreme Court shall exercise its power under the said
Article “in exercise of its jurisdiction”. Therefore,
the jurisdiction of the Supreme Court in initiating
proceeding for contempt under Section 14 of the said Act
must be exercised following the statutory dispensation.
In other words, Supreme Court cannot, while exercising
its jurisdiction under Article 142, render salutary
provisions of Statute nugatory and otiose. These
provisions as noted above give effect to the fundamental
guarantee under Article 21 of the Constitution.
Therefore, in this view of the matter, I cannot
agree with the view expressed in the order of His
Lordship, Justice Pasayat, for sending the alleged
contemnors to prison for allegedly committing the
contempt in the face of the Court without following the
mandate of the Statute under Section 14. I, therefore,
cannot at all agree with His Lordship’s order by which
sentence has been imposed. I am of the view that the
liberty of those persons cannot be affected in this
manner without proceeding against them under Section 14
of the Act. In my opinion Section 14 is in consonance
with a person’s fundamental right under Article 21.
New Delhi 20/03/2009.