Power of court of record to prevent continuous and repeated contempt

Article 129 and Article 215 of the Constitution of India, respectively, recognise that the Supreme Court and the High Courts shall be courts of record and that they shall have all the powers of such a court including the power to punish for contempt of itself.

Entry 77 of List I, Entry 65 of List II, and Entry 14 of List III give to Parliament and the state legislatures the power to legislate on the subject of contempt of court subject to the provisions of Article 246. In exercise of such power, Parliament enacted the Contempt of Courts Act, 1971.

The 1971 Act provides the manner in which civil and criminal contempt is to be dealt with, including the punishment which can be imposed. What the 1971 Act contains is the procedure to be followed once the act of contempt is complete. There is no provision in the 1971 Act by having resort to which continuous and repeated contempt can be prevented from being further committed. As per the long title of the 1971 Act, it is meant to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto. As per section 22 of the 1971 Act, the provisions of the 1971 Act are meant to be understood in addition to and not in derogation of the provisions of any other law relating to contempt of courts.

Thus, as per the long title and Section 22 of the 1971 Act, it is clear that the 1971 Act is not exhaustive vis-a-vis every possible aspect of contempt and does not deal with the preventive aspect, that is preventing an ongoing continuous contempt or repeated acts of contempt.

The power to deal with and punish contempt is there to protect the majesty of law. It emanates out of public interest to maintain law and order in society. If contempt is not dealt with appropriately, the majesty of law is bound to receive a setback.

In cases of acts of committed/completed contempt, there is no problem; they can be dealt with as per the provisions of the 1971 Act. But the question is, when the contemptuous act is of a continuous nature or is repeated, how does the law deal with it?

It is settled law that Parliament or state legislatures cannot abrogate or stultify the power of constitutional courts as recognised under Article 129 and Article 215 of the Constitution. The power can be regulated but not abrogated or stultified (refer Pallav Seth v. Custodian). It is no more res integra that Article 129 and Article 215 of the Constitution do not confer the power to punish for contempt to the constitutional courts but such power is inherent in them because of their being courts of record (refer Commissioner v. Rohtas Singh; Delhi Judicial Service Association, Tis Hazari Court v. State of Gujarat; Sukhdev Singh v. Teja Singh, and Borrie and Lowe’s Law of Contempt, Second Edition page 314).

In a situation where a continuous contemptuous act or repeated contemptuous acts are committed, do the courts of record not have the power to prevent such act/acts from being further committed? Is it imaginable that the courts of record cannot prevent a continuous contemptuous act or repeated contemptuous acts from being further continued/committed?

Quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest is a well-known legal maxim which signifies that if the law gives anything to anyone, it gives also all those things without which the thing itself could not exist. In RL Kapur v. State of Tamil Nadu, the Supreme Court while dealing with the jurisdiction of contempt held that a court of record being clothed with a special jurisdiction, also has all incidental and necessary powers to effectuate that jurisdiction. In Rajeshwar Singh v. Subrata Roy Sahara, the Supreme Court held that the inherent power vis-a-vis the contempt jurisdiction is elastic, unfettered and not subjected to any limit.

Without the power to prevent contempt, the power to just punish for contempt after it has been committed would not equip the courts of record with the necessary armoury to maintain the majesty of law. Thus, the power to prevent acts of continuous, clear contempt or repeated acts of clear contempt must be understood as being inherent in every court of record.

But can a person only accused of (whose guilt has not yet been adjudged) a continuous act or repeated acts of clear contempt be detained and sent to prison for preventing further contempt? As per Article 21 of the Constitution, a person cannot be deprived of his life or personal liberty except according to the procedure established by law. Unless a clear provision is made authorising courts of record to detain such persons and keep them in jail, in view of Article 21, such detention is not permissible.

In the view of the author, such a provision should be made whereby courts of record are authorised to detain such persons, in extreme and appropriate cases, until it is clear that their release would not lead to their resuming the commission of clear contemptuous acts. Except detention in custody, courts of record in India have the inherent power to do all that is necessary to be done to prevent further commission of an ongoing contemptuous act of a continuous nature or acts of repeated contempt from being further committed. Even something which is not permissible to be done at the time of punishment may be done at the interim stage in order to ensure prevention of further contempt.

For example, in cases involving advocates, if the alleged contemner is a person in authority wherefrom he is able to commit repeated contempts, he may be temporarily dethroned from his office as an interim measure to prevent further contempt from being committed until the contempt is finally decided. Although, dethroning is not a recognisable form of ultimate punishment. Other advocates, not in a position of authority, may be temporarily suspended from practising to prevent further contempt from being committed. However, suspension is not recognised as an ultimate punishment which can be imposed on the contemner.

There are several precedents laying down that dethroning or suspension cannot be imposed as ultimate punishments, but in the opinion of the author, to maintain the majesty of law, courts of record can temporarily do so not with intent to punish the alleged contemner but to prevent further contempt from being committed with the sole objective of maintaining the majesty of law. Otherwise, the majesty of law would be severely undermined and the courts of record would have no option but to helplessly witness the catastrophe.

Shrikrishna Dagliya is a Presiding Officer at the Labour Court of Jabalpur, Madhya Pradesh.