On the issue of contempt

Rahul Choudhary

In a recent judgement of the Supreme Court, the three Judges bench agreed to the summary procedure for imposition of punishment in the contempt case. In the case, Leila David vs. State of Maharashtra, filed before the Supreme Court, the petitioner among other reliefs, had also asked for direction to initiate criminal proceedings and strongest punishment against some twelve judges of the Bombay High Court. When the matter was being heard in March in the Court of Justice Arijit Pasayat and Justice A.K. Ganguly, one of the petitioners threw chappal at the Judges ((2009)4SCC578 Leila David vs. State of Maharashtra & Ors ). The case of contempt was taken up the same day in the Supreme Court. Justice Pasayat passed the following order:

“Today when these matters were taken up suddenly the contemnors started shouting and used very offensive, intemperate and abusive language and one had even gone to the extent of saying that the Judges should be jailed for having initiated proceedings against them and not interfering with orders by various judges of the Bombay High Court. They said that Judges are to be punished for not taking care of their so –called fundamental rights. One of them even threw chappal at the Judges. This happened in the presence of learned Solicitor General of India, two learned Additional Solicitor General and large number of learned counsel including the President of the Supreme Court Advocates –on – 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 the Court.”

The contemnors were sentenced a three months simple imprisonment by Justice Pasayat. However Justice A.K. Ganguly disagreeing with Justice Pasayat, passed a dissenting judgment. He held that, as per section 14 (1) of Contempt of Courts Act, 1971, 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 opportunity to make their defence to the charge. Thereafter on taking such evidence as may be necessary or as may be offered by the persons and after hearing them, the Court may 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. Justice Ganguly held that:

“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 moto.”

He further concluded in his order that:

“Therefore, in this view of the matter, I cannot agree with the view expressed in the order of His Lordship Justice Passayat, 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 a person 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 person’s fundamental right under Article 21.”

The matter was then directed to be placed before the Chief Justice, who on the very day of the incident, constituted three judges bench to hear the matter. When the contempt proceedings came up for consideration before the Supreme Court, Attorney General supported the view taken by Justice Pasayat. The Solicitor General and the President of the Supreme Court Bar Association also agreed with the submission of the Attorney General. The three judges bench of the Supreme Court concluded

“As far as the suo motu proceedings for contempt are concerned, we are of the view that Arijit Pasayat, J. was well within his jurisdiction in passing a summary order, having regard to the provisions of Articles 129 and 142 of Constitution of India [see the note below]….While, as pointed out by Ganguly, J., it is a statutory requirement and a salutary principle that a person should not be condemned unheard, particularly in a case relating to contempt of court involving a summary procedure, and should be given an opportunity of showing cause against the action proposed to be taken against him/her, there are exceptional circumstances in which such a procedure may be discarded as being redundant.” (Para 28 and 29, (2009)10 SCC 337)

Further coming to the conclusion that the procedure adopted by Justice Pasayat was right, the Supreme Court said:

“In the instant case, after being given an opportunity to explain their conduct, not only have the contemnors shown no remorse for their unseemly behavior, but they have gone even further by filing fresh writ petition in which apart from repeating the scandalous remarks made earlier…this is one of such cases where no leniency can be shown as the contemnors have taken the liberal attitude shown to them by the Court as a license for indulging in decorous behavior and making scandalous allegations not only against the judiciary, but those holding the highest positions in the country…” (emphasis mine)

Just for a comparison and to show the changing tenor of the judiciary today, we might quote from a recent book penned by one of the most revered Indian judges of all time, Justice O Chinnappa Reddy, who narrated the following story, while suggesting “that the expression ‘contempt of court’ should be replaced by the expression ‘obstructing justice'” and that the definition of criminal contempt should be drastically modified to exclude most kinds of criticism of judiciary and judgements:

“There is a well-known story of a judge of the American Supreme Court who when asked by the Court as to why he did not take action against a litigant who shouted ‘Nine old fools’ when the Court pronounced judgement against him said ‘There is no question that all the nine of us are old men and whether we are fools or not is a matter of opinion’.”

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Note: Article 129 provides “The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” Article 142 (the part relevant here) provides that Supreme Court shall have every power to make any order for the purpose of punishment of any contempt of itself.