CONSTITUTIONAL LAW OF INDIA
A Critical Commentary
by H.M. Seervai, Advocate General of Maharashtra, 1957-74
Fourth Edition.

11.516:-  In Delhi Judicial Service Assocn., Tis Hazari Court v. Gujarat, [ (’91) A.SC. 2176. (1991) 4 S.C.C. 406.] K.N. Singh J. for himself and Kuldip Singh and Kasliwal JJ. decided a iarge number of questions relating to contempt of court, as also the powers and jurisdiction of the Sup. Ct. as the highest Court in India (described in the judgment as the “Apex Court”). A number of petitions were filed which are described as writ petitions and a number of other petitions were filed which are described as criminal contempt petitions.

11.517:-  The whole matter arose out of a most distressing incident in which one S.R. Sharma (“Sharma”) , Inspector of Police with 25 years of service, was posted at the police Station, Nadiad. He

    “…. Arrested, assaulted and handcuffed N. L. Patel (Patel) the Chief Judicial Magistrate (CJM) Nadiad, tied him with a rope like an animal and made a public exhibition of it by sending him in the same condition to the hospital for medical examination on an alleged charge of having consumed liquor in breach of the prohibition law enforced in the State of Gujarat. (Sharma) got the Chief Judicial Magistrate photographed in handcuffs with rope tied around his body along with the constables. These photographs were published all over the country.”  [(’91) A.SC. 2176. p. 2184. ]

11.518:- The reasons why the Sup. Ct. heard the matter are set out at length in para 2 of its judgment. [ (’91) A.SC. 2176. p. 2184. 99( They are too long to quote.) ] Strikes threatened by judicial officers and by lawyers all over India confer no jurisdiction on the Sup. Ct. if it does not otherwise possess that jurisdiction. Without in any way condoning Sharma’s outrageous action, I will submit that jurisdiction was wrongly claimed and exercised by the Sup. Ct. I do so because the important legal questions raised by the judgment of K. N. Singh J. far transcend the individual outrage perpetrated on Patel (CJM). It is submitted that the Sup. Ct. possessed no jurisdiction or power of superintendence over all Courts and tribunals in India for the reasons set out in paras 11.519 to 11.545 below.

11.519:-  K.N. Singh J. observed that the rival contentions of the parties raised the question whether the Sup. Ct. had inherent jurisdiction or power to punish for contempt of subordinate or inferior courts under Art. 129, and whether the inherent jurisdiction and power of the Sup. Ct. was restricted by the Contempt of Court Act 1971 (“The Contempt Act 1971”). He said that the answer to the first question depended upon the nature and scope of the Sup. Ct.’s power as a court of record in the background of the original and appellate jurisdiction exercised by it under various provisions of the constitution. [ He referred to Arts. 129, 131, 132,133,134,134A and 136. ] At p. 2193 of his judgment K. N. Singh J. cited the following passage from the Sup. Ct.’s judgment in Durga Shankar Mehta v. Thakur Raghuraj Singh. [ (1955) 1 S.C.R. 267 at p. 272, (’54) A.SC. 520 at p. 522. ] In that case, Mukarjea J., in delivering the judgment for himself, Mahajan C.J., Vivian Bose, Bhagwati and Venkatarama Aiyar JJ. Observed:

     “The powers given by Art. 136 of the Constitution, however, are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land. The article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or circumscribe the power exercisable under  this article in any way. [(’91) A.SC. at p. 2193. ]

11.520:-  “Appellate power vested in the Sup. Ct. under 136 of the Constitution is not to be confused with ordinary appellate power exercised by appellate Courts and appellate tribunals under specific statutes. As we said earlier, it is plenary power, ‘exercisable outside the purview of ordinary law’ to meet the pressing demands of justice [vide Durga Shankar Mehta v. Thakur Raghuraj Singh (AIR 1954 SC 520).] [(’91) A.SC. at p. 2193.]

11.521:-  “There is, therefore, no room for any doubt that this Court has wide power to interfere and correct the judgment and orders passed by any Court or Tribunal in the Country. In addition to the appellate power, the court has special residuary power to entertain appeal against any order of any Court in the country. The Plenary jurisdiction of this court to grant leave and hear appeals against any order of a Court or Tribunal confers power of judicial superintendence over all the Courts and Tribunals in the territory of India including subordinate Courts of Magistrate and District Judge. This Court has, therefore, supervisory jurisdiction over all Courts in India. [ (’91) A.SC. at p. 2194.]

Court of Record : Defined

11.545:- Further, K. N. Singh J. assumed that the word “including” could not have been used except to confer on the Sup. Ct. in addition to its powers as a court of record the power to punish for contempt of itself and of subordinate courts. He failed to realize the powers which belong to the Sup. Ct. as a court of record, because a “court of record” is defined as “a court where all the acts and judicial proceedings and enrolled for a perpetual memory and testimony and which has power to fine and imprison for contempt of its authority”

    Jowitt, Dictionary of English Law, Vol. I, (2nd ed.) p. 501. First, the acts and judicial proceedings do not by themselves get enrolled for a perpetual memory and testimony. It becomes necessary for the court of record to appoint appropriate number of officers to take charge of and make arrangements for preserving its acts and judicial proceedings, in order to ensure that they are enrolled for a perpetual memory and testimony. The appointment of officers, the construction and/or hiring, of premises where the records can be preserved safely, the supervision of the records in order to see that they remain in good condition are all powers of the Sup. Ct. as a court of record, including power to commit for contempt of itself, is the power to commit for contempt of subordinate courts.

11.546:-  K. N. Singh J. in the Judicial services Assocn. Case observed:

      “…..The incident undermines the dignity of courts in the country. Judicial officers, judges and magistrates all over the county were in a state of shock, they felt insecure and humiliated and it appeared that instead of the rule of law there was police Raj in Gujarat. A number of Bar associations passed resolutions and went on strike…..” [ (‘91)A.SC. 2176 at p. 2184]

 It is submitted that these distressing facts have led K.N. Singh J. and his brother judges to hold, notwithstanding the law and the constitution, that the Sup. Ct. had power to punish Inspector Sharma and certain other officers for contempt. However, the outrageous conduct of a Police officer gives not jurisdiction to the Sup. Ct. when the constitution and the law have given the Sup. Ct. no such jurisdiction.

11.547:- Observations in the judgment of K.N. Singh J. seem to suggest that the Contempt Act 1971 only made certain minor changes in the law of contempt. It would be unprofitable to consider these observations individually. However, the Statement of Objects and Reasons annexed to the Bill which later became the contempt Act 1971 states:

   “ It is generally felt that the exiting law relating to contempt of Courts is somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two important fundamental rights of the citizen, namely, the right to personal liberty and the right to freedom of expression. It was, therefore, considered advisable to have the entire law on the subject scrutinized by a special committee. In pursuance of this, a committee was act up in 1961 under the Chairmanship of the late Shri H.N. Sanyal, the then Additional Solicitor-General. The Committee made a comprehensive examination of the law and problems relating to contempt of court in the light of the position obtaining in our own country and various foreign countries. The recommendations the Constitution and of the need for safeguarding the status and dignity of Courts and interests of administration of Justice”  [ Samaraditya Pal, The Contempt of Court Act 1971 (1992) p. 3.]

   Therefore, the object of the Contempt Act 1971 was, inter alia, to define contempt of court, to remove the uncertainty which surrounded it and to make the law satisfactory, and to do this by striking a balance between the fundamental right to the freedom of speech on the one hand and the need to maintain the authority and dignity or the courts and to ensure free and fair trials on the other. It is relevant to observe that in early days the power of the courts to commit for contempt of court was almost absolute. Judges decided what acts constituted contempt and it was no defence to say that the contemnor had no intention to commit contempt. A conditional  apology was treated as no apology at all. There was no limit to the period for which a party  could be imprisoned for contempt, nor any limit to the amount of fine which could be imposed on the contemnor. There was no appeal from a finding that the contemnor was guilty of contempt of court. All this has been changed by the Contempt Act 1971. It is outside the scope of the present discussion to explain in detail the radical changes brought about by the Contempt Act 1971, but a brief account is given below. 

The Act divides contempt into civil and criminal contempt. Sec. 2(b) and (c) defines civil contempt and criminal contempt respectively. Sec.3 provides that innocent publication and distribution of matter which turns out to contain what may be contempt of court cannot be punished for contempt. And s. 3(2) provides that the publication of matter constituting contempt is not to be treated as contempt of court in civil and criminal proceedings which are not pending at the time of publication. The Explanation to s. 3(i) and (ii) states with precision when civil and criminal proceedings can be said to be pending. Sec. 6 indicates when complaints against presiding officers of subordinate courts is not contempt. Sec.10, as we have seen, confers on the High Court power to punish contempt of subordinate courts. Sec. 12(1) limits the punishment for contempt to 6 months simple imprisonment and the fine to Rs. 2,000. The Explanation to s. 12(1) provides that “an aplogy shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide”. Sec. 13 provides that no court shall impose a sentence for contempt of court “unless it is satisfied that the contempt is of such nature that it substantially interferes with or tends to interfere with the due course of justice”.

11.549:- Sec. 14 of the Act provides the procedure for contempt in face of the Sup. Ct. or High Courts, but it contains a most important provision in sub-s. (2). In effect, sub-s. (2) provides that if the alleged contemnor applies that the matter should be heard by a judge other than the judge in whose presence contempt is alleged to have been committed. Then, as far as practicable, his prayer should be granted. Sub-s. (3) states that the statement by the judge as to what happened in his court which according to him constituted contempt is to be admitted in evidence without calling the judge to give evidence. Sec. 16 is an important provision providing that a judge of a subordinate court. A magistrate or other person acting judicially may himself be guilty of contempt of his court. Sec. 19 is extremely important. It enables the contemnor, as a matter of right to appeal against the sentence or order passed against him for contempt of court. If the judgment appealed from is that of a single judge of the High Court, the appeal lies to the Divisional Benach of that court; and if the judgment appealed from is that of the Divisional Bench, then, the appeal lies to the Sup.