Report No. 274
E. Scope of the Power:
2.38 The power of the Supreme Court and the High Courts to punish for contempt does not solely depend upon Articles 129 and 215 of the Constitution of India. The authority to punish for contempt of court has always been exercised by the judiciary from times immemorial45; essential to the execution of their powers and to the maintenance of their authority46.
2.39 In the case of Gilbert Ahnee v. Director of Public Prosecutions,47 the Privy Council had held that the source of this power can be traced to the primary function of the Courts, which is to dispense and administer justice. To perform this duty effectively, the Courts must have the power to enforce their orders and punish calculated acts of contempt aimed to undermine their authority.
2.40 The power to punish for contempt of court has always been recognized to be inherent in certain superior courts, and in others it was conferred by statutes.
2.41 In Re: C. S. Karnan, (2017) 2 SCC 756, Justice Karnan, the judge of the Calcutta High Court, was restrained from taking up any judicial or administrative work. The Court observed that the authority of the courts to punish for contempt of court has always been there in the legal history.
2.42 In one of the earliest legal pronouncements dealing with the subject, Justice Wilmot in Rex v. Almon (1765) Wilmot's Notes, 243, explained the philosophy behind the power to punish for contempt of court. The passage now a classic exposition, reads as follows:
"And whenever men's allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and in my opinion calls out for a more rapid and immediate redress than any obstruction whatsoever, not for the sake of the Judges as private individuals but because they are the channels by which the King's justice is conveyed to the people."
2.43 The power to punish for contempt is not meant for giving protection to individual judges. On the contrary, it intends to inspire confidence "in the sanctity and efficacy of the judiciary, though they do not and should not flow from the power to punish for contempt". Rather, such principles should lie on solid foundations of trust and confidence of the people - a reassurance to them that the judiciary is fearless and impartial. As rightly observed by in Helmore v. Smith48, "the object of the discipline enforced by the Court in case of contempt of Court is not to vindicate the dignity of the Court or the person of the Judge, but to prevent undue interference with the administration of justice."
2.44 The Supreme Court in E.M. Sankaran Namboodripad v. T. Narayanan Nambiar, AIR 1970 SC 2095, observed:
"The law of contempt stems from the right of the courts to punish by imprisonment or fines persons guilty of words or acts which either obstruct or tend to obstruct the administration of justice.
This right is exercised in India by all courts when contempt is committed in facie curaie and by the superior courts on their own behalf or on behalf of courts subordinate to them even if committed outside the courts. Formerly, it was regarded as inherent in the powers of a Court of Record and now by the Constitution of India, it is a part of the powers of the Supreme Court and the High Courts."
2.45 In High Court of Judicature at Allahabad through its Registrar v. Raj Kishore & Ors., AIR 1997 SC 1186, the Supreme Court held that contempt jurisdiction is an independent jurisdiction of original nature whether emanating from the Contempt of Courts Act or under Article 215 of the Constitution of India.
2.46 In R. L. Kapur v. State of Madras, AIR 1972 SC 858, the Supreme Court examined the question whether the power of the Madras High Court to punish for contempt of itself flows from the Contempt of Courts Act, 1952. The Court held:
"Whether Article 215 declares the power of the High Court already existing in it by reason of its being a court of record, or whether the article confers the power as inherent in a court of record, the jurisdiction is a special one, not arising or derived from the Contempt of Courts Act, 1952 ... In any case, so far as contempt of the High Court itself is concerned, as distinguished from that of a court subordinate to it, the Constitution vests these rights in every High Court, and so no Act of a Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority."
2.47 In Pritam Pal v. High Court of M.P. Jabalpur, Through Registrar, AIR 1992 SC 904, the Apex Court opined "Prior to the Contempt of Courts Act, 1971, it was held that the High Court has inherent power to deal with a contempt of itself summarily and to adopt its own procedure, provided that it gives a fair and reasonable opportunity to the contemnor to defend himself. But the procedure has now been prescribed by Section 15 of the Act in exercise of the powers conferred by Entry 14, List III of the Seventh Schedule of the Constitution.
Though the contempt jurisdiction of the Supreme Court and the High Court can be regulated by legislation by appropriate legislature under Entry 77 of List I and Entry 14 of List III in exercise of which the Parliament has enacted the Act of 1971, the contempt jurisdiction of the Supreme Court and the High Court is given a constitutional foundation by declaring to be 'Courts of Record' under Articles 129 and 215 of the Constitution and, therefore, the inherent power of the Supreme Court and the High Court cannot be taken away by any legislation short of constitutional amendment."
2.48 However, it should be noted here that the power of the High Courts to punish for contempt of a subordinate court is derived from legislation and not from the Constitution.49
2.49 The power to punish for contempt though inherent, its exercise has been subject to certain parameters. Members of the Judiciary have always been conscious of the fact that this power should be exercised with meticulous care and caution and only in absolutely compelling circumstances warranting its exercise50.
"The countervailing good, not merely of free speech but also of greater faith generated by exposure to the actinic light of bona fide, even if marginally over-zealous, criticism cannot be overlooked. Justice is no cloistered virtue." 51
2.50 The Supreme Court has also consistently held and reaffirmed that the powers of Supreme Court under Article 129 and that of the High Court under Article 215 could not be curtailed by a law made by the Parliament or by a State legislature52. Accordingly, even the power to punish for their own contempt which is derived from these Articles 129 and 215, as the case may be, cannot be abrogated or controlled by any legislation.53