Article 129 provides that 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.
The bare provision is as follows-
‘129. Supreme Court to be a court of record. —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 215 contains similar provision in respect of High Court. Both the Supreme Court as well as High Courts are courts of record having powers to punish for contempt including the power to punish for contempt of itself. The Constitution does not define “Court of Record”. This expression is well recognised in juridical world.
Meaning of the word ‘Court of Record’
In Jowitt’s Dictionary of English Law, “Court of Record” is defined as:
“A court whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority.”
In Words and Phrases (Permanent Edition) Vol. 10 page 429,”Court of Record” is defined as under:
“Court of Record is a court where acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony, which rolls are called the “record” of the court, and are of such high and super eminent authority that their truth is not to be questioned.”
Halsbury’s Laws of England Vol. 10 page 319, states:
“Another manner of division is into courts of record and courts not of record. Certain Courts are expressly declared by statute to be courts of record. In the case of courts not expressly declared to be courts of record, the answer to the question whether a court is a court of record seems to depend in general upon whether it has power to fine or imprison, by statute or otherwise, for contempt of itself or other substantive offences; if it has such power, it seems that it is a court of record…….. proceedings of a Court of record preserved in its archives are called records, and are conclusive evidence of that which is recorded therein.”
In England a superior court of record has been exercised power to indict a person for the contempt of its authority and also for the contempt of its subordinate and inferior courts in a summary manner without the aid and assistance of Jury. This power was conceded as a necessary attribute of a superior court of record under Anglo Saxon System of Jurisprudence.
The concept of inherent power of the superior court of record to indict a person by summary procedure was considered in detail in Rex v. Almon, 97 ER 94 commonly known as Aimon’s case. In that case King’s Bench initiated proceedings for contempt against John Almon, a book-seller for publishing a libel on the Chief Justice, Lord Mansfied. On behalf of the contemner objection was taken to the summary procedure followed by the Court. After lengthy arguments judgment was prepared by Chief Justice Wilmot holding that a libel on a Judge was punishable by the process of attachment without the intervention of a Jury, as the summary form of procedure was founded upon immemorial usage.
The judgment prepared with great learning and erudition could not be delivered as the proceedings were dropped following the change of Government. After long interval Wilmot’s judgment was published in 1802. The judgment proceeded on the assumption that the superior Common Law Courts did have the power to indict a person for contempt of court, by following a summary procedure on the principle that this power was ‘a necessary incident to every court of justice’.
Undelivered judgment of Wilmot, J. has been subject of great controversy in England’ and Sir John Fox has severely criticised Almon’s case, in his celebrated book “The History of Contempt of Court’, The Form of Trial and Mode of Punishment: In spite of serious criticism of the judgment of Wilmot, J. the opinion ex- pressed by him has all along been followed by the English and Commonwealth Courts.
In Rainy v. The Justices of Seirra Leone, 8 Moors PC 47 at 54 on an application for leave to appeal against the order of the Court of Seirra Leone for contempt of court, the Privy Council upheld the order on the ground that the court of Seirra Leone being a Court of Record was the sole and exclusive judge of what amounted to contempt of court.
In India, the courts have followed the English practice in holding that a court of record has power of summarily punishing contempt of itself as well as of subordinate courts.
In Surendra Nath Banerjee v. The Chief Justice and Judges of the High Court at Fort William in Bengal, ILR to Calcutta 109 the High Court of Calcutta in 1883 convicted Surendra Nath Banerjee, who was Editor and Proprietor of Weekly newspaper for contempt of court and sentenced him to imprisonment for two months for publishing libel reflecting upon a Judge in his judicial capacity.
On appeal the Privy Council upheld the order of the High Court and observed that the High Courts in Indian Presidencies were superior courts of record, and the powers of the High Court as superior courts in India are the same as in England. The Privy Council further held that by common law every court of record was the sole and exclusive judge of what amounts to a contempt of court.
In Sukhdev Singh Sodhi v. The Chief Justice and Judges of the PEPSU High Court,  SCR 454, supreme Court considered the origin, history and development of the concept of inherent jurisdiction of a court of record in India. The Court after considering Privy Council and High Courts’ decisions held that the High Court being a court of record has inherent power to punish for contempt of subordinate courts. The Court further held that even after the codification of the law of contempt in India the High Court’s jurisdiction as a court of record to initiate proceedings and take seisin of the matter remained unaffected by the Contempt of Courts Act, 1926.
The power to punish for contempt even in the absence of express provisions
The question whether in the absence of any express provision a Court of Record has inherent power in respect of contempt of subordinate or inferior courts, has been considered by English and Indian Courts.
In the leading case of Rex v. Parke,  2 K.B. 432 at 442. Wills, J. observed:
“This Court exercises a vigilant watch over the proceedings of inferior courts and successfully prevents them from usurping powers which they do not possess, or otherwise acting contrary to law. It would seem almost a natural corollary that it should possess correlative powers of guarding them against unlawful attacks and interferences with their independence on the part of others.”
In King v. Davies,  1 K.B. 32. Wills, J. further held that the Kings Bench being a court of record must protect the inferior courts from unauthorised interference, and this could only be secured by action of the Kings Bench as the inferior courts have no power to protect themselves and for that purpose this power is vested in superior court of record. Since the Kings Bench is the custos morum of the kingdom it must apply to it with the necessary adaptations to the altered circumstances of the present day to uphold the independence of the judiciary.
The principle laid down in Rex v. Davies, was followed in King v. Editor of the Daily Mail,  2 KB 733 where it was held that the High Court as a court of record has inherent jurisdiction to punish for contempt of a court martial which was an inferior court. Avory, J. observed:
“The result of that judgment (Rex v. Davies) is to show that wherever this Court has power to correct an inferior court, it also has power to protect that court by punishing those who interfere with Due administration of justice in their court.”
In Attorney–General v. B.B.C.,  3 ALR 16 1 the House of Lords proceeded on the assumption that a court of record possesses protective jurisdiction to indict a person for interference with the administration of justice in the inferior courts but it refused to indict as it held that this protection is available to a court exercising judicial power of the State and not to a Tribunal even though the same may be inferior to the court of record.
These authorities show that in England the power of the High Court to deal with the contempt of inferior court was based not so much on its historical foundation but on the High Court’s inherent jurisdiction being a court of record having jurisdiction to correct the orders of those courts.
In India prior to the enactment of the Contempt of Courts Act, 1926, High Court’s jurisdiction in respect of contempt of subordinate and inferior courts was regulated by the principles of Common Law of England. The High Courts in the absence of statutory provision exercised power of contempt to protect the subordinate courts on the premise of inherent power of a Court of Record.
- Madras High Court in the case of Venkat Rao, 21 Madras Law Journal 832 held that it being a court of record had the power to deal with the contempt of subordinate courts.
- The Bombay High Court in Mohandas Karam Chand Gandhi’s,  22 Bombay Law Reporter 368 case held that the High Court possessed the same powers to punish the contempt of subordinate courts as the Court of the King’s Bench Division had by virtue of the Common Law of England.
- Similar view was expressed by the Allahabad High Court in Abdul Hassan Jauhar’s, case AIR 1926 Allahabad 623 and Shantha Nand Gir v. Basudevanand., AIR 1930 Allahabad 225 (FB). In Abdul Hassan Jauhar’s case (supra) a Full Bench of the Allahabad High Court after considering the question in detail held:
“The High Court as a court of record and as the protector of public justice throughout its jurisdiction has power to deal with contempts directed against the administration of justice, whether those contempts are committed in face of the court or outside it, and independently or whether the particular court is sitting or not sitting, and whether those contempts relate to proceedings directly concerning itself or whether they relate to proceedings concerning an inferior court, and in the latter case whether those proceedings might or might not at some stage come before the High Court.”
- Similar view was taken by the Nagpur and Lahore High Courts in Mr. Hirabai v. Mangal Chand, AIR 1935 Nagpur 16; Harki- shan Lal v. Emperor, AIR 1937 Lahore 197 and the Oudh Chief Court took the same view in Mohammad Yusuf v. Imtiaz Ahmad Khan., AIR 1939 Oudh 13 1.
- But, the Calcutta High Court took a contrary view in Legal Remembrancer v. Motilal Ghosh, ILR 41 Cal. 173 holding that there was no such inherent power with the High Court.
Judicial conflict with regard to High Court’s power with regard to the contempt of subordinate court was set at rest by the Contempt of Courts Act 1926.
Contempt of Courts Act 1926
The Act resolved the doubt by recognising to the power of High Courts in regard to contempt of subordinate courts, by enacting Section 2 which expressly stated that the High Courts will continue to have jurisdiction and power with regard to contempt of subordinate courts as they exercised with regard to their own contempt. Thus the Act reiterated and recognised the High Court’s power as a court of record for taking action for contempt of courts subordinate to them.
The only exception to this power, was made in subsection (3) of Section 2 which provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code. Section 3 of the Act restricted the punishment which could be passed by the High Court. Since doubt was raised whether the High Court as a court of record could punish contempt of itself and of courts subordinate to it if contempt was committed outside its territorial jurisdiction, the Parliament enacted the Contempt of Courts Act 1952 removing the doubt.
Contempt of Courts Act 1952
Section 3 of the 1952 Act again reiterated and reaffirmed the power, authority and jurisdiction of the High Court in respect of contempt of courts subordinate to it, as it existed prior to the enactment. It provided that every High Court shall have and exercise the same jurisdiction, power and authority, in accordance with the same procedure and practice in respect of contempt of courts subordinate to it as it has and exercise in respect of contempt of itself.
Section 5 further expanded the jurisdiction of the High Court for indicting a person in respect of contempt committed outside the local limits of its jurisdiction. The Parliamentary legislation did not confer any new or fresh power or jurisdiction on the High Courts in respect of contempt of courts subordinate to it, instead it reaffirmed the inherent power of a Court of Record, having same jurisdiction, power and authority as it has been exercising prior to the enactments.
The effect of these statutory provisions was considered by this Court in Sukhdev Singh Sodhi’s case (supra), and the Court held that contempt jurisdiction was a special one inherent in the very nature of a court of record and that jurisdiction and power remained unaffected even after the enactment of 1926 Act as it did not confer any new jurisdiction or create any offence, it merely limited the amount of punishment which could be awarded to a contemner. The jurisdiction of the High Court to initiate proceedings or taking action for contempt of its subordinate courts remained as it was prior to the 1926 Act.
In R.L. Kapur v. State of Tamil Nadu, AIR 1972 SC 858 the Court again emphasised that in view of Article 215 of the Constitution, the High Court as a court of record possesses inherent power and jurisdiction, which is a special one, not arising or derived from Contempt of Courts Act and the provisions of Section 3 of 1926 Act, do not affect that power or confer a new power or jurisdiction. The Court further held that in view of Article 215 of the Constitution, no law made by a Legislature could take away the Jurisdiction conferred on the High Court nor it could confer it afresh by virtue of its own authority.
The English and the Indian authorities are based on the basic foundation of inherent power of a Court of Record, having jurisdiction to correct the judicial orders of subordinate courts. The Kings Bench in England and High Courts in India being superior Court of Record and having judicial power to correct orders of subordinate courts enjoyed the inherent power of contempt to protect the subordinate courts.
The Supreme Court being a Court of Record under Article 129 and having wide power of judicial supervision over all the courts in the country, must possess and exercise similar jurisdiction and power as the High Courts had prior to Contempt Legislation in 1926. Inherent powers of a superior Court of Record have remained unaffected even after Codification of Contempt Law.
The Contempt of Courts Act 1971
The Contempt of Courts Act 1971 was enacted to define and limit the powers of courts in punishing contempts of courts and to regulate their procedure in relation thereto. Section 2 of the Act defines contempt of court including criminal contempt. Sections 5, 6, 7, 8, and 9 specify matters which do not amount to contempt and the defence which may be taken. Section 10 which relates to the power of High Court to punish for contempt of subordinate courts.
Section 10 like Section 2 of 1926 Act and Section 3 of 1952 Act reiterates and reaffirms the jurisdiction and power of a High Court in respect of its own contempt and of subordinate courts. The Act does not confer any new jurisdiction instead it reaffirms the High Court’s power and jurisdiction for taking action for the contempt of itself as well as of its subordinate courts.
Article 129 declares the Supreme Court a court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself.
In the case of ‘Delhi judicial Service v. State of Gujrat, (1991)’, the court said that,
“The expression used in Article 129 is not restrictive instead it is extensive in nature. If the Framers of the Constitution intended that the Supreme Court shall have power to punish for contempt of itself only, there was no necessity for inserting the expression “including the power to punish for contempt of itself’. The Article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression ‘including”.
Since, the Supreme Court is designed by the Constitution as a court of record and as the Founding Fathers were aware that a superior court of record had inherent power to indict a person for the contempt of itself as well as of courts inferior to it, the expression “including” was deliberately inserted in the Article. Article 129 recognised the existing inherent power of a court of record in its full plenitude including the power to punish for the contempt of inferior courts.
If Article 129 is susceptible to two interpretations, we would prefer to accept the interpretation which would preserve the inherent jurisdiction of this Court being the superior court of record, to safeguard and protect the subordinate judiciary, which forms the very back bone of administration of justice.
The subordinate courts administer justice at the grass root level, their protection is necessary to preserve the confidence of people in the efficacy of Courts and to ensure unsullied flow of justice at its base level.
The High Court being a court of record has inherent power in respect of contempt of itself as well as of its subordinate courts even in the absence of any express provision in any Act. A fortiori the Supreme Court being the Apex Court of the country and superior court of record should possess the same inherent jurisdiction and power for taking action for contempt of itself, as well as, for the contempt of subordinate and inferior courts.”
The court further held that,
“The Supreme Court and the High Court both exercise concurrent jurisdiction under the constitutional scheme in matters relating to fundamental rights under Article 32 and 226 of the Constitution, therefore this Court’s jurisdiction and power to take action for contempt of subordinate courts would not be inconsistent to any constitutional scheme.
There may be occasions then attack on Judges and Magistrate of subordinate courts may have wide repercussions throughout the country, in that situation it may not be possible for a High Court to contain the same, as a result of which the administration of justice in the country may be paralysed, in that situation the Apex Court must intervene to ensure smooth functioning of courts.
The Apex Court is duty bound to take effective steps within the constitutional provisions to ensure a free and fair administration of justice throughout the country, for that purpose it must wield the requisite power to take action for contempt of subordinate courts. Ordinarily, the High Court would protect the subordinate court from any onslaught on their independence, but in exceptional cases, extra ordinary situation may prevail affecting the administration of public justice or where the entire judiciary is affected, this Court may directly take cognizance of contempt of subordinate courts.”
What constitutes contempt of court?
The Common Law definition of contempt of Court is:
‘An act or omission calculated to interfere with the due administration of justice.’
The contempt of court as defined by the Contempt of Courts Act, 1971 includes civil and criminal contempt.
CRIMINAL CONTEMPT as defined by the Act:
“Means the publication whether by words, spoken or written, or by signs, or by visible representations, or otherwise of any matter or the doing of any other act whatsoever which scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or prejudices, or interferes or tends or to interfere with, the due course of any judicial proceeding;
or interferes, or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”
The definition of criminal contempt is wide enough to include any act by a person which would tend to interfere with the administration of justice or which would lower the authority of court. The public have a vital stake in effective and orderly administration of justice.
A Criminal contempt is punishable by the superior courts by fine or imprisonment, but it has many characteristics which distinguishes it from an ordinary offence. The power to take proceedings for contempt of Court is an inherent power of a Court of record. The Criminal Procedure Code does not apply to such proceedings. Since the contempt proceedings are not in the nature of criminal proceedings for an offence, the pendency of contempt proceedings cannot be regarded as criminal proceedings merely because it may end in imposing punishment on the contemner. A contemner it is not in the position of an accused.
It is open to the Court to cross-examine the contemner and even if the contemner is found to be guilty of contempt, the Court may accept apology and discharge the notice of contempt, whereas tendering of apology is no defence to the trial of a criminal offence. This peculiar feature distinguishes contempt proceedings from criminal proceedings. In a criminal trial where a person is accused of an offence there is a public prosecutor who prosecutes the case on behalf of the prosecution against the accused but in contempt proceedings the court is both the accused as well as the judge of the accusation.
The Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with.
“It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage.” (Frank Furter, J. in Offutt v. U.S.).
The object and purpose of punishing contempt for interference with the administration of justice is not to safeguard or protect the dignity of the Judge or the Magistrate, but the purpose is to preserve the authority of the courts to ensure an ordered life in society.
In Attorney General v. Times Newspapers,  A.C. 273 at p. 302 the necessity for the law of contempt was summarised by Lord Morris as:
“In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity: it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted and their authority wanes and is supplanted.”
“The summary power of punishment for contempt has been conferred on the courts to keep a blaze of glory around them, to deter people from attempting to render them contemptible in the eyes of the public. These powers are necessary to keep the course of justice free, as it is of great importance to society.” (Oswald on Contempt of Court).
The power to punish contempt is vested in the Judges not for their personal protection only, but for the protection of public justice, whose interest, requires that decency and decorum is preserved in Courts of Justice. Those who have to discharge duty in a Court of Justice are protected by the law, and shielded in the discharge of their duties, any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognizance of such conduct.
Delhi Judicial Service v. State of Gujrat (1991)
 Bowen L.J. in Helmore v. Smith,  35 Ch. D. 436 at 455
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