Article 129- Supreme Court to be a Court of Record
Article 129 of the Constitution, it reads:
129. Supreme Court to be a court of record.- The Supreme Court shall be a court of record and shall have all the power of such a court including the power of punish for contempt of itself.
The Article on its plain language vests Supreme Court with all the powers of a court of record including the power to punish for contempt of itself. The expression Court of Record has not been defined in the Constitution of India. Article 129 however, declares the Supreme Court to be a Court of Record, while Article 216 declares a High Court also to be a Court of Record.
Meaning of Court of Record
A court of record is a court, the records of which are admitted to be of evidentiary value and are not to be questioned when produced before any court. The power that courts of record enjoy to punish for contempt is a part of their inherent jurisdiction and is essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice.
According to Jowitt, Dictionary of English Law, First Edition (p. 526) a court of record has been defined as:
“A Court whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, and which has power to fine and imprison for contempt of its authority.”
Wharton’s Law Lexicon, explains a court of record as: –
“Record, courts of, those whose judicial acts and proceedings are enrolled on parchment, for a perpetual memorial and testimony; which rolls are called the Records of the Courts, and are of such high and super eminent authority that their truth is not to be called in question.
Courts of Record are of two classes – Superior and Inferior. Superior Courts of Record include the House of Lords, the judicial Committee, the Court of Appeal, the High Court, and a few others. The Mayor’s Court of London, the Country Courts, Coroner’s Courts, and other are Inferior Courts, Coroner’s Courts, and other are Inferior Courts, Coroner’s Courts, and other are Inferior Courts of Record, of which the Country Courts are the most important.
Every superior court of record has authority to fine and imprison for contempt of its authority; an inferior court of record can only commit for contempts committed in open courts, in facie curice.”
Nigel Lowe and Brenda Sufrin in their treatise on the Law of Contempt (Third Edition) (Butterworths 1996), while dealing with the jurisdiction and powers of a Courts of Record in respect of criminal contempt say:
“The contempt jurisdiction of courts of record forms part of their inherent jurisdiction. The power that courts of record enjoy to punish contempts is part of their inherent jurisdiction. The juridical basis of the inherent jurisdiction has been well described by Master Jacob as being: ‘the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.’ Such a power is not derived from statute nor truly from the common law but instead flows from the very concept of a court of law.”
—————- All courts of record have an inherent jurisdiction to punish contempts committed in their face but the inherent power to punish contempts committed outside the court resides exclusively in superior courts of record. ———————— Superior Courts of records have an inherent superintendent jurisdiction to punish contempts committed in connection with proceedings before inferior courts.”
Seventh Schedule
Entry 77 of List I of the Seventh Schedule
Entry 77 of List I of the Seventh Schedule of the Constitution provides for:
“Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practice before the Supreme Court.”
Entry 14 III of the Seventh Schedule
Entry 14 III of the Seventh Schedule provides for legislation in respect of:
“Contempt of Court, but not including contempt of the Supreme Court.”
The language of entry 77 of List I and entry 14 of List III of the Seventh Schedule demonstrate that the legislative power of the Parliament and of the State legislature extends to legislate with respect to matters connected with contempt of court by the Supreme Court or the High Court, subject however, to the qualification that such legislation cannot denude, abrogate or nullify, the power of the Supreme Court to punish for contempt under Articles 129 or vest that power in some other Court.
Article 142 of the Constitution
Besides, Articles 129, the power to punish for contempt is also vested in the Supreme Court by virtue of Article 142(2). Article 142 of the Constitution reads:-
“142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. –
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before, it, and any decree so passed or order so made shall to enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court Shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
It is, thus, seen that the power of Supreme Court in respect of investigation or punishment of any contempt including contempt of itself, is expressly made ‘subject to the provisions of any law made in this behalf by the parliament’ by Article 142(2).
However, the power to punish for contempt being inherent in a court of record, it follows that no act of parliament can take away that inherent jurisdiction of the Court of Record to punish for contempt and the Parliament’s power of legislation on the subject cannot, therefore, be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts, though such a legislation may serve as a guide for the determination of the nature of punishment which Supreme Court may impose in the case of established contempt.
Parliament has not enacted any law dealing with the powers of the Supreme Court with regard to investigation and punishment of contempt of itself. (We shall refer to Section 15 of the Contempt of Courts Act, 1971, later on) and Supreme Court, therefore exercises the power to investigate and punish for contempt of itself by virtue of the powers vested in it under Articles 129 and 142(2) of the Constitution of India.
Contempt of courts Act, 1926
The first legislation to deal with contempt of courts in this country was the contempt of courts Act, 1926. It was enacted with a view to define and limit the powers of certain courts for punishing contempts of court. The preamble to that Act stated:
“Whereas doubts have arisen as to the powers of a High Court of judicature to punish contempt of courts and whereas it is expedient to resolve these doubts and to define and limit the powers exercisable by High Courts and Chief Courts in punishing contempts of Court: It is hereby enacted as follows:”
Section 2 says: – “Subject to the provisions of sub-section (3), the High Courts of Judicature established by Letters patent shall have and exercise the same jurisdiction, powers and authority in accordance with the same procedure and practice, in respect of contempts of courts subordinate to them as they have and exercise in respect of contempts of themselves.”
Since, the Act was enacted with a view to ‘remove doubts about the powers of the High Court to Punish for contempt’, it made no distinction between one Letters Patent High Court and another though it did distinguish between the Letter Patent High Courts and the Chief Courts. The doubt, as a result of conflict of judicial opinion, whether the High Court punish for contempt of a court subordinate to it, was removed by enactment of Section 2 of the Act.
The contempt of Courts act, 1952
The Contempt of Courts Act, 1926 was replaced by the contempt of Courts act, 1952. The 1952 Act made the significant departures from the 1926 Act,
First, the expression “High Court” was defined to include the courts of judicial Commissioner which had been excluded from the purview of the 1926 Act and
Secondly, the High Courts, including the Court of Judicial commissioner which had been excluded from the purview of the 1920 Act and, the High Courts, including the court of a judicial Commissioner, were conferred jurisdiction to inquire into and try contempt of itself or if any court subordinate to it irrespective of whether the contempt was alleged to have been committed within or outside the local limits of its jurisdiction and irrespective of whether the person alleged to be guilty of committing contempt was within or outside such limits.
In the matter of imposition of punishment for contempt of courts, Section 4 of the 1952 Act Provided,
“Sec.4 Limit of punishment for contempt of Court save as otherwise expressly provided by any law for the time being in force. A contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court:
Provided further that notwithstanding anything elsewhere contained in any law for the time being in force, no High Court shall impose a sentence in excess of that specified in this Section for any contempt either in respect of itself or of a court subordinate to it.”
Thus, under the existing legislation dealing with contempt of court, the High Courts and Chief Courts were vested with the power to try a person for committing contempt of court and to punish him for established contempt. The legislation itself prescribed the nature and type, as well as the extent of, punishment which could be imposed on a contemner by the High Courts or the Chief Courts.
The second proviso to Section 4of the 1952 Act (supra) expressly restricted the powers of the Courts not to “impose any sentence in excess of what is specified in the section” for any contempt either of itself or of a court subordinate to it.
Contempt of Courts Act, 1971
After the Constitution of India was promulgated in 1950, it appears that on 1st of April, 1960, a Bill was introduced in the Lok Sabha ‘to consolidate and amend the law relating to contempt of Court’. The Bill was examined by the Government which felt that law relating to contempt of courts was “uncertain, undefined and unsatisfactory” and that in the light of the constitutional changes which had taken place in the country, it was advisable to have to entire law on the subject scrutinised by a special committee to be set up for the purpose.
Sanyal Committee
Pursuant to that decision, the Ministry of Law on July 29, 1961 set up a Committee under the Chairmanship of Shri H.N. Sanyal, Additional Solicitor General of India. The Committee came to be known as Sanyal Committee and it was required:
(i) to examine the law relating to contempt of courts generally, and in particular, the law relating to the procedure for the punishment thereof:
(ii) to suggest amendments therein with a view to clarifying and reforming the law wherever necessary; and
(iii) to make recommendations, for codification of the law in the light of the examination made.”
The committee inter-alia opined that Parliament or the concerned legislature has the power to legislate in relation to the substantive law of contempt of the Supreme Court and the High Courts Subject only to the qualification that the legislature cannot take away the powers of the Supreme Court or the High Court, as a Court of Record, to punish for contempt nor vest that power in some other court.
After the submission of the Sanyal Committee Reports, the contempt of Courts Act, 1952 was repealed and replaced by the contempt of Courts Act, 1971 which Act was enacted to “define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto”.
Analysis of the Provisions
It would be proper to notice some of the relevant provisions of the 1971 Act at this stage.
Section 2 (a), (b) and (c) of the Contempt of Courts Act, 1971 define contempt of court as follows:-
“2. Definitions. – In this Act, unless the context otherwise requires,-
(a) ‘contempt of court’ means civil contempt or criminal contempt;
(b) ‘Civil contempt’ means willful disobedience to an judgment, decree, direction, order, writ or other process of a court or willful breach of an under taking given to a court;
(c) ‘criminal contempt’ 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-
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court, or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or
(iii) interferes or tends to interfere with or obstructs or tends to obstruct, the administration of justice in any other manner.”
Section 10 provides: –
“Sec. 10. Power of High Court to punish contempts of subordinate courts. –
Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself:
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 Panel Code, 1860 (45 of 1860).”
The punishment for committing contempt of court is provided in Section 12 of the 1971 Act which reads:-
“12. Punishment for contempt of court. –
(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.
Explanation.– An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
(2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.
(3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary, shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.
(4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person:-
Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission.
(5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer.
——————- ——————- An analysis of the above provision shows that sub- section (1) of Section 12 provides that in a case of established contempt, the contemner may be punished:
(a) with simple imprisonment by detention in a civil prison; or
(b) with fine, or
(c) with both.
A careful reading of sub-section (2) of Section 12 reveals that the Act places an embargo on the court not to impose a sentence in excess of the sentence prescribed under sub- section (1).
A close scrutiny of sub-section (3) of Section 12 demonstrates that the legislature intended that in the case of civil contempt a sentence of fine alone should be imposed except where the court considers that the ends of justice make it necessary to pass a sentence of imprisonment also.
Reference
Supreme Court Bar Association v. Union of India (1998)