Title: - CYBER LAW AND IPR ISSUES:
THE INDIAN PERSPECTIVE
Submitted To:- Prof. Poonam Kumari Bhagat
(Faculty of law)
Submitted By-
Avijeet Makvana IUU15BBL035
Rajdeep Guniyal IUU15BBL034
Aman Sharma IUU15BBL046
Origin of Contempt of Court
The legal system that we see today is the summit of the long journey which has started from
the divine rule that was in proclamation to the natural law and more further to the positive law
that we see today. Contempt of Court is a matter which regards that justice should be
administered fairly and it also punishes anyone who aims to hurt the dignity or authority of the
judicial tribunals. This law has its origin from the medieval times when the royal powers of the
monarch were transferred to the court and at this time the monarch was believed to be
appointed by God and everyone was accountable to him.
This power of accountability clearly depicts the same accountability the Supreme Court
possesses nowadays under Article 129 and 142 of the Indian constitution against its contempt.
In the English medieval ages the Judiciary was an important tool of the Monarch. At that time
these judges and legislatures were representatives of the divine rule monarchy and these
judges and legislatures played an important role in legitimizing the functions of these
monarchs. The king was the superior head of justice and this power he has given to the judicial
system and if anyone or the king himself disrespect or question the courts it became a
challenge to the superiority of the king and as well as to his wisdom. So, this can be seen as
although the source of the law has transformed in the society the unquestionability quality that
a king enjoyed was upheld by the monarchy.
There is a case of contempt against J. Almon in the year 1765; a statement was made by the
Irish judge Sir Eardley Wilmot in regard to this contempt attacks on the judges. In this case,
Almon has published a pamphlet libelling the decision of the bench of kings and the judgment
given by the judge had given rise to many questions of several aspects of the judiciary which
had not been questioned yet. This matter gives a great push in the establishment of the
contempt of court. This judgement also recognized that the unbiasedness is also one of the
features of the judiciary in making the decision which makes this institution different from its
peer institutions.
History of Law of Contempt in India
Sanyal Committee report deals with the historical aspect of the Law of Contempt in India. This
committee has been responsible for starting the amendment process in this law. The law of
contempt similar to many other laws has been brought from the English laws and statutes but
this law has not been absolutely taken from the English laws it has other origins too. How has
the indigenous development of contempt law taken place? It can be understood by the age-old
system which our country had to protect court or assemblies (sabhas) in the past. We know
about the philosopher Kautilya, in his book Arthashastra has written about the governance at
that time. He has written that “Any person who exposes the king or insults his council or make
any type of bad attempt on the kings then the tongue of that person should be cut off.” Adding
to this statement, he also said that “When a judge threatens, bully or make silence to any of the
disputants in the court then he should be punished.”
Until the year 1952, there were no statutory provisions for the contempt of court in India but
after the enactment of Contempt of Court Act, 1952 statutory provisions for contempt of court
in India has established. This Act extends to the whole of India except Jammu and Kashmir. This
Act gives power to the High Court to punish contempt of the subordinate court. This Act has
repealed the existing law from the Contempt of Court Act, 1926 that was prevailing in the state
of Rajasthan and the state of Saurashtra. Although this Act was extended to the whole of
Bangladesh. It can be surprising knowing that although these Acts have been introduced earlier
then also these Acts do not give the definition of the term ‘Contempt’ and also there was still a
lot of ambiguity present around the law of contempt. This law has to be dealt with in light of
two fundamental rights given by our Indian Constitution and these rights are
(i) freedom of speech and expression and
(ii) (Ii) right to personal liberty.
There was a bill introduced in the Lok Sabha to make any changes or to make the existing law
relating to contempt more strong. This law was introduced by Shri B B Das Gupta on 1st of April
1960. The government after examining the bill discerns the need for reform in the existing Act.
So, they made a special committee to look into the matter or inspect the existing Act. This
committee was set up in 1961, under the chairmanship of H.N. Sanyal which gives its report on
28th February, 1963. The report of this committee took the form of Contempt of Court Act,
1971. The procedure and application of enactment something that was done earlier by the
Contempt of Court Act of 1926 and 1952 was given several changes through the Contempt of
Court Act, 1971. This Act segregates the ‘Contempt of Court’ into criminal and civil contempt
with their definition respectively. This thing was not mentioned in the earlier existing courts.
Now, let us know something about the Contempt of Court Act, 1971.
Essentials of Contempt of Court
Every offence has certain exceptions that have to be fulfilled for making the person liable for
doing that act. Contempt of Court also has certain essentials and these are as follows:
1. Disobedience to any type of court proceedings, its orders, judgment, decree, etc
should be done ‘willfully’ in case of Civil Contempt.
2. In Criminal Contempt ‘publication’ is the most important thing and this publication
can be either spoken or written, or by words, or by signs, or by visible representation.
3. The court should make a ‘valid order’ and this order should be in ‘knowledge’ of the
respondent.
4. The action of contemnor should be deliberate and also it should be clearly disregard
of the court’s order.
These essentials should be fulfilled while making someone accused of Contempt of Court.
Types of Contempt of Court in India
Depending on the nature of the case in India, Contempt of Court is of two types.
1. Civil Contempt
2. Criminal Contempt
Civil Contempt
Section 2(a) of the Contempt of Court Act, 1971 states Civil Contempt as willful disobedience to
the order, decree, direction, any judgment or writ of the Court by any person or willfully breach
of undertakings by a person given to a Court. Since Civil Contempt deprives a party of
the benefit for which the order was made so these are the offences essential of private nature.
In other words, a person who is entitled to get the benefit of the court order, this wrong is
generally done to this person.
There is a case on the willful disobedience of the court order which a person should know.
Utpal Kumar Das v. Court of the Munsiff, Kamrup
This is the case of non-rendering of assistance, although the court has ordered to render
assistance. Decree executed by the court to deliver immovable property but because of certain
obstruction, the defendant failed to do so. Hence, he was held liable for constituting
disobedience to the orders of the competent Civil Court.
Another case is on the breach of an undertaking which leads to Contempt of Court.
U.P. Resi. Emp. Co-op., House B. Society v. New Okhla Industrial
Development Authority
In this case, the Supreme Court has directed the Noida Authorities to verify and state on the
affidavit details given by persons for allotment of plots. In pursuance to the same direction by
the Supreme Court a person Mr. S filed a false affidavit to mislead the court. The Registry
directed a show-cause notice against him to say that why an act of contempt should not be
taken against him for misleading the Supreme Court.
Defenses to Civil Contempt
A person who is accused of Civil Contempt of case can take the following defences:
Lack of Knowledge of the order: A person can not be held liable for Contempt of
Court if he does not know the order given by the court or he claims to be unaware of
the order. There is a duty binding on the successful party by the courts that the order
that has passed should be served to the Individual by the post or personally or
through the certified copy. It can be successfully pleaded by the contemner that the
certified copy of the order was not formally served to him.
The disobedience or the breach done should not be: If someone is pleading under
this defense then he can say that the act done by him was not done willfully, it was
just a mere accident or he/she can say that it is beyond their control. But this plead
can only be successful if it found to be reasonable otherwise your plead can be
discarded.
The order that has disobeyed should be vague or ambiguous: If the order passed by
the court is vague or ambiguous or this order is not specific or complete in itself then
a person can get the defense of contempt if he says something against that order.
In R.N. Ramaul v. State of Himachal Pradesh , this defense has been taken by the
respondent. In this case, the Supreme Court has directed the corporation of the
respondent to restore the promotion of the petitioner from a particular date in the
service. But the respondent has not produced the monetary benefit for the given
period and a complaint was filed against him for Contempt of Court. He pleads for the
defense on the given evidence that it has not mentioned by the court in order to pay
the monetary benefit. Finally, he gets the defense.
Orders involve more than one reasonable interpretation: If the contempt of any
order declared by the court and the order seems to be given more than one
reasonable and rational interpretation and the respondent adopts one of those
interpretations and works in accordance with that then he will not be liable for
Contempt of Court.
Command of the order is impossible: If compliance of the order is impossible or it
cannot be done easily then it would be taken as a defense in the case of Contempt of
Court. However, one should differentiate the case of impossibility with the case of
mere difficulties. Because this defense can be given only in the case of the
impossibility of doing an order.
Criminal Contempt
According to Section 2(c) of the Contempt of Court Act, 1971, Criminal Contempt is Defined as
(I) the publication of any matter by words, spoken or written, or by gesture, or by signs, or by
visible representation or (ii) doing of any act which includes:
1. Scandalize or tends to scandalize, or lowers or tends to lower the authority of any
court, or
2. Biasness, interferes or tends to interfere with the due course of any type of Judicial
proceedings, or
3. Obstructs or tends to obstruct, interfere or tend to interfere with the administration
of justice in any manner.
Jaswant Singh v. Virender Singh
In this case an advocate caste derogatory and scandalous attack on the judge of the High Court.
An application was filed an election petitioner in the High Court, who was an advocate. He
wanted to seek to stay for further arguments in an election petition and also the transfer of
election petitions. These things cause an attack on the judicial proceeding of the High Court and
had the tendency to scandalize the Court. It was held in this case that it was an attempt to
intimidate the judge of the High Court and cause an interface in the conduct of a fair trial.
Punishment for Contempt of Court
Section 12 of the Contempt of Court Act, 1971 deals with the punishment for Contempt of
Court. High Court and the Supreme Court have been given the power to punish someone for
the Contempt of Court. Section 12(1) of this Act states that a person who alleged with the
Contempt of Court can be punished with simple imprisonment and this imprisonment can
extend to six months, or with fine which may extend to two thousand rupees or can be of both
type punishment. However, an accused may be discharged or the punishment that was
awarded to him maybe remitted on the condition that if he makes an apology and this apology
should satisfy the court then only he can be exempted from the punishment of Contempt of
Court. Explanation of this sentence is that if the accused made an apology in the bona fide then
this apology shall not be rejected on the ground that it is conditional or qualified.
The court cannot impose a sentence for Contempt of Court in excess of what is prescribed
under the given section of this Act either in respect of itself or of a court subordinate to it.
Remedies against an order of Punishment
Section 13 has been added in the Contempt of Court Act, 1971 after amendment in 2006. The
new Act may be called The Contempt of Court (Amendment) Act, 2006. This Section tells that
contempt of court cannot be punished under certain circumstances or certain cases.
Clause (a) of Section 13 of the Contempt of Court (Amendment) Act, 2006 states that no Court
under this Act shall be punished for Contempt of Court unless it is satisfied that the Contempt is
of such a nature that it substantially interferes or tends to substantially interfere with the due
course of Justice.
Clause (b) of Section 13 of this Act states that the court may give the defense on the
justification of truth if it finds that the act done in the public interest and the request for
invoking that defense is bona fide.
Criticism of the power of contempt of court
The discretion that a judge has in determining the contempt and its punishment has been a
debatable issue in the eyes of some scholars because the contempt power has given too much
authority to the Judges. A professor from Virginia University has about this contempt power
that the role of victim, judge, and prosecutor are dangerously mixed.
Much of the criticism goes around the due process or lack of restraint in the punishment for
contempt of court. Critics have argued that the judge in the Criminal contempt may be too
harsh while giving the Judgment. For example, in 1994, the Virginia Court has fined Mine
Workers of America $52 million in connection in violence that occurred in 1989. Similarly,
sometimes the person who refused to provide the information to the court has been to jail for
one year or for many years under the charge of contempt. There is some loophole in this
context and it should be fulfilled.
Apart from criticism there are also some good things about contempt. Contempt of Court Act,
1971 is one of the most powerful statutes in the country. This statute gives the Constitutional
Court the wide power to restrict an individual’s fundamental rights to personal liberty (that he
got under Article 21 of the Indian Constitution) for ‘scandalizing the court’ or willfully
disobeying the court’s order, judgment, decree, and direction, etc.
Conclusion
The existing role relating to ex facie contempt of lower courts is unsatisfactory and misleading
in India. It appears that evidently, the difficulties in this regard are the after product of overlap
of contempt powers under the Indian Penal Code, Contempt of Courts Act and contempt
powers of the Supreme Court and High Court under the Indian constitution. The scenario has
emerged as more complicated by way of the inconsistent interpretations followed through the
Supreme Court and High Court regarding diverse provisions under the Indian Penal Code
dealing with interference with the administration of justice and exclusion clause contained in
the Contempt of Courts Act. Not only the higher court should be given the power to deal with
contempt but also the lower court should be given this power. Contempt of Court if seen from
the perspective of the judges, higher judicial officials seems good but if it comes to the
perspective of common people it turns towards its bad effect.
