48
“Law Master’s” Publicat “Bar Bench Relation and Contept of Courts” Prof. S.D. Bhosale
(..5..)
Bar Bench Relation and Contempt of Courts
QUESTION BANK
Q.1 What do you understand by “Accountancy for lawyers” and “Bar-Bench Relations”?
Q.2 What is the punishment for contempt of court?
Q.3 Explain the role of Bar-Bench relation with special reference to administration of
justice.
Q.4 Explain defenses available to the contempt under the contempt of court Act, 1971.
Q.5 What is contempt of Court? Explain kinds, essentials and punishments for contempt
of court.
Q.6 “Contempt is serious attack on judicial institution”. Explain kinds and defenses
available to contempt.
Short Notes
1. Bar Bench relations.
2. Contempt of court.
3. Criminal Contempt.
TABLE OF CONTENT
49
“Law Master’s” Publicat “Bar Bench Relation and Contept of Courts” Prof. S.D. Bhosale
b. Role of judges in maintaining relations-.................................................................51
II. Contempt of Court meaning-...............................................................................................52
Definition of Contempt of Court (S. 2 (a))-................................................................52
(1) Civil Contempt (S. 2 (b))-.......................................................................................52
B. Defenses for Criminal Contempt-.......................................................................................54
50
“Law Master’s” Publicat “Bar Bench Relation and Contept of Courts” Prof. S.D. Bhosale
c. Limit on excess punishment (S. 12 (2))-.................................................................56
f. Limitation for action for contempt (S. 20)-.............................................................56
b. Supreme Court’s power to punish for contempt-...................................................57
c. High Court’s power to punish for contempt-..........................................................57
I. Bar- Bench Relations-
The term ‘Bar’ is collectively used for the Advocates practising in the Court. The
term ‘Bar’ also means a particular part of the Courtroom where lawyers sit’.
The term ‘Bench’ means all the Judges takentogether. The term ‘Bench’ also refers
to the part of the court where judges sit in their official capacity.
Thus, the term ‘Bar-Bench relations’ means the relations between advocates and
judges in the administration of justice. The Bar and Bench are two important components
of the administration of justice. Therefore, smoother relations between them play an
important role in the administration of justice. The judges administer the law with the
assistance of the lawyers. The lawyers are officers of the Court, and therefore, they are
expected to assist the Courts in the administration of justice. Advocates collect material
relatingto the caseand therebyassistthe court in arrivingat a correctjudgment. Therefore,
Advocates are partners in the administration of justice. Similarly, the role of judges in the
administration of justice is pivotal. According to Justice Anand, “there is no office in the
State of such powers as that of the Judge”. A citizen’s life, liberty, reputation, property,
andpersonalanddomestichappinessaredependentonJudges.If suchimportantmachinery
of the judiciary becomes corrupt or partial, citizens’ life, liberty etc., come to an end.
Therefore, a strong, impartial, fearless judiciary is the greatest need of a State.
51
“Law Master’s” Publicat “Bar Bench Relation and Contept of Courts” Prof. S.D. Bhosale
a. Advocates' duties towards the Court-
Section I of the Bar Council of India Rules provides the advocate’s duties to the
Court. There are 10 rules in the section. [Refer to rules already discussed in the topic
‘Professional Ethics’]. These rules are meant to protect the dignity of the judiciary and
ensure the smooth administrationof justice. Moreover, the rules are important for the good
administration of justice with the help of proper ‘Bar-Bench’ relations. It shows that the
legal profession is not created for private gain but for the public good, and by good ‘Bar
Bench’ relations, the purpose of a public good is well served. Thus, the rules cast a duty
on advocates to uphold the dignity and decorum of the Court. He should not do anything
which brings the Court into disrepute.
However, an Advocate is not expected to be servile; he is expected to complain
beforethe properauthorityforhisrightful grievancesincehe is also an officerof theCourt.
b. Role of judges in maintaining relations-
The role of judges in maintaining ‘Bar Bench’ relations is also important. To
maintain Bar-Bench relations, even judges are also expected to abide by certain duties,
such as
(i) A Judge mu
st impart justice without fear, favour, affection or ill will.
(ii) A judge must not be subject to any influence other than the influence of law and
justice.
(iii) A judge must be impartial.
(iv) A judge should possess a calm temper and must owe the bar consideration and
courtesy.
(v) A judge should have patience and be aware of the gravity of the hearing. He should
allow the advocate the fullest opportunity to present his case.
(vi) A judge should respect the privilege of the Bar. He should give a patient hearingso
long as he is respectful and relevant in his argument.
(vii) A judge should sit with a receptive mind. He should not form an opinion regarding
the merit of the case till he has heard the complete case.
(viii) Avoid interruption-
A judge should avoid interruptingthe counsels in their arguments and in examining
witnesses. However, to prevent repetition or irrelevancy, interruption may be made. The
court may also interrupt properly to clear up his doubts about facts and legal points.
(ix) Avoid controversial tone-
A judge should avoid a controversial manner or tone when addressingthe consul,
litigant, or witnesses.
52
“Law Master’s” Publicat “Bar Bench Relation and Contept of Courts” Prof. S.D. Bhosale
Thus, in maintaining bar-courtrelations,boththe Bar and the Bench are responsible
for followingrules andetiquettefortheproperadministrationofjusticeforthe publicgood.
II. Contempt of Court meaning-
The contempt of Courts Act of 1971 determined all aspects of contempt of courts.
Therefore,the sectionsreferredto hereunderare from the Contempt of Courts Act of 1971.
Definition of Contempt of Court (S. 2 (a))-
“Contempt of Court” means ‘civil contempt or criminal contempt.
Thus, the definition of ‘contempt of court’ is not exhaustive; it just mentions that
there are two types of contempt, viz. (i) Civil and (ii) Criminal. We will discuss them as
follows-
(1) Civil Contempt (S. 2 (b))-
‘Civil Contempt’ means “wilful disobedience to any judgment, decree, direction,
order, writ or other processes of a Court or wilful breach of an undertaking given to a
Court”.
Thus, as per the definition, civil contempt consists of the following-
(i) willful disobedience,
(ii) of any judgment, decree, direction, order, writ, undertaking or process of the Court.
1
Allahabad High Court heldthat the purposeof punishingcivil contemnoris twofold viz.-
(1) to punish the contemnor for deterring him from such contempt
(2) to compel the contemnor to enforce or obey court order.
Whether the disobedience is wilful or not is an issue to be decided by the Court,
considering the facts and circumstances of each case.
(2) Criminal Contempt (S. 2 (c))-
“Criminal Contempt” means-
(i) the publication- whether by words spoken or written or by signs, or by visible
representations, or otherwise- of any matter or
(ii) the doing of any other act whatsoever which-
(a) scandalises or tends to scandalise, or lowers or tends to lower, the authority of
any Court; or
(b) prejudices, or interferesor tends to interferewith the due course of any judicial
proceeding; or
(c) interferes or tends to interfere with, or obstructs, or tends to obstruct, the
administration of justice in any other manner.
Thus, criminal contempt is conduct directed against the dignity of the Court. The
1 (1991) Cr.LJ 2286
53
“Law Master’s” Publicat “Bar Bench Relation and Contept of Courts” Prof. S.D. Bhosale
definition is wide enough to include any act of a person that would tend to interfere with
the administration of justice or lower the authority of the Court.
The term ‘scandalise’ means the defamatory, derogatory, false, malicious,
disgraceful statement regardingthe person as a judge. The term ‘scandalise’ simply means
any hostile criticism of the judge.
The court will decide whether the publication or act is criminal contempt based on
the facts and circumstances of each case.
The offence of contempt is complete by mere attempt and does not depend on the
actual deflection of justice.
Justice A. S. Anand to step down as Chief Justice of India for holding office even after
passing the superannuation age. The contemnor had also threatened to launch a criminal
proceeding if the Chief Justice did not step down.
The Court held it as a gross criminal contempt of court.
III. Defenses to Contempt-
The defences for civil contempt and criminal contempt are different; therefore, we
will discuss them as follows-
A. Defenses for Civil Contempt-
Following defences are available to contemnor in civil contempt viz.-
1. Disobedience or breach not willful-
“Willful” disobedience of the order, decree, etc., of the Court or breach of an
undertakingis an important ingredient of civil contempt. Hence, disobedience or a breach
that is not willful is a good defence of civil contempt.
3
Facts—The court ordered that the salaries of employees be paid. However, the salaries of
some of the employees were not paid because their appointments were in serious doubt.
The court held that, in the above circumstance, it could not be held that the contempt was
wilful in demanding punitive action.
2. The order has been passed without jurisdiction-
If the order disobeyed is proved to have been passed by the Court without
jurisdiction, the disobedience would not amount to contempt of court. Similarly, if the
undertakingdisobeyed is proved to have been given in a proceedingwithout jurisdiction,
the disobedience would not amount to contempt of court.
3. Order disobeyed is vague or ambiguous-
2 AIR 2001 S.C. 2374
3 AIR 2005 SC 1605
54
“Law Master’s” Publicat “Bar Bench Relation and Contept of Courts” Prof. S.D. Bhosale
A vague or ambiguous order is a defence in civil contempt. An order is vague if it
is not specific and complete.
4. Compliance with the order is impossible-
‘Compliance with the order of the Court is impossible’ is a good defence in civil
contempt in appropriate cases. The defence can only be raised in cases where
implementation of the order is not practically possible.
5. No knowledge of order-
A person cannot be held guilty of contempt in infringing an order of the Court of
which he knows nothing.
Calcutta High Court observed that ‘where an order of status quo is passed by the Court,
but the party continues the work before receiving the order and also has no actual
knowledge of the order, is not liable for contempt of court’.
6. Order involves more than one reasonable interpretation-
Suppose the order of the Court involves more than one reasonable and rational
interpretation, and the respondent adopts one of them and acts accordingly. In that case, he
cannot be held liable for contempt of court.
B. Defences for Criminal Contempt-
Ss 3 to 7 of the Contempt of Courts Act, 1971, have provided some defences to
Criminal Contempt. Moreover, accordingto S. 8 of the Act, these defences do not affect
other defences available to the accused under Criminal Contempt. It means the defences
provided by the Act in Ss. 3 to 7 are in addition to the defences available under any other
laws or precedents. The defences provided in Ss. 3 to 7 are discussed below.
1. Innocent publication and Distribution of matter (S. 3)-
A person should not be guilty of contempt of court if he did not know of a pending
proceedingbefore the court while distributingmaterial for which he has been indicted for
contempt (S. 3 (1)).
Similarly, it does not amount to contempt if, while publishing or distributing a
matter, the proceeding was not pending before the Court (S. 3(2)).
Moreover, if at the time of publishingor distributingthe matter, the person had no
reasonable grounds for believing that it contained or was likely to contain any such
contempt matter (S. 3 (3)).
Therese defences are available under civil as well as criminal contempt.
2. Fair and accurate report of judicial preceding (S. 4)-
A person shall not be guilty of contempt for publishinga fair and accurate report of
4 1989 Cr LJ (NOC) 39 (Cal)
55
“Law Master’s” Publicat “Bar Bench Relation and Contept of Courts” Prof. S.D. Bhosale
a judicial proceeding at any stage.
3. Fair criticism of judicial act (S. 5)-
A person shall not be guilty of contempt of Court for punishing any fair comment
on the merits of any case which has been heard and finally decided.
The Supreme Court held that fair criticism of a judge's conduct, the institution of the
judiciary, and its functioningmight not amount to contempt if it is made in good faith and
in the public interest.
4. Bona fide complaint against the presiding officer of the subordinate court (S. 6)-
A Bona fide complaint against the presiding officer of the subordinate Court is a
good defence. Thus, a bona fide complaint to the High Court or any other Court to which
the presiding officer (about whom the complaint is made) is subordinate is a defence for
contempt.
5. No substantial interference with the due course of justice (S. 13)-
The person cannot be held guilty unless it is satisfied that the contempt is of such a
nature that it substantially interferes or tends substantially to interfere with the due course
of justice.
IV. Punishment for Contempt-
S. 12 of the Contempt of Courts Act, 1971 lays down the following punishment for
contempt-
a. Punishment for contempt (S. 12 (1))-
Contempt of Court may be punished with simple imprisonment for a term
extending to six months or with a fine extending to two thousand rupees or both. This
provision does not affect punishment expressly provided in any other sections of this Act
or any other law.
b. Apology and Exception+-
The proviso to the section carves an exception to the punishment and provides that
the accused may be discharged or the punishment awarded may be remitted on an apology
being made to the satisfaction of the Court.
It furtherexplainsthatan apologyshall not be rejectedmerely because itis qualified
or conditional if the accused makes it bona fide. Thus, the exceptional clause makes it
mandatory for courts to accept an apology rather than punishment if the accused makes it
bona fide.
5 AIR 2002 SC 1375
6 AIR 1999 SC 1300
56
“Law Master’s” Publicat “Bar Bench Relation and Contept of Courts” Prof. S.D. Bhosale
Facts- The advocate shouted slogans in open court and hurled his shoe towards the court.
His action intimidated the court and caused interference with judicial proceedings. The
advocate was found guilty of gross criminal contempt.
Supreme Court rejected the apology on the ground that it was not genuine and advocate
not repentant. The Court sentenced the advocate to four months of simple imprisonment
and a fine of Rs. 2000.
c. Limit on excess punishment (S. 12 (2))-
No court shall impose a sentence in excess of that specified abovefor any contempt
either in respect of itself or of a Court subordinate to it. Thus, this clause limits the extent
of punishment; the court is not allowed to inflict more punishment than prescribed above
in any case, either for contempt of itself or of any other court.
d. Fine as a general punishment in civil contempt (S. 12 (3))-
Where a person is found guilty of civil contempt, the Court, if it considers a fine
will not meet the ends of justice and that a sentence of imprisonment is necessary, shall,
instead of sentencinghim to simple imprisonment, direct that he be detained in civil prison
for such period not exceeding six months as it may think fit.
The provision mandates awardinga fine as a general punishment in civil contempt;
however, if the court thinks that only a fine would not meet the ends of justice, then the
court is permitted to impose punishment of civil prison and not imprisonment.
e. Punishment in case of a company (S. 12 (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 of contempt, was responsible
for the conduct of the business of the company shall be liable for civil prison. If such
contempt is committed with the consent or connivance of any director, manager, secretary
or other officers of the company, each is liable for the punishment.
f. Limitation for action for contempt (S. 20)-
No Court shall initiate any proceedings for contempt after the expiry of a period of
one year from the date on which the contempt is alleged to have been committed.
V. Jurisdiction of the High Court and the Supreme Court-
a. Supreme Court and High Court are the courts of records-
of record.
According to Corpus Juris and Halsbury’s Law of England, the ‘Court of Record’ has two
powers viz.-
(i) to punish for its own or subordinate court’s contempt.
7 “Article” mentioned in Constitution.
57
“Law Master’s” Publicat “Bar Bench Relation and Contept of Courts” Prof. S.D. Bhosale
(ii) a Court whose proceedings (a record) are enrolled (kept) for perpetual memorial or
testimony.
Thus, the court of record implies the above two powers. In fact, these powers are
inherited from earlier English Courts.
b. Supreme Court’s power to punish for contempt-
Art. 129 of the Indian Constitution 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.”
Like the High Court (under S. 11), the Supreme Court has no specific provision
empowering it to punish contempt. However, the Supreme Court is the Court of Record
and has the inherent power to punish contempt.
8
In Re V. C. Mishra
The Supreme Court has observed that “the jurisdiction under Art. 129 is independent of
the statutory law of contempt. The jurisdiction of this Court under Art. 129 being sui
generis it cannot be controlled by any statute”.
c. High Court’s power to punish for contempt-
As per Art. 215 of the Constitution, “Every High 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.”
Thus, similar to the Supreme Courts' powers, the High Court also holds power as a
Court of Record. The High Court’s power is also inherent.
In addition to the abovementioned power under Art. 215, the Contempt of Courts
Act, 1971, in S. 10, also empowers the High Court with specific contempt powers.
d. Punish for contempt of itself as well as of subordinate courts-
As perS. 10, everyHigh Court shallhave andexercisethesame jurisdiction,powers
and authority, in accordance with the same procedure and practice, in respect of contempt
of courts subordinate to it as it has and exercises in respect of contempt of itself.
Thus, the section only provides that the High Court shall exercise the same powers
and follow the same procedure and practice in respectof contempt of courts subordinate to
it as it exercises inrespect ofcontempt of itself. It shows that the High Court has the power
to punishnot onlyfor the contemptof itself butalso for the contemptof subordinatecourts.
The provisotoS. 10providesthatnoHigh Court shalltakecognizanceofa 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.
8 AIR 1995 SC 2348
58
“Law Master’s” Publicat “Bar Bench Relation and Contept of Courts” Prof. S.D. Bhosale
The Supreme Court has held that- the proviso excludesthe jurisdictionof the High Court
only in cases where the act is alleged to constitute contempt of a subordinate court and is
punishable as contempt under specific provisions of the Indian Penal Code but not where
these acts merely amount to offences of other description for which punishment has been
provided in the I.P.C.
The object of the proviso seems to prevent parallel proceedings between two
jurisdictions on the same facts to avoid double jeopardy.
e. Extraterritorial jurisdiction of the High Court (S. 11)-
High Court shall have jurisdiction to inquire into or try a contempt of itself or any
court subordinate to it, whether the contempt is alleged to have been committed within or
outside the local limits of its jurisdiction, and whether the person alleged to be guilty of
contempt is within or outside such limits.
Thus, S. 11 conferspower on the High Court to inquireintoor try a contempt
of itself or any court subordinateto it even though the act of contempt has been committed
or the offender is found outside the local limits of its jurisdiction.
f. Power of Supreme Court and High Court to make rules-
The Supreme Court or, as the case may be, any High Court may make rules not
inconsistent with the provisions of this Act, providing for any matter relating to its
procedure (S. 23).
As per the power conferred by S. 23, the Supreme Court has framed 16 rules with
the name “The Rules to Regulate Proceedings for Contempt of the Supreme Court 1975”.
The rules, as the name itself suggest, are made to prescribeproceedingfor contempt
of court.
*****
9 AIR 1952 SC 149