Explainer: Attorney General’s Consent for Criminal Contempt of Court Proceedings

In recent times, numerous cases have come up in the Supreme Court that calls for initiating contempt proceedings and many of them deal with people well established in their professions. Why does it require the Attorney General to give his consent to initiate contempt proceedings?  NILAKSHI SRIVASTAVA attempts to explain the need and implications of this consent.

Recently, Attorney General K K Venugopal has caught national attention with his consent to initiate contempt proceeding against Comedian Kunal Kamra and Comic Artist Rachita Taneja to name a few.  In August, he had denied consent for contempt proceedings against actor Swara Bhaskar. Earlier in November, he had similarly decline to give cconsent to contempt proceedings against Andhra Pradesh Chief Minister Jagan Mohan Reddy. 

All eyes remain on the Supreme Court now to see how it responds to the situation and whether it does initiate contempt proceedings following the Attorney General’s consent 

What is the concept and the law of Contempt of Court in India?

Contempt of court is any conduct that demonstrates disrespect or disregard towards a court of law and its officers or interferes with parties or their witnesses before the respective authority and administration of law. The Contempt of Courts Act, 1971 governs the Contempt Law in India. 

Further, Article 129 and 215 of the Constitution of India empowers the Supreme Court of India and High Courts respectively to take action against the contempt. 

Article 129 empowers the Supreme Court, whereas Article 215 empowers High Courts. Section 10 of The Contempt of Courts Act, 1971 has given special powers to High Courts to punish contempt of subordinate courts. 

Fair and accurate reporting of judicial proceedings will not amount to contempt of court. Nor is any fair criticism on the merits of a judicial order after a case is heard and disposed of a ground for contempt.

Section 15 of the legislation describes the procedure on how a case for contempt of court can be initiated.

Contempt of court, as a concept seeks to protect judicial institutions from motivated attacks and unwarranted criticism. The objective is to safeguard the interests of the public, ensure that the authority of the Court is not denigrated and public confidence in the administration of justice is not weakened or eroded.

In the case of Baradanath Mishra v, the Registrar of Orissa High Court the court held that a common form of contempt is the vilification (personal abuse) of the judges.

What are the various kinds of Contempt of Court?

According to the Contempt of Courts Act, 1971, Section 2(a) bifurcates kinds of contempt into civil and criminal in nature.

Section 2(b) incorporates willful disobedience to any judgment, decree, direction, order etc. of a court, along with willful breach of an undertaking given to a court of law. The civil contempt is wrong of private nature. 

Section 2 (c) defines the ‘criminal contempt’ as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act, whatsoever which;

(i) scandalizes or tends to scandalize, 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 proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

What does not amount to Contempt of Court?

Fair and accurate reporting of judicial proceedings will not amount to contempt of court. Nor is any fair criticism on the merits of a judicial order after a case is heard and disposed of a ground for contempt. In the case of PN Dua v Shiv Shankar and Ors., the Supreme Court held that mere criticism of the Court does not amount to contempt of Court. In S.Mugolkar v. Unknown (1978), the Supreme Court held that the judiciary cannot be immune from fair criticism, and contempt action is to be used only when an obvious misstatement with malicious intent seeks to bring down public confidence in the courts or seeks to influence the courts.

Additionally, The Contempt Act was amended in 2006 to introduce truth as a valid defence if it was in the public interest and was invoked in a bonafide. Truth is considered as a valid defence against the charge of contempt. 

What are the role and duties of Attorney General of India (AG)?

Article 76 of the Constitution of India provides for the office of the Attorney General for India and defines it as the first law officer of the Government of India. The AG is appointed by the President and his holds office during the pleasure of the President. 

The objective behind requiring the consent of the AG to save the time of the court as the AG’s consent is meant to be a safeguard against frivolous petitions.

It is important to note that he is not deemed as a government servant. The AG is the Indian government’s chief legal advisor and is a primary lawyer in the Supreme Court of India. He advises the Government of India on legal matters referred to them.

The AG is assisted by a Solicitor General and four Additional Solicitors General.

Why is AG’s consent required for initiation for contempt proceedings? Is the AG’s consent mandatory for all contempt of court cases?

Section 15 of the Contempt of Courts Act, 1971 describes the procedure on how a case for contempt of court can be initiated. The Attorney General may bring in a motion before the court for initiating a case of criminal contempt. The motion for initiating the case will have to specify the contempt of which the person charged is alleged to be guilty.

If the motion is brought by any other person, the consent in writing of the AG or the Advocate General is mandatorily required in case of High Courts.

Once the consent of the Attorney General is given in writing, a notice under The Contempt of Courts Act is served personally on the person against whom the proceedings are sought to be initiated by the court. If the court decides not to serve the notice personally, the law requires the court to record the reasons for it.

However, when the court itself initiates a contempt of court case, also called the Suo Moto cases, the AG’s consent is not required. This is because the court is exercising its inherent powers under the Constitution to punish for contempt and such Constitutional powers cannot be restricted because the AG declined to grant consent. The Supreme Court’s recent judgment in “Vijay Kurle & Ors, being Suo Motu Contempt Petition (Criminal) No. 2 of 2019” settles the position that in suo motu criminal contempt cases, the consent of Attorney General is not required. 

The objective behind requiring the consent of the AG to save the time of the court as the AG’s consent is meant to be a safeguard against frivolous petitions.

What is the course of action once AG has granted consent?

Once the consent of the Attorney General is given in writing, a notice under The Contempt of Courts Act is served personally on the person against whom the proceedings are sought to be initiated by the court. If the court decides not to serve the notice personally, the law requires the court to record the reasons for it. If there are valid reasons to believe that the alleged contemnor is likely to abscond or evade judicial proceedings, it can order attachment of property of a value that it deems reasonable as well. The case is required to be heard by a Bench of at least two judges. 

What happens if the AG denies consent?

If the AG denies consent, the matter all but ends. The law has a limitation period of one year for bringing in action against an individual.

The committee made a comprehensive examination of the law and problems relating to contempt of court in the light of the position obtaining in India and various foreign countries.

The complainant can, however, separately bring the issue to the notice of the court and urge the court to take suo motu cognizance. If the court does take suo motu cognizance, the consent of the AG is anyway not required.

Were there any attempts in the past made to streamline the law relating to Contempt of Court?

It is generally felt that the existing law relating to contempt of courts is somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two important fundamental rights of the citizens, namely, the right to personal liberty and the right to freedom of expression. It was, therefore, considered advisable to have the entire law on the subject scrutinised by a special committee.

In pursuance of this, a committee was set up in 1961 under the chairmanship of the late H N Sanyal, the then Additional Solicitor General. The committee made a comprehensive examination of the law and problems relating to contempt of court in the light of the position obtaining in India and various foreign countries. The recommendations took note of the importance given to freedom of speech in the Constitution and of the need for safeguarding the status and dignity of courts and the interests of the administration of justice.

The recommendations of the committee have been generally accepted by the government after considering the view expressed on those recommendations by the state governments, union territory administrations, the Supreme Court, the high courts and the judicial commissioners.

The Commission said that “to delete the provision relating to ‘criminal contempt’ inter alia ‘scandalising of courts’ will have no impact on the power of the Superior Courts to punish for contempt (including criminal contempt) in view of their inherent constitutional powers, as these powers are independent of statutory provisions”. 

On March 8, 2018, the Department of Justice wrote to the Law Commission of India, asking it to examine an amendment to the Act to nix “scandalising the court” as a ground for contempt and restrict contempt to only “wilful disobedience” of directions and judgments of the court.

However, the Law Commission submitted a report stating that there is no point “tinkering” with the 1971 Act. The statute, it said, only lays down the procedure in contempt cases. “The powers of contempt of the Supreme Court and High Courts are independent of the Act 1971,” the report of the Commission said. The contempt powers of the higher courts are drawn from the Constitution itself.

The Commission said that “to delete the provision relating to ‘criminal contempt’ inter alia ‘scandalising of courts’ will have no impact on the power of the Superior Courts to punish for contempt (including criminal contempt) in view of their inherent constitutional powers, as these powers are independent of statutory provisions”. 

Additionally, Article 142(2) enables the Supreme Court to investigate and punish any person for its contempt.

The Law Commission informed the government that the 1971 Act was a good influence. In fact, the statute, by laying down procedure, restricts the vast authority of the courts in wielding contempt powers, it said.

The 1971 Act contains “adequate safeguards to exclude instances which may not amount to criminal contempt” as defined under Section 2(c) of the Act 1971. The Commission said the statute has stood the test of judicial scrutiny for about five decades. It empowers the High Court to act if someone is in contempt of the subordinate courts. Diluting the Act would expose the subordinate judiciary to acts of contempt of court.

The article was originally published in The Leaflet.

(Nilakshi Srivastava is a student at the National Law Institute University, Bhopal and an intern at The Leaflet.)