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Plea for contempt action against Sibal: The law and the A-G’s decision

Around the world, “contempt of court”, or simply “contempt”, is understood as a set of legal provisions that firewall courts, and safeguard and protect their ability to dispense justice.

Senior Advocate and Member of Parliament Kapil Sibal and Attorney General of India K K Venugopal (right). (File photos)

Attorney General of India K K Venugopal has declined a request for consent to initiate criminal contempt of court proceedings against Senior Advocate and Member of Parliament Kapil Sibal for certain remarks that he made during a speech on the subject of “Judicial Rollback of Civil Liberties” on August 6.

“No part of the statements cast any blame or aspersion upon the court,” the A-G said in his opinion rejecting the request made by advocate Vineet Jindal. What is contempt of court, and why is the consent of the A-G required to proceed in a matter of alleged contempt?

First, what is contempt of court?

Around the world, “contempt of court”, or simply “contempt”, is understood as a set of legal provisions that firewall courts, and safeguard and protect their ability to dispense justice. The Cornell Law School’s Legal Information Institute defines contempt as “the disobedience of an order of a court” and, “also conduct tending to obstruct or interfere with the orderly administration of justice”. It is also understood to describe acts of defiance or disrespect of court orders or judges, and to ascribe motives to them.

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According to The Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.

Civil contempt means “wilful disobedience to any judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking given to a court”.

Criminal contempt, on the other hand, is attracted by “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

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(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.”

Who can bring a charge of criminal contempt of court against an individual?

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The Contempt of Courts Act, 1971, lays down the law on contempt of court. Section 15 of the legislation describes the procedure on how a case for contempt of court can be initiated.

In the case of the Supreme Court, the Attorney General or the Solicitor General, and in the case of High Courts, the Advocate General, may bring in a motion before the court for initiating a case of criminal contempt.

However, the motion can be brought by a private citizen as well — and in such a case, the consent of the Attorney General (or the Advocate General, as the case may be,) is required.

The motion or reference made for initiating the case will have to specify the contempt of which the person charged is alleged to be guilty.

But what is the reason that the consent of the A-G is required?

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The objective behind requiring the consent of the A-G before taking cognizance of a complaint is to save the time of the court. Judicial time is squandered if frivolous petitions are made and the court is the first forum for bringing them in. The A-G’s consent is meant to be a safeguard against frivolous petitions, as it is deemed that the A-G, as an officer of the court, will independently ascertain whether the complaint is indeed valid.

Therefore, while the A-G deemed cases such as the one involving Kapil Sibal and before him actor Swara Bhasker (for allegedly making “derogatory and scandalous” statements against the Supreme Court) and author Shefali Vaidya (for her tweets) as not fit for the initiation of contempt proceedings, he did give his consent for those involving stand-up comedian Kunal Kamra (for his tweets following the Supreme Court’s decision to grant interim bail to television anchor Arnab Goswami), and comic illustrator Rachita Taneja (for allegedly scandalising the judiciary through her tweets and illustrations).

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What if a court itself decides to bring a case of contempt?

It can, indeed — and it did so recently in the case of Prashant Bhushan. In such a situation, the A-G’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 A-G declined to grant consent. A three-judge Bench headed by Justice Arun Mishra (now retired) reiterated this position in the Prashant Bhushan case.

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“As far as the suo motu petitions are concerned, there is no requirement for taking consent of anybody, including the learned Attorney General because the Court is exercising its inherent powers to issue a notice for contempt. It is equally well settled, that once the Court takes cognizance, the matter is purely between the Court and the contemnor. The only requirement is that the procedure followed is required to be just and fair and in accordance with the principles of natural justice,” the court had said.

A-G Venugopal had repeatedly objected to the court’s initiation of contempt proceedings against Bhushan during the course of the hearing. But the court had gone ahead anyway.

And what happens if the A-G denies consent (in the case of a private citizen)?

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

The complainant can, however, separately bring the issue to the notice of the court and urge the court to take suo motu (on its own motion) cognizance. If the court does take suo motu cognizance, as it did in the case of Prashant Bhushan, the consent of the senior-most law officer is not required.

Article 129 of the Constitution gives the Supreme Court the power to initiate contempt cases on its own, independent of the motion brought before it by the AG or with the consent of the AG.

“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 129 states.

What is the process if the A-G does grant consent?

Once the A-G gives his consent 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 the court is satisfied 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.

Once the notice is served, the alleged contemnor may file an affidavit in support of his defence, explaining the nature and circumstances of her remarks. The case is required under the Act to be heard by a Bench of at least two judges. The court then takes into account any evidence available to check the affidavit, and pass appropriate orders.

First published on: 03-09-2022 at 04:49:10 pm
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