Bhushan’s Contempt: Take on Procedural Issue :- Rohit Rohilla

Courtesy :- BeMo

In the suo motu contempt petition, against public interest lawyer Prashant Bhushan, a preliminary objection was raised concerning the procedure which was to be followed. It was argued from the contemnor’s side that the Court could not have taken suo motu cognizance of the matter. The objection stemmed from the fact that the proceedings were initiated on the basis of the petition filed by one Mr. Maheshwari and that unless the Attorney General gives his consent as per the provisions of the Contempt of Courts Act, 1971the proceedings could not have been initiated.

The roots of contempt law can be traced back to the British Rule in India when the Supreme Courts at Madras and Bombay were given same powers in the matters of punishing for contempt as were exercised by the superior courts in England. Thereafter, the law continued to take its shape through a catena of judgments and the powers of courts as courts of record were well recognized. The Constitution of India also provides for the powers of the Supreme Court of India and the High Courts, in relation to dealing with contempt, under Articles 129 and 215 respectively.

Thereafter, various attempts were made by the Parliament vis-à-vis contempt and in 1971, the Contempt of Courts 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’. The nature of the Act of 1971 had been in issue in various cases in which it was found to be procedural in nature. In other words, the Act is not a substantive law conferring contempt jurisdiction.

The Apex Court is bestowed with the power to make rules, in general, by the supreme law of the land as well as by Section 23,in particular, of the Contempt of Courts Act, 1971. In the exercise of the said power, it has framed ‘The Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975’. These rules provide for three ways for initiating contempt proceedings. The first is suo motu, the second is on a petition made by the Attorney General or the Solicitor General, and the third is on the basis of a petition made by any person and where criminal contempt is involved then the consent of the Attorney General or the Solicitor General is necessary.

In the light of such express rules it is clear beyond cavil that the preliminary objection raised never stood a chance of being accepted by the Court. Even in the absence of the said rules, it would have been very difficult for the court to sustain the objection. As far as the Supreme Court and the High Courts are concerned, the source of power for proceeding against a contemnor is the Constitution. Articles 129 and 215 are manifestations of inherent powers of the Constitutional Courts to deal with a contempt of themselves summarily and to adopt their own procedure, provided that it gives a fair and reasonable opportunity to the contemnor to defend himself. This power cannot in any manner be limited by anything short of constitutional amendment let alone the procedural provisions of the Contempt of Courts Act, 1971. The Act only provides the procedure by which such contempt is to be initiated, hence, the said Courts can very well initiate the proceedings suo motu on the basis of information received, for one of the established principles of civilized jurisprudence is “procedure is the handmaid of justice, not its mistress”.

Mr. Rohit Rohilla graduated in law from USLLS, Guru Gobind Singh Indraprastha University. He has done his Masters in Law from National Law Institute University, Bhopal. He is currently working as an Assistant Professor at SRM University, Delhi-NCR.

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