Analysis
Where does the Court find its Contempt Power?
Tracing the Courts power to punish for contempt of itself under the Contempt of Courts Act, 1971 and the Constitution.
The Supreme Court has the power to punish for contempt. One of the issues in the recent In Re Prashant Bhushan & Anr case was regarding locating that power. Bhushan relied on the Contempt of Courts Act, 1971 and The Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 to delineate the court’s contempt power and flag procedural lapses in his case. However, the Court was not convinced. It looked at the Constitution to respond.
Substantive Contempt Power is Under the Constitution
The Court relied on two constitutional provisions to derive contempt power. First, Article 129 of the Constitution of India, 1950 which makes the Supreme Court ‘a court of record’ and confers power to punish for contempt of itself. Second, Article 142 which allows the Court to provide punishment for contempt, subject to any other law.
Among these two provisions, the Court further clarified that its primary source of contempt power is under Article 129, as the power under 142 is qualified by any law the Parliament makes.
Apart from the constitutional provisions, the Contempt of Courts Act, 1971 (Act) and The Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 (Rules) form the legal framework to govern contempt proceedings. One of the main arguments Bhushan made in favour of having the petition dismissed was that the procedure to initiate suo moto contempt proceedings, as per this legal framework, was not met. He specifically relied on Rule 3 of the Rules, which requires the consent of the Attorney-General or Solicitor-General before proceeding with criminal contempt.
The Court invoked P.N. Duda v. P. Shiv Shanker & Others to categorically hold that the inherent power of contempt is under Article 129. The Act and the Rules provide a framework for the procedure in contempt proceedings. Moreover, the Court held that in suo moto proceedings, ‘the procedure followed is required to be just and fair and in accordance with the principles of natural justice.’
Incidentally, the Draft Article 108 (Article 129) did not provide for contempt power. On May 27th 1949, Ambedkar sought to incorporate it. He argued that principally, a court of record did have contempt jurisdiction; however, the English courts derived such power through the common law. In order to address any future ambiguities, Ambedkar argued for explicitly incorporating this power into Draft Article 108.