[1] Authored by Satyam Tandon and Nisha Kanojia, Advocates at the Punjab & Haryana High Court
Originally published in Opinion Volume 2 of the Bar Association of Punjab and Haryana
“Contempt of court” means to act or omit from doing an act that would “offend the dignity and lower the prestige of the court.” It signifies disobedience of a court’s order by acting in opposition to the directions laid out. As per Section 2 of the Contempt of Courts Act,1971 it is declared that: –
(a) “contempt of court” means civil contempt or criminal contempt;
(b)”civil contempt” means wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;
(c) “criminal contempt” means 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
(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.
While contempt of court is an age-old provision, recent judgments have shown that there exists a small vacuum in the law when the doctrine of merger is made applicable to pending contemptuous actions. To understand this statement, a small introduction to the doctrine of merger is given hereinbelow. The doctrine of merger is neither a doctrine of constitutional law nor a doctrine that is statutorily recognised. It is a common law doctrine that is based on the principle of upholding the decorum of the hierarchy of courts and tribunals and judicial discipline. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative order governing the same subject-matter at a given point in time and has been highlighted in the following manner:
“Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before the superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the law.[1]”
Now, let us take up the question that was briefly touched upon earlier. Let us envisage a hypothetical, that whether for an interim time, during which an order has not been reversed, stayed or set aside by a higher bench, a challenge is pending, whether for such an interim time, the actions of an offender would be in contempt or not? Let us say that there is a dispute regarding land between a private party (A) and a Governmental Authority (B) of that area. This matter is decided by the High court in favour of the A. Now, B, illegally encroaches into the land in question and uses the land for their own purpose. At this point, it can be certainly said that B is in contempt of the order of the respective court. A files a contempt petition at the High Court, but before the pleadings are completed, B, who had filed an appeal before the Supreme Court obtains an order that reverses the decision by the High court, ruling the matter in favour of B. So, the question now is without there being a stay order by the Hon’ble Supreme Court, whether B’s act of encroachment should be deemed as contempt?
On one hand, I believe that it is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. I believe that such a party cannot be permitted to disobey it as such disobedience of the orders of a court strike at the very root of the rule of law on which the judicial system rests as judicial orders are bound to be obeyed at all costs, howsoever grave the effect may be, and cannot be permitted to be circumvented[2]. And on the other hand, a person has the unqualified and perpetual right to appeal and challenge to the extent of his legal remedies and therefore, shouldn’t be bound by an order until and unless, a judgment/order is final and binding.
Now, in this situation, the Doctrine of Merger would come into force, with the previous order being merged into the new one and therefore, on law, B would not be in contempt. But, whether for that interim time, was B in contempt or not? Legally, the decision by the Supreme court is “final” and “binding” and since it has been decided that the land doesn’t belong to A, they have no reason to initiate any action against B. But it is important to consider that B had wilfully disobeyed the order of the inferior court when no challenge had been put to the order. In a similar case, the Hon’ble Madras High Court held that:
“It is true that a mere filing of an appeal and an application for stay do not by themselves absolve the appellants from obeying the order under appeal and that any compliance with the learned Single Judge’s order would be subject to the final result of the appeal. But then the changes brought about in the interregnum in obedience of the order under appeal might themselves be a cause and source of prejudice. Wherever the order whose disobedience is complained about is appealed against and stay of its operation is pending before the Court, it will be appropriate to take up for consideration the prayer for stay either earlier or at least simultaneously with the complaint for contempt. To keep the prayer for stay stand-by and to insist upon proceeding with the complaint for contempt might in many conceivable cases, as here, cause serious prejudice.”[3]
They further held that “When a decree or order passed by an inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way — whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below.”
In the instant hypothetical case there is no operative stay on the order of the High Court, then the question is why does it not constitute as contempt? Shouldn’t the party in whose favour the order has been passed be entitled to enjoy the award granted by the court? Can it be called fair, to disregard the order of a court? Does the authority of lower courts have no meaning? Would it be appropriate for parties involved in litigation to do as they please before having an actual legal right to do so?
The answer should be that for the interim time, B’s actions should be punished by contempt, but in practice, say for example, the matter was not matured and by the time it got matured, the appeal order had been passed. At such a time, the vacuum that exists in the legal system is evident and I submit that if increasing number of people exploit this vacuum, the judgements pronounced by the Courts lower than the Hon’ble Supreme Court of the country will hold no weight and the parties involved will act as they deem fit, irrespective of the order of the lower courts. Such a situation could very well be catastrophic and therefore, I submit the following three solutions: –
- that the doctrine of merger should not be made applicable to a final order and an order issuing notice, unless or until there a stay is also passed by the higher Court; such that the ‘order in force’ as envisaged by the doctrine of merger should still be the inferior one.
- such matters, ie. the contempt case and the appeal at the higher Court ought to be brought to the notice of the courts and be clubbed in order to save time and duplicity of matters.
- the innocuousness of the actions required to be taken or omitted must be taken into account to the extent possible. For example, there is only a monetary sum involved, perhaps a bit part of the sum can be paid till the appeal is made final and binding; whereas, in a separate context, a punishment for contempt should be ordered in a matter in which say for example, a house has been torn down, and later the judgment has been reversed.
I submit that the above solutions are important to maintain the faith of the people in the system, to uphold judicial discipline and maintain a fine balance between practical, ethical and emotional factors. I conclude this paper echoing the sentiment envisaged by Justice K.R Shriram, who while delivering a judgement in a contempt petition in the Hon’ble Bombay High Court, observed that, “Judiciary is the bed rock and hand maid of orderly life and civilized society. If the people could lose faith in justice imparted by this court or disobey orders of this court, woe to be to orderly life. The fragment of civilized society would get broken up and crumble down.”[4]
[1] Kunhayammed vs the State of Kerala (2000) 6 SCC 359.
[2] Subrata Roy Sahara vs Uoi & Ors (2014) 8 SCC 470: AIR 2014 SC 3241
[3] Franciscan Sisters of Joseph vs Mr. Manikandan COCP No.1316 of 2017
[4]Rajinder Kumar Malhotra v. Paresh Biharilal Vyas, 2015 Bom HC, COCP 2
