16 Feb 2024

A view on High Court’s power to entertain a Review in a Contempt Case


“I will do right”—those are the guiding words which govern all the rest— I will do right, which means, “I will do justice,” not “I will do law.” “To all manner of people”—rich or poor, Christian or pagan, capitalist or communist, black or white—to all manner or people he must do right.                                      

-       Lord Denning



The power of punish for contempt is an inherent power of court of record. It is described as “a necessary incident to every Court of Justice”.This power is recognized and has been given a fundamental status by the Constitution of India. Certain tribunals which have not been the status of court of record are also conferred with this jurisdiction.


In the case of Sukhdev Singh Sodhi2 Justice. Vivian Bose stated that the SC of Bengal would have the same jurisdiction as the Court of King’s Bench. At Common Law the position was clear that a superior court of record had the inherent power to punish for contempt and this was the consistent position of the Privy Council as well.  The power that was considered intrinsic and was also continued in the GOI Act 1935 which referred to the High Court as courts of record in sec. 20. 


Article 215 of the COI provides that the HC shall be a court of record. The term Court of Record is not defined anywhere, but the historical meaning of court of record is where acts and judicial proceedings are preserved for perpetual memorial and testimony3





In Delhi Judicial Service Association the SC highlighting an observation made by Privy Council in Surendranath Banerjea v. Chief Justice and Judges of the High Court at Fort Williams, which stated that by common law every court of record was the sole and exclusive judge of what amounts to contempt of court. The Court further noted that even after the codification of the law of contempt in India the High Court’s jurisdiction as a court of record to initiate proceedings and take seisin of the matters unaffected by the Contempt of Courts Act, 1926.


Similarly, in Supreme Court Bar Asscoiation4 the SC observed that the power of court of record enjoy the power to punish for contempt is a part of their inherent jurisdiction and is essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administration of justice.


Thus, even in the absence of the constitutional provisions, the HC and the SC would possess the power to punish for contempt. This was well known to the Constituent Assembly and the language of Arts 129 and 215 is an attempt to put matters beyond doubt.One important consequence of these articles is that Parliament cannot, by statute, take away the contempt jurisdiction from the SC and HCs. Similar view was given by the Apex Court in R.L. Kapur v. State of Madras (1972) 1 SCC 651.



In respect of HCs, in the absence of any provision similar to Art. 142 (2), could it be said that the powers of HC to make any order for the purpose of investigation and punishment of any contempt of itself would not be subject to the provisions of ‘any law made in this behalf by Parliament.’ The question had been answered in the affirmative by a learned single judge of the Calcutta HC.The said decision was overruled by a division bench, without however considering the said question.





Section 12 of the act limits the maximum punishments to be imposed for contempt and sub-sec (2) therein makes it clear that “no court” shall impose a sentence in excess of that which has been specified. As the word “court” is not defined in the Act, it is unclear whether includes the HCs and SC. However, the question whether such a limit would act a fetter on the SC was left open by the SC in Supreme Court Bar Association (supra). 


This needs to be read with the Preamble to the Act, which states that the purpose of the Act is to “define and limit the powers of certain courts in punishing contempt of court and to regulate their procedure in relation thereto.” Thus, the word “courts” will have to be interpreted and consider whether Top Courts can remain outside that word. But, it may be concluded that the Act could regulate the procedure to be followed by the superior courts in exercise of contempt powers under Arts. 129 and 215, but not in any way stultify the substance of that power.7




The power to punish for contempt of Top Courts is basically a power to uphold the authority of court. An independent judiciary is the basic structure of the constitution. The Hon'ble Supreme Court stated in S.P. Gupta v Union of India8 the Constitution's core elements of judiciary independence and the rule of law could not be repealed even by constitutional modifications. 


As far as the power of HC to review its own order in cases of contempt is concerned is to be looked from the perspective highlighted above which includes:

·      Inherent power

·      Court of record

·      No parliamentary limitation possible

·      Upholding the basic structure and court’s authortity





The SC in M.M. Thomas9 the Apex Court was considering whether a review petition filed in an appeal under the Kerala Private Forests (Vesting and Assignment) Act, 1971 was maintainable. The Apex Court had answered the question in the positive, ruling that the high court, being a court of record, as envisaged under Article 215 of the Constitution of India, must have inherent powers to correct the record.

It held: 



The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction."


If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down, Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of record.

In the aforesaid view of the matter we are not disposed to interfere with the impugned order though we are not deciding the question whether the failure to put forth a contention would amount to concession being made by the State counsel as envisaged in Section 8C(2) of the Act.





A full bench of Kerala HC in 2018 took a similar stand and reversed its earlier judgement10denying review of contempt order and held that a review petition is maintainable against an order in a contempt case. The Kerala HC was hearing a hearing a review petition filed by one G. Bhagavat Singh, which had been referred to it to consider the correctness of the judgment in Antony v. PS Rana (ibid). While making the reference, the Single Judge had noted that the impugned judgment was in conflict with the Supreme Court judgment in MM Thomas v. State of Kerala (ibid).

It held:


No such restriction can be imposed on the plenary power of High Court. The CC Act and the Contempt of Court Rules framed by the High Court, only prescribes the procedure to be followed in contempt matters, but the said statute does not restrict the power of High Court in exercising its plenary powers, as contemplated in Article 215. If there is any error apparent on the face of record, as held in M.M.Thomas (supra), as a court of record, the High Court, in exercise of its plenary powers as envisaged in Article 215, is bound to correct such errors,” it ruled, adding,


“However, the extent of interference in the review petition filed against the contempt case depends upon the facts of each case. Only in instances where the petitioner is able to point out that there is error apparent on the face of record, that the Court should exercise the power of review.”






In Senior Sub Judge, Dharamshala v. Ram Avtar Kansal & another12), the Division Bench of Himachal Pradesh High Court considered a case to review an order in a contempt case in which the contemnor was sentenced to undergo simple imprisonment for a period of one month. It was held that contempt proceedings are quasi-criminal proceedings and therefore the procedure adopted by the courts is akin to the one provided in the Code of Criminal Procedure.  







A Division Bench of Allahabad High Court had occasion to consider a similar issue in State v. Baldev Raj, Advocate.13 That was also a case where the contemnor was convicted and sentenced to undergo simple imprisonment for two months and to pay a fine of 1,000/-. The next day he ₹ filed an application to recall the said order. 


It was held that though the powers of the High Court under Article 226 are much wider to secure natural justice, the powers of the High Court in matters of contempt of courts have been limited by the preamble of the Act. In so far as the Act provides elaborate procedure and then appeal against an order or decision of the High Court, the Act impliedly excludes power of recall or review. It was however observed that, after a final order or decision in the matter of contempt of Court is ordered, the High Court has inherent power to correct clerical or typing mistake. It was also held that the allegations raised in the petition cannot even be called a mistake apparent on the face of record or a clerical mistake and therefore, the judgment does not call for review.






Through Arts. 32 and 226 the SC and HCs protects the rights of the citizens. These Top Courts have been empowered by no parliamentary act but by the grundnorm itself. Any Act of the Parliament is subject to the grundnorm and cannot bypass it. Thus, the powers expressly present in top courts can’t be downheld by a parliament act. 


But can the powers which are not expressly conferred by the grundnorm be read down? Here enters the principle of basic structure of constitution. In various judgements the Apex Court has held that independence of judiciary is the basic feature of the constitution. The power of contempt of top courts including the power of review of such orders is a necessary corollary to fairness and independence and thus cannot be circumscribed of curbed.


There are certain silences of the Constitution which are sometimes referred to as the Constitutional Morality. The prime principle of constitutional morality is to have limited powers as against unlimited and arbitrary exercise of powers.  Arbitrariness is antithesis to equality of which Court is the protector. Thus, wherever any arbitrary, irrational or faulty action takes plays the Courts must step in. The power of review is one such area where in order to ensure that the very first objective of preamble to the constitution i.e. Justice is protected, the courts must step in. 


The Apex Court has highlighted the power or review of Courts and tribunals in A.V. Papayya Sastry & Ors vs Government Of A.P. 7 (2007) 4 SCC 221 and held that, inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business.


Various HC’s have viewed that while the Courts of limited jurisdiction, created by Statute are to be conferred with the power to review, the Constitutional Courts are empowered to exercise such a power of review by necessary implication. Therefore, the High Court has the necessary power to review its own orders whether in a contempt case or in other cases.

        1.R vs Almom, (1765) Wilm . 243 at 254. 

2.  Sukhdev Sungh Sodhi v. The Chief Justice and Judges of the Pepsu high court, (1954).

3.  Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 406 paras 19-21.

4.  Supreme Court Bar Asscoiation v. Union of India (1998) 4 SC 409.

5.  See the discussion in Constituent Assembly Debates Vol. VIII, at 378-383. See also Sanyal Committee Report Ch. III, part 4.

6.  Tata Iron & Steel Co. v. Ramniwas Poddar, AIR 1989 Cal 375.

7.   K.K. Venugopal, Gopal Subramanium, Restatement of Indian Law - Contempt of Court, pg 19.

8.  AIR 1982 SC 149, (First Judges Case).

9. M.M. Thomas v. State of Kerala Case number: C.A. No.-009663-009663.

     10.Antony v. P.S. Rana (2005 (2) K.L.T. 120).

     11.G. Bhagavat Singh v. Manoj Joseph [LAWS(KER)-2018-10-506]

     12. (1991) KHC 1629.

     13. [1991 (15) ACR 657].



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