ORDER
Pratibha Bonnerjea, J.
1. The respondent 1 Ramniwas Poddar and the respondent 2 Keshar Dev Sharaf carry on business under the name and style of Poddar and Sharaf, the respondent 3 herein and are the owners of the premises No. 1 Belvedere Road, Calcutta (hereinafter referred to as the 'said premises').
2. Under a scheme of amalgamation duly approved by this Court as well as by the Bombay High Court, the Indian Tube Company Limited was amalgamated with the petitioner as a result whereof all the assets and liabilities, rights and obligations of the Indian Tube Company Ltd. were taken over by the petitioner and the same stood transferred, merged and vested in the petitioner.
3. The Indian Tube Company had entered into four agreements with Poddar and Sharof, the respondent 3 herein, for purchasing four flats in the said premises being Flats Nos. 5E, 9E, 12A and 14A. These agreements contained arbitration clauses for resolving the disputes arising out of these contracts. Subsequently, disputes and differences arose between the parties and the respondents 1 to 3 tried to wriggle out of the said contracts. It is alleged that the Indian Tube Company was always ready and willing to perform its part of the said contracts. Under the circumstances, Indian Tube Company took out four applications under Section 20 of the Arbitration Act, being Special Suit Nos. 30, 32, 33 and 34 of 1980. The Special Suit No. 33 of 1980 related to the agreement for purpose of the Flat No. 12A mentioned above. Immediately thereafter, four applications under Section 41 of the Arbitration Act were taken out for appointment of Receivers over those flats and for other orders. By an ad interim order dated 12-5-80, Salil K. Roy Chowdhury, J. (as he then was) restrained the respondents 1, 2 and 3, their agents and assignees from transferring, assigning, alienating, disposing of, letting out or dealing with the said flats concerned in any manner whatsoever until further orders. All these applications were pending when the petitioner was amalgamated with Indian Tube Company and, as such, the petitioner is entitled to continue these proceedings. The respondents do not dispute these facts.
4. Two orders were passed by Deb, J. (as he then was) subsequently on 22-6-82 and 23-6-82 whereby a Special Officer was appointed with directions, inter alia, to inspect the four flats and the counsel for the respondent i appearing before Justice Deb assured the Court to render all assistance to the Special Officer. The Special Officer submitted his two reports both dt. 28-6-82 recording that flat No. 5E was occupied by Damodar Valley Corporation, Flat No. 9E was incomplete and lying vacant, the Flat No. 12A (which was to be on the 12th floor) and the Flat No. 14A (which was to be on the 14th floor) were incomplete as both the floors were under construction. No one was in actual occupation of the Flats Nos. 12 A and 14A. These reports are Annexures 'B' and 'C to the present petition. It also appears from the Annexures to this petition that Mr. R. L. Gaggar, Advocate on record of Indian Tube Co. Ltd., informed the respondents 1, 2 and 3 about the order of injunction dated 12-5-80 by his letter dt. 12-6-80 and to the respondents 4 and 5 herein by his letter dt. 18-7-80. The said four special suits appeared in my list on 10-1-85 and an order was made as follows : --
'By consent of the parties, interim orders passed in all the matters shall continue until further order of this Court. Cost cost in the arbitration proceeding.'
5. It is alleged in para 18 of the present petition that on 28-5-1987 one of the representatives of the petitioner went to inspect the condition of the said premises and found that Flat No. 12A, the subject-matter of the Special Suit No. 33 of 1980, was in occupation of one Peria Malai Tea and Rubber Co.. the respondent 6 herein. It is the petitioner's case that the respondents have committed contempt of Court by allowing the respondent 6 to occupy the said flat in contumacious disregard to the Court's order dt. 10-1-85.
6. The respondents 1 and 2 filed a joint affidavit in opposition alleging that when the ad interim order was passed on 12-5-80 the building had been completed up to the 5th floor only. It is further alleged that on22-4-80 the respondents 1 and 2 had entered into an agreement with one Continental Consultants (P.) Ltd. for construction of the rest of the unfinished portion of the said building on terms and conditions contained in the said contract. Continental Consultants subsequently assigned their rights under the contract dated 22-4-80 to one Hanuman Industries (P.) Ltd. pursuant to the terms of the said agreement. There was no violation of the said ad interim order by the respondents 1 and2 as the flat No. 12A was let out or sold by Hanuman Industries (P.) Ltd. It appears from the petitioner's letters dt. 18-7-80 and 5-8-80 being part of Annexure 'D' to the present petition, that the petitioner was aware of the aforesaid transactions between the respondents 1 to 3 and the said Continental Consultants Pvt. Ltd. as well as Hanuman Industries India Pvt. Ltd. It is also contended by the respondents 1 and 2 that the said order dated 10-1-85 being a consent order, its violation, if any does not amount to contempt of Court. Another plea has been taken by these respondents in paragraph 19 of this affidavit that the application is barred by limitation.
7. The respondent 5 who is a close relation of the respondents 1 and 2 and employed by the Hanuman Industries (P.) Ltd., filed a separate affidavit in opposition admitting that Hanuman Industries sold the flat No. 12A on 21-7-84 to one Thirumbadi Rubber Co. Ltd. and possession of the said flat was delivered on 21-11-84. His case is that he is a stranger to the Special Suit No. 33 of 1980 and as such is not bound by the said order. It is difficult to accept his submission. The order dt. 12-5-80 was passed against not only the respondents 1 and 2 but also against their agents, servants, assignees as well. The alleged agreement between the respondents 1 and 2 and the Continental Consultants was nothing but an assignment of the right of construction of the said building. Hanuman Industries got the assignment of all the rights under the said contract by virtue of an express clause contained in the said contract. As a result, Hanuman Industries stepped into the shoes of Continental Consultants and was bound by the said ad interim order dt. 12-5-80. The respondent 5 has also taken the plea that the order dt. 10-1-85 being a consent order, its violation, if any, does not amount to contempt of Court. He has also pleaded in para 4(d) that the present application was taken out on 24-6-87, nearly two years and seven months from the date when possession of the Flat No. 12A was delivered to Thirumbadi Rubber Co. Ltd. on 21-11-84. This application is hit by the provisions of Section 20 of the Contempt of Courts Act. 1971.
8. The respondent 4 Arun Kumar Poddar in his affidavit in opposition, alleged that when the Flat No. 12A was sold to the respondent 6 he was not the director of Hanuman Industries (India) Private Ltd. as he had resigned before 10-11-80. He has no knowledge of the alleged acts of contempt. The respondent 4 has also taken the plea of limitation.
9. In the affidavit in reply filed through the petitioner's principal officer A. K. Bhaduri the petitioner specifically alleged that the respondent 4 has full knowledge of the act of contempt as would be evident from Annexure 'A' to this affidavit in reply. He has also expressly taken the point in his affidavit in reply that Section 20 of the Contempt of Courts Act, 1971 is ultra vires as it overrides and offends against the provisions of Article 215 of the Constitution.
10. On behalf of the respondents 1 to 5, Mr. Tapas Banerjee appeared and he strongly argued that under the provisions of Section 20 of the Contempt of Courts Act 1971, the contempt proceeding must be 'initiated' within one year from the date of the alleged act of contempt. The petitioner has alleged that on 28-5-87 the petitioner noticed that Flat No. 12A was in possession of the respondent 6. The date when the flat was handed over and/or the alleged act of contempt was committed has not been mentioned in the petition. Section 20 of the Contempt of Courts Act, 1971 provides as follows : --
'No Court shall initiate any proceedings for contempt on its own motion or otherwise after expiry of a period of one year from the date on which the contempt is alleged to have been committed.'
11. The date of knowledge of the alleged act of contempt is irrelevant and immaterial for the purpose of initiating contempt proceeding. On this point, he relied on : AIR1978Kant57 (N. Venkataramanappa v. D. K. Naikar) where the Division Bench of that Court held in para 5 : --
'Having regard to the clear language employed in Section 20 of the Act,. ........ it is impossible to take the view that the date of knowledge of the complaint has any relevance for the purpose of computing the period of limitation.'
12. In view of the fact that the main defence taken by all the respondents is limitation under Section 20 of 1971 Act, the vires of which has been expressly challenged by the petitioner, on 23-3-881 directed the petitioner to serve a notice on the Attorney General of India. Pursuant to that notice, Mr. A. K. Ganguly, Senior Advocate appeared on behalf of the Attorney General of India with Mr, Gungwani.
13. Mr. Somenath Chatterjee appearing for the petitioner submitted that under Articles 129 and 215 of the Constitution the Supreme Court of India and the High Courts of India respectively have been given the status of Courts of record. The said provisions are as follows : --
Article 129 :-
'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.'
Similarly, Article 215 of the Constitution provides: --
'Every High Court shall be a Court ofrecord and shall have all the powers of such aCourt including the power to punish forcontempt of Court.'
14. The word 'power' in both the aforesaid Articles obviously refers to all the jurisdiction including the inherent special jurisdiction of the Counts of record to punish for contempt of itself. He pointed out that the meaning of 'Court of Record' has not been defined in the Constitution nor in the General Clauses Act. But Halsbury's Laws of England has described what it means : --
'Whether a Court is a Court of Record of not depends on whether it has power to fine and imprison, whether for contempt of itself or for other substantive offences. Courts of Record are such as have been made so by statute or by implication of a statute, that is, by having statutory power to fine and imprison, and Courts of Record of Common Law. The proceedings of a Court of Record preserved in its archieves are called records and are conclusive evidence of that which is recorded therein.'
15. As a matter of fact. Sir Barnes Peacock in (1884) ILR 10 Cal 109 (Surendra Nath v. Chief Justice and other Judges of the High Court of Bengal) defined the status and powers of a Court of Record in India and observed :
' Contempt of Court by libel published out of Court is something more than defamation. It is an offence which by the Common Law of England was punishable by the High Court in a summary manner with fine or imprisonment or both, for a part of the Common Law of England was introduced in the Presidency towns when the Supreme Courts were respectively established by the Courts of Justice. High Courts in the Presidencies are superior Courts of Records and the offences of contempt and the powers of the High Courts for punishing it are same in India as in England, not by virtue of the Indian Penal Code or the Criminal Procedure Code but by virtue of the Common Law of England.'
16. Clause 2 of the Letters patent for the High Courts of Calcutta, Bombay and Madras dt. 28-12-1865 while revoking the Letters Patent of 1862 expressly provided :
'......., that the said Court shall be and continue as a Court of Record.'
17. He submitted that all the powers possessed by the Chartered High Courts before the Constitution came into force were preserved, recognised and confirmed by Article 215 of the Constitution. These powers can neither be curtailed nor can be taken away or restricted by the Parliament or by the State Legislature. In support of his contention, he strongly relied on AIR 1954 SC 186 (Sukhdeo Singh v. Hon'ble C. J. Teja Singh and the Hon'ble Judges of the High Court of Pepsu) where the Full Bench consisting of B. K. Mukherjee, Bose Bhagwati JJ. expressly held that the power of a High Court to initiate proceedings for contempt and punish, where necessary, is a special jurisdiction which is inherent in all Courts of Record Whether this is a fresh conferral of power or a continuation of existing powers hardly matters because whichever way it is viewed the jurisdiction is a special one. It was further held in para 23 : --
'In any case, so far as Contempt of a High Court itself is concerned, as distinct from one of a subordinate Court, the Constitution vests these rights in every High Court, so no Act of a Legislature could take away that jurisdiction and practice.'
18. In : 1964CriLJ590 (Mohd. Ikram Hussain v. State of Uttar Pradesh), a Bench consisting of two Judges held in paragraph 11 as follows : --
'The High Court's powers for punishment of contempt have been preserved by the Constitution and they are also inherent in a Court of Record......... The only curbs on the powers of the High Court to punish for contempt of itself are contained in the Contempt of Courts Act which limits the terms for which a person can be imprisoned to six months' simple imprisonment.'
19. On behalf of the petitioner it is contended that Sukhdeo Singh's case (AIR 1954 SC 186) was not considered in : 1964CriLJ590 where it has been specifically held that no Act of Legislature can take away the Court of Record's jurisdiction or practice to punish for itself. According to the petitioner, the decision in Sukhdeo's case was delivered by a larger Bench consisting of three Judges. Hence the observation made in : 1964CriLJ590 that the High Court's power to impose punishment has been curbed by the Contempt of Courts Act cannot be treated as a good law. The respondents and Mr. Ganguly, appearing on behalf of the Attorney General of India, strongly relied on Mohd. Ikram's case in support of their respective contentions that both the Parliament and the State Legislature have the power under the Constitution to make laws relating to Contempt of Court curtailing, regulating and curbing the High Court's power to punish for contempt of itself and by 1952 Act the High Court's power to punish has been curtailed. These submissions of the petitioner as well as that of the respondents and Mr. Ganguly are not correct. Although under Cl. 2 of the Letters Patent of 1865 this High Court was recognised as a Court of Record with power to punsih for contempt of itself but all its jurisdictions conferred or recognised by this Letters Patent were made subject to the provisions of Cl. 44 thereof which preserved the powers of the Indian Legislature to make laws relating to any or all such jurisdictions.
'Cl. 44-- And we do further ordain and declare that all the provisions of these our Letters Patent are subject to the legislative powers of the Governor-General in Legislative Council under Section 41 of the Government of India Act 1915 and also of the Governor-General in cases of emergency under Section 72 of the Act and may in respects be amended and altered thereby.'
20. The Letters Patent of 1865 relating to Bombay and Madras High Courts had identical provisions. Therefore, the Indian Legislature was empowered to make laws and all the jurisdictions possessed by the High Courts as the Courts of record were liable to be altered and amended by such laws.
21. By virtue of the provisions of Cl. 44 of this Letters Patent, Contempt of Courts Act. 1926 was enacted curbing the jurisdiction of the High Court to punish for contempt of Subordinate Courts. Section 3 of this Act provided : --
''Save as otherwise expressly provided by any law for the time being in force, a contempt of Court may be punished with simple imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both. Provided that the accused may be discharged or the punsihment awarded may be remitted in apology being made to the satisfaction of the Court.'
22. By the Contempt of Courts (Amendment) Act of 1937, the word 'subordinate' in the preamble was dropped and Section 3 was amended by adding a second proviso as follows : --
'Provided further that notwithstanding anything elsewhere contained in any law. no High Court shall impose a sentence in excess of that specified in this section for anycontempt either in respect of itself or of a Court subordinate to it.'
23. Therefore, before the Constitution came into force, the High Courts' power, as Courts of record to punish for contempt of itself stood curbed or curtailed by 1926 and 1937 Acts by virtue of cl. 44 of the Letters Patent of 1865.
24. It is irrelevant and immaterial to try to trace back whether this special inherent jurisdiction to punish for contempt was derived from the British Common Law or that was conferred on High Courts in India by virtue of the provisions of the Letters Patent of 1862 and 1865. When the Constitution of India came into force, under Article 215 it preserved and recognised all the existing powers of the High Courts as Courts of record in express terms. But by then the High Courts' power for imposing punishment for contempt had already stood curbed by 1926 and 1937 Acts. The Contempt of Courts Act 1952 is a post Constitution Act which repeated 1926 Act. Section 2 of 1952 Act defines 'High Court' -- Section 4 contains High Courts' power to punish for contempt. It is a verbatim reproduction of Section 3 of 1926 Act as amended by 1937 (Amendment) Act and Section 5 widened the scope of the existing jurisdiction of the High Courts to make enquiries. 1952 Act did not put any fresh curb on the High Courts' power to punish for contempt of itself. Therefore, in Mehd. Ikram's case, decided in 1964 when the Supreme Court observed about the curb on High Courts' power to punish for contempt by the Contempt of Courts Act, it only referred to the aforesaid provisions the state of affair as existed prior to the Constitution, Whether this special inherent jurisdiction under Article 215 can be touched by the Legislature or not can be decided by this Court as held in 0044/1966 : [1966]3SCR744 where a Bench of five Judges held in paragraph 60 : --
'There is yet another aspect of the matter to which it is necessary to refer. The High Court is a Superior Court of Record and under Article 216 shall have all powers of such a Court of record including the power to punish for contempt of itself. One distinguishing characteristic of such Superior Courts is that they areen titled to consider question of their own jurisdiction raised before them.'
25. On behalf of the petitioner, reliance has been placed on 0065/1972 : 1972CriLJ643 (R. L Kapoorv. State of Tamil Nadu). In this case. Sukhdeo Singh's case reported in AIR 1954 SCI 86 was followed, In para 5 it was held : --
'In any case, so far as contempt of High Court itself is concerned, as distinguished from that of a Court subordinate to it, the Constitution vests these rights in every High Court and so no Act of Legislature could take away that jurisdiction and confer it afresh by virtue of its own authority.'
26. Regarding the provisions of Section 5 of the Contempt of Courts Act 1952, it was held in the same para :
'No doubt Section 5 of the Act states that a High Court shall have jurisdiction to enquire into and try a contempt of itself or of a Court subordinate to it whether the alleged contempt is committed within or outside the local limit of its jurisdiction and whether the contemnor is within or outside such limit. The effect of Section 5 is only to widen the scope of the existing jurisdiction of a special kind and not conferring a new jurisdiction.'
27. In this case, the Supreme Court further held in paragraph 6 : --
'But the High Court, as a Court of record, being clothed with a special jurisdiction, had also all incidental and necessary powers to effectuate that jurisdiction.'
28. Therefore, it is clear that Section 5 of 1952 Act only clarifies the territorial limits of the High Court's special jurisdiction in the matter of contempt of Court.
29. Another decision relied on by the petitioner is reported in 1981 Cri LJ 843 (Kant) (Section N. Nagaraja Rao v. Chikkachennappa). The question before the Court was whether the procedure laid down Under section 15(1)(b) of the Contempt of Courts Act 1971 is a mandatory or a directory provision. The Division Bench of the Karnataka High Court, relying on the decision of the Supreme Court in R. L. Kapoor's case, reported in 0065/1972 : 1972CriLJ643 held that Section 15(1)(b) does not apply in cases where High Courts deal with contempt of itself as no statute can take away the jurisdiction of the High Court as the Court of record to punish for contempt of itself. It was also held in paragraph 8 --
'From the above observation it is clear that power of the High Court to punish for contempt of itself derived from Article 215 stands on a different footing than its power to punish for contempt of subordinate Courts which is derived from the provisions of the Act. Therefore, Section 15(1) providing for the consent of the Advocate General cannot be construed as mandatory as the power of the High Court to punish for criminal contempt of itself is conferred on it by Article 215 without any restriction.'
30. The Karnataka Bench relied on Hari Vishnu's case reported in : [1955]1SCR1104 where it is held that when the Constitution confers jurisdiction in terms absolute and unqualified, the question whether there is any limitation on that power or jurisdiction must be found out from the provisions of the Constitution itself and from nowhere else.
31. According to the petitioner, the observation made by the Supreme Court in the aforesaid decisions clearly establishes that this jurisdiction under Article 215 for punishing for contempt of itself is the special inherent jurisdiction vested in the Courts of record is absolute in its terms and scope and cannot be taken away or touched by the Legislature. Therefore Section 20 of 1971 Act is ultra vires Article 215 of the Constitution.
32. On behalf of the respondents, several authorities have been cited in support of their contention that the Supreme Court and other High Courts have held that provisions of the Contempt of Courts Act 1971 have regulated and limited the High Courts' power to punish for contempt of itself. The counsel for the respondents strongly relied on Mohd. Ikram's case : 1964CriLJ590 and submitted that the Supreme Court in that case held that High Courts' power to punish for contempt of itself was curbed by the Contempt of courts Act. I have already dealt with this aspect of the case in great details that up to 1964 no curb was put on this power of the High Court by any post-Constitution Act. 1952 Act, in Section 4, incorporated the provision as existed before the Constitution was framed The next case cited by the respondent is : 1975CriLJ1 (Baradakanta Mishra v. Justice Gatikrushna Misra. C.J, of the Orissa H.C.). In this case, the Supreme Court had considered the provisions of Section 20 of the Contempt of Courts Act, 1971. The relevant observation is at page 2260, para 7 : --
'It is only when the Court decides to take action and initiates a proceeding for contempt that it assumes jurisdiction to punish for contempt. The exercise of the jurisdiction to punish for contempt commences with the initiation of a proceeding for contempt, whether suo motu or on a motion or a reference. That is why the terminus a quo for the period of limitation in Section 20 is the date when a proceeding for contempt is initiated by Court. Where the Court rejects a motion or a reference and declines to initiate a proceeding for contempt, it refuses to assume or exercise jurisdiction to punish for contempt and such a decision cannot be regarded as a decision in the exercise of its jurisdiction to punish for contempt. Such a decision, would not, therefore, fall within the opening words of Section 19, Sub-section (1) and no appeal would lie against it as of right under that provision.'
33. In this case, the Supreme Court was considering the question whether any appeal would lie under Section 19, Sub-section (1) of the Contempt of Courts Act, 1971 against an order refusing to take cognizance of an alleged act of cotempt. In that connection, the Supreme Court construed the word 'Initiate' in Section 20 and referred to the period of limitation. The question of limitation was not before the Court. Moreover, the question of validity or constitutionality of Section 20 was not raised or debated or decided in this case. Therefore, this case is not helping the respondents for establishing that Section 20 of 1971 Act is intra vires the Constitution.
34. The next case cited on behalf of the respondents is : 1978CriLJ772 (Purushotam Dass Goel v. Hon'ble Mr. Justice B. S. Dhillon. In this case it was however observed by the Supreme Court in para 3 : --
'He submitted that initiation of the proceeding by the High Court will be without jurisdiction if it is in violation of Section 20. It may be so. If the alleged contemnor in response to the notice appears before the High Court and asks it to drop the proceeding on the ground of its being barred, it may well be that an appeal would be to this Court under Section 19 from such an order although the proceeding has remained pending in the High Court. We are not called upon to express our final opinion in regard to this type of order, but we merely mention this type of order by way of an example.....'
35. It is clear from the extract set out above that the Supreme Court in this case was not considering the validity or constitutionality of Section 20 of 1971 Act as has been done in the present case. Hence this case is of no help to the respondents.
36. The respondents also relied on : 1981CriLJ283 (S. K. Sarkar, Member Board of Revenue, U.P. v. Vinay Chandra Misra) and strong reliance has been placed in paragraph 14 thereof : --
'Articles 129 and 215 preserve all the powers of the Supreme Court and the High Courts respectively as a Court of record which include the power to punish for contempt of itself. As pointed out in Mohd. Ikram Hussain v. State of U.P., : 1964CriLJ590 , there are no curbs on the power of the High Court to punish for contempt of itself except those contained in the Contempt of Courts Act. Arts. 129 and 215 do not define as to what constitutes contempt of Court. Parliament has, by virtue of List I and List III of the Seventh Schedule, power to define and limit the powers of the Courts in punishing contempt of Court and to regulate their procedure in relation therewith. Indeed this is what stated in the Preamble of the Act of 1971.'
37. Relying on this passage, it is argued that the Supreme Court has upheld the validity of the 1971 Act. I do not think that this submission is correct. In this case, the question before the Supreme Court was whether the High Court could take, cognizance of an alleged act of contempt of a Subordinate Court on a petition taken out by a citizen without obtaining the consent of the officers concerned in terms of Section 15(2) of 1971 Act. It was held that it did not restrict the power of the High Courts to take cognizance of an act of contempt of the Sub-ordinate Court on an application taken out by a private person as would be evident from para 18 of this report. The ratio of this case is that the High Courts' power to take cognizance of contempt is not restricted by Section 15 of 1971 Act.
38. The respondents further relied on : AIR1978Kant57 (N. Venkataramappa v. D. K. Naikar). In this case, the scope and the effect of Section 20 of 1971 Act were considered. It was held in this case that Section 20 put an absolute bar on the High Courts' power to initiate contempt proceeding after expiry of one year from the date of the alleged act of contempt. But the question whether the provisions of Section 20 offened against Article 215 of the Constitution and is ultra vires or not was not raised nor decided in this case.
39. In : AIR1980Guj194 (Dineshbhai A. Parikh v. Kripalu Co-operative Housing Society). It was held that the period mentioned in Section 20 was not the period of limitation as ordinarily understood but it is a condition precedent to the exercise of Courts' power under 1971 Act. The question of validity or legality or constitutionality of Section 20 was not in issue before the Court.
40. In 1980 All LJ 1028 (Harphool Singh v. Ranbir Singh), it was contended before the Court that Article 215 of the Constitution lays down that all High Courts are Courts of record and have unfettered power to punish for contempt of itself or the subordinate Courts. This submission was not accepted and it was held that the provisions of Article 215 should be read together with the provisions of the Contempt of Courts Act, 1971. The question of constitutionality of Section 20 was not raised or considered.
41. The constitutionality of Section 20 was challenged in 1984 Cri LJ 1171 (Advocate General, A. P. v. Koteswara Rao). The Court held that Section 20 was intra vires. Reading paragraphs 9, 10 and 11 of this decision, it will be clear that the learned Judge proceeded on the basis that after the Constitution came into force, by the Act of 1952 for the first time, the extent of High Courts' power to impose punishment was reduced by Section 4 of that Act and thereafter by Section 12 of 1971 Act. On these findings, the learned Judge held in paragraph 11 : --
'When the quantum of punishment that can be imposed by the High Court for contempt of itself is thus specifically restricted by the 1952 Act as well as in the 1971 Act, the point for consideration is whether the limitation as to time introduced for the first time in the 1971 Act is ultra vires or intended to be limited only to the cases of contempt of subordinate Court and not of the High Court which is a Court of record under Article 215 of the Constitution of India.'
42. I have already pointed out that the provisions of Section 4 of 1952 Act and Section 12 of 1971 Act are nothing but verbatim reproduction of the provisions of Section 3 of 1926 and 1937 Acts, There was no fresh curtailment of that power either by 1952 or by 1971 Acts after the Constitution came into force. The learned Judge's attention was not drawn to 1926 and 1937 Acts. The learned Judge then referring to the decision in R. L. Kapoor's case 0065/1972 : 1972CriLJ643 and observed in para 13 : --
'It was pointed out by the Supreme Court that the power to punish for contempt of the High Court as a Court of record is a special one whether it was inherent or conferred by Article 215 of the Constitution. But it was certainly not derived from the Contempt of Courts Act 1952 and therefore not within the purview of the Penal Code or the Code of Criminal Procedure. Section 5 of the Penal Code provided that its provisions did not apply to any special law or local law.'
43. By the aforesaid observations, the Supreme Court in fact held that High Court's power to punish for contempt as a Court of record is a special one and that Section 5 of the I.P.C. would not apply to any special law. The learned Judge however on the basis of this observation of the Supreme Court came to the conclusion that --
'These observations in my opinion clearly declare that it is open to the Parliament to make a Special law prescribing a period of limitation for collecting and satisfying fine imposed by the High Court for contempt of itself.'
44. But realisation of the fine will be in execution of the fine imposed by the High Court in exercise of its special inherent jurisdiction to punish for contempt. By the aforesaid observation, the Supreme Court did not pronouneb that the Parliament can make substantive law affecting High Courts' power to punish for contempt in exercise of its special jurisdiction. But the learned Judge observed :
'If therefore Parliament....... could make law prescribing period of limitation for collecting fine ......... can there be any objection for prescribing a period of limitation for initiation of proceeding of contempt of the High Court?'
45. The question of any 'objection' is irrlevant and does not arise. The question is whether the Constitution empowers the legislature to make such a laws and that power has to he found out from the provisions of the Constitution itself and from nowhere else.
46. The learned Judge then relied on : 1975CriLJ1 and : 1978CriLJ772 , where it was held that contempt proceeding is 'initiated' when the Court applies its mind and lakes cognizance of the act of con tempt. In that context, the Supreme Court also observed that initiation of the contempt proceeding must be made within on year from the alleged act of contempt in terms of Section 20 of 1971 Act. I have already pointed out that in the aforesaid two cases the constitutionality of Section 20 was not raised, discussed or decided. The learned Judge, however, held that Section 20 is intra vires. In this case, the learned Judge also considered the provisions of Section 22 of 1971 Act which is set out below : --
'The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law relating to contempt of Courts.'
47. It should be noted that the provisions of this section are in conflict with the preamble of this Act which says that object of this Act is to define and limit the power of certain Courts.
48. The learned Judge elaborately dealt with this Section and arrived at the following conclusion : --
'It is true that Section 22 is not in derogation of the provisions of any other law relating to contempt. But that section is meant to clarify that the Act confers powers in addition to those exisitng. The words 'not in derogation' mean that the substantive powers of contempt are not to be eroded by the Act. At the same time there can be no objection to regulate the procedure for contempt. Basically the prescription of a period of limitation is procedural and hence Section 20 like Section 12 cannot be said to derogate from the power mentioned in Article 215 of the Constitution. To derogate from a law is to enact something which impairs the utility and force, to abrogate a law is to abolish it entirely. Section 20 does not intend to abrogate the powers of Article 215 of the Constitution either wholly or partially. The powers can be exercised in all their amplitude within the period of one year prescribed by Section 20.'
49. It has to be found out whether Section 20 impaired the utility or force of the special jurisdiction of the Supreme Court under Article 129 and the High Courts under Article 215 and whether the powers of the Courts of record have been eroded or not. In para 17 of this decision, the learned Judge, clearly held :-
'The power of the High Court is circumscribed by the provisions of the 1971 Act enacted by the Parliament.'
50. The view taken by the learned Judge regarding the effect of 1971 Act, as stated in para 17, is in conflict with the view taken in para 19 of this case. Moreover, the learned Judge did not consider the earlier decision of the Supreme Court, viz., AIR 1954 SC 186 where it was unanimously held by the Full Bench that High Court's power to punish for contempt of itself under Article 215 cannot be taken away by any Act of the legislature. For all these reasons, I humbly disagree with this decision of the learned Judge of the Andhra Pradesh High Court. I have dealt with this judgment at great length as Mr. Ganguly, appearing on behalf of the Attorney General of India, has strongly relied on this case in support of his contention that Section 20 is intra vires.
51. To find out the correct position, it has to be seen whether by virtue of entry 77 of list I and entry 14 of Ust III of the 7th Schedule of the Constitution, the legislature has been empowered to make law to limit the special jurisdiction of the Courts preserved under Article 129 and Article 215 of the Constitution and, if so, to what extent.
52. Mr. Ganguly submitted that Article 246 read with Entry 77 of List I and entry 14 of List III of the 7th Schedule respectively confer plenary legislative power on the legislature to enact laws relating to 'contempt of Court'. According to him, the power conferred on the legislature extends to enacting a law on the entire subject of 'contempt of Court'. He then submitted that while Article 19(1)(a) guarantees the citizens of India the right to freedom of speech and expression, Article 19(2) expressly authorises the legislature to impose reasonable restriction on the exercise of that right by making any law inter alia on contempt of Court. According to him, this provision in the Constitution undoubtedly refers to a substantive law on contempt of Court and not merely a law laying down only form and procedure relating to the law of contempt. I am in complete agreement with Mr. Ganguly on this point so far as Article 19(1)(a) and Article 19(2) are concerned. The freedom of speech and expression should be exercised with some restraint so that the speech or expression may not amount to any offence enumerated in Article 19(2) of the Constitution. Therefore, a substantive law became necessary to define and clarify when 'speech' and 'expression' would amount to committing offences including contempt of Court within the meaning of Article 19(2). Entry 77 of List I and entry 14 of List III of the 7th Schedule were introduced in the Constitution for that purpose. The framers of the Constitution in their greater wisdom had realised that unrestricted right of speech and expression would endanger the safety and security of the country and would impair the dignity of the Judiciary. A substantive law became necessary to define what would amount to contempt of Court and to warn the citizens of India that their rights guaranteed under Article 19(1)(a) can go thus far and no further. Mr. Ganguly then submitted that the Parliament has the power to make laws relating to contempt of the Supreme Court and the Supreme Court, in spite of being a Court of record under Article 129, is bound to exercise all its powers including its special inherent jurisdiction to punish for contempt of itself in accordance with the laws made by the Parliament. He invited my attention to the provisions of Articles 129, 142(1) and (2) and entry 77 of List I of the 7th Schedule of the Constitution. For convenience the provisions of Article 142(1) and (2) are set out below : --
'Article 142(1).-'The Supreme Court in the exercise of its jurisdiction may pass such decree and make such order as is necessary for doing complete justice in any cause or matter pending before it......... .'
Article 142(2).-- 'Subject to the provisions of any law made in this behalf by Parliament the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents or the investigation or punishment of any contempt of itself.'
53. Entry 77 in List I of the 7th Schedule defines the extent of Parliament's power to make such laws.
'Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court) and fees taken therein, persons entitled to practice before the Supreme Court.'
54. Mr. Ganguly submitted that the aforesaid provisions read together would leave no doubt that the framers of the Constitution felt that the Supreme Court's special jurisdiction should be regulated and controlled by the legislature and as such conferred on the legislature plenary power to enact substantive law on contempt of Court and expressly provided that the Supreme Court, as a Court of record, shall exercise its special, inherent jurisdiction to punish for contempt of itself in accordance with the substantive law made by the Parliament. On this point also, I am in full agreement with Mr, Ganguly as the provisions of Articles 124, 142(1) and (2) and Entry 77 List I of the 7th Schedule of the Constitution contain express provisions regarding the same.
55. He then invited, my attention to Article 215 and entry 14 of the List III of the 7th Schedule of the Constitution which are set out below : --
Article 215 ; 'Every High Court shall be a Court of record and shall have powers of such a Court including the power to punish for contempt of Court.'
Entry 14 of List III :
'Contempt of Court, but not including contempt of the Supreme Court.'
56. In answer to my question, Mr. Ganguly in his usual frankness admitted that there is no provision in the Constitution relating to High Courts similar to that of Article 142 relating to the Supreme Court. In my opinion, the absence of such a provision in the Constitution places Article 129 and Article 215 on two different footings. It is extremely important to consider the effect of absence of such a provision in the Constitution to find out whether legislature has any power to make substantive law on contempt regulating or restricting the High Court's power under Article 215 to punish for contempt of itself. It would also be significant to note that entry 14 only mentions 'Court' and not 'High Court'. Mr. Ganguly submitted that if the provisions of Article 215 were to be so sacrosanct as not to permit enactment of any substantive law relating to contempt, then there was absolutely no purpose behind confirment of plenary power of legislation as are found in Article 246 read with entry 77 of List I and entry 14 of List III of the 7th Schedule. The framers of the Constitution could not be attributed the intention of having taken away the power of the legislature by enacting Article 215 of the Constitution,
57. To appreciate Mr. Ganguly's submission on the point and to find out how far the legislature of this country is empowered to make substantive law on contempt relating to High Courts. I will keep separate Articles 129, 142(2). 246 and entry 77 of List I of the 7th Schedule for the time being as they provide conferment of plenary power on the legislature to make substantive law on contempt regulating the Supreme Court's power to punish for contempt. The submission of Mr. Ganguly that legislature also has power to make law on contempt affecting Article 215 by virtue of entry 14 of List III of the 7th Schedule has to be examined carefully, If the framers of the Constitution wanted to place the High Courts as Courts of record on the same footing as that of the Supreme Court, why no provision relating to High Courts similar to Article 142(2) was enacted? Why in entry 14 List III the word only 'Court' is mentioned and not the High Court? It has been stated hereinbefore that a substantive law on contempt was necessary to regulate the freedom of speech and expression guaranteed under Article 19(1)(a) for the simple reason that citizens must know to what extent they can exercise these rights. Further, there can be contempt of Courts subordinate to the High Court for which substantive as well as procedural law became necessary, For all these purposes, by Entry 14 of List III, the legislature was empowered to make law on contempt of Court. Mr. Ganguly's submission that by virtue of entry 14 of List III the legislature has been empowered to make law affecting the High Courts' powers under Article 215 is difficult to accept due to absence of any such provision in the Constitution particularly when there is a clear provision relating to the Supreme Court as will be evident from Article 142(2). According to Mr. Ganguly, the word 'Court' inentry 14, by implication includes High Courts. He submitted that if they are construed otherwise it would lead to absurdity as it is well settled that no legislation could be characterised as an exercise in futility more so in case of interpretation of an organic instrument like the Constitution. There is no absurdity at all. The Contempt of Courts Act 1971 is perfectly valid so far as it defines the acts of contempt and lays down the procedure to enable the citizens of India or the officers mentioned in Section 15 to bring to the notice of the Court the act of alleged criminal contempt of the Supreme Court provided these procedures do not impair the utility or enforciability of the powers of this Court. It is submitted by Mr. Ganguly that the rule of construction of enactments is also well settled. When two provisions in an enactment cannot be reconciled with each other, they should be so interpreted, if possible that effect should be given to both. In support, he cited, : [1958]1SCR895 (Venkataramma Deveru v. State of Mysore). But that should be the principle of interpretation when the conflict is between two provisions of an Act. But what happens when a provision in the Act is in conflict with the provision contained in an organic instrument like the Constitution? In my opinion, in such a case, one has to see whether the Constitution had empowered the legislature to introduce such a provision in the Act. There cannot be two opinions on the point that the Constitution is supreme and its provision will prevail if it is in conflict with any provision of any law. Mr. Ganguly then submitted that if the Supreme Court declares a law in exercise of its jurisdiction under Article 142 of the Constitution, such a law would be binding on all the High Courts by virtue of Article 141 of the Constitution. He is perfectly right in his contention. If the Supreme Court had declared that Section 20 as intra vires the matter would have come to an end so far as the High Courts are concerned. But unfortunately that question has not been raised, debated or decided by the Supreme Court as yet. Mr. Ganguly then relied on the Sanyal Committee's report dated 28-2-63 appending a bill being Contempt of Courts Bill 1963. He submitted that this Committee after a long deliberation resolved that the Parliament is competent to make a law in relation to contempt of Court. In Chapter X of that report, the Committee recommended a period of limitation for initation of contempt proceeding on the finding that the contempt proceedings are of summary nature and as such the promptness is the essence of such proceedings. The Committe held that delay in contempt matters would be fatal although in some exceptional cases the delay may be overlooked. According to this Committee, the period of limitation should be short. In spite of all these observations, the Committee ultimately held that--
'We feel that on the whole instead of making any hard and fast rule on the subject the matter may continue to be governed bythe discretion of the Courts as hethertofore.'
(Paras 8 page 51 of Chap. X)
58. This bill when introduced in the Parliament, it was decided to refer the same for examination by a Joint Committee of both the Houses under the Chairmanship of Shri M. P. Bhargava, M. P. This Joint Committee submitted a report on 23-2-70. This Bhargava Committee suggested that the act should define the act of contempt and Section 20 should be included in the Act on the ground :
'It was brought to the notice of the Committee that in some cases contempt proceedings have been initiated long after the alleged contempt had taken place. The Committee, therefore, consideres it necessary and desirable that a period of limitation should be specified in respect of actions for contempt and have accordingly laid down in the new clause a period of one year at the expiration of which no proceeding for contempt should be initiated.'
(Page 605 of the Report introducing new Cl. 20)
59. It should be noted that neither the Sanyal Committee nor the Bhargava Committee nodded the absence of a provision in the Constitution similar to that of Article 142(2) regarding the High Courts. That the Constitution itself placed the High Courts and the Supreme Court on two different footings by an express provision remained unnoticed by both the Committees. As a matter of fact, in none of the cases, relied on by the petitioner or the respondents or Mr. Ganguly, the Courts have noticed this distinction made by the framers of the Constitution between the Supreme Court and the High Courts by enacting Article 142(2). These Courts also have proceeded on the basis that Articles 129 and 215 should be treated on the same footing. Mr. Ganguly when submitted that the general policy behind Limitation Act has been explained in Halsbury's Laws of England, Volume28, para 605 as follows : --
'the Courts have expressed at least three different reasons supporting the existence of statutes of limitation, namely--
(1) that long dormant claims have more of cruelty than justice in them;
(2) that a defendant might have lost the evidence to dispose a stale claim;
(3) that persons with good causes of actions should pursue them with reasonable diligence.'
60. He submitted that in recognition of these principles and more particularly the mandate of Article 21 of the Constitution, Section 468 of the Cr.P.C., 1973 prescribed the period of limitation for initition of criminal proceedings in certain types of offences. In support, he cited : 1981CriLJ722 (State of Punjab v. Sarwan Singh) where the Supreme Court while explaining the object of Section 468 of Cr.P.C. observed (at p. 1055) : --
'The object ......... in putting a bar of limitation on prosecution was clearly to prevent the parties from filing cases after a long time, as a result of which material evidences may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated proceedings long after the date of offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letters of law or take the risk of the prosecution failing on the ground of limitation.'
61. He further submitted that the law of limitation does not take away any right but only bar the remedy. Section 20 of 1971 Act does not take away the powers of the High Court to punish for contempt of itself but it only bars the exercise of that power and/or its enforceability after the lapse of the prescribed period. Whatever powers the High Court has for punishing for contempt of itself can be fully and effectively exercised within the prescribed period. According to him, the period prescribed under Section 20 is sufficient for Civil contempt because as soon as there is any violation of the order of Court, the party affected thereby would immediately bring it to the notice of the Court. So far as criminal contempts are concerned, Section 20 has to be read with Section 15 and Section 2(c) of 1971 Act which define criminal contempt. In the context of an allegation of criminal contempt, the observation of the Supreme Court in : 1975CriLJ1 with regard to Section 20 will have to be understood in the light of Section 15 of the 1971 Act. It was held in that case that 'initiation' of the proceeding starts when the Court first takes cognizance of the matter by exercising its special jurisdiction to punish for contempt of itself. The scope of Section 15 has been further explained in : 1988CriLJ1745 (P.N. Duda v. P. Shivshanker). The ratio of the two cases relied on by Mr. Ganguly has to be carefully considered to find out how far these two cases are supporting him.
The effect of the decision in : 1975CriLJ1 on the Courts of records power to punish for contempt of itself under Article 129 of the Constitution.
62. The ratio of the decision in : 1975CriLJ1 is that the Supreme Court or the High Court although is a Court of record with special inherent jurisdiction to punish for contempt of itself, becomes completely powerless if the act of criminal contempt is brought to its notice after expiry of one year from the date of such an act. Even if the proceeding Under Section 15 of 1971 Act had started earlier, viz., within the prescribed period, but the Court in the pending proceeding gets the first opportunity to take cognizance of the offence after expiry of one year from the date when offence was committed, it is debarred from 'initiating' contempt proceeding for punishing the contemnor even if the contemnor had hurled heaps of abuse, indignity and insult on the Court. The arguments of Mr. Ganguly that Section 20 does not take away the special jurisdiction but only bars the exercise of this jurisdiction after the prescribed period when examined in the above context, seems only jugglary of words. There is no doubt that Section 20 has severely circumscribed this special jurisdiction of the Courts of record by keeping the enforceability of this jurisdiction alive only for a limited period of one year for taking cognizance of the offence concerned. Considering the prescribed period from the date of the act of contempt elaborate proceeding prescribed Under Section 15, for all practical purposes, Section 20 has rendered this inherent jurisdiction of these Courts ineffective and/or nugatory.
63. This helpless position, particularly of the Supreme Court has become more precarious due to the interpretation and construction of Section 15 of 1971 Act in : 1988CriLJ1745 .
The effect of the decision in : 1988CriLJ1745 on the Supreme Court's power to punish for contempt of itself.
64. Section 15 of the 1971 Act provides that the Supreme Court or High Courts may take action on its own motion or on a motion made by : --
(a) the Advocate General, or
(b) any other person with the consent in writing of the Advocate General.
Explanation
In this section, the expression 'Advocate General' means-(a) in relation to the Supreme Court, the Attorney General or the Solicitor General.
65. In accordance with the provisions of Section 15(a) and Explanation (a), one P.N. Duda : 1988CriLJ1745 applied for written consent of the Attorney General for bringing the alleged act of criminal contempt to the notice of the Supreme Court. According to Duda, it was a criminal contempt of the Supreme Court. The officer concerned ' declined to give any consent. Thereafter, Duda personally made an application to the Supreme Court alleging the act of criminal contempt and also alleging that the officer concerned had arbitrarily refused to give consent. The matter was heard by Sabyasachi Mukharji and Ranganathan JJ. In paragraph 40, Mukharji, J. held as follows (at p. 1226 of AIR):-
' but members of the public have also right dependent upon consent being given either by Attorney General or the Solicitor General and if that consent is withheld without reason or without consideration of that right granted to any person under Section 15 of the Act that could be investigated in an application made to Court.'
66. Ranganathan J. however, held that whether consent should be given or not is entirely the discretion of the officer concerned and this discretion has been given u/s. 15 of the Act. Refusal to give consent or non-consideration of the application for consent by the officer concerned is not justiciable.
67. It is clear from this decision that the law on this point is not yet settled. With due respect to the learned Judges, in my humble opinion, whichever view may be upheld in future, it will have crippling effect on the Supreme Court's power to punish for contempt of itself as will be evident from the analysis of these decisions and their effects set out below : --
(1) A private citizen has no right to bring to the notice of the Supreme Court the act of criminal contempt of itself without observing the formalities provided in Section 15. According to Mukharji, J. if the concerned officer arbitratily refuses to give consent or does not consider the application for consent that can be investigated on a separate application. After hearing the application, if the Supreme Court finds that non-consideration or refusal was arbitrary, it may direct the officer concerned to give his consent in writing. If the officer, in compliance of that direction, gives his consent, then and then only, the private person can move an application to bring to the notice of the Supreme Court the act of criminal contempt. Therefore, in a case of criminal contempt, a citizen has no locus standi or direct access to the Court without complying with the formalities laid down in Section 15, although he is seriously concerned to see that the prestige and dignity of the judiciary is protected and upheld. Moreover, in following the above procedure, considerable time is bound to elapse. Considering the proverbial laws of delay, of which Courts can take judicial notice, it will not be unreasonable to arrive at a conclusion that in this process one year time is likely to expire before the Supreme Court will get the chance of taking congnizance of the act of contempt. The contemnor, however gross the act of contempt might be, will remain unpunished as the Supreme Court's power to punish for contempt of itself will be barred under Section 20. According to the submissions of Mr. Ganguly, jurisdiction will remain but cannot be exercised. Therefore, the Supreme Court will remain as helpless spectator unable to protect its own dignity and prestige inspite of all its powers enshrined in Article 129 of the Constitution. Take for instance another incident of criminal contempt of a very serious nature of which the officer concerned has full knowledge. But due to pre-occupation, inadvertence, non-application of mind for any other reason, the officer concerned does not take any step to bring the matter to the notice of the Supreme Court. The Supreme Court will be unable to take cognizance of this act or to take any step to vindicate its own prestige for protecting its dignity. This would be due to the procedure laid down in Section 15 of 1971 Act. Moreover, if the view of Ranganathan J. is upheld ultimately, the officers concerned will be free to allow such contempt to go unnoticed and unpunished by not bringing this fact to the notice of the Supreme Court as he is not answerable or accountable to any one for non-exercise of his discretion. Therefore, the Supreme Court has been left at the mercy of these officers for exercising its inherent special jurisdiction for punishing for criminal contempt of itself. The only exception is the right to take cognizance suo motu when contempt is made in its presence.
68. It is contended that the powers of the Supreme Court under Article 129 have been made subject to Article 142(2) and by entry 77 of List I of the 7th Schedule the Parliament has been empowered to make law on contempt. There is no doubt that the Supreme Court has to exercise all its jurisdiction subject to the law made by the Parliament. But in the garb of making law on contempt, can the Parliament denude the Supreme Court of all its power as a Court of record to punish summarily for the contempt of itself? Can its hands be tied to this extent? It is impossible to believe that the framers of the Constitution intended that the Supreme Court's special jurisdiction to punish for contempt will remain alive for one year only and that too will be completely dependent on the sweet will of the officers concerned to assist the Supreme Court to punish the contemnor otherwise the Supreme Court will remain a mute spectator. In the present case, I have not been called upon to decide the position of the Supreme Court in relation to 1971 Act. I have humbly tried to highlight the consequences of the Act as interpreted by the Supreme Court. If any occasion arises in future, the Supreme Court may consider these points for setting the law as to whether the provisions of Section 15 and Section 20 of 1971 Act are in derogation of the provisions of Article 129 of the Constitution and offend against that Article.
An. 215 of the Constitution and 1971 Act
69. I have already pointed out that the framers of the Constitution did not enact any provision in the Constitution whereby the High Courts under Article 215 were directed to exercise all its powers subject to the laws made by the legislature as had been done in the case of the Supreme Court. Article 215, in its terms, is absolute. It has been held in AIR 1954 SC 186 that the High Courts powers cannot be taken away by any Act. The preamble of 1971 Act provides--
'An Act to define and limit the powers of certain Courts in punishing contempts of Courts and to regulate their procedure.'
70. : [1962]1SCR44 (Burrakur Coal Co. Ltd. v. Union of India) as well as in : 1981CriLJ283 (Section K. Sarkar v. Vinay Chandra Misra) are authorities on the point that preamble of the Act can be looked into for understanding and interpreting the Act concerned. The language used in the preamble of 1971 Act is simple. It says in clear terms that its object is to define and limit the powers of certain Courts and to regulate its procedure. Entry 14 of List III of the 7th Schedule provides : --
'Contempt of Court, but not including contempt of the Supreme Court.'
71. The word 'Court' in entry 14 cannot include 'High Courts' by implication in view of the fact that the Constitution does not contain any provision directing the High Courts to exercise all their powers subject to the law of the legislature. The legislature, therefore, by virtue of entry 14 of 7th Schedule, can make laws conferring additional powers on the High Courts concerning contempt of Court but it has no power either to define or limit or regulate the existing powers of the High Court for punishing for contempt of itself in a summary manner.
Article 215 does not permit the legislature to do so. In my opinion, if the framers of the Constitution intended that High Court's powers to punish for contempt of itself can be defined, limited or regulated by law, an express provision would have been made to that effect in the Constitution itself. Therefore, neither the Parliament nor the State legislature has any power to define, limit or regulate the procedure regarding the High Court's special jurisdiction to punish summarily for contempt of itself. The absence of any provision in the Constitution regarding High Courts similar to that of Article 142(2) relating to the Supreme Court may be due to an unfortunate omission or inadvertence or oversight on the part of the framers of the Constitution or may be a deliberate act on their part. It is not possible to probe their mind. But one fact is staring at us that our Constitution has been amended 59 times up-till now but Article 215 has been left untouched. In my opinion, the Constitution, as it stands today, the High Court, as Court of record, fully retains all its special inherent jurisdiction to punish for contempt of itself and there is no restriction on that power. Sections 15 and 20 offend against