Judges Of Constitutional Courts Not Liable Under Section 16 Contempt Of Courts Act: Kerala High Court

The Division Bench of Chief Justice Nitin Jamdar and Justice S. Manu also refused to declare that Section 16 was applicable to judges of the superior courts, and that Section 17(5) has to be read along with the constitutional guarantee of right against self-incrimination under Article 20(3) of the Constitution of India.

Section 2(c)(i) states that the publication by words, spoken or written or by signs or by visible representation or otherwise of any matter or the doing of any other act which scandalises or lowers the authority of any court or tends to do so amounts to criminal contempt.

Section 14 lays down the procedure where contempt is in the face of the Supreme Court or a High Court.

According to Section 16, a judge, magistrate or other person acting judicially shall also be liable for contempt of own court or of any other court. Section 17 deals with procedure after cognizance and sub-section (5) provides that a person charged with contempt may file an affidavit in support of his defence.

Advocate Mathews J. Nedumpara, appearing in person, contended that the provisions violate fundamental right to freedom of speech and expression provided under Article 19(1)(a) of the Constitution.

The Court looked into various precedents laid down by the Apex Court as well as Article 19 and the different provisions of the Act. It opined that the constitutionality of the Act was challenged on the same lines earlier and that the Supreme Court had held it to intra vires since the right under Article 19(1)(a) was subject to clause (2).

It further remarked that the Act itself, through Sections 3 to 8, provides that certain acts will not be treated as contempt.

“In view of this position, and in light of the dictum of the Hon'ble Supreme Court as noted above and followed in various other decisions, the challenge of the Petitioner that the impugned provisions of the Act of 1971 are unconstitutional on the ground that they offend the freedom of expression enshrined under Article 19(1)(a) of the Constitution of India, cannot be accepted,” the Court added.

Next, the petitioner argued that Section 17(5) is in violation of Article 20(3) and sought for a declaration that the provision was unconstitutional. However, the Court disagreed and held that the provision, in fact, provides an opportunity to the alleged contemnor to defend himself.

The Court further remarked that the provision has to be read in the context of Sections 3 to 8:

“This opportunity has to be read in the context of Sections 3 to 8 of the Act of 1971, which provide for various defences to the allegation of contempt of court...Therefore, Section 17(5) is not a mandate resulting in self-incrimination but provides an opportunity to the person alleged of contempt.”

Relying on decisions of the Supreme Court and the Full Bench of the Allahabad High Court, the Court said that contempt proceedings are quasi-criminal and a contemner is not to be considered as an accused within the meaning of Article 20(3).

The next argument was based on the principle Nemo debet esse judex in propria causa (no person can be a judge of his own cause), which according to the petitioner, was being done in contempt proceedings.

This was also rejected by the Court placing reliance on Apex Court decisions and holding that contempt jurisdiction is a special jurisdiction intend to safeguard rule of law, the dignity of courts and the administration of justice. It is not a personal privilege granted to judges.

Addressing the question of whether the term 'judge' under Section 16 includes judges of the superior courts, the Court observed that the provision has to be read in the background of the constitutional scheme that provides immunity to the judges of the superior courts and recognises their distinct status.

The Court agreed with a Special Bench of the Patna High Court in a 1985 decision, which held that if judges of the constitutional courts were to be included under the provision, it would have been specifically mentioned, especially considering the high level of immunity and protection granted to such judges under the Constitution.

This view, the Court remarked, was affirmed by a three-judge bench of the Supreme Court back in 1998 itself when it held that provision does not apply to judges of the Court of Record but only to subordinate judiciary.

Thus, it dismissed the plea.

Case No: WP(C) No. 14564 of 2016

Case Title: Mathews J. Nedumpara v. Union of India and Ors.

Citation: 2026 LiveLaw (Ker) 6

Counsel for the respondents: Dr.K.P. Pradeep, S. Biju - Senior Panel Counsel, Rajit – Standing Counsel, Vinitha B.- Sr. Government pleader

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