Consent of AG on Contempt Proceedings

In News

• The Attorney General gave consent to a plea to initiate contempt proceedings against Yati Narsingh Anand, under arrest in the Haridwar hate speech case, over his derogatory remarks against the Constitution and the Supreme Court.

About

• Article 129 of the Constitution: gives the Supreme Court the power to initiate contempt cases on its own, independent of the motion brought before it by the AG or with the consent of the AG.
  • 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.
• The prior consent of the top law officer is mandated in law: to file a criminal contempt petition in the Supreme Court.
  • He grants consent to initiate proceedings for criminal contempt of the Supreme Court of India in terms of Section 15 of the Contempt of Courts Act, 1971 read with Rule 3(a) of the Rules to Regulate Proceedings for Contempt of the Supreme Court of India, 1975.
• Current Issue: It was a direct attempt to lower the authority of the Supreme Court in the minds of the general public.

Consent of AG on Contempt Proceedings

• Motion: In the case of the Supreme Court, the Attorney General or the Solicitor General, and in the case of High Courts, the Advocate General, may bring in a motion before the court for initiating a case of criminal contempt.
• Consent in writing: However, if the motion is brought by any other person, the consent in writing of the Attorney General or the Advocate General is required.
• Specify the contempt: The motion or reference made for initiating the case will have to specify the contempt of which the person charged is alleged to be guilty.

 Why does the Attorney General have to grant consent?

• The procedure in cases of criminal contempt of court: which means the publication of material that scandalizes or lowers the dignity of the court or prejudices or interferes with the proceedings of the court, the consent of the Attorney General is required under the law.
• Saves the time: The objective behind requiring the consent of the Attorney General before taking cognizance of a complaint is to save the time of the court.
  • Judicial time is squandered if frivolous petitions are made and the court is the first forum for bringing them in.
• The AG’s consent is meant to be a safeguard against frivolous petitions: as it is deemed that the AG, as an officer of the court, will independently ascertain whether the complaint is indeed valid.

Is the AG’s consent mandatory for all contempt of court cases?

• Private Citizen: The AG’s consent is mandatory when a private citizen wants to initiate a case of contempt of court against a person.
  • Before such a plea can be filed, the Attorney General must sign off on the complaint, determining if it requires the attention of the court at all.
• When the court itself initiates a contempt of court case, the AG’s consent is not required.
  • This is because the court is exercising its inherent powers under the Constitution to punish for contempt and such Constitutional powers cannot be restricted because the AG declined to grant consent.

What happens if the AG denies consent?

• If the AG denies consent, the matter all but ends.
• The law has a limitation period of one year: for bringing in action against an individual.
• Suo motu cognizance: The complainant can, however, separately bring the issue to the notice of the court and urge the court to take suo motu (on its own motion) cognizance.
  • If the court does take suo motu cognizance, the consent of the senior-most law officer is not required.

What happens after the AG has granted consent?

• Once the consent of the Attorney General is given in writing: a notice under The Contempt of Courts Act is served personally on the person against whom the proceedings are sought to be initiated by the court.
  • If the court decides not to serve the notice personally, the law requires the court to record the reasons for it.
• Attachment of property: If the court is satisfied that the alleged contemnor is likely to abscond or evade judicial proceedings, it can order attachment of property of a value that it deems reasonable.
• Once the notice is served: the alleged contemnor may file an affidavit in support of his defence, explaining the nature and circumstances of her remarks.
• The case is required under the Act to be heard by a Bench of at least two judges.
• Evidence: The court then takes into account any evidence available to check the affidavit, and pass appropriate orders.

Attorney General of India

• S/he is the top legal officer in the country & part of the Union Executive.
• S/he is not considered as a government servant.
• Assisted by 2 Solicitor Generals & 4 Additional Solicitor Generals.
• Under the Constitution of India, Article 76 deals with the Attorney General of India & Article 165 for the Advocate General of States.
• Eligibility
  • Qualified to be appointed as Supreme Court judge.
  • Citizen of India.
  • Judge of High Court (HC) for 5 years/advocate HC for 10 years/eminent jurist President’s opinion.
• Tenure: Not fixed.
• Appointment: By President on Government advice.
• Functions
  • Advise Government on legal matters.
  • Perform legal duties assigned by the President.
  • Appear on behalf of Government in all cases in SC or HC.
  • Represent Government under Article 143 (Power of President to consult SC).
  • Discharge functions conferred by Constitution or law.
• Rights
  • Right to Speak & take part in proceedings of both Houses of Parliament/joint sitting/any committee of Parliament of which he/she may be named a member.
  • Enjoys privileges & immunities of a member of Parliament.
  • Not a government servant & not debarred from private legal practice.
• Limitations
  • No Right to Vote in House proceedings/committees.
  • Should not advise against or hold a brief against the Government.
  • Should not defend accused persons in criminal prosecutions without the permission of the Government of India.
  • Should not accept appointment as a director in any company or corporation without the permission of the Government of India.
• Removal
  • Holds office during President’s pleasure & can be removed by President at any time.
  • No grounds for removal or procedure mentioned in the Constitution. 

Source: TH