Sasi K.G.
01. Introduction
Section 2 (a), (b) and (c) of the Contempt of
Courts Act, 1971 defines it as,
“2.
Definitions. In this Act,
unless the context otherwise requires,
(a) contempt of court means civil contempt or criminal contempt;
(b) civil contempt means wilful disobedience to any judgment,
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 representation, 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.”
The defences available to a contemnor is
provided in various sections of the Contempt of Courts Act, 1971 and various
precedents adjudged by the Supreme Court of India and the High Courts under it.
02. Defences to a charge of Contempt
The main defences as provided by the Act are the
following.
1.
Innocent, publication or distribution of matter
Section 3 of
Contempt of Courts Act, 1971, reads-:
S 3. Innocent Publication and distribution of
matter not contempt:-
(1) A
person shall not be guilty of contempt of court on the ground that he has
published (whether by words, spoken or written, or by signs, or by visible
representations, or otherwise) any matter which interferes or tends to
interfere with, or obstructs, ot tends to obstruct, the course of justice in
connection with any civil or criminal proceeding pending at that time of
publication, if at that time he had no reasonable grounds for believing that
the proceeding was pending.
(2) Notwithstanding
anything to the contrary contained in this Act or any other law for the time
being in force, the publication of any such matter as is mentioned in
sub-section (1) in connection with any civil or criminal proceeding which is
not pending at the time of publication shall not be deemed to constitute
contempt of court.
(3) A
person shall not be guilty of contempt of court on the ground that he has
distributed a publication containing any such matter as is mentioned in
sub-section (1), if at the time of distribution he had no reasonable grounds
for believing that it contained or was likely to contain any such matter as
aforesaid:
PROVIDED that this sub-section shall
not apply in respect of the distribution of—
(i) any publication which is a book or paper printed
or published otherwise than in conformity with the rules contained in section 3
of the Press and Registration of Books Act, 1867, (25 of 1867);
(ii) any publication which is a newspaper
published otherwise than in conformity with the rules contained in section 5 of
the said Act.
Explanation: For the purposes of this section, a judicial proceeding is
said to be pending—
i. in the case of a civil proceeding,
when it is instituted by the filing of a plaint or otherwise,
ii. in the case of a criminal proceeding
under the Code of Criminal Procedure, 1898 (5 of 1898) (see Code of Criminal
Procedure, 1973), or any other law—
(a) where
it relates to the commission of an offence, when the charge sheet or challan is
filed, or when the court issues summons or warrant, as the case may be, against
the accused, and
(b) in
any other case, when the court takes cognizance of the matter to which the
proceeding relates, and n the case of a civil or criminal proceeding, shall be
deemed to continue to be pending until it is heard and finally decided, that is
to say, in a case where an appeal or revision is competent, until the appeal or
revision is heard and finally decided or, where no appeal or revision has
expired:
(c) which
has been heard and finally decided shall not be deemed to be pending merely by
reason of the fact that proceedings for the execution of the decree, order or
sentence passed therein are pending.
Supreme Court has held in Rachpudi S. Rao
v. Advocate General AIR 1981 SC 755 that Sec. 3 is in nature of an
exception to the categories of “criminal contempt” which fall under sub-clause
(ii) and to certain categories of “criminal contempt” which fall under
sub-clause (iii) of s. 2(c) but not to that category of contempt which falls under
sub-clause (i) of s. 2 (c).
It was held in Pending v. Standard
Trimbak Yardi 1975 CrLJ 531 that it depends
upon the subjective state of mind of not knowing of pendency and the objecting
demonstration by the person concerned that he had no reasonable grounds for
believing that any such proceeding was pending.
The position
in this regard prior to the 1971 Act was considered by Orissa High Court in State
v
Biswanath
Mohapatra AIR 1955 Ori. 169. In this case
the Court observed that lack of knowledge regarding pendency of a case cannot
exonerate a person from the offence of contempt of court
This position
has been reversed by the Contempt of Courts Act, 1971 and additional immunity
was conferred on media regarding publications.
The
importance of section 3 and the extent of protection given to the press would
be clear only after taking into consideration the relevance of mens rea under
the Contempt of Courts Act, 1971. The general principle applicable in contempt
law is that to attract the offence of contempt
of court mens
rea is not required as in D.C. Saxena v Hon’ble Chief Justice of India,
1996 (5) SCC 216, 258. However, Section 3 incorporates mens rea in a
limited extent in the form of knowledge, and provides protection to publisher
if he has no reasonable ground for believing that a proceeding was pending. The
immunity under section 3 would be available only if the impugned act attempted
to interfere with administration of justice is by publication. If the
interference is by any other method other than by publication, section 3 and
the element of mens rea have no application in contempt proceeding. This
point was accepted by the Bombay High Court in Prabhakar Laxman Mokasi v
Sadanam Trimbak Yardi, 1975 Cri L J 531, 534 where it was observed that
Section 3 can be effective only when the impugned act attempted to interfere
with administration of justice is in civil or criminal proceedings. With regard
to any other interference, exemption under Section 3 will turn illusory.
Supreme Court also accepted this view in Rachapudi Subbarao v Advocate
General A.P, AIR 1981 SC 755, where it was observed that Section 3 is in
the nature of an exception to those categories of “criminal Contempt” which
fall under sub - clause (ii) and to certain categories of “criminal contempt”
which come under sub clause (iii) of section 2 (c), but not to that category of
contempt which falls under sub clause (i) of section 2 (c).
The
protection given to the distributor is based on the thinking that, without
protecting innocent distribution, the protection given to publication or
publisher is not workable. As per clause (3), a person shall not be guilty of
contempt of court on the ground that he has distributed a publication
containing any such matter which interferes or tends to interfere with, or
obstructs or tends to obstruct, the course of justice in connection with civil
or criminal proceeding pending at the time of distribution if he had no
reasonable ground for believing that it contain or likely to contain any such
matter. However as per the proviso to clause (3), to get this protection, the
publication must be in conformity with the rules contained in Section 3 and 5
of the Press and Registration of Books Act, 1967. As in the case of Clause (1),
mens rea in the form of knowledge is necessary under Clause (3) also to make
a person liable for distribution of a publication which contain matters which
amount to contempt of court.
2.
Fair and accurate report of judicial proceeding (Section 4)
Section 4 of
Contempt of Courts Act, 1971, reads-:
S 4. Fair
and accurate report of judicial proceedings not contempt
Subject to the provisions contained in
section 7, a person shall not be guilty of contempt of court for publishing a
fair and accurate report of a judicial proceeding or any stage thereof.
In Subash Chandra v. S.M. Agarwal 1984 CrLJ
481 Supreme Court has held that Reading S. 4 with the provision of S. 7 of
the Contempt of Courts Act, 1971, it is clear that what is meant by the words
“judicial proceedings” is day to day proceeding of the
court. Assuming though not granting that it is capable of a wider
construction, it only permits a publication of “fair and accurate” report of a
judicial proceeding.
In Arun Tandon v. Insurance Co. Ltd. 1983
Cr.LJ 459 Supreme Court has held that before a party to a litigation
may be heard in support of its case, it must punge itself of the contempt that
tends to impede the course of justice by the contempt that has to be punged
should be an admitted or proved contempt and not merely an alleged contempt.
It seems
that the rationale behind the Section is based on the English principle that as
the trial itself must be open to the public, reporting of the trial must also
be treated as part of open justice.
Trial held subject
to the public scrutiny and gaze naturally acts as a check against judicial
caprice vagaries, and serves as a powerful instrument for creating confidence
of the public in the fairness, objectivity and impartiality of the
administration of justice as stated in Naresh v State of Maharashtra AIR
1967 SC 1. In D.C. Saxena v Chief Justice of India (1996) 5 SCC 216, when
the publication which formed the basis of contempt proceeding was not by
reporting through media but by publication through affidavits which formed part
of a writ proceeding, the application of protection under section 4 of Contempt
of Courts Act, 1971, was held by the Supreme Court that in that case the
protection of Section 4 was not available.
The general
principle in this regard is that, under the pretext of shelter given by
the provision of law, incorrect and dishonest reporting cannot be permitted as
reported in Progressive Port and Dock Workers v K.M. Mathew, 1984 Cri L
J 1021, 1022. In Subbash Chand v S.M. Agarwall 1984 Cri L J 481, it was
observed that a report which gives absolutely one sided picture cannot be
treated as fair and accurate report. In Susil Sharma v State (Delhi Admn.),
1996 Cri L J 3944, 3950 it was held that the report need not be a verbatim
reproduction of what actually happened in a court, provided it is accurate.
In Dr.D.C.
Saxena v Hon’ble Chief Justice of India, (1996) 5 S.C.C 216, 267 it is
stipulated that to attract the plea of fair and accurate report of judicial
proceeding, the words used must be reasonable and no words may be added,
omitted or substituted if the effect is prejudicial to one party in the
litigation. In re Harijai Singh, (1996) 6 SCC 466, 474 holds that a
publication can claim the status of fair and accurate report of judicial
proceeding only if reasonable care has been taken by the publisher.
3.
Fair criticism of judicial act (Section 5)
Section 5 of
Contempt of Courts Act, 1971, reads-:
S 5. Fair
criticism of judicial act not contempt
A person shall not be guilty of contempt of
court for publishing any fair comment on the merits of any case which has been
heard and finally decided.
In In re Roshan Lal Ahuja 1993 Supp 4 SCC
446 Supreme Court held that Judges and courts are not unduly sensitive or
touchy to fair and reasonable criticism of their judgments fair comments even
if outspoken but made without maturity or attempting to impair the
administration of justice and made in good faith in proper language do not
attract any punishment for contempt of court.
In Vincent Panikulangara v. Gopal
Kurup 1982 CrLJ 2094 Supreme Court held that in a democracy fair criticism
of the working of all the organs of State should be welcome and would in fact
promote the interests of democratic functioning. Sec. 5 of the Act evidently
enacted with a view to secure the right of fair criticism provides that a
person shall not be guilty of contempt of court for publishing any fair comment
on the merits of the case which has been heard and finally decided. This does
not mean that the right to commit for any contempt by scandalizing the court
has become obsolete. The question would still be whether the publication
alleged to be offending is by way of fair comment on the merits of the case.
In Arun Tendan v. Insurance Co. Ltd. 1983 Cr
LJ 459 Supreme Court held that in the case of issuance of mere notice of
contempt, the right of hearing cannot be denied. Refusing a right of hearing to
a party against whom merely a notice for contempt has been issued is fraught
with grave injustice.
4.
Complaint against the presiding officers-of Subordinate Courts to the High
Court done in good faith (Section 6)
Section 6 of
Contempt of Courts Act, 1971, reads-:
S6. Complaint against presiding officers of
subordinate courts when not contempt
A person shall not be guilty of contempt of court
in respect of any statement made by him in good faith concerning the presiding
officer of any subordinate court to—
(a) any
other subordinate court, or
(b) the
High Court,
to which it is subordinate.
Explanation: In this section, “subordinate court”
means any court subordinate to a High Court.
In State of M.P. v. Chandrakant Saraf 1985
CrLJ 1716 Supreme Court held that unwarranted and defamatory attack upon
the character and ability of the Judge made by the counsel in the application
of transfer of proceedings from the said court does not constitute a mere
complaint under s. 6 of the Contempt of Court Act, but clearly constitutes
criminal contempt by scandalizing the court within the meaning of s. 2(c) of
the Contempt of Courts Act, 1971.
5.
Publication of information relating to proceedings in chambers or Camera
(Section 7)
Section 7 of
Contempt of Courts Act 1971 reads-:
S 7. Publication
of information relating to proceedings in chambers or in camera not a contempt
except in certain cases:-
(1) Notwithstanding
anything contained in this Act, a person shall not be guilty of contempt of
court for publishing a fair and accurate report of a judicial proceeding before
any court sitting in chambers or in camera except in the following cases, that
is to say--
(a) where
the publication is contrary to the provisions of any enactment for the time
being in force;
(b) where
the court, on ground of public policy or in exercise of any power vested in it,
expressly prohibits the publication of all information relating to the
proceeding or of information of the description which is published;
(c) where
the court sits in chambers on in camera for reason connected with public order
or the security of the State, the publication of information relating to those
proceedings;
(d) where
the information relates to a secret process, discovery or invention which is an
issue in proceedings.
(2) Without
prejudice to the provisions contained in sub-section (1), a person shall not be
guilty of contempt of court for publishing the text or a fair and accurate
summary of the whole or any part, of an order made by a court sitting in
chambers or in camera, unless the court has expressly prohibited the
publication thereof on grounds of public policy, or for reasons connected with
public order or the security of the State, or on the ground that it contains
information relating to a secret process, discovery or invention, or in
exercise of any power vested in it.
In Progressive Port and Dock Workers Union v.
K.M. Mathew 1984 CrLJ 1061 Supreme Court held that The press reporter and the
publisher of newspapers do not have any indefeasible right to put his own gloss
on the statements in court by selecting stray passages out of context which
might have a tendency to convey to the reader to the prejudice of a party to
the proceedings a cause different from what would appear when the statement is
read in its own context.
In Hargowandas
B Kotak v Chimanlal Vadilal Shah, A.I.R. 1942 Bom. 86, the Bombay
High Court observed that no chamber proceeding shall be published without an
order of the Court and for publishing a chamber proceeding without the specific
order of the court, the contemnor was punished to pay a fine of rupees one
thousand.
The same
view was adopted by the same High Court in a much earlier judgment, Purshottam
Harjiwan v Navnitlal AIR 1926 Bom. 208. The combined reading of section 4
and section7 will lead to an inference that fair criticism of judicial act held
in open court is not contempt and fair and accurate report of judicial
proceedings before any court sitting in chambers or in camera will
amount to contempt of court only in the circumstances mentioned in Section 7.
Thus, preventing publication of proceeding even if the court is sitting in
chambers or in camera is an exception under the present law.
In Naresh
v State of Maharashtra AIR 1967 SC 1, the main issue came for the
consideration of the Supreme Court was whether press could be prevented from
publishing report of judicial proceeding held in open court. The majority adopted
the view that that even if the trial is public, publication of evidence of a
particular witness could be prevented because the fear of excessive publicity
may prevent the witness from speaking truth82. In the minority judgment Sarkar
J adopted a different view and opined that such a prohibition is maintainable
only if the proceeding was conducted in camera. This judgment made press
freedom secondary. However the minority view placed press freedom on the same
footing with individual freedom with respect to proceedings conducted in open
courts.
6.
An order passed by a Court without jurisdiction is void. Violation of such
order is not contempt Dr. Vivekanand Atmaram Chitale v. Vidya Vardhini Sabha 1985
Cr.LJ 359
The
decisions of the Allahabad High Court in Kuldip Narayan v. Mahendrapal Jain 1984
Cr.LJ 1243 and the decision of the Bombay High Court in Dr. Vivekanand Atmaram
Chitale v. Vidya Vardhini Sabha 1985 Cr.L.J. 359 supported the contention that
disobedience of an order passed by a Court without jurisdiction, will not be
contempt. Reliance is next placed on the decision in Dwarakadas Mulji v.
Shantilal Laxmidas 1980 MAH LJ 404 referred to in Dr. Vivekanand Atmaram
Chitale case, wherein it was held that breach of an undertaking given by a
party in a proceedings which is ab initio void for lack of jurisdiction, did
not amount to contempt.
7.
When High Court directed release of pensionary benefits to petitioner
recovering Government dues, was not contempt. State of Haryana v. LU. Dutt,
(1995) 29 ATC 540 (SC).
In
State of Haryana v. LU. Dutt, (1995) 29 ATC 540 (SC) Supreme Court held that
release of pensionary benefits after deducting Government dues does not amount
to contempt.
8.
When non-compliance of directions of court was not wilful but on account of
factor beyond control of contemners, contempt application dismissed. (Toshniwaf
Bandiju v. State of Punjab, (1996) 1 PLJR 475).
9.
Truth as a defence
In Perspective Publications Ltd. v. The State of Maharashtra 1971 Cri LJ 268 Supreme Court held
that it may be that truthfulness or factual correctness is a good defence in
an action for libel, but in the law of contempt there are hardly any English or
Indian cases in which such defence has been recognised.
According to V.M. Kanade vs Madhav Gadkari
And Others 1990 CriLJ 190, 1989 MhLJ 1078 truth can be pleaded as a defence
only in those cases where the party wants to allege that he has not committed a
particular act. For example, if a party is proceeded against on the ground that
he has disobeyed an order of the Court, he can plead that he has not disobeyed
the order of the Court. In a case where a party is being proceeded against on
the ground that he has written an article or published an article, he may plead
that he has not written or published the article.
In Dr.Subramanian
Swamy v. Rama Krishna Hegde 2000 (10) SCC 331 it was held that truth can be pleaded
as a defence in contempt proceedings.
In Re Arundhati Roy
Contempt Petition (Crl.) 10 of 2001
Supreme Court observed, " Contempt proceedings have been
initiated against the
respondent on the basis of the offending and contemptuous part of the reply
affidavit making wild allegations against the court and thereby scandalised its
authority. There is no point or fact in those proceedings which requires to be
defended by pleading the truth.”
By
an amendment by Act 6 of 2006, a
substitution for section 13 w.e.f. 17-3-2006 was made in the Contempt of Courts
Act, 1971, as follows
S 13.
Contempt’s not punishable in certain cases-
13. Contempt
not punishable in certain cases.—Notwithstanding anything contained in any law for
the time being in force,—
a) No court
shall impose a sentence under this Act for a contempt of court unless it is
satisfied that the contempt is of such a nature that it substantially
interferes, or tends substantially to interfere with the due course of justice;
b) The court
may permit, in any proceeding for contempt of court, justification by truth as
a valid defense if it is satisfied that it is in public interest and the
request for invoking the said defense is bona fide.
Thus
in Contempt of Court Truth can be raised, if and only if Court is satisfied
that truth is said in public
interest and the request for invoking the said defense
is bona fide. Thus there is no absolute defence of Truth in contempt cases.
10.
Other Defences (Section 8)
Section 8 of
Contempt of Courts Act, 1971, reads-:
S 8. Other defences not affected
Nothing contained in this Act shall be
construed as implying that any other defence which would have been a valid
defence in any proceedings for contempt of court has ceased to be available
merely by reason of the provisions of this Act.
In Atmaram Kanosir v. L.K.R. Prasad 1990 Cr
LJ 169 Supreme Court held that If there is specific time limit in the
direction, such noncompliance cannot be regarded as willful or deliberate
disregard of such direction.
In V.M. Kanade v. Madhav Godkari 1990 Cr. LJ
190 Supreme Court held that the power to inflict punishment for contempt
of court cannot be invalidated on the ground that law which does not allow plea
of truth as a defence is in contravention of Act. 19(1)(a) of the Constitution.
In High Court v. T.K. Subamma 1990 Cr
LJ 1159 Supreme Court held that While Ss. 3 to 7 mentions
special acts that are not contempt, s. 8 by implication indicated that the Act
is not exhausted as to what is not contempt.
In Pritam Pal v. High Court M.P. AIR 1992 SC
904 Supreme Court held that an intention to interfere with the administration
of justice is not an essential ingredient to the offence of contempt of
court. It is enough if the action complained of is inherently likely
so to interfere.
In V.M. Kande v. Madhav Gadkari 1990 CrLJ 190
Supreme Court held that Truth of the allegation when the contemnor says that he
can prove, cannot be put up as a defence in charge for contempt of court.
03. What is not a defence
The following are
upheld by Supreme Court as not valid defences.
1.
Vinod Mani Diwakar v. Union of India, (1995) 29 ATC 12 (CAT Pat)
Non-compliance
of order of Tribunal after filing of SLP amounts to contempt unless order has
been stayed.
2. Mantosh Kumar Singh v. State
of Bihar, (1996) 2 PLR 317
Mere
filing of appeal does not automatically operate as stay of order in appeal, and
non-compliance of order as such will amount to contempt.
3. Firm Ganpat Ram Raj Kumar v.
Kalu Ram, AIR 1989 SC 2285
Transfer
of an officer who was posted at relevant time can be no ground to defeat
implementation of judgment/order.
4. S.P.Agarwal v. R.R.Upadhya,
1978 Cr. L J 789 (All)
If
a counsel advised a litigant not to obey the order of a court of law as such an
ill-advice of counsel cannot be a valid defence in contempt proceedings. It is
the duty of each and every person who is a party in a proceeding before a court
to comply with the order of the court and if he has any grievance against the
order he is free to file appeal or to make application before that court for
modification or discharge of the same, but unless that order is stayed, varied
or modified the party concerned has no justification to flout the order of the
court. Obtaining advice from the advocate and not obeying order is no defence.
04. Mens Rea and Contempt
In Emperor v. Debi Prasad Sharma 1942 Oudh WN 6 (I), Court approved of the
statement in Tek Chand's Law of Contempt that "motive of the contemnor
cannot be considered in determining his guilt". In McComb v. Jacksonville
Paper Co (1949) 336 US 187 (J), Douglas J. said at p. 191:
"The absence of wilfulness does not
relieve from civil contempt. Since the purpose is remedial, it matters not with
what intent the defendant, did the prohibited act. An act does not cease to be
a violation of a law and of a decree merely because it may have been done
innocently."
In
Lal Behari v. State AIR 1953 All 153, it
was held by Allahabad High Court that no mens rea is required for an offence of
contempt of court; what was meant is that no criminal intention or motive
behind the deliberate doing of an act is required. If accidentally a person
disobeys an injunction, it can be said that there is no wilful disobedience by
him and he cannot be committed for contempt. The expression "wilful
disobedience" was explained by Warrington J. in -- 'Stancomb v. Trowbridge
Urban Council', 1910-2 Ch 190 (H).
In Ram Charan And Ors. vs Debi Dayal Dubey
AIR 1955 All 483, 1955 CriLJ 1223, Court held that absence of mens rea does not
include ignorance of law. He
would be guilty of
contempt even though he did not
have an actual intention of disobeying the order or committing contempt of
court.
"It has been held repeatedly that a person may be
guilty of
contempt even though there was no intention to commit contempt. The question in such cases
is not what was the intention
of the offender but what was the effect of the publication";
In Ratan Narain Mulla vs The Chief Secretary,
Govt. Of U.P 1975 CriLJ 1283 it was held that the Contempt of Courts Act requires a 'wilful' disobedience of a
decree which contemplates some sort of "mens rea." This is another
feature which distinguishes the present case from the cases discussed above.
The Government not being a natural person can have no 'mens rea'; only its
officers can.
In Abdul Karim v. M. K. Prakash And Ors 1976 AIR
859, 1976 SCR (3) 276 it was held that even if it
could be
urged that
mens rea as such is
not an indispensable
ingredient
of the offense of contempt, the courts
are loath to punish a condemner
if the act
or omission complained of was not willful.
In S. Abdul
Karim v. M.K. Prakash, 1976 CrLJ 641 : 1976 AIR (SC) 859 : 1976 CAR 124 : 1976
CrLR (SC) 102 : 1976 Ker LT 184 : 1976 SCC (Cr) 2170 it was held that the
standard of proof required to establish a charge of ‘criminal contempt’ is the
same as in any other criminal proceeding. It is all the more necessary to
insist upon strict proof of such charge when the act or omission complained of
is committed by the respondent under colour of his office as a judicial
officer.
In Ladies Corner, Bangalore vs State Of
Karnataka And Anr ILR 1987 KAR 1710, 1987 (1) KarLJ 402 it is observed, “In S. Abdul
Karim v. M. K. Prakash, it is held
that the standard of proof required to establish a charge of criminal contempt
is the same as in any other criminal proceedings. It is further held that it is
all the more necessary to insist upon the strict proof of such charge and the
act or omission complained of is committed by a person under colour of his
office as a judicial officer. This decision followed the decision in Debabrata
Bandopadhyay v. State of West Bengal, . It is
also held that the mens rea is not as essential ingredient of the offence of
contempt of court. Similar view is also expressed in R. v. Odhams
Press Ltd. (1956) 3 All ER 494.”
In S.R. Ramaraj v.
Special Court, Bombay Appeal (crl.) 1491
of 1995 it was held that merely because an action or defence can be an
abuse of process of the court those responsible for its formulation cannot be
regarded as committing contempt, but an attempt to deceive the court disguising
the nature of a claim is contempt. If the facts leading to a claim or defence
are set out, but an inference is drawn thereby stating that the stand of the
plaintiff or defendant is one way or the other it will not amount to contempt
unless it be that the facts as pleaded themselves are false. Even if it
could be urged that mens rea, as such, is not an indispensable ingredient of
the offence of contempt, the Courts are loath to punish a contemner, if the
actor omission complained of, was not wilful.
In In Re
Arundhati Roy Contempt Petition (Crl.) 10 of 2001 it was held that it
is no defence to say that as no actual damage has been done to the judiciary,
the proceedings be dropped. The well-known proposition of law is that it
punishes the archer as soon as the arrow is shot no matter if it misses to hit
the target.
In Chotu Ram
v. Urvashi Gulati and Ors.2001 AIR SCW 3208 the intention to commit contempt or
mens rea is immaterial in a case of contempt of court. But it may be relevant
in the context of the sentence to be imposed.
In Patna
High Court held that the presentation of a distorted official
document and thereby obtaining advantage from the Court is a contemptuous act
in Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC 421.
05.
Conclusion
There is no absolute
defence available to the contemnors in contempt proceedings and whatever available is at the mercy and
judgment of the Court. Very often as the Court acts as the prosecutor judge to
uphold its own dignity, the ends of justice for which the judiciary eternally
stands for gets forgotten. Hence the variation of available defences for
classes of people in a hierarchy that is sitting judges, retired judges, those
from judicial background etc. on the topmost layer, often gets exonerated if
they show reverence to the Court. The most severe punishments as a class are
directed towards press, activists, advocates, politicians, executives etc.
In the case
of mens rea it can safely be said that the element of mens rea is not
applicable in Contempt proceedings, however it may be considered in awarding
punishments.
As
concluding words, I may quote that the dignity of the judiciary rests
ultimately on the actions of the judges themselves, and not on the opinions of
its critics, for the time is the greatest critic.
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