CHAPTER – 4

DEFENCES IN CONTEMPT PROCEEDINGS

As a general principle of law man is presumed to know the nature

and consequences of his act and is, therefore, held responsible for it.
However, there are certain exceptions to this general rule, wherein a person
may be excused of his offence.

The law of contempt is a quasi-criminal in nature and ensues penal

consequences. It is therefore, becomes as a matter of necessity that it must
provide certain defences, so that in certain condition the person accused of
contempt may absolve himself from the penal consequences.

When a person is accused of any offence, generally, the burden of

proof rests upon the person who substantially asserts the affirmative and
not upon the person who denies it. The rule has its origin in the Roman
maxim: ei qui affirmat non ei qui negat incumbit probatio, viz., he who
seeks the aid of a court should be the first to prove that he has a case, and
that in the nature of things it is more difficult to prove a negative than an
affirmative.1 But, the burden of proving the existence of circumstances
bringing within any of the exceptions is upon the person who wants to
bring his case within any of such exception, and the court shall presume
the absence of such circumstances.2

The defences available to a contemner are engrafted in section 3 to 8

in the Contempt of Courts Act, 1971. Section 3 to 7 specify the acts which
would not be contempt (statutory defences to certain charges of criminal

1
Cross, Rupert, Evidence, 3rd ed. (1967), P. 87.
2
Section 105, The Evidence Act, 1872.

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contempt) and section 8 provides those other defences that would have
been valid defences and not affected by any provision of this Act.

Thus, the defences available can be classified under following head

for better evaluation:

(a) Innocent publication and distribution of matter.3

(b) Fair and accurate report of judicial proceeding.4
(c) Fair criticism of judicial act.5
(d) Bona fide complaint against presiding officers of subordinate
court.6
(e) Publication of information relating to proceedings in chambers or
in camera in certain cases.7
(f) Other defences.8

4.1 Innocent Publication and Distribution of Matter

Section 3 in the Contempt of Courts Act, 1971 states that, 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 or 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.9

3
Section 3, The Contempt of Courts Act, 1971.
4
Section 4, The Contempt of Courts Act, 1971.
5
Section 5, The Contempt of Courts Act, 1971.
6
Section 6, The Contempt of Courts Act, 1971.
7
Section 7, The Contempt of Courts Act, 1971.
8
Section 8, The Contempt of Courts Act, 1971.
9
Section 3(1), The Contempt of Courts Act, 1971.

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 It further provides that 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.10

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.

The explanation attached to the section provides as under;

For the purposes of this section, a judicial proceeding—

(a) is said to be pending—

10
Section 3(2), The Contempt of Courts Act, 1971.

190
 (A) in the case of a civil proceeding, when it is instituted by the
filing of a plaint or otherwise,

(B) in the case of a criminal proceeding under the Code of

Criminal Procedure, 1898 (5 of 1898),11 or any other law—

(i) 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

(ii) in any other case, when the court takes cognizance of

the matter to which the proceeding relates, and in 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 is preferred, until the period of limitation
prescribed for such appeal or revision has expired;

(b) 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.12

Thus, section 3 provides that although there has been publication or

distribution of publication which interferes or tends to interfere with, or
obstructs the course of justice in connection with any civil or criminal
proceeding (whether pending or not at the time of publication), such
11
The Code of Criminal Procedure, 1973 (2 of 1974).
12
Explanation to section 3, The Contempt of Courts Act, 1971.

191
publication or distribution would not constitute contempt of court in the
circumstances and subject to the conditions specified in the section being
fulfilled.

Basically, 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). This is clear from a comparison of language of
section 3 (1) with that of section 2 (c). The word ‗interferes or tends to
interfere with the course of justice in connection with any proceeding‘ in
section 3 (1) substantially reiterates the language of sub-clause (ii) of
section 2 (c). Similarly, the words ‗interferes or tends to interfere with or
obstructs or tends to obstruct‘ in section 3 (1) are a reproduction of the
limb of sub-clause (iii) of section 2 (c). The phrase ‗the administration of
justice in any other manner‘ used in section 2 (c) (iii) has been substituted
in section 3 (1) by the narrower phrase ‗the course of justice in connection
with any civil of criminal proceeding at the time of publication‘. But there
are no words in section 3 which may be referable to that species of
‗criminal contempt‘ which would fall within sub-clause (i) of the definition
given in section 2 (c). Sub-section (2) of section 3 expressly confines its
operation to those categories of contempt which is referred to in sub-
section (1). Section 3(2), therefore, is not applicable to that category of
contempt which falls under sub-clause (i) of section 2 (c), or which is
otherwise of a kind different from those mentioned in section 3 (1).13

13
Rachapudi Subba Rao vs. Advocate General, Andhra Pradesh, AIR 1981 SC 755.

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 Contempt in relation to pending proceeding constitutes an important
category of contempt. This clause provides for certain defences which may
be pleaded for such contempt and also defines clearly the stage up to which
a judicial proceedings may be considered to be pending. Sub-section (1)
provides that want of knowledge of a criminal proceeding whether pending
or imminent or of a civil proceeding which is pending would be a complete
defence to a person accused of contempt on the ground that he has
published any matter calculated to interfere with the course of justice in
connection with such proceedings. Sub-clause (2) abolishes the rule of
contempt in relation to imminent proceedings so far as civil cases are
concerned. Sub-clause (3) provides in effect that a person who has no
reasonable ground for believing that the publication distributed by him
contained any offending matter shall not be guilty of contempt of court.
The defence, however, is not allowed in case of distribution of any
publication, printed or published otherwise than in conformity with the
provisions of section 314 and section 515 of The Press and Registration of
Book Act, 1867.16

14
Section 3 of The Press And Registration Of Books Act, 1867 provides:
―3. Particulars to be printed on books and papers — Every book or paper printed
within India shall have printed legibly on it the name of the printer and the place of printing,
and if the book or paper be published [the name] of the publisher, and the place of
publication.‖
15
Section 5 of the said Act provides:
―5. Rules as to publication of newspapers.—No newspaper shall be published in India,
except in conformity with the rules hereinafter laid down:
(1) Without prejudice to the provisions of section 3, every copy of every such newspaper
shall contain the names of the owner and editor thereof printed clearly on such copy and also
the date of its publication.
(2) The printer and the publisher of every such newspaper shall appear in person or by agent
authorised in this behalf in accordance with rules made under section 20, before a District,
Presidency or Sub-divisional Magistrate within whose local jurisdiction such newspaper
shall be printed or published and shall make and subscribe, in duplicate, the following
declaration:

193
 Therefore, a publication and distribution to be considered innocent
under the section must fulfil following condition;

(i) The person accused of offence, at the time of publication, had no

reasonable grounds for believing that the proceeding was pending.
(ii) The proceedings are not pending at the time of publication.
(iii) The person accused of distribution of contumacious publication,
have not at the time of such distribution any reasonable grounds for
believing that the publication contain or was likely to contain
contumacious matter.

(i) The person accused of offence, at the time of publication, had no

reasonable grounds for believing that the proceeding was pending.

―I A.B., declare that I am the printer (or publisher, or printer and publisher) of the newspaper
entitled……and to be printed (or published, or shall be printed and published, as the case
may be at …….‖
. And the last blank in this form of declaration shall be filled up with a true and precise
account of the premises where the printing or publication is conducted.
(2A) Every declaration under rule (2) shall specify the title of the newspaper, the language in
which it is to be published and the periodicity of its publication and shall contain such other
particulars as may be prescribed.
(2B) Where the printer or publisher of a newspaper making a declaration under rule (2) is
not the owner thereof, the declaration shall specify the name of the owner and shall also be
accompanied by an authority in writing from the owner authorising such person to make and
subscribe such declaration.
(2C) A declaration in respect of a newspaper made under rule (2) and authenticated under
section 6 shall be necessary before the newspaper can be published.
(2D) Where the title of any newspaper or its language or the periodicity of its publication is
changed, the declaration shall cease to have effect and a new declaration shall be necessary
before the publication of the newspaper can be continued.
(2E) As often as the ownership of a newspaper is changed, a new declaration shall be
necessary.
(3) As often as the place of printing or publication is changed, a new declaration shall be
necessary:
Provided that where the change is for a period not exceeding thirty days and the place of
printing or publication after the change is within the local jurisdiction of the Magistrate
referred to in rule (2), no new declaration shall be necessary if—
(a) a statement relating to the change is furnished to the said Magistrate within twenty-four
hours thereof; and
(b) the printer or publisher or the printer and publisher of the newspaper continues to be the
same…… ―
16
S.O.R. Gaz. Of India, 29-2-1968, Pt. II, S.2 Ext. P.105.

194
 Knowledge of the pendency is an essential prerequisite for holding a
person guilty of contempt. In Rama Swami vs. Jawaharlal,17 Hon‘ble P.
Rajagopalan Offg. C.J. and Ramachandra Iyer, J. observed:

“No man can be presumed to be aware of proceedings in court to

which he is not a party.”

Further, quoting Metropolitan Music Hall Co. vs. Lake,18 it was held
that knowledge of the alleged contemner is essential before he can be
proceeded against the contempt.

There is a clear distinction between the intention to commit

contempt of court and the knowledge of the pendency of proceedings. The
former might be immaterial; but the latter might not be so. It may be noted
that the protection under the sub-section (1) is made available to a person
who has published the offending matter. This defence is not restricted to
publisher in the sense that the said expression is used in the context of
publication of books, magazines, newspapers etc., but also to the speaker,
or the writer, or the maker of a sign or visible representation.

Sub-section (1) of section 3 shows that immunity attaches to certain

statements or certain matters which may interfere or tend to interfere or
obstruct or tend to obstruct the course of justice in connection with any
civil or criminal proceeding pending at the time of the publication.
However, if the persons so published had at the time of its publication no
reasonable grounds for believing that the proceeding was pending, the
publication is described by this section as ―innocent‖. So far as this sub-
section is concerned, it presents not much difficulty in understanding it. It

17
AIR 1958 Mad. 558.
18
(1889) 58 L.J.Ch. 513 (F).

195
does not seem to be necessary to go deep into the question as to when a
civil or criminal shall be deemed to be pending. However, one may
construe the real meaning of a ―pendency of proceeding‖. The immunity
that is available under this section depends upon the subjective state of
mind of not knowing of pendency and the objective demonstration by the
person concerned that he had no reasonable grounds for believing that any
such proceeding was pending.19

In State vs. Faquir Chand,20 the Allahabad High Court stated that
before a person can be convicted for contempt, the court should be satisfied

(a) That something had been published which is either clearly

intended or at least is calculated to prejudice a trial which is
pending,
(b) That the offending matter was published with knowledge of the
pending cause or with knowledge that the cause was imminent
and,
(c) That the matter published tended substantially to interfere with
the due course of justice or is calculated substantially to create
prejudice in the public mind.

Basically, sub-section (1) of section 3 replaces the strict liability rule

in the case of publication of any matter which interfere or tend to interfere
with or obstructs or tends to obstruct the course of justice in a pending
proceeding by enabling the person charged to establish that in the facts and
circumstances of the case he had no reason to believe that any proceeding
referable to the publication was pending. It is clear that the facts and

19
Prabhakar Laxman Mokashi vs. Sadanand Trimbak Yardi (1975) Cr.L.J. 531 (Bom.) (DB.).
20
AIR 1957 All 657.

196
circumstances must be such that they do not constitute reasonable grounds
for believing that proceedings are pending so far as the person charged is
concerned although in fact such proceedings are pending.21

(ii) The proceedings are not pending at the time of publication.

The law of contempt does not prevent comment before the litigation
is started nor after it has ended. So long as the commentator got their facts
right and keep their comments fair, they are without reproach. They do not
offend against the law as to contempt of contempt unless there is real and
substantial prejudice to pending litigation before the court. Matters of
public interest particularly academic questions which have no reference to
a pending litigation but are of a general educative character, no person can
stop such comment by serving a writ.22

Sub-section (2) of section 3 provides that even though there has been
publication of any matter which interferes or tends to interfere with or
obstructs or tends to obstruct the course of justice such publication shall
not be deemed to constitute contempt of court if the proceeding (whether
civil or criminal) in relation to which such publication is made, are not
pending. The immunity under this sub-section is absolute.23

The Explanation attached to the section clarifies as to when a

judicial proceeding is said to be pending.24 In In re Subrahmanyan, Editor

21
In Saibal Kumar Gupta vs. B.K.Sen, AIR 1961 SC 633 at P. 639, it was pointed out:
―if the conduct of a particular party amounts to contempt of court, usually lack of knowledge
of pending proceedings may not be available to him by way of defences.
22
Attorney General vs. Times Newspaper Ltd., (1973) 2 WLR 452 at P. 460.
23
Pal Samaraditya, The Law of Contempt (4th ed., 2006) at P 260, Savundranaydgan (1968)3
All ER 439; Attorney General vs. News Group Newspapers Plc (1988) QB 110.
24
Explanation of section 3 of the Contempt of Courts Act, for the detail.

197
Tribune,25 it was held that in case of criminal trial proceedings will be
deemed to be pending after the accused is taken into custody and even
before he has been committed for trial or produced before a magistrate.
Further, the offence of contempt may be committed even if no case is
actually pending provided that such a proceeding is imminent and the
writer of the offending publication either knew it to be so or should have
known that it was imminent.

Sub-section (2) is rather involved in its construction and this sub-

section makes it further clear that, when as matter of fact a proceeding is
―not pending‖ publication of any matter which is otherwise contemptuous
and which has already been described in sub-section (1) of section 3 is still
not to be deemed to constitute contempt of court. In broad manner
therefore this section lays down that the publication of matter which might
otherwise fall within the clutches of the definition of contempt of court is
still granted a certain exemption from being so styled if the proceeding was
not pending at the time of its publication.26

(iii) The person accused of distribution of contumacious publication, have

not at the time of such distribution any reasonable grounds for
believing that the publication contain or was likely to contain
contumacious matter.

This sub-section gives protection to the person associated with the

distribution of the contumacious publication e.g., book seller, newspaper
vendor, but this protection is not in absolute manner. The immunity is
provided to disseminator of the publication under the section only when he
25
1943 Lah.329; R vs. Parke, (1903) 2 K.B. 432, R vs. Clarke, (1910) 103 LT 636;
Superintendent and Remembrancer of Legal Affairs, Bihar vs. Murli Manohar Prasad, 1941
Pat 185.
26
Prabhakar Laxman Mokashi vs. Sadanand Trimbak Yardi (1975) Cr.L.J. 531 (Bom.) (DB.).

198
had no reasonable grounds for believing that the publication contains any
contumacious matter. The person charged, who fall under this sub-section
cannot be said in real sense to have intended to publish, since they will be
ignorant of the contents and under no duty to be acquainted with those
contents.

The proviso appended to the sub-section, however, explains two

circumstances in which this protection is not to be availed. These
circumstances are:

(a) The distribution of any publication which is a book or paper

printed or published otherwise than in conformity with the rules
contained in section 327 of the Press and Registration of Books
Act, 1867.
(b) The distribution of any publication which is a newspaper
published otherwise than in conformity with the rules contained
in section 528 of the said Act.

4.2 Fair and Accurate Report of Judicial Proceeding

It has been provided in section 4 of the Act, that subject to the

provision 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.

The word ―Judicial Proceeding‖ in section 4 is to be narrowly

construed to mean day to day proceedings of the court. In the case of
Subhash Chandra vs. S.M. Aggarwal, 29 the court observed:

27
For detailed section Supra note 14.
28
For detailed section Supra note 15.

199
 “It would be seen that the section gives protection to fair and
accurate report of judicial proceedings and says nothings
beyond that. In the first place, the word “judicial proceeding”
appearing in the section has to be given a restricted meaning.
Reading section 4 with the provision of section 7 of the
Contempt of Courts Act, 1971, it is clear that what is meant by
the word “judicial proceeding” is the day to day proceedings
of the court. Assuming though not granting that it is capable of
a wider construction, it only permits a publication of “fair and
accurate” reports of a „judicial proceeding‟. In the present
case, the media was well within its right to publish fair and
accurate report of the judgment delivered by S.M. Aggrawal.
But the reporting of subsequent interviews can, by no stretch
of imagination, be called a report relating to proceedings in a
court.”30

The publication in newspapers of reports of proceedings before a

court of law must be true and accurate and that it must be without malice. 31
Lord Hardwicke, L.C. in St. James‟ Evening post Roach vs. Garvan,32 has
quoted Borrie & Lowe33 who have observed:

29
Subash Chand vs. S.M.Aggrawal, 1984 Cr.L.J. 481 at P. 488 (Delhi); Narendra vs Rahul
Barpute, (1981) 1 JLJ 729.
30
Ibid. A case of dowry death was decided by S,M. Aggrawal, Addl. Session Judge, Delhi in
which death sentence was awarded to three persons. While reference for confirmation of
death sentence was pending before Delhi High Court, he gave interview to Press and
Doordarshan highlighting the facts and explaining why death sentence was awarded. On
filing contempt petition, he put reliance on section 4 of the Act, which permits fair and
accurate report of judicial proceedings to be published.
31
The decision of Mudholkar, J. in Wasudeoraoji vs. A.D.Mani, AIR 1951 Nag 26.
32
(1742) 2 Atk 469 : 26 ER 683.
33
Borrie & Lowe, The Law of Contempt (3rd ed.,) 1996 at P.270.

200
 “To gain immunity from contempt, reports of proceedings
must be „fair and accurate‟. This does not mean that the report
must be word perfect, it is sufficient that it is a fair
representation of what has taken place in the court …….
Undue selectivity or emphasis might not be considered „fair‟
…… „a report may be accurate as far as it goes but unfair
either in its mode of presentation or in stressing unfavourable
aspects of the proceedings or is accurately reporting some
parts but omitting other parts of the proceedings.‟34 …….”

Newspaper men do not enjoy any special immunity on account of

their being a privileged class.35 In E.T. Sen vs. E. Narayanan,36 The Full
Bench of Delhi High Court has held that publication in any form may
amount to contempt of court. Neither the Press reporter nor the publisher of
a newspaper can, in my view claim an indefeasible right to put his gloss on
the statements in court by selecting stray passage out of the context which
may have a tendency to convey to reader to the prejudice of a party to the
proceedings, a sense different from what would appear when the statement
is read in its own context. To reproduce stray misleading passages in bold
headlines in order to attract the attention of casual readers may serve as an
aggravating factor. Similarly while reproducing the court proceedings, no
words may be added, omitted or substituted if their effect is to be more
prejudicial to a party litigation than the actual proceedings. Any deviation
in the report from the correct proceedings actually recorded, must if it

34
Per Jackson, CJ in Minister of Justice vs. West Australian Newspaper Ltd. (1970) WAR 202
at P. 207 as cited in Borrie & Lowe, The Law of Contempt (3rd ed.,) 1996 at P.271.
35
Gijayananda vs. Bal Krishna Kar, AIR 1953 Orissa 249.
36
AIR 1969 Del 201 at P. 213 (FB).

201
offends the law of contempt of court render the alleged contemner liable to
proceeded against.37

The public men and publishers of the newspapers are within their
rights particularly in a free country to vindicate public grievances. Freedom
of Press, Liberty of Speech and action so far as they do not contravene the
law of contempt are to prevail without let or hindrance. But at the same
time the maintenance of dignity of courts is one of the cardinal principles
of rule of law in a free democratic country and when the criticism which
may otherwise be couched in language that appears to be mere criticism
results in undermining the dignity of the courts and course of justice in the
hand it must be held repugnant and punished. G.L. Chopra, J., observed:

“The impugned publication in the present case38 undoubtedly

would have the tendency to lower the prestige of the
Magistrate before whom the proceeding under section 107/ 15,
Cr.P.C. were sub judice in particular and magistracy in the
State generally. The licence of Freedom of speech or
publication must in the circumstances of this case be held to
have been abused. I have no hesitation in concluding that the
publication in question has the effect of creating an
atmosphere of prejudice in the mind of readers that the
Magistrates are amenable to extra judicial pressure.”39

Fair and accurate reporting of the judicial proceeding presupposes

good faith in newspaper editor and journalist. Although journalists have the

37
Supra note 36, An English newspaper ‗NEWAGE‘, printed and published a pamphlet ―I was
a CIA agent in India‖ which allegedly contained serious libellous and defamatory matter
against the complainant ‗Mr. Sen‘.
38
State vs. Ram Chandra Sharma, AIR 1959 Punj. 41.
39
Ibid.

202
Fundamental Rights to carry on their occupation guaranteed to them under
Article 19 (1) (g) of the Constitution and that the right to Freedom of
speech and Expression guaranteed under Article 19 (1) (a) includes the
right to publish as journalist, all proceeding which they have witnessed and
heard.40 But the editor and publishers are liable for illegal and false matter
which is published in their newspaper. Such an irresponsible conduct and
the attitude on the part of the editor, publisher and the reporter cannot be
said to be done in good faith, but distinctly opposed to the high
professional standards as even a slightest enquiry or a simple verification
of the alleged statement about the grant of petrol outlets to the two sons of
a senior Judge of the Supreme Court, out of the discretionary quota of,
which is found to be patently false, would have revealed the truth. But it
appears that even the ordinary case was not resorted to by the contemners
in publishing such a false news items. This cannot be regarded as a public
service, but a disservice to the public by misguiding them with false news.
Obviously, this cannot be regarded as something done in good faith.41

The editor of a newspaper has a duty to check up the news or the

information that is supplied to him, before publishing the same in his
paper, especially when the news might be of a defamatory nature, because
ultimately it is the editor who would be held responsible for publishing any
defamatory material in his paper. If he does not do that, he has to suffer the
consequences for his neglect and remissness. There is no principle of law
or a decided case in favour of the preposition that if a person gives wrong
information to the representative of a newspaper and the same is published
with the result that the editor of that paper is subsequently held for
40
Tek Chand J., The Law of Contempt of Courts and of Legislature (4th ed., 1997), The
University book agency, Allahabad P. 177.
41
In Re Harijai Singh, AIR 1997 SC 73 at Pp. 78,79 : 1997 Cr.L.J. 58 SC at Pp. 62,63.

203
defamation; then the supplier of the information would be liable for
damages in a suit filed against him by the editor.42

Newspaper should take utmost caution in reporting of court

proceeding and orders delivered by the courts. The persons responsible for
such reporting must first get acquainted with the correct facts of judicial
proceedings. In this case43 an accused was discharged by the Magistrate
when the police failed to move an application for judicial remand. A
certain newspaper reported that the accused arrested after 14 years was
discharged by the court. In this regard a complaint was made before the
court that such acquittal was reported in a language which led to the
impression that a hardened criminal has been let off by the court.

The right to publish fair and accurate reports of judicial proceedings

is limited to the judicial proceedings which are generally conducted in
public i.e. in open court. However, this right provided under section 4 is
subject to provision of section 7 of the Act. The provision of section 7 of
the Act clarifies that this right does not extend to any proceedings which
are not held in public, such as reporting of the matter held before a court
sitting in chambers or in camera.

The cardinal principle of any legal system is justice should be

administered in public. The principle underlining the administration of
justice in public is that the public have a great interest in knowing what
occurs in a court of justice. It thus becomes necessary that there should be
publication of the proceeding of the court, so that it may get communicated
to the public at large, who had indefeasible right to know. But it is near

42
Gurbachan Singh vs. Babu Ram, AIR 1969 Punj 201.
43
Shiv Sankar Bansal vs. Hakim Singh 2003 (2) Crimes 380.

204
impossible for the publishers to report each and every matter of the judicial
proceeding in verbatim having limitations of the resources. Then, the
option is between to report the complete proceeding or to report nothing. If
there would be no reporting then it would be undesirable to keep the public
at large unacquainted with the proceedings of the court of justice apart
from restricting the right of freedom of speech and expression of the
publisher. Therefore, a compromise has to be effected to balance the two
competing rights. So long as the reports are fair and accurate, no prejudice
to parties is likely to arise; at the same time, there would be considerable
benefit to the public at large. The court in a number of case held that, a fair
and accurate reporting of judicial proceeding is not contempt of court.

In Naresh Shridhar Mirajkar vs. State Of Maharashtra,44

Gajendragadkar, C.J. has observed:

“It is well-settled that in general, all cases brought before the

Courts, whether civil, criminal, or others, must be heard in
open Court. Public trial in open court is undoubtedly essential
for the healthy, objective and fair administration of justice.
Trial held subject to the public scrutiny and gaze naturally
acts as a check against judicial caprice or vagaries, and
serves as a powerful instrument for creating confidence of the
public in the fairness, objectivity, and impartiality of the
administration of justice. Public confidence in the
administration of justice is of such great significance that
there can be no two opinions on the broad proposition that in
discharging their functions as judicial Tribunals, courts must

44
AIR 1967 SC 1; 1966 SCR (3) 744.

205
 generally hear causes in open and must permit the public
admission to the court-room.”

The principle underlying the insistence on hearing cases in

open court is to protect and assist fair, impartial and objective
administration of justice; but if the requirement of justice itself
sometimes dictates the necessity of trying the case in camera,
it cannot be said that the said requirement should be sacrificed
because of the principle that every trial must be held in open
court. In this connection it is essential to remember that public
trial of causes is a means, though important and valuable, to
ensure fair administration of justice; it is a means, not an end.
It is the fair administration of justice which is the end of
judicial process, and so, if ever a real conflict arises between
fair administrations of justice itself on the one hand, and
public trial on the other, inevitably, public trial may have to be
regulated or controlled in the interest of administration of
justice.

Further, Hon‘ble C.J. has recognised certain exceptions also in the

following words:

“Having thus enunciated the universally accepted proposition

in favour of open trials, it is necessary to consider whether this

rule admits of any exceptions or not. Cases may occur where
the requirement of the administration of justice itself may
make it necessary for the court to hold a trial in camera. While
emphasising the importance of public trial, we cannot
overlook the fact that the primary function of the Judiciary is

206
 to do justice between the parties who bring their causes before
it. If a Judge trying a cause is satisfied that the very purpose of
finding truth in the case would be retarded, or even defeated if
witnesses are required to give evidence subject to public gaze,
is it or is it not opens to him in exercise of his inherent power
to hold the trial in camera either partly or fully? If the primary
function of the court is to do justice in causes brought before
it, then on principle, it is difficult to accede to the proposition
that there can be no exception to the rule that all causes must
be tried in open court. If the principle that all trials before
courts must be held in public was treated as inflexible and
universal and it is held that it admits of no exceptions
whatever, cases may arise where by following the principle,
justice itself may be defeated. That is why we feel no hesitation
in holding that the High Court has inherent jurisdiction to
hold a trial in camera if the ends of justice clearly and
necessarily require the adoption of such a course.”

Hon‘ble C.J. referred and relied upon the decision of the House of
Lords in Scott vs. Scott,45 where Viscount Haldane, L.C. observed that

“While the broad principle is that the courts of this country

must, as between parties, administer justice in public, this
principle is subject to apparent exceptions.”

There are four categories of exceptions to the open justice principle:

45
(1913) AC 417.

207
(i) The most serious inroad is where journalists are neither admitted to
the court nor able to report what happened. This will be the case, for
instance, where the court sits in camera. Literally this means ‗in a
room‘, but its technical meaning is ‗in private‘. Despite the secrecy,
the hearing is still conducted with the ordinary formality of wigs and
robes.
(ii) There are occasions when Press and public are banished but an
account gleaned from the participants can be published. An example
of this is a hearing for an injunction before a judge ‗in chamber‘. It
will be in private (and, unlike an in camera hearing, free of the
paraphernalia of legal garb) but it is not generally contempt to report
what took place.
(iii) The Press may be allowed access to the court, but be restricted in
what it can report, juvenile court cases come within this category;
the Press can attend and report the proceedings but the young people
involved as defendants or witnesses cannot be identified.
(iv) The Press may be allowed to be present and ultimately, free to report
what is said but be subject to a temporary ban on publication. Most
committal proceedings (the preliminary inquiry by Magistrates into
whether there is enough evidence to justify a jury trial) are of this
type. The Contempt of Courts Act, 1981 has also given courts a
power to make an order postponing publication where this is
necessary in the interest of justice.46

Subject to the provisions contained in section 7

46
Robertson & Nicol, Media Law at Pp. 308-311.

208
 Section 4 is controlled by the provision of section 7 of the Act. Thus
any reporting of chamber proceedings which is expressly prohibited for
publication makes liable for the contempt proceeding. As it is so even the
textual reproduction of an order or a fair and accurate summary thereof
would not be a defence.

4.3 Fair Criticism of Judicial Acts

Section 5 of the Act, protects a person or a newspaper for his fair

criticism on the merits of the case which has been heard and finally
decided. It states that 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.

Fair criticism of judicial acts is necessary in the rule of law. The

courts are manned by human beings who suffer from weaknesses of ego,
anger and even bias, if not to individuals but to classes of society or to
political theories. As custodians of law and order, the courts have to decide
the cases according to law of the land. The path is narrow and the judges
have to walk on the edge of a sword. If the watchful eye of a critic points
out to any departure from the cherished goal of an independent judiciary,
then it is not contempt of court provided, of course, the critic does not
attack the judge personally nor does he scandalise the court, lower its
authorities or ridicule it. The defence of fair criticism is open at any stage
of the proceedings.47

47
Iyer‘s Law of Contempt of Courts with Law on Contempt of Parliament, State Assemblies &
Public Servants (5th ed.,2012) Delhi Law House P.330.

209
 After, a case has been decided, if a judgment severely and even
unfairly criticised, and assuming that this has an adverse effect on the
administration of the justice, it must be balanced against the harm which
would ensure if such criticism is stopped. This sort of attack in a country
like ours has the inevitable effect of undermining the confidence of the
public in the judiciary. If the confidence in the judiciary goes, the due
administration of justice definitely suffers.48

While comments on judicial proceedings which are pending may

have an adverse influence on such proceedings, the same cannot be said
with regard to comments or reflections on a judicial proceeding after it has
been finally disposed of. Once this stage is reached, the judge is given over
to criticism and public interest demands that no undue fetters should be
placed upon the right of individuals to reflect on the decisions in the
proceedings. Apart from anything else, such criticism would act as a
necessary corrective to the judiciary.49

Terell C.J. forcefully and feelingly recognised the right of the public
to criticise judgements subject to the necessary and desirable limitation in
following words:

“In conclusion I cannot do more than follow the example of

many well-known and distinguished judges in pointing out that
a judge should neither fear nor resent public criticism whether
of his judgments in matters of law or his judgements in matters
of fact, and I well realise that it is duty of a judge to protect

48
C. K. Daphtary vs. Shri O.P. Gupta, AIR 1971 SC 1132 at P. 1144, Ram Dayal vs.State of
M.P. AIR 1978 SC 921.
49
Sanyal Committee Report (1963), Chapter-IX, Para 3 (1).

210
 the privileges of public against acts of tyranny as well as
against the crime of public offenders and I should have been
among the least to claim any exemption from such criticism. I
hope that I may always be open to criticism and that my
natural vanity may never prevent me from giving ear to my
critics nor from affording to them such attention and respect
as their position in life, learning and professional standing
may claim. But I should be unworthy of the high office to
which his majesty has been pleased to appoint me if I
refrained from protecting that office or from punishing those
who offer it affront.”50

The right to criticise judicial conduct and judicial decisions in

relation to proceedings which are no longer pending cannot, however, be of
an absolute character. Without any limitations, it may result in
encouragement of scandalous attacks but when kept within proper bounds,
it is bound to serve a very useful purpose. Judges themselves have shown a
remarkable appreciation of this position.51 In Ambard vs. Attorney General
for Trinidad,52 Lord Atkin observed:

“The path of criticism is a public way. The wrong-headed are

permitted to err therein, provided that members of the public
abstain from imputing improper motives to those taking part in
the administration of justice and are genuinely exercising a
right of criticism and not acting in malice or attempting to
impair the administration of justice, they are immune. Justice

50
In re Murli Manohar Prasad AIR 1929 Pat 72; 8 Pat 323 at P. 342-343.
51
In re, Ajay Kumar Pandey, AIR 1998 SC 3299.
52
1936 AC 322 at P. 335.

211
 is not a cloistered virtue; she must be allowed to suffer the
scrutiny and respectful, even though outspoken, comments of
ordinary men.”53

In Brahma Prakash case,54 Mukherjea J. while endorsing the

proposition made by Lord Atkin in Ambard case made it clear that a

“Reflection on the conduct or character of a judge in

reference to the discharge of his judicial duties would not be
contempt if such reflection is made in the exercise of the right
of fair and reasonable criticism which every citizen possesses
in respect of public acts done in the seat of justice. It is not by
stifling criticism that confidence in courts can be created.”55

Section 5 of the Act actually delimits the scope of criticism of the

merits of a case which has been heard and finally decided, and provides
that a person, who operates within those limits, will be immune. The
expression ―merits of any case‖ indicates that the operation of the section
is not confined to judgment only. In other words, a fair comment on the
merits of a case after it has been heard and finally decided but before
judgment is delivered is covered by this section. The heading of the section
refers to ‗fair criticism‘ whereas in the section itself the expression used is
‗fair comment‘. A harmonious reading of the heading and the text of the
section would mean that the criticism must be a fair comment in order to
avail of the protection given by the section.56

53
Emphasis supplied.
54
1954 SCR 1169 at P. 1178.
55
Ibid.
56
Pal, Samaraditya, The Law of Contempt, (4th ed., 2006) at P. 272.

212
 In a democracy, fair criticism of the working of all the organs of the
State should be welcome and would in fact, promote the interests of
democratic functioning. Section 5 of the Act, evidently enacted with a view
to secure this right, provides that 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. This does not mean that the right to
commit for any contempt by scandalising 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. Comment not made
honestly and in good faith would not be fair comment and also comment
not intended to promote public interest could not be fair comment.57

In In re, Sanjiv Datta,58 the Supreme Court laid down the principle
of fair comment and criticism on constitutional fundamentals by holding
that the responsibility to maintain the rule of law lies on all individuals and
institutions. Much more so on the three organs of the State. Our
Constitution has separated and demarcated the functions of the Legislature,
the Executive and the judiciary. Each has to perform the functions
entrusted to it and respect the functioning of the others. None is free from
errors, and the judiciary does not claim infallibility. It is truly said that a
judge who has not committed a mistake is yet to be born. Our legal system
in fact acknowledges the fallibility of the courts and provides for both
internal and external checks to correct the errors. The law, the
jurisprudence and the precedents, the open public hearings, reasoned
judgments, appeals, revisions, references and reviews constitute the
internal checks while objective critiques, debates and discussions of

57
Vincent Panikulangara vs. Gopal Kurup, 1982 Cr.L.J. 2094 at P. 2098.
58
1995 (3) SCC 619.

213
judgments outside the courts, and legislative correctives provide the
external checks. Together, they go a long way to ensure judicial
accountability. The law thus provides procedure to correct judicial errors.
Abuses, attribution of motives, vituperative terrorism and defiance are no
methods to correct the errors of the courts. In the discharge of their
functions the courts have to be allowed to operate freely and fearlessly but
for which impartial adjudication will be impossibility. Ours is a
Constitutional government based on the rule of law. The Constitution
entrusts the task of interpreting and administering the law to the judiciary
whose view on the subject is made legally final and binding on all till it is
changed by a higher court or by a permissible legislative measure. Those
living and functioning under the Constitution have to accept and submit to
this obligation of respecting the constitutional authority of the courts.
Under a Constitutional government, such final authority has to vest in
some institution. Otherwise, there will be a chaos. The court's verdict has
to be respected not necessarily by the authority of its reason but always by
reason of its authority. Any conduct designed to or suggestive of
challenging this crucial balance of power devised by the Constitution is an
attempt to subvert the rule of law and an invitation to anarchy.

It is open to anyone to express fair, reasonable and legitimate

criticism of any act or conduct of a judge in his judicial capacity or even to
make a proper and fair comment on any decision given by him.59

Fair and reasonable criticism of a judgment which is a public

document or which is a public act of a Judge concerned with

59
Perspective Publication vs. State of Maharashtra, AIR 1971 SC 221; 1971 Cr.L.J. 268 at P.
277.

214
administration of justice would not constitute contempt. In fact, such fair
and reasonable criticism must be encouraged because after all no one,
much less Judges, can claim infallibility. A fair and reasonable comment
would even be helpful to the judge concerned because he will be able to
see his own shortcomings, limitations or imperfection in his work. The
society at large is interested in the administration of public justice because
in the words of Benjamin Cardozo, "the great tides and currents which
engulf the rest of men do not turn aside in their course and pass the judges
by."60 Such permissible criticism would itself provide a sensible answer to
sometimes ill-informed criticism of judges as living in ivory towers. But
then the criticism has to be fair and reasonable. Such a criticism may fairly
assert that the judgment is incorrect or an error has been committed both
with regard to law or established facts. It is one thing to say that a
judgment on facts as disclosed is not in consonance with evidence or the
law has not been correctly applied. Ordinarily, the judgment itself will be
the subject-matter of criticism and not the judge. But when it is said that
the judge had a pre-disposition to convict or deliberately took a turn in
discussion of evidence because he had already resolved to convict the
accused, or he has a wayward bend of mind, is attributing motives, lack of
dispassionate and, objective approach and analysis and pre-judging of the,
issues, which would bring administration of justice into ridicule if not
infamy. When there is danger of grave mischief being done in the matter of
administration of justice, the animadversion cannot be ignored and viewed
with placid equanimity. If the criticism is likely to interfere with due
administration of justice or undermine the confidence which the public
rightly repose in the courts of law as courts of justice, the criticism would

60
Benjamin N. Cardozo, The Nature of the Judicial Process, P. 168.

215
cease to, be fair and reasonable criticism as contemplated by Sec. 5 but
would scandalise courts and substantially interfere with administration of
justice.61

After the conclusion of a trial the judge is handed over to criticism.

And criticism means reasoning and discussion with a view to elucidate the
truth. Vituperation and invective writing in order to impugn the character
of individuals is inexcusable as it interferes with the course of justice.62

Fair criticism of order and judgments of the courts by public are

permitted as it may be necessary for the public to be educated on the
propriety of acts of courts. Any system could improve only by periodical
assessment of its performance and the court is not beyond the purview of
such assessment. Public opinion does play a significant role in making any
institution responsive to the need of the time. When a member of the public
does honestly criticise an order or a judgment of the court he does it not to
promote its own interest, but that of general public.63

Courts are of necessity presided over by the judges, who like all
other men are mortal and liable to err. It is no offence to subject their
decisions to fair, honest and reasonable criticism. Indeed these criticisms
may be couched in strong, perhaps, even extravagant language, but to
ascribe their decisions not to error, but to improper motives, is to bring the

61
Rama Dayal Markarha vs. State of M.P., AIR 1978 SC 921 at P. 927.
62
In re Narasimha Chintaman Kelkar, 1933 Bom. 240 at P. 246.
63
Vincent Panikulangara vs. Gopal Kurup, 1982 Cr.L.J. 2094

216
judge himself and the whole court into contempt and undermine the
confidence of public in all judicial pronouncements and determinations.64

In In re, Ajay Kumar Pandey,65 the Supreme Court enunciated the

concept of fair comment by holding that fair comments, even if, outspoken,
but made without any malice and without attempting to impair the
administration of justice and made in good faith in proper language do not
attract any punishment for contempt of court. However, when from the
criticism a deliberate, motivated and calculated attempt is discernible to
bring down the image of judiciary in the estimation of the public or to
impair the administration of justice or tend to bring the administration of
justice into disrepute the courts must bitter themselves to uphold their
dignity and the majesty of law.

The right of criticising, in good faith in private or public, a judgment

of the court cannot be exercised with malice or by attempting to impair the
administration of justice. Indeed freedom of speech and expression is ―life
blood of democracy” but this freedom is subject to certain qualification.
An offence of scandalising the court per se is one such qualification, since
that offence exists to protect the administration of justice and is reasonably
justified and necessary in a democratic society.66

The purpose of the proceedings in contempt is to keep the stream of

justice unsullied, and maintain the confidence of the public at large in the
fair and impartial administration of justice, by the court of law. If anybody
wrongly casts aspersions in the impartiality and fair dispensation of justice

64
In the matter of Muslim Outlook, Lahore, 1927 Lah. 610 at P. 612; In re, K.L. Gauba,
Barrister at Law, Lahore, 1942 Lah. 105 at P. 113.
65
AIR 1998 SC 3299.
66
Narmada Bachao Andolan vs. Union of India. AIR 1999 SC 3345 at P. 3347.

217
by a court, he pollutes the purities of that stream and has to be punished for
contempt of court, in as much as it shakes the confidence of the public in
general, the preservation thereof is essential for the proper and fair
administration of justice. The main criterion of contempt is interference or
likelihood of interference with the course of justice. Fair and reasonable
criticism of the conduct or the character of the judges in relation to the
judicial duties does not amount to contempt.67

No judge is immune from criticism, but the criticism must take the
form of reasonable argument for expostulation; it must be made in good
faith and it must be free from the imputation of improper motives. The
right of public or private criticism within these limits is the right possessed
by every citizen. Criticism of a judicial act which cannot reasonably be
said to be within these limits will, however be contempt and it matters not
through what medium that criticism finds expression, whether it be in the
Press, a speech, a resolution or a representation.68

A criticism which attributes ‗improper motives‘ to a judge in the

conduct of his judicial work not only transgresses the limits of fair and
bona fide criticism but has a clear tendency to affect the dignity and
prestige of the court.69 However, in the cases decided by the Supreme
Court no clear tests have been indicated although, as will be seen later
many publications have been held to transgress the limits of fair
comment.70

67
Rex vs. C.B.S. Nayyar, AIR 1950 All 549.
68
Supra note 40, P.184.
69
State vs. Rajeshwari Prasad, AIR 1966 All 588 at P. 589, also Padmahasini vs. C.R.
Srinivai, AIR 2002 SC 68.
70
Supra note 56 at P. 276.

218
 In Rajendra Sail vs. M.P. High Court Bar Association,71 the
Supreme Court dealt with the limitation upon the freedom enjoyed by the
Press in publication with respect to judges and the judiciary in which it
reaffirmed the rights of the media to resort to reasonable criticism of a
judicial act or the judgment of the court for public good or report any such
statement; but held at the same time that the media should refrain from
casting scurrilous aspersions on or impute improper motives or personal
bias to a judge. The Press cannot scandalise the court or the judiciary as a
whole or make personal allegations of lack of ability or integrity against
the judge as it should be remembered that from the very nature of their
office the judges cannot reply. The court also held that while criticism is
welcome, it must be fair and reasonable which does not scandalise or
substantially interfere in the administration of justice.72

Although fair criticism is a defence in contempt if made in good

faith and public interest but that good faith and public interest is dependent
upon surrounding circumstances, like place and setting of the criticism,
person making the comments, his special knowledge in the field of
comments and the purpose sought to be achieved. Thus, the court in a
case73 considered the offending statements as transgressing the limit of fair
comment, which was made in a Moffusil town where there is a lower rate
of literacy. The Supreme Court in M.V.Jayarajan vs High Court of Kerala
& Anr74 had not accepted the appellant submission of Sanskrit origin of the
word 'sumbhan' and held that it is a slang, especially to the rural and rustic
persons he was addressing, it conveyed a strong abuse. Judges expect, nay
71
2005 (6) SCC 109.
72
Supra note 71.
73
Rama Dayal Markarha vs. State of M.P., AIR 1978 SC 921
74
M.V.Jayarajan vs High Court of Kerala & Anr 2015 (4) SCC 81: 2015 (1) SCALE 781:
2015 (1) SLT 724: 2015 (1) Supreme 626.

219
invite, an informed and genuine discussion or criticism of judgments, but
to incite a relatively illiterate audience against the Judiciary, is not to be
ignored. A Division Bench of the Bombay High Court took consideration
of the background and the usual character of the speech made by a Chief
Minister of the State (A.R. Antulay) in a public speech while deciding
whether it as a contemptuous or not.75

A Division Bench of the Kerala High Court in a case 76 has indicated

some of the factors to be taken into consideration whether the publication
is by way of fair comment or not. The respondent in the present case 77 was
a member of the syndicate of the University of Kerala, released a statement
to the Press which was reported in the Malayalam daily ‗Manorama‘ and
the English daily ‗Indian Express‘ accusing the High Court of suspicious
conduct and lack of self-restraint in making an interim order. Subramonian
Poti, Acting C.J. delivering the judgment of the Bench said:

“In these circumstances could we say that the comment is

honest? It would be honest if it is based on true facts. That as
we have said is not the case here. It is ex facie irresponsible. If
it did come from a member of the public unconnected with the
examination whose comment was motivated by public interest
only it would have had a different complexion. The respondent
as one who shares the responsibility for the conduct of
examinations, in the university (as the convener of the
standing committee of the examinations) is more or less in the

75
In re, a letter dated 2nd /15th September, 1980 of Shrikant vs. Bhat 1981 (83) Bom LR 251.
76
Vincent Panikulangara vs. Gopal Kurup, 1982 Cr.L.J. 2094 at P. 2099.
77
Ibid.

220
 position of one who was a party, he having identified himself
with the case of the university.”

“Here, Shri Gopala Kurup identifies himself with the

university because he evidently feels that it was the conduct of
examination by the university that was commented upon and
that called for an answer from him. He was apparently trying
to vindicate himself. This has a bearing on determining
whether the criticism is honest. Yet another matter which is of
relevance is that the respondent was not speaking when he
was off guard. He was speaking deliberately and purposefully.
He had a prepared statement to be fed to the Press. There is
no case that the newspapers rushed to him for ascertaining his
reaction.”78

Public speeches are to be appreciated in a free, fair and liberal way

and a stray incident narrated cannot be appreciated apart from its context.
The total effect of the speech has to be taken into account and not merely
stray sentences or utterance here and there. All bona fide criticism of
judgments is a permissible exercise and the law of contempt does not
impinge upon it unless there is clear evidence of imputations to the judicial
authority of bad faith or ulterior consideration. All public criticism having
public good in view should, on the other hand, be a welcome process as the
part of the public vigil of the work that the court is expected to carry on.
Constructive criticisms having clearly dual effects, one constantly
reminding the courts that they are open to public scrutiny and the second to
help better their administration. Justice is not just a context free exercise in

78
Supra note 75.

221
fairness. In a country governed by Constitution, wherein fundamental
guarantee of the freedom of speech and expression is enshrined, the law of
contempt holds a very exceptional and sensitive field. Needless to say,
democratic system necessities some sort of public accountability in all
walks of life including that in the institution of the court. The contempt of
court in a free country is the concept supported by the popular sanction.
Hardly, therefore, the court can shy itself away from public gaze and
public scrutiny. In fact, doors and window should always be open so as to
admit passage of free ideas that subserve rather than subvert the dignity of
administration of justice. Public criticism done in good faith for public
good of the judgments, and particularly of sentences imposed by the courts,
cannot be treated as contemptuous of the authority of the court.79

4.4 Bona fide Complaint against Presiding Officers of Subordinate

Court

Section 6 of the Contempt of Courts Act, 1971 states that 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 or any subordinate
court to –

(a) any other subordinate court, or

79
Supra note 74.
A.R. Antulay, C.M. of the State made a public speech that wealthy tax evaders were being
lightly punished whereas a poor fisherwoman was being subjected to rigorous
imprisonment. He also ridiculed the administration by using the word ‗Tamasha‘ in the
context of administration of justice.
The Division Bench of Bombay High Court, through Madholkar J., after going through the
entire reported speech, found that the instances referred to therein were to highlight the
loopholes and inequities in the process of administration of law and there was hardly any
suggestion of imputing ill motive or bad faith to judicial administration. As regard the word
‗Tamasha‘ the court held that in Marathi it is understood as ‗indicating any amusing
performance or dramatic exposition‘ and metamorphically it indicated and meant ineffective
enforcement of laws.

222
 (b) the High court to which it is subordinate.

The Explanation appended to this section, provides that ―subordinate

court‖ means any court subordinate to a High court.

The word ‗any statement‘ in the section will include not only
statements adverse to the presiding officer of the court but even a statement
in praise of a presiding officer can be motivated and may bring the wrath
of the High Court by way of punishment for contempt of court.

This section assumes that a statement made by a person concerning

the presiding officer of any subordinate court, as mentioned in the section
itself, would be contempt except where it has been made in good faith.80
Thus this section allows a person to make bona fide and legitimate
complaint concerning a judge of any subordinate court to the High Court or
to any other subordinate court to which the former subordinate court is
subordinate. Further, explanation makes it clear that a complaint can be
filed under this section against Munsif to the District Judge to whom he is
subordinate, and similarly a complaint can be made against District Judge
to High court under whose jurisdiction he is exercising his power.

Section 6 of the Act, does not cover the High Court. It does not talk
of any supervisory power of any agency or court over the High Court and
for that protection of section 6 cannot be claimed by the contemner for
addressing communication to Chief Justice, Judges of the High Court, the
Prime Minister and the President in highly libellous language maligning,
criticising and scandalising the Chief Justice and the Judges for their

80
Court on its own motion (in re) 1973 Cr.L.J. 1106 (P&H).

223
decisions taken judicially and administratively, when court issued notice
on its own motion for contempt proceedings.81

A citizen has always a right; if he has a legitimate grievance, to

make a representation to the Government and that if that representation is
made in good faith it could not, when the conduct complained of was that
of a court of judge, constitute contempt of court. The only tangible test
which can be applied for judging the good faith of a person in doing a
certain act is as to whether he acted with due care and attention. It is surely
not open to a person to take precipitate action only on vague information
received by him from irresponsible sources and without verifying the same
diligently.82

It is well known principle that justice should not only be done, but
must also appear to have been done. If there is any cause of complaint
against the presiding officers of the court, it is desirable that the higher
authorities should know about it. Such complaint to higher authorities as
provided in section 6 of the Act is not contempt of court, however, the
complaint should be made in ‗good faith‘ and is bona fide , such cases are
distinguishable from cases where complaints against the presiding officer
of the subordinate courts are made to High Court in personal interest.
Complaints, if made to bring pressure on the presiding officer to decide a
matter in a particular manner or out of anger due to decision against the
complainant, will not save the complainant from the penalties of Contempt
of Court Act.

81
(1986) 1 Rec.Cri. R. 372 (DB).
82
State vs. S.N. Dikshit, 1973 Cr.L.J. 1211 (All).

224
 In Rex vs. B.S. Nayyar, 83 the court observed:

“……… complaints against judicial officers must go to the

Government, if these complaints are genuine and are made in
a proper manner with the object of obtaining redress, and are
not made mala fide with a view either to exert pressure upon
the court in the exercise of its judicial functions or to diminish
the authorities of the court by vilifying it. It would not be in
furtherance of justice to stifle them by means of summary
action for contempt, but rather the reverse.”

The object of the law of contempt is not to provide a cloak for

judicial authorities to cover up their inefficiency or to stifle criticism made
in good faith against such officers. The ordinary right of making or
publishing fair comments on the merits of any case which is no longer
pending or on the conduct of any judge in relation to any such case may
not be adequate protection for a person who desires in good faith to expose
a judicial officer with a view to enabling a superior authority to take the
necessary action. In the case of the subordinate judiciary, the law of
contempt ought not to stand in the way of complaint against them being
made in good faith to the appropriate superior authorities. If the position
were otherwise, it would be tantamount to putting a premium on corrupt or
inefficient judges. It may be noted that the position has been made clear to
some extent by the Supreme Court in Brahma Prakash‟s case.84 Referring
to a complaint against a revenue officer to the effect that he hears two
cases simultaneously and allows the court reader to do the work for him,

83
Rex vs. B.S. Nayyar AIR 1950 All 549.
84
1953 SCR 1169 at P. 1181.

225
their Lordship observed: ―if true, it is patent illegality and is precisely a
matter which should be brought to the notice of the District Magistrate who
is the administrative head of these officers.‖ Referring to certain other
complaints in general, namely that certain specified judicial officers do not
state facts correctly when they pass orders and that they are discourteous to
the litigants public, the Supreme Court observed that they do not by any
means amount to scandalising the court and added that such complaints are
frequently heard in respect of many subordinate courts if any person had a
genuine grievance it cannot be said that in ventilating his grievances he has
exceeded the limits of fair criticisms.85

In these circumstances, and having regard to the fact that in the

public interest some machinery should be available for bringing inefficient
and corrupt officers to book, it would be advisable to state clearly and
expressly in the law that a complaint against a judicial officer made to the
appropriate superior authority shall not amount to contempt. The
appropriate authority may well be the Chief Justice of the High Court
concerned to which all judicial officers in the State are subordinate. Such a
course would avoid unnecessary publicity; would not, in any way, affect
the administration of justice; at the same time would provide an adequate
and a convenient remedy, for the members of the public having legitimate
grievances, against a member of the judiciary a remedy, which is so
essential for the proper administration of the justice.86

4.5 Publication of Information Relating to Proceedings in chambers

or in camera in Certain Cases

85
Supra note 49, Chapter- IX, Para 4(1).
86
Supra note 49, Chapter- IX, Para 4(3).

226
 A type of contempt which does not neatly fit into the traditional
classification of contempt by way of scandalising the court and contempt in
relation to pending proceedings is contempt by publication of information
relating to judicial proceedings in violation of secrecy.87 The general
principle in regard to publication of information relating to judicial
proceedings is well-settled, namely, that all judicial proceedings must be
open to the public and the administration of justice must take place in open
court. The reason is that the public have a general interest in the
administration of justice. The concomitant result is that the publication of
judicial proceedings and information relating thereto cannot be forbidden.
While the general principle is that justice should be administered in public
and the publication of judicial proceedings should not be forbidden, this
principle is subject to exception based upon a yet more fundamental
principle that the paramount object of courts of justice must be to ensure
that justice is done. In order to attain this paramount object, it may become
necessary in some cases to exclude the public and enjoin secrecy as to the
proceedings and any violation of such secrecy would pro tanto amount to
contempt of court.88

The question whether a court has any inherent power to exclude the
public and enjoin secrecy as to any proceeding is not free from doubt. In an
early English case89 which involved the trial for treason of several persons
on similar facts, the court issued an order that the proceedings should not
be reported until the trial of all the persons had been concluded on the
ground that such reports may prejudice the subsequent trials. In violation

87
Goodhart, Arthur L., Newspapers and Contempt of Court in English Law 48 Harvard Law
Review 885 at Pp. 904-906.
88
Supra note 49, Chapter- VIII, Para 1.
89
Rex vs. Clement, 4 B & Ald 218.

227
of the order, a newspaper published an account of one of the trials while
the other trials were taking place. The newspaper editor was fined $ 500
for contempt. It has been doubted whether this case is still good law, for a
criminal trial must be held in public and subject to the few statutory
exception, a judge has no power to forbid the publication of a fair and
impartial account of the trial. As Viscount Haldane has observed:

“……. The power of an ordinary court of justice to hear in

private cannot rest merely on the discretion of the judge or on
his individual view that it is desirable for the sake of public
decency or morality that the hearing should take place in
private. If there is any exception to the broad principle which
requires the administration of justice to take place in open
court, that exception must be based on the application of some
other and overriding principle which defines the object of
exception and does not leave its limit, to the individual
discretion of the judge.”90

The cases where secrecy can be enjoined with regard to judicial

proceedings should be confined within clearly defined limits.91

The most obvious category of cases requiring secrecy is those

provided for expressly by the legislature itself.92

A second category of cases in which secrecy is desirable and may be

enjoined is that pertaining to matters of national security. For example, in
the Official Secrets Act, 1923, there is provision authorising the court to

90
Scott vs. Scott (1913) AC 417 at P. 435.
91
Supra note 49, Para 2.
92
Ibid, at Para 3(1).

228
exclude the public from any proceeding under the Act in the interests of the
safety of the State. A similar provision is to be found in the Defence of
India Act, 1962, enacted to meet the emergency. The practise adopted by
these statutes of stating expressly when proceedings may be held in camera
or in what manner secrecy is to be enjoined is a commendable one in as
much as it is conducive to clarity.93

The third category of cases requiring secrecy is that pertaining to

litigation as to a secret process where the effect of publicity would be to
destroy the very foundation on which the subject-matter rests. In this
category of cases, it may well be that justice cannot be done if it is to be
done in public.94

There is, however, another category of cases, namely, those relating

to matters heard in chambers, which call for some special consideration. In
respect of chamber proceedings it is said that it is a rule of practise in the
Bombay High Court95 that no report of chamber proceedings shall be
published without the leave of the judge, and it is added that this rule is
based on sound common sense. Further, this rule of practise is stated to be
absolute in the case of wards and lunatics because in such cases the court is
regarded as sitting primarily to guard the interest of the wards or lunatics
and the jurisdiction of the court in this behalf is essentially parental and
administrative, the disposal of controverted questions being regarded as
only an incident in the exercise of the jurisdiction. These are arguments

93
Supra note 49, at Para 3(2).
94
Ibid, Chapter- IX, at Para 3(3).
95
In the matter of the Guardians and Wards Act, 1890, and in the matter of Nirmala Gowri
ILR 50 Bom 275 at P.283; J.L.Mehta vs. Bai Pushpabhai, ILR 1942 Bom 151 at Pp. 155and
156.

229
derived from English authorities96 and so far as our country is concerned it
is doubtful whether these arguments are tenable in view of the fact that the
Guardians and Wards Act, 1890, and the Lunacy Act, 1912, do not contain
any provision relating to the hearing of matters under those Acts in
chambers or in camera. It would also not be correct to say that the disposal
of controverted questions would only be incidental to such proceedings in
most cases. If the High Courts as successor to the old Supreme Courts can
be regarded as rightly entitled under their respective Letters Patent to make
Chamber Rules and enjoined secrecy, the anomalous situation would result
of the same matter being regarded as requiring secrecy if it falls within the
purview of the original jurisdiction of the High Court, and as not requiring
any secrecy if it falls within any other jurisdiction or within the purview of
the mofussil courts. It is difficult to subscribe this view, notwithstanding
the observation of the Bombay High Court in the two cases referred to
above, that all chamber proceedings, whether they pertain to wards and
lunatics or otherwise, are, or should be, covered by the rule of secrecy. A
casual examination of the chamber rules will show the variety of
applications, interlocutory and otherwise, which may be heard and
disposed of in chambers and it is indeed difficult to imagine the slightest
obligation of secrecy in regard to most, if not all, of them. Even if there be
any such obligation, in the interest of proper administration of justice, it
should be dispensed with.97

96
Even in England, the rule cannot be said to have been laid down in an exhaustive manner.
As pointed out in In re, de Beaugeu‟s application (1949) 1 Ch 230 at P. 235. There may well
be cases in which permission of the judge is not refused for any such publication.
97
Supra note 49, para 4.

230
 In the result, it was recommended by the Sanyal Committee98 that
under the head of secrecy, cases of contempt should be confined to the
following categories, namely:

(a) Where the publication is contrary to the provisions of any

enactment; or

(b) Where the court, having statutory power to do so, expressly prohibits
the publication; or

(c) Where for reasons connected with public order or the security of the
State, the court sits in chambers or in camera; or

(d) Where the matter relates to a secret process.

In all such cases it is assumed that contempt proceedings will be

initiated only if the law in question does not prescribe any punishment for
the contravention. At the same time it is made clear that no contempt
proceeding in respect of the publication of the text or a fair and accurate
summary of the whole or any part of an order made by a court sitting in
chambers shall be competent unless the court has expressly prohibited the
same in exercise of powers conferred by any enactment for the time being
in force.99

Section 7 of the Contempt of Courts Act 1971, provides that subject

to the exception mentioned in the section itself, publication of information
relating to proceeding in chambers or in camera is not contempt under the
Act. It gives similar protection to the contemner as specified in section 4 of
the Act, the proceeding for which is not held in the open court.

98
Supra note 49, at Para 5 (1).
99
Ibid, Chapter- IX, Para 5 (2).

231
 Taraporewala, J., has observed about section 7 of the Act which is
cited in Purshottam Hurjiwan vs. Navnitlal Hargovindas,100 in the
following words;

“….. Chamber matters are absolutely private whatever may be

their nature; and that they cannot be published at any time
without the leave of the court...”101

It states that 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 proceedings 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 grounds 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 or 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 secret process, discovery or

invention which is an issue in the proceedings.102

100
10 Bom 275 at P.281; AIR 1926 Bom.208.
101
Ibid.
102
Section 7 (1) of the Contempt of Courts Act, 1971.

232
 It is further stated in the section that 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 secret process, discovery or invention, or in exercise of any
power vested on it.103

(a) Reporting of proceeding in chambers or in camera104[sub-section

(1)]

Sub-section (1) of the section 7 deals with reporting of proceedings

in chambers or in camera. There are various proceedings which are, under
the rule of procedure, held in chambers and there are various statutory
provisions conferring power on the court to hold certain proceedings in
camera.105

The protection provided under the section however, will not be

available in the following four cases:
103
Section 7 (2) of the Contempt of Courts Act, 1971.
104
Sub-section (1) of the Section 7 of the Contempt of Courts Act, 1971
105
It may be noted that rules of different High Courts has made various interlocutory business
which because of their very nature do not require hearing in open court, such as application
for, amendment of pleadings etc. and are to be disposed of in chamber. Some of the statute
has also made certain provisions which cannot be held in open courts. These are:
Section 16, the Defence of India Act, 1962;
Section 14, the Official Secrets Act, 1923;
Section 53, the Indian Divorce Act, 1869;
Section 33, the Special Marriage Act, 1954;
Section 36, Children Act, 1960, which prohibits on pain of punishment the publication of
any particular calculated to lead to the identification of a delinquent child.
Section 22, the Hindu Marriage Act, 1955, which incidentally is more elaborate and contains
an express provisions for the punishment of offenders.

233
(a) Where the publication is contrary to the provisions of any enactment
for the time being in force;

(b) Where the court, on grounds 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;106

(c) Where the court sits in chambers or in camera for reason connected
with public order or the security of the State, the publication of
information relating to those proceedings;107

(d) Where the information relates to secret process, discovery or

invention which is an issue in the proceedings.108

106
Under Clause (b) of sub-section (1) publication of a fair and accurate report of proceedings
held in chamber or in camera would not be contempt unless it is prohibited by the court. The
main grounds of prohibition are public policy or in exercise of any power vested in it.
In Progressive Port and Dock Workers Union vs. K.M. Mallew, 1984 Cr.L.J. 1061, the court
held that while reproducing the court proceedings, no words are to be added, omitted or
substituted if there effect is to be more prejudicial to a party litigant than the actual
proceedings; any deviation in the report from the correct proceedings, actually recorded, if it
offends the law of contempt of court, may render the alleged contemner liable to be
proceeded against. Needless to say 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 passage out of context which might have a tendency to convey, to the reader
to the prejudicial of a party to the proceedings a sense different from what would appear
when the statement is read in its own context.
107
Sub-clause (c) of the section mentioned creates absolute bar to the publication of
information relating to the proceedings while the court sits in chamber or in camera for
reasons connected with public order to the security of the State.
It was held in a case (1978) 2 All ER 731, where in a committal proceeding the judges in the
interest of national security made a rule that identity of the witness should not be disclosed,
but no formal order or direction to that effect was made. A newspaper after the proceedings
were over published the name of the witness. The newspaper was found to be guilty of
contempt.
108
For scope and effect of the expression ‗fair and accurate report‘ also discussions under the
heading ―IV.II Fair and accurate report of judicial proceeding‖. Borrie & Lowe, The Law of
Contempt (3rd ed., 1996) at P. 270 observed:

234
(b) Publishing orders109 [sub-section (2)]

This sub-section deals with the publication of an order made by a

court sitting in chamber or in camera as opposed to publishing of the report
of judicial proceedings as contemplated in sub-section (1). The protection
of sub-section (2) available in connection with publishing the text or a fair
and accurate summary would obviously exclude any misleading or mala
fide distortion or omission resulting in the reasonable reader forming an
erroneous and improper impression about the order. It is submitted that the
same principles which govern the criteria for ascertaining what is ―fair and
accurate‖ under section 4 of the Act would be applicable in ascertaining
whether there is a fair or accurate summary within the meaning of this sub-
section. Sub-section (2) is also subject to the same four exceptions likewise
provided in the sub-section (1).110

4.6 Others Defences

Most of the defences which are available to the alleged contemner

prior to Act of 1971 are now incorporated in the various sections of the
new Act but even then it is made clear that there is no closed door policy in
the Act. If the Act could be defended in the past on any plea, the same
would be available even now.

―To gain immunity from contempt, reports of proceedings must be ‗fair and accurate‘. This
does not mean that the report must be word perfect, it is sufficient that it is a fair
representation of what has taken place in court‖.
In Brook vs. Evans (1860) 29 LJ Ch 616 Stuart V-C observed:
―I find a report of what took place, and although, as is generally the case with such reports, it
is no, and cannot be expected to be, in every particular, a perfectly accurate report, yet it
contains no such inaccuracy and no such impropriety in any part of it, as to justify the
defendants in coming here and taking up the time of the court ……‖
109
Sub-section (2) of the Section 7 of the Contempt of Courts Act, 1971.
110
Supra note 56 at P. 286.

235
 Section 3 to 7 protects the contemner from the acts which are
specially provided in the sections; however Act provides section 8 which
gives an impression that Act is not exhaustive as to other defences. Section
8 states that 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.

The use of the expression ‗other defences‘ as well as the scheme of

the Act shows that apart from the defences mentioned in the sections 3 to 7
of the Act there are other defences to a contempt proceeding and such other
defences are not affected by reason of the provisions of the Act.111

It is clear that section 8, by way of abundant caution, provides that

the existing law as to defence is still open in contempt action.112 The
Supreme Court has pointed out that besides the defences expressly referred
to in section 3 to 7 of the Act, the court can in appropriate cases consider
any other defence pleaded by the contemner which is not incompatible
with the dignity of court and law of contempt.113

4.6.1 Defences in Civil Contempt

(i) Ambiguous/ vague order

An order to be followed or be implemented should be specific and

complete in nature. Any violation of an order which is of ambiguous and
contingent character the direction in it being dependent on certain other

111
Supra note 56 at P. 289.
112
High Court of Karnataka vs. Y.K.Subbanna, 1990 Cr.L.J. 1159.
113
Arundhati Roy, In re (2002) 3 SCC 343 at P.367.

236
facts which are left undefined cannot amount to contempt.114 A person
charged with contempt can successfully take plea that the terms of the
order of injunction are not clear and unambiguous.115 If the terms of the
injunction are ambiguous either as to precisely what is to be done or by
whom it is to be done, no committal order will be made for an alleged
violation of such an order.116 Where an order is ex facie ambiguous, the
ambiguity cannot be resolved by examining the transcript of the
proceedings.117 When a party is in doubt as to the meaning and effect of the
status quo order the proper course to adopt is to approach the court to seek
clarification.118

Where in an order of imprisonment or attachment of property by a

court the details of persons to be arrested were not given nor specified nor
the particulars of the properties to be attached were mentioned, it was held
by V.R. Krishna Iyer, J., of the Supreme Court that such laconic order
cannot stand nor on its basis the disobedience of the courts‘ order by the
Government can be assumed to have been made out.119 In that case120 it
was specifically held that where liberty is to be deprived of particularly of
the property, it is fundamental in vagueness as a fatal vice even if issuing
authority be a court. If the substantial order was silent about the
identification of vendor and it was left over as ministerial measure, in that
event nameless humans cannot be whisked off to prison even in the name
of contempt by insertion of name after the judgement is delivered.

114
Dulal Chandra Bhar vs. Sukumar Banerjee AIR 1958 Cal 474.
115
Iberian Trust Ltd. vs. Founders Trust and Investment Co. Ltd. (1932) 2 KB 87 at P. 95; P.A.
Thomas & Co. vs. Mould. (1968) 2 QB 913.
116
R. vs. City of London Magistrates‟ Court (1997) 3 All ER 551.
117
Supra note 33 at P.561.
118
Bharat Cooking Coal Ltd. Vs. State of Bihar AIR 1988 SC 127.
119
Union of India vs. Satish Chanrda Mishra, AIR 1980 SC 600: 1980 (2) SCC 144.
120
Ibid.

237
(ii) Without jurisdiction order

By jurisdiction is meant the authority which a court has to decide

matters that are litigated before it or to take cognizance of matters
presented in a formal way for its decision. The limits of this authority are
imposed by the statute, charter or commission under which the court is
constituted and may be extended or restricted by the like‘s means. If no
restriction or limit is imposed the jurisdiction is said to be unlimited.121

It is fundamental and well established principle that a decree passed

by a court without jurisdiction is a nullity and that its invalidity could be
set up whenever and wherever it is sought to be enforced or relied upon,
even at the stage of execution and even in collateral proceedings. A defect
of jurisdiction, whether it is pecuniary or territorial, or whether it is in
respect of the subject-matter of the action, strikes at the very authority of
the court to pass any decree, and such a defect cannot be cured even by
consent of parties.122

However, there are, at least, three exceptions to the general principle

that a decree or order without jurisdiction is nullity. These are:

(a) Where there is lack of territorial jurisdiction.123

(b) Where there is lack of pecuniary jurisdiction.124

(c) Where the jurisdiction is attracted with reference to the person and
that person submits to the jurisdiction.125

121
Mulla, Civil Procedure Code (15th ed.) at P. 278.
122
Kiran Singh vs. Chaman Paswan AIR 1954 SC 340.
123
Ibid.
124
Ibid.
125
Mighell vs. Sultan of Johore (1894) 1 QB 149.

238
 These exceptions are created by statutory intervention in respect to
(a) and (b) above126 and by common law in respect to (c) above.

It is well settled that an order passed without jurisdiction is a nullity

which can be ignored with impunity. It is not necessary that the aggrieved
party must make an application to set aside the order which is a nullity. He
can very well rely upon its invalidity whenever it is set up against him,
even though he might not have taken steps to set it aside. In case a
particular interim order has been passed by Maharashtra Revenue Tribunal
or by some other tribunal or Authority or court without jurisdiction, its
wilful disobedience would not be contempt. Similarly if some undertaking
was given to a court which has no jurisdiction, its breach or wilful
disobedience would not constitute contempt.127

There can be no disobedience of a void order, as such order, in the

sense of an order determining the parties‘ rights or liabilities, does not exist
in law and unless the order is binding on a party, he is at liberty to ignore
or disobey it. However improper or discourteous the conduct of a party in
disobeying a void order, no action for contempt can be founded on its
disobedience as the essence of contempt in such cases is the disobedience
of an order by which the party disobeying it was bound. The crucial
question is whether the stay order which the respondent are alleged to have
disobeyed was with jurisdiction.128

126
Viz., section 21 of the Civil Procedure Code and section 11 of the Suits Valuation Act, 1887
respectively.
127
Dr. Vivekanand Atmaram Chitaley vs. Vidyavardhan Sabha, 1985 Cr.L.J. 359 at P. 367
(DB) Bombay High Court; Dwarka Moolji vs. Shantilal Laxmidas 1980 Mah.L.T. 404;
Abdul Rahman vs. Govt. of Bombay 44 Bomb.L.R. 577: 1942 Bom. 257 (FB); Amrit Bhikaji
Kale vs. Kashinath Janardhan Trade AIR 1983 SC 645.
128
Sultan Ali vs. Nur Hussain AIR 1949 Lah 131 (FB).

239
 The order of a court is without jurisdiction means that court had no
jurisdiction with reference to the subject-matter of the proceedings or the
organisations of the court was illegal and are not covered by the three
exceptions mentioned above. The lack of jurisdictional competence of the
court was mentioned in Union of India vs. Prakash P. Hinduja129 by the
Supreme Court while referring the direction made in Vineet Naraian
case;130 the direction was:

―The Central Vigilance Commission shall be given statutory status.‖

Union Government had not complied the direction given in Vineet

Naraian and it was alleged that Union of India has thus committed
contempt of court. This allegation was rejected by saying:

“Under our constitutional scheme Parliament exercises

sovereign power to enact laws and no outside power or
authority can issue a direction to enact a particular piece of
legislation.”

These observations can be susceptible to only one meaning, namely,

that the direction in Vineet Naraian case was without jurisdiction.131

But an erroneous order has to be distinguished from an order without

jurisdiction. Such an order cannot be ignored and disobedience of such
order would constitute contempt. The remedy of party aggrieved is to
apply to the court for relief from compliance with the order.132 Whether the

129
(2003) 6 SCC 195.
130
Vineet Narain vs. Union of India AIR 1998 SC 889.
131
Supra note 56, P 292.
132
Drewry vs. Thacker (1819) 3 Swan 529.

240
order is valid or irregular unless it is vacated, it has got to be obeyed. 133
The contemners cannot judge the merits of the order which they were
required to comply with and cannot be permitted to defy the court‘s order
on the ground that the order is not correct.134

(iii) Per incurium order

If implementation of interim orders and judgments which can be said

to be per incurium gives rise to legal impediments, non-compliance with
such judgments and orders cannot be said to be deliberate and wilful
violation of orders of the court.135 In a case136 where petitioner had not
complied the direction given by the Supreme Court, contending that the
decision was rendered without noticing four other judgments of the
Supreme Court which had taken a contrary a contrary view. The two judge
Bench instead of deciding the issue as to whether the charge of contempt
could be sustained when the contemner faces the dilemma of two
contradictory views expressed by the court, opined that the matter be
placed before a Bench of three-judges for further consideration. In
principle such a defence should not be sustainable since it is based on
confusion between precedent and binding nature of an order inter partes.

(iv) Order not in knowledge

It is settled law that mere unintentional disobedience is not enough

to hold one guilty of contempt. Although contempt may be committed, in
133
Kruthiventi Kutumba Rao vs. Muthi Venkatasubba Rao AIR 1969 AP 47 at P. 53,54.
134
Anil Sharma vs. R.C. Virmani (1996) 1 ESC 456 (All).
135
Krishna Mohan Saxena vs. Mahesh Chandra Verma 2003 (6) AWC 5135.
136
Madras Telephone S/C & S/T Social Welfare Association vs. Anil Kumar 2002 (2) SCC 215,
also Bangshibadan Nandi vs. Jnan Sankar Mitra (2004) 1 Cal LT 352 (Cal), also Asim
Mukhopadhyay vs. Sourindra Nath Roy 2002 Cri LJ 3325 (Cal) (where the order is per
incurium or a nullity).

241
the absence of wilful disobedience on the part of the contemner, he will not
be held guilty unless the contempt involves a degree of fault or
misconduct. Thus accidental or unintentional disobedience is not sufficient
to justify one being held guilty of contempt.137

A person cannot be held responsible for an offence which he knows

nothing about it. In order to sustain the charge of contempt of court for
disobeying the court‘s order, knowledge of such order has to be proved
beyond all reasonable doubt and in case of doubt benefit ought to be given
to the person charged.138

If the respondent have no actual knowledge of the order but commits

an act which results in a breach of the order, they cannot be held guilty of
contempt as in such a case there is no wilful and deliberate disobedience of
the order.139 But disobedience cannot be held to be wilful unless the order
is served or at least the contemner must be shown to have the knowledge of
the order which is alleged to be contravened or violated.140

There is difference between person having notice of an order and

knowledge of the order. A Full Bench of the Calcutta High Court has, in
the instant case, held that if the order of injunction is within the knowledge
of a person otherwise, its personal service upon him is not necessary before
holding him liable for contempt for its breach.141

137
Ahmed Ali vs. Superintendent District Jail 1987 Cri L J 1845.
138
Nand Kishore Chelamal vs. Commissioner of Municipal Corporation of Delhi, AIR 1969
Delhi 137 at P. 140.
139
Mariyappa vs. V.R. Ramkrishna Rao 1999 Cri. L.J. 1378 (Karn-DB).
140
Pankaj Singh vs. Labour Commissioner, 1991 All CJ 301 at P. 302.
141
Arun Kumar Gupta vs. Jyoti Prasanna Das Thakur, 1996 (11) CNN 445 (FB).

242
 It is the duty of the party concerned to find out the proper means of
obeying the order,142 but it would be a valid defence to say that compliance
with the order was impossible, the burden of proving such impossibility
being on the person charged,143 or that in carrying out the order the person
charged would have to act contrary to law.144

If any party concerned is aggrieved by the order which in its opinion

is wrong or against rules or its implementation is neither practicable nor
feasible, it should always either approach the court that passed the order or
invoke jurisdiction of the appellate court. It cannot traverse beyond the
order. It cannot test correctness or otherwise of the order or give additional
direction or delete any direction. That would be exercising review
jurisdiction while dealing with an application for initiation of contempt
proceedings.145

Financial constraint of the State has also been considered as a

ground for dropping proceedings.146 Where the employer was unable to
comply with the High Court‘s order of clearing his employee‘s arrear
salary, on account of financial crunch, it was held that such conduct does
not amount to disobedience or circumvention more so when the petitioner
has not availed of the remedy of execution before the executing court.147
However, recently Supreme Court has observed that financial capacity of

142
A. G. vs. Walthamstow, U.D.C. (1895) 11 TLR 533.
143
Lewis vs. Pontypridd, Carephilly & Newport Rly. Co.(1895) 11 TLR 203.
144
Subir Banerjee vs. Sunil Kumar Das Gupta 1998 (3) Cal L T 98 (DB).
145
Prithawi Nath Ram vs. State of Jharkhand (2004) 7 SCC 261.
146
Government Pensioners‟ Association vs. Sashi Prakash 1999 Cri L J 3118.
147
Renumal Vershibhai Bijani vs. Bantwa Municipal Borough 2003 (1) Cri. L.J. 986 (Guj-DB).

243
Government cannot be pleaded as a ground for non-compliance with
directions of court.148

(v) Order susceptible to different interpretation

In order that a civil contempt under section 2 (b) must be made out
the order which is alleged to be wilfully disobeyed must be couched in a
clear and unambiguous language. It must not be capable of different
reasonable interpretations. In case it is not couched in clear and
unambiguous language or it is capable of more than one reasonable
interpretation, in that event no civil contempt would be made out. 149 If two
views were possible as to the effect of the court order and the respondent
acts on the basis of one of such views it cannot be said that he had
disobeyed the order. But it is only when a bona fide question of
interpretation arises that this defence will be available.150

A proceeding for contempt cannot be predicated upon the

disobedience of the order or direction which provides scope for different
reasonable and rational interpretations.151 When an order alleged to have
been violated is subject to two interpretations, it cannot be said that a
person has committed wilful disobedience of that order, if he takes a
defence of one of one of the two possible interpretations.152

(vi) Bona fide/genuine view of the order

148
All India Regional Rural Bank Officers Federation vs. Govt. of India (2002) 3 SCC 554 at P.
559.
149
Supra note 40, P. 105-106.
150
Hari Nath Sharma vs. Jaipur Development Authority, 1995 (4) SCC 251.
151
S.K. Saha vs. Gokul Chandra Dhara 1988 Cri LJ 21; applied in West Bengal Pensioners
Association vs. A.Gupta, 1996 (1) CLJ 111.
152
Abid Ali vs. J.N.Singh, Regional Manager, U.P. State Road Transport Corporation, Jhanshi
Region, Jhanshi 1992 U.P.Cr.R. 56 at Pp. 59,60, also Sardar Chanchal Singh vs. Ram Sewak
1982 ALJ 966.

244
 Non-compliance of the order due to erroneous impression on
account of misinterpreting/misunderstanding the order does not amount to
contempt. A plea of bona fide/ genuine impression of an order on
misguided legal advice as a defence to contempt has to be considered not
only in the letter of the order but also the spirit.153 There is no wilful
disobedience where the officers understood an order in a particular manner
based on the advice of an eminent counsel.154 A Division Bench of the
Guwahati High Court has held that there is no wilful disobedience if the
authority bona fide understood an order in particular manner based on the
advice of Government Advocate.155

In a case,156 petitioner challenged an order of the Govt. dated March

10, 1975 which reverted him to a lower post. The High Court on
September 17, 1975 made an order directing maintenance of status quo as
on that date till the disposal of the writ petition. The Govt. did not allow
the petitioner to join higher post from which he was reverted. The
petitioner filed a contempt application which succeeded before the learned
single judge. On appeal the Division Bench set aside the order of learned
single judge on the finding that the view taken by the Govt. (that on
September 17, 1975, i.e. the date of the status quo order, the petitioner had
been reverted to the lower post and that the status quo meant that his status
as the lower post holder should not be disturbed) was held bona fide. The
Division Bench held that in the ultimate analysis the view so taken by the
appellants may not be found to be legally sustainable but then if such a

153
Lakshman Prasad Agarwal vs. Syed Mohd. Karim JT (2002) 2 SC 429.
154
Kashinath Kher vs. Dinesh Kumar Bhagat 1997 (4) SCALE 312.
155
R.D.Srivastava vs. Suren Panging (2003) 3 ILD 849 (Gau-DB).
156
S.K. Saha vs. Gokul Chandra Dhara, 1988 Cri L J 21.

245
view was taken bona fide, it cannot be said that it amounted to wilful
disobedience of an order of the court.

(vii) Substantial compliance of the order

When the order is substantially complied with, a finding of

disobedience will not be justified.157 When the order was for ―supplying‖
the documents to the employee in a departmental proceedings it is found
from the records and affidavits exchanged that the demand of the employee
was substantially for inspection, contempt will not lie for not furnishing
copies of such documents.158

(viii) Third party to proceeding

So long as there is an order by the court which requires compliance,

not only parties but even third parties, who are not parties to the suit and
who have notice of the same, will be liable for contempt for the
disobedience to such orders or for obstructing the execution of the same. 159
But, where the person proceeded with was not a party when the order was
passed nor could have been such a party because it came into existence
subsequently it would be imprudent to initiate any contempt proceedings
against it.160

(ix) Subsequent events

157
Sukumar Mukhopadhyaya vs. T.D. Karamchandani 1995 Cri L J 1610 at P. 1612 (Cal)
(DB).
158
Pal Samaraditya, The Law of Contempt (4th ed., 2006) at Pp. 302-303, D.S.Poonia vs.
Yummnam Dimabajit Singh AIR 2003 SC 1855 for defence of substantial compliance.
159
Supra note 132.
160
Pradip Kumar Roy Chaudhary vs. State of West Bengal 2000 (2) CLJ 215.

246
 Subsequent developments may also create difficulties in
implementation. Hence, where an order had directed a person to be
attached to a particular battalion which was located at a particular place but
was subsequently shifted to another place, the refusal of the authorities to
allow a person to join at the original place will not amount to wilful
disobedience.161

In a case,162 the Allahabad High Court has held that where a

subordinate authority is required to abide by the directions issued to him
from time to time by his superior officers, then his carrying out the
direction issued by the superior officer which is inconsistent with the order
made by the court will not amount to his wilful disobedience of a court
order.

In an opposite situation, the Supreme Court has held that a Minister-

in-charge of a department cannot escape liability on the plea that he had
merely endorsed the view of the senior most officer of the department. 163

4.6.2 Defences in Criminal Contempt

(i) Truth as defence

The law of contempt has not been recognized the truthfulness or

factual correctness as the defence till the amendments made in 2006 in the
Contempt of Courts Act 1971. There are hardly any English or Indian cases
in which such defence has been admitted by the Judiciary.

161
Ashis Kumar Kundu vs. A.K.Tandan 1994 (4) SLR 319 (Cal).
162
Bansidhar Saroj vs. Partha Sarathi Sen Sharma 1999 (2) ESC 1296 (All).
163
Godavarman Thirumulpad T.N. vs. Ashok Khot (2006) 5 SCALE 361.

247
 In Perspective Publication (P) Ltd vs. State of Maharashtra,164 it
was held that the words, 'even if good faith can be held to be a defence at
all in a proceeding for contempt'.165

In Tushar Kanti Ghosh Re,166 an attempt was made by the contemner

to call evidence to prove his allegations, but the court refused to call the
witnesses and held:

"there can be no justification of contempt of court. Even

assuming that the writer of a manifesto believes all he states
therein to be true, if anything in the manifesto amounts to
contempt of court, the writer is not permitted to lead evidence
to establish the truth of his allegations".167

In Advocate-General vs. Seshagiri Rao,168 it was held that it is not

permissible to a contemner to establish the truth of his allegations as the
arraignment of the justice of the judges excites in the minds of the people a
general dissatisfaction with all judicial determinations and indisposes their
mind to obey them and that is very dangerous obstruction to the course of
justice. In our view, the contemner does not occupy the position of a
defendant in a libel action who could plead justification.169

164
AIR 1971 SC 221.
165
Emphasis supplied.
166
AIR 1935 Cal 419 (FB).
167
Emphasis supplied.
168
AIR 1966 AP 167.
169
Under the first exception to section 499 of the Indian Penal Code, 1860 it is not defamation
to impute anything which is true concerning any person, if it is for the public good. In other
words, the right to disclose truth against anyone can be allowed only for the public good.

248
 Similarly, in Kadir M.G. vs. K.N. Jaitley,170 the court held that every
attempt to justify must constitute a new offence of contempt committed in
the very face of the court. In State vs. Editors of Eastern Times and
Projatantra,171 the court held that the place of justification which is a good
defence in an ordinary action for libel cannot be applicable in an action for
contempt. An identical view was taken by the court in Md. Yamin vs. 0.P.
Bensal,172 when it held that a defence of truth or justification is not
available to the publisher of a newspaper in proceedings for the Contempt
of Court.

This shows that the Supreme Court did not lay down affirmatively
that good faith can be set up as a defence in contempt proceedings. H.M.
Seervai, celebrated authority on the Constitution of India, has opined that
as justification is a complete defence to an action for libel, it should be
complete defence to a petition for 'contempt of court'. But it has not
received unanimous judicial support in India, England, U.S.A. Canada and
Australia.173

Judicial decisions hardly supporting truth as defence in case

contemner has been proceeded under the existing provision of the

170
AIR 1945 All 67 at P. 68.
171
AIR 1952 Orissa 318 at P. 34.
172
173
1982 Cri.L.J. 322 (Raj).
Seervai HM, Constitutional Law of India (4th ed.), Vol. 1 at P. 780 expressed his views in
favour of such a defence :
"This raises the question whether truth is a defence to an alleged contempt of court if a
person, or the press allege and publish proofs of the misbehaviour of a judge. The judgments
of the Supreme Court are not in a tidy state. But a careful analysis of our Supreme Court
judgments, and judgments of English and Australian Courts, shows that truth is, and must be
a complete defence to allegations of bribery, corruption, bias and other misbehaviour of a
judge. To hold otherwise would be to nullify the provisions of Article 124(4) and (5) in a
practical sense, for few people would expose themselves to being committed for contempt in
order to bring a corrupt judge to book. Secondly, so to hold is to put the judges above the
constitution which expressly provides for the removal of a judge for proved misbehaviour."

249
contempt of court Act, but the National Commission to Review the
Working of the Constitution174 recommended introduction of 'truth' as
defence in matters of Contempt of Court, by way of amendment to the
Constitution of India. The Commission considered that a mere legislation
by the Parliament by amending the Contempt of Courts Act, 1971 alone
may not suffice, because the power of the Supreme Court and the High
Courts to punish for contempt is recognised in the Constitution.

The Commission made the following recommendations with regard

to law of contempt:

A proviso be added to Article 19(2) of the Constitution as under:

'Provided that, in matters of contempt, it shall be open to

the court to permit a defence of justification by truth on
satisfaction as to the bona fides of the plea and it being in
public interest'.

The Commission, while giving justification on the above

recommendation, observed as follows:

"Judicial decisions have been interpreted to mean that

the law as it now stands, even truth cannot be pleaded as a
defence to a charge of contempt of court. This is not a
satisfactory state of law. Article 19(1) (a) of the Constitution
guarantees to all citizens the right to freedom of speech and
expression. Article 19(2) of the Constitution saves reasonable
restrictions on the exercise of freedom. Therefore, article

174
The Commission was set up to review the working of the Constitution. The Commission
submitted its report to the Government in 2002.

250
 19(2) of the Constitution will not save any law in relation to
contempt of court, if it impinges upon the right to freedom of
speech and expression, unless the restrictions are reasonable
and are in public interest. If the restrictions that operate upon
such rights are unreasonable, they will stand annulled by the
operation of article 19(1) (a) of the Constitution. A total
embargo on truth as justification may be termed as
unreasonable restriction. It would, indeed be ironical if,
inspite of the emblems hanging prominently in the court halls,
manifesting the motto of 'satyameva jayate‟, in the High
Courts and 'yatho dharma statho jaya' in the Supreme Court,
the courts could rule out the defence of justification by truth.
The Commission is of the view that the law in this area
requires an appropriate change.”175

Thus on the recommendation of National Commission to Review the

Working of the Constitution, Contempt of Courts Act 1971, was amended
to add justification by truth as a valid defence in the contempt proceeding
if the plea taken is in public interest and bona fide.176

175
Supra note 173.
176
Section 13 has been substituted by Section 2 of the Contempt of Courts (Amendment) Act,
2006, in the following manner which now reads:
"13. 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 defence if it is satisfied that it is in public interest and the request for invoking the
said defence is bona fide."

251
 Section 13 (b) by using of the expression "the court may"177 confers
discretion on the court to permit or not to permit the defence of
justification. And this is so even if the Court is satisfied that it is in public
interest178 and that the request for invoking the said defence is bona fide.179

Before exercising the power to permit the defence to be raised the

court has to be satisfied on two counts;

(i) It is in public interest for invoking the defence; and

(ii) The request by the contemner for invoking the defence is bona
fide;180

The Court must be satisfied on both the counts mentioned above

before convicting any person on the charge of contempt.

The substituted section 13 represents an important legislative

recognition of one of the fundamentals of our values system i.e. truth. The
amended section enables the court to permit justification by truth as a valid
defence in any contempt proceeding if it is satisfied that such defence is in
public interest and the request for invoking the defence is bona fide. If a
speech or article, editorial etc., contains something which appears to be
contemptuous and Supreme Court or the High Court is called upon to
initiate proceedings under the Act and Articles 129 and 215 of the
Constitution, the truth should ordinarily be allowed as a defence unless the
court finds that it is only a camouflage to escape the consequences of

177
Emphasis supplied.
178
Emphasis supplied.
179
Emphasis supplied.
180
Dr. Subramanian Swamy vs. Arun Shourie 2014 (3) RCR (Criminal) 797.

252
deliberate or malicious attempt to scandalise the court or is an interference
with the administration of justice. 181

The clause is unlikely to achieve the object for which it has been
enacted. First, an overriding discretion has been conferred on the Court
although it is the Court against which the concerned allegation has been
made. Secondly, the substantive provision regarding satisfaction that it is
in public interest to permit is also of the court. Thirdly, it is the court which
will decide as to whether the request by the contemnor for invoking the
defence is bona fide.182

It is obvious that on each of the factors mentioned in clause (b), there

could arise serious litigative controversy in many cases. It is important to
remember that the ultimate arbiter of the question which may arise in
respect to clause (b) is the Court and a fulfilment of the conditions
mentioned in clause (b) will in substance reduce the court to the position of
an accused. The apprehension that the court, in such circumstances, may
not permits or even if it permits to invoke the defence, it would be, in the
ultimate analysis, a case of the accused trying the accuser. This would not
only be violative of the principles of natural justice but would hold up the
system in public ridicule.

(ii) Non-presence of men rea

It is a cardinal principle of criminal law that, ordinarily speaking, a

crime is not committed if the mind of the person doing the act in question
be innocent. Mens rea is a technical term, generally taken to mean some

181
Radhakrishna Kurup vs. Travancor Devaswom Board, 2010 (3) KLTSN 83 (SC).
182
Supra note 56 at P. 347. It is submitted that Delhi High Court in Court on Its Own Motion v.
MK Tayal, 2007(98) DRJ 41, brings the ineffectiveness of the amendments introduced into
the law.

253
blameworthy mental condition, whether constituted by intention or
knowledge or otherwise. No act is per se criminal; the act becomes
criminal when the actor does it with a guilty mind.

Criminal law is concerned with the behaviour of men; therefore the

physical element indicated by the word actus (the act done), the deed ,
must consist of some manifestation of physical behaviour; the mental
element indicated by the word mens (mind) must consist of some operation
of man‘s mental process. It is a principle of natural justice and of our law,
says Lord Kenyon, C.J., in Fowler vs. Padget,183 that the intent and act
must both concur to constitute the crime (actus non facit reum, nisi mens
sit rea). Thus no man be held to be guilty of crime, and therefore legally
punishable, unless in addition to having brought about a harm which the
law forbids, he had at the time a legally reprehensible state of mind.

It is reasonably clear that in contempt proceeding, lack of intention

for the deed is not a defence. However, Supreme Court in the instant
case184 has recognised ‗good faith‘ as a defence although in facts it was
found that the defence was not made out.

The definition of criminal contempt in section 2(c) of the Act does

not however refer to any mental process; it only refers to the actus rea.
However, the definition of "civil contempt" in section 2 (b) contains the
word "wilful".185

183
(1798) 7 TLR 509 (514): 101 ER 1103.
184
In re, S.K. Sundaram Suo Motu contempt Petition (Crl.) No.5 of 2000 dated December 16,
2000.
185
Chapter-2 for definition of ‗civil contempt‘ and ‗criminal contempt‘.

254
 However, it is clear from the decisions rendered after the
commencement of the Act that the same principle namely, irrelevance of
the intention of the contemner is still the law.186
In D.C. Saxena, In re,187 the Supreme Court put it plain:

"As pointed out earlier, the repeated assertions of

the petitioner that he has no personal gain in the litigation
and was actuated by public duty and laid the petitions, bear
no relevance or a defence. It is already held that in a
contempt proceeding, the motive, in other words, the mens
rea is not relevant. What would be the effect of the act or
conduct or imputation is the relevant question for decision.
It is true that in an indictable offence under penal law
generally mens rea is an essential ingredient and the burden
lies on the prosecution to prove it affirmatively. In a
contempt proceeding of summary nature, the proof of mens rea
is absolutely unnecessary188. What is material is the effect or
the tendency of the act, conduct or the publication of the
words, written, spoken or by signs or by visible
representation or otherwise and whether it scandalises or
tends to scandalise or lowers or tends to lower the authority
of the Court or prejudices or tends to prejudice or interferes
or tends to interfere with the due course of any judicial
proceedings or interferes or tends to interfere with or
obstructs the administration of justice in any other manner.

186
Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express Newspapers Bombay Pvt.
Ltd. 1988 (4) SCC 592.
187
1996 (5) SCC 216.
188
Emphasis supplied.

255
 The tendency due to the publication, whether by words;
written or spoken or by signs or by visible representation or
otherwise, of any matter the doing of any other act
whatsoever is relevant and material.”189

The plain conclusion to be drawn from the above is that in

criminal contempt the principle of strict liability applies.190

"Intention" is distinguishable concepts from "knowledge" in the

context of fixing criminal liability. An intention to commit an offence
may be inferred from knowledge, though at times intention and
knowledge merge into each other. Intention signifies purpose or desire
to bring about a contemplated result, or foresight that a certain
consequence will follow from the conduct of a man, whereas
Knowledge is the awareness of the consequences of an act. A man may
be aware of the consequences of his act, though he may not intend of
bring them about. Therefore, in the case of "intention" mental faculties
are projected in a set direction. "Knowledge" on the other hand signifies

189
Supra note 185 at P. 2502 (Para 61).
190
In UK, section 1 of the Contempt of Court Act, 1981 introduced 'strict liability rule‘ in a
limited manner :
"Section 1. In this Act 'the strict liability rule' means the rule of law whereby conduct may
be treated as a contempt of court as tending to interfere with the course of justice in
particular legal proceedings regardless of intent to do so".
It may be noted that this section refers to conduct being treated as contempt because it tends
to interfere with the course of justice in particular legal proceedings. This would seem to
exclude from its ambit conduct that is held to be contempt because of its tendency to
interfere with the course of justice as a continuing process. Such conduct continues to be
governed by common law principles. On this basis publications or other conduct said to
'scandalise the court' are unaffected of the Act, as is conduct such as victimizing witnesses
for giving evidence in a trial that had been previously conducted.

No intent is required at English Common Law.

256
a state of mental realisation with the bare state of conscious awareness of
certain facts in which the human mind remains supine or inactive.191

Any person having knowledge that the alleged act will somehow
come within the definition of contumacious activity then the person
cannot run away from the liability it fasten upon him.

(iii) Defence of public interest

It can be very well understood that defence of public interest is

made available to the contemner for a charge of publication of
contemptuous matter. If the doctrine of contempt exists for the public good
i.e. to protect the public interest in the due administration of justice then it is
conceivable that a greater public interest could outweigh it so as to justify a
publication irrespective of any prejudice that might result.192 The defence
does not appear to have been recognised in England193 although Parliament
has intervened with a qualified rule that "a publication made as or as a
part of discussion in good faith of public affairs or other matters of
general public interest is not to be treated as contempt of court under the
strict liability rule if the risk of impediment or prejudice to particular
proceedings is merely incidental to the discussion".194

4.7 Burden of Proof

The burden of proof rests upon the person who substantially asserts
the affirmative and not upon the person who denies it. Thus, the burden of
proving the allegations is on the party who alleges that the acts complained
191
Jai Prakash vs. State 1991 (2) SCC 32.
192
Borrie & Lowe, The Law of Contempt (3rd ed., 1996) at P. 171.
193
Arlidge, Eady & Smith, On Contempt (2nd ed., 1999) at P. 31.
194
Section 5 of the Contempt of Courts Act, 1981, also the interpretation of this section by the
House of Lords in A.G. vs. English (1982) 2 All ER 903.

257
of constitute contempt.195 But, the burden of proving the existence of
circumstances bringing within any of the exemptions or defences is upon
the person i.e. on contemner, who wants to bring his case within any of
such exemption or defences.

The position of a contemner is that of an accused person. Whoever

alleges that a contemner has disobeyed the orders passed by the court has
to prove this fact.196

4.8 Standard of Proof

The contempt proceedings being of a quasi-criminal nature, it has to

be established beyond doubt.197 The standard of proof in a contempt
proceeding is just like a charge in a criminal case.198 The usual standard is
that it must be beyond all reasonable doubts.199 In case there is some
reasonable doubt, the benefits must go to contemner. Lord Denning, MR in
In re, Bramblevale200 has observed;

“Contempt of court is an offence of a criminal character. A

man may be sent to prison for it. It must be satisfactorily
proved. To use the time-honoured phrase, it must be proved
beyond all reasonable doubt. It is not proved by showing that,
when the man was asked about it, he told lies. There must be

195
Deben Adhicary vs State of West Bengal AIR 1972 Cal 84.
196
Court on its own motion vs. S.N. Mathur 1976 (78) Punj LR 133 at P. 140.
197
Court on its own motion vs. Rameshwar Dayal, (1967) 69 Punj.L.R. 33 at P. 35.
198
S. Abdul Karim vs. M.P. Prakash AIR 1976 SC 859 at P. 863.
199
Also AIADMK vs. L.K.Tripathi AIR 2009 SC 1314 at P. 1329. Where it was held that, as
regards the ―standard of proof‖ be it noted that a proceeding under the extraordinary
jurisdiction of the court in terms of the provisions of the contempt of court Act is quasi
criminal, and such the standard of proof required is that of a criminal proceeding and the
breach shall have to be established beyond reasonable doubt.
200
(1970) Ch 128: (1969) 3 All ER 1062.

258
 some further evidence to incriminate him. Once some evidence
is given, then his lies can be thrown into the scale against him.
But there must be some other evidence. Where there are two
equally consistent possibilities open to the court, it is not right
to hold that the offence is proved beyond reasonable doubt.”

The Division Bench of Karnataka High Court in K. Adinarayana vs.

S. Mariyappa and others201 has held;

“The jurisdiction to make an order for contempt is, per se,

neither civil nor criminal but is sui generis, though when
proceedings attract principles of penal policy requiring the
establishment of the ingredients of the offence beyond a
reasonable doubt. No proceedings can be founded on the
alleged violation of an order which is not specific and which,
by its own terms, is of a contingent character, its directions
being dependent on other facts which are left undetermined in
the order.”

It is an essential prerequisite to a finding of contempt that the factual

aspects should have been proved beyond reasonable doubt in respect of
each element of contempt including mens rea.202 And, the benefit of doubt
will go in favour of the contemner.203

201
1984 Cr.L.J. 992.
202
In re, Supply of Ready Mixed Concrete, (1992) 1 QB 213.
203
S.Sher Singh vs. Raghu Pati Kapur AIR 1968 P&H 217.

259
 The Supreme Court has said that although the court must be satisfied
on the material before it that contempt of court was in fact committed, such
satisfaction might be derived from the circumstances of the case.204

The Supreme Court has pointed out that it is too hazardous to pass
any sentence in exercise of contempt jurisdiction on mere probabilities.205
The standard of proof sufficient to sustain conviction the charge of
contempt must be established by clear and convincing evidence pointing to
the guilt of the accused beyond reasonable doubt. The rule of mere
preponderance of evidence is considered insufficient. In proceedings for
criminal contempt as in any other criminal case the presumption of
innocence obtains, and the burden of proving guilt is placed on the
prosecution. The guilt of the person accused of having committed contempt
of court must rest on reasonable certainty. Suspicion, no matter, how
strong and speculation, howsoever, spacious must not form a basis for
conviction.206

But, Supreme Court seems to have applied the preponderant

circumstances test in the instant case.207 The Supreme Court relying, inter
alia, on the audio and video recording of the speech held that there were
preponderant circumstances,208 which taken objectively led to the
conclusion that they were infact made.

The evidence must be clear, cogent and unimpeachable and it is not

open to level charges indiscriminately by reason of grievance based on hurt

204
Bank of India vs. Vijay Transport 2000 (Supp 1) JT 391.
205
V.G.Nigam vs. Kedar Nath Gupta 1992 (4) SCC 697.
206
Jawand Singh Hukam Singh vs. Om Prakash Aggarwal, Sub-Judge, Ist Class, Jagadhari
AIR 1959 Punj 632.
207
Rajendra Sail vs M.P. High Court Bar Association 2005 (6) SCC 109.
208
Emphasis supplied.

260
feelings. The question will have to be tested not only on the basis of
affidavit evidence but also other materials by way of, e.g., video
recording.209

It will be defence for a person charged with contempt to plead that

he was faced with two contradictory orders.210 Where the authorities find
difficulties in implementation because they are of the opinion that the order
of the court is contrary to another order of the court, the proceedings are
liable to be dropped.211

It was held that order which is alleged to have been violated capable
of two interpretations, benefit of some cannot be given to petitioner so as
to fill up that lacuna and punish the respondent for contempt. Strict
interpretation must be given to contempt proceedings being punitive.212

When a witness is examined in a judicial proceeding, the

examination of the witness and his statements must be subject to the rules
of evidence laid down in the Evidence Act and it is also no doubt true that
the proceeding in contempt is a judicial proceeding. In view of the
summary nature of the enquiry, it will be correct to apply the strict rules of
evidence to this class of cases.213

But a contrary view is taken in State of U.P. vs. Radhey Shyam

Tripathi,214 where it was held that proceeding for contempt is a judicial

209
Kallol Guha Thakurata vs. Biman Bose (2005) 2 CHN 330.
210
Jayaraju N. vs. K.C. Penchalaiah 1992 Cri L J 4077 (AP).
211
Union of India vs. Madras Telephone S/C & S/T Social Welfare Association 2000 Lab IC
1834 (SC).
212
D.K. Attery vs. Kanwal Singh Mehra AIR 2009 (NOC) 2056 (Delhi).
213
Basanta Chandra Ghosh, In the Matter of, AIR 1960 Pat 430 at P. 436.
214
1983 A.Cr.R. 236 at P. 245.

261
proceeding, but in view of the summary nature of the enquiry it would not
be correct to apply the strict rules of evidence to this class of cases.

A person who had been committed to prison for contempt of court

for failure to comply with an order which fixed a specific time for
compliance could not be made subject to a further committal order for a
continuing failure to comply with the same court order. For example,
where, a person failed to comply with an order within the time specified
which had already resulted in his committal for three months‘
imprisonment, his continued failure to comply was not a breach, and it
followed that the court had no power to commit him to prison again.215

The offence of contempt is a peculiar one and the court should be

extremely careful when convicting persons of this offence to satisfy itself
that there was no intentional insult or interruption. If the circumstances
attending the shouting of slogans are consistent with the theory that there
was no intention on the part of accused to interrupt or insult the court, then
the court should accept that theory and acquit the accused.216

If the contemner is denied a reasonable opportunity of presenting his

evidence resulting in denial of natural justice, then the contempt
proceeding cannot be said to be proved.

When the orders are time bound it is obvious that it would be

implemented within the time specified unless extension is obtained or the
order has been stayed. When the court indicates that the order be carried
out expeditiously, it has to be implemented in letter and spirit. Where no

215
Kumara vs. Jalal (1996) 4 All ER 65.
216
Devendra Nath Mitra vs. Emperor 52 CWN 336 at P. 337.

262
such time limit is prescribed it should be obligatory on the part of the
authority to implement the order with least possible delay within a
reasonable period of time which could normally be a month.217

An order which was obtained by a party without placing all relevant

facts before the court, the person accused can successfully plead in a
contempt proceeding on such order that the applicant cannot take
advantage of such an order and seek punishment of the accused for its
violation.218 Again mere violation will not result in punishment if the party
obtained the order by suppressing material facts which were within his
exclusive knowledge.219

In a public function, a Chief Minister, when makes a formal speech,

an official record of the speech should generally be available. If he speaks
from a prepared text, that forms the record of what he spoke. But, whether
he speaks from a text or speaks extempore, it is unlikely that a speech
made by a C.M. on a formal occasion will not be taken down or tape-
recorded. These, then, will form the record of what the C.M. spoke.220

When the acts alleged to constitute contempt is done by an officer in

obedience of directions of a superior officer and in the discharge of their
duties, such act would not give rise to any liability for contempt.221 The
Supreme Court in D.P. Gupta vs. Parsuram Tiwari,222 held that where a
subordinate employee does anything in obedience to the direction of his

217
New Hope Granites vs. Loknath 1995 Cri L.J. 1545.
218
M. Gangadhara Rao vs. Bapurao Naidu 1998 (6) ALT 8.
219
Yogesh P. Sukhanandi vs. State of Gujarat 1997 Cri L J 497 (Guj-DB).
220
M.R. Parasher vs. Dr. Farooq Abduallah 1984 Cr.L.J. 337 at P.339 (SC).
221
K. Ashok Kumar vs. M.V. Ramanaiath 1997 (5) ALT 240.
222
(2004) 13 SCC 746.

263
superior which direction amounted to contempt of court, the subordinate
will not be guilty since he was merely carrying out the order given to him.

4.9 No Defences

(a) Innocence is no defence

The innocence of the contemner in doing the act which amounts to

contempt is no defence to the charge of contempt. It would be relevant
only for determining the punishment.223 In Pratap Singh vs. Gurbaksh
Singh,224 it was held that where the appellants were merely carrying out the
instructions contained in the circular letter; the circumstances do not afford
a defence to the charge but undoubtedly a consideration relevant to the
sentence.

(b) Protection against self-incrimination

Since the proceedings for contempt of court are not proceedings for
a criminal offence, the defence of privilege against self-incrimination would
not be applicable to documents obtained by a party under an order of court
and on the basis of which the contempt proceedings were initiated.225 The
Allahabad High Court226 and the Calcutta High Court227 have held that
protection against self-incrimination contained in Article 20 of the
Constitution is not available in contempt proceedings. This view has also

223
AIR 1945 Nag 4.
224
AIR 1962 SC 1172.
225
Garvin vs. Domus Publishing Ltd. (1989) 2 All ER 344.
226
State vs. Padma Kant Malviya AIR 1954 All 523 (FB).
227
P.C. Sen, Chief Minister of West Bengal, In Re AIR 1966 Cal 411.

264
been taken by the Supreme Court in Capt. Dushyant Somal vs. Smt.
Sushma Somal.228

A Single Judge in England, has however, held that since a fine

imposed by the court for a civil contempt was a penalty for the purposes
of section 14(i) (a) of the Civil Evidence Act, 1968, consequently the
privilege against self-incrimination incorporated in section 14(i) (a) applied
thereby enabling a party to any proceedings to refuse to answer questions,
or produce information, where to do so would expose him to a risk of
proceedings for contempt.229 Privilege against self-incrimination has been
held to be available in respect of the risk of contempt proceedings in the
action in which that privilege is invoked.230

(c) Limitation for preferring an appeal from the order has not expired

A party who is guilty of non-compliance of an order of which he

has full knowledge cannot take the defence that the limitation for
preferring an appeal from the order has not expired.231

(d) Simple filing of an appeal without stay order

A mere filing of an appeal does not automatically operate as stay

of the order under appeal and in the absence of such stay being obtained
from the appellate court or the court which rendered the order, the order
continues to be operative and non-compliance with the order in such
circumstances may amount to contempt.232

228
AIR 1981 SC 1026.
229
Bhimji vs. Chatwani, (1992) 4 All ER 912.
230
Memory Corp. Plc. vs. Sidhu (2000) 1 All ER 434.
231
Sajad Majid vs. Syed Zahoor Ahmed 1989 Cri LJ 2065 (J&K).
232
Baradakanta Mishra vs. Bhimsen Dixit AIR 1972 SC 2466.

265
 The Supreme Court in State of U.P. vs. Mohammad Nooh233 held
that the filing of an appeal might "put the decree or order in jeopardy but
until it is reversed or modified it remains effective". The court with approval
referred the observation made by Sir Lawrence Jenkins in delivering the
judgment of the Privy Council in Juscurn Boid vs. Pirthichand Lal,234 that
whatever be the theory under other systems of law, under the Indian
law and procedure an original decree is not suspended by the
presentation of an appeal nor is its operation interrupted where the
decree on appeal is merely one of dismissal. There is nothing in the
Indian law to warrant the suggestion that the decree or order of the court
or tribunal of the first instance becomes final only on the termination of
all proceedings by way of appeal or revision.

(e) Acting on legal advice

It is settled law that it is no defence in a contempt proceeding that

the contemner had acted on legal advice. 235

The fact that a party who is in breach of an undertaking has acted on

legal advice may be regarded as a mitigating circumstance but cannot be
relied upon as a matter of course as exonerating him from liability.236

But in ABL International,237 the Supreme Court accepted the

explanation of the respondent that they had not wilfully defaulted in
making the payment since they acted on the basis of legal advice.

233
AIR 1958 SC 86.
234
46 Ind App 52 : ILR 46 Cal 670 at Pp. 678 & 679.
235
All India Sugar Mills Ltd. vs. Sardar Sunder Singh AIR 1937 Cal 601.
236
Re, Mileage Conference Group of the Tyre Manufacturers' Conference Ltd.'s Agreement
(1966)2 All ER. 849.

266
(f) Application for vacating the order violated is pending

Pendency of an application filed for vacating the interim order is not

a legally permissible defence to a charge of disobedience of order made by
the court.238

(g) Bar of alternative remedy

The bar of alternative remedy is a discretionary bar. It will not

prevent the court from taking action under the Contempt of Courts Act in
appropriate cases. Thus, wilful disobedience by a husband of an order
directing him to pay maintenance pendente lite would amount to
contempt of court and the existence of a remedy of execution for recovery
of maintenance is not a bar.239

(h) Administrative inconvenience

It appears that it will be no defence in a contempt proceeding to

plead administrative inconvenience as justification for violating a court
order. In Bradbury vs. Enfield LBC,240 Lord Denning, MR said:

"I come now to the last point. Ought an injunction to be

granted against the council? It has been suggested by the
chief education officer that, if an injunction is granted,
chaos will supervene. All the arrangements have been made
for the next term, the teachers appointed to the new
comprehensive schools, the pupils allotted their places,

237
ABL International Ltd. vs. Export Credit Guarantee Corpn. Ltd. (2005) 10 SCC 495 at P.
497.
238
B. Ramakrishna Reddy vs. SBSYM Degree College 1996 Lab IC 544.
239
Sarladevi Bharat Kumar Rungta vs. Bharatkumar Shivprasad Rungta 1988 Cri LJ
558(Bom).
240
(1967) 3 All ER 434.

267
 and so forth. It would be next to impossible, he says, to
reverse all these arrangements without complete chaos and
damage to teachers, pupils and the public. I must say this: if
a local authority does not fulfil the requirements of the law,
this court will see that it does fulfil them. It will not listen
readily to suggestions of 'chaos'. The department of
education and the council are subject to the rule of law and
must comply with it, just like everyone else. Even if chaos
should result, still the law must be obeyed."

Bradbury's case has been noted with approval by the Supreme

Court in B. Prabhakar Rao vs. State of Andhra Pradesh. 241 But it may be
argued that the Bradbury principle is a relevant consideration while
granting an injunction and is not concerned with the question relating to
justification for not implementing an order.

(i) Subsequent compliance

Subsequent compliance with an order or undertaking will not

confer immunity for past disobedience.242 In Chhaganbhai Norshinbhai
vs. Soni Chandubhai Gordhanbhai, 243 the defendant tenant
surrendered possession in terms of the undertaking given in January,
1973 after the initiation of contempt proceedings (for violation of the
undertaking) in 1974. The Supreme Court observed:

"It is true that the defendant appellant surrendered

possession after the initiation of contempt proceedings in

241
AIR 1986 SC 210
242
Phonographic Performance Ltd vs. Amusement Caterers (Peckhan) Ltd. (1964) Ch 195.
243
1976 (2) SCC 951.

268
 1974. But that made no difference to the initial wrong
committed."

But the Supreme Court in Kameshwar Prasad Sharma vs. State

of Bihar244 has dropped proceedings applying substantial compliance
principle, where the Court found that its earlier directions in a Public
Interest Litigation on the State of Bihar for rehabilitation of families of
bonded labourers and various other directions had been substantially
complied with.

But subsequent compliance theory will not be applicable where an

undertaking had been given by way of consent terms and the quantification of
the amount payable was known to the respondent.245

(j) Subsequent statutory intervention/change in law

Our Constitutional scheme, gives ample power to legislature to

alter the decisions of the courts through bringing changes in the statute,
obviously subject to basic structure of the Constitution. A court decision
must always bind unless the conditions on which it is based are so
fundamentally altered that the decision could not have been given in the
altered circumstances.

It is to be noted that the Contempt of Courts Act, 1971 does not

imply enlargement of scope of contempt.

Section 9 of the Contempt of Courts Act, 1971 states that nothing

contained in this Act shall be construed as implying that any

244
1993 (3) SCC 19.
245
Santhosh Dattaram Nadkarni vs. The New India Industries Ltd. (2004) 2 Mh LJ 931.

269
disobedience, breach, publication or other act is punishable as contempt of
court which would not be so punishable apart from this Act.246

This section has been enacted also by way of abundant caution and
particularly because of the established principle that categories of contempt
are not closed by definition. The section is mainly intended to emphasise
that this Act is not to imply enlargement of the scope of contempt as per
prior and existing law. In other words any disobedience, breach,
publication or other act which was not punishable prior to 1971, this Act
must not be construed so as to render those or any of them as contempt of
court. This is apparent from the fact that the object of this Act is to define
contempt and to state what is not contempt (Sections 3 to 7) so that the
defences open to a contemner under the 1971 Act have increased and
punishable contempt are now far less. If by construction of the provisions
of this Act two views are possible, and by one view the impugned act is
contempt and that view was not the law prior to 1971, then section 9 directs
that the other view may be accepted as that would help in not enlarging the
scope of the law of contempt.

(k) The order is not correctly recorded

The general principle is that if a party wants to say that an order has
been wrongly recorded, then he must apply to the court for rectification of
the record. Hence it is no defence in a contempt proceeding to plead, for
example, that an undertaking was wrongly recorded.247

(l) Party to an order cannot disobey in another capacity

246
Section 9, of the Contempt of Courts Act, 1971.
247
Howrah Parcel (Eastern Railway) Labour Contractor Mazdoor Panchayat vs. Union of
India 1992 (2) ICC 386.

270
 It is submitted that only the party who was directed to follow the
direction of the court is to be punished and not any other, even if he takes
the liability upon him.248

Where, however, contempt of court is committed by a person, then

merely because someone takes the responsibility for the contempt
committed by the former, it is no ground in law to absolve him, or to
decline to take notice of the former‘s guilt.249

(m) Merits of the dispute in the main proceedings

Where by an undertaking or order a defendant is required to refrain

from "infringing the plaintiffs copyright", it means the copyright which the
plaintiff claims to have and requires the subsistence and ownership of the
copyright to be assumed, in other words, it is not open to, a party to argue
the merits of the primary dispute in the main proceedings in proceedings for
contempt.250

Similarly where an order protecting daily wage earners from

displacement has been passed and is in operation, the court cannot be
invited to embark upon an exercise of ascertaining whether they were
genuine or not and the contention that the court would subsequently
conclude that the petitioner's claim is baseless and the order would be
eventually vacated, cannot be entertained.251

248
Subodh Gopal vs. Dalmia Jain & co. AIR 1951 Pat 266.
249
E.T.Sen vs. E.Datala Narayan AIR 1969 Delhi 201.
250
Spectravest Inc. vs. Aperknit Ltd. (1998) FSR 161.
251
Municipal Corporation of the city of Ahmedabad vs. New Shorock Spinning and Weaving
Co. Ltd. AIR 1970 SC 1292.

271