The Law of Contempt is quasi-criminal and it results in penal consequences. Therefore, it becomes a matter of necessity that a person against whom proceedings for contempt have been initiated must be armed with certain defences.
The defences available to a contemnor have been engrafted in section 3 to section 8 and section 13 of Contempt of Court’s Act, 1971. The defences are divided into civil and criminal defence.
Defenses in Civil Contempt:
1. Disobedience or breach of the undertaking was not willful.
In civil contempt the following preconditions are necessary:
- There must be judgment, order, decree, direction, writ or an undertaking given to the court.
- There must be disobedience to such judgment etc. on breach of undertaking.
- Disobedience must be willful.
If the contemnor proves that there was no willful disobedience or the breach, he may be absolved from liability of civil contempt. The court is free to presume the intention of the person through his act. It is upon the court to decide whether there was a breach of any undertaking given to the court, which was willful or not.
2. The order has been passed without jurisdiction.
If the order disobeyed is proved to have been passed by a court without jurisdiction or if there has been any kind of violation, been proved but under no jurisdiction, the same would amount to contempt. The order passed without jurisdiction is void and void orders binds nobody. The burden to prove that the court which has passed the order had no jurisdiction to pass, lies on the person who alleges it.
3. Order disobeyed is vague and ambiguous.
It would be a defense in contempt proceedings that the order is vague and ambiguous. An order is considered vague if it was not specific and complete. For initiating contempt proceedings for disobeying, the order is required to be specific and complete because a contempt petition based on the implication of the order is not likely to succeed.
A person may take the plea that the terms of the order are ambiguous. The court had made it clear that if the direction in order of court depends on certain other facts and such facts are left undefined by the order, the order will be taken as ambiguous and its violation will not amount to contempt of court.
4. Order involves more than one reasonable interpretation.
If the court’s order involves more than one reasonable and rational interpretation and the respondent adopts one of them and acts by such interpretation, he can’t be liable for contempt.
5. Compliance with the order is impossible.
If the contemnor can prove that the order for compliance is impossible to comply with due to many reasons, he will not be liable for contempt of court. It can be stated that order is not practically possible to be executed due to parity of time or circumstances beyond the control.
6. No knowledge of the order.
A person can’t be held guilty of contempt in infringing an order of a court of which he knows nothing or where an order of status quo is passed by the court but the party continues the work before receiving the order and also he has no actual knowledge of order, he will not be liable.
Similarly, if the court passes an order, requiring a party to do a specific action within the time specified but the order is served to the party after the expiry of the time so specified, non-compliance with the order will not amount to contempt. If a person concerned deliberately evades service of the order, he can’t escape liability on the ground that the order was not formally served on him.
7. Alternative Remedy available.
Since contempt jurisdiction is an extraordinary one, it should not be used whenever an alternative remedy is available.
Defenses in Criminal Contempt:
- Innocent publication and distribution of matter.
Section 3 enumerates defences available to contemnor about some publication or distribution of such publications. Some comments or matters that may interfere or tend to interfere with the process of justice or obstruct or tend to obstruct the course of justice in connection with any civil or criminal actions pending at the time of publication are immune from prosecution.
However, if the publisher had no reasonable reasons to believe that the proceeding was underway at the time of publication, the publication is defined as “innocent” by this section.
- Fair and Accurate report of judicial proceedings.
Section 4 provides that a person shall not be guilty of contempt of court for publishing a fair and accurate report of judicial proceedings or any stage thereof. It is a general rule that the administration of justice should be open and public.
This principle is based on public interest considerations. Consequently, must give way when public interest indicates the degree of privacy. This provision is subject to the provisions contained in Section 7 of the said Act.
Publication of proceedings held in chambers or camera: (Section 7)
The right to publish fair and accurate reports of judicial proceedings is limited to generally those judicial proceedings which are conducted in open court. However, this right doesn’t extend to the proceedings held in Chambers or camera. But there are certain exceptions according to Section 7(1):
- Where publication is contrary to provisions of any enactment for time being in force.
- Where the court, on the ground of public policy, or in the exercise of any power vested in it, prohibits the publication of all information relating to proceedings or of information of description which is published.
- Where the court sits in Chambers or camera for reasons connected with public order or security of the state, publication of information relating to those proceedings.
- Where information relates to secret process discovery of invention which is an issue in proceedings.
- Fair Criticism of Judicial Act.
Section 5 describes that fair criticism of judicial action is not contempt. This section 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.
In the case of Arundhati Roy, the Supreme Court held that fair criticism of the conduct of a judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and in public interest.
Conditions of fair comment:
- It must be based on facts truly stated. No comment is fair if it is based on a mistake of fact.
- Must not contain imputation of corrupt motives on the person whose conduct is criticized.
- It must be an honest expression of the writer’s real opinion.
- Bonafide complaint against presiding officers of the subordinate court
Bonafide complaints against the presiding officer of the subordinate court can be made under Section 6. It provides that a person shall not be guilty made by him in good faith concerning a presiding officer of any subordinate court to any other subordinate court or High court to which it is subordinate.
- The defence of truth in criminal contempt proceedings
If the Court is persuaded that justification by truth is in the public interest and the request for invoking the defence is bonafide, Section 13 of the Act allows the Court to allow it as a viable defence in any contempt proceedings. The truth should normally be accepted as a defence unless the court determines that it is really a ruse to avoid the consequences of a deliberate attempt to scandalize the Court.