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DEFENSES AVAILABLE IN CONTEMPT PROCEEDINGS

A person facing contempt proceedings can raise several defenses under Contempt of Courts Act, 1971.

INNOCENT PUBLICATION AND DISTRIBUTION

Section 3 of the Contempt of Courts Act, 1971 provides that a person will not be guilty of Contempt of Court if he has published matter which interferes with or obstructs or tends to obstruct the course of justice in any  civil or criminal proceedings if such person has reasonable ground of believing that matter was not pending before the Court. If no judicial proceedings are pending, such person will not be liable for contempt. Such person will also not be liable for contempt if he has reasonable ground for believing at the time of distribution that publication does not have any material which may interfere with administration of justice.

The Supreme Court in Rachpadi Suba Rao Vs Advocate General AIR (1981 SC751) held that  Criminal Contempt covered under Section  2 (c) (ii) and (iii) of Contempt of Courts Act, 1971  are only covered Section 3. Scandalization of Court or lowering the authority of court under as defined under  Section  (2) (c) (i) is not covered under Section 3. As such in cases of scandalization of Court or lowering the authority of Court defense available under Section 3 cannot be taken.

FAIR AND ACCURATE REPORTING OF JUDICIAL PROCEEDINGS

Section 4 provides that a person will not be liable for contempt for fair and accurate reporting of judicial proceedings. Reporting may not be word perfect but it should be fair representation of what has happened in Court.

FAIR CRITICISM

Section 5 provides that a person will not be guilty of contempt of court for publishing any fair comment on merits of the case, which has been heard and finally decided. Such criticism should be on merits of the case and should not impute any ulterior motive to judges. Such criticism should come from persons having knowledge in law and not from a litigating party, who has lost the case.

The Supreme Court in Perspective Publications (Pvt.) Ltd. Vs State of Maharastra (AIR 1971 SC221 )  held that it is open for anybody to express fair, reasonable and legitimate criticism of any act or conduct of a judge in his judicial capacity. A distinction should be made between a mere libel or defamation of a judge and what amounts to a contempt of  court. The test will be whether publication is a mere defamatory attack on judge or whether it is calculated to interfere with the due course of justice or proper administration of law.

COMPLAINT AGAINST PRESIDING OFFICERS

Section 6 provides that a persons will not be guilty of contempt of court in respect of any statement made by him by way of complaint in good faith concerning a presiding officer of the subordinate court to High Court or Court to which such presiding officer is subordinate to.

PUBLICATION OF IN CAMERA OR IN CHAMBER PROCEEDINGS

A person will not be guilty of contempt of court for publishing in camera or in chamber proceedings except in following cases:

  • Where publication is contrary to the provisions of any enactment for the time being in force
  • When Court on ground of public policy or otherwise prohibits publication of court proceedings
  • When Court sits in chambers or in camera connected with public order or the security of state
  • When information relates with secret process, discovery or invention

TRUTH AS DEFENSE

In the past Courts were reluctant to accept truth as defense in contempt proceedings. Section 13 was amended in 2006 to provide that the Court may permit truth as defense if Court is satisfied that publication is in public interest.  Further such defense should be raised bonafide. It is evident from the amendment that truth as defense has been introduced with limitations. The Court has discretionary power to permit such defenses only in cases of public interest.

The Supreme Court in   Indirect Tax Practitioners Association Bangalore Vs R. K. Jain  (2010) 8 SCC 281  held that truth as valid defense should be allowed. In this case R. K. Jain has written article related with malfunctioning of CEGAT and CESTAT. The Supreme Court held that article was based on facts and would not amount to contempt of court.

In Court on its own motion vs M K Tayal (2007) 98 DRJ 41 , an article was published in Mid Day claiming that retired Chief Justice Y.K. Sabharwal has passed order in matters related with sealing of commercial property in residential area benefiting his sons. Truth as defense was raised by the contemnors but was not permitted in this case.

The Supreme Court in Re. Prashant Bhushan   ( Suo Motu Petition Crl. No. 1 of 2020 )  rejected defense of truth as the Supreme Court found that publication is neither in public interest nor bonafide.

CONTEMPT OF COURT AND RIGHT TO INFORMATION

Article 19 (1) (a) grants every citizen right to freedom of speech and expression. But this right is not absolute and is subject to reasonable restrictions given under Article 19 (2). One of  the grounds under which reasonable restrictions can be imposed is contempt of courts.

The Supreme Court in E.M.S Namboodiripad Vs T . N Nambiar ( AIR 1970 SC 2015) held that Freedom of speech and expression will always prevail except where contempt is manifest, mischievous or substantial. Freedom of speech goes far but not far enough to condone a case of real contempt of court.

The Supreme Court in Re Arundhati Roy (AIR 2002 SC 1375 ) held that  if a citizen in the garb of exercising right of free expression under Article 19 (1) tries to scandalize the court or undermine the dignity of the court, then the court would be entitled to exercise power under Article 129 or Article 215 as the case may be.

The Supreme Court again in Re Prashant Bhushan (Suo Motu Petition Crl. No. 1 of 2020) reiterated that though a fair criticism of judgment is permissible in law, a person can not exceed the right under Article 19 (1) (a) to scandalize the Court.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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