Considered the most serious of offences, contempt of court, despite the magnitude of its implications, has rather excessively modest terms of punishment. Section 12 of the Contempt of Courts Act, 1971 prescribes a maximum period of six months of simple imprisonment or detention in civil prison and/or a maximum fine of Rs. 2,000/-. Compared to the offences of computer hacking, which prescribes imprisonment of up to 3 years and a fine of up to Rs. 1,00,000/-[1] or defamation which prescribes simple imprisonment of up to 2 years[2], contempt of court is made to look like a trivial offence which one could get away with by a meager fine of Rs. 2,000/- or in serious cases, a maximum simple imprisonment of 6 months.

However, contempt of court is not an unserious affair and the punishment is nowhere close to being commensurate with the graveness of it. Lord Denning, in Morris v. Crown Office[3] remarked:

The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society.

While it has been rightly argued and accepted that Courts should not be over-sensitive to criticism and while strict punishments are best avoided in cases of criminal contempt, there is no justification for the same restraint to be extended to instances of civil contempt. For example, in State Bank of India v. Dr. Vijay Mallya[4], the contemnor was ordered to pay a fine of just Rs. 2,000/- and serve a prison term of four months, for a contemptuous disbursement of $40 million.

In fact, the meager fine amount often compels Courts to impose prison terms in cases where it can be avoided, as could be seen in Rashmi Sehrawat v. Praveen Sehrawat[5], where the Delhi High Court observed:

This Court has considered that mere imposition of fine of Rs. 2000/- would not meet the ends of justice, and that the sentence of imprisonment is necessary considering the facts that arrears owed by Respondent are far in excess of fine imposed, and the fact that he has deliberately, willfully, intentionally and defiantly disobeyed the directions issued to him by the Trial Court, as upheld by the Appellate Court and by this Court, despite grant of opportunities.

The question that then needs to be asked, in the interests of humanity, is whether an increase in the fine amount could save multiple contemnors from prison terms?

Another conundrum faced in contempt proceedings is the manner in which the negation of mens rea as an essential ingredient for contempt is reconciled with the interpretation of willful disobedience as is used in Section 2(b) of the Act to define Civil Contempt.

In Sahdeo Alias Sahdeo Singh v. State Of Uttar Pradesh And Others[6], the Supreme Court described contempt proceedings as being quasi-criminal in nature and proclaimed that the standard of proof required in the same would be equal to that of a criminal proceeding. The Supreme Court, has, on several occasions acknowledged that mens rea is not an essential ingredient in quasi-criminal proceedings. For example, in State of Maharashtra v. Mayor Hans George[7], the Supreme Court quoted Channell, J. who observed that:

…there are exceptions to this rule in the case of quasi-criminal offences, as they may be termed, that is to say, where certain acts are forbidden by law under a penalty, possibly even under a personal penalty, such as imprisonment, at any rate in default of payment, of a fine; and the reason for this is, that the legislature has thought it so important to prevent the particular act from being committed that it absolutely forbids it to be done; and if it is done the offender is liable to a penalty whether he had any mens rea, or not, and whether or not he intended to commit a breach of the law.

The principle laid out above is consistent with the view that mens rea is not as essential ingredient in contempt proceedings. The Supreme Court has held that the proof of mens rea in contempt proceedings is absolutely unnecessary, [8], and as has already been established, the quasi-criminal nature of contempt proceedings does not necessitate the presence of mens rea. However, the problem arises in the way the Act defines Civil Contempt in Section 2(b). The Act states:

(b) 'civil contempt' means willful disobedience to any judgment, decree, direction, order, writ or other process of a court…

The question then arises that if willful disobedience constitutes civil contempt and that if it needs to be proved that the said disobedience has been committed by the will of the person, how can mens rea be disregarded as an unnecessary ingredient in contempt proceedings? The Andhra Pradesh High Court, in V.C Govindaswami Mudali v. B. Subba Reddy[9], gave the following explanation:

14. For purposes of judging 'civil contempt' intention or mens rea is therefore not relevant even under the 1971 Act in India. The question is only whether the breach was on account of wilful disobedience i.e, whether it was not casual or accidental and unintentional.

This view has also been upheld by the Telangana High Court[10], however, it is difficult to distinguish an act that would not be casual, non-accidental and intentional from one that would entail mens rea. In fact, even in the above Andhra Pradesh High Court judgment, the Court had established that there was undoubtedly willful disobedience on the part of the respondents because their acts could not have been said to be casual, accidental or unintentional and then proceeded to state:

In fact, on the facts of this case I am prepared to hold that even if intention or mens rea is to be established, the same is also established as against respondents 3 to 7 beyond reasonable doubt. I therefore hold respondents 2 to 7 guilty of civil contempt.

Can it really be then said that willful disobedience does not entail mens rea when the former clearly leads to the latter? If a person commits an act of contempt unintentionally, he is being deprived of the defense that there was no mens rea in the commission of the said act.

It is because of these oblique distinctions that even High Courts tend to use the terms willful disobedience and mens rea interchangeably despite multiple judgments having been passed that render the requirement of mens rea redundant. For example, in Yogesh Waman Athavale v. Vikram Abasaheb[11], the Bombay High Court stated:

It has been held by this Court that whether it is a civil contempt or criminal contempt, the quintessence, is, that the breach must be a willful breach or willful disobedience or replete with mens rea.

Similarly, in Pearey Lal & Sons Pvt. Ltd v. Dabur India Ltd., the Delhi High Court observed:

13. As long as there is the requisite mens rea, willfulness gets attracted ipso facto. When an action is taken with the requisite intention to accomplish an act, the act becomes a willful act.

It can, therefore, be observed that there is a certain degree of contradiction among High Courts as to the requirement of mens rea. However, such is not the case with English Courts; where there seems to be a common understanding that the criminal standard of evidence in contempt proceedings requires mens rea on the part of the contemnor to be established. For example, the United Kingdom Supreme Court in Her Majesty's Attorney General v. Crosland[12] stated:

28. So far as the mens rea of a criminal contempt of court is concerned, we are satisfied to the criminal standard that the respondent's breach of confidentiality was deliberate and in breach of a court order of which the respondent was well aware.

Similarly, in Perkier Foods Ltd v. Halo Foods Ltd[13], the England and Wales High Court (Queen's Bench Division) stated:

14. …Contempt of court, whether criminal or civil, was at common law a misdemeanor… That, together with the fact that its potential consequences include imprisonment and other penal sanctions, is why its elements must be proved to the criminal standard. In Sectorguard, Briggs J reasoned that a person who has no choice, because compliance with the order is impossible, does not have even the modest mens rea required for contempt. It is for the applicant to prove to the criminal standard that the respondent had the necessary mens rea.

It is for these reasons that an Amendment to the Contempt of Courts Act, 1971 is imperative. Firstly, to bring about an exponential increase in the fine amount and secondly, to clarify whether mens rea qualifies as an essential ingredient for the offence of contempt or not. Ideally, in order to eliminate the confusion between willful disobedience and mens rea, lawmakers should recognize the two as complementary to, or co-existent of, each other.

End-Notes:

1. Section 66B of the Information Technology Act, 2000
2. Section 500 of the Indian Penal Code
3. 1970 1 All ER 1079
4. 2022 SCC ONLINE SC 826
5. 2023 SCC ONLINE DEL 2043
6. 2010 SCC 3 705
7. 1965 AIR SC 722
8. 1996 AIR SC 2481
9. 1986 SCC ONLINE AP 31
10. Syed Mahmood, v. T.Vijay Kumar. CC/1319/2019
11. 2020 SCC ONLINE BOM 3443
12. [2021] UKSC 15
13. [2019] EWHC 3462 (QB)