Even if mens rea or guilty mind is not required to punish for contempt of court, the act alleged must be willful before a person is convicted for contempt.
Contempt of court by disobedience:
Contempt of court is the established, if unfortunate, name given to the species of wrongful conduct which consists of interference with the administration of justice. It is an essential adjunct of the rule of law. Interference with the administration of justice can take many forms. In civil proceedings one obvious form is a wilful failure by a party to the proceedings to comply with a court order made against him. By such a breach a party may frustrate, to greater or lesser extent, the purpose the court sought to achieve in making the order against him.
Sometimes the purpose a court seeks to achieve in making an order against a party to proceedings may be deliberately impeded or prejudiced by the conduct of a third party. This may take more than one form. The third party may be assisting, that is, aiding and abetting, a breach of the order by the person against whom the order was made. Then he is an accessory to the breach of the order.
Aiding and abetting a breach of the order by the person specifically restrained by the order is not always an essential ingredient of ‘third party’ contempt. The purpose of a court in making an order may be deliberately frustrated by a third party even though he is acting independently of the party against whom the order was made. An interlocutory order for the non-disclosure of information is the paradigm example of the type of order where this principle is in point. The Spycatcher litigation is the best known recent instance of this. It is a contempt of court by a third party, with the intention of impeding or prejudicing the administration of justice by the court in an action between two other parties, himself to do the acts which the injunction restrains the defendant in that action from committing if the acts done have some significant and adverse affect on the administration of justice in that action.
For the defendant to be guilty of contempt of court, the Attorney General must prove that they did the relevant act (actus reus) with the necessary intent (mens rea).
[Source: Attorney General vs. Punch Ltd. (HL)]
Freedom of speech and National Security
Security Service is not entitled to immunity from criticism. In principle the public has a right to know of incompetence in the Security Service as in any other government department. Here, as elsewhere where questions arise about the freedom of expression, the law has to strike a balance. On the one hand, there is the need to protect the nation’s security. On the other hand, there is a need to ensure that the activities of the Security Service are not screened unnecessarily from the healthy light of publicity. In striking this balance the seriousness of the risk to national security and the foreseeable gravity of the consequences if disclosure occurs, and the seriousness of the alleged incompetence and errors sought to be disclosed, are among the matters to be taken into account.
The rule of law requires that the decision on where this balance lies in any case should be made by the court as an independent and impartial tribunal established by law. Clearly, if a decision on where the balance lies is to be effective, the court must be able to prevent the information being disclosed in the period which will necessarily elapse before the court is in a position to reach an informed decision after giving a fair hearing to both parties to the dispute. Once public disclosure occurs confidentiality is lost for ever. If disclosure were permitted to occur in advance of the trial serious and irreparable damage could be done to national security.
[Source: Attorney General vs. Punch Ltd. (HL)]
Standard of proof in contempt case:
The standard of proof required to establish a charge of ‘criminal contempt’ is the same as in any other criminal proceeding. It is all the more necessary to insist upon strict proof of such charge when the act or omission complained of is committed by the respondent under colour of his office as a judicial officer. Wrong order or even an act of usurpation of jurisdiction committed by a judicial Officer, owing to an error of judgment or to a misapprehension of the correct legal position, does not fall within the mischief of “criminal contempt”. Human judgment is fallible and a judicial Officer is no exception. Consequently, so long as a judicial Officer in the discharge of his official duties, acts in good faith and without any motive to defeat, obstruct or interfere with the due course of justice, the courts will not, as a rule punish him for a “criminal contempt”. Even if it could be urged that mens rea, as such, is not an indispensable ingredient of the offence of contempt, the courts are loath to punish a contemner, if the act or omission complained of, was not willful.
(Source: S. Abdul Karim v. M.K. Prakash, 1976 CrLJ 641: AIR 1976 SC 859: 1976 CAR 124: 1976 CrLR (SC) 102: 1976 Ker LT 184: 1976 SCC (Cr) 2170)
A question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. It behaves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished. It must be realised that our system of courts often results in delay of one kind or another. The remedy for it is reform and punishment departmentally. Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one’s duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged.