Contempt of court and media

- R.Sangeetha*

Introduction

The object of conferring power to punish for the contempt on courts under Contempt of
Courts Act 1971 is to ensure that rendering justice shall be free from forces outside and no
one shall interfere with the administration of justice. Contempt action is a tool to be used to
uphold the dignity of the courts. Judiciary has been given the function of being a guardian of
the Constitution. In this process of adjudication many questions of law flow onto the Court of
law for its consideration and decision.

During this subjudice period the administration of justice should be allowed to take its own
independent stand. Interference into this process is limited only to cases of fair comment of
the case in Court. Investigation by press has changed the course of law in many cases and
Damages are caused to private persons due to interference by media. The media must be to be
properly regulated by the courts. The media cannot be granted a free hand in the court
proceedings as they are not some sporting event. The law commission also has come up with
a report.

Contempt of court: definitions

The Contempt of Courts Act of 1971 is one of the most powerful statutes in the country. It
gives the constitutional courts wide powers to restrict an individual’s fundamental right to
personal liberty for “scandalising the court” or for “wilful disobedience” of any judgment,
writ, direction or order. The offence of “scandalising the court” continues in India even
though it was abolished as an offence in England and Wales long ago.

Section 2(a) of the Contempt of Courts Act of 1971 defines contempt of court as civil
contempt or criminal contempt; it is generally felt that the existing law relating to contempt
of courts is somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish for
contempt touches upon two important fundamental rights of the citizens, namely, the right to
personal liberty and the right to freedom of expression. It was, therefore, considered
advisable to have the entire law on the subject scrutinized by a special committee.

**
R.Sangeetha,Vit school of law,Chennai.
Contempt proceedings are categorized as civil or criminal, and direct or indirect. Criminal
contempt has further been divided into three types:

 Scandalizing
 Prejudicing trial, and
 Hindering the administration of justice.

Under Section 12 of Contempt of Court Act, 1971, a contempt of court can be punished with
simple imprisonment for a term which may extend to six months, or with fine which may
extend to two thousand rupees, or with both. An accused may be discharged or the
punishment awarded may be remitted on apology being made by the accused to the
satisfaction of the court1. An apology is not supposed to be rejected merely on the ground that
it is qualified or conditional if the accused makes it bona fide.

Constitutional provisions:

The Supreme Court has long back had established that freedom of speech of the press is not
without limitations. It stated that it does not confer an absolute right to say anything. In the
opinion of the court it is a right with responsibility. Art. 19(1)(a) of the Constitution of India
guarantees freedom of speech and expression and Art. 19(2) permit reasonable restrictions to
be imposed by statute for the purposes of various matters including ‘Contempt of Court’.
Art.19 (2) does not refer to ‘administration of justice’ but interference of the administration
of justice is clearly referred to in the definition of ‘criminal contempt’. Therefore,
publications which interfere or tend to interfere with the administration of justice amount to
criminal contempt under that Act and if in order to preclude such interference, the provisions
of that Act impose reasonable restrictions on freedom of speech, such restrictions would be
valid.

Contempt of Court proceedings, apart from the above restrictions, is also protected under
Article 1292 and 2153 of the Indian Constitution. Under these Articles, Supreme Court and
High Court can respectively punish persons for contempt of Court.

1
Dulal Chandra v. Sukumar AIR 1958 Cal 474
2
Article 129: The Supreme Court shall be a Court of record and shall have all the powers of such a Court
including the power to punish for Contempt of itself.
3
Article 215: Every High Court shall be a Court of record and shall have all the powers of such a Court including the power
to punish for Contempt of itself.
However with the Contempt of Court amendment Act 2006, ‘Truth’ has been made expressly
a defence for any contempt proceedings4. The court in cases where truth is pleaded as a
defence would have to look into the facts and determine as to whether this publication of
truth has any public interest connected to it or is it simply for commercial gain of the press
and as to whether this exposure of the truth was done with bonofide interest to expose
something which the public have a right to be informed of in the public interest. 5 Only if truth
is qualified with public interest and is bonofide, can it be invoked as a defense in contempt
proceedings. At the same time there is difference between truth as a defense and fair &
accurate report of judicial proceedings. Fair criticism of judicial proceedings and fair
reporting does not constitute contempt of Court.

Under section 3, a person is not guilty of Contempt of Court if he has published any matter
which interferes or tends to interfere or obstructs or tends to obstruct the course of justice in
connection with any civil or criminal procedure pending at the time of publication, if at that
time he had no reasonable grounds for believing that the proceeding was pending. 6 Thus it
protects a person from contempt of court proceedings if it is done in ignorance of a pending
suit. The section further explains that judicial proceeding shall be deemed to be pending,
where appeal or revision in the case is possible in future. All the same, it is not deemed to be
pending if proceedings for the execution of the decree, order, or sentence passed therein are
pending.

Fair and accurate report

Section 4 of the Act states that there is no Contempt of Court when the press or media
publish a fair and accurate report of a judicial proceeding but subject to the provisions
contained in section 77. But when the editor and / or publisher do not verify the correctness of
the news item before publication and if it is found to be false, then they are guilty8

4
The Contempt of Courts (Amendment) Act, 2006 section 13 (substituted) (3). The Court may permit in any proceeding
for Contempt of Court, justification by truth as a valid defense if it satisfied that it is in public interest and the request for
invoking the said defense is bonafide.
5
ibid
6
The Contempt of Court Act, 1971, section 3
7
The Contempt of Court Act, 1971 , section 7- deals with in camera proceedings which should not be published – (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 expressly prohibits the publication. (c) Where the Court sits in chambers or in camera for reasons connected
with public order or security of the state. (d) Where the information relates to a secret process, discovery or invention.
8
jaswant singh v virender singh 1995 supp (1) scc 384
Rathore’s case9 was a good example in which the media interfered only after the verdict of
the Court. The act of the media was appreciated for moving in favour of Ruchika Girhotra,
who he molested in 1990. In a discussion in Times Now channel, leading criminal lawyer
Mahesh Jethmalani stated that in Rathore’s case there was no media trial. In a similar
programme on NDTV, the Chief Justice of India, Justice K.G.Balakrishnan reflected his
views on Media Trial. He stated that media is only selecting some cases and neglecting the
cases of poor people. He stated that this should not be the way the media should function.

Police interference:

The main source of information for the media is police. This could however be misleading in
many cases. The Delhi High court stated in one case that the latest trend of police, CBI or any
investigating agency is to encourage publicity by holding press conference and
accompanying journalists and TV crews during investigation of a crime. The Court stated that
this needs to be stopped as it creates risk of prejudice to the accused. After giving publicity
and holding the person guilty in the eyesof the public, the police or the CBI go into soporific
slumber and take several years for the trial. In the meantime the person caught moves under
the shadow of guilt, which goes contrary to the law that is man is not guilty till his act is
found guilty by the Court of Law. Media’s argument is that this pseudo trial is done in public
interest.

Contempt of court and social media

Committing contempt of court is arguably the most serious legal risk for journalists and also
for non-journalists who share unsafe material on social media. It can result in a very large
fine or even prison, as well as potentially causing the collapse of a trial as has happened.
Deliberately committing contempt say, by breaching an injunction or other reporting
restrictions would be to undermine justice.

ON December 5, a full Bench of the Karnataka High Court, comprising Justices T.S. Thakur,
H.L. Dattu and V.G. Sabhahit, suo motu initiated criminal contempt of court proceedings
against 56 persons from 14 newspapers and magazines for reportage that "scandalised the
image of the judiciary”. The reporting pertained to a recent "sex scandal" at a resort in
Mysore, in which a group of High Court judges were allegedly involved.

9
The New Indian Express, (Cochin) 6th January 2010
Contempt of court - still relevant in the age of new media

In the age of Twitter, Facebook, and Instagram, the idea that all possible information might
not be immediately made available to the world at large seems quaint. Indeed, the first
instinct of many people on reading that a court has suppressed an accused’s name, or some
information about the offending, is to search online to see if they can find out the details they
were told they cannot have.

A recent case from Australia may cause reporters and media organisations to take another
look at their systems where they allow information to be published to very tight timeframes,
and to give such actions a second thought.

The Supreme Court of Victoria has just fined Yahoo! Of $300,000 for contempt of court,
relating to an online news article which caused a Melbourne murder trial to be aborted last
year.

Yahoo’s reporter, Krystal Johnson, wrote an article during the course of the trial which was
published online. Information was included in the article which was not, and would not be,
available to the jury. It was suppressed information. The judge in the contempt hearing noted
that:

The judge went on to review the relevant principles to consider, including:

 contempt of court involves an interference with the due administration of justice;

 the concern is the risk created by the publication; it is unnecessary to prove that a
juror or potential juror actually read or heard the prejudicial material;

 the test for liability is whether the published material has, as a matter of practical
reality, a real and definite tendency to prejudice particular legal proceedings or
interfere with the due administration of justice in the particular proceeding; and

 It is not necessary to show there was an intention to interfere with or obstruct the
administration of justice.
In this case, the judge decided the article “clearly had a real and definite tendency to
prejudice the accused’s trial”, and that both Yahoo and Ms Johnson were in contempt of
court.10

The judge was particularly critical of the fact that while Yahoo had processes in place for the
vetting of articles, including approval by an editor and the availability of legal advice, these
processes could be circumvented and, as here, an article could be uploaded without any
secondary check. He noted there was nothing to show that the more strenuous practice of
checks that Yahoo claims to have now put in place would themselves be followed.

This case serves as an important lesson that contempt of court isn’t just a relic of the past,
relevant only to traditional media. Every journalist and media organisation who wants to be
able to claim the rights associated with that position also needs to meet the responsibilities
they have. To ensure the administration of justice, this means complying with court
suppression orders, and, for a jury trial, only reporting the information that is put to the jury.

In Saibal Kumar Gupta and Ors. v. B.K. Sen and Anr 11. It was held by the Supreme Court
that:“No doubt it would be mischievous for a newspaper to systematically conduct an
independent investigation into a crime for which a man has been arrested and to publish the
results of that investigation. This is because trial by newspapers, when a trial by one of the
regular tribunals of the country is going on, must be prevented. The basis for this view is that
such action on the part of a newspaper tends to interfere with the course of justice whether
the investigation tends to prejudice the accused or the prosecution. There is no comparison
between a trial by a newspaper and what has happened in this case.”

In Perspective Publications vs. State Of Maharashtra12 case, There was an article that was
published which contained several insinuations that a recent judgment delivered by one of the
Judges, was influenced by the fact that the Judge’s brother was paid a loan of Rs.10 lakh by
one of the parties. Court held The Editor and Publisher were found guilty of contempt and a
fine of Rs.1000/- along with simple imprisonment of one month was imposed on them.

In Arundhati Roy, in re13 case, Arundhati Roy, a writer, was interested in the result of a
litigation pending before the Supreme Court. It was alleged that at a dharna organised in front

10
Duncan cotterill,(feb 24,2017) https://duncancotterill.com/publications/contempt-of-court-still-relevant-in-the-age-of-new-
media.htmll.in
11
AIR 1961 SC 633
12
1971 AIR SC 221
13
(2002) 3 SCC 343
of Supreme Court she had raised improper slogans against the Court. When issued a show
cause notice, she denied having raised such slogans. She further stated that the Supreme
Court could not spare a sitting Judge to hold inquiry into Tehelka Scandal. However, when it
came to an absurd, despicable and entirely unsubstantiated petition, it displayed a disturbing
willingness to issue notice. She added that the same indicated a disquieting inclination to
silence criticism and muzzle dissent, to harass and intimidate those who disagreed with the
Supreme Court14. The court sentenced her to simple imprisonment for one day and to pay a
fine of Rs.2000/-. In case of default of payment of fine, she was to undergo simple
imprisonment for three months.

In re: vinaychandra Mishra case15Allegations of contempt committed in the face of a High

Court were made against a Senior Counsel. He was asked by the Bench regarding the
provision under which the impugned order had been passed. He started shouting at the bench.
He said would get the Judge transferred or impeached and threatened by saying that he had
“turned up many judges”. He created a scene in the Court. He lost his temper and, according
to the Judge, “except to abuse him of mother and sister” the contemnor had insulted him like
anything. The contemnor was also President of the Bar and Chairman of the Bar Council of
India. The matter was referred by the Acting Chief Justice to the Supreme Court.

The Supreme Court took suo motu cognizance and issued a show cause notice to the
contemnor. In his counter and additional counter, a different version of the incident was put
up by the contemnor. He alleged that in fact it was the judge who hadcommitted contempt of
his own court. He filed application for initiating proceedings against the Judge.At a
subsequent stage written unconditional apology was also filed by the contemnor by seeking
therein to withdraw his application, petitions, counters, allegations and submissions. The
Court sentenced the contemnor VC Mishra to undergo simple imprisonment for six weeks.
Also he was suspended from practicing as an advocate for a period of three years.

Conclusion

14
ARUNDHATHI ROY CASE (https://indiankanoon.org/doc/505614/ last visited on 12 th oct 2018)
15
(1995) 2 scc 584
From the above account it becomes clear that the media had a more negative influence rather
than a positive effect.Modern law, is a culmination of a long journey from divine law to
natural law and further positive law, and has retained some of the principles and beliefs
enshrined in early legal thought. But now we are seeing a different self acquired role of
media in form of ‘media trial’The law of contempt is an excellent example of this dichotomy
between rationality and mythology surrounding the judiciary.

The print and electronic media have gone into fierce and ruthless competition, as we call
them ‘aggressive journalism’ that a multitude of cameras are flashed at the suspects or the
accused and the police are not even allowed to take the suspects or accused from their
transport vehicles into the courts or vice versa. Earlier, journalism was not under pressure to
push up TRP ratings or sales. So the journalists did their work with serious intent and
conviction, with courage and integrity. They did not pronounce people guilty without making
a serious attempt to study the charges, investigate them, and come to their own independent
conclusions, without fear or favour. But now we are seeing a different self acquired role of
media in form of ‘media trial’