This article is authored by Aparna Venkataraman, student of Tamil Nadu National Law University.
Table of Contents
Introduction
There is no doubt that media forms the fourth pillar of democracy, after the three pillars of the legislature, the executive and the judiciary. Media comes in multiple forms, such as print media, television news channels, online newspapers, social media, and so on. While social media does not fall under the conventional understanding of media, media outlets do have a presence in social media as well. Moreover, the media has far reaching influence on people, for it reports news of all forms – from politics to celebrity information, from judicial information to international news; there is no limit to the type of information that media provides.
In understanding the role played by media in the country, the following observation of Mahatma Gandhi (slightly modified) is very relevant: “One of the objects of the media (a newspaper) is to understand the popular feeling and give expression to it, another is to arouse among the people certain desirable sentiments, and the third is the fearlessness to expose popular defects.”
From the afore-mentioned quote, it will be very clear that media has a very important role to play in any democracy. It is that tool that allows for both analysis of and criticism on matters of governance, politics, sports, finance and many other areas affecting the common man and do so with reasonable depth. Such analysis by the media keeps people well-informed and in addition, it enables people to form informed opinions as well as take well-thought out decisions, as and when the situation calls for the same (e.g.) voting in an election. Gandhi’s observation reflects the power available to the media, which in turn comes with enormous responsibility.
Such great power to facilitate the narrative, and even change it as suggested by the quote, comes the responsibility of not providing mis-information, not insulting or defaming people, not provoking people to protest or incite violence, and so on. In order to prevent such malafide actions, there have been restrictions placed on the media. These restrictions are reflected in Art. 19(2) of the Constitution of India, which specifies multiple ways to impose reasonable restrictions on the freedom of the press. The article expressly mentions contempt of court (a doctrine that had translated into an Act way back in 1926) as a reasonable restriction, which is elaborated in the Contempt of Courts Act, 1971 (hereinafter referred to as “the Act”).
Research questions
- Whether the current Contempt of Courts Act, 1971 is one of the answers to restricting media freedom?
- What is the role of the Contempt of Courts Act, 1971 in media trials?
- What is the global understanding with respect to restriction of freedom of media through contempt of courts doctrine?
Objective and scope of the research
The paper intends to analyse the current form of the Contempt of Courts Act, 1971 to check for its relevance for the modern day media. This is particularly important because media has evolved quite dramatically since the early 70s, when the Act had originally come into effect. The Act did undergo amendments in both 1976 and 2006, but not to a considerable extent, which makes this an important question to be addressed.
Media trial is not exactly a new concept, but the recent media trial of Rhea Chakraborty in the Sushant Singh suicide case has been downright vicious and traumatic for everyone (including the public) involved. There has to be some sort of scrutiny and control over such ghastly trials and the Contempt of Courts Act, 1971 does provide some base. But whether or not such restrictions are adequate or are implemented correctly are questions that the project seeks to explore.
The scope of the project is restricted to media in its conventional sense alone and does not include social media.
Media freedom and contempt of courts in India
There have been cases that deal with both Art. 19(2) and the Act. One such case was Smt. Archana Guha v. Sri Ranjit Guha, wherein the dispute was based on an article published in a Calcutta newspaper. It has to be noted that the criticism of a judgement was done by distorting the facts, but the Calcutta HC held that there was no contempt because there ought to be freedom to criticise the judiciary, even if done incorrectly. This case brought forth the important point that there should not be any contempt case filed merely because a particular judgement had been misconstrued in the media. An alternative remedy in the form of clearing the confusion with the Registrar of the Press has been provided for the same.
Media freedom is not curbed by imposing restrictions in the form of the Act. Rather, such restrictions make us realise that no freedom is absolute. The Act in itself refers to contempt arising either as civil contempt or criminal contempt. Civil contempt is understood as not abiding by the judgement, order, decree and other such matters of the Court, which is not relevant in so far as the media is concerned. Criminal contempt refers to publication in any medium that intends to reduce the authority of the Courts, interferes with any trial in the Courts, or affects justice in any form. This criminal contempt is what acts as restriction on the freedom of the media. However, the Act has expounded as to what is not contempt in S. 3, S. 4, S. 5, S. 7 and S. 13 (through the 2006 amendment) of the Act.
These sections while explaining as to what contempt is, are vague in their wordings. Such vagueness gives lot of power to the judges to ultimately decide when and how contempt proceedings can be initiated. Ss. 4 and 5 state “fair” in the marginal note, but there is no elaboration provided as to what is “fair.” Although the language of S. 3(3) seems to state that there is a presumption of guilt, it has to be understood that such a presumption is based on the belief that a publication under S. 3 was done bona fide. The case of NN Choudhuri v. Bela Bala Devi has clarified that the benefit of doubt will be extended to the person charged with contempt. This is because criminal contempt cases are understood to be quasi-criminal in nature and hence the standard of proof has to be beyond reasonable doubt.
However, what proves problematic is the fact that the judges ultimately get to decide as to what matters are contemptuous and what are not. This understanding has been provided in the Constitution itself as the inherent jurisdiction of the Courts with regard to contempt matters. This jurisdiction actually brings its own set of problems. As there is no particular standard established as to what exactly can be referred to as contemptuous but for the vague definition, lot of power is given to the Courts to decide on the same. This power can be used arbitrarily by the Judges, especially in cases or situations when tempers run high in the Court rooms. It can also reflect the problem of bias coming into play, for who stated the contemptuous statement might also be equally important as what exactly was stated so as to invoke the contempt proceedings.
It is true that contempt of court is generally not the first resort of the Court (a restraining order is, and upon a violation of such order contempt proceedings is initiated). But if the situation warrants contempt proceedings, then the concern is the inherent jurisdiction of the Court to rule on such matters. The inherent jurisdiction falls a little too close to violating the principles of natural justice for comfort, which is what makes the media (and others against whom contempt proceedings are initiated) weary about this doctrine, and rightfully so.
Media houses – both print and TV channels – have been subject to contempt cases. The Privy Council in the case of Debi Prasad Sharma and Ors. v. The King Emperor held that there was no contempt committed by the editors and publishers of the Hindustan Times for there was no obstruction to the administration of justice; rather, the article in the newspaper had criticised the administrative capacity of the Allahabad Chief Justice, which cannot be construed as contempt. In the case of Ashwini Kumar Ghose v. Arabinda Bose, the SC stated that the article published in Times of India not only criticised a judgement of the Court, but went on to imply motives to the Judges.
Had the article just been a criticism, it would have been accepted. But because the article targeted the Judges, it lowered the dignity of the Court, which attracted the contempt proceedings against the editor, publisher and printer of Times of India. Contempt of court cannot arise if a particular Judge has alone been criticised or written negatively about. Only if the content so published also affects the public opinion of the judiciary can contempt proceedings be initiated. The landmark judgements of In Re: Mulgaokar and that of In Re: Shri Shyam Lal were pronounced when the editors of the leading national dailies the Indian Express and Times of India respectively were hauled up for their criticism of the ADM Jabalpur case. The Supreme Court reduced the sentence of the editor, publisher and the printer when an article made insulting comments on a particular judgment of the High Court, and that High Court had issued contempt proceedings.
Media trials : a legal perspective
All of us would have witnessed the Sushant Singh Rajput media trial. This is by no means the first media trial nor is it going to be the last. The other glaring examples of the media trial include that of the Jessica Lal case, Noida Double Murder case, the Nirbhaya case – the list is endless. The history of a media trial can actually be traced to 1921, where a prominent actor, Roscoe Arbuckle was accused of raping and murdering Virginia Rappe, an actress. There were three decisions on the same matter where the first two resulted in a deadlock jury and the third resulted in his acquittal. But despite that, the media took the matter into their own hands and completely destroyed his career. Since then, media trials have become popular with the media houses doing everything they can to publicise famous lawsuits.
The media, through these trials tends to sway public opinion to showcase one side of the story and make it seem that one set of people are the perpetrators. Rhea Chakraborty, Aarushi Talwar’s parents, and countless others have had their reputation tarnished by the media houses by conducting such trials. What is interesting is that the media generally provides a biased view of the entire situation and according to the portrayed situation, they also pass their own decision as to the guilt of the accused. It is one thing to provide media coverage to matters dealt with in the courts, that is, to provide a media report on what happened in the Court, but it is another thing to perform the role of the Court in another capacity.
Moreover, the media would bring to light every tiny wrong committed, the character, misleading photographs, and so on of the accused, most of which are irrelevant to the case at hand, but help in damaging the reputation of the accused irreparably. Sometimes such actions are not restricted to the accused alone – everyone involved is subject to this treatment (including the evidence) so that their version of who should be the accused comes out quite obviously.
Such media trials are sought to be regulated in S. 3 of the Act, which states explicitly that publication on any matter sub-judice in the Court amounts to contempt of court. Explanation to S. 3 states that if a charge sheet or challan is filed, such a criminal case is pending before the Courts. The 200th Law Commission Report has recommended that the explanation be amended to state that arrest can be considered to be the starting point for a case to be pending before the Courts. The intention behind S. 3 is that in the event of the public being swayed by the stance of the media on a particular case, their belief on the judiciary reduces drastically and hence in such cases, a situation of contempt arises.
Moreover, the Judges when exposed to the media trials can themselves be influenced by such information and thus adjudge unjustly. In the decision of In Re: PC Sen, the Supreme Court held that the effect of the publication on justice should be given precedence over the intention of the publication. The Chief Justice of India in 2007 had also stated that the judges ought to follow the law and decide on every matter that comes in front of them regardless of the popularity of that case. Apart from the tarnished reputation of the so called wrong doer, even the witnesses are subject to harassment as they have been questioned repeatedly both by the media in addition to the authorities. If the identity of the witness is published for all to see, the harassment becomes worse and they try their best to retract themselves.
In Reliance Petrochemicals v. Indian Express Newspapers Bombay (Pvt.) Ltd., the Supreme court held that the Courts must not be swayed by public opinion or any media on a particular matter. The Supreme Court has stated that publicity is no reason for denial of a fair trial in the case of Ankul Chandra Pradhan v. UoI. In the case of State of Maharashtra v. Rajendra Jawanmal Gandhi, the Supreme Court stated that a media trial goes against the rule of law and can result in miscarriage of justice and has stated that the Judges are not to succumb to the media pressure. Having said that, the media has played a positive role as well. The Supreme Court disapproved of an article that painted only one side of the issue and warned the editor of that newspaper against such activities as it meddled with the dispersion of justice.
In Santosh Kumar Singh v. State, popularly referred to as the Priyadarshini Mattoo case, owing to the enormous pressure put by the media, the High Court reopened the case and sentenced the accused to death. The Trial Court had acquitted him owing to him being the son of an Inspector General.
The Supreme Court in Sahara India Real Estate Corp. v. SEBI, was asked to frame appropriate guidelines for the media in sub judice matters. The judgement believed that there had to be a delicate balance between the right to a fair trial and the right to freedom of expression, and hence decided that postponement orders would be the appropriate solution in that case. The right to freedom of expression is what prevents the Court from filing the contempt cases in the first place. The case also went on to add that the media provides a link between the people and the Courts, whose decisions ultimately become the law of the land. The Court went on to add that unique solutions are required, for neither the right to freedom of expression nor the right to fair trial must be compromised.
A free media is essential for it to discharge its functions properly. But it has to be understood that there is no particular right granted to the media. It is subject to Art. 19(2), while exercising their freedom as provided in Art. 19(1)(a). To enable the media to do its job, the Courts do not, except in extreme cases, initiate contempt proceedings. Even S. 3, S. 4, S. 5, S. 7, and S. 13 of the Act provide an understanding as to where the line must be drawn with respect to Court proceedings and media interference. The 200th Law Commission Report also thought on these lines and came up with the following recommendations –
- Insertion of definition of publication to expand the scope of the Act.
- Arrest to be considered to be the starting point for a case to be pending before the Courts.
- Insertion of a separate section that covers S. 2(c)(ii) and S. 2(c)(iii) so that the procedure as already stated in S. 15(1) of the Act applies.
- Allow postponement of publication when it affects the active criminal proceedings and not postponing the reporting of cases sub judice.
Conclusion
The power to govern the contempt of court is provided to the Supreme Court in Art. 129 and the High Courts in Art. 215. This means that regardless of the Act, the Courts are vested with such powers through a constitutional mandate. However, this does not mean that the Act should not be amended. The Act has to be amended in so far as the idea of inherent jurisdiction be explained in greater lengths. It has to be made clear that if a particular judge calls for contempt proceedings because his name is tarnished, then he does not sit on the bench for the same. Such a procedure is provided for in the Act, but it not mandatory, and it should be made so.
The circumstances wherein contempt proceedings can be initiated must be redefined so that it can be done so more for the sake of the trial or that of justice. The court being scandalised by a particular action must have stricter provisions as it is almost as if the Judges are easily provoked these days, which should not be the case. The Act must also be amended to explicitly include the distinction between the Courts being scandalised and an individual Judge being scorned. In the latter case, defamation is the solution and not a contempt case.
The vagueness of the definitions stated in the Act must be resolved in the earliest so as to provide clear cut directions as to what constitutes contempt and what does not. Another point to note is that the publications at the pre-trial stage are precluded from contempt proceedings. This is being exploited by the media to a large extent. The solution is to amend the Act to cover this time as well. This vagueness has resulted in contradicting decisions of the Courts themselves. While this does come with the added bonus of increasing the discretionary power granted to the judges, reducing the vagueness of the sections would be the solution. Times are changing very quickly and hence, the Act has to be amended to cover the trials and tribulations of the modern times.
The Act seems to be used appropriately in so far as cases of media publications that analyse the judgements of the Courts. However, there is still lacuna when it comes to dealing with media trials. There has to be a line drawn with regard to this. With the greater attention of the media on TRP and the money making mechanism that journalism has become now, it is no longer a media trial alone now. The media is almost doing the entire work of the judiciary – from doing the investigation on a particular case, interviewing the people involved, analysing the evidence, and even deciding the “true” perpetrator.
It is only not sentencing the perpetrator mostly because it does not have the authority to do so. But who knows, in the future something on those lines might emerge too, if such outrageous actions are not nipped in the bud today. But amending the Act is not a solution in this case. There has to be a separate set of rules and regulations for the media in the nature of a code of conduct that state as to what actions are permissible and what not.
This does already exist in the form of the Press Council of India’s Norms of Journalistic Conduct, but these norms do not prescribe punishments, and if they do, they cannot be enforced. The language of these norms is quite gentle and hence, it is not an ideal solution. These norms must be amended to bring about stricter rules and enforcement mechanisms so as to let the judiciary do its duty properly. Even the powers of the Press Council of India do not allow it the jurisdiction to prevent the pre-trial reporting. This must also be amended.
References
[1] Salien Chatterjee, The Journalist in Gandhi, MKGANDHI.ORG, (Aug. 25, 2021, 8:00 PM), https://www.mkgandhi.org/articles/the-journalist-in-gandhi.html [2] Smt. Archana Guha v. Sri Ranjit Guha 1989 (1) CHN 252. [3] Fali S Nariman, Contempt of Court, NJA OCCASIONAL PAPER SERIES NO. 2, (Aug. 25, 2021, 8:00 PM), http://www.nja.nic.in/Jounals_Publications_Newsletters/NJA%20Ocacasional%20Paper%20Series%20No.2.pdf [4] S. 2(a), Contempt of Courts Act, 1971. [5] S. 2(b), Contempt of Courts Act, 1971. [6] S. 2(c)(i), Contempt of Courts Act, 1971. [7] S. 2(c)(ii), Contempt of Courts Act, 1971. [8] S. 2(c)(iii), Contempt of Courts Act, 1971. [9] S. 3 (Innocent publication and distribution of matter not contempt), Contempt of Courts Act, 1971. [10] S. 4 (Fair and accurate report of judicial proceedings not contempt), Contempt of Courts Act, 1971. [11] S. 5 (Fair criticism of judicial proceeding not contempt), Contempt of Courts Act, 1971. [12] S. 7 (Publication of information relating to proceedings in chambers or in camera not contempt except in certain cases), Contempt of Courts Act, 1971. [13] S. 13 (Contempts not punishable in certain cases), Contempt of Courts Act, 1971. [14] NN Choudhuri v. Bela Bala Devi AIR 1952 Cal 702. [15] Ashok Kumar Aggarwal v. Neeraj Kumar & Anr. (2014) 3 SCC 602. [16] Supra note 3. [17] Art. 129 & Art. 215, Constitution of India, 1950. [18] Supra note 3. [19] Ibid. [20] Ibid. [21] Ibid. [22] Debi Prasad Sharma and Ors. v. The King Emperor AIR 1943 PC 202. [23] Ashwini Kumar Ghose v. Arabinda Bose 1953 SCJ 38. [24] Perspective Publications (Pvt.) Ltd. v. State of Maharashtra, AIR 1971 SC 1221. [25] In Re: Mulgaokar (1978) 3 SCC 339. [26] In Re: Shri Shyam Lal AIR 1978 SC 489. [27] Rajendra Sail v. MP High Court Bar Association 2005 (6) SCC 109. [28] Gilbert King, The Skinny on the Fatty Arbuckle Trial, SMITHSONIAN MAG (Aug. 25, 2021, 8:00 PM), https://www.smithsonianmag.com/history/the-skinny-on-the-fatty-arbuckle-trial-131228859/ [29] J. Dr. BS Chauhan et. al., Trial by Media – Free Speech and Fair Trial under Criminal Procedure Code, 1973, LAW COMMISSION OF INDIA (August 2006), https://lawcommissionofindia.nic.in/reports/rep200.pdf [30] In Re: PC Sen, AIR 1970 SC 1981. [31] Shobha Ram Sharma, Judicial Activism in Media, PL S-2, (2010). [32] Supra note 29. [33] Reliance Petrochemicals v. Indian Express Newspapers Bombay (Pvt.) Ltd. (1988) 4 SCC 592. [34] Ankul Chandra Pradhan v. UoI (1996) 6 SCC 354. [35] State of Maharashtra v. Rajendra Jawanmal Gandhi (1997) 8 SCC 386. [36] MP Lohia v. State of WB 2005 (2) SCC 686. [37] Santosh Kumar Singh v. State (2010) 9 SCC 747. [38] Sahara India Real Estate Corp. v. SEBI (2012) 10 SCC 603. [39] Ibid. [40] Ibid. [41] Harijai Singh v. Vinay Kumar 1996 (6) SCC 466. [42] Supra note 29.[43] J. GN Ray, Press Council of India: Norms of Journalistic Conduct, PRESS COUNCIL OF INDIA (2010), https://presscouncil.nic.in/OldWebsite/NORMS-2010.pdfLawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
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