Contempt

1. What is contempt of court?

Answer: Any act which hinders or impairs the judicial proceedings and interferes in the administration of justice constitutes Contempt of Court. Such act or conduct is dealt with under the Contempt of Court Act, 1971.

• Flinging of shoes on the judge
• Slapping a lawyer in the premises of the Court
• Undermining the judicial system through pleadings given in the Court
• Making personal attacks on a judge through publications

1. Where it is against any law for the time being in force.
2. Where the Court expressly prohibits on the ground of public policy.
3. Where the matter is connected with the public order or the security of the State.
4. Where the information relates to a secret process, discovery or invention.

Answer: Yes, you can evade imprisonment by tendering an apology. Under Section 12(1) of the Contempt of Court Act, 1971, the person charged with contempt can be discharged or the punishment awarded can be remitted on tendering of an apology to the satisfaction of the Court. However, an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. Thus an essential element is that the apology should be given by the accused.

CASE LAW

Centre for Law and Policy Research

Case Briefs (No. 1 of 2014)

Journalists and the Law of Contempt

I. Introduction

Section 2(c) of the Contempt of Courts Act, 1971, defines criminal contempt as:

“(c) criminal contempt means the publication (whether by words, spoken or written,  or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of,  any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;

Under this provision, there are have been largely two different kinds of cases in which journalists have faced criminal contempt charges -  firstly, when there is an article which scandalizes or tends to scandalize or lower the dignity of the judiciary.

This would include comments or remarks on judges or the functionary of the judiciary etc. Secondly, when there are reports on pending litigation which could prejudice the outcome of the trial. Keeping in mind the famous statement of Lord Hardwicke, L. C.:

"There are three different sorts of contempt. One kind of contempt is scandalising the Court itself. There may be likewise a contempt of this Court, in abusing parties who are concerned in causes here. There may be also a contempt of this Court, in prejudicing mankind against persons before the case is heard."[i]

Journalists in India have found themselves entangled in criminal contempt cases since the early 1900s, and, over the course of time, the Courts have developed different tests to ascertain whether or not a particular article may be contemptuous.

Even if an article is found to be contemptuous, the Courts have followed a general trend of accepting apologies and not imposing criminal penalties upon the contemnors. Only in a few cases have the Courts imposed fines or imprisonment on the contemnors. 

II. Case Law decided by the Supreme Court of India

1. Perspective Publications vs. State Of Maharashtra 1971 AIR SC 221

Facts: 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 10lakh by one of the parties.

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.

Reasoning:  Though the Editor and Publisher were found guilty, this case is interesting in that it laid down  the test for whether an act would amount to contempt. In the words of the majority judgment:

“21. It is open to anyone to express fair, reasonable and legitimate criticisms of any act of conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him because ‘justice is not a cloistered virtue and she must be allowed to suffer scrutiny and respectful, even though outspoken, comments of ordinary men.

22. A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the court. The test in each case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by this Court. It is only in the latter case that it will be punishable as contempt.

23. Alternatively the test will be whether the wrong is done to the judge personally or it is done to the public. To borrow from the language of Mukherjee, J. ‘the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability, or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.” [ii]

2. In Re S. Mulgaokar AIR 1978 SC 727

Facts: There was a publication in the Indian Express pertaining to a letter that was circulated amongst the judges of the Supreme Court and the High Courts on drafting a Code of Ethics for judges. The article also contained some comments on the nature of the judges, and specifically how certain judges lacked moral courage.

Held: The matter was dismissed and the article was held not to amount to contempt.

Reasoning: Justice Krishna Iyer laid down six principles which could be used as guidelines to see if a matter would amount to contempt of court. These guidelines can also be used in adjudging whether a certain publication in a newspaper or journal can amount to contempt. The six guidelines are as follows:

 “A) The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges, where the attack is calculated to obstruct or destroy the judicial process.

B) The second principle must be to harmonize the constitutional values of free criticism, the fourth estate included, and the need for a fearless curial process and its presiding functionary, the judge. A happy balance has to be struck, the benefit of the doubt being given generously against the judge, slurring over marginal deviations but severely proving the supremacy of the law over pugnacious, vicious, unrepentant and malignant contemnors, be they the powerful press.  While invoking the power, constitutional value of free criticism and especially of the press had to be harmonised. Balance had to be struck, benefit of doubt being given generously against the Judge. While considering this, if it is found that the freedom of expression was fairly exercised, public justice could not gag it because free people are the guarantors of fearless justice.

C) The third principle is to avoid confusion between personal protection of a libelled judge and prevention of obstruction of public justice and the community’s confidence in that great process. The former is not contempt, the latter is, although overlapping spaces abound.

D) The fourth functional canon which channels discretionary exercise of the contempt power is that of the Fourth Estate, which is an indispensable intermediary between the State and the people and necessary instrumentality in strengthening the forces of democracy, should be given free play within responsible limits even when the focus of its critical attention is the court, including the highest court.

E) The fifth normative guideline for the judges to observe in this jurisdiction is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing condescending indifference and repudiation by judicial rectitude. 

F) The sixth consideration is that after evaluating the totality of factors, if the court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law, must in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream.”[iii]

III. Case Law decided by the High Courts

1. Leo Roy Fray vs. R. Prasad AIR 1958 P&H 377 (Punjab and Haryana High Court)

Facts:  The Petitioner had been involved in a smuggling case and the respondents (along with several other publishers) had published articles about the case in which the petitioner was involved. The grievance of the petitioner was the certain phrases used in the articles as well as the photographs that were published along with the article amounted to contempt of court as they would interfere with the trial of the case.

Held: There was no contempt committed in this case as there was no question of the articles prejudicing the trial.

Reasoning: The court in this case developed a test to check whether a publication would amount to contempt of court – “Before the publisher of a newspaper can be committed for contempt, the court must be satisfied: (1) that the matter was pending in a Court of law or was imminent; (2) that the respondent was aware of this fact; (3) that the publication was intended or reasonably calculated to prejudice the fair trial of the case; (4) that under the circumstances of the case, the jurisdiction which the Court in that case possesses should be exercised; (5) that the object of the proceeding is to vindicate justice and not merely to ventilate a fancied grievance; and (6) that justice requires that an order of conviction should be recorded.”[iv]

2. Vijay Mallya vs. Bennett Coleman, Criminal Contempt Petition No. 2 of 2009, decided on 10 March, 2010 (Bombay High Court)

Facts: An article was published in The Times of India based on the details of a pending litigation and was titled “Senior Citizen takes on “bullying” builder, Drags him to Court over Redevelopment Deal”. The article referredan incident where a resident refused to be coerced into signing a redevelopment agreement with the builders and the matter was been taken to the Civil Court. The article also stated that Vijay Mallya, the petitioner in this contempt petition, was not the landlord. The petitioner, worried that the article might affect the pending litigation proceedings, filed a contempt petition.

Held: It was held that the article would not amount to contempt because the court will have to decide whether the petitioner is the landlord based on the evidence on record and not based on what was being published in the newspapers and this would not prejudice the trial.

Reasoning:  The Court reasoned that newspapers have the right to publish correct, true and proper reports of court proceedings so that its readers may be kept updated. In addition, newspaper articles, such as the one in this case, should not be taken into account in any manner while deciding the rights of parties in pending proceedings and the proceedings should be decided in accordance with law on its own merit and evidence available on record.

3. Madras High Court Practising Advocates Association vs. Registrar 2012(3) CTC 225 (Madras High Court)

Facts: The Madras High Court Practising Advocates Association had approached the Chief Justice of the Madras High Court regarding several concerns that they had with respect to the administration of the Court. The details of their correspondence with the Chief Justice (CJ), along with the details of their demands to the CJ, were published in the New Indian Express on 20.3.2010 under the caption "Judicial Interference in Advocate Body Flayed". Being aggrieved by this publication, the petitioner decided to file a petition to direct the Registrar of the Court to issue suitable orders/directions to the print and electronic media not to publish any matter relating to the administration of the High Court without obtaining proper permission from the Registrar General and also not to publish any matter till the Court passed an order.  The petitioner stated that the news item flashed in the New Indian Express on 20.3.2010 under the caption "Judicial Interference in Advocate Body Flayed" prompted him to file this writ petition with a view to curb the interference of Press in the matter of administration of justice.

Held: This petition was dismissed.

Reasoning:  The Court felt that the grievances of the petitioner could not be addressed in the directions that were sought. The Court did not want to issue any directions to the Registrar restricting the dissemination of information regarding the High Court’s administration. However, it was held that:

“25. A heavy responsibility lay on the press and the media to restrain themselves from publishing such pending administrative matters, if the disclosure of such pending matters damage the dignity, decorum and honour of any individual Judge or members of the judiciary. A good amount of responsibility is cast upon the press and media towards the society to see that the public order, decency and morality are safeguarded. However, it is made clear that there shall not be any restriction to the press and media to publish in the newspaper any decision taken on the administrative side of the High Court against any person after such decision is circulated to the person concerned. Last but not the least, we reiterate what has been held by the Supreme Court that the duty of a true and responsible journalist is to inform the people with accurate and impartial presentation of news after dispassionate evolution of facts and information received by him. Such news may not be published which tend to create apprehension in the minds of the people regarding the integrity, ability or fairness of the judicial officers. Elements of responsibility must be present in the minds of the journalists, if any news is published without knowing the authenticity, and the same will be improper and will not be healthy for maintaining the rule of law.”[v]

4. Court on its Own Motion vs. The Publisher, Times of India, Civil Writ Petition No. 7160 of 2013, decided on 4 April, 2013 (Punjab &Haryana High Court)

Facts:  The Court took up this matter in light of heavily opinionated articles published in local editions of The Times of India as well as the Hindustan Times, pertaining to a pending litigation regarding the auctioning of mines in the Aravalis by the Haryana Government. It was noticed that these articles were published a day prior to the days on which the matter was listed before the Punjab and Haryana High Court. The Court issued notice to the Editors of the local editions of the two newspapers and also impleaded the Union of India and the Press Council of India.

Held:  The petition was dismissed, since the right to freedom of speech and expression is to prevail without any hindrance, and the articles were  not in contempt.

Reasoning:  It was held that there has to be some constraints and the restraints on the aspect of manner in covering the court proceedings and where such publication interferes with the administration of justice, then certainly court can take some effective measures, including the proceedings under the Contempt of Courts Act. Where a provision, in the law, relating to contempt imposes reasonable restrictions, no citizen can take the liberty of scandalising the authority of the institution of judiciary. Freedom of speech and expression so far as they do not contravene the statutory limits as contained in the Act, are to prevail without any hindrance. It must, however, be remembered that the maintenance of dignity of courts is one of the cardinal principles of rule of law in a democratic set up and any criticism of the judiciary institution couched in language that apparently appears to be mere criticism, but ultimately results undermining the dignity of the court cannot be permitted and when it is found to have crossed the limits, then it has to be punished.

The Court did not impose any punishment or fine but it held that “As a matter of caution, the newspaper and the journalist ought to avoid publishing or commenting on evidence collected as result of investigative journalism at least from the date of the arrest of the accused, who is charged. They can be expected to scrupulously avoid commenting or evaluating a confession alleged to be made by any accused, lest they expose themselves to liability of contempt. The Newspapers and the Journalists have to avoid casting scurrilous aspersions on, or to impute improper motives, or to allege personal bias to the Judge while publishing news items. They cannot be permitted to scandalize the courts or the judiciary as a whole or make personal allegations of lack of ability or integrity against a Judge. They have to avoid unfair and unwarranted criticism by innuendo against the Judge. They can certainly be expected to ascertain the genuineness, correctness and authenticity from the record so as to avoid incorrect facts and wrong information about the court proceedings.”[vi]

Note: The following parameters were chosen while selecting cases – (a) Supreme Courts and High Court only (b) Cases which favoured the journalists/contempt was not held (c) judgments that laid down certain criteria or tests.