law of contempt and media. the contempt of courts act 1971 contempt objective to examine the basic...

LAW OF CONTEMPT AND MEDIA

THE CONTEMPT OF COURTS ACT 1971

CONTEMPT

OBJECTIVE

• To examine the basic purpose of contempt law in India.

• Ninty nine percent of the failures come from people who

have the habit of making excuses.

George Washington

DEFINITION

Contempt of court is defined as an act or omission

calculated to interfere with the due administration of

justice.

V.C. Mishra’s case; (1995) 2 SCC 584

MEANING OF CONTEMPT

1. Wilful disobedience to, or open disrespect of a court or judge.

2. Contempt means lack of respect or reverence for something.

Contempt of court is disobedience of the court by acting

in opposition to the authority, justice and dignity thereof.

It signifies a wilful disregard or disobedience of the court

order, it also signifies such conduct as tends to bring the

authority of the court and the administration of justice

into dispute.

Baradakanta Mishra V Bhimsen Dixit ; 1973 (1) SCC 446

CONTEMPT LAW

PURPOSE

To keep the administration of justice pure and

undefiled.

CONCEPT

Contempt jurisdiction is inherent in a court of record from

the very nature of court itself.

NEED

To deal sternly with any action which has the

tendency to

• interfere with, or• obstruct

the due course of justice.

CONTEMPT JURISDICTION TOUCHES UPON TWO FUNDAMENTAL RIGHTS

• The right to personal liberty• The right to freedom of expression

CONTEMPT LAW

A CONFLICT between

Freedom of speech in the Constitution

versus

Need to safeguard the status and dignity of courts

and

interests of administration of justice.

WHILE INVOKING CONTEMPT LAW CARE IS TO BE TAKEN

THAT

• The dignity of the court is to be maintained at all costs.

• Contempt jurisdiction, which is of a special nature, should be sparingly used.

EXCEPTIONS TO CONTEMPT

1. Innocent publications

2. Fair comments/criticism

SECTION 3

Innocent publication and distribution of matter if

the person had no reasonable grounds for

believing that the proceeding was pending in a

court.

REACH OF SECTION 3

• Publication Sec 3(1) and (2)(a) Pending

(b) Not pending

• Distribution Sec 3 (3)

PUBLICATION may be by

• words– spoken, or– written

• signs • visible representation• or otherwise

SECTION 4

Fair and accurate report of judicial proceeding

SECTION 5

Fair criticism of judicial act on the merits of any

case heard and finally decided.

SECTION 7

Publication of information relating to proceedings

in chambers or in camera.

Fair comments, even if outspoken, but made

without any malice or attempting to impair the

administration of justice and made in good

faith and in proper language do not attract any

punishment for contempt.

Jaswant Singh V Virender Singh

1995 Supp (1) SCC 384

Judgments are open to criticism that must be

done without casting aspersions on the judge

and the courts, and without adverse

comments amounting to scandalising the

courts.

EXAMPLES OF WHAT CONSTITUTES CONTEMPT

1. Not caring of the warrant issued by the criminal

Court.

2. Any wilful disobedience of the order of the court to do or abstain from doing any act or breach of any undertaking given to the court.

3. Attributing improper motive to a judge or scurrilous

abuse of a judge will amount to scandalising the court.

Rajesh Kumar Singh V High Court of Judicature of

MP; AIR 2007 SC 2725.

It is to be noted that the criticism of judiciary should be

constructive and not destructive. One may weigh a

Judge critically - academically but never inveigh him

personally.

DEFENCES TO CONTEMPT

1. Truth Section 13

2. Privileges

WHEN IS CONTEMPT NOT PUNISHABLE?

Section 13

• If it does not substantially interferes with the due course of justice.

• Justification by truth is a valid defence, if it is in public interest and the request for invoking the said defence is bonafide.

R.K. ANAND V REGISTRAR

DELHI HIGH COURT ;

(2009) 8 SCC 106

Justices BN Agrawal, GS Singhvi

and Aftab Alam

Judgment by Justice Aftab Alam

Facts of the case

1. The criminal trial in a case of reckless driving by Sanjeev Nanda, a young person of a very wealthy business family which crashed to death six people in Delhi meandered endlessly for eight years.

2. NDTV, a news channel telecast a programme on 30 May 2007 in which the Special Public Prosecutor and R.K. Anand, the Senior Defence Counsel, were seen negotiating sell out of a prosecution witness for a very high price.

According to NDTV, the programme was based on a clandestine sting operation.

3. Delhi High Court suo motu initiated a proceeding for criminal contempt and issued notice to R.K. Anand and IU Khan under Section 2(c) of the Contempt of Courts Act, 1971

4. During the pendency of the matter in the High Court, R.K. Anand filed a petition requesting Justice Manmohan Sarin, the Presiding Judge to recuse himself from the proceeding.

He stated in the petition that he had a feeling that he was not likely to get justice at the hands of Manmohan Sarin. He made the prayer that the main matter be transferred to be heard by some other bench of which Justice Sarin was not a member.

5. The High Court held that the evidence and circumstances fully established that both IU Khan and R.K. Anand were guilty of the charges framed against

them.

It accordingly convicted them for criminal contempt of court and sentenced them by prohibiting them from appearing in the Delhi High Court and the Courts subordinate to it for a period of four months from the date of the judgment. The court also recommended to the full court to divest them of the honour of being designated as Senior Advocates and also sentenced them to a fine of Rs. 2000/- each.

Law Laid Down

1. Suo motu cognizance taken by High Court on basis of telecast alone. The court examined the audio and video recordings of sting operation. The findings of High Court were sustained. It had rightly punished them by prohibiting them from appearing for a period of four months and holding that they had forfeited their right to be designated as Senior Advocates and imposing fine.

2. A motivated application for recusal needs to be dealt with sternly and viewed as interference in due course of justice leading to penal consequences.

3. Directions given to High Courts not having framed rules under Section 34 of Advocates Act to frame rules within four months. The Rules should indicate need for specific notice to be issued when punishment of debarring an Advocate from practice be imposed.

4. Telecast of sting operation exposing collusion between defence counsel and prosecutor did not amount to contempt of court.

The programme was intended to prevent an attempt to interfere with or obstruct the due course of a pending matter. It was in larger public interest and served an important public cause.

5. Grave concerns and dismay expressed on decline of ethical and professional standards amongst lawyers. Bar Council of India and the Bar Councils of different States cannot escape their responsibility.

6. High Court’s powers of superintendence over subordinate judiciary. Power of control should also be exercised to protect them from external interference that may some times appear overpowering to them and to support them to discharge their duties fearlessly. Criminal justice system should be insulated from external influences aimed to subvert trials.

IN RE : VINAY CHANDRA MISHRA

(1995) 2 SCC 584

Facts of the case

Allegations 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.

Issues Raised

1. Whether Supreme Court can take cognizance of contempt of a High Court and initiate suo motu proceedings against a contemnor?

2. Whether a contemnor has a right to examine the Judge or Judges before whom contempt was committed?

3. Whether it is necessary to summon the Judge for examination to verify the allegations against the contemnor when the version of the contemnor is different?

4. Whether a junior member of the Bench is barred in any way by any convention or otherwise, from putting questions to the Bar?

Law Laid Down

1. Supreme Court can take cognizance of a contempt of a High Court and suo motu initiate contempt proceedings against the contemnor.

2. When a High Court is dealing with a case of criminal contempt and there is justification for adopting summary procedure and punishing the offender on the spot, the contemnor has no right to examine the Judge or Judges before whom contempt is alleged to have been committed.

3. Jurisdiction and power of Supreme Court to take cognizance of any contempt of court and to award punishment for it are not circumscribed by any statute.

4. Judiciary in a democratic written Constitution has been assigned a special role and hence the need to protect its dignity and authority. There is a need and justification for vesting the extraordinary power in a court to punish for the contempt of the Court.

5. Every member of the Bench is on a par with the other member or members of the Bench. The lawyer or the litigant concerned has to answer the questions put to him by any member of the Bench.

ARUNDHATI ROY, In Re

(2002) 3 SCC 343

Facts of the 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 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 Court.

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.

Issues Raised

1. Whether it would be permissible to initiate contempt proceedings for scandalising the court where the contents of an affidavit cause no contempt to any Judge personally but the action tried to cast an injury to the public by creating a wrong impression in the mind of the people regarding integrity, ability and fairness of the judiciary?

2. Extent to which and circumstances in which fair criticism of Judge, court or its functioning would be permissible under Article 19(1) (a) and (2)?

3. Whether freedom of press is guaranteed separately from and is the same as freedom of expression under Article 19(1)?

4. How should the court deal with a case when a contemnor does not show any repentance or remorse but persistently and consistently tried to justify the prima facie contemptuous action and to frustrate the contempt proceedings?

Law Laid Down

1. Proceedings under Section 14 of the Contempt of Courts Act are distinguishable from Section 15 of the said Act. When action is at the instance of the Court there is no question of any motion of and prejudice from any Judge. Accepting the plea raised by the respondent would amount to depriving all the Judges of the Court to hear the matter and thus frustrate the contempt proceedings which cannot be the mandate of law.

2. The judiciary is not immune from criticism but when that criticism is based on obvious distortion or gross misstatement and made in a manner which is designed

to lower the respect of the judiciary and destroy public.

3. Under the Constitution, there is no separate guarantee of the freedom of the press and it is the same freedom of expression, which is conferred on all citizens under Article 19(1). Any expression of opinion would therefore, be not immune from the liability for exceeding the limits either under the law of defamation or contempt of court or the other constitutional limitations under Article 19(2).

4. When a respondent has not shown any repentance or regret or remorse, no lenient view should be taken in the matter. It is difficult for the court either to shrug off or to hold the accusations made as comments of an outspoken ordinary man and permit the wrong headed to err therein.

SAHARA INDIA REAL ESTATE CORP LTD.

V

SEBI

Five Judges Bench Justice S.H. Kapadia, D.K. Jain S.S.

Nijjar, Ranjana Desai and J.S. Khehar.

Judgment by

Justice S.H. Kapadia, CJI

Importance

Doctrine of Postponement

Facts of the Case

1. In a matter pending before it, the Supreme Court asked the SAHARA and SEBI to attempt to reach a consensus.

2. A day prior to the next date of hearing, one of the news channels flashed the details of the proposal made by SAHARA to SEBI

3. On a request made by SAHARA, the Supreme Court decided to take up the matter with regard to the reporting of subjudice matters.

It related to reporting of matters by electronic and

print media.

Issues Raised

1. Whether the courts can lay down guidelines for the media?

2. Whether the media should self regulate itself.

3. The balancing of rights under Articles 19(1)(a) vis a vis 21

There is a difference between law making and framing of

guidelines. Hence, can the Supreme Court entertain

such a matter.

Law Laid Down

Open justice permits fair and accurate reports of court

proceedings to be published.

1. Free speech, in appropriate cases, has got to co-relate with right to a fair trial.

2. Trial by newspapers comes in the category of acts which interferes with the course of justice or due administration of justice.

3. Prior restraint has not been rejected as constitutionally impermissible.

Postponement of publicity is a judicial mechanism to

balance presumption of innocence.

The applicant who seeks order of postponement of

publicity must displace the presumption of open justice.

Postponement order not only safeguards fairness of the

later or connected trials, it prevents possible contempt by

the media.

Balancing of rights under Article 19(1) or equal public

interest by order of postponement of publication or publicity

would apply in cases in which there is real and substantial

risk of prejudice to the proper administration of justice or to

the fairness of trial and within the parameters of necessity

and proportionality which would satisfy the test of

reasonableness in Articles 14 and 19(2).

The postponement orders is a neutralizing device evolved

by the Courts to balance interests of equal weightage, viz.

freedom of expression vis a vis freedom of trial, in the

context of the law of contempt.

Order of postponement should be passed only when

reasonable alternative methods or measures such as

change of venue or postponement of trial will not prevent

the risk to the fairness of the trial and when the salutary

effects of such orders outweigh the deleterious effects to

the free expression of those effected by the prior restraint.

The postponement order is not a punitive measure, but a

preventive measures.

The text of Article 141 means law made while interpreting

the statutes or the Constitution. Such judicial law making

is a part of judicial process.