12/28/21, 10:06 PM Contempt of court by media : a study - iPleaders

Contempt of court by media : a study

By Diva Rai - November 27, 2021

Image source - https://bit.ly/3nTTuNy

This article is authored by Aparna Venkataraman, student of Tamil Nadu National Law
University.

Table of Contents 
0.1. Introduction
0.2. Research questions
0.3. Objective and scope of the research
0.4. Media freedom and contempt of courts in India
0.5. Media trials : a legal perspective
0.6. Conclusion
0.7. References

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

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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
1. Whether the current Contempt of Courts Act, 1971 is one of the answers to restricting
media freedom?

2. What is the role of the Contempt of Courts Act, 1971 in media trials? 

3. 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. 

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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

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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.

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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.

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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

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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%20S
[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

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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.pdf

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