DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

MEDIA AND LAW

PROJECT ON

CONTEMPT OF COURT VIS-À-VIS MEDIA

SUBMITTED BY: UNDER THE GUIDANCE OF:

NIKHIL DEO Dr. ANKITA YADAV
Enrollment No.180101091 Assistant Professor (Law)
SEMESTER IX Dr. Ram Manohar Lohiya National
B.A.L.L.B. (Hons) Law University, Lucknow
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 India1, 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”).2
1
Article 19 in The Constitution Of India 1949

2
Section 2 in the Contempt of Courts Act, 1971
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 Guha3, 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 Devi4 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.
3
Smt. Archana Guha v. Sri Ranjit Guha 1989
4
NN Choudhuri v. Bela Bala Devi AIR 1952 Cal 702
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 5held 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 Bose6, 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: Mulgaokar7 and that of In Re:
Shri Shyam Lal 8were 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
5
Debi Prasad Sharma and Ors. v. The King Emperor AIR 1943 PC 202
6
Ashwini Kumar Ghose v. Arabinda Bose 1953 SCJ 38
7
In Re: Shri Shyam Lal AIR 1978 SC 489.
8
In Re: Mulgaokar (1978) 3 SCC 339.
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, 9 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,10
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.

9
Section 3 in the Contempt of Courts Act, 1971
10
Santosh Kumar Singh v. State (2010) 9 SCC 747.
The Supreme Court in Sahara India Real Estate Corp. v. SEBI 11, 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.
11
Sahara India Real Estate Corp. v. SEBI (2012)
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.