Contempt of court and the media
Ritu Tiwary, Aju John
The problems raised by trial by media involve a tug of war between two conflicting principles free press and free trial. The freedom of the press stems from the right of the public in a democracy to be involved on the issues of the day, which affect them. People cannot adequately influence the decisions that affect their lives unless they can be adequately informed on the facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument. This is also the justification for investigative and campaign journalism.
At the same time, the right to fair trial, uninfluenced by extraneous pressures is recognized as a basic tenet of justice. The Constitution of India and the Contempt of Courts Act, 1971 contain provisions aimed at safeguarding the right to fair trial. Restrictions are imposed on the discussion or publication of matters relating to the merits of a case pending before a Court. A journalist may thus be liable for contempt of court if he publishes anything which might prejudice a fair trial or anything which impairs the impartiality of a court to decide a cause on its merits, whether the proceedings before the Court be a criminal or civil proceeding.
In relation to freedom of speech and expression, there are three types of contempt of court:
(a) One kind of contempt is scandalizing the court itself;
(b) There may likewise be a contempt of court in abusing parties who are concerned in causes in the court;
(c) There may also be contempt in prejudicing mankind against persons before the cause is heard.
However, the above classifications are by no means exhaustive. Very broadly speaking, the conduct may refer to anything that tends to bring the administration of justice into disrepute or to obstruct or interfere with the due course of justice.
Sensationalized journalism has also had an impact on the judiciary. For example, in upholding the imposition of the death penalty on Mohammed Afzal for the December 2001 attack on the Indian Parliament, Justice P. Venkatarama Reddi stated, (t)he incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender.
A media trial began almost immediately after Afzals arrest. Only one week after the attack, on 20 December 2001, the police called a press conference during the course of which Afzal incriminated himself in front of the national media. The media played an excessive and negative role in shaping the public conscience before Afzal was even tried.
Similarly, S.A.R. Geelani, one of Afzals co-defendants in the Parliament attack case, was initially sentenced to death for his alleged involvement despite an overwhelming lack of evidence. Large sections of the Indian media portrayed him as a dangerous and trained terrorist. On appeal, the Delhi High Court overturned Geelanis conviction and described the prosecutions case as at best, absurd and tragic.
Protection of the rights of the accused
Taking exception to the media interviewing witnesses and commenting on cases during trial, the Law Commission has recommended changes in the Contempt of Courts Act, 1971 to protect the rights of the accused and ensure the proper conduct of trial in its latest report titled Trial by Media, headed by Justice M Jagannadha Rao. It has also emphasised the need to sensitise journalists through proper training in certain aspects of the law. What is going on in the media may indeed be highly objectionable. Merely because it is tolerated by the courts, it may not cease to be contempt, the Commission noted in the report. The Commission said: In our country the lack of knowledge of law of contempt currently shows that there is extensive coverage of interviews with witnesses. The panel said that this is highly objectionable even under the current law of contempt if such interviews are conducted after the chargesheet is filed. We are of the view that there is considerable interference with the due administration of criminal justice and this will have to remedied by Parliament, the report said.
In its report submitted to the Government, the Commission said, Today there is a feeling that in view of the extensive use of the television and cable services, the whole pattern of publication of news has changed and several such publications are likely to have a prejudicial impact on the suspects, accused, witnesses and even judges and in general on the administration of justice. The report said, according to our law, a suspect/accused is entitled to a fair procedure and is presumed to be innocent till proved guilty in a court of law. None can be allowed to prejudge or prejudice his case by the time it goes to trial.
It said that publications, which interfered or tend to interfere with the administration of justice would amount to criminal contempt under the Contempt of Courts Act, 1971 and if in order to preclude such interference, the provisions of that Act impose reasonable restrictions on freedom of speech, such restrictions would be valid.
The report noted that at present, under Section 3 (2) of the Contempt of Courts Act, 1971 such publications would be contempt only if a chargesheet had been filed in a criminal case. The Commission has suggested that the starting point of a criminal case should be from the time of arrest of an accused and not from the time of filing of the charge sheet. In the perception of the Commission such an amendment would prevent the media from prejudging or prejudicing the case.
The United States and Australia both have stringent provisions regulating media trials, and the solutions that are envisaged to the damage caused to the right to a fair trial of the accused range from sequestering of the judge/jury for the duration of the trial, to transferring trials to more neutral jurisdictions, to declaring mistrials and acquitting accused persons, and in extreme cases, even barring further criminal complaints against an accused whose character has been so tarnished by media scrutiny that it would be impossible for him to be given a fair trial. In India, the Press Council of India does have regulations concerning reporting of sub judice matters, but a violation of these norms will only call for sanction against the media organization and will not necessarily ensure justice to the accused. At present, in India, the impossibility of a fair trial for an accused can possibly be a ground for transfer of cases to another jurisdiction. The Supreme Court has come down on trials by media, especially in dowry cases, where public sympathy is clearly with the victim and her family, and outpours of public outrage against the errant husband and his family easily find place in local publications.
In M P Lohia v. State of West Bengal, Justice Santosh Hegde of the Supreme Court felt compelled to note the disturbing factor. The case concerned the death of one Chandni in February, 2002 and the complaint in this regard was registered, the investigation was in progress and the application for grant of anticipatory bail had been disposed of by the High Court of Calcutta when an article has appeared in a magazine called Saga titled Doomed by Dowry written by one Kakoli Poddar based on her interview of the family of the deceased. Justice Hegde remarked that all material narrated therein are those that may be used in the forthcoming trial, and was convinced that they would certainly interfere with the administration of justice.
The need for openness
There is a concern that the above regulations may result in the restricted reporting of important cases. In the interests of ensuring fair trials, the media in UK for instance have restricted the reporting of terrorist trials for long periods. Conviction following a fair trial is a major weapon to combat terrorism.
The case with family courts is also similar. There is a feeling that the workings of, and the decisions made in family courts are too secretive. The argument runs that without increased openness there can be no confidence in the workings of the family court, and therefore no confidence in the process or the outcomes. To a consultation in the UK on the issue, the Newspaper Society wrote that:
We fully support the proposal that the media should be allowed to attend ALL family courts as of right and the principle of a general presumption of openness must be the established if public confidence and accountability is to be achieved. The role of the media as representative of the public particularly in relation to attendance at court proceedings is well established and understood.
Media groups argue that the solution lies in letting journalists in as of right to act as a proxy for the public. To restrict them would be to deny the public and mean that miscarriages of justice could go unrecognised and unreported.
The contempt law is as old as Common Law itself. The Court, however, will act only 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. The judiciary cannot be immune from criticism. Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of court. It is only the scurrilous abuse on a Judge in his character as a Judge, which would be actionable under the Contempt of Courts Act.
The freedom of the press and the independence of the judiciary are two of the most important indices of democracy in a country. It is essential to preserve both. Pliable press and subservient judiciary are the first step in the process of extinguishment of democratic lights.
(Ritu Tiwary is a student at HNLU in Raipur. Aju John is an editor at Indlaw.)
 The Constitution of India, arts. 129 and 215.
 Bathina v. State of Madras, (1952) SCR 425.
 Trial by Media at http://www.hrdc.net/sahrdc/ (March 3, 2008).
 See, Trial by Media: Free Speech v. Free Trial Criminal Procedure (Amendments to the Contempt of Court Act, 1971), 200th Law Commission Report, 2006.
 Supra note 24.
. J. H.R. Khanna, Freedom of Expression with particular reference to Freedom of the Media, (1982) 2 SCC (Jour) 1.