Contempt of Court & Media

Professor Madabhushi Sridhar NALSAR University of Law

“We are not final because we are infallible, but we are infallible only because we are final.” ---Justice Jackson in Brown v. Allen

Shivshankar

PN Duda v P Shivashankar AIR 1988 SC 1208: SC consisting of an elite class with sympathy for the zamindars interpreted the word compensation in Art 31 contrary to spirit of amendment…Bank magnates got higher compensation because of SC and anti-social elements like FERA violators, bride burners and others find their haven in SC.

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Criticism is not contempt

Any criticism about the Judicial system or the judges which hampers the admn of justice of which erodes faith in the objective approach of the judges and brings the admn of justice into ridicule must be prevented. SC held Shivshankar not committed contempt.

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Nambudripad convicted

Earlier Namboodripad had been convicted for contempt for a speech which was a pure theoretical statement on the role of the judiciary from a Marxist perspective. E.M. Sankaran

Namboodripad v. T. Narayanan Nambiar, AIR 1970 SC 2015. Critics pointed out that Shivshankar was a former judge & Law minister was the difference between him and Namboodripad. S.P. Sathe, Accountability of the Supreme Court, ECONOMIC AND POLITICAL WEEKLY, April 13,2002, at 1384.

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Wah India case

Whether the ratings that senior advocates had assigned to judges based on parameters like integrity, understanding of law, and courtroom behaviour was challenging the credibility of the judiciary on the whole?

almost all judges secured more than 30 out of 60, and very few less than 40, out of the total of the 31 sitting judges who had been ranked

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SC was furious

SC the Police to seize and confiscate copies of the issue of the magazine from shops, news-stands or any other place where they were being sold.

SC directed that no one shall publish an article similar to it, or any article, news, letter or any material that tended to lower the authority, dignity and prestige of the members of the judiciary

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Bar on media reporting

SC also put a bar on reporting the proceedings of the case in the media, including contents of the article, in any manner. Later it allowed media coverage after uproar from media persons. Editor tendered apology.

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Lord Denning says “Let me say at once that we will never use this

jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest…” R v. Commissioner of Police of the Metropolis, Ex parte

Blackburn (No. 2) (1968) 2 QB 150.

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Mid-Day vs xCJI On May 18th 2007, the Mid-Day daily reported that retired Justice Y.K.

Sabharwal, in the capacity of the Chief Justice of India, passed judgments on the sealing of commercial property in the residential areas thereby benefiting his sons who were partners in a commercial enterprise involved in the construction business.

On May 19, a cartoon by Mr. Md. Irfaan Khan, depicted YKS in his robes holding a bag with currency flowing out. It also depicted a man sitting on the side walk saying “Help! The mall is in your court.”

This was thought by the Court as being aimed at lowering the image of the judiciary. Court on its Own Motion v. M.K. Tayal and Ors

Truth was claimed as defence. Court used its discretion to deny the defence to Mid-Day and convicted the journalist.

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Against Arundhati Roy In ‘the Greater Common Good’ in Outlook AR ridiculed the

‘tender concern’ that SC judges had expressed in regard to the availability of children’s park for the children of the tribal inhabitants who would be displaced when the height of the Sardar Sarovar dam was increased. She had pointed out the ground reality of the plight of the hitherto happy, simple minded tribals who had been living among nature’s beautiful creations for ages and who had now, not even been allotted any land for rehabilitation.

Held ‘contempt of court’ - In re Arundhati Roy, AIR 2002 SC 1375. SC has time and again referred to freedom of speech and expression as being used as a cover by offenders guilty of contempt of court.

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Contempt cases against Roy

After final judgment in Sardar Sarovar dam case, NBA staged a dharna at SC gate. Lawyers filed CoC against Medha, Prashant Bhushan & Arundhati Roy. In affidavits they denied and claimed right to criticise the judiciary.

Held as frivolous complaint. Acquitted. But SC took suo motu notice of CoC in Affidavit of AR

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Critical remarks in Affidavit

Arundhati Roy pointed out in her affidavit that there seemed to be an inconsistency in the approach of the Court to the urgency of the contempt proceedings in comparison to other serious issues…..

‘disquieting inclination on the part of the Court to silence criticism and muzzle dissent; to harass and intimidate those who disagree with it’.

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Right to fair trial & Free press

Constitution of India (Articles 129 and 215) and the Contempt of Courts Act, 1971 intended to insulate courts from external influences for purposes of fair trial.

Freedom of press stems from right of public in a democracy to be involved on the issues of the day, affecting them.

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Sub judice

Any obstruction that prejudice the fair trial could be contempt of court.

Media’s right to comment on matters of public interest, vis-à-vis sub-judice

There must be reasonable ground to believe that the danger apprehended is real and imminent. (Charlotte Anita Whitney vs. People of the State of California, 374 US 357)

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Disobey – disrespect - scandalize

It is the judge's strongest power to impose sanctions for Contempt.

a failure to obey a lawful order of a court, showing disrespect for the judge, disruption of the proceedings through poor

behaviour, or publication of material deemed likely to

jeopardize a fair trial.

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Civil Contempt - 4 essentials

Existence of a lawful order The potential contemnor's knowledge of

the order The potential contemnor's ability to

comply The potential contemnor's failure to

comply

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Purpose of Law The purpose of contempt of courts Act

is to protect the dignity of and respect for the seat of justice (more than to protect the reputation of the person sitting there as judge)

It operates as restriction over the freedom of speech and expression of the citizens under Article 19(2)

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Constitution Supreme Court and High Courts have

inherent powers to punish for their contempt, as they are Courts of Record.

Art 129 Power of SC to punish for CoC Art 215 Power of HC to punish for CoC Art 211 No discussion about conduct of

judge in the Legislature.

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Zealous guard and allergic to scrutiny No profession is so insular and zealous

in guarding and exercising its powers with widest latitude in interpreting its scope and extent as judiciary. And no other class of powerful people is so allergic to both self regulations and scrutiny by external agencies as judges. (Judging judges)

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Individual Judge Criticism or defamatory statement of an

individual judge necessarily not contempt of court, if it pertains to his individual capacity

Contempt means disgrace, scorn, disobedience of the court order. Scandalization of court or obstruction of its process etc.

UK CoC Act 1981

Under Contempt of Court Act 1981 it is criminal contempt of court to publish anything which creates a real risk that the course of justice in proceedings may be seriously impaired. It only applies where proceedings are active.

This prevents media from publishing material that is too extreme or sensationalist about a criminal case until the trial is over

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US: Direct

Under American jurisprudence, direct or indirect and civil or criminal.

Direct contempt occurs in the presence of a judge; Indirect= disobedience

civil contempt is "coercive and remedial" as opposed to punitive. (18 USC 401-403 and Federal Rule of Criminal Procedure 42.)

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India; Contempt is Civil and Criminal

‘Civil contempt’ means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. (Sec 2(b) CoC Act)

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Scandalization S 2(c) ‘Criminal contempt’ means the

publication (whether by words,spoken or written,or by signs, or by visible representations),or otherwise of any matter or the doing of any other act whatsoever which,

scandalizes or tends to scandalize,or lowers or tends to lower the authority of any Court; or

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Interference

ii) prejudices,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.

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Essentials of C o C

Before a person can be convicted, the Court should be satisfied

a) that something bas been published which either is clearly intended or at least is calculated to prejudice a trial which is pending;

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Knowledge of interference b)that the offending matter was published

with the knowledge of the pending cause or with the knowledge that the cause was imminent;and

c)that the matter published tended substantially to interfere with the due course of justice or was calculated substantially to create prejudice in the public mind.

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DISTINCTION BETWEEN CIVIL AND CRIMINAL CONTEMPT

CIVIL CONTEMPT • 1. Essentially of a

private nature since they deprive a party of the benefits of an order

• 2.orders are primarily remedial; to coerce the offender to obey the court order.

CRIMINAL CONTEMPT • 1.This is penal; to protect

the public interest of unhampered justice administration.

• 2.When there is defiance

coupled with disobedience, there will be increased punishment.

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DISTINCTION BETWEEN CIVIL AND CRIMINAL CONTEMPT

Civil Contempt • 3. To constitute civil

contempt, there must be i) knowledge of the order, and

ii ) willful disobedience

Criminal Contempt • 3. Failure to obey an

order of Injunction is not criminal contempt as long as the aggrieved party does not abuse the Court.

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Kinds of C o C Administrative- to affect efficacy of courts Pursuasive- influencing the mind of lawyers

litigants, juries and judges, eg Request to release accused saying he is innocent

Usurpatory- eg: prejudging the issues- x is real criminal, court is examining y.

Scandalizing- eg: imputing dishonesty, ‘sold’, x is prejudiced judge

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Cr Contempt Section 2 c Publications likely to prejudice fair trial Publications which prejudge issues in

pending proceedings Publications which scandalize or lower

authority Publications which interfere with or

obstruct persons having duties to discharge in court of justice

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Contemptuous acts Acts interfering with persons over whom

court exercises a special jurisdiction Acts in abuse of process of court Acts in breach of duty by the persons

officially connected with the court or its process.

Hurling shoes at judge to overawe him (RK Garg v HP AIR 1981 SC 1382

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Pritish Nandy case “When sleuths

descended on Guruvayur they found that the wily high priest had tapped his political connection to secure anticipatory bail”…it is in bad light, still not scandalization (1987CrLJ 192,DB)

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Veereshalingam Veereshalingam in

Vivekavardhini, judge took bribe and redrafted judgment, proved by pieces from dustbin. Not CoC.

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Hindustan Times Case Hindustan Times Case: “judicial officers

were requested by CJ who was asked by His Excellency Governor to raise subscriptions for the war fund” PC held no contempt as act was not judicial. 1960

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Surendranath Banerjee case Justice Norris was

harshly criticised by Surendranath Banerjee in Bengalee “ justice Norris determined to set the Hugli on fire..etc’ (Salagram was brought into Court room for identification) Held Contempt- 2 months imp.

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Gandhiji & Contempt case “It is through courts

that a govt established its authority and it is through schools it manufactures clerks. They are both healthy institutions where the Govt in charge of them on the whole just. They are death traps when the Govt is unjust”

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Young India case Gandhi commented on pending cases,

argued that press had right to discuss questions of public importance. Truth was no defence. Refused to apologise. He was left out with warning.

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Examples of Scandalizing If stated in reply to show cause notice:

respondent’s experience with courts is worse.

‘Judge acted maliciously, or he has an interest in the subject matter of case’

Attributing motives, casting aspersions, defaming character, calling it instrument of oppression.

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Contempt Of Court: A major Limitation on Freedom of Expression

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What is the Report? When the enquiry report was asked to

be disclosed, the authorities claimed secrecy.

Do we have right to information to know how the judges were cleared?

Contempt of court stops it again.

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What is not Contempt Disobedience of illegal order, unjustifiable

order also a contempt But disobedience to an order of Court passed

without jurisdiction does not amount to contempt.

An order irregularly obtained cannot be treated as nullity, but must be implicitly obeyed ,until it is discharged , by a proper application .

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Lack of Jurisdiction Even if the court lacks pecuniary or

territorial jurisdiction, the order has to be obeyed. Only when it has no inherent jurisdiction, the disobedience of its order is not contempt.

Breach of an undertaking given to the Court is contempt of court. Eg Kalyan Singh etc.

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CoC regarding Witnesses a ) keeping a witness out of the way to

avoid service of a subpoena; b) intimidating a witness or a person

likely to be called as a witness; c)arresting a witness while attending

the court to give evidence;

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Obstructing Witnesses d)endeavoring to influence a witness against

a party; e)dismissing a servant for having given

evidence on behalf of the opposite party; f)endeavoring by bribery or inducing

witnesses to suppress evidence;and g)tutoring witness inside or outside the court

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Innocent Publication Section 3- of Contempt of Court Act,

1973 Innocent publication about a pending

judicial matter and distribution of matter is no contempt, if the publisher has no reasonable grounds for believing that the proceeding was pending.

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Knowledge and Newspapers A distributor of a book ,containing

matter that may be contemptuous,because of a comment on judicial matter or otherwise,may be not responsible unless he has knowledge of the contempt.This provision will not apply to newspapers.

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Press Freedom

Sec.4: Fair and accurate report of judicial proceeding is no contempt.

Sec.5: Fair criticism of a judicial Act is no contempt, if the criticism is on the merits of the case

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Rights of Press Right to information about court proceedings Right to participate with respect of matters Right to free speech irrespective of pending

matters, without prejudicing or obstructing Right to evaluate and criticize working of

courts

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Witnesses Should be Free and Fearless to Speak out Truth

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S Mulgaokar Fierce attack on SC during Emergency,

in detention case of ADM Jabalpur. Decided to drop the case: existence of contempt power does not obligate its exercise on every occasion, but triggers it only in special situations, not routinely” (AIR 1978 SC 727)

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Kuldip Nair K interviewed ES

Venkatramiah, Ex CJI, made critical comments on judicial conduct, Court declined to take CoC proceedings. (AIR 1988 SC 1208)

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Contempt in ‘question’ form Ramakrishna Reddy v State of Madras,

1952 SC 149 Is sub magistrate Kovvur corrupt? =

contempt of court in question form. Question mark or quoting doubts will

not help escaping liability

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Complaint is no contempt Sec.6 :Complaint made to the High

Court, against presiding officers of the subordinate Courts, if made in good faith, is not contempt. Unfortunately, the Section does not make clear if complaints about High Court judges ,would come under the ambit of the protection given by this Section.

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In camera information Sec. 7 :Even publication of information

relating to proceedings in camera may not normally be contempt,unless it falls under any of the following categories:

a )publication contrary tot he provisions of the law,time being in force

b ) the Court expressly forbids the publication

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Publication of ‘in camera’ c )publication prejudicial to the security

of the State. d) where the information relates to a

secret or commercially valuable process,which is the issue in such proceedings.

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Defence to Civil CoC 1) Disobeyed order was passed by a Court

not having jurisdiction 2) vague order/order not clear and being

ambiguous 3) Serious /reasonable question on the

interpretation of the orders. 4) ignorance of the order allegedly being

disobeyed. 5) nonservice of mandatory order 6) source of information ,not being

authentic.

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Power of the High Court Sec. 10: High Court exercises contempt

jurisdiction,even if the contempt is committed against subordinate judiciary.

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IPC and Contempt of court If the contemptuous act alleged, is also

an offence punishable under IPC, then the High Court will not take cognizance thereof

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Offence Outside the HC

Sec.11 :High Courts have powers to try even those acts committed outside their territorial jurisdiction or by persons who live outside the jurisdiction of the said High Courts.

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Punishment for Contempt Sec.12 :Punishment for contempt of

Court shall not exceed the maximum ‘simple imprisonment’ of 6 months /or fine of Rs. 2000/- or both.

Sometimes if the gravity of the contempt is less,instead of ‘simple imprisonment’ ,the contemnor may be committed to civil prison

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Effect of Apology on Contempt

If an Apology is made at the right time,contemnor will be exonerated of the contempt.

An Apology cannot be rejected on the ground that it is qualified/conditional and there are no bonafides in the Apology.

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Contempt by artificial persons

If a Company commits contempt, the Board of Directors,and other officers,like the Company Secretary will be responsible.If they can prove that they are not aware of the contempt, and tried their best to prevent contempt,they can be exonerated.

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Interference is essential

Sec. 13 : Merely because a contempt has been committed, it does not always warrant punishment, unless the contempt interferes or substantially interferes with Justice, there should not be any punishment.

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Fair Procedure

Sec. 14 : The High Court and the Supreme Court should provide a fair procedure for adjudication of contempt of Court cases.

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Truth: a partial defence ‘Truth’ is a defence in contempt cases,

if stated in public interest. Indirect Tax Practitioners Association, Bangalore vs. R.K. Jain

(August 13, 2010) SC (G.S. Singhvi and Asok Kumar Ganguly), held Editorial by RK Jain in Excise Law Times was not contempt as it was “truth based on facts”. The qualification is that such defence should not be a cover-up to escape from the consequences of a deliberate effort to scandalise the court.

SC ordered Rs. 2 lakh in costs on the petitioner association, of which Rs. 1 lakh would go to Jain and the rest would be

deposited with the Supreme Court Legal Services Committee.

Justification by truth

“Section 13 is legislative recognition of one of the fundamentals of our value system, truth. This enables the court to permit ‘justification by truth' as a valid defence in any contempt proceeding if it is satisfied that such defence is in public interest and the request for invoking the defence is bona fide.”

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Justice Singhvi says: “In the land of Gautam Buddha, Mahavir and

Mahatma Gandhi, the freedom of speech and expression and freedom to speak one's mind have always been respected. After Independence, the Courts have zealously guarded this most precious freedom of every human being. Fair criticism of the system of administration of justice or functioning of institutions or authorities entrusted with the task of deciding rights of the parties gives an opportunity to the operators of the system/institution to remedy the wrong and also bring about improvements.”

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Who can initiate crime for CoC b ) Advocate General c ) Attorney General d ) Solicitor General a ) either the High Court /Supreme Court on

its own motion e ) any person. with the consent in writing

from the Advocate General.

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Contempt by Judges Sec .16 :Foresees possibility of

contempt by judges/Magistrates acting in their judicial capacity

Sec. 17 : Procedure for dealing with criminal contempt cases

Sec. 18 :All contempt cases are heard by a Bench of two Judges

Sec. 19 Appeals

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Limitation Period

Sec .21 :Limitation period is 1 year from the date of contempt.

Sec. 22 :Act shall not apply to Nyaya Panchayats and Village Courts

Sir Phillip Curran

When Sir Phillip Curan was arguing a case, Judge started caressing his spaniel sitting next to him. When Phillip stopped, the judge said: ‘Go on’, and Phillip retorted: “I thought your Lordships were in consultation”.

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Ridiculous

Presiding Judge once asked Sir Phillip “Do you see any thing ridiculous in my wig?’ and Sir Phillip said:

Nothing my Lord, except your Lordship’s head. (Contributed by Vepa P Sarathy)

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