Contempt

IN Press Laws Guide | 17/09/2012

1. What is contempt of court?

Answer: Any act which hinders or impairs the judicial proceedings and interferes in the administration of justice constitutes Contempt of Court. Such act or conduct is dealt with under the Contempt of Court Act, 1971.

Reasoning: In order to keep faith of the public in the law and order machinery of the State, the Contempt of Court Act has been passed by the legislature. If any act of a person undermines the confidence of the society in the justice delivery system of the country then action has to be taken against him. Thus, the Contempt of Court Act, 1971 makes Contempt of Court a punishable act. Section 2(a) of the Contempt of Court Act states that contempt can be of two types: civil or criminal.
 
Effect: A person who does an act which affects the judicial system of the country or is likely to effect the judicial system should be aware that he can be held liable for Contempt of Court under the Act. The effect of the legislation is to protect the law enforcement machinery from false allegations and accusations.
 
2. Is contempt a civil or criminal offence?
 
Answer: Contempt of Court can be a civil as well as a criminal offence under the Contempt of Court Act, 1971. Section 2(a) of the Act, states that contempt means civil or criminal contempt. Section 2(b) of the Act, defines civil contempt. Civil Contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. Criminal Contempt has been defined in Section 2(c). It means publication of may matter or may other act which lowers or tends to lower the authority of any court or interferes or tends to interfere in the judicial proceedings or administration of justice.
 
Section 12 of the Contempt of Court, 1971 provides the punishment for contempt. It states that the offender maybe punished with simple imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees or with both. However, the accused maybe discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Further, where a person is guilty of civil contempt and the Court feels that the imposition of fine is not enough, the person can be detained in civil prison for a maximum period of six months.
 
3. What are the different situations where I can be charged with contempt of court?
 
Answer: A person can be charged with Contempt of Court under the Contempt of Court Act, 1971. Section 2(a) states that contempt can be either civil or criminal. Section 2(b) and Section 2(c) lay down the ingredients which need to be satisfied to be held liable for civil and criminal contempt respectively. The same has been explained in Question 2.
 
Reasoning: There is no one definition of contempt which can cover all the situations of contempt which can arise. The following acts of conduct have been held to be contempt of court according to established case laws:
  • Flinging of shoes on the judge
  • Slapping a lawyer in the premises of the Court
  • Undermining the judicial system through pleadings given in the Court
  • Making personal attacks on a judge through publications
Effect: There are various situations which can give arise to Contempt of Court under the Contempt of Court Act, 1971. It is the duty of the journalists to ensure that their act does not constitute contempt otherwise they can be prosecuted under the Act.
 
4. Can I be held guilty for contempt of court for criticising the personal behaviour of a judge?
 
Answer: A person can be held liable for criticising the personal behaviour of a judge if it undermines the confidence of the public in the judicial system as a whole. Criticism of the personal behaviour of a judge can constitute Contempt of Court the ingredients stated in Section 2(c) of the Contempt of Court Act, 1971. Section 2(c) defines criminal contempt.
 
Reasoning: The main aim of the Contempt of Court Act, 1971 is to maintain the faith of the public in the justice delivery system. Thus, if the personal behaviour of the judge is criticised and it does not affect the judicial system in any manner then the Contempt of Court is not attracted. The judge may sue you for defamation but no action for arises for contempt. However, if the attack on the judge reflects badly on the entire judicial system then it can constitute contempt. For criminal contempt, the ingredients laid down in Section 2 (c) of the Contempt of Court Act need to be satisfied.
 
Effect: Even though a person may have criticised the personal behaviour of a judge, he can still be held liable for Criminal Contempt under the Contempt of Courts Act, 1971. Thus, before indulging in any such act the person should see to it that the comments will not result in Contempt of Court.
 
5. Can I be charged with contempt of court if I report something that the court takes issue with?
 
Answer: Yes, you can be charged with contempt of court for a report that the court takes issue with. Under the Contempt of Court Act, 1971 the Court can suo motto take action against any report which constitutes contempt according to it. Section 15 of the Contempt of Court Act gives power to the High Court or the Supreme Court to take cognizance of a Court on its own motion.
 
Reasoning: The Court does not have to wait for a motion to be presented before it to take cognizance of any act constituting contempt. The Court can take action on its own motion for any act which it feels can qualify as Contempt of Court. Under Section 15 of the Contempt of Court Act, 1971 cognizance of an offence can be taken by the Court in three ways. The Court can take action suo motto (i.e. on its own) or a motion can be made by the Attorney General or by any other person with the consent of the Attorney General.
 
Effect: The Court has been given power to charge a person with contempt of court even though no formal motion is presented before it by the concerned authority. Hence, if the Court takes an issue to any report which is published then it can charge the person with contempt under the Contempt of Court Act, 1971.
 
6. Who judges a contempt of court charge?
 
Answer: Contempt can either be in the face of the Court (i.e. in the presence or hearing of Court) under Section 14 of the Contempt of Court Act, 1971 or the Court can take cognizance of criminal contempt in other cases under Section 15 of the Contempt of Court Act, 1971.
In case of contempt in the face of court, the accused can make an application to be heard by any other judge than the one in whose presence the contempt was committed. However, if the court takes cognizance of the matter on the application of the concerned authority or even on its own motion then the accused has no choice on who will judge his case. This is because in this case there can be no question of biasness. The act of contempt is not against one particular judge but the institution as a whole.
 
7. Can I be held for contempt of court on a matter that has already been decided?
 
Answer: No, there cannot be contempt of court on a matter that has already been decided. Section 3(2) of the Contempt of Court Act, 1971 states that if the publication is in connection with any civil or criminal proceeding which is not pending at the time of publication then it does not constitute contempt.
 
Reasoning: Only those acts constitute contempt which interfere with the proceedings of the court or obstructs administration of justice. Therefore, if the matter has already been decided then any publication relating to that matter does not count as contempt. However, if the matter is pending in the court then it can constitute contempt. The matters which qualify as pending are also defined in Section 3 of the Contempt of Court Act, 1971. In civil cases a matter is said to be pending when the pliant is filed. In criminal matters when the charge sheet is filed the matter is said to be pending.
 
Effect: If the matter is respect of which the publication is made has already been decided then no contempt case can arise. However, if the matter is still pending in court then the publication can result in contempt of court.
 
8. Can I be held for contempt if I report on a non-public trial?
 
Answer: Yes, you can be held liable for contempt for reporting on a non public trial in certain cases. Generally, a person cannot be held liable for contempt if he publishes a fair and accurate reporting of a judicial proceeding held in camera i.e. a trial which is not public. However, in certain cases he can be held liable.
 
Reasoning: Section 7 of the Contempt of Court Act, 1971 states that publication of any information relating to proceedings in chamber or in camera is generally not contempt. The publication has to be a fair and accurate reporting of a judicial proceeding. However, in the following four cases such publication can lead to contempt.
  1. Where it is against any law for the time being in force.
  2. Where the Court expressly prohibits on the ground of public policy.
  3. Where the matter is connected with the public order or the security of the State.
  4. Where the information relates to a secret process, discovery or invention.
Effect: The journalists have a right to publish fair and accurate proceedings of an in camera trial also. However, if such publication comes within the restrictions stated under the Contempt of Court Act, 1971 then they can be prosecuted for contempt of court.
 
9. If found guilty of contempt of court, can I evade imprisonment by tendering an apology?

Answer: Yes, you can evade imprisonment by tendering an apology. Under Section 12(1) of the Contempt of Court Act, 1971, the person charged with contempt can be discharged or the punishment awarded can be remitted on tendering of an apology to the satisfaction of the Court. However, an apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. Thus an essential element is that the apology should be given by the accused.

CASE LAW

Centre for Law and Policy Research

Case Briefs (No. 1 of 2014)

Journalists and the Law of Contempt

I. Introduction

Section 2(c) of the Contempt of Courts Act, 1971, defines criminal contempt as:

“(c) criminal contempt means the publication (whether by words, spoken or written,  or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of,  any court; or

(ii) prejudices, or 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;

Under this provision, there are have been largely two different kinds of cases in which journalists have faced criminal contempt charges -  firstly, when there is an article which scandalizes or tends to scandalize or lower the dignity of the judiciary.

This would include comments or remarks on judges or the functionary of the judiciary etc. Secondly, when there are reports on pending litigation which could prejudice the outcome of the trial. Keeping in mind the famous statement of Lord Hardwicke, L. C.:

"There are three different sorts of contempt. One kind of contempt is scandalising the Court itself. There may be likewise a contempt of this Court, in abusing parties who are concerned in causes here. There may be also a contempt of this Court, in prejudicing mankind against persons before the case is heard."[i]

Journalists in India have found themselves entangled in criminal contempt cases since the early 1900s, and, over the course of time, the Courts have developed different tests to ascertain whether or not a particular article may be contemptuous.

Even if an article is found to be contemptuous, the Courts have followed a general trend of accepting apologies and not imposing criminal penalties upon the contemnors. Only in a few cases have the Courts imposed fines or imprisonment on the contemnors. 

II. Case Law decided by the Supreme Court of India

1. Perspective Publications vs. State Of Maharashtra 1971 AIR SC 221

Facts: There was an article that was published which contained several insinuations that a recent judgment delivered by one of the Judges, was influenced by the fact that the Judge’s brother was paid a loan of Rs 10lakh by one of the parties.

Held: The Editor and Publisher were found guilty of contempt and a fine of Rs 1000/- along with simple imprisonment of one month was imposed on them.

Reasoning:  Though the Editor and Publisher were found guilty, this case is interesting in that it laid down  the test for whether an act would amount to contempt. In the words of the majority judgment:

21. It is open to anyone to express fair, reasonable and legitimate criticisms of any act of conduct of a judge in his judicial capacity or even to make a proper and fair comment on any decision given by him because ‘justice is not a cloistered virtue and she must be allowed to suffer scrutiny and respectful, even though outspoken, comments of ordinary men.

22. A distinction must be made between a mere libel or defamation of a judge and what amounts to a contempt of the court. The test in each case would be whether the impugned publication is a mere defamatory attack on the judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by this Court. It is only in the latter case that it will be punishable as contempt.

23. Alternatively the test will be whether the wrong is done to the judge personally or it is done to the public. To borrow from the language of Mukherjee, J. ‘the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability, or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.[ii]

2. In Re S. Mulgaokar AIR 1978 SC 727

Facts: There was a publication in the Indian Express pertaining to a letter that was circulated amongst the judges of the Supreme Court and the High Courts on drafting a Code of Ethics for judges. The article also contained some comments on the nature of the judges, and specifically how certain judges lacked moral courage.

Held: The matter was dismissed and the article was held not to amount to contempt.

Reasoning: Justice Krishna Iyer laid down six principles which could be used as guidelines to see if a matter would amount to contempt of court. These guidelines can also be used in adjudging whether a certain publication in a newspaper or journal can amount to contempt. The six guidelines are as follows:

 “A) The Court will act with seriousness and severity 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.

B) The second principle must be to harmonize the constitutional values of free criticism, the fourth estate included, and the need for a fearless curial process and its presiding functionary, the judge. A happy balance has to be struck, the benefit of the doubt being given generously against the judge, slurring over marginal deviations but severely proving the supremacy of the law over pugnacious, vicious, unrepentant and malignant contemnors, be they the powerful press.  While invoking the power, constitutional value of free criticism and especially of the press had to be harmonised. Balance had to be struck, benefit of doubt being given generously against the Judge. While considering this, if it is found that the freedom of expression was fairly exercised, public justice could not gag it because free people are the guarantors of fearless justice.

C) The third principle is to avoid confusion between personal protection of a libelled judge and prevention of obstruction of public justice and the community’s confidence in that great process. The former is not contempt, the latter is, although overlapping spaces abound.

D) The fourth functional canon which channels discretionary exercise of the contempt power is that of the Fourth Estate, which is an indispensable intermediary between the State and the people and necessary instrumentality in strengthening the forces of democracy, should be given free play within responsible limits even when the focus of its critical attention is the court, including the highest court.

E) The fifth normative guideline for the judges to observe in this jurisdiction is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing condescending indifference and repudiation by judicial rectitude. 

F) The sixth consideration is that after evaluating the totality of factors, if the court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law, must in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream.[iii]

III. Case Law decided by the High Courts

1. Leo Roy Fray vs. R. Prasad AIR 1958 P&H 377 (Punjab and Haryana High Court)

Facts:  The Petitioner had been involved in a smuggling case and the respondents (along with several other publishers) had published articles about the case in which the petitioner was involved. The grievance of the petitioner was the certain phrases used in the articles as well as the photographs that were published along with the article amounted to contempt of court as they would interfere with the trial of the case.

Held: There was no contempt committed in this case as there was no question of the articles prejudicing the trial.

Reasoning: The court in this case developed a test to check whether a publication would amount to contempt of court – “Before the publisher of a newspaper can be committed for contempt, the court must be satisfied: (1) that the matter was pending in a Court of law or was imminent; (2) that the respondent was aware of this fact; (3) that the publication was intended or reasonably calculated to prejudice the fair trial of the case; (4) that under the circumstances of the case, the jurisdiction which the Court in that case possesses should be exercised; (5) that the object of the proceeding is to vindicate justice and not merely to ventilate a fancied grievance; and (6) that justice requires that an order of conviction should be recorded.[iv]

2. Vijay Mallya vs. Bennett Coleman, Criminal Contempt Petition No. 2 of 2009, decided on 10 March, 2010 (Bombay High Court)

Facts: An article was published in The Times of India based on the details of a pending litigation and was titled “Senior Citizen takes on “bullying” builder, Drags him to Court over Redevelopment Deal”. The article referredan incident where a resident refused to be coerced into signing a redevelopment agreement with the builders and the matter was been taken to the Civil Court. The article also stated that Vijay Mallya, the petitioner in this contempt petition, was not the landlord. The petitioner, worried that the article might affect the pending litigation proceedings, filed a contempt petition.

Held: It was held that the article would not amount to contempt because the court will have to decide whether the petitioner is the landlord based on the evidence on record and not based on what was being published in the newspapers and this would not prejudice the trial.

Reasoning:  The Court reasoned that newspapers have the right to publish correct, true and proper reports of court proceedings so that its readers may be kept updated. In addition, newspaper articles, such as the one in this case, should not be taken into account in any manner while deciding the rights of parties in pending proceedings and the proceedings should be decided in accordance with law on its own merit and evidence available on record.

3. Madras High Court Practising Advocates Association vs. Registrar 2012(3) CTC 225 (Madras High Court)

Facts: The Madras High Court Practising Advocates Association had approached the Chief Justice of the Madras High Court regarding several concerns that they had with respect to the administration of the Court. The details of their correspondence with the Chief Justice (CJ), along with the details of their demands to the CJ, were published in the New Indian Express on 20.3.2010 under the caption "Judicial Interference in Advocate Body Flayed". Being aggrieved by this publication, the petitioner decided to file a petition to direct the Registrar of the Court to issue suitable orders/directions to the print and electronic media not to publish any matter relating to the administration of the High Court without obtaining proper permission from the Registrar General and also not to publish any matter till the Court passed an order.  The petitioner stated that the news item flashed in the New Indian Express on 20.3.2010 under the caption "Judicial Interference in Advocate Body Flayed" prompted him to file this writ petition with a view to curb the interference of Press in the matter of administration of justice.

Held: This petition was dismissed.

Reasoning:  The Court felt that the grievances of the petitioner could not be addressed in the directions that were sought. The Court did not want to issue any directions to the Registrar restricting the dissemination of information regarding the High Court’s administration. However, it was held that:

25. A heavy responsibility lay on the press and the media to restrain themselves from publishing such pending administrative matters, if the disclosure of such pending matters damage the dignity, decorum and honour of any individual Judge or members of the judiciary. A good amount of responsibility is cast upon the press and media towards the society to see that the public order, decency and morality are safeguarded. However, it is made clear that there shall not be any restriction to the press and media to publish in the newspaper any decision taken on the administrative side of the High Court against any person after such decision is circulated to the person concerned. Last but not the least, we reiterate what has been held by the Supreme Court that the duty of a true and responsible journalist is to inform the people with accurate and impartial presentation of news after dispassionate evolution of facts and information received by him. Such news may not be published which tend to create apprehension in the minds of the people regarding the integrity, ability or fairness of the judicial officers. Elements of responsibility must be present in the minds of the journalists, if any news is published without knowing the authenticity, and the same will be improper and will not be healthy for maintaining the rule of law.”[v]

4. Court on its Own Motion vs. The Publisher, Times of India, Civil Writ Petition No. 7160 of 2013, decided on 4 April, 2013 (Punjab &Haryana High Court)

Facts:  The Court took up this matter in light of heavily opinionated articles published in local editions of The Times of India as well as the Hindustan Times, pertaining to a pending litigation regarding the auctioning of mines in the Aravalis by the Haryana Government. It was noticed that these articles were published a day prior to the days on which the matter was listed before the Punjab and Haryana High Court. The Court issued notice to the Editors of the local editions of the two newspapers and also impleaded the Union of India and the Press Council of India.

Held:  The petition was dismissed, since the right to freedom of speech and expression is to prevail without any hindrance, and the articles were  not in contempt.

Reasoning:  It was held that there has to be some constraints and the restraints on the aspect of manner in covering the court proceedings and where such publication interferes with the administration of justice, then certainly court can take some effective measures, including the proceedings under the Contempt of Courts Act. Where a provision, in the law, relating to contempt imposes reasonable restrictions, no citizen can take the liberty of scandalising the authority of the institution of judiciary. Freedom of speech and expression so far as they do not contravene the statutory limits as contained in the Act, are to prevail without any hindrance. It must, however, be remembered that the maintenance of dignity of courts is one of the cardinal principles of rule of law in a democratic set up and any criticism of the judiciary institution couched in language that apparently appears to be mere criticism, but ultimately results undermining the dignity of the court cannot be permitted and when it is found to have crossed the limits, then it has to be punished.

The Court did not impose any punishment or fine but it held that “As a matter of caution, the newspaper and the journalist ought to avoid publishing or commenting on evidence collected as result of investigative journalism at least from the date of the arrest of the accused, who is charged. They can be expected to scrupulously avoid commenting or evaluating a confession alleged to be made by any accused, lest they expose themselves to liability of contempt. The Newspapers and the Journalists have to avoid casting scurrilous aspersions on, or to impute improper motives, or to allege personal bias to the Judge while publishing news items. They cannot be permitted to scandalize the courts or the judiciary as a whole or make personal allegations of lack of ability or integrity against a Judge. They have to avoid unfair and unwarranted criticism by innuendo against the Judge. They can certainly be expected to ascertain the genuineness, correctness and authenticity from the record so as to avoid incorrect facts and wrong information about the court proceedings.”[vi]

Note: The following parameters were chosen while selecting cases – (a) Supreme Courts and High Court only (b) Cases which favoured the journalists/contempt was not held (c) judgments that laid down certain criteria or tests.


 [i] St. James's Evening Post case, (1742) 2 Atk. 469, p. 471

[ii] Perspective Publications vs. State Of Maharashtra, 1971 AIR SCC 221, para 21.

[iii] In Re S. Mulgaokar, AIR 1978 SC 727 para 27-33.

[iv] Leo Roy Fray vs. R. Prasad AIR 1958 P&H 377, para 18.

[v] Madras High Court Practising Advocates Association vs. Registrar 2012(3) CTC 225 (Madras High Court), para 25

[vi] Court on its Own Motion vs. The Publisher, Times of India, Civil Writ Petition No. 7160 of 2013,
 

 

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