above parameters, postponement orders fall under Article
19(2) and they satisfy the test of reasonableness.
48. The contempt proceedings are quasi-criminal
in nature and the Court must be satisfied about the
contemnor’s guilt beyond reasonable doubt. We would
also like to hasten to add that the person cannot be
permitted to comment upon the conduct of the Court in
the name of fair criticism, which, if not checked, the
same would be detrimental to the institution itself. The
role of the Court is to maintain the majesty of law and to
permit reasonable criticism.
49. The print media integrates/assimilates people
and harmonizes their living. It moulds opinion and also
induces changes. The role of Press is also to generate
healthy debate and discussion. India is one of the 10th
largest publishers of the newspapers. Indian Press has
played a very important role in the country’s struggle for
freedom. The reporting must be error free, actual and
based on factual information. It should be objective and
interpretive in order to reach the truth and significant
facts and separate truth from falsehood. The
Journalist’s views should be without prejudice. There
should be clarity of expression. He has to undertake
research. He, as a sociologist, has to feel the pulse of the
society to usher new era. He has to garner public
opinion against the evils in the society and how to
eradicate them. In order to ensure that there is accurate
reporting of the court proceedings, the
Journalists/Reporters should be well conversant with
the legal terms and are expected to peruse the
judgments/orders of the Courts of law. Fearless and
independent press is essential to strengthen and nurture
the democracy.
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
COPC No.888 /2015
Decided on: 4.12.2015
Court on its own motion. …Petitioner.
Versus
Kuldeep Chauhan. …Respondent.
Coram:
Hon’ble Mr. Justice Rajiv Sharma, Judge.
Hon’ble Mr. Justice Sureshwar Thakur, Judge.
We had taken suo motu cognizance of the news item
published in the daily Edition of the Tribune on 27.11.2015
whereby the notice was issued to the local correspondent Sh.
Kuldeep Chauhan why contempt proceedings be not initiated
against him.
2. The Court on 21.11.2015 had issued the
following directions:
a) The Chief Secretary is directed to ensure that no vehicle attached to
the Hon’ble Judges is unnecessarily stopped or challened.
b) No vehicle except the vehicle of His Excellency Governor of Himachal
Pradesh, Hon’ble Chief Minister and Hon’ble Chief Justice and public
utility vehicles as provided under the Act shall ply between Shimla
Club to Lift and between Railway Board Building to C.T.O.
c) Till further orders by this Court, the permits/passes issued to ply the
vehicles between Shimla Club to Lift and between Railway Board
Building to C.T.O shall remain suspended.
d) Neither Additional District Magistrate nor Public Relation Officer,
Shimla shall issue any permit to ply the vehicles either on sealed
road or restricted road. The permits issued by these authorities shall
not be valid till further orders by this Court.
3. Thereafter the matter was listed on
27.11.2015 whereby we had taken note of the news item,
which appeared in the Tribune dated 22.11.2015 under
the caption “Now, vehicles to keep off sealed roads in
Shimla” and it was misquoted that the Judges/Chief
Minister and Governor were entitled to use the sealed
roads. The Court had categorically ordered on
21.11.2015 that the Governor, Chief Minister and
Hon’ble Chief Justice only were entitled to use the sealed
roads and the Judges of this Court were never permitted
to use the sealed roads as quoted in the news item
though clarified to some extent in the daily Edition dated
23.11.2015. The news item was published on
27.11.2015 under the caption “Harrowing time for
commuters, others” and again it was misquoted that
the Judges were permitted to use the sealed roads.
4. In view of this, show cause notice was issued
to Mr. Kuldeep Chauhan, Local Correspondent of daily
Edition of Tribune why contempt proceedings be not
initiated against him.
5. Mr. Kuldeep Chauhan appeared before us
and has filed an affidavit attested on 3.12.2015
extending unconditional and unqualified apology.
6. We were constrained to issue notice to the
reporter of the Tribune for repeatedly committing
mistakes by furnishing inaccurate and incorrect reports.
The news items published by the medium of print have a
great sway on the psyche of the public at large. The
journalists must take necessary precautions, more
particularly, while compiling the court proceedings.
Ordinarily, oral observations made by the learned
Advocate and Hon’ble Judges may not be carried in the
news papers. We also hasten to add that Judges must
accept healthy criticism of the judgments but the Judges
should not be criticized. The inaccurate and incorrect
news item is bound to prejudice the parties before the
courts of law. Thus, reporting of the court proceedings
of the pending cases before the courts of law commands
utmost responsibility and sincerity. We are of the view
that the proceedings in the courts of law must be
reported by the correspondents with legal background
and accredited to the Courts to avoid misquoting of court
proceedings.
7. Section 2 of the Contempt of Courts Act,
1971, defines expressions “contempt of Court”, “civil
contempt” and criminal contempt” as under:
“(a) “contempt of court” means civil contempt or criminal contempt;
(b) “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;
(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;”
8. According to Sections 3, 4 and 5, innocent
publication and distribution of matter may not amount
to contempt, including fair and accurate reporting of the
judicial proceedings and fair criticism of judicial act.
9. Article 129 of the Constitution of India reads
as under:
“The Supreme Court shall be a court of record and shall have
all the powers of such a court including the power to punish
for contempt of itself.”
10. Article 215 of the Constitution of India reads
as under:
“Every High Court shall be a court of record and shall have all
the powers of such a court including the power to punish for
contempt of itself.”
11. Thomas Jefferson stated as under:-
“Were it left to me to decide whether we should have a
government without newspapers, or newspapers without a
government, I should not hesitate a moment to prefer the
latter.”
12. George Washington stated as under:
“For my part I entertain a high idea of the utility of periodical
publications; insomuch as I could heartily desire, copies of ...
magazines, as well as common Gazettes, might be spread
through every city, town, and village in the United States. I
consider such vehicles of knowledge more happily calculated
than any other to preserve the liberty, stimulate the industry,
and ameliorate the morals of a free and enlightened people.-
13. Article One, Bill of Rights of the United
States Constitution, 1789 reads as under:
“Congress shall make no law ... abridging the freedom of
speech or of the press... -Article One, Bill of Rights of the
United States Constitution, 1789.”
14. Henry Steel Commager, preface to a history
of the New York Times, 1951 reads as under:
Here is the living disproof of the old adage that nothing is as
dead as yesterday's newspaper... This is what really happened,
reported by a free press to a free people. It is the raw material
of history; it is the story of our own times. -
15. In Renaissance Europe handwritten
newsletters were circulated privately among merchants,
passing along information about everything from wars
and economic conditions to social customs and "Human
Interest" features. The first printed forerunners of the
newspaper appeared in Germany in the late 1400's in
the form of news pamphlets or broadside.
16. The first newspaper in India was circulated in
1780 under the editorship of James Augustus Hickey.
On May 30, 1826 Udant Martand, the first Hindi
language newspaper was published in India from
Calcutta. The Urdu language newspaper Urda Akhbar
was published in 1836.
17. In the book “ A Treatise On the
Constitutional Limitations” by T.M. Colley, 1st Indian
Edition 2005, the Author has defined “freedom of speech
and press” to mean’
“The constitutional liberty of speech and of the press, as we
understand it, implies a right to freely utter and publish
whatever the citizen may please, and to be protected against
any responsibility for the publication, except so far as such
publications, from their blasphemy, obscenity or scandalous
character, may be a public offence, or as by their falsehood
and malice and they may injuriously affect the private
character of individuals. Or, to state, the same thing in
somewhat different words, we understand liberty of speech
and of the press to imply not only liberty to publish, but
complete immunity for the publication, so long as it is not
harmful in its character, when tested by such standards as the
law affords. For these standards we must look to the common
law rules which were in force when constitutional guarantees
were established”. (Chapter XII – “Liberty of Speech and of the
Press”, page 422).”
18. Author Dr. Durga Dass Basu in commentary
on the Constitution of India, 8th Edition 2007 has
illustrated the search for truth as under:
“The search for truth – Free speech is necessary to determine
the truth. But what is truth, a postmodern skeptic might
wonder. “The theory of our Constitution is that the best test
of truth is the power of the thought to get itself accepted in
the competition of the market. On this view, truth is
whatever most people say is. While the market place of ideas
may not always accurately filter that which is empirically
verifiable as true from false”, the critical question is not how
well truth will advance absolutely in conditions of freedom,
but how well it will advance in condition of freedom as
compared with some alternative set of condition”. Those who
hold to the idea that truth is a knowable if not always
verifiable concept are even most robust in their claim that
free expression in critical to finding truth. Related to truth is
the idea that free expression is necessary to develop moral
virtue. In a world of extreme moral relativism this may be but
a facet of the “market place of ideas” metaphor, but however
our moral campass as calibrated our ability to make moral
choices – to opt for good and reject evil – requires that we be
free to choose. The process of moral deliberation often
involves the expression of views, only to reconsider them
when others reply or react to the expressed sentiments.”
19. The U.S. Supreme Court in Thornhill v.
Alabama (1940) 310 US 88 has held as under:
“The safeguarding of these rights to the ends that men may
speak as they think on matters vital to them and that
falsehoods may be exposed through the processes of education
and discussion in essential to free government. Those who
won our independence had confidence in the power of free and
fearless reasoning and communications of ideas to discover
and spread political and economic truth. Noxious doctrines in
those fields may be refuted and their evil averted by the
courageous exercise of the right of free discussion.
Abridgement of freedom of speech and of the press, however,
impairs those opportunities for public education that are
essential to effective exercise of the power of correcting error
through the processes of popular government.”
20. In Schneider vs. Irvington, (1939) 308 US
147 (16), the U.S. Supreme Court has held that freedom
of speech is the foundation of free Government.
21. In Whitney v. California 247 US 214, it was
observed as under:
“Those who won our independence believed that the final end
of the state was to make men free to develop their faculties.
They believed liberty to be the secret of happiness and
courage to be secret of liberty. They believed that the
freedom to think as you will and to speak as you think are
means indispensable to the discovery and spread of political
truth; that without free speech and assembly discussion would
be futile…… that public discussion is a political duty, and that
this should be a fundamental principle of the American
Government.”
22. In Attorney General v. Times Newspaper
Ltd., (1973) 3 All ER 54, it was observed as under:
“Freedom of expression, as learned writers have observed, has
our broad social purposes to serve: (1) it helps individual to
attain self fulfillment, (2) it assists in the discovery of truth (3)
it strengthens the capacity of an individual in participating in
decision-making; (4) it provides a mechanism by which it
would be possible to establish a reasonable balance between
stability and social change. All members of society should be
able to form their own beliefs and communicate them freely to
others. In sum, fundamental principle involved here is the
people’s right to know. Freedom of speech and expression
should, therefore, receive a generous support from al those
who believe in the participation of people in the
administration.”
23. Historian Bury has observed that freedom of
expression is “a supreme condition of mental and moral
progress
24. U.S. Supreme Court in Speiser vs. Randall,
(1958) 357 US 513 (530) has held that it is absolutely
indispensable for the preservation of a free society in
which government is based upon the consent of an
informed citizenry and is dedicated to the protection of
the rights of all, even the most despised minorities.
25. In Cf. Walker vs. Birmingham, (1967) 388
US 307, U.S. Supreme Court has held that in punishing
contempt of Court, the State has to secure a balance
between two equally important principles - need for
freedom of expression and that for the independence and
dignity of the judiciary and the due administration of
justice.
26. In Conway vs. Johan, 331 US 367, Justice
Douglas and Justice Murphy have held as under:
“This was strong language, intemperate language, and we
assume, an unfair criticism. But a Judge may not hold in
contempt one who ventures to publish anything that tends to
make him unpopular or to belittle him. The vehemence of the
language used is not alone the measure of the power to punish
for contempt. The fire which it kindles must constitute an
imminent, not merely a likely threat to the administration of
justice. The danger must not be remote or even probable; it
must immediately imperil. But the law of contempt is not
made for the protection of Judges, who may be sensitive to
the winds of public opinion. Judges, are supposed to be men of
fortitude, able to thrive in a hardy climate. Conceivably a
campaign could be so managed and so aimed at the
sensibilities of a particular Judge and the matter pending
before him as to cross the forbidden line”
In the same case, JUSTICE MURPHY, in his concurring
opinion, said:
A free press lies at the heart of our democracy and its
preservation is essential to the survival of liberty. Any inroad
made upon the constitutional protection of a free press tends
to undermine the freedom of all men to print and to read the
truth.
In my view, the Constitution forbids a Judge from summarily
punishing a newspaper editor for printing an unjust attack
upon him or his method of dispensing justice. The only
possible exception is in the rare instance where the attack
might reasonably cause a real impediment to the
administration of justice. Unscrupulous and vindictive
criticism of the judiciary is regrettable. But Judges must not
retaliate by a summary suppression of such criticism for they
are bound by the command of the First Amendment. Any
summary suppression of unjust criticism carries with it an
ominous threat of summary suppression of all criticism. It is
to avoid that threat that the First Amendment, as I view it,
outlaws the summary contempt method of suppression.
Silence and a steady devotion to duty are the best answers to
irresponsible criticism and those Judges who feel the need for
giving a more visible demonstration of their feelings may take
advantage of various laws passed for that purpose, which do
not impinge upon a free press. The liberties guaranteed by the
First Amendment, however, are too highly prized to be subject
to the hazards of summary contempt procedure.
27. It was held in McLeod vs. Aubyin, (1899) AC
549 that the limits of bona fide criticism are
transgressed when improper motives are attributed to
judges and this cannot be viewed with placid equanimity.
28. Their Lordships of the Hon’ble Supreme
Court in Romesh Thappar vs. State of Madras, AIR
1950 SC 124 have held as under:
[11] It is also worthy of note that the word "sedition" which
occurred in Art. 13 (2) of the draft Constitution prepared by
the Drafting Committee was deleted before the article was
finally passed its Art.19 (2). In this connection it may be
recalled that the Federal Court had, in defining sedition in
Niharendu Dutt v. Emperor, 1942 F. C. R. 38 : (A. I. R. (29)
1942 F. C. 22 : 43 Cr. L. J. 504) held that "the acts or words
complained of must either incite to disorder or must be such
as to satisfy reasonable men that that is their intention or
tendency", but the Privy Council overruled that decision and
emphatically reaffirmed the view expressed in Queen-Empress
v. Bal Gangadhar Tilak, 22 Bom. 112 to the effect that
"the offence consisted in exciting or attempting to excite in
others certain bad feelings towards the Government and not in
exciting or attempting to excite mutiny or rebellion, or any
sort of actual disturbance, great or small" Emperor v. Sadashiv
Narayan, 74 I. A. 89 : (A.I.R. (34) 1947 P.C. 82 : 48 Cr. L.J.
791)."
Deletion of the word 'sedition' from the draft Art.13 (2),
therefore, shows that criticism of Government exciting
disaffection or bad feelings towards it is not to be regarded as
a justifying ground for restricting the freedom of expression
and of the press, unless it is such as to undermine the
security or tend to overthrow the State. It is also significant
that the corresponding Irish formula of "undermining the
public order or the authority of the State" (Art. 40 (6) (i) of the
Constitution of Eire, 1937) did not apparently find favour wish
the framers of the Indian Constitution. Thus, very narrow and
stringent limits have been set to permissible legislative
abridgement of the right of free speech and expression and
this was doubtless due to the realisation that freedom of
speech and of the press lay at the foundation of all democratic
organisations, for without free political discussion no public
education, so essential for the proper functioning of the
processes of popular Government, is possible. A freedom of
such amplitude might involve risks of a abuse. But the framers
of the Constitution may well have reflected with Madison who
was 'the leading spirit in the preparation of the First
Amendment of the Federal Constitution", that "it is better to
leave a few of its noxious branches to their luxuriant growth
than, by pruning them away, to injure the vigour of those
yielding the proper fruits" (Quoted in Near v. Minnesotta 283
U. S 607 at 717-8 ).
29. Their Lordships of the Hon’ble Supreme
Court in Maneka Gandhi vs. Union of India, (1978) 1
SCC 248 have held as under:
30. Now, it may be pointed out at the outset that it is not
our view that a right which is not specifically mentioned by
name can never be a fundamental right within the meaning of
Article 19(1). It is possible that a right does not find express
mention in any clause of Article 19(1) and yet it may be
covered by some clause of that Article. Take for example, by
way of illustration, freedom of press. It is a most cherished
and valued freedom in a democracy: indeed democracy cannot
survive without a free press. Democracy is based essentially
on free debate and open discussion, for that is the only
corrective of Governmental action in a democratic set up. If
democracy means government of the people by the people, it
is obvious that every citizen must be entitled to participate in
the democratic process and in order to enable him to
intelligently exercise his right of making a choice, free and
general discussion of public matters is absolutely essential.
Manifestly, free debate and open discussion, in the most
comprehensive sense, is not possible unless there is a free and
independent press. Indeed the true measure of the health and
vigour of a democracy is always to be found in its press. Look
at its newspapers-do they reflect diversity of opinions and
views, do they contain expression of dissent and criticism
against governmental policies and actions, or do they
obsequiously sing the praises of the government or lionize or
deify the ruler. The newspapers are the index of the true
character of the Government-whether if is democratic or
authoritarian. It was Mr. Justice Potter Stewart who said :
"Without an informed and free press, there cannot be an
enlightened people". Thus freedom of the press constitutes
one of the pillars of democracy and indeed lies at the
foundation of democratic Organisation and yet it is not
enumerated in so many terms as a fundamental right in
Article 19(1), though there is a view held by some
constitutional jurists that this freedom is too basic and
fundamental not to receive express mention in Part III of the
Constitution. But it has been held by this Court in several
decisions, of which we may mention only three, namely,
Express Newspapers' case, Sakal Newspapers case and Bennett
Coleman & Co's case, that freedom of the press is part of the
right of free speech and expression and is covered by Article
19 (1) (a). The, reason is that freedom of the press is nothing
but an aspect of freedom of speech and expression. It partakes
of the same basic nature and character and is indeed an
integral part of free speech and expression and perhaps it
would not be incorrect to say that it is the same right
applicable in relation to the press. So also, freedom of
circulation is necessarily involved in freedom of speech and
expression and is part of it and hence enjoys the protection of
Article 19(1) (a). Vide Ramesh Thappar v. State of Madras(1).
Similarly, the right to paint or sing or dance or to write poetry
or literature is also covered by Article 19(1) (a), because the
common basic characteristic in all these activities is freedom
of speech and expression, or to put it differently, each of
these activities is an exercise of freedom of speech and
expression. It would thus be seen that even if a right is not
specifically named in Article 19(1), it may still be a
fundamental right covered by some clause of that Article, if it
is an integral part of a named fundamental right or partakes of
the same basic nature and character as that fundamental
right. It is not enough that a right claimed by the petitioner
flows or emanates from a named fwidamental right or that its
existence is necessary in order to make the exercise of the
named fundamental right meaningful and effective. Every
activity which facilitates the exercise of a named fundamental
right is not necessarily comprehended in that fundamental
right nor can it be regarded as such merely because it may not
be possible, otherwise to effectively exercise, that
fundamental right. The contrary construction would lead to
incongruous results and the entire scheme of Article 19(1)
which confers different rights and sanctions different
restrictions according to different standards depending upon.
the nature, of the right will be upset. What is necessary to be
seen is, and that is the test which must be applied, whether
the right claimed by the petitioner is an integral part of a
named fundamental right or partakes of the same basic nature
and character as the named fundamental right so that the
exercise of such right is in reality and substance nothing but
an instance of the exercise of the named fundamental right. If
this be the correct test, as we apprehend it is. the right to, go
abroad cannot in all circumstances be regarded as included in
freedom of speech and expression. Mr. Justice Douglas said in
Kent v. Dulles that "freedom of movement across frontiers in
either direction, and inside frontiers as well, was a part of our
heritage. Travel abroad. like travel within the country, ay be
necessary for livelihood. It may be as close to the heart of the
individual as the choice of what he eats, or wears, or reads.
Freedom of movement is basic in our Scheme of values." And
what the learned Judge, said in regard to freedom of
movement in his country holds good in our country as well.
Freedom of movement has been a part of our ancient tradition
which always upheld the dignity of man and saw in him the
embodiment of the Divine. The Vedic seers knew no
limitations either in the locomotion of the human body or in
the flight of the soul to higher planes of consciousness. Even
in the post-Upnishadic period, followed by the Buddhistic era
and the early centuries after Christ, the people of this country
went to foreign lands in pursuit of trade and business or in
search of knowledge or with a view to shedding on others the
light of knowledge imparted to them by their ancient sages
and seers. India expanded outside her borders: her ships
crossed the ocean and the fine superfluity of her wealth
brimmed over to the East as well as to the West. He cultural
messengers and envoys spread her arts and epics in South
East Asia and her religious conquered China and Japan and
other Far Eastern countries and spread westward as far as
Palestine and Alexendria. Even at the end of the last and the
beginning of the present century, our people sailed across the
seas to settle down in the African countries. Freedom of
movement at home and abroad is a part of our heritage and, as
already pointed out, it is a highly cherished right essential to
the growth and development of the human personality and its
importance cannot be over emphasised. But it cannot be said
to be part of the right of free speech and expression. It is not
of the same basic nature and character as freedom of speech
and expression. When a person goes abroad, he may do so for a
variety of reasons and it may not necessarily and always be for
exercise of freedom of speech and expression. Every travel
abroad is not an exercise of right of free speech and
expression and it would not be correct to say that whenever
there is a restriction on the right to go abroad, ex necessitae
it involves violation of freedom of speech and expression. It is
no doubt true that going abroad may be necessary in a given
case for exercise of freedom of speech and expression, but
that does not make it an integral part of the right of free
speech and expression. Every activity that may be necessary
for exercise of freedom of speech and expression or that may
facilitate such exercise or make it meaningful and effective
cannot be elevated to the status of a fundamental right as if it
were part of the fundamental right of free speech and
expression. Otherwise, practically every activity would
become part of some fundamental right or the other and. the
object of making certain rights only as fundamental rights
with different permissible restrictions would be frustrated.
30. In S. Mulgaokar , in re (1978) 3 SCC 339,
their Lordships of the Hon’ble Supreme Court have held
the judiciary cannot be immune from criticism, but,
when that criticism is based on obvious distortion or
gross mis-statement and made in a manner which seems
designed to lower respect for the judiciary and destroy
public confidence in it, it cannot be ignored. Their
Lordships have held as under:
[16] The judiciary cannot be immune from criticism, but, when
that criticism is based on obvious distortion or gross misstatement
and made in a manner which seems designed to
lower respect for the judiciary and destroy public confidence
in it, it cannot be ignored. I am not one of those who think
that an action for contempt of Court, which is discretionary,
should be frequently or lightly taken. But at the same time, I
do not think that we should abstain from using this weapon
even when its use is needed to correct standards or behaviour
in a grossly and repeatedly erring quarter. It may be better in
many cases for the judiciary to adopt a magnanimously
charitable attitude even when utterly uncharitable and unfair
criticism of its operations is made out of bona fide concern for
improvement. But, when there appears some scheme and a
design to bring about results which must damage confidence
in our judicial system and demoralize Judges of the highest
court by making malicious attack, any one interested in
maintaining high standards of fearless, impartial, and
unbending justice will feel perturbed. I sincerely hope that my
own undisguised perturbation at what has been taking place
recently is unnecessary. One may be able to live in a world of
Yogic detachment when unjustified abuses are hurled at one's
self personally, but when the question is of injury to an
institution, such as the highest Court of justice in the land,
one cannot overlook its effects upon national honour and
prestige in the comity of nations. Indeed, it becomes a matter
deserving consideration of all serious minded people who are
interested in seeing that democracy does not flounder or fail
in our country.
If fearless and impartial courts of justice are the bulwark of a
healthy democracy, confidence in them cannot be permitted
to be impaired by malicious attacks upon them. However, as
we have not proceeded further in this case, I do not think it
would be fair to characterize anything written or said in the
India Express as really malicious or ill-intentioned and I do
not do so. We have recorded no decision on that although the
possible constructions on what was written there have been
indicated above.
31. Their Lordships of the Hon’ble Supreme
Court in Express Newspapers (P) Ltd. v. Union of
India, (1986) 1 SCC 133 have held as under:
[76] I would only like to stress that the freedom of thought
and expression, and the freedom of the press are not only
valuable freedoms in themselves but are basic to a democratic
form of Government which proceeds on the theory that
problems of the Government can be solved by the free
exchange of thought and by public discussion of the various
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19
issues facing the nation. It is necessary to emphasize and one
must not forget that the vital importance of freedom of
speech and expression involves the freedom to dissent to a
free democracy like ours. Democracy relies on the freedom of
the press. It is the inalienable right of everyone to comment
freely upon any matter of public importance. This right is one
of the pillars of individual liberty - freedom of speech, which
our Court has always unfailingly guarded. I wish to add that
however precious and cherished the freedom of speech is
under Art. 19 (1) (a) , this freedom is not absolute and
unlimited at all times and under all circumstances but is
subject to the restrictions contained in Art. 19 (2). That must
be so because unrestricted freedom of speech and expression
which includes the freedom of the press and is wholly free
from restraints, amounts to uncontrolled licence which would.
lead to disorder and anarchy and it would be hazardous to
ignore the vital importance of our social and national interest
in public order and security of the State.
32. Their Lordships of the Hon’ble Supreme
Court in S. Rangarajan vs. P. Jagjivan Ram, (1989) 2
SCC 574 have held as under:
[36] The democracy is a government by the people via open
discussion. The democratic form of government itself
demands its citizens an active and intelligent participation in
the affairs of the community. The public discussion with
Peoples participation is a basic feature and a rational process
of democracy which distinguishes it from all other forms of
government. The democracy can neither work nor prosper
unless people go out to share their views. The truth is that
public discussion on issues relating to administration has
positive value. What Walter Lippmann said in another context
is relevant here :
When men act on the principle of intelligence, they go out to
find the facts. . When they ignore it, they go inside
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themselves and find out what is there. They elaborate their
prejudice instead of increasing their knowledge.
33. Their Lordships of the Hon’ble Supreme
Court in Secretary, Ministry of Information and
Broadcasting, Government of India vs. Cricket
Association of Bengal, (1995) 2 SCC 161 have held as
under:
[43] We may now summarise the law on the freedom of speech
and expression under Article 19 (1 (a) as restricted by Article
19 (2. The freedom of speech and expression includes right to
acquire information and to disseminate it. Freedom of speech
and expression is necessary, for self-expression which is an
important means of free conscience and self-fulfilment. It
enables people to contribute to debates on social and moral
issues. It is the best way to find a truest model of anything,
since it is only through it that the widest possible range of
ideas can circulate. It is the only vehicle of political discourse
so essential to democracy. Equally important is the role it
plays in facilitating artistic and scholarly endeavours of all
sorts. The right to communicate, therefore, includes right to
communicate through any media that is available whether
print or electronic or audio-visual such as advertisement,
movie, article, speech etc. That is why freedom of speech and
expression includes freedom of the press. The freedom of the
press in terms includes right to circulate and also to
determine the volume of such circulation. This freedom
includes the freedom to communicate or circulate one's
opinion without interference to as large a population in the
country, as well as abroad, as is possible to reach.
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34. Their Lordships of the Hon’ble Supreme
Court in Union of India vs Motion Picture
Association, 1999 (6) SCC 150 have held as under:
[13] Undoubtedly, free speech is the foundation of a
democratic society. A free exchange of ideas, dissemination of
information without restraints, dissemination of knowledge,
airing of differing view points, debating and forming one's own
views and expressing them, are the basic indicia of a free
society. This freedom alone makes it possible for people to
formulate their own views and opinions on a proper basis and
to exercise their social, economic and political rights in a free
society in an informed manner. Restraints on this right,
therefore, have been jealously watched by the Courts. Article
19 (2) spells out the various grounds on which this right to
free speech and expression can be restrained. Thus in Express
Newspapers Pvt. Ltd. v. Union of India, (1986) 1 SCC 133 this
Court stressed that, "freedom of thought and expression, and
the freedom of the press are not only valuable freedoms in
themselves but are basic to a democratic form of Government
which proceeds on the theory that the problems of the
Government can be solved by the free exchange of thought
and by public discussion of the various issues facing the
nation. . This right is one of the pillars of individual libertyfreedom
of speech, which our Constitution has always
unfailingly guarded. . however precious and cherished the
freedom of speech is under Article 19 (1) (a) , this freedom is
not absolute and unlimited at all times and all circumstances
but is subject to the restrictions contained in Article 19 (2). "
In S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 this
Court again observed : "the democracy is a government by the
people via open discussion. The democratic form of
government itself demands of its citizens an active and
intelligent participation in the affairs of the community. . The
democracy can neither work nor prosper unless people go out
to share their views. " The importance of freedom of speech
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and expression including freedom of the press has been
repeatedly stressed by this Court in a number of decisions.
35. The right to know or right to information is
basic facet of right to speech and expression. It is a
fundamental right. However, reasonable restriction is
always principled in the larger public interest. The right
is required to be balanced. We would like to add a
caveat that disclosure of information must be a rule and
secrecy is an exception. We have now Right to
Information Act, 2005
36. In the Indian Constitution liberty of speech
and expression guaranteed under Article 19 (1) (a) brings
within its ambit, the corresponding duty and
responsibility and puts limitation on the exercise of the
liberty.
37. In Narmada Bachao Andolan vs. Union of
India (1999) 8 SCC 308, their Lordships of the Hon’ble
Supreme Court have held as under:
[7] We wish to emphasise that under the cover of freedom of
speech and expression no party can be given a licence to
misrepresent the proceedings and orders of the Court and
deliberately paint an absolutely wrong and incomplete picture
which has the tendency to scandalise the Court and bring it
into disrepute or ridicule. The right of criticising, in good
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faith in private or public, a judgment of the Court cannot be
exercised, with malice or by attempting to impair the
administration of justice. Indeed, freedom of speech and
expression is "life blood of democracy" but this freedom is
subject to certain qualifications. An offence of scandalising
the Court per se is one such qualification, since that offence
exists to protect the administration of justice and is
reasonably justified and necesary in a democratic society. It is
not only an offence under the Contempt of Courts Act but is
sui generis. Courts are not unduly sensitive to fair comment
or even outspoken comments being made regarding their
judgments and orders made objectively, fairly and without any
malice, but no one can be permitted to distort orders of the
Court and deliberately give a slant to its proceedings, which
have the tendency to scandalise the Court or bring it to
ridicule, in the larger interest of protecting administration of
justice.
38. In Arundhathi Roy , in re (2002) 3 SCC 343,
their Lordships of the Hon’ble Supreme Court have held
that ‘rule of law’ is the basic rule of governance of any
civilized policy. Everyone, whether individually or
collectively, is unquestionably under the supremacy of
law. Whoever the person may be, however, high he or
she is, no one is above the law notwithstanding how
powerful and how rich he or she may be. For the
judiciary to perform its duties and functions effectively
and true to the spirit with which it is sacredly entrusted,
the dignity and authority of the courts have to be
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respected and protected all costs. The only weapon of
protecting itself from the onslaught to the institution is
the long hand of contempt of court left in the armoury of
judicial repository which, when needed, can reach any
neck howsoever high or far away it may be. The freedom
of speech and expression, so far as they do not
contravene the statutory limits as contained in the
Contempt of Courts Act, are to prevail without any
hindrance. The law of contempt has been enacted to
secure public respect and confidence in the judicial
process. Their Lordships have held as under:
“[1] 'Rule of Law' is the basic rule of governance of any
civilised democratic policy. Our constitutional scheme is
based upon the concept of Rule of Law which we have adopted
and given to ourselves. Everyone, whether individually or
collectively is unquestionably under the supremacy of law.
Whoever the person may be, however high he or she is, no-one
is above the law notwithstanding how powerful and how rich
he or she may be. For achieving the establishment of the rule
of law, the Constitution has assigned the special task to the
judiciary in the country. It is only through the Courts that the
rule of law unfolds its contents and establishes its concept.
For the judiciary to perform its duties and functions
effectively and true to the spirit with which it is sacredly
entrusted, the dignity and authority of the Courts have to be
respected and protected at all costs. After more than half a
century of independence, the judiciary in the country is under
a constant threat and being endangered from within and
without. The need of the time is of restoring confidence
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amongst the people for the independence of judiciary. Its
impartiality and the glory of law has to be maintained,
protected and strengthened. The confidence in the Courts of
justice, which the people possess, cannot, in any way, be
allowed to be tarnished, diminished or wiped out by
contumacious behaviour of any person. The only weapon of
protecting itself from the onslaught to the institution is the
long hand of contempt of Court left in the armoury of judicial
repository which, when needed, can reach any neck howsoever
high or far away it may be. In In Re, Vinay Chandra Mishra
(the alleged contemner) (AIR 1995 SC 2348), this Court
reiterated the position of law relating to the powers of
contempt and opined that the judiciary is not only the
guardian of the rule of law and third pillar but in fact the
central pillar of a democratic State. If the judiciary is to
perform its duties and functions effectively and true to the
spirit with which they are sacredly entrusted to it, the dignity
and authority of the Courts have to be respected and
protected at all costs. Otherwise the very corner-stone of our
constitutional scheme will give way and with it will disappear
the rule of law and the civilized life in the society. It is for
this purpose that the Courts are entrusted with extraordinary
powers of punishing those who indulge in acts, whether inside
or outside the Courts, which tend to undermine the authority
of law and bring it in disrepute and disrespect by scandalising
it. When the Court exercises this power, it does not do so to
vindicate the dignity and honour of the individual Judge who
is personally attacked or scandalised, but to uphold the
majesty of the law and of the administration of justice. The
foundation of the judiciary is the trust and the confidence of
the people in its ability to deliver fearless and impartial
justice. When the foundation itself is shaken by acts which
tend to create disaffection and disrespect for the authority of
the Court by creating distrust in its working, the edifice of the
judicial system gets eroded.
[2] No person can flout the mandate of law of respecting
the Courts for establishment of rule of law under the cloak of
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freedoms of speech and expression guaranteed by the
Constitution. Such a freedom is subject to reasonable
restrictions imposed by any law. 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 Contempt of Courts Act, are to
prevail without any hindrance. However, it must 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 judicial institution couched in
language that apparently appears to be mere criticism but
ultimately results in undermining the dignity of the Courts
cannot be permitted when found having crossed the limits and
has to be punished. This Court in In Re, Harijai Singh and
another (1996 (6) SCC 466) has pointed out that a free and
healthy Press is indispensable to the function of a true
democracy but, at the same time, cautioned that the freedom
of Press is not absolute, unlimited and unfettered at all times
and in all circumstances. Lord Dening in his Book "Road to
Justice" observed that Press is the watchdog to see that every
trial is conducted fairly, openly and above board but the
watchdog may sometimes break loose and has to be punished
for misbehaviour. Frankfurther, J. in Pennekamp v. Florida
[(1946) 90 Led 1295 at p. 1313] observed :
"If men, including Judges and journalists were angels, there
would be no problems of contempt of Court. Angelic Judges
would be undisturbed by extraneous influences and angelic
journalists would not seek to influence them. The power to
punish for contempt, as a means of safeguarding Judges in
deciding on behalf of the community as impartially as is given
to the lot of men to decide, is not a privilege accorded to
Judges. The power to punish for contempt of Court is a
safeguard not for Judges as persons but for the function which
they exercise."
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[3] The law of contempt has been enacted to secure
public respect and confidence in the judicial process. If such
confidence is shaken or broken, the confidence of the
common man in the institution of judiciary and democratic
set up is likely to be eroded which, if not checked, is sure to
be disastrous for the society itself.”
39. Their Lordships of the Hon’ble Supreme
Court in Radha Mohan Lal vs. Rajasthan High Court
(Jaipur Bench), (2003) 3 SCC 427 have held that free
expression cannot be equated or confused with a licence
to make unfounded and irresponsible allegations against
the judiciary. Their Lordships have held as under:
“[10] The liberty of free expression as was sought to be
contended by Mr. Sualal Yadav cannot be equated or confused
with a licence to make unfounded and irresponsible
allegations against the judiciary. The imputation that was
made was clearly contemptuous. The effect is lowering of the
dignity and authority of the Court and an affront to the
majesty of justice.”
40. Their Lordships of the Hon’ble Supreme
Court in M.P. Lohia vs State of W.B. and another,
(2005) 2 SCC 686 have deprecated the practice and
cautioned the publisher, editor and the journalist who
were responsible for the article against indulging in such
trial by media when the issue was sub judice.
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41. In Rajendra Sail vs. M.P. High Court Bar
Association, (2005) 6 SCC 109, their Lordships of the
Hon’ble Supreme Court have held that criticism likely to
interfere with due administration of justice or undermine
confidence that public reposes in courts of law as courts
of justice, ceases to be fair and reasonable criticism and
amounts to criminal contempt of court. Their Lordships
have further held that in the free marketplace of ideas
criticism about the judicial system or judges should be
welcome so long as such criticism does not impair or
hamper the administration of justice. Liberty of free
expression is not to be confused with a licence to make
unfounded, unwarranted and irresponsible aspersions
against the judges or the courts in relation to judicial
matters. No system of justice can tolerate such
unbridled licence. Their Lordships have further held
that the reach of the media, in the present times of 24
hour channels, is to almost every nook and corner of the
world. Thus, the power and reach of the media, both
print as well as electronic is tremendous. It has to be
exercised in the interest of the public good. For rule of
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law and orderly society, a free responsible press and
independent judiciary are both indispensable, therefore,
protected. While the media can, in the public interest,
resort to reasonable criticism of a judicial act or the
judgment of a court for public good or report any such
statements, it should refrain from casting scurrilous
aspersions on, or impute improper motives or personal
bias to the judge. Their Lordships have held as under:
[13] In Aswini Kumar Ghose and Anr. v. Arabinda Bose and
Anr. it was held that the Supreme Court is never oversensitive
to public criticism; but when there is danger of grave
mischief being done in the matter of administration of justice,
the animadversion cannot be ignored and viewed with placid
equanimity. The path of criticism is a public way: the wrongheaded
are permitted to err therein; provided that members of
the public abstain from imputing improper motives to those
taking part in the administration of justice, and are genuinely
exercising a right of criticism and not acting in malice or
attempting to impair the administration of justice, they are
immune. Justice is not a cloistered virtue; she must be
allowed to suffer the scrutiny and respectful even though
outspoken comments of ordinary men.
[14] In Brahma Prakash Sharma and Ors. v. The State of
U. P. 3 it was held that, if the publication of the disparaging
statement is calculated to interfere with the due course of
justice or proper administration of law by such court, it can be
punished summarily as contempt is a wrong done to the
public. It will be 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
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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. It is well established that it is
not necessary to prove affirmatively that there has been an
actual interference with the administration of justice by
reason of such defamatory statement; it is enough if it is
likely, or tends in any way, to interfere with the proper
administration of law.
[15] In Perspective Publications Pvt. Ltd. and Anr. v.
The State of Maharashtra, a bench of three judges after
referring to the leading cases on the subject held that " (1) The
summary jurisdiction by way of contempt must be exercised
with great care and caution and only when its exercise is
necessary for the proper administration of law and justice. (2)
It is open to everyone to express fair, reasonable and
legitimate criticism of any act or 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 the
scrutiny and respectful, even though outspoken, comments of
ordinary men". (3) A distinction must be made between a mere
libel of 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 his
court. It is only in the latter case that it will be punishable as
contempt. Alternatively the test will be whether the wrong is
done to the Judge personally or it is done to the public. 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. "
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[19] In P. N. Duda v. P. Shiv Shanker and ors. 2 it has
been held that administration of justice and Judges are open
to public criticism and public scrutiny. Judges have their
accountability to the society and their accountability must be
judged by the conscience and oath to their office i. e. to
defend and uphold the Constitution and the laws without fear
and favour. Any criticism about the judicial system or the
Judges which hampers the administration of justice or which
erodes the faith in the objective approach of the Judges and
brings administration of justice to ridicule must be prevented.
The contempt of court proceedings arise out of that attempt.
Judgments can be criticized, motives to the Judges need not
be attributed, it brings the administration of justice into deep
disrepute. Faith in the administration of justice is one of the
pillars on which democratic institution functions and
sustains. In the free market place of ideas criticism about the
judicial system or Judges should be welcome so long as such
criticism does not impair or hamper the administration of
justice. In a democracy judges and courts alike are, therefore,
subject to criticism and if reasonable argument or criticism in
respectful language and tempered with moderation is offered
against any judicial act as contrary to law or public good, no
court would treat criticism as a contempt of court.
[20] In Re. Roshan Lal Ahuja, a three judge bench held,
Judgments of the court are open to criticism. Judges and
courts are not unduly sensitive or touchy to fair and
reasonable criticism of their judgments. Fair comments, even
if, outspoken, but made without any malice or attempting to
impair the administration of justice and made in good faith in
proper language don't attract any punishment for contempt of
court. However, when from the criticism a deliberate,
motivated and calculated attempt is discernible to bring down
the image of the judiciary in the estimation of the public or to
impair the administration of justice or tend to bring the
administration of justice into disrepute the courts must bestir
themselves to uphold their dignity and the majesty of law. No
litigant can be permitted to overstep the limits of fair, bona
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fide and reasonable criticism of a judgment and bring the
courts generally in disrepute or attribute motives to the
Judges rendering the judgment. Perversity, calculated to
undermine the judicial system and the prestige of the court,
cannot be permitted for otherwise the very foundation of the
judicial system is bound to be undermined and weakened and
that would be bad not only for the preservation of rule of law
but also for the independence of judiciary. Liberty of free
expression is not to be confused with a licence to make
unfounded, unwarranted and irresponsible aspersions against
the Judges or the courts in relation to judicial matters. No
system of justice can tolerate such an unbridled licence. Of
course "justice is not a cloistered virtue; she must be allowed
to suffer the scrutiny and respectful, even though outspoken,
comments of ordinary men", but the members of the public
have to abstain from imputing improper motives to those
taking part in the administration of justice and exercise their
right of free criticism without malice or in any way attempting
to impair to administration of justice and refrain from making
any comment which tends to scandalize the court in relation
to judicial matters. If a person committing such gross
contempt of court were to get the impression that he will get
off lightly it would be a most unfortunate state of affairs.
Sympathy in such a case would be totally misplaced, mercy
has no meaning. His action calls for deterrent punishment to
that, it also serves as an example to others and there is no
repetition of such contempt by any other person.
[24] In re, Arundhati Roy the Court held, fair criticism
of the conduct of a Judge, the institution of the judiciary and
its functioning may not amount to contempt if it is made in
good faith and in public interest. To ascertain the good faith
and the public interest, the courts have to see all the
surrounding circumstances including the person responsible
for comments, his knowledge in the field regarding which the
comments are made and the intended purpose sought to be
achieved. All citizens cannot be permitted to comment upon
the conduct of the courts in the name of fair criticism which,
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if not checked, would destroy the institution itself. Litigant
losing in the court would be the first to impute motives to the
Judges and the institution in the name of fair criticism, which
cannot be allowed for preserving the public faith in an
important pillar of democratic set-up i. e. judiciary.
[31] The reach of media, in present times of 24 hours
channels, is to almost every nook and corner of the world.
Further, large number of people believe as correct which
appears in media, print or electronic. It is also necessary to
always bear in mind that the judiciary is the last resort of
redressal for resolution of disputes between State and subject,
and high and low. The confidence of people in the institute of
judiciary is necessary to be preserved at any cost. That is its
main asset. Loss of confidence in institution of judiciary
would be end of rule of law. Therefore, any act which has such
tendency deserves to be firmly curbed. For rule of law and
orderly society, a free responsible press and independent
judiciary are both indispensable. Both have to be, therefore,
protected.
[32] The judgments of courts are public documents and
can be commented upon, analyzed and criticized, but it has to
be in dignified manner without attributing motives. Before
placing before public, whether on print or electronic media, all
concerned have to see whether any such criticism has crossed
the limits as aforesaid and if it has, then resist every
temptation to make it public. In every case, it would be no
answer to plead that publication, publisher, editor or other
concerned did not know or it was done in haste. Some
mechanism may have to be devised to check the publication
which has the tendency to undermine the institution of
judiciary.
[35] Regarding the institution like judiciary which
cannot go public, media can consider having an internal
mechanism to prevent these types of publications. There can
be an efficient and stringent mechanism to scrutinize the
news reports pertaining to such institutions which because of
the nature of their office cannot reply to publications which
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have tendency to bring disrespect and disrepute to those
institutions. As already noted such publications are likely to
be believed as true. Such a mechanism can be the answer to
pleas like the one in the present case by editor, printer and
publisher and correspondent that either they did not know or
it was done in a hurry and similar pleas and defences.
[37] While the media can, in the public interest, resort
to reasonable criticism of a judicial act or the judgment of a
court for public good or report any such statements; it should
refrain from casting scurrilous aspersions on, or impute
improper motives or personal bias to the judge. Nor should
they scandalize the court or the judiciary as a whole, or make
personal allegations of lack of ability or integrity against a
judge. It should be kept in mind that Judges do not defend
their decisions in public and if citizens disrespect the persons
laying down the law, they cannot be expected to respect the
law laid down by them. The only way the Judge can defend a
decision is by the reasoning in the decision itself and it is
certainly open to being criticized by anyone who thinks that it
is erroneous.
[42] The issue as to whether the alleged statements
amount to contempt or not does not present any difficulty in
the present case. If the conclusions reached by the high Court
are correct, there can be little doubt that it is serious case of
scandalizing the court and not a case of fair criticism of a
judgment. Undoubtedly, judgments are open to criticism. No
criticism of a judgment, however vigorous, can amount to
contempt of Court, provided it is kept within the limits of
reasonable cour- tesy and good faith. Fair and reasonable
criticism of a judgment which is a public document or which
is a public act of a Judge concerned with administration of
justice would not constitute contempt. Such a criticism may
fairly assert that the judgment is incorrect or an error has
been committed both with regard to law or established facts.
[44] When there is danger of grave mischief being done
in the matter of administration of justice, the animadversion
cannot be ignored and viewed with placid equanimity. If the
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criticism is likely to interfere with due administration of
justice or undermine the confidence which the public reposes
in the courts of law as Courts of justice, the criticism would
cease to be fair and reasonable criticism but would scandalise
Courts and substantially interfere with administration of
justice. Having perused the record, we are unable to accept
the contention urged on behalf of Mr. Rajendra Sail that on
facts the conclusions arrived at by the high Court are not
sustainable. Once this conclusion is reached, clearly the
publication amounts to a gross contempt of court. It has
serious tendency to undermine the confidence of the society
in the administration.
42. Their Lordships of the Hon’ble Supreme
Court in Government of Andhra Pradesh and others
vs. P. Laxmi Devi, (2008) 4 SCC 720 have adopted and
reiterated the principle of American law as under:
[82] However, when it came to civil liberties, Mr. Justice
Holmes was an activist Judge. Thus, in Schenck vs. U.S. 249
U.S. 47 (1919) he laid down his famous "clear and present
danger" test for deciding whether restriction on free speech
was constitutionally valid. As Mr. Justice Holmes observed,
the question in every case is "whether the words used are used
in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about
substantive evils that Congress has a right to prevent".
[97] Why is it that the Courts both in India and in
America have taken an activist approach in upholding the civil
liberties and rights of the citizens? In our opinion, this is
because freedom and liberty is essential for progress, both
economic and social. Without freedom to speak, freedom to
write, freedom to think, freedom to experiment, freedom to
criticize (including criticism of the Government) and freedom
to dissent there can be no progress.
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43. Their Lordships of the Hon’ble Supreme
Court in Sidhartha Vashisht alias Manu Sharma vs.
State (NCT of Delhi), (2010) 6 SCC 1 have held that
despite the significance of the print and electronic media
in the present day, it is not only desirable but the least
that is expected of the persons at the helm of affairs in
the field, is to ensure that trial by media does not
hamper fair investigation by the investigating agency
and more importantly does not prejudice the right of
defence of the accused in any manner whatsoever.
Presumption of innocence of an accused is a legal
presumption and should not be destroyed at the very
threshold through the process of media trial and that too
when the investigation is pending. Every effort should
be made by the print and electronic media to ensure that
the distinction between trial by media and informative
media should always be maintained. Their Lordships
have held as under:
“[147] There is danger, of serious risk of prejudice if the media
exercises an unrestricted and unregulated freedom such that
it publishes photographs of the suspects or the accused before
the identification parades are constituted or if the media
publishes statements which out rightly hold the suspect or the
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accused guilty even before such an order has been passed by
the Court.
[148] Despite the significance of the print and
electronic media in the present day, it is not only desirable
but least that is expected of the persons at the helm of affairs
in the field, to ensure that trial by media does not hamper fair
investigation by the investigating agency and more
importantly does not prejudice the right of defence of the
accused in any manner whatsoever. It will amount to travesty
of justice if either of this causes impediments in the accepted
judicious and fair investigation and trial.
[149] In the present case, certain articles and news
items appearing in the newspapers immediately after the date
of occurrence, did cause certain confusion in the mind of
public as to the description and number of the actual
assailants/suspects. It is unfortunate that trial by media did,
though to a very limited extent, affect the accused, but not
tantamount to a prejudice which should weigh with the Court
in taking any different view. The freedom of speech protected
under Article 19 (1) (a) of the Constitution has to be carefully
and cautiously used, so as to avoid interference in the
administration of justice and leading to undesirable results in
the matters sub judice before the Courts.
[151] Presumption of innocence of an accused is a legal
presumption and should not be destroyed at the very
threshold through the process of media trial and that too
when the investigation is pending. In that event, it will be
opposed to the very basic rule of law and would impinge upon
the protection granted to an accused under Article 21 of the
Constitution [Anukul Chandra Pradhan V. Union Of India &
Ors., 1996 6 SCC 354]. It is essential for the maintenance of
dignity of Courts and is one of the cardinal principles of rule
of law in a free democratic country, that the criticism or even
the reporting particularly, in sub judice matters must be
subjected to check and balances so as not to interfere with the
administration of justice.
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303 (11). Every effort should be made by the print and
electronic media to ensure that the distinction between trial
by media and informative media should always be maintained.
Trial by media should be avoided particularly, at a stage when
the suspect is entitled to the constitutional protections.
Invasion of his rights is bound to be held as impermissible.”
44. Their Lordships of the Hon’ble Supreme
Court in Indirect Tax Practitioners’’ Association vs.
R.K. Jain, (2010) 8 SCC 281 have held that criticism
becomes contempt when it is done with ill-motive or
there is deliberate attempt to run down the institution or
an individual Judge is targeted for extraneous reasons.
Ordinarily, court would not use its power of contempt to
silence criticism unless criticism of judicial institutions
transgresses all limits of decency and fairness, or there
is total lack of objectivity, or there is deliberate attempt
to denigrate the institution. Their Lordships have held
as under:
[18] Before adverting to the second and more important issue,
we deem it necessary to remind ourselves that freedom of
speech and expression has always been considered as the most
cherished right of every human being. Justice Brennan of U.S.
Supreme Court, while dealing with a case of libel - New York
Times Company v. L.B. Sullivan observed that "it is a prized
privilege to speak one's mind, although not always with
perfect good taste, on all public institutions and this
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opportunity should be afforded for vigorous advocacy no less
than abstract discussion.
[22] 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. Such criticism cannot be castigated as
an attempt to scandalize or lower the authority of the Court
or other judicial institutions or as an attempt to interfere with
the administration of justice except when such criticism is ill
motivated or is construed as a deliberate attempt to run down
the institution or an individual Judge is targeted for
extraneous reasons.
23. Ordinarily, the Court would not use the power to
punish for contempt for curbing the right of freedom of speech
and expression, which is guaranteed under Article 19(1)(a) of
the Constitution. Only when the criticism of judicial
institutions transgresses all limits of decency and fairness or
there is total lack of objectivity or there is deliberate attempt
to denigrate the institution then the Court would use this
power. The judgments of this Court in Re S. Mulgaokar ,
(1978) 3 SCC 339 and P.N. Duda v. P. Shiv Shanker, 1988 3
SCC 167 are outstanding examples of this attitude and
approach.”
45. Their Lordships of the Hon’ble Supreme
Court in Sanjoy Narayan, Editor-in-Chief, Hindustan
Times and others vs. High Court of Allahabad, (2011)
13 SCC 155 have held that the judiciary also must be
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magnanimous in accepting an apology when filed
through an affidavit duly sworn, conveying remorse for
such publication. Their Lordships have held as under:
[11] The judiciary also must be magnanimous in accepting an
apology when filed through an affidavit duly sworn, conveying
remorse for such publication. This indicates that they have
accepted their mistake and fault. This Court has also time and
again reiterated that this Court is not hypersensitive in
matter relating to Contempt of Courts Act and has always
shown magnanimity in accepting the apology. Therefore, we
accept the aforesaid unqualified apology submitted by them
and drop the proceeding.
46. Their Lordships of the Hon’ble Supreme
Court in Ramlila Maidan Incident, In Re (2012) 5 SCC
1 have held compared the freedom of speech and
freedom of expression and freedom to assemble between
Indian Constitution and U.S. Constitution as under:
[2] It appears justified here to mention the First Amendment
to the United States (US) Constitution, a bellwether in the
pursuit of expanding the horizon of civil liberties. This
Amendment provides for the freedom of speech of press in the
American Bill of Rights. This Amendment added new
dimensions to this right to freedom and purportedly, without
any limitations. The expressions used in wording the
Amendment have a wide magnitude and are capable of liberal
construction. It reads as under :
"Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or
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the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances."
[3] The effect of use of these expressions, in particular,
was that the freedom of speech of press was considered
absolute and free from any restrictions whatsoever. Shortly
thereafter, as a result of widening of the power of judicial
review, the US Supreme Court preferred to test each case on
the touchstone of the rule of 'clear- and-present-danger'.
However, application of this rule was unable to withstand the
pace of development of law and, therefore, through its judicial
pronouncements, the US Supreme Court applied the doctrine
of 'balancing of interests'. The cases relating to speech did not
simply involve the rights of the offending speaker but
typically they presented a clash of several rights or a conflict
between individual rights and necessary functions of the
Government. Justice Frankfurter often applied the abovementioned
Balancing Formula and concluded that "while the
court has emphasized the importance of 'free speech', it has
recognized that free speech is not in itself a touchstone. The
Constitution is not unmindful of other important interests,
such as public order, if free expression of ideas is not found to
be the overbalancing considerations."
[4] The 'balancing of interests' approach is basically
derived from Roscoe Pound's theories of social engineering.
Pound had insisted that his structure of public, social and
individual interests are all, in fact, individual interests looked
at from different points of view for the purpose of clarity.
Therefore, in order to make the system work properly, it is
essential that when interests are balanced, all claims must be
translated into the same level and carefully labelled. Thus, a
social interest may not be balanced against individual
interest, but only against another social interest. The author
points out that throughout the heyday of the clear-andpresent-danger
and preferred position doctrines, the language
of balancing, weighing or accommodating interests was
employed as an integral part of the libertarian position.
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[Freedom of Speech: The Supreme Court and Judicial Review,
by Martin Shapiro, 1966]
[5] Even in the United States there is a recurring debate
in modern First Amendment Jurisprudence as to whether
First Amendment rights are 'absolute' in the sense that the
Government may not abridge them at all or whether the First
Amendment requires the 'balancing of competing interests' in
the sense that free speech values and the Government's
competing justification must be isolated and weighted in each
case. Although the First Amendment to the American
Constitution provides that Congress shall make no law
abridging the freedom of speech, press or assembly, it has long
been established that those freedoms themselves are
dependent upon the power of the constitutional Government
to survive. If it is to survive, it must have power to protect
itself against unlawful conduct and under some circumstances
against incitements to commit unlawful acts. Freedom of
speech, thus, does not comprehend the right to speak on any
subject at any time.
[7] In contradistinction to the above approach of the US
Supreme Court, the Indian Constitution spells out the right to
freedom of speech and expression under Article 19(1)(a). It
also provides the right to assemble peacefully and without
arms to every citizen of the country under Article 19(1)(b).
However, these rights are not free from any restrictions and
are not absolute in their terms and application. Articles 19(2)
and 19(3), respectively, control the freedoms available to a
citizen. Article 19(2) empowers the State to impose reasonable
restrictions on exercise of the right to freedom of speech and
expression in the interest of the factors stated in the said
clause. Similarly, Article 19(3) enables the State to make any
law imposing reasonable restrictions on the exercise of the
right conferred, again in the interest of the factors stated
therein.
[8] In face of this constitutional mandate, the American
doctrine adumbrated in Schenck's case cannot be imported
and applied. Under our Constitution, this right is not an
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absolute right but is subject to the above-noticed restrictions.
Thus, the position under our Constitution is different.
[10] The fundamental right enshrined in the
Constitution itself being made subject to reasonable
restrictions, the laws so enacted to specify certain restrictions
on the right to freedom of speech and expression have to be
construed meaningfully and with the constitutional object in
mind. For instance, the right to freedom of speech and
expression is not violated by a law which requires that name
of the printer and publisher and the place of printing and
publication should be printed legibly on every book or paper.
[11] Thus, there is a marked distinction in the language
of law, its possible interpretation and application under the
Indian and the US laws. It is significant to note that the
freedom of speech is the bulwark of democratic Government.
This freedom is essential for proper functioning of the
democratic process. The freedom of speech and expression is
regarded as the first condition of liberty. It occupies a
preferred position in the hierarchy of liberties, giving succour
and protection to all other liberties. It has been truly said that
it is the mother of all other liberties. Freedom of speech plays
a crucial role in the formation of public opinion on social,
political and economic matters. It has been described as a
"basic human right", "a natural right" and the like. With the
development of law in India, the right to freedom of speech
and expression has taken within its ambit the right to receive
information as well as the right of press.
[12] In order to effectively consider the rival
contentions raised and in the backdrop of the factual matrix,
it will be of some concern for this Court to examine the
constitutional scheme and the historical background of the
relevant Articles relating to the right to freedom of speech and
expression in India. The framers of our Constitution, in
unambiguous terms, granted the right to freedom of speech
and expression and the right to assemble peaceably and
without arms. This gave to the citizens of this country a very
valuable right, which is the essence of any democratic system.
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There could be no expression without these rights. Liberty of
thought enables liberty of expression. Belief occupies a place
higher than thought and expression. Belief of people rests on
liberty of thought and expression. Placed as the three angles
of a triangle, thought and expression would occupy the two
corner angles on the baseline while belief would have to be
placed at the upper angle. Attainment of the preambled
liberties is eternally connected to the liberty of expression.
(Ref. Preamble, The Spirit and Backbone of the Constitution of
India, by Justice R.C. Lahoti). These valuable fundamental
rights are subject to restrictions contemplated under Articles
19(2) and 19(3), respectively. Article 19(1) was subjected to
just one amendment, by the Constitution (44th Amendment)
Act, 1979, vide which Article 19(1)(f) was repealed. Since the
Parliament felt the need of amending Article 19(2) of the
Constitution, it was substituted by the Constitution (First
Amendment) Act, 1951 with retrospective effect. Article 19(2)
was subjected to another amendment and vide the
Constitution (Sixteenth Amendment) Act, 1963, the
expression "sovereignty and integrity of India" was added. The
pre-amendment Article had empowered the State to make laws
imposing reasonable restrictions in exercise of the rights
conferred under Article 19(1)(a) in the interest of the security
of the State, friendly relations with foreign states, public
order, decency or morality or in relation to contempt of court,
defamation or incitement of an offence. To introduce a more
definite dimension with regard to the sovereignty and
integrity of India, this Amendment was made. It provided the
right spectrum in relation to which the State could enact a
law to place reasonable restrictions upon the freedom of
speech and expression.
47. Their Lordships of the Hon’ble Supreme
Court in Sahara India Real Estate Corporation
Limited and others vs. Securities and Exchange
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Board of India and another, (2012) 10 SCC 603 have
held that media by virtue of section 4 of Contempt of
Courts Act, 1971 is entitled to publish a fair and
accurate report. Their Lordships have also held that
guidelines for reporting cannot be framed across the
board and what constitutes an offending publication
would depend on the decision of the court on case to
case basis. Their Lordships have further held that
excessive prejudicial publicity leading to usurpation of
functions of the court not only interferes with
administration of justice which is sought to be protected
under Article 19(2), it also prejudices or interferes with a
particular legal proceedings. In such case, superior
courts are duty-bound under inherent jurisdiction to
protect eh presumption of innocence which is now
recognized by the Court as a human right. Their
Lordships have further held that no single right taken
individually is absolute and Court’s duty is to strike a
proper balance in a given situate where one right conflict
with other. Their Lordships have further held that
freedom of expression is one of the most cherished
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values of a free democratic society. Media is an
instrument of free expression, however, not absolute and
subject to reasonable restrictions under Article 19 (2) of
the Constitution of India. Their Lordships have held as
under:
[17] Protecting speech is the US approach. The First
Amendment does not tolerate any form of restraint. In US,
unlike India and Canada which also have written
Constitutions, freedom of the press is expressly protected as
an absolute right. The US Constitution does not have
provisions similar to Section 1 of the Charter Rights under the
Canadian Constitution nor is such freedom subject to
reasonable restrictions as we have under Article 19(2) of the
Indian Constitution. Therefore, in US, any interference with
the media freedom to access, report and comment upon
ongoing trials is prima facie unlawful. Prior restraints are
completely banned. If an irresponsible piece of journalism
results in prejudice to the proceedings, the legal system does
not provide for sanctions against the parties responsible for
the wrongdoings. Thus, restrictive contempt of court laws are
generally considered incompatible with the constitutional
guarantee of free speech. However, in view of cases, like O.J.
Simpson, Courts have evolved procedural devices aimed at
neutralizing the effect of prejudicial publicity like change of
venue, ordering re-trial, reversal of conviction on appeal
(which, for the sake of brevity, is hereinafter referred to as
"neutralizing devices"). It may be stated that even in US as of
date, there is no absolute rule against "prior restraint" and its
necessity has been recognized, albeit in exceptional cases [see
Near v. Minnesota, 283 US 697] by the courts evolving
neutralizing techniques.
[18] In 1993, Chief Justice William Rehnquist observed:
"constitutional law is now so firmly grounded in so many
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countries, it is time that the US Courts begin looking at
decisions of other constitutional courts to aid in their own
deliberative process".
[19] Protecting Justice is the English approach. Fair
trials and public confidence in the courts as the proper forum
for settlement of disputes as part of the administration of
justice, under the common law, were given greater weight
than the goals served by unrestrained freedom of the press. As
a consequence, the exercise of free speech respecting ongoing
court proceedings stood limited. England does not have a
written constitution. Freedoms in English law have been
largely determined by Parliament and Courts. However, after
the judgment of ECHR in the case of Sunday Times v. United
Kingdom,1979 2 EHRR 245, in the light of which the English
Contempt of Courts Act, 1981 (for short "the 1981 Act") stood
enacted, a balance is sought to be achieved between fair trial
rights and free media rights vide Section 4(2). Freedom of
speech (including free press) in US is not restricted as under
Article 19(2) of our Constitution or under Section 1 of the
Canadian Charter. In England, Parliament is supreme. Absent
written constitution, Parliament can by law limit the freedom
of speech. The view in England, on interpretation, has been
and is even today, even after the Human Rights Act, 1998 that
the right of free speech or right to access the courts for the
determination of legal rights cannot be excluded, except by
clear words of the statute. An important aspect needs to be
highlighted. Under Section 4(2) of the 1981 Act, courts are
expressly empowered to postpone publication of any report of
the proceedings or any part of the proceedings for such period
as the court thinks fit for avoiding a substantial risk of
prejudice to the administration of justice in those
proceedings. Why is such a provision made in the Act of
1981? One of the reasons is that in Section 2 of the 1981 Act,
strict liability has been incorporated (except in Section 6
whose scope has led to conflicting decisions on the question
of intention). The basis of the strict liability contempt under
the 1981 Act is the publication of "prejudicial" material. The
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definition of publication is also very wide. It is true that the
1981 Act has restricted the strict liability contempt to a fewer
circumstances as compared to cases falling under common
law. However, contempt is an offence sui generis. At this
stage, it is important to note that the strict liability rule is
the rule of law whereby a conduct or an act may be treated as
contempt of court if it tends to interfere with the course of
justice in particular legal proceedings, regardless of intent to
do so. Sometimes, fair and accurate reporting of the trial (say
a murder trial) would nonetheless give rise to substantial risk
of prejudice not in the pending trial but in the later or
connected trials. In such cases, there is no other practical
means short of postponement orders that is capable of
avoiding such risk of prejudice to the later or connected trials.
Thus, postponement order not only safeguards fairness of the
later or connected trials, it prevents possible contempt. That
seems to be the underlying reason behind enactment of
Section 4(2) of the 1981 Act. According to Borrie & Lowe on
the "Law of Contempt", the extent to which prejudgment by
publication of the outcome of a proceedings (referred to by the
House of Lords in Sunday Times's case) may still apply in
certain cases. In the circumstances to balance the two rights
of equal importance, viz., right to freedom of expression and
right to a fair trial, that Section 4(2) is put in the 1981 Act.
Apart from balancing it makes the media know where they
stand in the matters of reporting of court cases. To this
extent, the discretion of courts under common law contempt
has been reduced to protect the media from getting punished
for contempt under strict liability contempt. Of course, if the
court's order is violated, contempt action would follow.
[20] In the case of Home Office v. Harman, 1983 1 AC
280 the House of Lords found that the counsel for a party was
furnished documents by the opposition party during
inspection on the specific undertaking that the contents will
not be disclosed to the public. However, in violation of the
said undertaking, the counsel gave the papers to a third party,
who published them. The counsel was held to be in contempt
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on the principle of equalization of the right of the accused to
defend himself/herself in a criminal trial with right to
negotiate settlement in confidence. [See also Globe and Mail v.
Canada (Procureur g n ral),2008 QCCA 2516
[21] The Continental Approach seeks to protect
personality. This model is less concerned with the issue of fair
trial than with the need for safeguarding privacy, personal
dignity and presumption of innocence of trial participants.
The underlying assumption of this model is that the media
coverage of pending trials might be at odds not only with
fairness and impartiality of the proceedings but also with
other individual and societal interests. Thus, narrowly
focussed prior restraints are provided for, on either a
statutory or judicial basis. It is important to note that in the
common-law approach the protection of sanctity of legal
proceedings as a part of administration of justice is
guaranteed by institution of contempt proceedings. According
to Article 6(2) of the European Convention of Human Rights,
presumption of innocence needs to be protected. The
European Courts of Human Rights has ruled on several
occasions that the presumption of innocence should be
employed as a normative parameter in the matter of balancing
the right to a fair trial as against freedom of speech. The
German Courts have accordingly underlined the need to
balance the presumption of innocence with freedom of
expression based on employment of the above normative
parameter of presumption of innocence. France and Australia
have taken a similar stance. Article 6(2) of the European
Convention of Human Rights imposes a positive obligation on
the State to take action to protect the presumption of
innocence from interference by non-State actors. However, in
a catena of decisions, the ECHR has applied the principle of
proportionality to prevent imposition of overreaching
restrictions on the media. At this stage, we may state, that
the said principle of proportionality has been enunciated by
this Court in Chintaman Rao v. The State of Madhya Pradesh,
1950 SCR 759.
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[22] The Canadian Approach: Before Section 1 of
Canadian Charter of Rights, the balance between fair trial and
administration of justice concerns, on the one hand, and
freedom of press, on the other hand, showed a clear
preference accorded to the former. Since the Charter
introduced an express guarantee of "freedom of the press and
other media of communication", the Canadian Courts
reformulated the traditional sub judice rule, showing a more
tolerant attitude towards trial-related reporting [see judgment
of the Supreme Court of Canada in Dagenais v. Canadian
Broadcasting Corp.,1994 3 SCR 835 which held that a
publication ban should be ordered when such an order is
necessary to prevent a serious risk to the proper
administration of justice when reasonably alternative
measures like postponement of trial or change of venue will
not prevent the risk (necessity test); and that salutary effects
of the publication bans outweigh the deleterious effects on the
rights and interests of the parties and the public, including
the effect on the right to free expression and the right of the
accused to open trial (i.e. proportionality test)]. The
traditional common law rule governing publication bans that
there be real and substantial risk of interference with the right
to a fair trial emphasized the right to a fair trial over the free
expressions interests of those affected by the ban. However, in
the context of post-Charter situation, the Canadian Supreme
Court has held that when two protected rights come in
conflict, Charter principles require a balance to be achieved
that fully respects both the rights. The Canadian Courts have,
thus, shortened the distance between the US legal experience
and the common-law experiences in other countries. It is
important to highlight that in Dagenais, the publication ban
was sought under common law jurisdiction of the Superior
Court and the matter was decided under the common law rule
that the Courts of Record have inherent power to defer the
publication. In R. v. Mentuck, 2001 3 SCR 442 that Dagenais
principle was extended to the presumption of openness and to
duty of court to balance the two rights. In both the above
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cases, Section 2(b) of the Charter which deals with freedom of
the press was balanced with Section 1 of the Charter. Under
the Canadian Constitution, the Courts of Record (superior
courts) have retained the common law discretion to impose
such bans provided that the discretion is exercised in
accordance with the Charter demands in each individual case.
[23] The Australian Approach: The Australian Courts
impose publication bans through the exercise of their inherent
jurisdiction to regulate their own proceedings. In Australia,
contempt laws deal with reporting of court proceedings which
interfere with due administration of justice. Contempt laws in
Australia embody the concept of "sub judice contempt" which
relates to the publication of the material that has a tendency
to interfere with the pending proceedings.
[24] The New Zealand Approach: It recognizes the Open
Justice principle. However, the courts have taken the view
that the said principle is not absolute. It must be balanced
against the object of doing justice. That, the right to freedom
of expression must be balanced against other rights including
the fundamental public interest in preserving the integrity of
justice and the administration of justice.
Indian Approach to prior restraint
(i) Judicial decisions
[25] At the outset, it may be stated that the Supreme
Court is not only the sentinel of the fundamental rights but
also a balancing wheel between the rights, subject to social
control. Freedom of expression is one of the most cherished
values of a free democratic society. It is indispensable to the
operation of a democratic society whose basic postulate is
that the government shall be based on the consent of the
governed. But, such a consent implies not only that the
consent shall be free but also that it shall be grounded on
adequate information, discussion and aided by the widest
possible dissemination of information and opinions from
diverse and antagonistic sources. Freedom of expression
which includes freedom of the press has a capacious content
and is not restricted to expression of thoughts and ideas
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which are accepted and acceptable but also to those which
offend or shock any section of the population. It also includes
the right to receive information and ideas of all kinds from
different sources. In essence, the freedom of expression
embodies the right to know. However, under our Constitution
no right in Part III is absolute. Freedom of expression is not
an absolute value under our Constitution. It must not be
forgotten that no single value, no matter exalted, can bear the
full burden of upholding a democratic system of government.
Underlying our Constitutional system are a number of
important values, all of which help to guarantee our liberties,
but in ways which sometimes conflict. Under our Constitution,
probably, no values are absolute. All important values,
therefore, must be qualified and balanced against, other
important, and often competing, values. This process of
definition, qualification and balancing is as much required
with respect to the value of freedom of expression as it is for
other values. Consequently, free speech, in appropriate cases,
has got to correlate with fair trial. It also follows that in
appropriate case one right [say freedom of expression] may
have to yield to the other right like right to a fair trial.
Further, even Articles 14 and 21 are subject to the test of
reasonableness after the judgment of this Court in the case of
Maneka Gandhi v. Union of India, 1978 1 SCC 248.
[35] Section 2 defines "contempt", "civil contempt" and
"criminal contempt". In the context of contempt on account of
publications which are not fair and accurate publication of
court proceedings, the relevant provisions are contained in
Sections 4 and 7 whereas Section 13 is a general provision
which deals with defences. It will be noticed that Section 4
deals with "report of a judicial proceeding". A person is not to
be treated as guilty of contempt if he has published such a
report which is fair and accurate. Section 4 is subject to the
provisions of Section 7 which, however, deals with publication
of "information" relating to "proceedings in chambers". Here
the emphasis is on "information" whereas in Section 4,
emphasis is on "report of a judicial proceeding". This
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distinction between a "report of proceedings" and
"information" is necessary because Section 7 deals with
proceedings in camera where there is no access to the media.
In this connection, the provisions of Section 13 have to be
borne in mind. The inaccuracy of reporting of court
proceedings will be contempt only if it can be said on the facts
of a particular case, to amount to substantial interference
with the administration of justice. The reason behind Section
4 is to grant a privilege in favour of the person who makes the
publication provided it is fair and accurate. This is based on
the presumption of "open justice" in courts. Open justice
permits fair and accurate reports of court proceedings to be
published. The media has a right to know what is happening in
courts and to disseminate the information to the public which
enhances the public confidence in the transparency of court
proceedings. As stated above, sometimes, fair and accurate
reporting of the trial (say a murder trial) would nonetheless
give rise to substantial risk of prejudice not in the pending
trial but in the later or connected trials. In such cases, there
is no other practical means short of postponement orders that
is capable of avoiding such risk of prejudice to the later or
connected trials. Thus, postponement order not only
safeguards fairness of the later or connected trials, it prevents
possible contempt by the Media.
43. Further, we must also keep in mind the words of
Article 19(2) "in relation to contempt of court". At the outset,
it may be stated that like other freedoms, clause 1(a) of Article
19 refers to the common law right of freedom of expression
and does not apply to any right created by the statute (see
page 275 of Constitution of India by D.D. Basu, 14th edition).
The above words "in relation to" in Article 19(2) are words of
widest amplitude. When the said words are read in relation to
contempt of court, it follows that the law of contempt is
treated as reasonable restriction as it seeks to prevent
administration of justice from getting perverted or prejudiced
or interfered with. Secondly, these words show that the
expression "contempt of court" in Article 19(2) indicates that
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54
the object behind putting these words in Article 19(2) is to
regulate and control administration of justice. Thirdly, if one
reads Article 19(2) with the second part of Article 129 or
Article 215, it is clear that the contempt action does not
exhaust the powers of the Court of Record. The reason being
that contempt is an offence sui generis. Common law defines
what is the scope of contempt or limits of contempt. Article
142(2) operates only in a limited field. It permits a law to be
made restricted to investigations and punishment and does
not touch the inherent powers of the Court of Record.
Fourthly, in case of criminal contempt, the offending act must
constitute interference with administration of justice.
Contempt jurisdiction of courts of record forms part of their
inherent jurisdiction under Article 129/ Article 215. Superior
Courts of Record have inter alia inherent superintendent
jurisdiction to punish contempt committed in connection
with proceedings before inferior courts. The test is that the
publication (actual and not planned publication) must create a
real and substantial risk of prejudice to the proper
administration of justice or to the fairness of trial. It is
important to bear in mind that sometimes even fair and
accurate reporting of the trial (say murder trial) could
nonetheless give rise to the "real and substantial risk of
serious prejudice" to the connected trials. In such cases,
though rare, there is no other practical means short of
postponement orders that is capable of avoiding the real and
substantial risk of prejudice to the connected trials. Thus,
postponement orders safeguard fairness of the connected
trials. The principle underlying postponement orders is that it
prevents possible contempt. Of course, before passing
postponement orders, Courts should look at the content of the
offending publication (as alleged) and its effect. Such
postponement orders operate on actual publication. Such
orders direct postponement of the publication for a limited
period. Thus, if one reads Article 19(2), Article 129/ Article
215 and Article 142(2), it is clear that Courts of Record "have
all the powers including power to punish" which means that
Courts of Record have the power to postpone publicity in
appropriate cases as a preventive measure without disturbing
its content. Such measures protect the Media from getting
prosecuted or punished for committing contempt and at the
same time such neutralizing devices or techniques evolved by
the Courts effectuate a balance between conflicting public
interests.
Further, we must also keep in mind the words of Article
19(2) "in relation to contempt of court". At the outset, it may
be stated that like other freedoms, clause 1(a) of Article 19
refers to the common law right of freedom of expression and
does not apply to any right created by the statute (see page
275 of Constitution of India by D.D. Basu, 14th edition). The
above words "in relation to" in Article 19(2) are words of
widest amplitude. When the said words are read in relation to
contempt of court, it follows that the law of contempt is
treated as reasonable restriction as it seeks to prevent
administration of justice from getting perverted or prejudiced
or interfered with. Secondly, these words show that the
expression "contempt of court" in Article 19(2) indicates that
the object behind putting these words in Article 19(2) is to
regulate and control administration of justice. Thirdly, if one
reads Article 19(2) with the second part of Article 129 or
Article 215, it is clear that the contempt action does not
exhaust the powers of the Court of Record. The reason being
that contempt is an offence sui generis. Common law defines
what is the scope of contempt or limits of contempt. Article
142(2) operates only in a limited field. It permits a law to be
made restricted to investigations and punishment and does
not touch the inherent powers of the Court of Record.
Fourthly, in case of criminal contempt, the offending act must
constitute interference with administration of justice.
Contempt jurisdiction of courts of record forms part of their
inherent jurisdiction under Article 129/ Article 215. Superior
Courts of Record have inter alia inherent superintendent
jurisdiction to punish contempt committed in connection
with proceedings before inferior courts. The test is that the
publication (actual and not planned publication) must create a
real and substantial risk of prejudice to the proper
administration of justice or to the fairness of trial. It is
important to bear in mind that sometimes even fair and
accurate reporting of the trial (say murder trial) could
nonetheless give rise to the "real and substantial risk of
serious prejudice" to the connected trials. In such cases,
though rare, there is no other practical means short of
postponement orders that is capable of avoiding the real and
substantial risk of prejudice to the connected trials. Thus,
postponement orders safeguard fairness of the connected
trials. The principle underlying postponement orders is that it
prevents possible contempt. Of course, before passing
postponement orders, Courts should look at the content of the
offending publication (as alleged) and its effect. Such
postponement orders operate on actual publication. Such
orders direct postponement of the publication for a limited
period. Thus, if one reads Article 19(2), Article 129/ Article
215 and Article 142(2), it is clear that Courts of Record "have
all the powers including power to punish" which means that
Courts of Record have the power to postpone publicity in
appropriate cases as a preventive measure without disturbing
its content. Such measures protect the Media from getting
prosecuted or punished for committing contempt and at the
same time such neutralizing devices or techniques evolved by
the Courts effectuate a balance between conflicting public
interests.
45. The postponement orders is, as stated above, a
neutralizing device evolved by the courts to balance interests
of equal weightage, viz., freedom of expression vis-a-vis
freedom of trial, in the context of the law of contempt.
46. One aspect needs to be highlighted. The shadow
of the law of contempt hangs over our jurisprudence. The
media, in several cases in India, is the only representative of
the public to bring to the notice of the court issues of public
importance including governance deficit, corruption,
drawbacks in the system. Keeping in mind the important role
of the media, Courts have evolved several neutralizing
techniques including postponement orders subject to the twin
tests of necessity and proportionality to be applied in cases
where there is real and substantial risk of prejudice to the
proper administration of justice or to the fairness of trial.
Such orders would also put the Media to notice about possible
contempt. However, it would be open to Media to challenge
such orders in appropriate proceedings. Contempt is an
offence sui generis. Purpose of Contempt Law is not only to
punish. Its object is to preserve the sanctity of administration
of justice and the integrity of the pending proceeding. Thus,
the postponement order is not a punitive measure, but a
preventive measure as explained hereinabove. Therefore, in
our view, such orders of postponement, in the absence of any
other alternative measures such as change of venue or
postponement of trial, satisfy the requirement of justification
under Article 19(2) and they also help the Courts to balance
conflicting societal interests of right to know vis-a-vis another
societal interest in fair administration of justice.
47. One more aspect needs to be mentioned.
Excessive prejudicial publicity leading to usurpation of
functions of the Court not only interferes with administration
of justice which is sought to be protected under Article 19(2),
it also prejudices or interferes with a particular legal
proceedings. In such case, Courts are duty bound under
inherent jurisdiction, subject to above parameters, to protect
the presumption of innocence which is now recognised by this
Court as a human right under Article 21, subject to the
applicant proving displacement of such a presumption in
appropriate proceedings.
48. Lastly, postponement orders must be integrally
connected to the outcome of the proceedings including guilt
or innocence of the accused, which would depend on the facts
of each case.
49. For afore-stated reasons, we hold that subject to
above parameters, postponement orders fall under Article
19(2) and they satisfy the test of reasonableness.
48. The contempt proceedings are quasi-criminal
in nature and the Court must be satisfied about the
contemnor’s guilt beyond reasonable doubt. We would
also like to hasten to add that the person cannot be
permitted to comment upon the conduct of the Court in
the name of fair criticism, which, if not checked, the
same would be detrimental to the institution itself. The
role of the Court is to maintain the majesty of law and to
permit reasonable criticism.
49. The print media integrates/assimilates people
and harmonizes their living. It moulds opinion and also
induces changes. The role of Press is also to generate
healthy debate and discussion. India is one of the 10th
largest publishers of the newspapers. Indian Press has
played a very important role in the country’s struggle for
freedom. The reporting must be error free, actual and
based on factual information. It should be objective and
interpretive in order to reach the truth and significant
facts and separate truth from falsehood. The
Journalist’s views should be without prejudice. There
should be clarity of expression. He has to undertake
research. He, as a sociologist, has to feel the pulse of the
society to usher new era. He has to garner public
opinion against the evils in the society and how to
eradicate them. In order to ensure that there is accurate
reporting of the court proceedings, the
Journalists/Reporters should be well conversant with
the legal terms and are expected to peruse the
judgments/orders of the Courts of law. Fearless and
independent press is essential to strengthen and nurture
the democracy.
50. The Tribune was founded on 2nd February
1881 in Lahore by Sardar Dyal Singh Majithia. The
Tribune and its sister publications are published by the
Tribune trust.
51. We hold the Tribune to highest esteem. The
Editorial and the Articles published in the Tribune are
world class. The Statesmen like Mr. B.K. Nehru have
remained President of the Tribune trust. Hon’ble Justice
S.S. Sodhi (Retd. Chief Justice) also falls in the same
league being eminent jurist and thinker. Sh. Dyal Singh
Majithia’s contribution towards fearless journalism and
his contribution in the sphere of education is also
legendry. The contribution of the Tribune before and
after independence remains unparalleled. It has kept
and maintained the highest standard of journalism. The
Tribune has also moulded our careers and we have no
hesitation in admitting that it has acted as a
philosopher, guide and mentor to us. We start our day
by reading the Tribune in the morning. When we go out
during vacations and come back, the first thing which we
do is to catch up with the Tribune in order to be with the
time and space.
52. Before parting with the judgment, it would be
apt to add that in order to strengthen the 4th pillar of the
democracy, we recommend/suggest to the State
Government to prepare a welfare scheme to improve the
service conditions of the Journalists and create a corpus
to pay pensionary benefits to those Journalists, who
have spent at least 30 years in journalism. These
suggestions/recommendations are necessary to provide
security and fearlessness in their professional pursuits.
53. The Andhra Pradesh Government has framed
the rules for the welfare of working journalists called
“The Andhra Pradesh Working Journalists Welfare Fund
Rules, 1986. These rules have come into force with
effect from 1.1.1986. Similarly, Orissa Government has
also framed the Orissa Working Journalists Welfare
Fund Rules, 2006 vide resolution dated 7.3.2006 to
provide for the constitution of a welfare fund for the
benefit of the indigent working journalists and retired
working journalists and their dependants. The U.P.
Government has three tier welfare benefits, i.e. pension
scheme regulated by Director Public Relation, health
scheme and certain reservation in housing plots/flats in
Government housing schemes. In Himachal Pradesh,
the retired journalists only get meagre pension between
Rs. 4,000/- to 5,000/-. The wage structure of
permanent journalists is governed by the wage board
and the wage structure of contractual journalists is
regulated by the terms and conditions of the contract.
Till date, the Government of Himachal Pradesh has not
framed the rules for the creation of welfare fund/pension
scheme/health scheme for the working/retired
journalists. We recommend/suggest to the State of
Himachal Pradesh to frame Working Journalists Fund
Rules as framed by the Government of Andhra Pradesh
as well as Government of Orissa. We also recommend/
suggest that pension scheme/health scheme be framed
by the State Government to be regulated by the Addl.
Chief Secretary/Director, Information and Public
Relations, Government of Himachal Pradesh by creating
necessary corpus on the analogy of scheme framed by
the Government of Utter Pradesh. It is made clear that
the suggestions/ recommendations would only govern
the Journalists, who earn their livelihood primarily from
the field of journalism. The pension should be made
applicable to only those journalists, who have spent 20-
25 years in the field of active journalism. Needful be
done within a period of three months from today.
54. Thus, in view of the definitive law laid down
by the Hon’ble Supreme Court and having regard to the
facts and circumstances of the case, the unconditional
apology tendered by Sh. Kuldeep Chauhan is accepted
with a warning that in future he should be more careful
and responsible by providing fair, accurate and impartial
information. The proceedings are closed. The notice is
discharged.
55. We remember the metonymic adage coined by
English author Edward Bulwar Lytton in 1839 “The
pen is mightier than the sword”.
(Justice Rajiv Sharma),
Judge.
(Justice Sureshwar Thakur),
Judge.
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