Report No. 200
In P.C. Sen in re the Supreme Court observed: (p 1829)
"No distinction is, in our judgment, warranted that comment on a pending case or abuse of a party may amount to contempt when the case is triable with the aid of a Jury and not when it is triable by a Judge or Judges."
It appears that it was accepted by the Supreme Court that Judges are likely to be "subconsciously" influenced . That was also the view of Justice Frankfurter of U.S. Supreme Court (in his dissent) and of Lord Scarman and Lord Dilhorne of the House of Lords. We shall presently refer to these views.
P.C. Sen (in Re) (AIR 1970 SC 1821) was, no doubt, a case where a civil action by way of a writ was pending in the High Court. There was a broadcast by the Chief Minister of West Bengal, who had knowledge of the challenge to the West Bengal Milk Products Control Order, 1965 in a Writ Petition that was pending in the Calcutta High Court, and the High Court held him to be guilty of contempt for justifying the Control Order in his radio broadcast but let him off without punishment.
On appeal, the Supreme Court agreed that the speech of the Chief Minister was ex facie calculated to interfere with the administration of justice. In the course of the judgment, it was stated that no distinction can be made on the ground whether a case is triable by a Judge or Jury. If an action tends to influence the Jury, it may also tend to influence a Judge.
In Reliance Petrochemicals Ltd. v. Proprietors of Indian Express 1988(4) SCC 592, an order of prior restraint was passed by the Supreme Court initially while a civil case was pending adjudication. There there was a public issue of the commercial company, the company started the public issue after obtaining sanction of the Controller of Capital Issues. The sanction was under challenge by various parties in different High Courts and the company filed a transfer petition in the Supreme Court to bring all the matters before the Supreme Court.
In that case which related to transfer of all similar cases to one Court, initially, at the instance of Reliance Petrochemicals, the Supreme Court passed an order restraining the Indian Express Newspapers from publishing any article, comment, report or editorial on the subject of public issue by the company. The Indian Express applied for vacating the order and while vacating the order, the Supreme Court considered the case law pertaining to publications which could be prejudicial and referred to the exceptions.
The Supreme Court referred to Article 19(1)(a) which deals with freedom of speech and expression and the restrictions stated in Article 19 (2). It pointed out that the American Constitution does not contain any provision for imposition of reasonable restrictions by law.
It adverted to the absolute terms in which the U.S First Amendment dealing with freedom of speech and expression is couched and to the theory of 'real and present danger' which was evolved by the U.S Courts as the only inherent limitation on that right in that country. The Supreme Court in Reliance case stated that the position in India was different, here the right of freedom of speech and expression was not absolute as in USA. The Court observed (see para 10, p.602):
"Our Constitution is not absolute with respect to freedom of speech and expression as enshrined by the First Amendment to the American Constitution."
The Court again stated (see para 12, p.603,) that it was not dealing with a case of publication by press affecting 'judicial administration' in the context of Contempt of court but was examining the question of publication as a matter relating to 'public interest'. After referring to the First Amendment to the US Constitution which is in absolute terms, the Court stated (p.605, para 15):
"In America, in view of the absolute terms of the First Amendment, unlike the conditional right of freedom of speech under Article 19(1)(a) of our Constitution, it would be worthwhile to bear in mind the 'present and imminent danger' theory".
The Supreme Court then referred to the observations of Justice Frankfurter in John D. Pennekamp v. State of Florida (1946) 328 US 331) to the effect that 'the clear and present danger' concept was never stated by Justice Holmes in Abrams v. U.S: (1919) 250 US 616 to express a technical doctrine or convey a formula for adjudicating cases. It was a literary phrase not to be distorted by being taken out from its context.
The Judiciary, according to Justice Frankfurter could not function properly if what the press does is reasonably calculated to disturb the judicial judgment in its duty and capacity to act solely on the basis of what is before the Court. The judiciary is not independent unless Courts of Justice are enabled to administer law by absence of pressure from without, or the presence of disfavour. There is yet another celebrated passage in the said judgment of Justice Frankfurter (not quoted by our Supreme Court) to which we may refer:-
"No Judge fit to be one is likely to be influenced consciously, except by what he sees or hears in Court and by what is judicially appropriate for his deliberations. However, Judges are also human and we know better than did our forbears how powerful is the pull of the unconscious and how treacherous the rational process ... and since Judges, however stalwart, are human, the delicate task of administering justice ought not to be made unduly difficult by irresponsible print.
The power to punish for contempt of court is a safeguard not for Judges as persons but for the functions which they exercise. It is a condition of that function - indispensable in a free society - that in a particular controversy pending before a court and awaiting judgment, human beings, however strong, should not be torn from their moorings of impartiality by the undertone of extraneous influence. In securing freedom of speech, the Constitution hardly meant to create the right to influence Judges and Jurors."
The Supreme Court next referred to Nebraska Press Association v. Hugh Stuart: (1976) 427 US 539 where the American Supreme Court vacated a prior-restraint order passed by the trial Judge in a multiple murder case while that case was pending, on the ground that the view of the trial Judge that Jurors are likely to be influenced by the press publications, was speculative. The US Supreme Court stated that the trial court should have resorted to alternative remedies such as - change of venue, postponement of trial, a searching voir dire of the Jury panel for bias, and sequestration of jurors - before passing a restraint order. After referring to Nebraska, our Supreme Court observed that (p.607, para 21):-
"We must examine the gravity of the evil. In other words, a balance of convenience in the conventional phrase of AngloSaxon Common Law Jurisprudence would, perhaps, be the proper test to follow."
After thus referring to the US First Amendment as being absolute and to the test of 'real and present danger' evolved in US and after holding that the position in India was different because here Article 19(1)(a) granted only a conditional right, the Supreme Court turned to the Anglo-Saxon Jurisprudence and examined the English cases.
The Supreme Court referred to Attorney General v. BBC: 1981 A.C 303 (HL). In that case the Attorney General had brought proceedings for an injunction to restrain the defendants from broadcasting a programme dealing with matters which related to an appeal pending before a Local Valuation Court on the ground that the broadcast would amount to contempt of court.
In that context, (though the House of Lords held that contempt law did not apply to the Valuation Court), Lord Scarman observed that 'administration of justice' should not at all be hampered with. Lord Denning in the Court of Appeal had observed that professionally trained Judges are not easily influenced by publications. But, disagreeing with that view of Lord Denning, Lord Dilhorne stated (pp 335) in yet other oft-quoted passage as follows:
"It is sometimes asserted that no Judge will be influenced in his Judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting.
Every holder of a Judicial Office does his utmost not to let his mind be affected by what he has seen or heard or read outside the Court and he will not knowingly let himself be influenced in any way by the media, nor in my view will any layman experienced in the discharge of Judicial duties. Nevertheless, it should, I think, be recognized that a man may not be able to put that which he has seen, heard or read entirely out of his mind and that he may be subconsciously affected by it. It is the law, and it remains the law until it is changed by Parliament, that the publications of matter likely to prejudice the hearing of a case before a court of law will constitute contempt of court punishable by fine or imprisonment or both".
No doubt, as stated above, Lord Denning M.R stated in the Court of Appeal that Judges will not be influenced by the media publicity (Att Gen v. BBC: 1981 AC 303 (315) CA), a view which was not accepted in the Houe of Lords in Att Gen v. BBC 1981 AC 303 (HL).
In fact, Borrie and Lowe in their Commentary on Contempt of Court (3 rd Edn, 1996) state that Lord Denning's view is "more a statement of policy rather than literal truth".
Cardozo, one of the greatest Judges of the American Supreme Court, in his 'Nature of the Judicial Process' (Lecture IV, Adherence to Precedent. The Subconscious Element in the Judicial Process) (1921) (Yale University Press) referring to the "forces which enter into the conclusions of Judges" observed that "the great tides and currents which engulf the rest of men, do not turn aside in their curse and pass the Judges by".
The full text of the passage in the above essay of Cardozo reads thus:
"Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex instincts and emotion and habits and convictions, which make the man, whether he be litigant or Judge. There has been a certain lack of candor in much of the discussions of the theme or rather perhaps in the refusal to discuss it, as if Judges must lose respect and confidence by the reminder that they are subject to human limitations."