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Report No. 200

Cardozo then stated in a very famous quotation,

"None the less, if there is anything of reality in my analysis of the Judicial Process, they do not stand aloof on these chill and distant heights; ... The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the Judges by".

The New South Wales Law Commission in its Discussion Paper (2000) (No.43) on 'Contempt by Publication' stated (see para4.50) that most law reform bodies "tended to take the view that Judicial officers should generally be assumed capable of resisting any significant influence by media publicity. Despite this, they have not gone so far as to exclude altogether as a possible ground of liability for sub-judice contempt, the risk of influence on a Judicial officer.

The justification for this approach is twofold: first, it is always possible that a Judicial officer may be subconsciously influenced; and secondly, it is just as important to protect the public perception of Judges' impartiality as to protect against risk of bias". The Discussion Paper notes that in UK, the Phillmore Committee noted that Judges are generally capable of putting extraneous matter out of their minds but, in its recommendations, the Committee did not exclude influence on Judicial officers as a ground for liability.

The NSW Law Commission referred to an article by S. Landsman and R.Rakos "A Preliminary Inquiry into the effect of potentially biasing information on Judges and Jurors in Civil Litigation" (1994) ( 12 Behavioral Sciences and the Law 113), which concluded that there is no empirical data to support or refute the assertion that Judicial officers are not likely to be significantly influenced by media publicity. We cannot forget the Common Law rule laid down in R v. Sussex Justices: Exparte McCarthy: 1924(1) KB 256 that:

"Justice should not only be done, it should manifestly and undoubtedly be seen to be done".

The Irish Law Commission in its Consultation paper (1991) (p 115) on Contempt of Court observed similarly. The Canadian Law Reform Commission also took the view that, while Judges may generally be impervious to influence, the possibility of such influence could not be ruled out altogether, and that in the case of Judicial officers, the sub-judice rule served an important function of protecting public perception of impartiality (see Canadian Law Reform Commission, Contempt of Court: Offences against Administration of Justice {Working Paper 20, 1977, p 42-43} and Report 17 (1982) at p 30).

In Union of India v. Naveen Jindal: 2004(2) SCC 510, it was clearly held that the US First Amendment is in absolute whereas the right under Article 19(1)(a) can be restricted as permitted in Article 19(2)(a), echoing what was stated in Reliance Petrochemicals.

In M.P. Lohia v. State of West Bengal: 2005(2) SCC 686, the facts were that a woman committed suicide in Calcutta in her parents' house but a case was filed against the husband and in-laws under the Indian Penal Code for murder alleging that it was a case of dowry death. The husband (appellant in the Supreme Court) had filed a number of documents to prove that the woman was a schizophrenic psychotic patient. The parents of the woman filed documents to prove their allegations of demand for dowry by the accused. The trial was yet to commence. The Courts below refused bail.

The Supreme Court granted interim bail to the accused and while passing the final orders, referred very critically to certain news items in the Calcutta magazine. The Court deprecated, two articles published in the magazine in a one-sided manner setting out only the allegations made by the woman's parents but not referring to the documents filed by the accused to prove that the lady was a schizophrenic. The Supreme Court observed:-

"These type of articles appearing in the media would certainly interfere with the course of administration of justice."

The Court deprecated the articles and cautioned the Publisher, Editor and Journalist who were responsible for the said articles against "indulging in such trial by media when the issue is sub-judice." and observed that all others should take note of the displeasure expressed by the Court.

The Punjab High Court in Rao Harnarain v. Gumori Ram: AIR 1958 Punjab 273 stated that 'Liberty of the press is subordinate to the administration of justice. The plain duty of a journalist is the reporting and not the adjudication of cases.' The Orissa High Court in Bijoyananda v. Bala Kush (AIR 1953 Orissa 249) observed that -

"the responsibility of the press is greater than the responsibility of an individual because the press has a larger audience. The freedom of the press should not degenerate into a licence to attack litigants and close the door of justice nor can it include any unrestricted liberty to damage the reputation of respectable persons."

In Harijai Singh v. Vijay Kumar: 1996(6) SCC 466, the Supreme Court stated that the press or journalists enjoy no special right of freedom of expression and the guarantee of this freedom was the same as available to every citizen. The press does not enjoy any special privilege or immunity from law.

Summarizing the position, it will be seen that the right to free speech in US is absolute and no restraint order against publication is possible unless there is 'clear and present danger' to the right itself.

But, the position in India is different. The right to free speech is not absolute as in US but is conditional and restricted by Article 19(2). Treating a publication as criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971 where the Court comes to the conclusion that the publication as to matters pending in Court 'tends' to interfere {vide Section 2(c)(iii)} with the administration of justice, amounts to a reasonable restriction on free speech.

The view obtaining in USA that trained Judges or even jurors are not influenced by publication in the media as stated by the majority in Nebraska (1976) 427 US 539) was not accepted in England in Attorney General v. BBC 1981 AC 303 (HL) by Lord Dilhorne who stated that Judges and Jurors may be influenced subconsciously and Judges could not claim to be super human was quoted by the Supreme Court in Reliance Petrochemicals. In what manner they are so influenced may not be visible from their judgment, but they may be influenced subconsciously.

Even in US, Justice Frankfurter has accepted that Judges and Jurors are likely to be influenced. The view of the Indian Supreme Court even earlier in P.C. Sen In re: AIR 1970 SC 1821 was that Judges and Jurors are likely to be influenced and that view in the Anglo-Saxon law appears to have been preferred by the Supreme Court in Reliance case. That Judges are subconsciously influenced by several forces was also the view of Justice Cardozo and of the various Law Commissions referred to above.

Trial by Media free speech and fair trial under Criminal Procedure Code, 1973 Back

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