Report No. 200

Two questions arise for consideration:

(1) Whether the provisions of Section 3 (2) of the Contempt of Courts Act,1971 read with the Explanation below that section are in violation of due process as guaranteed by Article 21 of the Constitution of India, in so far as they grant immunity to prejudicial publication made before the filing of the charge sheet/challan ?

(2) If the answer to Question No.1 is in the affirmative, whether the Explanation to Section 3 has to be and can be modified by shifting the starting point of "pendency" of a criminal proceeding to the anterior stage of arrest, and whether such a change in the law would amount to an unreasonable restriction on freedom of speech guaranteed under Article 19(1)(a) of the Constitution ?

So far as the first Question is concerned, as already stated, as at present, if a publication which is made before the filing of a charge sheet or challan, interferes or tends to interfere with the course of justice in connection with a criminal proceeding, the rights of a person who has been arrested and in respect of whom the prejudicial publication is made, are not protected by the law of Contempt of Court. But, if such publications are prejudicial to the suspect or accused, will they not offend the principle of due process rights of a suspect or an accused as applicable in criminal cases and as declared by the Supreme Court in Maneka Gandhi v. Union of India: AIR 1978 SC 597 ?

Article 21 guarantees that "No person shall be deprived of his life or personal liberty except according to procedure established by law". As is well known, overruling the earlier view in A.K.Gopalan v. State of Madras: AIR 1950 SC 27, the Supreme Court held in Maneka Gandhi's case that the "procedure established by law" must be a law which is fair, just and equitable and which is not arbitrary or violative of Article 14 of the Constitution of India.

If indeed a publication is one which admittedly interferes or tends to interfere or obstructs or tends to obstruct the "course of justice" in a criminal proceeding, in respect of a person under arrest (see Section 3[1]), but the law gives it immunity under section 3(2) because the publication was made before the filing of the charge sheet/challan, is such a procedure fair, just and equitable ?

In several countries, U.K, Australia, New Zealand etc, any publication made in the print or electronic media, after a person's arrest, stating that the person arrested has had previous convictions, or that he has confessed to the crime during investigation or that he is indeed guilty and the publication of his photograph etc, are treated as prejudicial and as violative of due process required for a suspect who has to face a criminal trial. It is accepted that such publications can prejudice the minds of the Jurors or even the Judges (where Jury is not necessary).

The impact on Judges has been elaborately discussed in Chapter III of this Report. The Supreme Court of India has indeed accepted, in more than one case, that Judges may be 'subconsciously' prejudiced against the suspect/accused. We have indeed referred to some opinions to the contrary expressed by Courts in USA where the freedom of speech and expression is wider than in our country. In USA the restrictions are narrow, they must only satisfy the test of 'clear and present danger'.

In India restrictions can be broader and can be imposed, if they are "reasonable". Restrictions intended to protect the administration of justice from interference can be included in the Contempt Law of our country under Art 19(2), if they are 'reasonable' It is even accepted in our country that actual prejudice of Judges is not necessary for proving contempt. It is sufficient if there is a substantial risk of prejudice. The principle that "Justice must not only be done but must be seen to be done" applies from the point of view of public perception as to the Judges being subconsciously prejudiced as has been accepted in UK and Australia.

In view of the above, such a publication made in respect of a person who is arrested but in respect of whom a charge sheet or challan has not yet been filed in a Court, in our view, prejudices or may be assumed by the public to have prejudiced the Judge, and in that case a procedure, such as the one permitted by Section 3(2) read with Explanation of the Contempt of Courts Act,1971, does not prescribe a procedure which is fair, just and equitable, and is arbitrary and will offend Article 14 of the Constitution of India.

Contempt law which protects the 'administration of justice' and the 'course of justice' does not accept undue interference with the due process of justice and the due process includes non-interference with the rights of a suspect/accused for an impartial trial. Thus, Contempt of Court law protects the person who is arrested and is likely to face a criminal trial. No publication can be made by way of referring to previous convictions, character or confessions etc. which may cause prejudice to such persons in the trial of an imminent criminal case. Such a procedure, therefore, would interfere or tend to interfere or obstruct or tend to obstruct the course of justice.

Once is arrest is made and a persons is liable to be produced in Court within 24 hours, if, at that stage, a publication is made about his character, past record of convictions or alleged confessions, it may subconsciously affect the Magistrate who may have to decide whether to grant or refuse to grant bail, or as to what conditions have to be imposed or whether the person should be remanded to police custody or it should be a judicial remand. Further, if after a publication, a bail order goes against the arrested person, public may perceive that the publication must have subconsciously affected the Magistrate's mind.

The Contempt of Courts Act, 1971 can therefore be validly amended to say that such prejudicial publication made even after arrest and before filing of charge sheet/challan will also amount to undue interference with administration of justice and hence would be contempt and such a restriction is 'reasonable' and proportionate to the object, protection of rights of the arrested person and the administration of justice.

So far as Question 2 is concerned, if the contempt law in Section 3 is to be amended, as proposed above, so as to treat publications of the manner referred to above made even after arrest and but before filing of charge sheet or challan, as liable to contempt by redefining the Explanation (B) to deem that a criminal case is "pending" from the stage of arrest, then will such a law unreasonably restrict the right to freedom of speech and expression guaranteed under Article 19(1)(a) and will it fall outside the reasonable limits permissible under Article 19(2).

If a restriction on the freedom of speech and expression is intended by the legislature to protect the administration of justice or the course of justice which requires to be meted out to a subject under arrest, and if but for the immunity granted for such publication, it would admittedly interfere or tend to interfere with the course of justice, then from the point of view of the person under arrest, in our opinion, such a restriction cannot be said to be unreasonable within Article 19(2). Such a restriction on freedom of speech and expression under Article 19(2) cannot be said to be violative of Article 19(1)(a).

It is reasonable because, in fact, it is absolutely necessary as per fair due process after Maneka Gandhi, for the purpose of protecting the administration of justice which includes protection of the rights of a person under arrest who is entitled to a procedure which is fair, equitable and just under Article 21 and which is consistent with Article 14. The restriction is reasonable if intended to prevent prejudice on the part of the Judge, or intended to prevent any impression of prejudice in the minds of the public as to prejudice in the mind of Judges. This is a straight answer.

Art 19(2) raises a question of 'proportionality' of a restriction that may be imposed bylaw such as the Contempt of Courts Act, 1971.

The provisions of the Contempt of Court Act, 1971, if they treat as contempt, publications made after the filing of a first information report, then in view of Surendra Mohanty v. State of Orissa (1961)(quoted in A.K. Gopalan v. Noordeem 1969(2) SCC 7341 such a provision would be an unreasonable restriction on freedom of publications. But, if the proposal is that that the prejudicial publications made after the date of arrest is contempt, that, according to A.K. Gopalan v. Noordeen is not an unreasonable restriction on the freedom of publication.

Secondly, it is now well settled that the right to freedom and expression under Article 19(1) is not absolute. The Constitution itself permits in Article 19(2) restrictions to be imposed on that right if they are reasonable. Article 19(2) says:

"Nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of or in relation to Contempt of Court ..."

The Indian Supreme Court has repeatedly held that this freedom is not absolute. Even in USA, it has been so accepted. The difference only is that in USA, the principle is of 'clear and present' danger while our Constitution permits 'reasonable' restrictions.

A restriction on the right to due process which requires that no such prejudicial publication can be made, after arrest of a person, which would interfere or tend to interfere or obstruct or tend to obstruct the course of justice, must be treated as reasonable, for it is not a permanent or absolute restriction.