Report No. 200
Recommendations for Amending The Provisions of The Contempt of Court Act, 1971
In this Chapter we shall refer to our recommendations for amendment of the Contempt of Courts Act, 1971 on the basis of what we have discussed in the earlier Chapters.
(1) It is initially necessary to define "publication" as including publication in print and electronic media, radio broadcast and cable television and the world-wide web by insertion of an Explanation in clause(c) of Section 2 of the principal Act, to enlarge the meaning of the word 'publication' as stated above. This proposal is contained in Section 3 of the Bill.
2 (a) We have pointed out in the earlier Chapters that it is necessary to create a just balance between the freedom of speech and expression guaranteed in Article 19(1)(a) and the due process of criminal justice required for a fair criminal trial, as part of the administration of justice.
Though Article 19(2) does not refer to the imposition of reasonable restrictions for the purposes of administration of justice, the reference in Article 19(2) that restrictions can be imposed for purpose of the Contempt of Courts Act clearly indicates that the Contempt of Courts Act, 1971 (sections 2, 3) take care of the protection of the administration of justice and duecourse of justice.
Our recommendation must naturally be intended to bring the provisions of Section 3, particularly, the Explanation to Section 3, into conformity with the decision of the Supreme Court in A.K.Gopalan v. Noordeen:1969(2) SCC 734 wherein, after referring to freedom of speech and expression, the Supreme Court held that publications made after the arrest of a person could be criminal contempt if such publications prejudice any trial later in a criminal court. As the Explanation now stands, 'pendency of a criminal proceeding' is defined in clause (B) as starting from the filing of a charge sheet or challan or issuance of summons or warrant by a criminal court.
The Supreme Court in the above case held that publication made even after arrest and before filing of charge sheet could also be prejudicial. If so, that guarantee must be implied in the 'due process' under Article 21 as explained in Maneka Gandhi's case and to that extent, it is permissible to regulate publications by media made after arrest even if such arrest has been made before the filing of the charge sheet or challan.
We have seen that in U.K and several countries, a criminal proceeding is treated as "active" if an arrest is made. This is to accommodate the principle decided by the Scotland Court in Hall (see Chapter VI) that a person arrested comes immediately within the protection of a Court for he has to be produced before a Court within 24 hours of the arrest. Taking "arrest" as starting point, any restriction on prejudicial publications will be reasonable if they have to satisfy the due process requirement under Article 21 which, after Maneka Gandhi's case AIR 1978 SC 597, as that judgment requires that the procedure protecting liberty must be fair, just and reasonable and not arbitrary or violative of Article 14.
Therefore, in our view, the word 'pending' used in Section 3(1),(2) and Explanation clauses (a) and (b) at different places must be substituted by the word 'active' because the word 'pending' gives an impression that a criminal case must be actually pending. The word 'active' used in the U.K Act,1981 and in the Bill annexed to the Report of the NSW Law Commission, 2003 in our opinion, is more apt and under the above Act and Bill, a criminal proceeding is defined as being 'active' from the date of arrest.
We, therefore, recommend that the word 'pending' in Section 3(1), (2) and Explanation, used at different places must be substituted by the word 'active'.
(b) Further, the revised definition of the word 'active' must be applicable not only for purposes of Section 3 but for the purposes of the entire Act. In fact, the word 'pending' has not been used in any other section of the Act except section 3. Some of the new provisions which we propose, use the word 'active' and hence the definition of the word 'active' must be applicable to "all provisions of the Act" and not merely to section 3.
These changes are proposed in Section 4 of the Bill.
(3). So far as breach of section 3, as proposed, when even a prejudicial publication is made after arrest or after a charge sheet is filed, or summons or warrant is issued, at present, if there is criminal contempt of subordinate courts, those courts have no power to punish for contempt but can only make a reference to the High Court under section 15(2). This provision is good except that in the special case of contempt by publication offending provisions of section 3(2) and Explanation (or rather even the existing section 3 (2) and Explanation), the procedure is cumbersome and time consuming. Much damage by publication can result if the contempt power has to be exercised by the High Court for purposes of section 3(2) violations through a reference to the High Court.
We are of that view, that a separate section has to be inserted (section 10A) for the purpose of enabling the Court to punish for criminal contempt by publication under sub clause (ii) and (iii) of section 2(c), so that action can be taken directly in the High Court in the manner stated under section 15(1) either suo motu or as the application of any person - such as accused or suspect or others affected by the prejudicial publication. We are referring to clause (1) of section 2 here, and restricting the sub clauses (ii) and (iii) and clause (c) which deal with publications. We are not here concerned with clause (i) of section 2(c) for which section 15(2) procedure by reference or motion by Advocate General will continue to apply.
Further once we refer to clause (ii) and (iii) of section 2(c), it will take in all criminal contempt as to publication falling under those sub clauses (ii) and (iii) which are not protected by the various sections of the Act. In addition we provide that consent of the Advocate General as specified in section 15(1).
(4) The next question is to provide something akin to Section 4(2) of the U.K Act or Sections 7,8, 9 of the Bill attached to the NSW Report (2003). We shall first refer to these provisions.
(a) Section 4(2) of UK Act, 1981, permits the Court to pass orders postponing publication of reports of criminal cases which are active, if such publication would create a "substantial risk of prejudice" to such a proceeding or any imminent proceeding. Section 4(2) is applicable to civil as well as criminal proceedings which are 'active'. Our recommendations here are confined only to publications affecting active criminal proceedings.
(b) We are not happy with the provision postponing 'reporting' of court proceedings which are active as contained in Section 4(2) of the U.K Act. We are, in fact, concerned with publications which prejudice a fair trial.
(c) Sections 7,8,9 of the NSW Bill deem publications as amounting to contempt if they create substantial risk of prejudice. They do not relate to postponement orders. The Bill is in Annexure A to that Report of the NSW Law Commission (2003). But, Appendix B to that Bill contains another draft Bill giving powers to court to regulate access to court records or reports and contains a provision for passing 227'suppression orders' but the sections as proposed there do not refer to substantial risk of prejudice by publications.
(d) In our view, firstly, the section to be proposed by us must vest powers in Court to pass postponement orders as to prejudicial publication of any matter relating to an active criminal proceeding and not merely to reporting about the case as in Section 4(2) of the U.K Act.
(e) Further, in view of the interpretation of the words 'substantial risk of prejudice' by English Courts as where 'there is no substantial risk' or 'no remote risk' and the absence of any adjective governing the word 'prejudice', we are of the view that instead of the words 'substantial risk of prejudice' in Section 4(2) of the U.K Act, in the proposed section giving powers to the Court to pass 'postponement' orders, we should use the words:
"real risk of serious prejudice" so that the emphasis is not only on the word 'risk' but also on the word 'prejudice'.
(f) A question may be asked as to why we are not using these words (significant risk of serious prejudice) in Section 3 which deals with 'interference' or 'tending to interfere' with the administration of justice in section 2 or the words 'course of justice' in Section 3.
The reason is that the words used in section 2(c) and 3 define what publication may be 'criminal contempt' but the question of restricting freedom of speech by passing an order of 'prior restraint' as in section 4(2) of the UK Act, 1981 requires more stringent conditions. That is why, for purposes of passing postponement orders as to publication, it is necessary to use the words "significant risk of serious prejudice". Prior restraint as pointed by the Supreme Court in Reliance Petrochemicals is a serious encroachment on the right of the press for publication under Art 19(1)(a) and cannot be interfered with merely because the publication interferes or tends to interfere with the course of justice as stated in section 2(c) or section 3. Prior restraint requires more stringent conditions.
(g) The next question is as to which Court should pass postponement orders. In our view, such powers cannot be vested in the subordinate courts where the criminal proceedings are 'active'. This is because under the 1971 Act, the subordinate courts have no power to take action for contempt. Under Section 15(2), they can only make a 'reference' to the High Court.
Further, the balancing of the rights of freedom of speech and the due process right of the suspect/accused as explained in Maneka Gandh's case can be done more appropriately by the High Court which is a Constitutional Court.
The High Court for the purpose of passing postponement orders will be a Bench of not less than two Judges.
(h) Postponement of publication does not mean result in an absolute prohibition. Initially, an order of postponement must be temporary, and can be passed ex parte and but must be made for a week enabling the media to come forward for variation or cancellation. Of course, the initial order of restraint must be published in the Media, so that the media will have an opportunity to know about the passing of the order and have the order varied/cancelled.
(i) There is, however, danger of the postponement order lapsing at the end of one week, if no application is filed for variation or modification by the media and no variation/cancellation is granted in a week. Hence, it is necessary to provide for its automatic extension by law, in case no application is filed within one week or where the order is not varied or cancelled within one week. Of course, after such automatic extension also, the media can apply for variation or cancellation.
(j) We, therefore, recommend insertion of Section 14A as stated in section 6 of the Bill annexed.
(4) We also propose Section 14B under which any breach of a postponement order i.e. where the media makes a publication in breach of the postponement order, it will amount to contempt of court for which the High Court may take action according to law for criminal contempt. (This is also contained in Section 6 of the Bill):
We are using the word 'according to law' for the High Court may take action under the Contempt of Court Act r under Art 215 of the Constitution.
(5) We have proposed Section 14A and 14B as above for the purpose of passing postponement orders in respect of publications, and breach of such an order. But, as stated in our discussion under sec above, a more important need is the punishment for criminal contempt of a subordinate court where criminal proceedings are active as stated in subsection (2) of section 3.
(6) As far as applicability of the amending Act is concerned, it shall apply to publications amounting to criminal contempt in respect of active criminal proceedings within subsection (2) of section 3, made after the commencement of the amending Act. This is contained in section 7 of the Bill.
A Draft Bill on these lines is herewith annexed.
(7) Media persons to be trained in certain aspect of law:
The freedom of the media not being absolute, media persons connected with the print and electronic media have to be equipped with sufficient inputs as to the width of the right under Art 19(1)(a) and about what is not permitted to be published under Art 19(2). Aspects of constitutional law, human rights, protection of life and liberty, law relating to defamation and Contempt of Court are important from the media point of view. It is necessary that the syllabus in Journalism should cover the various aspects of law referred to above. It is also necessary to have Diploma and Degree Course in Journalism and the Law.
We recommend accordingly.
Justice M. Jagannadha Rao
Dr. D.P. Sharma