© 2019 JETIR March 2019, Volume 6, Issue 3 www.jetir.

org (ISSN-2349-5162)

A CRITICAL ANALYSIS ON MEDIA

INFLUENCING JUDICIAL PROCEEDINGS WITH
REFERENCE TO CONTEMPT OF COURT
1
Minerva, 2Dr. Sunitha Abhay Jain
1
B.A.LL.B, (LLM), 2LLB, LLM, MHR, PGDCL, PhD
School of Law, Christ University.

Abstract
Media plays a significant role in a democratic country like India. If media is properly regulated and restricted
from publishing any prejudicial material related to a case pending before any court it can act effectively as a
watch dog over the judiciary, provided it. This paper is narration of how media can influence the
administration of justice. It addresses a brief historical background and an overview of legal frame work
adopted to deal with serious risk of prejudice to court proceedings by media. Reference has been made to the
regulatory mechanism adopted to prevent and punish media for criminal contempt of court. In the context of
contempt of court, this paper aims to analyze the contribution of Indian judiciary in striking balance between
the fair trial and freedom of press

Keywords
Media, publication, prejudice, contempt of court, administration of justice, regulation.

I. INTRODUCTION

Media refers to various means of communication through different communication devices such as television,
radio, newspaper, magazines, internet, which is used to share, receive, and impart information to the public at
large. It exists in both print and electronic forms. Media is wide spread across the globe, transmitting
information of important events and providing a medium of interaction in the modern world. It carries out
diverse activities such as reporting of legal proceedings, conducting trails. Media creates awareness of various
social, political and economic activities in the society. The main job of media is to inform people about
unbiased news without any censorship or tampering. Media acts as an intermediary between the people and
the Government. The role of media is significant in a democratic countries, as it is a mode through which
people’s right to know can be realized effectively. Media affects the perception of public at large and it plays
a vital role in formation of public opinion which is essential aspect of democracy. Hence media is considered
to be the fourth pillar of democracy and it derives the freedom of press through Article 19(1) (a) of the
Constitution. Media has been frequently accused of influencing judicial trials in sensitive matters before a
court.

Along with the Adjudication, the court also has duties to ensure proper discharge of their functions in an
unhampered and untainted by wanton attacks on the system of justice. The higher judiciary of India i.e. High
Court under Article 215 and the Supreme Court under Article 129 is empowered to punish people for contempt
of court. The Contempt of Court is classified into civil contempt and criminal contempt. When a person does
not abide by the order, decree, writ or directions issued by the court, he can be charged for civil contempt
whereas if a person scandalize or tends to scandalize the Judiciary, he can be charged for criminal contempt.
Criminal contempt is looked into by the judiciary seriously as it leads to disobedience and disrespect of people
towards the judicial institutions. It results in loss of faith in the society upon the Judiciary, causing prejudice
the judicial process or hindrance to administration of justice, which results in miscarriage of justice and
ultimately leads to collapse of the justice system. Article 19(1) (a) of the Constitution of India guarantees the
freedom of speech and expression to its citizens. Such expressions can be by way of words spoken or written,

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painting, art, symbols, signals, etc. The freedom of speech and expression as guaranteed under the Constitution
is not absolute. Reasonable restrictions are imposed on such rights under Article 19(2) of the Constitution and
contempt of court is one such restriction.

II. CONSTITUTIONAL PROVISIONS RELATING TO CONTEMPT

The freedom of speech and expression is guaranteed under Article 19(1) (a) of the constitution of India. Such
freedom cannot be allowed to lower the prestige of the court in the eyes of the public. Article 19(2) puts a
restriction so far as the contempt of court is concerned. The right to freedom of expression cannot be equated
with the license to make irresponsible allegations. Articles 129 and 215 of the Constitution of India empowers
the Supreme Court and High Courts respectively to punish a person for Contempt1. The basic reliance of
contempt legislation is to protect fairness of trial, absence of prejudice and an opportunity to defend 2 and
maintenance of the rule of law3.

In Delhi Judicial Service Association v State of Gujarat4 the Supreme Court held that under the Article 129
of the Constitution it has the power to punish for contempt not only of itself but also of High Court and lower
courts because subordinate courts administer justice at the grass root level and their protection is necessary to
preserve the confidence of the public in efficacy of courts and to ensure unsullied flow of justice at its base
level.

In Brahma Prakash Sharma v State of U.P,5 the Supreme Court held that the object of the contempt
jurisdiction is to safeguard the interest of public which could be adversely affected of the authority of the
court is denigrated and public confidence in administration of justice is weakened. The Supreme Court made
it abundantly clear that fundamental right of freedom of speech and expression6 does not give immunity to any
person to criticize the judiciary in any manner on the basis of his political philosophy7 or condoning attacks upon
judges and court.8

III. SANYAL COMMITTEE REPORT 1963

Contempt of Courts Act of 1926, was the codified law relating to the contempt of court. This Act was replaced
in the year 1952 but this Act was unsatisfactory and needed changes, thus Sanyal committee was set up on
July 1926 under the chairmanship of H.N Sanyal. This committee after examining the law relating to
contempt of court made certain recommendations in view of securing Administration of Justice and Freedom
of Speech. The major recommendations of the committee was to classify the contempt of court into civil
and criminal contempt, regarding pendency of judicial proceeding and imminent proceedings by giving
importance to freedom of speech in the constitution and the need for safeguarding the status and dignity of
courts and the administration of the justice. The report of this committee is popularly known as Supreme
Court report 1963.

1
Article 129- “The Supreme court shall be a court of record and shall have all powers of such a court including the power to
punish for contempt of itself”
Article 215- “Every High Court shall be a court of record and shall have all the powers of such a court including power to
punish for contempt of itself”
2
Ibid.
3
Commissioner, Agra v Rohtas Singh, AIR 1998 SC 685
4
AIR 1991 SC 2176
5
AIR 1954 SC 10.
6
Article 19(1)(a) of Constitution of India
7
EMS Namboodiripad v TN Nambiar (1970)2 SCC 325
8
In re Arundhati Roy,(2002)3 SCC349

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In Padmawathi Devi v R.K. Karanjia9 it was held that a First Information Report (FIR) can be considered
as starting point for pendency of judicial proceedings and reporting of such pending matter would become
sub-judice. But later in the case of A.K. Gopalan v Noordeen10 it was held that lodging of FIR is not
admissible to consider that it is an imminent proceeding and it can be considered as imminent only after
the arrest of the accused. It has to be considered on facts of case whether proceedings are imminent or not,
until an accused is arrested it cannot be said that the proceedings are imminent as the person may not be
arrested at all. Freedom of speech cannot be put under undue restriction even before arrest is made. After
arrest is made if there are publications made it may be instrumental to suggest imminence of
proceedings and Article 19(1)(a) must give way to Article 21.

IV. CONTEMPT OF COURTS ACT 1971

The Joint committee report of Parliament paved way for introduction of a new Act known as Contempt of
Courts Act 1971. The classification of the contempt of court as civil and criminal was made under the
Contempt of Courts Act, 197111. The rationale of Contempt legislation is to maintain dignity of courts and
to secure Administration of Justice. Thus the Act acts as a check over certain actions of media such as trial
by media and media reporting resulting in scandalizing the court or publication on sub-judice matters which
lowers the authority of courts.

The Criminal Contempt includes any act of a person which tends to interfere with the administration of justice
or which lowers the Court’s authority.12 Any act or publication that tends to bring down the dignity of court
or a judge, tends to lower authority of the court or judge, or tends to interfere with the lawful process of
court or interfere with due course of justice is Contempt of Court13.

In the case of Padmawathi Debi Bhargava v RK Karanjia,14 an article in the newspaper which commented on
a criminal act to prejudice the minds of public against the accused before the case was considered for the trial
by Court was held to be criminal contempt. As the article intended to prejudice the proceedings. The Supreme
Court has observed that the rule of strict liability has to be applied in case of criminal contempt15.The intention
to interfere with administration of the justice is not necessary to constitute criminal contempt16. Therefore
any publications that interferes with the public confidence in the judicial system and obstructs judicial
proceedings pending before the court, misrepresentation or publication on sub-judice matters, prejudicing
public and bringing reflections on a pending proceedings would be contempt of court.

Provisions of the Contempt of Court Act, 1971 tries to strike balance between contempt issuing power of
court, freedom of press. Section 3 of Contempt of Courts Act, 1971 provides that innocent publications
and distribution of matter is not a contempt. Publication of proceeding which is not pending at the time
of publication does not amount to contempt of court17. To attract protection against contempt, publication
must be in conformity with section 3 and 5 of the Press and Registration Book Act, 1867. Thereby
publication must have substantial interference with administration of justice and not technical interference.

9
AIR 1963 MP 61.
10
AIR 1969 2 SCC 734.
11
Section 2(a) of Contempt of Courts Act 1971
12
Delhi Judicial Services Association v State of Gujarat and others, (1991) 4 SCC 406
13
Section 2(c) of Contempt of Courts Act 1971
14
AIR 1963 MP 61.
15
Re P.C. Sen, AIR 1970 SC 1821
16
A.G v Butterworth, (1963) 1 QB 696 P.726
17
Section 3 of Contempt of Courts Act 1971

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V. PENDING JUDICIAL CASES

A judicial proceeding is said to be pending when a plaint is filed before the court in a civil case and
in a criminal case when the charge-sheet is filed or challan in a cheque bounce case is filed, or when the Court
issues summons/ warrant against the accused. The proceedings are deemed to be in continuation until it is
finally heard and decided or until period of limitation prescribed expires in cases where there is possibility of
moving for an appeal or revision.

Publication of fair and accurate reporting of judicial proceeding does not amount to contempt18. As per the
latest amendment to the Contempt of Court Act, contempt is not punishable if justification is provided by
truth in the interest of public19.

In D.C. Saxena v Chief Justice of India20, it was observed that the purpose of punishment for Contempt
of Courts is not just to protect the court or authority of court but also to protect the public. It is important to
keep judiciary free from unwarranted interference as it undermines the public confidence. The jurisdiction
of contempt should not be exercised unless there is substantial interference with due course of justice.

The term fair and accurate reporting has no precise definition and depends on case to case basis. The
report must be fair and accurate nothing beyond that, report need not to be word to word repetitions of
judgment but must maintain reason, ability i.e. no omission or addition to the words can be construed,
neither a one-sided picture can be presented.

Section 4 grants immunity subject to provision contained in section 7. The publication of fair
and accurate reporting of judicial proceeding is not contempt even if it is in relation to proceedings
held in chambers or in camera and could be prevented if it falls under exceptions of the section 7 of the act
i.e. if publication is contrary to the provision of enactment, on grounds of public policy, public order,
security of the state, information relates to secret process, discovery or invention which is an issue in
proceeding. Any publication is said to be scurrilous if it tends to lower the authority of court, affecting
public confidence on due course of justice.
Following are the categories of media publications which causes prejudice to pending matters:
 Publication of photographs of accused causing prejudice to the trial.
 Publication revealing the previous conviction or acquittal.
 Publication of Confessions made by the accused
 Publication of interviews conducted with witnesses of a pending case.
 Publication suggesting the conviction or acquittal of the accused.
 Publication relating to the existing evidence before the trial ends.
 Publication that leads to undermining the principle of presumption of innocence.
 Publication of any criticisms or comments creating sympathy or hatred towards the accused. 21

Freedom of speech and expression includes an important attribute of freedom to criticize judicial scrutiny
but criticism cannot override reasonable limit. Section 4 & 5 of Contempt of Courts Act, 1971 grants
immunity to reasoned criticism even if it is strong or against judicial decision done for public good. Section
2(c) of the contempt of court act seeks to protect the authority of the Court, due course of judicial proceeding,
and the larger issue of administration of justice.

18
Section 4 of Contempt of Courts Act 1971
19
Section 13 of Contempt of Courts (Amendment) Act 2006.
20
AIR 1996 SC 2481
21
200th Law Commission Report, August 2006.

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VI. CONTEMPT OF COURT AND PRESS

Mass media often charged with contempt for failure to obey court orders, making critical commentary
about court and the judges, leading to tampering of evidence. Contempt of Court provisions tries to harmonize
freedom of press with due process of law. High Court and Supreme Court judges claim the right to punish
those who disobey the orders for the civil contempt22, as well as those who interfere with proceedings and,
obstruct the administration or scandalize the reputation of the judges of the court for criminal contempt.23

Media plays the role of a mediator between what transpires in the court and public’s right to know. Open
justice is an essential tool in ensuring fair administration of justice. It is the duty of the media to keep
public informed, but this responsibility comes with accountability as well. Media must reports facts and
not comment. Reporting must be done prudently, lack of knowledge of pendency, contents or tendency of
causing prejudice to a trial by reporting is no excuse. The tension between the courts and the media revolves
around two general concerns. The first is that there should be no “trial by media”, and the second is that it is
not for the press or anyone to pre-judge a case. Justice demands that people should be tried by courts of law
and not pilloried by the press.24

In the Dowry Harassment Death Case25, the Supreme Court deprecated the “Saga” magazine for publishing
extensive details of an interview by the deceased girl’s father in which father gave his own version of the case.
The court held that the facts narrated by him could be used in the forthcoming trial leading to interference
with administration of justice.

The question before the court in Bijoynanda v Balakush26 was whether Freedom of press is privileged
and whether contempt proceedings can be initiate against the publication made for the benefit of public.
However, the court expounded that in contempt matters no special privilege can be granted to the press.
Media reporting of judicial proceeding is justified on the grounds of public trial as it ensures administration
of justice. However, Press Council of India has laid certain restrictions on reporting sub-judice matters.
Press Council Act, 1978 in the form of norms and ethical code, regulate the matters causing sub-judice.
They are not strict neither legally enforceable, hence limited in their scope.

In Reliance Petrochemicals Ltd v Indian Express Newspapers Ltd27 the court did not think it necessary and
advisable to restrain the press from publishing on a matter of general interest, but the court kept the possibility
open that press could be subsequently punished if it was found to have committed criminal contempt by trying
to influence matter pending for decision in the court.The court has the power to punish for the contempt of
court not only to protect the dignity of the court against injury or insult but also to vindicate and protect the
right of public so that the administration of justice is not prejudiced.28

In Court On Its Own Motion v MK Tayal29, the Mid Day newspaper published a cartoon depicting the former
chief justice of India, YK Sabarwal wearing his court robes, holding a bag with overflowing currency notes
and along with that the newspaper also published the cartoon of a man who was sitting on the door and was
crying “Help, the mall is in your court”, the Delhi High Court held the editors, cartoonist and the publisher of
Mid-Day newspaper guilty of Contempt of Court and convicted them accordingly.

22
Section 2(b) Contempt of Courts Act 1971
23
Section 2(c) Contempt of Courts Act 1971
24
State of Maharashtra v. Rajendra jawanmal Gandhi (1997) 8 SC 386
25
(2005) 2 SCC 686
26
AIR 1953 Orissa 249.
27
(1998) 4 SCC 592
28
Delhi Judicial Service Association v State of Gujarat, (AIR 1991 SC 2176)
29
(2007) 98 DRJ 41.

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Any publication by the press is considered as the Criminal Contempt if such a publication scandalizes or tends
to interfere or interferes or tends to obstruct or obstructs authority of the court, due course of judicial
proceeding and administration of justice would be considered as the Criminal contempt under the Contempt
of Courts Act 1971. Thus press by publishing any articles or reporting any news which lowers the authority
of the court or obstructs the due course of judicial proceedings will be treated as a criminal contempt under
contempt of courts act 1971.

VII. SCANDALIZING THE COURT

Scandalizing manifests itself in various ways but in the substance it is an attack on the individual judges or a
court as a whole with or without reference to particular cases casting defamation and unwarranted aspersions
upon the character or ability of the judges. As such conduct tends to create distrust on the minds of the public
and impair the confidence of people in courts which are of the prime importance to the public in the protection
of their rights and liberties30, such conduct is punished as a contempt..

In the case of Rajesh Kumar Singh v High Court of Judicature Madhya Pradesh,31 the Supreme Court held
that attributing improper motive to the judge or scurrilous abuse of a judge will be considered as scandalizing
the court. In State v Badri Bhatia32 it was held that the publication of statement in the newspaper saying that
the justice may be purchased by money, will amount to criminal contempt.33

In the Case of G.N Verma v Hargovind Dayal34 the Supreme Court said that publishing any statement which
says that any judge is not acting in a fair and independent manner or that in his actions he is influenced by a
particular section of public is tantamount to saying that he is not honest that certainly undermines his prestige
and authority, and also the confidence which the public has in him. Such an allegation tends to create an
apprehension in the minds of the people regarding the integrity, ability of the judge and the same shall
constitute a criminal contempt.

The Supreme court has made it clear that if an impression is created in the minds of public that the judges in
the highest court of the land acts on extraneous considerations in deciding cases, the whole community in the
administration of justice is bound to be undermined and no greater mischief than that can be imagined.35 In
re Arundhati Roy,36 the court has made it clear that criticism which undermines the dignity of the court cannot
be permitted under freedom speech and expression.37 The person who gives publicity to scandalizing attack
on the judge or court is as guilty of criminal contempt as the person who makes an attack38. In 2003, the High
Court of Karnataka was attacked by media revelations relating to a sex scandal involving senior judges of the
court. Fifty six persons from fourteen newspapers and magazines charged for criminal contempt by a full
bench of Supreme Court39.

30
Braham Prakash v State of U.P AIR 1954 SC 10
31
AIR 2007 SC 2725
32
(1994) 1 Western Law Cases 349(Rajasthan).
33
Section 2(c) Contempt of Courts Act 1971.
34
AIR 1975 ALL 52
35
Ashwini Kumar Gosh v Arobinda Bose, AIR 1953 SC 75.
36
AIR 2002 SC 1375
37
Article 19(1) (a) The Constitution of India 1950.
38
G.N Verma v Hargovind Dayal, AIR 1975 ALL 52.
39
https://scroll.in/article/671949/the-supreme-courts-ruling-on-contempt-is-boost-for-the-press-but-also-rule-of-law

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In Amicus Curiae v Prashant Bhushan,40 a lawyer and activist Prashant Bhushan had made allegations in an
interview that the former chief justices of India had been corrupt and the interview appeared in the tehelka
magazine, the Supreme Court issued the notice of contempt of court to Prashant Bhushan for scandalizing the
former chief justices of India.

In Rajendra Sail v M.P High Court Bar Association41 the prosecution witness made a statement in public
saying that in murder trial the judge has disposition to acquit the accused. The judge who was about to retire
was available to sale and the judgement was rubbish that deserves to be thrown in dustbin. This comment
made by the witness was published in the newspaper. The court held that such statement and publication
amounts to gross contempt of court.

VIII. CONCLUSION

Media can act effectively as a watch dog over the judiciary without publishing prejudicial material related to
a particular case pending before the court. Media no doubt has played a very important role by assisting in
rendering of justice in certain cases leading to the reopening of cases based on the media trials. Cases that had
positive influence on judiciary through media trial are Jessica Lal murder case, Sheena Bora murder case,
Ruchika Girhotra Case and R.K Anand BMW hit and run case. Meanwhile many other instances show that
there is also a negative impact on judiciary by media like in, Arushi Talwar Murder case, where the media
had framed the parents of the victim guilty of murder of their own daughter, even before the verdict of the
court was out. By this media had caused prejudice which led to the conviction of parents of the victim in the
subordinate court, but later on hearing the same matter on appeal the High Court acquitted the victim’s parents.

Media publication in certain cases undermines the essential principles relating to Administration of Justice
such as presumption of innocence unless and until proven guilty beyond reasonable doubt, fair trial of the
accused, justice should not only be done but must have seemed to be done and procedure for submission of
evidence. Trial by media starts much before the actual trial in the court. Media exclusively covers and
publishes the interviews of victim’s relatives, witnesses, comments made by experts in law, which may cause
prejudice to the trial proceedings. By this perception of the public at large is affected. In the last few decades
we have witnessed rapid growth of media influence in the process of access to justice in plethora of cases
relating to corruption, rape, sexual harassment, murder etc. Media activism imposes an indirect pressure on
the adjudicating authorities to deliver justice to the victims which may interfere with the trial proceedings and
may cause prejudice to the accused and a chance of proving his innocence. The trial by media influence the
witness as a result of which he may modify their depositions in tune with media reports and public opinion
created by the media, neglecting the real fact. The media should help to deal with the flaws in system if any
but instead of that they started playing the role of investigator and points a person guilty, which may lead to
confusion in the mind of people. Media trial during investigation stage, irresponsible reporting and hype on
the sub judice matters leads to contempt of court by media.
Passing prejudicial comments on pending cases using online platform goes viral which in turn affects the trial
proceedings. But there is no specific law to deal with such issues. The Information technology Act 2000
contains the provisions that penalizes publication of defamatory statements on online platforms. The Act does
not provide for the regulation of comments made in online platform which affects the administration of justice.
For instance Advocate Prashant Bhushan posted a comment on twitter that the government had submitted
fabricated minutes of a meeting of the selection committee regarding appointment of M Nageswara Rao as an
interim CBI director. Supreme Court on Feb 6, 2019 issued a notice of Contempt to Prashant Bhushan in a
case filed by Attorney General KK Venugopal. 42. Thus focus should be on the prevention of criminal
contempt rather than taking action after prejudice has been caused to trial proceedings.

40
(2010) 7 SCC 592
41
AIR 2005 SC 2473.
42
https://timesofindia.indiatimes.com/india/supreme-court-issues-contempt-notice-to-advocate-prashant-
bhushan/articleshow/67863894.cms

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In India there is no specific law for the regulation of media a whole. The Press Council of India which was
established in 1966 is a statutory body that provides various norms of journalistic conduct. It provides that the
Press must not intrude upon the individual’s privacy, unless there is a genuine overriding public interest43. It
restricts revealing certain identities such as, the names, photographs and such other identity of the victims of
rape, abduction or kidnapped women or sexually assaulted child, child born of sexual abuse44. The norms also
provide that the name or identify the family, relatives, associates of person convicted or accused of a crime
must not be published45. Judicial proceedings are open to a newspaper to report in a fair, reasonable and
accurate manner, immediate46. Newspapers, in public interest can make a reasonable criticism of a judicial
acts or judgments in the interest of public but they should not ascribe improper motives or personal bias cause
to any judge, scandalize the court or judiciary, making personal allegations against a judge47. But these norms
are applicable only to the print media. These norms are often neglected as they have no serious sanctions or
enforceability.

Supreme Court has refused to frame guidelines to regulate media from publishing, printing, circulating,
broadcasting or transmitting matters pending before the court. The court in Sahara India Real Estate
Corporation Ltd. v SEBI48 held that such publication would “create a real and substantial risk of prejudice to
the proper administration of justice or to the fairness of trial". The courts can restrict the media coverage of
trials on a case by case basis. The court has emphasized presumption of open justice and held that there may
be certain exceptional cases where the reporting by media might adversely impact the administration of
justice, in such cases the Supreme Court or the High Courts may provide a postponement order of reporting
for a limited duration.

Media has been conducting parallel trials and creating hype in selective cases causing disastrous impact on
the working of judiciary especially the subordinate judiciary. But subordinate courts have no power to punish
media for criminal contempt, only reference to the High Court under sec 15(2) can be made. Thus the
subordinate judiciary must be empowered to punishment for criminal contempt for any publications causing
prejudice to the court proceeding, as recommendations made by the 200th law commission report for the
amendment to Contempt of Court49. In India there is no specific law for regulation of media, hence a codified
law is necessary to balance the freedom of press and due procedure. Exposure of judiciary to criticism can
strengthen the judiciary, but such criticism should not be to an extent that it brings down the respect of the
public towards the judiciary. Media must be bound by certain limitations through appropriate laws and
guidelines governing its publication, judicial reporting and media trial.

43
The Press Council Norms of Journalistic Conduct, Norm 13
44
Ibid, Norm 14 & 15
45
Ibid, Norm 20
46
Ibid, Norm 47
47
Ibid, Norm 48
48
AIR 2012 SC 3829
49
Section 10 A of Contempt of Court (Amendment) Bill 2006.

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