CHAPTER-4

PRESS, FREE SPEECH AND

CONTEMPT OF COURT
 CHAPTER 4
PRESS, FREE SPEECH AND CONTEMPT OF COURT IN INDIA

4.1 Introduction

The success or failure of any democratic system depends largely on the extent
to which civil liberties is enjoyed by the citizens. Maximum development of an
individual is the aim of a democracy by guaranteeing significant rights and freedom to
the maximum extent. In a popular democracy, people are supreme and all the three
organs of the state, i.e. Legislature, Executive and Judiciary are to serve them.
Consequently, service providers arc accountable towards their masters and masters
have the right to check and criticize if they do not act or behave properly. Master's
right to check, criticize and control may be effectively exercised through the right to
freedom of speech and expression guaranteed under Article 19(1) (a) of the
Constitution of India. But excess to information is very foundation of this freedom of
speech and expression. Unless, access to information will be provided, it will not be
practicable not to effective exercise of fi'eedom of speech and expression; and in turn
check, criticize and control of service providers.

Free press is the hallmark of a democratic society. It has to play a vital role
in safeguarding the rights and liberties of people. This freedom is based on thinking
writing, printing and publishing with free access to infonnation. The press has the
same right as an ordinary citizen of the country. Though freedom of speech and
expression include freedom of the press also,^ it has no special privileges, which are
enjoyed by the legislature"* or the head of the state.

Democracy can thrive not only under the vigilant eye of its legislature, but
also the care and guidance of public opinion and the press is par excellence, the

' J.P. Rai, 'Informed Citizenry and Contempt', Supreme Court Journal, Vol. 5, 2009, p. 19.
" According to R.C.S. Sarkar, freedom of the Press has three important elements. They arc, freedom of
publication, freedom of circulation and freedom of access to all sources of information. R.C.S.
Sarkar, 'The Press in India', 1984. p.35.
' Romesh Thappar v. State of Madras, AIR 1950 SC 124; Also See, Brij Bhushan v. State of Delhi,
AIR 1950 SC 129.
" Art. 105 of the Constitution guarantees special privileges to Parliament and its members, which
include freedom of speech, immunity from legal proceedings for anything said in Parliament and also
for the publication made under the authority of Parliament. Corresponding provision with regard to
state legislature is contained in Art. 194.
' Art. 59 and Article 158 and second schedule of the Constitution of India guarantee certain privileges
to the President of India and Governor of a State.

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vehicle through which opinion can become articulate. So, freedom of press is
essential to political liberty. The purpose of the press is to advance public interest by
publishing facts and opinions without which masters will not be able to have effective
control over source providers. At the same time baseless, frivolous, unwanted facts
and information may cover the dignity of the institution, so, the need is to make
balance between freedom of press to publish facts and dignity of the judiciary.

Freedom of speech and expression of the individual and the media does not,
confer an absolute right to speak and disseminate without responsibility whatever one
wishes, nor does it provide unrestricted or unbridle immunity for every possible use of
language and prevent the punishment of those who abuse this freedom. Constitution
of India in Article 19(2) attempts to strike a balance between individual liberty and
state control and authorize the state to impose certain reasonable restrictions.

The increased role of media in today's globalized and tech savvy world was
aptly put the world of Justice in the hand that rule the press, radio screen and
magazine, rules the country. Judiciary is also not left unaffected by the effect of
'mass media', it comes as no surprise that court, the judiciary and the legal
profession has not escaped heightened scrutiny. Today the media capitalize on
enduring Indian appetite for law and regularly turn to it both to provide information
and captivate more and more time in the nightly news broadcast in T.V. and full space
in daily newspaper are devoted to judicial matter especially criminal cases. The more
the people go into details of a case the more burdens over it become for the judges to
pronounce their judgment in a case. The critique may be good, but we cannot
overlook the ill-effects of which it has one hand we have the right to freedom of press
enshrined in the Constitution of India on the other hand right of the accused for a fair
trial unbiased by pre-trial publicity. It is important to look at how the two can be
reconciled.^

4.2 Historical Development of Press Laws in India

Men do not live by bread alone. No doubt, food enriched his body but
knowledge and information fulfill him, make him completely perfect and rational

' Supra nole I, at p. 20.

K.D. Gaur, 'Constitutional lliglit and I'leedom of Media in India', Journal of Indian Law Institute.
Vol.36, 1999, p. 436.
Abhinav Sliiivastava, 'Effect of Media in Adjudication of Criminal Trial', Cii. LJ, 2005, p. 124.

158
being. Therefore, quest for knowledge and thirst for information are time inherent
phenomenon an as old as the 'man' himself. In other words, there has been an
inherent desire in man to know and then act on the basis of the information. This
curiosity has made him knowledgeable and herald a new era of progress and
prosperity of the society with ideas, information and knowledge has been not only
achieved tremendous success in his life but also brought about and all around
development in the society. Lack of information might pose a serious threat even to
his survival and degrade his personality. Hence, for his own safety and prosperity he
strive his best in acquiring and exchanging information with his fellow beings.
Continuous and prolonged hard work in this regard resulted, among other things in the
setting up of media including the newspaper.^

The history of the press in India is the history of its struggle for freedom. It is
a story of how repressive measures were undertaken to control the press and how they
were tightened or relaxed to meet newer exigencies through which the country passed
over two centuries.

4.2.1 Ancient Period

During ancient period news was travel orally by words of mouth. The Hindu
mythology records the exploits of one man oral newspaper who supplied news to both
heaven and earth. He was Narada, a Rishi by modem standards, he could be
considered as reporter. At a later stage, machinery was developed to keep the ruler
infomied of the main currents of the life of the people. Such information was
transmitted verbally by messenger who reported orally and that at a much later stage it
was reduced to writing."

The earliest reference to an organization for the collection of news in ancient

India is found in the ordinance of Manu on important historical document. It shows
that the intelligence organization was divided into two sections namely the external
and internal intelligence administration. For external intelligence, Manu advises the
ruler to appoint an ambassador learned in all treaties, who understood gestures

' K.S. Padhy, 'The Press in India', 1977, p. 1.

Supra note 2 at p. 17.
" K.C. Sliarma, 'Jouinalisin in India', 2007, pp. 58-59.

159
expression. The internal intelligence was organized in dual fashion. The news was
first expected from the administration and then from spies. 12

The idea, news and messages were disseminated by the wandering monk
through oral communication speech and spoken word were beyond doubt the most
important vehicle of human communication.

During the Rigvedic period the King's autocracy was limited by the popular
bodies called the Sabha and Smiti. In Smiti all people were supposed to be present in
the assembly. In each Sabha and Smiti there was one person employed who look at
matter happening surrounding. King employed spies (spasa) to watch over the
conduct of the people. The foremost function of the spasa was to gather news and
them inform to king.'''The great epic of the Aryans were the Ramayana and the
Mahabharata. During both period the news were gathered through secrets agents, and
these news and messages were communicated through oral communication. In
Ramayana Hanuman was selected as an ambassador to the court of Ravana to deliver
the message from Rama to return Sita.

According to Kautilyas Arthashashtra there were altogether 10 Kings in the

Mauryan dynasty who ruled from (520-185 B.C.). According to this there were 18
department of administration and one of them was intelligence. Contact with the
general public was maintained through agent and informant. They broadcast the idea
of King and brought him report on public opinion. Secret agents conveyed their
infonnation by means of writing concealed in musical instrument or through sign,
recitation or song or, general public was informed by beating drums. "^

One of the greatest Indian empires and the grandson of the Chandragupta
Maurya devised his over means of communication. During his regime all the imperial
edicts were unscribed on cooper plates, rocks and stone pillar. Daily news covering
the events and happening were published in the fonn of small picture drawn on the
walls of temple with ink or colour which could be erased easily. Policy decision

" Suresh Kumar, 'Press in India', Vol. I, 2006, p. I.

' V.S. Gupta, 'Handbook of Journalism and Mass Communication', 2001, p. 68.
'•* Vidhya Dhar Mahajan, 'History of India', 1981, pp. 68-69.
'' Id. at p. 79.
' Id. at p. 157.

160
taken by the rulers were also communicated to the people through announces who
made this announcement in a crowded gathering by beating a tom-tom.'^

4.2,2 Medieval Period

During the Mahmud Ghazni there was no special network of news gathering
and informing the people. There was only one special department of intelligence.
Those for intelligence gathering were collected 'sarran' and horse courier for urgent
missives was called Khail sarran. The main work of'sarran' was to collect the news
happening in surrounding and to infonn the King. Sarran was like the reporters or
1R

spy. A new feature was the news writer or (Munshi) posted at every town. He was
to report every day or by every third day for which special horse courier and runners
were kept ready at every Kos. Minister of state news was appointed. The fresh
concept of two way news transmissions was adopted, wherein the people were also
kept informed about the well being of ruler. This system of news letter and news
writers becomes the hallmark of communication system of this regime.'^
In order to maintain regular and speedy communication there were two ways
through which news or messages were communicated to king. The first was horse
post and the second was foot post. The horsemen carried letters with the jingling bells
till he reached the station. '^°

During the period of Akbar the system of Dak-Chowki was established to

procure and transmit secret news and messages. Secret agents were employed together
the news. Provisions were made to ensure that every news was counter checked or
precision. The Wagai Navis and Swami Nagar were like the present day regional
news correspondents serving a news agency, reporting both the local news and district
level happening. The Wagai Navis had his network of gi-assroots level stringed in
each district and pargana, who kept him infonned with all current news. The Wagai
Navis usually send his reports weekly and Swami Nagar weekly. The Akbar Navis
system organized by Akbar set off the nascent form of newspaper. These gradually
evolved into periodical news letter. The era also saw the emergence of the official
ante typographic newspapers which were indeed the confidential reporters and special

Supra note 9, pp. 1-2.

Supra note 12 at p. 4.
I'' Id. at p. 5.
~° K.M. Munshi, 'The History and CuUure of the Indian People\ I960, pp. 454-455.

161
news letter discussed for instant perusal of the monarch. From this there emerged the
7I
akhhar or private news periodical call.

Aurangzeb established an efficient system of information officers. News

writers were appointed to various administrative units in their territory, and were
changed with the function of sending reports to the headquarters of the administration.
These manuscript reports were submitted exclusively for office use.

Aurangzeb's army was also a good source of information. His army not only
received the news from the headquarters but also communicated the same to it. There
were in addition spies who were also obliged to send report weekly about other
important matters. ^^ These handwritten letters, mentioned visit of the emperor to
mosques on other holy places, hunting expedition, detail of the representation made to
him and news items of similar nature. Secret infonnation was conveyed along with
the general news whenever necessary.

Thus, we can conclude that in Ancient and Medieval India news were gathered
or collected by secret agents, in ancient India news were conveyed to King through
oral method, but in medieval India this news was conveyed to King through written
newsletter and general public were infonned by beating drum. That means in India
there was no newspaper or newsletter which directly infonned the general public.

4.2.3 Modern Period

Indian Legal History relating to the development of the concept of freedom of

the press has similarly been studied under the two periods. The first period belongs to
pre-independence or; and the second one states the post independence position of the
concept.

4.2.3.1 Pre Independence Period

The growth and development of press in India has had a chequred history. In
India Print Media has been a product of struggle against the continuing repressive
measure of British ruler over long period of time.'^^

Supra note 12 at p. 6.
•" Id. at p. 60.
"' Supra note 9, pp. 2-3.
; ' l d . atp. 3.
"' Supra note 13 at p. 91.

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 The origin of the press in India can be traced to immigration of European in
India. The Portuguese introduced the Press in India. ^*^ The Christian missionaries
brought the first printing press to India in 15"" and 16"' centuries. It was mainly
concentrated for propagating Christianity among the Hindus and prompts them to
Christianity."

Printing in India originated in Goa in 1550 and the Spanish Coadju Brother
John de Bustamante, Known as the Indian Guttenberg, was the first printer. The first
book published in India was the Jesuits of Goa in 1557. In 1674 a printing press was
set up in Bombay. It is significant to mention that even though the first printing
press set up in the third quarter of the 16"^ century, publication of a newspaper was
delayed by more than two centuries.^^

The establishment of the East India Company in 1600 introduced by Anglo-

Saxon law in India and a series of enactments were directed against the press since the
emergence of the East India Company. From 1797, regulations were issued for the
pre-inspection of all news-papers under threat of deportation. Early newspapers,
generally of English concerns, were published by Englishmen in India. These were
usually very critical of the government and led to conflict plus the establishment of a
strict censorship. Among the earliest champions of the freedom of the press in India
were Englishmen, and one of them, James Silk Buckingham, editor of Calcutta
Journal had been too free in his criticism of officials and their doings that he was
expelled from India by the then acting Governor-General, Adam. In 1799, the
Governor-General issued regulations to submit all materials for publication for pre-
censorships by the secrefing to the Government of India. Those regulations were
abolished during the tenure of Wauen Hastings.^^ In 1823, licensing of the press was
introduced by an ordinance. This Ordinance was replaced later on by Metcalfs Act,
1835 which was made applicable to the whole of the territory to the East India
Company, require the printer and publisher of every newspaper to declare the location
of the premises of its publication. Although Bentik had allowed great freedom of the

-'' N. Jayaplan, 'Journalism', 2001, Delhi, p. 304.

"' Shelton Gurnairanlne, 'Handbook of Mass Media', 2000, p. 87.
"' Divvakar Sharnia, 'Mass Communication in 2 1 " Century', 2004, , p. 45.
" Supra note 9, at p. 5.
''° Rajeeve Dliavan, 'On the Law of Press in India', Vol. 26, 1984, p. 241.
" J.L. Nehru, 'The Discovery of India', 1965, p. 316.
•'" A. Jaitley, 'Press Fetters', 302 Seminar, 1984, p. 30.

163
Press, he took the view that public safety required a control of the press. His successor
Metcalf, incurred the displeasure of the Directors by removing all press restrictions by
legislation in 1855. This position continued till 1857 when under the stress of
'Mutiny' conditions, a rigorous licensing of'Printing-Presses' was established by the
'Gagging Act' of Canning.^^

In 1857, Lord Canning's Act was applied to all kinds of publication, including
books and printed papers, in any language, European or Indian. In 1867, the press
and Registration of Books Act, 1867 was enacted with an object to control publication
of anonymous literature. This law required essential infonnation regarding the owner,
editor and printer. The Vernacular Press Act, 1878 was directed against newspapers
published in Indian languages, for publishing and suppressing seditious writings.
Under the provisions of this Act, 'The government was given the power to work and
to confiscate the plant, deposit, etc., in the event of the publication of undesirable
matter'. This 'Gagging Act' did not pennit any appeal against the orders of a
Magistrate, empowered the Government to issue search warrants and to enter
premises of any press, even without orders from any court. Later on, Lord Rippon
repealed the Vernacular Press Act, in 1881.^''

The year of 1908 was a year of discontent and unrest in India and it was also a
year of constitutional reforms. The Newspapers (incitement to offences) Act was
passed by the Imperial Legislative council in June, 1908 by which an undesirable
newspaper may be killed by District Magistrate, its press, plant, machinery and tools
and every printing or other materials, connected with it confiscated and the very name
of the paper obliterated forever. It has only to be made out that the paper contained an
'incitement to any violence' and woe to the owner and proprietor of the press in
which the paper was printed.^^ Indian Press Act, 1910 put fetters on expression of
public opinion. The Defence of India Regulations was promulgated on the outbreak
of the First World War in 1914. These regulations were intended against aliens and
enemies in Great Britain but, in real sense, had been put in force against devoted
workers for Indian constitutional reforms.^^

" K.A.N. Sastn, 'Advanced Histoi-y o f India', 1970, p. 666.

" J.S. Shaima', 'Encyclopedia India', V o l . 2, 1981, p. 1035.
"^ R. Pailha.saralhy. ' A Hundred years o f Hindu: The Epic Stoi-y o f India Nationalism'. 1948. p. 186,
•"• Id., pp. 210-211.

164
 In 1919, Government of India adopted a policy of repression in Punjab after
the war and promulgated the Rowlatt Act. It was named after the British Judge who
recommended the drastic measure; Rowlatt Bill was passed into law on March 19,
1919. It was an iniquitous piece of legislation and draconian provisions of the Act
were directed against the patriotic people of India. The launching of the Civil
Disobedience Movement, in 1931, for the attainment of Swaraj, prompted the
government to promulgate an ordinance to 'control the press' which was later
embodied in the Press (Emergency) Powers Act, 1931. Originally a temporary Act, it
was made permanent in 1935.^^

Before 1947, it is noteworthy that the role of the press was chiefly concerned
with the problem of securing at the earliest possible the early transfer of power to
Indian hands. 'Freedom of the Press' is part of the larger freedom of the country and
until the century is free the press has necessarily to work under the limitations arising
fi-om factors and forces that are imposed on it.^^ In other hands, it can be said that
freedom of the press suffers in the hands of a despotic Monarch. Hence, fettered
press may become one of the greatest scourges with which the hands of a despotic
power can be armed and one of the most dreadful engines of tortured with which it
can track the mind. This was the Pre-constitutional History of Indian Press.

4.2.3.2 Post Independence Period

Soon after gaining Independence, the Government of India set up a 'Press

Laws Inquiry Committee' in 1947 under the Chairmanship of Sri Ganga Nath Jha.
The committee was required to (i) examine and report to the government on the laws
regulating the Press in a Principal countries of the worid including India; (ii) to review
the Press Laws of India with a view to examine if they were in accordance with the
fundamental Rights formulated by the constituent Assembly of India; and (iii) to
recommend to the government any measures of refonn with press laws considered
expedient upon such review.''° The committee recommended that an explanation

" D.D. Basu, 'Law of the Press in India,' 1980, p. 251.

'^ Supra note 35 at p.735.
^' B.M. Sankhdher, 'Press, Politics and Public Opniion in India', 1984, p. 78.
•*° Supra nolo 34.

165
should be added to section 153 A"' of the Indian Penal Code to the effect that it did
not amount to an offence under that section to advocate a change in social and
economic order provided that adequacy did not include violence. The committee
recommended the repeal of the Foreign Relations Act, 1932, the Indian States
(Protection) Act, 1934 and the Indian Press (Emergency Power) Act, 1931 which did
not find a place in the ordinary law of the country, should be incorporated into that
law at suitable places. It was further recommended that section 124 A of the Indian
Penal Code should be amended in such a way as to apply only to those acts which
either incited disorder or were intended or tended to incite disorder. It was further
suggested that section 144''^ of the 'Code of Criminal Procedure' should not applies to
the press and separate provision should be made for dealing with the press in urgent
cases of apprehended danger. Amongst these eight recommendations made, the most
important was that before taking action against the press under emergency legislation
the provincial government should invariably consult the Press Advisory Committee or
a similar body.

4.3 Meaning, Concept and Scope of Freedom of Press

It was Abraham Lincoln who had stated that "Democracy is a government of

the people, by the people, for the people". Justice HidayatuUah would however add
"Democracy is also a way of life and it must maintain human dignity, equality and the
rule of law. It requires strong public opinion, independence and fearlessness in the
press and in educated men and woman who are not complaint to authority wrongly
exercised." This is indeed so, as a vigilant public opinion expressed in diverse way
including through the Medium of the press is the sina qua non of a vibrant democratic
society. For this it is essential that the press do enjoy full freedom in a democratic
countiy.

Promoting enmity between different groups on ground of Religion, race, place of birth, residence,
language etc., and doing art prejudicial to maintenance of harmony etc.
" Sediiion-whoever by words either written or spoken, or by sings, or by visible representation, or
otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excites
disaffection towards the government established in law in India, shall be punished with
imprisonment for life, to which fine may be added, or imprisonment which may extend to 3 years, to
which fine may be added or with fine.
Power to issue order in urgent cases of nuisance or apprehended danger.
•'•' Supra note 34 at p. 983.
^ 'Democracy in India and the Judicial Process". I.ajpat Rai memorial lectures , 1963, pp. 17-18.

166
4.3.1 Meaning

It is noteworthy that the expression 'Freedom of the Press' has been

understood in various senses by different persons. It has not been defined or referred
to in the Indian Constitution. Freedom of the Press, in particularly of newspapers and
periodicals, is a species of which the freedom of expression is a genus. In a broad
sense, freedom of the press means all activities that are connected with press-specific
dissemination of news and opinions.''^ Freedom of the press meant, traditionally,
freedom of publication without any previous restraint. In other words, the freedom of
the press is the right to publish with impurity truth with good motive for justifiable
ends through reflecting on governmental magistracy or individual.

According to the Jowitt's Dictionary of English Law, the concept of'liberty of

the Press' simply means that such a thing as an impersonator is now well known to
the law, and that every man may print and publish what one pleases although, of
course, one will be liable to a prosecution if one prints everything which is a criminal
libel, or which is obscene, blasphemous or seditions, and to civil proceedings of one
prints defamatory matter.

Professor Bounard Schwarty described that the concept of 'Freedom of the

Press' means at least two things:

(i) A constitutional interdiction against any system of licensing, and

(ii) Freedom from prior restraints upon publication (other than that included in
licensing), particularly those imposed by systems of censorship.

The learned judges, Ray, in case of Bennett Coleman, and Company Limited
V. Union oflndia'^^ expressed that it was indisputable that by freedom of the Press is
meant the right of all citizens to speak, publish and express their views. The freedom
of the Press, Ray, J. further explained, embodies the right of the people to read and it
is not antithetical to the right of the people to speak and express.

•"' V. Kaiipeii, 'Freedom of Expression As A Basic Right: A German View', American Journal of
Comparative Law, Vol. 37, 1989, p. 400.
"" J. Burke, Mowitt's Dictionary of IZnglish Law', Vol. 2, 1977, p. 1418.
""* V. Sethi, 'Freedom of the Press', JCPS, Vol. 14 (3), 1980, p. 272.
•"' AIR 1973 SC 106;( 1972)2 SSC 788
'"id. at p. 121.

167
 According to Lord Denning freedom of the press is of tlindamental importance
in the society and covers not only the right of the press to impart information of
general interest or concern but also the right of the public to receive it. Lord Denning
further expressed that freedom of the press is not to be restricted on the ground of
breach of confidence unless there is a 'pressing social need for such restraint.

The Supreme Court of United States of America interprets 'freedom of the

press' to mean that no law shall be passed that interferes with the communication of
ideas in the printed word.^^

Blackstone purported that the liberty of the press was essential to the nature of
a free state and consisted in laying no previous restraints upon publications, and not in
freedom from censure from criminal matter when published. It was further added that
every freeman had an undoubted right to lay what sentiments he pleased before the
public; to forbid this was to destroy the freedom of the press. However, these
statements were made subject to a qualification that if a freeman published what was
improper, mischievous or illegal than he must take the consequences of his own
temerity.^^

It is thus evidently clear that freedom of the press has both negative and
affinnative content. In negative sense, it means absence of external interference
whether to suppress or to constrain generally; it means the freedom of expression of
opinion, idea, views, infonnation through the printed material and published for
circulation, and free from interference, presence restraint or compulsion. It is
affinnative on the part of the individual so far as writing or publishing what he
pleases. The editor of the newspaper has the right to gather the news, right to select
the news for inclusion in the newspaper, the right to print the news so selected and
then right to comment or express his views on all matters of public importance.^"*

4.3.2 Concept and Scope of Freedom of the Press

A free press is the s/ne qua non of any free country where dictatorship is
absent, where there is no throttling of dissemination of news and views. A free press

'' Lord Denning. 'What next in the Law', 1982, p. 254.

S. Cann, 'Diawing a Line on Fieedoni of tiie Press: The Burger Court Picks up tlie Chalk',
Judicature, VoL 66(7), 1983. p. 297.
^^ Supra note 2 at p. 46.
Report ollhe Royal Commission on the Press, 1977, p. 288.

168
does not necessarily connote license without any restrictions whatsoever. It merely
indicates that the press is allowed to function in the country under the minimum
normal restriction conceived in the interest of the health, prosperity and stability of
the very society which the press wants to safeguard. The importance of the freedom
extended to the press can be well understood when Thomas Jefferson's statement^^ on
that 'Reasoned Heritage' is read. He says:

"The people are the only censors of their Governors ... people should be given
full information of their affairs through the channel of public papers and to contrive
that these papers should penetrate the whole mass of the people. The basis of our
Government being the opinion of the people, the very first object should be to keep
that right; and where it left to me to decide whether we should have a Government
without newspapers or newspapers without a Government, I should not hesitate a
moment to prefer the latter... No Government ought to be without censors; and where
the press is free, no one ever will."

It is worth while quoting have the Government of India Press Laws Enquiry
Committee of 1948 says that:

"When great executive power is concentrated in the hands of the cabinet a

lively instructed and critical public opining is the only safeguard against the misuse of
executive authority. Democracy can only survive in the atmosphere of constant
controversy; it is essential Authority to it that any Government, however strongly
entrenched and however well intentioned, shall be aware that its actions are under
constant scrutiny and that there hangs always over its head the sword of public
criticism. Some continuing power of influencing the Government is necessary if
democracy is not to be ineffective between elections. The press lives by disclosures;
whatever passes into its keeping become a part of the knowledge and a history of our
times". ^^

The law of contempt of court as applied to the press was said to be a necessity
according to Lord Denning. He stated: 57

" Thomas Jefferson III, Monticello Edition; Wasiiington DC Tiie Tiiomas Jefferson Memorial
As.sociation (1904), cited in North Dakota Law Review, Vol. 42, 1996, p. 186.
''' 'Press Laws Enquiry Committee of Government of India', 1948, p. 22, Para 49.
" Lord Denning, 'The Road to Justice', 1995, p. 78.

169
 "The press plays a vital part in the administration of Justice; it is the watchdog
to see that every trial is conducted fairly, openly and above board. Any misconduct in
a trial is sure to receive notice in the press and subsequent condemnation by public
opinion. The press is itself liable to make mistakes. The watchdog may sometimes
break loose and have to be punished for misbehavior."

If newspapers publish scandalous news of men matters and things, society

would soon become corrupt and morbid and get subjected to 'coloured glasses'
tormented by what is termed 'the yellow" or the gutter' press. In the sphere of court
news they can descent to an attack or judge, impute dishonesty, bribery, favoritism
and partisanship to them in the discharge of their duties, question their competence,
indulge in siding with one of the parties to the case, deride one party, witness, or
counsel, misrepresent court proceedings by screaming headlines with a view to
prejudicing the court and the public, publish only one side of the case to the detriment
of the opposite party, published pleadings, before the cause begun and without court
permission, brings out articles on a matter pending in court and in diverse ways carry
on what has been so aptly called a 'a trial by newspaper'. If such things are allowed
to pollute the air of the society, it may be said that the dignity and prestige of courts
CO

stand in great Jeopardy.

To eradicate these evils the 1948 report suggested that the press must have its
own 'super body' to control its working and set the standards for its benefit. A
fivefold objective was suggested:^'^

(1) The press must give a truthful, comprehensive and intelligent account of the
day's events in a context which gives them meaning.
(2) It must provide a forum for the exchange of comment and criticism.
(3) It must be a means of projecting the opinions and attitudes of the groups in
society to one another.
(4) It must have a method of presenting and clarifying the goal and values of
society.
(5) It should have a way of reaching every member of society by the cuirents of
infonnation, though and feeling which the press supplies.

V.G. Ramacliandrairs, 'Contempt o f Court', 2002, p. 857

Ibid.

170
 If freedom of the press is to achieve reaHty, the Government must set limits
upon its capacity to interfere with, regulate control or suppress the voice of the press
or to manipulate the data on which public judgment is formed.^° The freedom of the
press is not a static feature. It varies and adapts itself to the conditions of an ever
changing society. It is not a fixed or isolated value, the same in every society and in
all times. It is a function within a society and must vary with the social context. It
must be different in times of general security and a times of crisis; it will be different
under varying states of public emotion and belief^' The 1948 report of the press laws
enquiry committee revealed that the accusation by the All India Newspaper Editor's
conference (A.I.N.E.C) that the law of contempt of court had been used in the country
to unjustly punish newspapers was without foundation.^^ Bonafide reports of court
proceedings were adequately protected.

4.3.2.1 Freedom of Speech and Expression vis-a-vis Freedom of the Press

The question of whether or not to insert in the Indian constitution a separate

right for the press as distinct from that of the ordinary citizen was extensively debated
by members of the Constituent Assembly. The constituent Assembly came to the
conclusion that such a provision was not necessary. Dr. B.R. Ambedkar, Chairman of
the Constituent Assembly's Drafting Committee argued:

The press is another way of starting an individual or a citizen. The press has
no special rights which are not to be given or which are not to be exercised by the
citizen in his individual capacity. The editor of a press or the manager are all citizens
and therefore when they chose to write in newspapers, they are merely exercising
their right of expression and in judgment therefore no special mention is necessary of
the freedom of the press at all.^^

It can be obsei-ved that there is no mention of the freedom of the press in the
Indian Constitution. However, the Supreme Court of India has interpreted many times
that there is no need to mention freedom of the press separately, because it is already

''" Supin note 56 at p. 27. para 57.

" Ibid., para 58.
''- Id. at p. 39. para 79.
''' Constiluent A.ssembly Debates, Vol. 7. 1948, p. 780.

171
included in the guarantee of freedom of expression.^ Although no special provisions
was made to safeguard the rights of the press, the courts have time to fine confined
that right of the press are implicit in the guarantee of freedom of speech and
expression under Article 19(l)(a) of the Constitution.^^

In Express Newspapers (P) Ltd., v. Union of India^^ arose out of a challenge

to the working Journalists and other newspapers Employees (Conditions of Service)
and Miscellaneous Provisions Act, 1955, on the ground that its provisions violated
Article 19(l)(a). In the facts of the case, the court held that the impact of the
legislation on the freedom of speech was much too remote and no judicial interference
was warranted. Moreover, the court did recognize an important principle which is as
follows:

Laws which single out the press for laying upon it excessive and prohibitive
burdens which would restrict the circulation, impose a penalty on its rights to
choose the instrument for its exercise or to seek an alternative media, prevent
newspapers from being started and ultimately drive the press to seek
Government aid in order to survive, would be struck down as
unconstitutional.^'

In 1973, came the famous Bennett Coleman case.^^ This was a momentous
judgment having a bearing on the freedom of the speech and expression generally,
and or the freedom of the press, in particular. In this case Constitutional validity of the
newsprint policy of 1972-73 passed by the Central Government was challenged as
being violative of freedom of speech and expression guaranteed by Article 19(l)(a).
The four main violative features of the policy were:^^

(1) No newspaper or edition could be started by a common ownership unit within

the authorized quota of newsprint;
(2) There was a limitation on the maximum number of pages to ten. No
adjustment was pennitted between the circulation and pages so as to increase
the pages;

*"| Romesti Tliappai- v. Stale of Madias, AIR 1950 SC 124 at p. 134.

''•' Brij Bhushan v. State of Delhi. AIR 1950 SC 129^
' ' ' A I R 1958 SC 578.
'" Sakal Papers Pvt. Limited v. Union of India. AIR 1962 SC 305 al 617, (para 150).
Supra note 49.
''''id.atp.lll

172
(3) No interchangeability was permitted between different newspapers of common
ownership met or different edition of the same paper; and
(4) Allowances of 20 percent increase in page level up to a maximum of ten had
been given to newspapers with less than ten pages.

The petitioner contended^° that the impugned policy had infringed his freedom
of speech and expression conferred by Article 19(l)(a).The Union of India contended
that the newsprint policy did not directly and immediately deal with the right of
freedom of speech and expression conferred by Article 19(l)(a) and the right under
Article 19(l)(a) was not violated though the freedom of speech and expression was
incidentally or consequently abridged.^'

79

Justice Ray speaking for the majority of the Supreme Court set aside the
impugned news print policy as unconstitutional. Justice Beg in a separate judgment,
concerned with him.^ In view of the law hitherto laid down, Ray J., observed that in
effect the newsprint policy was 'Newspaper Control Policy'.^'' The learned judge cited
with approval the law laid down in two earlier cases^^ and added. ^^
Freedom of the press is both qualitative and quantitative. Freedom lies both in
circulation and in content.

The principle points made in this case (majority view) regarding freedom of
Press are:^^

(1) Freedom of speech cannot be restricted for the purpose of regulating the
commercial aspects of the activities of newspapers. A restraint or the
circulation of newspaper and a restraint on the space permitted for
advertisements would affect the Fundamental Rights under Article 19(1) (a) in
respect of propagation, publication and circulation of news and views.

'° Id. at p. 114.

" Id., pp. 116-117.
'" Three judgments were delivered. The majority judgment by Ray J., for himself, Sikri, C.J., and
Reddy, J. held that the impugned policy violated Article 14 and 19(l(a), in a separate judgment Beg.
.r, concurred in the result; and in a dissenting judgment, Mathew J., held the impugned policy was
valid.
'"' Supra note 49, at p. 152.
" i d . at p. 117.
'^ Supra note 66 and 68.
"•Supra note 49 at p. 130.
" I d , pp. 125-131.

173
(2) Restrictions on page limit, prohibition against newspapers and new editions
control the growth and circulation of newspapers, also depriving newspapers
of their area of advertisement. The direct effect of such restraints is that
newspapers are exposed to financial loss. The direct effect of which is that the
freedom of speech and expression infi-inged.

The judgment given by the Supreme Court will go down as a landmark in the
history of citizen civil rights in India.

It is submitted that in a free and democratic society there should be as few

restrictions or the freedom of speech and expression as possible and this is the result
TO

which the Supreme Court's decision seeks to achieve.

4.3.2.2 Limitation to the Concept of Freedom of Press

Apart from constitutional restraints under various Articles, there are laws in
India relating to the Press which seek to put statutory curbs on Freedom of the Press.
Here, it must be noted that a distinction is necessary between Press laws which are
special laws solely directed against a printing establishment or those who are
concerned with the printing and publication of printed matter and laws on the press
which are general laws applicable to all citizens including the press. The term
'General' signifies that the law must not be aimed at the ideas in or content of the
expression and regulate matters that might be pertinent to freedom of the press but
pertain as well to other rights and matters.'^

Under the first category of "Press Law', there is no longer any repressive law
directed against the Press. However, there are certain regulatory measures, such as
the Press and Registration of Book Act, 1867 and even beneficial measures, such as
the Working Journalist and other Newspaper Employees (Conditions of Service) and
Miscellaneous Provisions Act, 1955.

In case of State of Madias v. V.G. /?ao,**° the Supreme Court observed that
there was no infringement of freedom of speech and expression when a law required
that the name of the printer and publisher and the subjects of printing and publication

'''M.P. Jain, 'Article I9(l(a): Freedom of the Press: Bennett Coleman & Co. v. Union of India',
Journal of Indian Law Institute, Vol. 15, 1973, pp. 154-164 at 162.
Supra note 46, at p. 398.
^ " A I R 1952 SC 196.

174
should be printed on every book or paper. Therefore, it was held that such type of law
did not in any way restrict the freedom of speech and expression but rather prevented
it from degenerating into a license.^'

Under the second category of Law relating to the press are Indian Penal Code,
1860. The Dramatic Performances Act, 1876, The Indian Telegraph Act, 1885, The
Indian Post Office Act, 1898, Official Secrets Act, 1923, The Young Persons (Harful
Publications) Act, 1956, The Copyright Act, 1957, Atomic Energy Act, 1962, The
Criminal Procedure code, 1973 etc., etc.

4.3.2.3 Elements of the Freedom of Press

Freedom of the press is a concept which itself is composed of certain basic

freedoms. These basic freedoms are comprised of freedom to publish and circulate
freedom against pre-censorship and freedom of infomiation. All these freedoms are
linked together and one is totally meaningless without the other. The Andhra Pradesh
High Court in case of Ushodaya Publications Private Limited v. Government of
Andhra Pradesh,' observed that freedom of circulation of newspapers is necessarily
involved in freedom of speech and expression and is part of it and hence enjoys the
protection of Article 19(1) (a)."

Further, information and communication are even more important needs of

man in his conglomeration as social units. Thus, the press has the right to dispense
infonnation to the general public. This function is even more important from the
view that a paucity of infonnation will predictably preclude the public from making
properly infomied choices whenever it has to exercise its franchise and to select its
government.^'' Therefore, freedom of infonnation is the modem corollary to freedom
of the press.

In case of P.L Lakhanpal v. Union of India, ^^ (he Delhi High Court while
dealing with the question whether the right of broadcasting included in Article
19(l)(a) observed that a closer examination of the concept of freedom of speech and
expression would reveal that it is not merely the right to speak or the right to express

^' Id, pp^ 199-200.

*'-AIR 1981 AP 109.
" Id. at p. r •
*"* T.N. Ciiatuivedi, 'Secrecy in Government', Indian Institute of Public Administration, 1980, p. 5 I
'^^ AIR 1982 Delhi 167.

175
but also imposes the right of communicating that speech or expression to others by all
available means which can be a broadcasting station, a newspaper, a loud speaker, a
pamphlet, a book or other document. In this case right of communication was
stressed which includes the right to informs, the right to receive infonnation and the
right to access to the resources required for communication.

As evident from the above discussion another important element of the

freedom of press is the right to gather information. No doubt that the press has
unbridled freedom in collecting news as there are certain areas of the press freedom
which may not fall under any restriction under Article 19(2). The press can gate-crash
into governmental offices, burst into hospital wards to interview the injured victims,
or march into the police station to pry into crime secrets.

In case of Dainik Sambad v. State of Tripura, the Gauhati High Court

expressed that the press had no privilege not to disclose the sources of its infonnation
in judicial proceedings or in statutory inquiry having the same status as a court. It
was further stated that the court has discretion whether to require the information to
be given and usually would not insist on an answer it was not essential to the case.

However, it is suggested that to make the position clear, the press should not
be ordered to disclose the source of its infonnation except in most exceptional
circumstances. The underlying principle is that public has a right of access to
infonnation which is of public concern and which the public ought to know. The press
being agent of public collects infonnation, on behalf of public. If the press is
compelled to disclose their sources, it will cause sources to dry up and impede the
flow of infonnation's. In other words, if the freedom of the press is to be meaningful,
the source of infonnation as well as its uninhibited dissemination must be protected
subject to other legal requirements.**''

The next element of the freedom of the press is the freedom against pre-
censorship. It should be noted that censorship may be fonnal or infonnal, prospective
or retroactive. Fonnal censorship depends on rules of conduct imposed by authority
while informal regulations stems, from social taboos. Prospective censorship operates

' V . K . Varadachari. 'Citizen and the L a \ v \ 1982. p. 20.

^'AIR 1989 Gail. 30
Id. at p. 36
•SO
B.C. Reid, •Conf"idcnlialiiy and the Law'. 1986. p. 247.

176
on material before it is publically available, so that the censor's decision may not
become public knowledge; while retroactive censorship suppresses matter already
published. Pre-publication control is more effective and convenient for a censor
because the alternative invites undeserved comment on his occasions.^°

Later, in case of Virender v. State ofPunjab^^ the broad approach relating to

pre-censorship was questioned. In this case, the Supreme Court held that pre-
censorship even in times of peace could be imposed in certain circumstances under
Article 19(2), but pre-censorship being a restriction on the freedom of the press,
would constitute a serious encroachment on the valuable and cherished right of
freedom of expression of a newspaper is prevented from publishing its views or the
views of its correspondent relating to or concerning what might a bearing topic of the
day.^^ The Supreme Court further stated that each case had to be examined in the
light of the circumstances in which pre-censorship was imposed and such a restriction
could be reasonable only if it was imposed in emergent circumstances.

Therefore, the freedom against pre-censorship is one of the elements of the

freedom of the press. However, it is submitted that power of pre-censorship under
Article 19(2) should not be invoked by the government except in cases of extreme
necessity in the national interest, when the situation cannot be saved without resort to
this power.

4.3.2.4 Freedom of Press v. Contempt

Article 3 read with Article 19 of the Universal Declaration of Human Rights

grants to everyone liberty and right to freedom of opinion and expression. Article 19
of the International Covenant on civil and Political Rights, 1966 to which India is a
signatory and has notified and provides that everyone shall have the right to freedom
of expression, to receive and impart information and ideas. In India, unlike USA,
there is no separate provision guaranteeing the freedom of press, however, the
Supreme Court has held in a number of cases that there was no need to mention
freedom of the press separately, because it is already included in guarantee of

' P.C. Richards, 'Parliament and Conscience', 1970, p. 113.

'" AIR 1957 SC896.
'- Id., at p. 900.

177
'freedom of speech and expression 'provided under Article 19(1) (a) of the

Constitution.^^

Under Article 19(2) no specific immunity has been provided to the Press.
Freedom of speech and expression is a general right which is available to every
citizen. The media stands on no higher footing than any other citizen and cannot claim
any special privilege other than what is available to common citizen. It has been held
that freedom of the Journalist is an ordinary part of the freedom of expression subject
to Constitutional limitations and apart from statute law, his privilege is no other and
no higher. The basic objective of the Press is to give news, views, comments and
information on matters of public interest in an accurate, fair and responsible manner.
The freedom of Press under the Constitution is not higher than the freedom of a
citizen and is subject to the restrictions proposed under Article 19(2) thereof

The Constitutional freedom is nevertheless not absolute and there are limits to
this freedom. Article 19(2)^^* of the Constitution makes this freedom subject to the
existing law relating to libel, slander, defamation, and contempt of court. The state
has also been empowered to impose reasonable restriction on this right in the interest
of public order, security of State and the like.

4.3.2.5 Media Trial

Media trial means the pre-trial and in-trial reporting of the case, whether civil
or criminal, which is likely to prejudice fair trial-the Constitutional right of every
accused. Medial trial is a threat to the right of fair trial and a blow at the sanctity of
the judicial system. Media by reporting frill details of the case, confession of the
accused, presenting biased view points during the pendency of the judicial proceeding
is not only transgressing its limits but also making the inkbeixy of court proceedings.
When there is trial by Media, there is always a conflict between two constitutional
rights i.e. fair trial and freedom of the Press.^^

Abhitosh Pratap Singh and Madan Mohan, 'Contempt of Court and the Media'. Kashmir University
Law Review, Vol. 13, 2006, p. 327.
Article 19(2): Nothing in sub-clause (a) of clause(l) shall effect 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 interest of the sovereignty and integrity
of India, and securing of the State, friendly relations with foreign slates, public order, decency or
morality, or in relation to contempt of court, defamation or incitement to an offence.
Supra note 93 at p. 321.

178
 'Trial by media' is a phrase popular to describe the impact of television and
news paper coverage on the reputation of a person by creating a widespread
perception of guilt regardless of any verdict in a court of law.^^ Media has a
tremendous power to awaken the people. But that power has to be exercised with the
precision and circumspection. Media can point out the lapses in the investigation and
thus highlight is so as the plug and loopholes and set the system rights. Highlight the
need to strengthening the Police Act, Evidence act, which is the dire need of the hour.
That is constructive role of the media. Instead, what happens many a time is, in the
garb of highlighting the system failures, more often it turns out to be trial by media.^^

'Trial by newspaper' is a species of which 'trial by presses' is a genetic name.

The expression trial by newspaper' implies pre-trial and in trial reporting of a case,
whether civil or criminal with a view likely to prejudice the fair trial. A fair trial
requires that the judges and jury makes their judgment solely on the basis of the
evidence introduced in the court room, and of course they must be subjected to o
no
outside pressures in reaching their decisions.

4.3.2.5.1 Position in America

In America the newspaper has been given complete fieedom to report the facts
of criminal investigations and prosecutions. From the time a crime is committed,
newspaper undertake to publish very bit of information concerning the crime and the
criminals, usually with the cooperation of the police and prosecution. They recount
the evidence and the previous criminal record, if any, of the suspect. In particulariy
gruesome crime, the press may whip up feeling against the person charged. Trial by
newspaper may be so complete and effective that the task of securing a jury, which
has not pre-judged the case, become very difficult. Occasionally newspaper will go so
far as to attempt to exert editorial pressure on the judge or jury while the case is still
being tried. In such a situation there is a fundamental conflict between two
constitutional rights- a fair trial and a free press. The basic justification for the
freedom of the press is that untrammeled public discussion and expression of all
conceivable views offers the best chance of achieving truth and wisdom.

'"' Shojab Jacob, 'Trial by Media,' Cri. L .1, May 2007, p. 106.
' ' Id., at p. 11 L
'^ Tej Bahadur Singh, 'Trial by Ncw.spaper". Cri. L .1. Julv 2002, p. 191.
Ibid.

179
4.3.2.5.2 Position in United Kingdom

In English Law no newspaper has right to assume the role of an investigator

and to suggest that accused person against whom a proceeding is pending was, or was
not guilty of the offence charged. It is contempt of court to discuss the merits of a
pending civil case. Publication of the Photograph of a person when a question of
identity may arise at the trial is also a contempt of court. It also amounts to a
contempt of court to publish inaccurate statement and misrepresent the proceeding of
a court which might have prejudiced the mind of the public before the case if finally
decided.'"*^

4.3.2.5.3 Position in India

Publication of any matter which interferes or tends to interfere with, or

obstructs or tends to obstruct, the administration of justice cannot be justified in any
way. It would amount to universal contempt within sub-clause (iii) of 2(c) of the
contempt of courts Act, 1971.

No newspaper has a right to assume the role of an investigator and to suggest

that the accused person against whom a proceeding is pending was or was not guilty
of the offence. The reason why 'trial by media' is not allowed is manifold:

(1) It may influence the persons who may appear as witness in the court.
(2) It may compel the parties to discontinue the litigation.
(3) It may prejudice the public as whole, by evoking adverse reaction and thereby
impair the public confidence in the administration of justice.
(4) It may inhibit other potential litigants from restarting to the law of court.'"'

One of the most common forms of prejudicing the due sense of justice in a
pending case is the trial of the case by newspaper. Where a newspaper conduct a trial
a party is deprived of the right to reply or cross-examine witness and there is no
question of the rules of evidence being applied. The newspaper issued the function
which property belongs to the court and thus day the basic right of the individual to
have a fair trial.'"^

'""Id.alp. 193.
'°' P.M. Bakslii. M'less Law an Introduclioiv. 1986, p. 36
Supra note 2, at p. 136.

180
 The rationale behind raising the status of freedom of press to Fundamental
Rights is that an action taken in the public gaze and scrutiny ensures the proper and
fair exercise of power, and it rules out the possibility of abuse of power out of whims,
fad and fancies of any individual. However, it is when the press begins to virtually
conduct the trial that there is a real danger of violation of the fundamental right of fair
trial of the accused. The immediate objection to media trial is the putting on risk the
due administration of justice in the particular case. The long term fear, however, is
that such trials could undergone confidence in the judicial system generally. In no
democratic society trial by media is in vogue. Trial by televisions is not to be
tolerated in a civilized society and the same holds free for any other publication
through any medium newspaper or internet. "^^

Nowadays, the sensationalism involved in the cases of certain public profile

criminal cases has become very common with the spread of mass communication.
Example can be taken from Abu Salem case. This invariable leads to the issue of pre-
judicial publicity placing on or the other party involved in a disadvantaged position
besides creating situations which tends to reduce legitimate space for dispassionate-
assessment of truth by judicial officer. Moreover such media trials unnecessary draw
the judiciary into the public scanner after making a mockery of justice delivery
. 104
system.

Having moved from news information to news as entertainment, the media has
cast aside the once inviolable time between reality and drama. Now media offer
gossip, titillation, speculation and trivia as news. Forget privacy, sensitivities, social
concern, liberal values and justice, forget journalistic ethics. This is the race to be the
hottest bare all show. So every newspaper and television channels have been offering
us a mouth watering menu of depravity, clandestine, sex and violence.

Two important core elements of investigative journalism envisaged that (a) the
subject should be of public importance for the reader to know and; (b) an attempt is
being made to make the truth from the people.'°^ It must nevertheless be stated that
sometimes accuracy of the news is sacrificed at the cost of providing more sensational

'°' Supra note 93, pp. 321-322.

'"•' Piiya Bansal, 'Judicial Activism of Media', Lawyeis Update, Vol. 13, Jan. 2007, p.5.
'°' Antaia Dev Sen, 'Selling Murder', The week, Vol. 26, June 2008.
'°'' G.N. Ray, 'Should there be a Lakshman Rekha for the Press', available www. Presscouncil.nic.in

181
news. The Indian media should be remained that while comment is free, facts are
secured.

In view of the foregoing considerations, it becomes imperative to consider the

importance of the freedom of press and the media, its possible abuse and the required
safeguards. It is well established that in a democracy, the freedom of speech and of
the press is indispensable. The framers of our constitution recognized the importance
of safeguarding this right since the free flow of opinions and ideas is essential to
sustain the collective citizenry. In the political scenario, an informed citizenry is a
precondition for meaningful governance, similarly in the societal attitudes; a culture
of open dialogue must be promoted.

Trial by media has assumed significant proportion. It has had both positive
and negative result. Some famous criminal cases that would have gone unpunished
but for at the intervention of media are Priyadarshani Matto case, Jessica Lai case,
Nitish Katara, get justice.

4.3.2.5.3.1 Subconscious Effect on Judges

Another worrying factor and one of the major allegations upon media trial is
prejudicing the judges presiding over a particular case. The media create a
unconscious pressure on a judge in a high profile case. Judge knows that they are
being watched by the people. There is always a chance that judges get influenced by
the flowing air of remarks made upon a particular controversy. The media present the
case in such a manner to the public that if judges passes an order against the media
verdict, he or she is deemed either corrupt or biased.

The Indian free speech law is different and has been restricted by Article
19(2). Regarding media reporting the Supreme Court "^^ has been reiterating view that
the judges may be subconsciously affected in their judgments the fairly of the judicial
system stems from the fact that judges are human beings and undue influence of
irresponsible expression may taint the rational process of adjudication. This limitation
has been admittedly the Supreme Court of India, wherein it ruled:

' Justice H.R. Klianna, 'Freedom of Expression with Particular Reference to Freedom of Media'
journal of SCC, Vol. 2, 1982. p. 47.
""* Dr. B.S. Chauhiin. .1., in S. Khushboo v. KannianimaL (2010) 5 SCC 600, para 45.
'"''In re P.C. .Sen, AIR 1970 SC 1821.

182
 Prejudice, a state of mind, cannot be proved by direct and positive evidence.
Therefore, it cannot be judged on the basis of an objective standard."°

4.3.2.5.3.2 Negative Effect of Media Covering Criminal Trial

When media covers a case and publicize lawyers, judges, witness's pretrial
forms a kind of presumed mental set up on the judges who sit to adjudicate the
criminal trial. In India there is no jury system and the judge who is sitting there is the
sole authority. What he says is the final judgment and if has a preconceived notion
about a case it is against the rule of natural justice. The presses to make things spicier
makes comments on cases which are in trial, the judges came across these and
unconsciously have a set of argument in their mind.'''

Justice Katju and P. Sainath have attacked the media for focusing attention on
'non issues' and 'trying to divert attention of the people from the real issue to non
issues'"^ and 'stifling of smaller voices'."^ Who will watch the watchdog as it
abdicates its role as an educator in favour of being an entertainment? A line
between information informing and entertaining must be drawn. One to extensive
media propaganda, justice and rule of law are no longer about the process but the
outcome. It is submitted that public opinion may exercise an indirect influence over
the criminal justice system. Justice should not only be done, it should manifestly and
undoubtedly be seen to be done. Psychological pressures storming from media
scrutiny could possibly print verdicts to conform to public opinion rather than the
evidence offered at trial. Further the credibility of a judge is at stake when a trial by
media declares a person guilty but the judge gives a differing opinion based on
facts. "^

The most objectionable part and unfortunate too, incarnated role of media is
that the coverage of a sensational crime and its adducing of 'evidence' begins very
early, mostly even before the person who will eventually preside over the trial even

"° Bhajan Lai, Chief Minister, Haiyana v. Jindal Strips Ltd., (1994) 6 SCC 19, para 17.
Supra note 8 at p. 133.
"" Markenday Katju, 'Ideal and leality: Media's loie in India', available at www.hinduonnet.com
"•' P. Sainath, 'Lost the Compass? Rural India is a giant canvas that is begging the media to do a
portrait', available at wwvv.outtlookmedia.
""' Ramachandra Guha, 'Watching the Watchdog: Time for the press to look within'. The Telegraph,
May 10, 2008. Available at www.telegraphmedia.coin
^ Navajyoli Samanta, 'Trial by Media-.lessica Lall Case', available at www.ssrn.com

183
take cognizence of the offence, and secondly that the media is not bound by the
traditional rules of evidence which regulate what material can and cannot be used to
convict an accused. In fact, the Right to justice of a victim can of^en be compromised
in other ways as well, especially in rape and sexual assault cases, in which often, the
past sexual history of a prosecutrix may find its way into newspaper. Secondly, the
media treats seasoned criminal and ordinary one, sometimes even the innocents, alike
without any reasonable discrimination. They are treated as a 'television item' keeping
at stake the reputation and image. Even if they are acquitted by the court on the
grounds of proof beyond reasonable doubt, they cannot resurrect apart, even victims
and witnesses suffer from excessive publicity and invasion of their private rights.
Police are presented in poor light by the media and their movable too suffers. Such
kind of exposure provided to them is likely to jeopardize all these cherished rights
accompanying liberty.''

4.3.2.5.3.3 Positive Effect of Media Covering Criminal Trial

The effect of media following a criminal case has definitely good effects on
the adjudication of trial. We get to judge for ourselves the truthfulness of leaders
questioned by Journalist before the cameras. The net result is that governments have
been forced to be more open and accountable. One of the positive by products spurred
by the media and addressed by the courts is that the people are more aware of their
Constitutional rights and the way the police and courts try cases to find a person
guilty or innocent."'

Criticism of judicial decisions in a healthy manner, if used effectively, is a

powerful weapon in the hands of the masses and can have far reaching consequences.
The best example of this is the Mathura Rape Case.''^^ The Supreme Court's
decision in this case acquitting the accused policeman who allegedly raped a poor girl
in the police station raised hue and cry. Public criticism provided an impetus for the
law to be amended. Higher punishment for custodial rape was included in the Indian
Penal Code and provisions in favour of the victim were added to the Indian Evidence
Act.

Jagnnadlia Rao, 'Fair Trial and Free Press: Law's Response to Trial by Media', available at
www.unilawonline.com
' Supra note 8, at p. 132.
"^(1972) 2 s e c 143.

184
 Jn Ruchika Murder Case,^^"^ the court got 400 hearings, 40 adjournments and
the case continued for 9 long years. It was media's intervention which brought rehef
to the parents of the victim. Similarly in Jessica Lull Case, ^^^ the. accused Manu
Sharma was acquitted of all charges in 2006. However, he was sentenced to life
imprisonment owing to intense media and public pressure. Further, in Priyadarshini
Matto Case, a 25 years old law student was found raped and murdered at her home
in New Delhi in 1996. The accused was Santosh Singh, son of a police inspector
General and was earlier acquitted by the trial court in 1999. This decision, however,
led to a massive public outcry entry and the court sentenced Santosh Singh to death in
2006.

Praful Kumar Sinha v. State ofOrissa, a writ against sexual exploitation of

blind girl in school was filed before the Supreme Court on the basis of an Article
published in a newspaper. Even though sexual assault was difficult to prove, the
Apex Court, on the basis report submitted, gave directions to the institution for proper
management. In Sheela Bause v. Union of India^^^ the Journalist, through a letter
addressed to the Chief Justice of India, made the Apex Court take cognizence of the
deplorable conditions of the mentally challenged woman looked up in the presidency
jail, Calcutta. Due to this initiative, a commissioner was appointed to investigate and
report on the conditions of prisons where women and children were detained.

In D.K. Basu v. state of West Bengal,^^'^ the Supreme Court took cognizance
of the existence of custodial violence after a letter was sent to the Chief Justice of
India drawing attention to newspaper reports regarding death in police lock-ups and
custody.

There are though limits on the fi-eedom of the press. In Mother Dairy Foods
and Processing Ltd. v. Zee Telefilms}^^ It was recognized that while journalists and
media are 'distinctive facilitators' and they must follow the virtues of accuracy,
honesty, truth, objectivity and fairness. The court finally concluded that often the
media conveys what the 'public is interested in' rather than what is in 'public

'"Cri. Rev. No. 1558 of 2010.

'-° (2001) Cn. I,.! 2404 (Delhi).
'-' (2007) Cii. LJ 946.
--AIR 1989 SC 1783.
-^(1987)4 s e c 373.
-'(1997) 1 s e c 416.
-' AIR 2005 Delhi 195.

185
interest'. The freedom of the press should not degenerate into a license to attack
litigants and close the door of justice nor can it include any unrestricted liberty to
damage the reputation of respectable persons.

4.3.2.5.3.4 Law Commission's Report

The Law Commission in its 200"^ Report 'trial by media, free speech v. fair
trial under criminal procedure code has made recommendation to enact a law to
prevent the medial from reporting anything prejudicial to the rights of the accused in
criminal cases from the time of arrest, during investigation and trial. The
commission has said, Today there is feeling that in view of the extensive use of the
television and cable services, the whole pattern of publication of news has changed
and several such publications are likely to have a prejudicial impact on the suspect,
accused, witness and even judges and general on the administration of justice. This is
criminal contempt of court according to the commission if any publications which
interfered or tend to interfere with the administration of justice under the contempt of
court Act, 1971. It has suggested an amendment to Section 3(2) of the contempt of
court Act under the present provision. Such publication would come within definition
of contempt. Only after the charge sheet is filed in a criminal case. The Commission
has suggested that starting point of a criminal case should be from the time of arrest of
an accused and not from the time of filing of the charge sheet. In another
controversial recommendation, it has suggested that the High Court be empowered to
direct a print or electronic media to postpone publication or telecast pertaining to a
criminal case.

To make accountable to the people, an independent autonomous public

institution like the Media Council is, therefore, a constitutional need. In some
countries, it is established by the various constituent of the media as a voluntary
organization, while into other countries like ours it is constituted by the legislature
1 12')

under a statute.

A logical interpretation of the contempt of courts Act read with the Article
19(2) limits the scope of contempt of courts to matters relating to the court much of

'-'^ Bijoyananda Patiiaik v. BalaKiislinakar, AIR 1953 Orissa 249.

"' .Sudhanslui Raiijan, 'Medial on TriaP. The Times of India. 26 Jan. 2007.
';^lb,d.
" .Supra note 104. at p. 7.

186
pre-trial publicity which is not covered cannot under our current constitutional regime
be restricted. In the grounds include in Article (19) (2) the grounds o f Administration
of Justice' is a notable absentee.'^°

Backbone legislation with a constitutional sanction will effectively deal with

the menace of media trial. Besides the long term solution in this respect lies in self-
regulation by both the media and the judiciary.'^'

In India, the entire mechanism is entrusted to the Press Council. The norms of
Journalistic conduct formed by the press council require the journalist to abide by the
norms and guidelines. For instance 12 (ii) of these norms says that 'Newspaper shall
not as a matter of caution, publish or comment on evidence collected as a result of
investigative journalism, when after the accused is arrested and charged. Nor should
they reveal comment upon or evaluate a confession allegedly made by the accused.'^'^

It cannot be denied that in the present time news reporting has become a
business and various industrial houses are entering into the field of electronic media
in particular due to its high growth potentials. It is obvious that competition amongst
news channel is also increasing, simultaneously since criminal cases or other
involving high profile person attract more public attention, the press and electronic
media give more publicity to such cases and sensationalism of news become
inevitable. The police too become the culprit, so far as criminal cases are concerned
police are presented in poor alight by the media. The day after the report of crime is
published, media says, 'police gave no clue'. The pressure on the police from media
day by day build up and reaches to a stage where police feel compelled to say
something or other in public to protect their reputation.

4.3.2.5.3.5 Constitutional and Judicial Response of Trial by Media

Like the freedom of speech, the media is also subjected to the restriction given
under clause (2) of Article 19. Consequently 'contempt of court' as a reasonable
restriction on the freedom of speech affects media also, both print and electronic, in a

'^° Esha Goel & Ankan Ghosh, 'Trial by Media: A Threat to the Right to a Fair Trial', New iVIexico
Law Review, Vol. 2, 201 I, p^ 33.
'"' Upasana Das Gupta, 'Media and Public Opinion: Do they subconsciously affect the Judges?,' New
Mexico Law Review, Vol. 2, 201 1, p. 95.
''- Supra note 96, pp. 109-110.
" ' Nirmal Chopra, Trecdoni of Press and Court Proceeding', Cn. L ,1, May 2006, p. 107.

187
like manner. In relation to the freedom of speech and expression, there are three sorts
of contempt of court: (a) one kind of contempt is scandalizing the court itself; (b)
there may be likewise a contempt of court in abusing parties who are concerned in
causes in the court; (c) there may also be a contempt in prejudicing mankind against
persons before the cause is heard. But the above classification is by no means
exhaustive.''''' Broadly speaking, it consists of any conduct that tends to bring the
administration of justice into disrespect or to obstruct or interfere with the due course
of justice. '^^ However, there is another important proposition which has to be
reconciled with the strict interpretation of contempt of court, which provides that
'Justice' and not judge should be the keynote and creative journalism and activist's
statesmanship for judicial reforni cannot be jeopardized by an undefined apprehension
of contempt action. '^^ Moreover, the positive aspect of reporting of judicial
proceedings by the media cannot be overlooked completely. Therefore, in this regard,
it is important that the motions of contempt of court, fair trial and media trial are well
postulated.

In liability of the media for criminal contempt rests on the premise that where
any communication is likely to interfere with the administration of justice, anybody
who is responsible for publishing such matter will be liable for contempt of court
unless it can come under any of the defences provided for in the Act.

In Saibal Kumar Gupta and others v. B.K. Sen and Others,^ it was held by
the Supreme Court that it would be mischseuonk for a newspaper to systematically
conduct an independent investigation into crime for which a man has been anested
and to publish the result of the investigation. This is because trial by newspaper when
a trial by one of the regular tribunals of the country is going on must be prevented.
The basis for this view is that such action on the part of the newspaper tends to
interfere with the course of justice whether the investigation tends to prejudice the
accused or the prosecution. There is no comparison between trial and newspaper and
what has happened in this case.

K.G. Balakrislinan, 'Reporting of Court Proceedings by Media and the Adniinistiation of Justice'
Public Law, July 2010, p. 14.
' The preposition is codified in Section 2(b) (iii) ofContempt of Courts Act, 1971.
'•'" Justice Krishan Iyer, In re, Mulgaonkar, AIR 1978 .SC 727.
'•'' AIR 1961 SC 633; 1961 SCR (3) 460.

188
 In Shaji v. State of Kerala, the court held that curse day when a judicial
functioning will have to render decisions with one eye on the headline in the media
next morning. The day when such opinion makers can even indirectly influence the
decision making process and the decision maker must be bound only to the law and
his own conscience.

Dr. M.P. Lohia v. State of West Bengal, the brief facts of the case were that
a case was registered against the petitioner under Sections 304-B, 406 and 198 of
Indian Penal Code. The death of Chandni took place on 23-10-2003 and complaint in
this regard was registered and the investigation was in progress. Even then an article
appeared in magazine called 'Saga' titled 'Doomed by Dowry' written by Kakoli
Podar based on her interview of the family of the deceased and giving version of the
tragedy and extensively quoting the father of the deceased as to his version of the
case. The court held that these types of Articles appearing in the media would
certainly interfere with the administration of justice. We deprecate this practice and
caution the publisher, editor and journalist who were responsible for the said article
against indulging in such trial by media when the issue is subjudice. The Apex Court
observed in M.P, Lohia case that the press should refrain from publish any material
which is the subject matter of a pending in permissible of any comment or opinion on
the merit of a pending case. Though expressing any opinion on the merit of a pending
case may not from the judicial mind, but one cannot forget that judges are also human
beings and the possibility of their being affected by the emotional reporting done by
the press cannot be completely ruled out. What all is requires is the self restrain by
the press and such self restrain is the best restrain then any legislative control which
may tend to interfere unnecessary with the fi'eedom of press.

4.4 Freedom of Speech and Expression under Indian Constitution

Freedom of speech and expression is the foundation of any democracy besides

being a valuable freedom in itself. The freedom of thought and expression is not only
valuable freedom in itself, but is basic to a democratic form of government which
proceeds on the theory that problems of government can be solved by the free
exchange of thoughts and by public discussion. Almost all the constitutions whether

'••^ (2005) 4 Kerala Law Times 995.

'^'' AIR 2005 SC 790; (2005) 2 SCC 686.

189
democratic or socialist ensure this freedom to their citizens. However, as per our
constitutional scheme, this freedom, like any other freedom is not absolute and is
subject to reasonable restrictions enshrined in the constitution. However, in a
democratic society there are other values also to be attained as well, apart from the
cherished freedom of speech and expression. At times these values may come in
conflict, with the free speech. One such value is fair and impartial administration of
justice. This social interest is sought to be protected by the inclusion of, what is called
contempt of court, which, is one of the restrictions contained in Article 19(2) on the
freedom of speech. It is the major problem of balancing these two competing social
values that has enraged the attention of the courts while exercising this jurisdiction.'''

Freedom of speech as granted by Article 19(1) (a) of the constitution is not

absolute but is subject to the restriction of contempt as per Article 19(2) if, and only
if, it is 'reasonable'.''" The Constitution thus suggested that freedom of speech takes
precedence over contempt of court which is in the nature of an exception to the
former.'''^ The task of balancing the freedom of speech with the right of an accused to
a fair is a delicate one, dealing with the question as to side which side of the line the
case would fall.'''

"Contempt of Court" was suggested as a possible limitation of freedom of

speech by T.T. Krishnamachari on 17 October, 1949 just a few months before the
constitution was adopted.''''' Krishnamachari argued that in actual fact "Contempt of
Court" was introduced to cover lacuna in that it was cognate to "libels, slander,
defamation or any matter which offends against decency or morality or which
undennines the security of, or tends to over throw the state" which were already
included as restriction on freedom of speech. It was considered a very necessary
protection as far as the courts was concerned. T.D. Bhargava was willing to accept
the amendment of provided that the law connoted with the restriction on the

'•'" K.D. Singh, 'Freedom of Speecli and Contempt of Courts', National Capital Law Journal, Vol. 9,
2004, p. 166.
Article 19(2) of the Constitution states, 'Nothing in sub-clause (a) of clause(l) shall affect the
operation of any existing law, or prevent the slate from making any law, insofar as such law
imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause .... in
relation to contempt of Court'.
'"•- In re. Aurndhati Roy, (2002) 3 SCC 343: AIR 2002 SC 1375.
^ Jagdish Swarup and Vinod Swarup, 'The Contempt of Courts Act, 1971', 1990, p. 75, Madhya
Pradesh.
Constitutional Assembly Debates , 'v^ol. 10, p. 394.
" ' Id. ni 395.

190
flindamental rights was not just any law simplicities but as "reasonable law". At that
time freedom of speech and expression was not limited in the language of "reasonable
restriction" or it now.'''^ Indeed Bhargava's amendment was negative'"' even though
he (Bhargava), using the classic and graphic example that any law could means "law
that all blue eyed persons should be killed", warned the Constituent Assembly that the
Constitution as it then stood could not, and did not, provide adequate protection to
freedom of speech. He went on to argue that contempt of court was not really
germane to the subject of the freedom of speech and expression as it constituted "a
wrong motion or wrong conduct or attitude", and the courts were already empowered
to deal with contempt.

This approach contrasted sharply with that of R.K. Sidhva, who argued that
the amendment raised "a fundamental proposition that is being brought before this
House." '"* He continued:

We know, Sir, about the contempt of court, how the judges have been
exercising their powers in the past, as if they are infallible, as if they do not commit
any mistakes. Even third class Magistrates, first's class Magistrates and sub-judges
have been passing such structures which even High Court Judges have condoned
many a time. I would also like to state that the High Court Judges themselves sit as
prosecutors. They themselves want the judiciary and executive functions to be
separated. In cases of contempt of court, the High Court Judge is the prosecutor and
he himself sits and decides cases in which he himself has felt that contempt of court
has been committed. There are many cases before us. There are illustrations of two
cases, Mr. B. G. Homiman, the editor of "Sentinel" and Mr. Devadas Gandhi, Editor
of the "Hindustan Times". The Allahabad High Court passed strictures against the
very reasonable comments made by these two persons. They preferred to go to jail
and went to jail rather than they submit to the ex-parte decision of the High Court. I
cannot understand why my lawyer friends here are very lenient to the Judges. After
all. Judges have not got two horns; they are also human beings. They are liable to
commit mistakes, why should we show so which leniency to then? We must
safeguard the interests of the public. If a citizen by way of making a speech condemns

"^ Id. at p. 397.

" ' Id. at p. 403.
"^ Id. at p. 395.
'•"id. at p. 398.

191
the action of a third class magistrate or a fourth class magistrate who has passed
strictures upon the public, is he not entitled to make a speech and comment upon it. It
is unfair that in the matter of contempt of court, this clause is to be added. I strongly
resent it. It is very unfair that the citizen after having been given some rights, and
having been restricted by so many clauses, you want to further restrict it by inserting
"Contempt of Court". In contempt of court, we know when certain extraordinary
things happen; High Court Judges have some sort of power. Here, you give the power
right down from the magistrate up to the High Court Judges. Even there, I say the
High Court Judges are not infallible; they have also committed so many mistakes.
They do not want any comment to be made against a High Court Judge when
comment was necessary in the interests of the public life.

Sidhva obviously felt that the judges should not be overprotected and asked:
"why do you want to put the judge above everybody? You want to make him a Super
God?'^''

He also hinted that on the basis of his "past experience about contempt of
court, from the lowest to the highest judges have not been impartial." While
Naziruddin Ahmad argued that contempt laws ought to intrude on free speech because
a "trial in a case must be conducted in an atmosphere of calm without prejudice". B.
Das wondered why B.R. Ambedkar, who was described as Manu of this century, had
not thought of this before. '^' In a floweriest of language he said that the judges used
their powers to control the people and added:

I am not one who thinks very high of the judges particularly as they are trained
under the British tradition and they have misapplied justice and kept us down.
I have not read in any place of public utterances that the High Court judges or
other court judges or Magistrate in India have changed since August 1947 and
have a better realization of their functions and duties. If Dr. Ambedkar, ten
years hence on his retirement, writes a book on the vagaries of courts, about
contempt of court, he will see his particular partiality overnight to give certain
more powers to these magistrates and judges were not called for. It will be a
very wonderful book where many penniless lawyers became judges and

150
Id. at p. 399.
151
Id. at p. 401.

192
 regulated and controlled the affairs and rule of the alien Raj by the word
'contempt of court' and the chicken-hearted lawyers got frightened at then. '^^

"Contempt of Court" was seen as a judicial extension of British Imperialism.

This provoked a stem rebuke from the President who said that "individual judge...
May he err, but we should not cost aspersion on the judiciary as a whole".'" This it
demonstrated that no discussion was permitted on the frailties of the judicial system
as a whole. In the end, the words "contempt of court" was accepted as a restriction on
"freedom of speech".

4.4.1 Free Speech, Judiciary and the Law of Contempt of Court

Judiciary which is the sentinel on the qui vive of the ftindamental rights may at
times have to restrict the same in order to maintain rule of law. Rule of law, being the
fountain of democracy, dependents upon the free and fair administration of justice and
any undue interference whether verbal or non verbal is treated as contempt.
Constitutional guarantee of freedom of speech and expression does not permit any one
to commit contempt of court. Free and fair criticism of the judicial act motivated by
bonafied reasons has to be pennitted, but scurrilous attack on the judiciary motivated
by malafides has to be viewed seriously and should be restricted.'^'*

It is indeed a trite statement that free speech and independent judiciary are
institutions that are sine qua non for the maintenance of the Rule of Law. Nay there is
the very foundation of a democratic society. Both of these, therefore, need to be
jealously preserved and protected. The Judiciary, undoubtedly, is the arbiter of the
Rule of Law, because it is the courts that are constitutionally entrusted to decide
disputes between opposing parties, and thereby maintain the Supremacy of law.
Although the operational area of both are quite distinct and apart to a large extent, and
yet at times, these run into each other on the issue of contempt giving rise to a
situation of conflict and confusion. The requisite stimulus for this exercise has been
provided by a recently delivered judgement of the Supreme Court in Rajendra Sail v.
Mally a Pradesh High Court Bar Association and others }^^

'- Id. at p. 400.

"" Id. at p. 401.
''-'
'^'' K. Balasankaran
Balasanka Nair, 'Contempt of Court as a Limitations on Individuals Fieedom of Speech and
Expression: A Study of Judicial Appioaciv, Kerala University Journal of Legal Studies, 1998, p. 79.
' " A I R 2005 SC2473

193
 In Rajendra Sail, the editor, printer and publisher, and a reporter of a
newspaper, along with the petitioner who was a labour union activist, were summarily
punished and sent to suffer a six months imprisonment by the High Court. Their fault
that on the basis of a report filed by a trainee correspondent, they published
dramatically remarks against the Judges of a High Court made by a union activist at a
rally of workers. The remarks to the effect, that the decision given by the High Court
was rubbish and fit to be thrown into a dustbin'. Although the publication of a news
item was a factually correct version of the speech delivered by the union activist,
nevertheless the editor, printer and publisher, and the reporter were held liable for
contempt of the High Court. Accordingly, all of them were convicted and sentenced
to six months imprisonment. On appeal, the Supreme Court upheld the contempt
against them, but dramatically modified and reduced the sentence. The Apex Court
accepted the unconditional apology tendered by the editor, printer and publisher, and
the reporter, and thereby discharged them of contempt of court; whereas the sentence
of imprisonment awarded to the union activist was reduced to one week.

The interesting feature of the case is that though the Supreme Court rendered
the decision in the light of the already 'well settled' principles relating to the law of
contempt the principles that were already in the knowledge of the High Court,
nevertheless, the eventual decision of the Supreme Court in tenns of the punishment
given is drastically different from the one given by the High Court. Does it mean that
the well settled principles governing contempt of courts are not yet so settled? Or, is
this an arena of absolute discretion, implying that the variation in eventual decision-
making is the inherent weakness of the common law tradition where the living law
emanates as a result of court decision? In an analysis of quite a few related judicial
decisions it has been found that the various principles expounding the contempt law
arc found scattered in numerous judicial decisions with varying emphasis. And, a
coherent text-book approach, giving a rounded view of the subject of contempt law
with a thematic unity, is conspicuous by its absence. ^

It is both legal and logical to state that the freedom of speech and expression is
as wide as the freedom of individual citizens. However, in a civil society no right to
freedom, howsoever invaluable it might be, can be always considered absolute.

Vireiidci' Kumar, 'l-rec Press and Independent Judiciary: Their Juxlaposilion in (lie Law of
Conlempi o r C o m l s ' , Journal oi'llie Indian Law Instilule, Vol. 47, 2005, p. 448.

194
unlimited, or unqualified in all circumstances. The sweep of all rights or ft-eedoms is,
therefore, always controlled and regulated so that the like rights or freedoms of others
are not Jeopardized Realizing the truth of this fact of social life-the constitution of
India-envisages the regulation of fundamental Rights to freedom of speech and
expression of all citizens, including the press, under Article 19(l)(a) by imposing
reasonable restrictions under clause (2) of the same Article vis-a-vis judiciary, the
restrictive clause specifically states that such freedom is subject to the law made by
the state "in relafion to contempt of Court".'" A similar provision is found in Article
19 of the International covenant on Civil and Political Rights, 1966, to which India is
a signatory and had ratified the same. It provides that every one shall have the right to
freedom of expression, to receive and impart information and ideas of all kinds.
However, clause (3) of the same article makes these rights subject to certain
restrictions, which shall only be such as are provided by law and are necessary for the
respect of life and reputation of others for the protection of national security or public
order or of public health or morality.

A mere glance at this statutory exposition shows that the contempt law is a
very powerful instrument in the hands of judiciary. Its singular purpose is to protect
and preserve the majesty of law and the dignity and independence of judiciary, which
is otherwise so expressly guaranteed by the Constitution itself The founding fathers
of the constitution engrafted Article 121 and 211 and thereby prohibited the
Parliament and the legislature to discuss on the floor of the house the conduct of any
judge of the Supreme Court or the High Court in the discharge of his duties. Any
discussion on the aberration of conduct of a judge can be held only upon a motion for
presenting an address to the President praying for remove of the Judge under Article
124(4) of the constitution in accordance with the procedure prescribed under the
judges (inquiry) Act, 1968 and the rules made there under. By implication. No one
else has the power to accuse a judge of his misbehavior, partiality or incapacity.'^^
The purpose of such a protection is to ensure independence of judiciary so that the
Judges could decide cases without fear or favour. If any person dares to discuss the
conduct of a judge in a manner that brings the administration of justice into disrepute,
he would be liable for contempt of court under the law.

' " i d . at p. 449.

'^^ Supra note 136.
''''Dr. D C . Saxena V. Hon'ble the Chief .IiLstice of India, AIR 1996 SC 2481 at 2501.

195
 The Parliament, while enacting the Contempt of Courts Act, 1971, has clearly
carved out contain exceptions to the exercise of the power of contempt. Section 3 of
the Act takes a person out of the purview of contempt law if he has published any
matter which interferes or tends to interfere the course of justice in connection with
any civil or criminal proceedings provided at the time of publication he had no
reasonable grounds for believing that proceedings are pending. In other words, want
of knowledge of criminal whether pending or imminent would be complete defense to
a person accused of contempt on the ground that he has published any matter
calculated to interfere with the course of justice in connection with such proceedings.
Under Section 4, fair and accurate reporting of judicial proceedings is not contempt.
Similarly, by virtue of section 5, even fair criticism of judicial act is not to be
considered contempt.'^°

Carrying out exceptions to contempt law shows the clear legislature intent: the
prime purpose of enactment is to limit the scope and sweep of the contempt law rather
than enlarging it. In fact, the principal objective of the parliament in enacting the Act
of 1971 is to "define and limit the power of certain courts, in punishing contempt of
courts and to regulate their procedure in relation thereto." '^' The Apex Court has
captured this objective spirit of the enactment, when Sabharwal J. (as he then was)
issued a call to the judges. '

"A question whether there is contempt of court or not is a serious one. The
court is both the accuser as well as the judge of the accusation. The court has
to act therefore with a great circumspection. It is only when a clear case of
contemptuous conducts not explainable otherwise arises then the contemnor
must be punished."

The analysis of the decision of the Apex Court reveals that the rigor of
contempt law has been remarkably reduced by developing certain juristic principles
and practices. In this respect, there are at least three sets of principles and practices
that are in consonance with the legislature intent.

"•^ Supra note 156, pp. 454-455.

The Act of 1971 replaces and repeals the Contempt of Courts Act, 1952.
""" Supra note 155 at 2480 (para 25).

196
 The first set of juristic principles and practices revolves around the holding of
the apex court to the effect that the jurisdiction of the court for initiating contempt
proceedings in terms of the procession of the contempt of courts Act is quasi-criminal.
As such the standard of proof required is that of a criminal proceedings and the breach
shall have to be established 'beyond reasonable doubt'. In this respect, the Supreme
Court in Mrityunjoy Das^^^ cited the observation of Lord Denning:

"While expand reasonable doubt': It is not proved by showing that, when the
man was asked about it, he told lies. There must be some further evidence to
incriminate him. Once some evidence is given, then his lies can be thrown
into the scale against him. But there must be some other evidence ... where
there are two equally consistent possibilities open to the court, it is not right to
hold that the offence is proved beyond reasonable doubt".

The first judicial strategy is to distinguish 'contempt' from 'libel'. Contempt

is a public wrong, having 'an adverse effect on the due administration of justice by
'undemiining the confidence of the public in judiciary', ^^ whereas, 'liberal', which is
an illegal act of writings things about someone that are not true, is a personal injury.
The test, if an act of criticism is simply 'libel' or constitutes 'contempt' is, "whether
the impugned publication is a mere defamatory attack on the judge or whether it is
calculated to interfere with the due course of justice or the proper administration of
law by his court".'^^ "It is only the latter case that will be punishable as contempt".
In other words, that is 'alternatively', the test will be whether the wrong is done to the
judge personally or it is done to the public. In case of 'libel', one has to bring a suit
and prove the charge, whereas in the case of contempt, it is the public institution,
namely the court, that initiates proceedings and the contemner is punished summarily
even without proof of the actual injury, if the disparaging remarks are likely to
interfere with the due administration of law.

The second judicial strategy for restricting court form holding people for its
contempt is by differentiating the judge from his judgment. The judgments, and not

""' Miityuiijoy Das and anotlier v. Sayed Ha.sibui- Rahman and Others, AIR 2001 SC 1293.
"'•'Supra nole 155 at 2448 (para 16) citing Shri C.K. Daphtaryand Others v. Shri O.P. Gupta and
Others, AIR 1971 SC 1132.
"" Id., at p. 2478 (para 9) citing perspective Publications Pvt. Ltd. and another v. The State of
Maharashtra, AIR 1971 SC2211.

197
the judges, are subject to public criticism. It is always open to public scrutiny and
criticism, Sabharwal J. (as he then was) unequivocally states:'^"^

Undoubtedly, the judgments are open to criticism. No criticism of a judgment,

however rigorous, can amount to contempt of court, provided it is kept within
the limits of reasonable courtesy and good faith. Fair and reasonable criticism
of a judgment which is a public document or which is a public act of a judge
concerned with administration of justice would not constitute contempt. Such
a criticism may fairly assent that the judgment is incorrect or an error has been
committed both with regard to law or established facts.

The third judicial strategy to reduce the rigor of the contempt proceedings is
by holding that the criticism made in 'good faith' and 'public good', that is without
malice or ill-will does not amount to contempt of court. For this proposition,
Sabharwal J. (as he then was) cites the authority of a three judge bench of the
Supreme Court in re. Roslian Lai Ahuja,^^^ which holds that fair comments, even if
outspoken, but made without any malice or attempting to impair the administration of
justice and made in good faith in proper language do not attract any punishment for
contempt of court. The ambit of the contempt law further limited by the observation
of the apex court in the Arundhati Roy^ to the effect that the criticism of the conduct
of a judge, the institution of judiciary, and its fijnctioning may not amount to
contempt of it is made in 'good faith' and in 'public interest'. However, for
deciphering the presence of these two doctrines, the apex court has suggested that the
courts dealing with the issue of contempt should consider "all the surrounding
circumstances", including (a) the person responsible for comments; (b) his knowledge
in the field regarding which the comments are made; and (c ) the intended purpose
sought to be achieved. This implies that ail the persons cannot be pemiitted to
comment upon the conduct of the courts in the name of fair criticism..." holds the
Supreme Court assertively. "'^ The reason for this assertion is: "if criticism is
pemiitted to everybody I the name of fair criticism, it would destroy the institution of
courts itself. This reality is instanced by the Supreme Court: Litigants losing in the
court would be the first to impute motives to the judges and the institution in the name

"'' Id. at p. 2484 (paia 43).

' " Re, Roshan Lai AIniia, 1993 Supp. (4) SCC 446.
"•" Supra note 142.
'^" ib,d.

198
of fair criticism, which cannot be allowing for preserving the public faith in an
important pillar of democratic set up, that is judiciary.

The second set of juristic principles and practices that has the effect of cutting
down the contempt proceedings relates, not to the construction of 'contempt' but, to
the consequences of contempt in terms of punishment. On this court Section 12 of the
Act of 1971 specifically provides that "a contempt of court may be punished with
simple imprisonment for a term which may extend to six months, or with fine which
may extend to two thousand rupees, or with both". To this procession is engrafted a
proviso, which entitles the contempt court either to discharge the accused by
cancelling the court's order for initiating contempt proceedings, or "the punishment
awarded may be remitted on apology being made to the satisfaction of the court". On
the basis of simple construction of this provision, it is evident that the court's decision
is holding a person guilty of contempt may be reviewed in the light of the justification
offered by the accused. If the court is satisfied, it may instantly cancel its order,
discharging the accused.'™

4.4.2 Freedom of Speech and Contempt of Court

It is, however, quite clear, that the exercise of such a power by the courts
comes in conflict with the citizens fundamental right to fi-eedom of speech and
expression. This fi-eedom is not only the basis of a democratic form of Government
but is also essential for a complete and meaningful development of human mind. But
the great social interest that lies in the unobstructed and un-interfered administration
of justice provides justification for the restriction that this branches of the law of
contempt imposes on the freedom of speech and expression, subject, of course, to
meeting the express constitutional requirement of reasonableness of any such
restriction. Both the values of freedom of speech and expression and fair and impartial
administration of jusfice are, thus, held very high by our constitution and neither is
permitted to be sacrificed for the other. In all cases of conflict between the two, a
proper balance has, therefore, to be struck by the courts.'^'

It is of great significance to mention that the Supreme Court, revising a High

Court decision in which a magistrate had been held guilty of contempt, has held that

''° .Supra note I 56 at p. 459

''' IS. Ishar, 'I'leedoin of Speech and Contempt by Interfering with the due Adinini.stration of Justice'
Journal of the i3ar Council of India, Vol. 8, 1981 p. 330.

199
in the absence of mens rea the contemnor was at the most guilty of a technical
contempt not calling for a penal action.'^^ The Supreme Court rule that so long as a
judicial officer, in the discharge of his official duties, acts in good faith and without
any motive to defeat, obstruct, or interfere with the due course of justice, the courts
will not as a rule punish him for contempt. In arriving at this decision Sarkaria J.,
who spoke for the bench, relied on an earlier Supreme Court Judgment '^^ in which
the court had refused to uphold an action for contempt for the delay in the
transmission of the order of the court of Sessions, which in a way had defeated the
order. There was no intention to so frustrate the orders of the session's court and the
Supreme Court held that the punishment under the law of contempt was called for
when the lapse was deliberate and in disregard of one's duty and in defiance of
authority.

To curb, in the name of the contempt of court, such publications which

legitimately discuss matters of general public interest and only incidentally and
unintentionally create a risk of prejudice to particular proceedings, does appear to be
an unwarranted and unreasonable restriction on the freedom of speech and
expression.'^'' There are cases in which the possibility of prejudice to a litigant may
be required to yield to other and superior considerations of freedom to discuss matters
of general public concern. One such example, it is submitted, was the case'^^ in which
Mr. P.C. Sen, the then Chief Minister of West Bengal, was held guilty of contempt of
court. When the petitions challenging the constitutional validity of the West Bengal
Milk Products control order were pending before the Calcutta High Court, the Chief
Minister gave a broadcast talk in which he discussed the implications of the impugned
control order and its impact on sweetshops. He extolled the virtues of that legislation
as a sort of boon to the public and as putting down adulteration and anti social
elements. The Chief Minister was held guilty of contempt of court on the ground that
his speech was calculated to interfere with the due course of justice as it was likely to
create atmosphere of prejudice against the petitioner and also deter other persons from
making similar claims before the court. It is important to note that certain persons had
started a public propaganda with the object of criticizing and ridiculing the policy of

''- Abdul Karim v. M.P. Prakasli, AIR 1976, SC 859.

'_" Debabrata Baiidophadhay v. State, AIR 1969, SC 189.
Philliniore Committee Report on Contempt of Couit, 1974.
" Supra note 109.

200
the State Government in promulgating the control order. As a result of this, certain
sections of the public were misled about the object, purpose and nature of the order
and the consequences thereof Taking advantage of the situation attempts were made
by some political parties to commence a political agitation against the state
government for having promulgated the order. It was contended on behalf of the Chief
Minster that is his sole and only intention and purpose in making the speech was to
remove the confusion and to allay the fears ai'oused in the minds of the people. The
Chief Minister, it was argued, had no intention whatsoever of either showing any
disrespect to the court or interfering in any manner with the due course of justice, nor
did he anticipate that his speech could have any such effect. But all this did not find
any weight with the court as it was of the view that in such cases 'the question is not

so much of the intention of the contemner as whether it (the speech) is calculated to

interfere with the administration of justice.

A very forceful exposition of this view is found is in a unanimous full bench

decision of the Delhi High Court,'^^ where it was observed that the right to discuss
being inalienable and the very essence of a free and democratic society, a matter of
great national importance which agitates vast sections of the population was bound to
be discussed in press and on other plate forms. The public discussion of that matter
cannot necessarily be stifled because of the filing of a suit by an individual in a court
of law about the matter of national importance. To hold otherwise would, according to
the High Court,'^^ allowed full freedom to a commentator to comment on a matter of
national importance, notwithstanding that a suit involving that matter is pending in a
court of law.

In this context, matter important change introduced in the Indian contempt law
is the provisions'^*^ that no publisher of an alleged contumacious matter shall be guilty
of contempt, if, at the time of publication of that matter he had no reasonable grounds
for believing that the proceedings was pending. In a vast country like India, where
people in one part of the country are not likely to be aware of the proceedings pending
in another part of the country, it would completely stifie the freedom of speech if want

" S u p r a note 171, pp^ 332-333.

" ' D . N . Singh V. A.K. Sen, (1971) (1)1 L R Delhi, 14^
"^ Id., at p. 24.
" ' Section 3(1) of llie contempt of Coiiits Act, 1971.

201
of knowledge of pending proceeding were not to afford a complete defiance to a
person accused of contempt of court. But once there was as of fact a pending
proceeding, the burden is on the alleged contemnor to show that he had good reasons
for believing that there was no pending proceeding. He must put forward such
reasonable grounds as world satisfy reasonable man as to his belief.

This explanation to Section 3, however, needs to be reconsidered at least on

one count. It lays down that a proceeding shall be deemed to be pending "until it is
heard and finally decided, that is to say, in a case where an appeal or revision is
competent, until the appeal or revision in heard or finally decided or, where no appeal
or revision is preferred, until the period of limitation prescribed for such appeal or
revision has expired." This in the present, Indian conditions where there are enonnous
delays involved in the disposal of cases in the courts, at all levels, original or
appellate, may amount to restraining comment for too long at time. At times when
matters of general concern and interest are involved in the litigation, it may not do
good to the public interest of there is no public discussion of these matters till appeals
in that case are decided by the highest appellate court in the country. It could be very
well argued in such cases that freedom of speech is being reasonably curtailed.'*"

It is no doubt essential to the preservation of the rights of every individual that

administration of justice is of destructed or prevented. Any abuse, interference or
obstruction of the administration of justice has therefore, to be necessarily checked.
But in the enthusiasm to strive, through the exercise of the contempt jurisdiction, for a
fair and impractical administration of justice, it is not to be lost right of the contempt
law affects, sometimes very seriously, the citizens fundamental rights to freedom of
speech. This freedom is a necessary pre-requisite for the democratic way of life
envisaged under the Indian Constitution and should always prevail except where
interference with justice is substantial and mischievous."*'

4.4.3 Freedom of Expression and Contempt of Court

All citizens have the right to freedom of speech and expression with
reasonable restrictions. It is. Governor, not absolute, but is subject to the power of the
state to impose reasonable restrictions in the interest of the sovereignty and integrity

Supra note 171 al p. 335.

'^' Id. at p. 33r5.

202
 of India, the security of the state, friendly relation with foreign states, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to
an offence. Thus a restriction can be imposed on this freedom in relation to contempt
of court, but such restriction has to be reasonable.

The need to impose restrictions on the freedom of speech and expression in

relation contempt of court arises from the following interests that have to be
subserviced.'^^

(a) The judiciary should not be designated because people will lose faith in it and
ultimately this will erode its social legitimacy;
(b) Judicial decision must not be allowed to be flouted, because it will weaken the
credibility of the judiciary; and
(c) Judges must be protected from blackmail, personal character assassination or
ridicule which is arising out of their judicial office. If this is allowed, the
judges will get demoralized.

As Against this, there are the following Interests subs served by the criticism
by the judicial process:

(a) Judicial process is a decision making process and in democratic society, it is

the part of the political process. The courts are entrusted with the power of making
decision on matters of policy, such as what is the basic structure of the constitution or
what are reasonable restrictions on freedoms guaranteed by bills of rights and,
therefore, there should be free discussion about judicial policy and Judicial
procedures, public faith n the judicial process will argument and not dimsh by such
de-mystification of the judicial process. Judicial decisions and procedures as well as
the institutional role of judiciary must be continuously under public gaze and subject
to social audit;
(b) Judges cannot invoke the law of contempt for their own personal protection.
The law of contempt must protect only the institution. But criticism or allegations
against judges with a view to bullying them or intimidating than could prove
disastrous to the independence of the judiciary. Therefore, a judge ought not to be

'*" S.P. Saihe. 'Freedom of Speech and Contempt of Court', The Lawyers, Nov. 1988, p. 17.
"^•' I b i d

203
criticized for his judicial decision. His decisions could be criticized, but not his
motives. Such protection however remains confined strictly to his judicial work.

The power of the courts to punish for contempt is an essenfial judicial weapon
to prevent interference with the administration of justice. However, it may at times
conflict with freedom of speech which is a coveted fundamental right. This conflict
has to be resolved in such a way as to protect administration of justice at minimum
sacrifice offt-eedomof speech. But in E.M.S Namboodiripad v. T.N. Nambiar the
Supreme Court of India has failed to strike a balance between the competing demands
185
of freedom of speech and fair administration of justice.
Mr. Namboodiripad, while he was Chief Minister of Kerala, has said in a press
conference was a mere criticism of the institution of judiciary from the standpoint of
the class theory of Marx. He had described the judiciaiy as "an instrument of
oppression" and the judges as "dominated by class hatered, class prejudices,
instinctively favoring the rich against the poor". The Judiciary, in his opinion, worked
against workers, peasants and other sections of the working class. The Kerala High
Court held him guilty of contempt of court and sentenced a fine of Rs. 1000/- or
simple imprisonment for one month in default.'^^'

The criticism by the contemnor was not of any individual judge. It was
directed against the judiciary as a whole. Further the object of the petitioner was to
educate the masses in the tenets of Marx and Engels and not to scandalize judges and
he is doing so in pursuance of the guaranteed right of freedom of speech under Article
19 of the Constitution of India.'"

When Namboodiripad appealed against this decision to the Supreme Court,

the Supreme Court upheld the decision against him then it reduced the sentence. The
arguments in his defense were that:''***

(i) his observations did no more than give expression to the Marxist philosophy
and what was contained in the programme of his party, i.e. the CPI(M)
programme adopted in Nov., 1964;

""(1970)2 s e c 325.
S.P. Sathe, 'Freedom of Speech and Contempt of Court', Economic and Political Weekly Vol 5
Oct. 1970, p. 1741. ^'
IS6
Supra note 182, at p. 18.
^^^ G.C. V. Subba Rao, 'Contempt of Court Act 1971", 1974, p. 232.
Supi-a note 185.

204
(li) they contained a fair criticism of the system of judicial administration;
(ni) they did not contain criticism of any particular judge or his judgement or
conduct;
(iv) he had always enforced the judgments of the courts, and had never shown
disrespect to the judiciary, but had in fact advocated the independence of the
judiciary;
(v) the laws of contempt ought to be interpreted so as to cause no encroachment
upon the freedom of speech guaranteed by Article 19(l)(a) of the Constitution;
(vi) the alleged harm done to the courts by his utterances was not apparent.

This decision, in our submission, was wrong. No attempt was made in the
judgment to show the reasonable of such a draconian scope of the contempt power.
The judgment merely mentions that restriction could be imposed on freedom of
speech and expression in relation to contempt of court. But if Article 19(2) is read
carefully, it is not enough that such a restriction should be in relation to contempt of
court. It is also necessary that such a restriction should be a reasonable restriction.

Later in M.R. Parashar v. Farooq Abdullah,^^^ the Supreme Court dealt with
a contempt complaint against the Chief Minister of Jammu and Kashmir, Mr. Farooq
Abdullah. Dr. Farooq Abdullah had made a speech containing allegations against the
judiciary. He had been reported to have said that justice was being bought in courts.
He further said that he would not accept any stay orders. The Chief Minister was
acquitted, but on the ground that the charge was not proved.

It is submitted that of such criticism of the judicial system were to constitute

the offence of contempt, many eminent judges themselves would have to be
convicted. Did Chief Justice Bhagwati not say that our system of justice was on the
verge of collapse? Can we suppress the expression of truth in the name of contempt
of court? Is it on the interest of the judiciary to suppress such expression but allow
them to simmer in the minds of the people? Will open expression and it is
investigation or rebuttal not enhance the image of the judiciary? Chief Justice
Chandrachud was not obvious to such considerations when he observed:

'^^ AIR 1984 SC 615.

' ^ Supra note 182. pp 18-19.

205
 "The reluctance of courts to resort to the provisions of the contempt of courts
Act springs from their regard for the rule of law.... True, that it acts in order to uphold
the authority of law and not defense of this or that particular judge. But an order
punishing a person for such contempt is likely to create the impression more so in the
mind of lay observers that the judges have acted in defense of themselves Courts do
not like to create such an impression even unwillingly. Secondly, the right of free
speech is an important right of the citizen, in the exercise of which he is entitled to
bring to the notice of the public at large the infirmities from which any, institution
suffers, including, institutions which administer justice. Justice, indeed, the right to
offer healthy and constructive criticism which is fair in spirit must be left unimpaired
in the interest of public institutions themselves.... Course does not like to assure the
positive that they are above criticism and that their flinctioning needs no
improvement."

This passage clearly makes a departure from the view held in Namboodripad.
In P.N. Duda v. P. Shiv ShankarJ'^^ the Supreme Court acquitted Mr. P. Shiv
Shankar, who was minister for law and justice in the cabinet at the time of his
prosecution for the offence of contempt of court. The speech for which Shiv Shankar
had been prosecuted was very much similar to that for which Namboodiripad had
been convicted. But in the judgement of Justice Sabyasachi Mukherji, the following
points emerge:' ^

(i) Administration of Justice and Judges are open to public criticism and public
scrutiny. Judges have their accountability to the society;
(ii) any criticism about the Judicial system of the Judges which hampers the
administration of justice or which erodes the faith in the objective approach of
judges and brings administration of justice into ridicule must be prevented;
(iii) judgments can be criticized. The motives of the judges need not be attributed;
and
(iv) in the free market place of ideas, criticism about the judicial system of judges
should be welcomed so long as such criticisms do not impair or hamper the
administration of justice."

' " ' A I R 1988 S C 1208.

" Supia note 182 al p. 19.

206
 It is submitted that the Supreme Court should have clearly overruled the
Namboodiripad decision. The learned Sabyasachi Mukherji J. was right in saying
that:'^^

"Such fair and reasonable criticism must be encouraged because after all no
one, much less Judges, can claim infallibility. Such a criticism may fairly assert that
the judgment is incorrect or an error has been committed both with regard to law or
established facts."

Well-known writer and activist Arundhati Roy was given a token punishment
for a day for contempt of court, because she wrote against the Judgment in the Sardar
Sarover Dam case by the Supreme Court. The court declared that the punishment was
of one day because Roy is a woman. The sentence is reminiscent of a rap on the
Knuckles of a writer for daring to speak her mind. It is though the court wanted to
say, "Let all writers! The court is above any criticisms". One wonders what the
punishment would have been if the writer had been a male.' ''

Arundhati Roy was not a party to the case in question; she merely exercised
her right as a citizen of a democracy to voice her opinion of the judgment. The issue
is not about the Sardar Sarover Project. Discerning individuals would already have
formed their own conclusion about the rightness of the project, based on mounting
evidence that large dams do not automatically imply prosperity. The issue is about
freedom of speech and the spirit of tolerance. Vast number of people including this
writer, led in protest when the Supreme Court passed a judginent in favour of the
Sardar Sarover Project. The judgment was seen to be a victory for the privileged and a
future setback for the poor villagers living on bud submerged by the Sardar Sarover
lake.'^^

Arundhati appeared and defended what she said in her affidavit. She asserted
that as a citizen of India she had a right to criticize the decision of the Supreme Court,
this being part of her fundamental right to freedom of speech. She had absolutely no
intention to commit contempt of the court and what she said did not amount to
contempt. The court held her guilty of contempt and sentenced her to one day's

' "" Sangeeta Mall. Mudeemenl Day', Mainstream. June 2002, p, 24.
ibid.

207
imprisonment and a fine of Rs. 2,000 failing to pay which she would have to undergo
three months imprisonment. Arundhati Roy was sent to Tihar Jail. She spent a day
196
there and came out after paying Rs, 2,000.
Arundhati Roy's conviction and punishment for contempt shows that despite
its doctrinal activism on human rights, the Supreme Court of India is still way behind
the times in balancing freedom of speech and contempt of court. Action against
Arundhati must be seen in the context of the decision of the Supreme Court in
Narmada Bachaol Andolan v. Union oflndiaj^^ (Hereinafter we shall call this case
the NBA contempt case) in which the court permitted the concerned state
goverrunents to raise the heights of the Sardar Sarovar Dam. That decision came in
1998 after the work on the dam had remained stayed on the court's order since 1994.
It came as a great disappointment to NBA and its sympathizers because a rise in the
height of the dam meant submergence of more villages and displacement of thousands
of more people from their homes, since even these displaced earlier had not been
adequately rehabilitated. Medha Patekar, the leader and Arundhati Roy, a booker
award winner and sympathizer of NBA, criticized the judginent. They were served a
notice for contempt. The judges were doubtless offended by Roy's sarcastic
references to them in her Article in a news magazine but decided to drop the matter
after giving an admission.'"^^

NBA organized a 'dhama' in front of the Supreme Court and in a meeting held
there the decision of the court was severely criticized. A complaint was made against
Medha Patekar, advocate Prashant Bhushan and Arundhati Roy by some lawyers
alleging contempt of court and the court issued a notice asking why they should not
be punished. All these respondents denied that they had committed any contempt and
asserted that they had a right to criticize the judiciary and its decision in exercise of
their freedom of speech guaranteed by the constitution. When that matter was heard it
was revealed that the petitions were frivolous, they suffered from various procedural
flows, and more of the charges made against any of the three respondents could be
proved. The three persons were therefore an acquitted: '^"^

S.P. Satlie, 'Accountability of the Supreme Court: Arundhati Roy case', Economic and Political
Weekly. Vol. 37, April 2002. p. 1383.
'"(2000) 10 s e c 664.
"*'Supra note 196 at p. 1383.
I'''' lU J

ibid.
208
 The entire proceedings show how embarrassed the court was in dealing with
this matter, particularly when the persons accused of contempt refused to admit that
they had committed any contempt but visited that they had a right to criticize and
show their disapproval of a decision given by the court. This was their fundamental
right under Article 19(l)(a) of the Constitution. They further said that they would
accept any punishment rather than apologies. It was a moral challenge to the court by
a person (Medha Parkar) for whom punishment for imprisonment for a few months
would have made no difference. Similarly, for the other respondent too, the
punishment would have caused physical suffering but they were ready to bear it.
Where fear of punishment goes and one is willing to suffer, the deterrence of the
punishment vanishes. If the court had punished them, they would have gone up in
public esteem and to that extent the court would have suffered so erosion of its public
esteem.^*^*^

Enthusiastic use of the power to punish for contempt, conflicts with two vitals
principles which are universally recognized in international human rights instruments
the right to fair trial and the right to freedom of speech and expression. Article 14(1)
of the international covenant on Civil and Political Rights, 1966 guarantees a fair and
public hearing by competent, independent and impartial tribunals and reminds that a
criminal defendant has an express right to defend himself through a legal
representative of choice. But there can be no fair hearing and legal representation
cannot be effective unless a party's advocate is free to advance all arguments and lead
admissible evidence that can reasonably be said to support the client's case, lawyers
are often put in a situation where they feel that unless they give away their rights to
free speech they would not be heard. It is recognized that lawyers must have this
freedom.^°'

The Government of India has been struggling to strike a balance between the
Constitutional rights of its citizens and the enactments of laws restricting these rights.
The problem faced in achieving this balance is that the Constitution has various built-
in-paradoxes. On one hand the Constitution guarantees the right of freedom of speech

'°° S.P. Sathe, 'NBA Conienipt of Court Case', Economic and Political Weekly, Vol. 36, Nov. 2001, p.
4339.
"'" Smiiti Mehta, 'Equilibrate: Contempt Law and Freedom of Speech', Cri. I. .1. 2007. p. 119.

209
and on the other hand it allows the parliament to pass any law against subversion,
actions prejudicial to public order etc.

4.5 Constitutional Provisions Relating to the Contempt of Court

4.5.1 Contempt is an Inherent Power of Every Court of Record

The power to punish for contempt is an inherent power of court of record. It

has been described as "a necessary incident to every court of Justice". This power is
recognized and has been given a fundamental status by the Constitution of India.
Certain tribunals, which do not enjoy the status of courts or record, have also
statutorily been conferred this jurisdiction.

In the early case ofSukhdev Singh Sodhi, ^"^ Justice V ivian Bose had tried to
trace the history of the contempt jurisprudence in India, locating the earliest statutory
provision in clause 4 of the Charter of 1774 which stated that the Supreme Court of
Bengal would have the same jurisdiction as the court of King's Bench in England,
accompanied by a power to punish for contempt. At common law, the position was
clear that a Superior Court of Record had the inherent power to punish for contempt
and this was the consistent position of the policy council as well. '' Justice Bose
observed: ^°^

"This recognizes and existing jurisdiction in all letters Patent High Courts to
punish for contempt's of themselves, and the only limitation placed on those
powers is the amount of punishment which they could thereafter inflict. It is
to be noted that the Act draws no destruction between one Letters Patent High
Court and another though it does distinguish between letters patent High Court
and Chief Courts also, as the Act is intended to remove doubts about the High
court's power it is evident that it would have confeired those powers had here
been any doubt about the High Court's power to commit for contempt of
themselves. The only doubt with which the act deals is the doubt whether a
High Court could punish for contempt of a court subordinate to it. That

;"- ibid.
Sukhdev Singh Sodhi v. The Chief Justice and .ludges ot'lhc I'epsu lligii Court. (1954) SCR 454.
Justice Bose traces the genesis of the principle by relying on the principles of British Coinnion Law
as enuciated in Belchamber's practice of the civil court (1884) and the llailshani Kditon of
Halbury's Law of England.
Supra note 203.

210
 doubts the act Removed. It also limited the amount of punishment which a
High Court could inflict".

This recognizes an existing power in all Letters Patent High Courts other than
the chartered High Courts other than chartered High Courts could not have derived
this power from the common law, it is evident, that the power must have been
inherent in them because they were court of record.^*'^

This power that was considered intrinsic in these courts was continued by
virtue of Section 106 of the Government of India Act, 1915, until the Government of
India Act, 1935 which referred to the High Court's as courts of Record in Section 220
and created the Federal Court with similar powers in Section 203. With the coming of
the Constitution, Articles 129 and 215 continued the declaration of the superior
Courts as courts of Record with the power to punish for contempt.^°^

Articles 129 and 215 of the Constitution provider that the Supreme Court and
each of the High Court shall be a "Court of record and shall have all the powers of
such a court including the power to punish for contempt of itself" Additionally,
Article 142((2) provides that the Supreme Court shall have the power to make orders
for the investigation or punishment of any contempt of itself While Article 142(2) is
expressly made subject t the provisions of any law that may be made by parliament in
this behalf, Articles 129 and 215 are not. In addition, article 19(2) allows contempt to
be a ground on which the state may reasonably restrict the exercise of the freedom of
speech and expression under Article 19(1) (a).

The expression "court of record" is not defined in the Constitution or in any

law. The historical meaning of a court of record is a court where acts and judicial
proceedings are preserved for perpetual memorial and testimony. In Delhi Judicial
Service Association, ^"^ the Supreme Court observed:

"Article 129 provides that the Supreme Court shall be a court of record and
shall have all the powers of such a court including the power to punish for

-"'' Id., pp. 459-460.

""' Mowever, botli Articles 19(2) and 142(2) recognized the fact that free speech and tlie powers of the
Supieme Court to make oiders in relation to investigation or punishment of contempt would be
subject to law that was enacted.
""'' 'Restatement of Indian I,aw, Contempt of Court', Supreme Court Project Committee on
Restatement of Indian Law, Indian Law Institute, New Delhi, 2011, p. 6.
""•' Delhi .ludicial Service Association v. State of Gujarat ,( 1991)4 SSC 406 (Para 19-21).

211
 contempt of itself. Article 215 contains similar provisions in respect of High
Court. Both the Supreme Court as well as High Court is court of record
having powers to punish for contempt including the power to punish for
contempt of itself The constitution does not define "Court of Record". This
expression is well recognized in judicial world. In England a superior court of
record has been exercising power to indict a person for the contempt of its
authority and also for the contempt of its subordinate and inferior courts in a
summary manner without the aid and assistance of jury. This power was
considered as a necessary attribute of a superior court of record under Anglo-
Saxon system of Jurisprudence In India, the courts have followed the
English practice in holding that a court of record has power of summarily
punishing contempt of it as well as of subordinate courts. In Surendranath
Banerjee v. Chief Justice and Judges of High Court, at the Fort Willian in
Bengal, the High Court of Calcutta in 1883 convicted Surendranath Banerjee,
who was editor and proprietor of weekly newspaper for contempt of court and
sentence him to imprisonment for two months for publishing libel reflection
upon a judge in his judicial capacity. On appeal the Privy Council upheld the
order of the High Court and observed that High Courts in Indian Presidencies
were superior courts of record, and the powers of the High Court as Superior
Courts in India are the same as in England. The Privy Council further held that
by common law every court of record was the sole and exclusive judge of
what amounts to a contempt of court. In Sukhdev Singh Sodhi case this
court considered the origin, history and development of the concept of
inherent jurisdiction of a court of record in India. The court after considering
Privy Council and High Court's decision held that the High Court being a
court of record has inherent power to punish for contempt of subordinate
courts. The court further held that even after the codification of the law of
contempt in India the High Court's Jurisdiction as a court of record to initiate
proceedings and take seisn of the matter remained in effected by the contempt
of courts Act. 1926.

(1882-83) 10 Ind. App. 171 (PC).

Supia note 203.

212
 Similarly, in Supreme Court Bar Association^^^ the Supreme Court observed:

The expression court of record has not been defined in the constitution of
India. Article 129 however, declares the Supreme Court to be a court of
record, while Art. 215 declare a High Court also to be a court of record.

A court of record is a court, the records of which are admitted to be of

evidentiary value and is not to be questioned when produced before any court. The
power that courts of record enjoy to punish for contempt is a part of their inherent
jurisdiction and is essential to enable the courts to administer justice according to law
in a regular, orderly and effective manner and to upheld the majority of law and
prevent interference in the due administration of justice. Every court of record has
certain inherent powers including the power to punish for contempt of itself.

Thus, even in the absence of the constitutional provisions referred to above,

the High Courts and the Supreme Court would possess the power to punish for
contempt. This was well known to the Constituent Assembly and the language of
Article 129 and 215 is an attempt to put matters beyond doubt.'^'^ During the
Constituent Assembly debates, in relation to the present article 129, Dr. Ambedkar
explained that the words "court of record" was used to define status of the court and
as to the additional words he observed thus:

"As a matter of fact, once you make a court a court of record by statute, the
power to punish for contempt necessarily follows from that position. But, it was felt
that in England this power is largely derived from common law and as we have no
such thing as common law in this country, we felt it better to state the whole position
in the statute itself"^'''

4.5.2 Parliament's Legislative Competency Regarding Contempt

The following are the provisions of the constitution having a bearing on

contempt of courts:^'^

(i) Article 19(1) (a) and 19(2);

"'" Supreme Court Bar Association v. Union of India (1998) 4 SCC 409^
• " Constituent Assembly Debates, Vol. 8, at 378-383.
-'"" Id. at 382.
"''Articles 105(2) and 194(2) which afford complete community to members of the legislature in
respect of anything said therein are not being referred to in this context.

213
(ii) Article 129 and entry 77 List I of the Seventh Schedule;
(iii) Article 215 and entry 14 of List III of the Seventh Schedule; and
(iv) Article 142(2).

Article 19(1) (a) guarantees to all citizens the right to freedom of speech and
expression and Article 19(2) provides inter alia that this right is subject to any law
imposing reasonable restrictions in relation to contempt of court. Article 129, 142(2)
and entry 77 List 1 of the Seventh Schedule pertain to contempt of the Supreme Court,
while article 215 pertains to contempt of High Courts. Entry 14 of List 111 of the
Seventh Schedule covers contempt of courts other than the Supreme Court.

Article 246(1) read with Entry 77 of List I of the Seventh Schedule to the
Constitution Confers on the parliament exclusive power to make laws with respect to
'constitution, organization, jurisdiction and powers of the Supreme Court (including
contempt of such court);. Further in temis of Article 246(2) read with Entry 14 of
List of the Seventh Schedule, the Parliament as well as the legislature of the States
enjoy the powers to make laws on 'contempt of court' but not including contempt of
the Supreme Court'. The power conferred on the legislature, therefore, extends to
enacting a law on the entire subject of'contempt of court'. Even the Constitutional
guarantee of freedom of speech and expression under Article 19(l)(a) is expressly
made subject to the right of the legislature to impose 'reasonable restrictions' on the
exercise of that right by making any law inter alia on contempt of court.

The elaborate phraseology of articles 129 and 215 would reveal itself more as
the consequence of a practical difficulty in using more concise and less misleading
language to describe the powers of the courts rather than as an attempt to freeze for all
times to come the substantive law of contempt. The wide and unqualified language of
entry 77 of List 1 and entry 14 of List 111 of the Seventh Schedule shows that the
Legislature has full powers to legislate with respect to contempt of court subject only
to the qualification that the Legislature cannot take away the power of the Supreme
Court or the High Court to punish for contempt or vest that power in some other
court, for example, a magistrate's court. Further the provisions of Article 142(2) to the
effect that the Supreme Court shall have 'all and every power' to make any order for

Sanyal Committee Report on Contempt of Couit 1963. Ch. Ill, Para 2.

"" Supra note 208, pp. 12-13.

214
the investigation or punishment of any contempt of itself, "subject to the provisions of
any law made in this behalf by Parliament" clearly assume that Parliament has full
powers to legislate in relation to contempt of the Supreme Court. In other hands, even
if article 129 were interpreted as 'conferring' on the Supreme Court the power to
punish for contempt of itself, another article, namely, article 142(2) expressly makes
'all and every power' of the court to make any order for the punishment of any such
contempt subject to any law made in this behalf by Parliament. Further legislation in
relation to contempt, as contemplated and saved by article 19(2), must necessarily be
in relation to the substantive law of contempt and such legislation would not be
possible in relation to the Supreme Court and High Court if article 129 and 215 were
construed to prohibit it. It would, therefore, seem to us to be sufficiently clear that
having regard to the relevant provisions. Parliament has the power to legislate in
relation to the substantive law of contempt of the Supreme Court or the High Court.'^'^

4.5.3 Parliamentary Privileges and Free Speech

4,5.3.1 Terms Privilege and Parliamentary Privilege

First it is necessary to know what is meant by the term 'privilege'. The term
privilege connotes the rights and immunities enjoyed by each house of Parliament and
its committees collectively and by the members of each House individually, without
which they cannot discharge their functions efficiently and. effectively. These
privileges, therefore, are certain Fundamental Rights of each House which are
generally accepted as necessary for the exercise of its constitutional functions. Hence,
in general temis, priviledge means a right, advantage or immunity granted to or
enjoyed by, a person or class of persons beyond the common advantages of others.

Parliamentary privilege has been defined as, "the sum of peculiar rights
enjoyed by each house collectively as a constituent part of High Court of Parliament,
and the members, of each house individually, without which they could not discharge

- ' ' Bijoyananda Patnaik v. Balkrishna Kar, ILR 1953 Cutt. 283, (293) the Orissa High Court came to
the conclusion that article 19 does not curtail the right of the High Court to deal with contempt of
couit. The High Court in that case was considering whether there was any existing law curtailing
that power within the meaning of Art. 19(2) and it is therefore not clear whether the court would
have come to the same conclusion if there was some expression of law on the subject.
- " Supra note 216. Ch. Ill, para 4(2).
--" V S . Maniam. 'Parliament and Press', Vidura, Vol. 25(2), 1988, p. 13.
--' V.S. Pekhi. 'Law of Privileges', Vidura . Vol. 26(5), 1989, p. 34.

215
their functions and which exceed those possessed by others bodies or individual".
Any act or omission which obstructs or impedes any member of officer of the House
in the discharge of their duties, or which has a tendency to produce such a result
would constitute contempt of the legislature.

4.5.3.2 Privileges of the Parliament and State Legislature

The privileges, immunities etc of the members of Parliament and of the

Parliament itself are set out in Article 105 of the Constitution of India. Clause (1) of
that Article says that subject to the provisions of the constitution and the rules and
standing orders regulating the procedure of Parliament, there shall be freedom of
speech in Parliament. These immunities are conferred on members for anything said
in the House and no person can be made liable in respect of publication by or under
the authority of either House of Parliament of any report, paper, votes, proceedings of
the Parliament or any committee thereof. Similar provisions exist in Article 194
which is applicable to House of state legislatures. Reading clause (1) and (2) of
Article 105 and 194 together, it is plain that freedom of speech in Parliament and state
Legislature is absolute and unfettered. This view has been upheld in the case of Shri.
M.S. M. Sharma v. M. Krishna Sinha and later confined in the case of Special
Reference No. 1 of 1964 by the Supreme Court of India.^^''

In M.S.M. Sharma v. Krishna Sinha ^^^ the court made it clear that if the
Parliament or State Legislature enacted a law under Article 105(3) or 194(3)
respectively to define its privileges, then such a law would be subject to Article
19(l)(a) and a competent court could strike down that law under Article 13 of the
Constitution if it violated, or abridged any of the fundamental rights. It is this part
of the judgment which has led to the general impression that neither the House of
Parliament nor the State Legislature would be interested in codifying Legislative
privileges as then they would be liable to challenge under the various Articles
containing fundamental rights. This case has imposed a judicial gloss on the freedom
of the press.^^'

""" R.C. Sarkar, The Press and Piivlleges as of Pailiameni', Journal of Constitutional Paiiiamenlary
Studies, Vol. 15, 1981, p. 80.
- - ' A I R 1959 SC 395.
- - ' A I R 1965 SC 745.
"^ Supra note 223.
--''Id. at p. 410.
--' A.N. Grover, 'Press and Parliament', Journal of Constitutional Parliamentary Studies. Vol.
18,1984. p. 135.

216
 The provisions of the constitution deahng with Parliamentary privileges and
immunities bear special marks of indebtedness to the centuries-old conventions
established and maintained in this regard by the British parliament. Article 105 deals
with the powers, privileges and ammunitions of the Houses of parliament, their
members and committees. It guarantees to every member freedom of speech in
Parliament and grants immunity from proceedings in any court of law in respect of
anything said or any vote given by him in Parliament or in any of its committees. A
similar immunity is granted in respect to the publication, under the authority of either
house of parliament, of any reports, papers, votes or proceedings. All these privileges
are equally applicable to the various state legislatures, their members and committees
under Article 194.^^^

In 1959, the Supreme Court was called upon to deal with the subject of
parliamentary privilege in a comprehensive manner when the famous search light
case came before it. In that case the editor of Search Light, a Patna Daily
Newspaper, came to the court contending that he had the absolutes right, subject of
course to any law that may be protected by Article 19(2) of the Constitution
(restrictions to the freedom of speech and expression), to publish a true and faithful
report of the publically heard and seen proceedings of parliament or any state
legislature including portions of speeches directed to be expunged. The mater arose as
a result of his publishing a report of some publishing of Bihar State Assembly which
the speaker had ordered to be expunged. A show-cause notice was issued against the
editor by the Secretary of the assembly for breach of privilege. He challenged the
notice and moved the court for an appropriate writ or order in his favour claiming that
the notice sought to violate his fundamental rights to freedom of speech and
expression and to personal liberty under Article 21 ^^" guaranteed under the
Constitution.^^'

By a four-to-one majority headed by the Chief Justice the court held that the
Legislature had the power of privilege of prohibiting the publication of even a true
and faithful report of the debates or proceedings that took place in the House. They

"^ M Y . Pylee, 'Full Speech and Parliamentary Privileges in India', Pacific Affairs, Vol. 35, 1962, p.
12.
•" Supra note 223.
'^° Article 21 'No person shall be deprived of his life or personal liberty except according to procedure
established by law".
"'' Supra note 228 at p. 14.

217
further held that the only way of reconciling the two provisions of the Constitution,
namely, Article 19(1 (a) freedom of speech and expression and Article 105(3) or
194(3) legislature privileged was by allowing the former which is 'general' to yield to
the latter which is 'special'. However, if Parliament or the State Legislature were to
make a law, as contemplated by Articles 105 or 194, defining their privilege, such law
as an ordinary law would be subject to the fundamental rights.

The dissenting Judge (Justice Subha Rao) agreed with the majority that Article
105(3) and 194(3) were not expressly made subject to the other provisions to the
Constitution. But he disagreed with their reconciliation of the two by way of the
doctrine of the general and the special. With clear and compelling logic he said:
"There is no inherent inconsistency between the two provisions. Article ]9(l)(a) gives
freedom of speech and expression to a citizen while Article 194 (3) or 105 (3) deals
with powers, privileges and immunities of the legislature. The legislatures and its
members have certainly a wide range of powers and privileges, and the said privileges
can be exercised without infringing the fundamental rights of a citizen. When there is
conflict, the privilege should yield to the extent if effects the fundamental rights.
Thus construction gives full effect to both Articles." ^

There was a case, perhaps unparalleled in the annals of parliamentary

privileges, relates to a conflict between the Legislative Assembly and the High Court
of the State of madras which took place during 1960. The facts of the case are as
follows:"^

The Government of Madras had appointed one Mr. Alagirisami as government

pleader after his retirement from Judicial Services in the State. The appointment was
challenged through a writ petition in the High Court by an Advocate of the Court. The
court however dismissed the petition saying that from a strict 'legal point of view' the
government could make the appointment and the court could not interfere."^^ But one
of the Judges who heard the petition made stringent remarks by way of obHer dicta
imputing motive to the minister in charge of law who has happened to be the reader of
the House in the assembly. A member of the Government party (the congress party)

- ' - I d . , pp. 14-15.

-'•^ Ibid.
-•'••id. at p. 17.
TIC

Judiciary v. Speaker', The Cuireni, Seplcinbcr 2 1, 1960.

218
during the next session of the Assembly moved a privilege motion in the House
alleging that the court had in some of its observations in the division of the above case
"usurped the powers and privileges at the legislature". He said that a matter was a fit
case to be referred to the committee of privileges, as, in the court's order "strong
observation have been made affecting the conduct, character, prestige and privilege of
a member and leader of this House and powers which essentially belong to the
legislature have been assumed by the high Court, thereby affecting the powers and
privileges of this House". The speaker announced the views of the leaders of parties
in the House would be elicited on the privilege motion two days later when the
motion would be considered by the House.

The day after the motion was moved in the Assembly, the same Advocate who
had moved the High Court eariier filed a petition before the court praying that action
might be taken against the member who would the privilege motion for contempt of
court. He pointed out that no member of the Legislature had any right to discuss the
conduct of any High Court Judge and anything in regard to pronouncements made by
him in the discharge of his official duties (Article 211).^^^ This provision was
embodied in the constitution to ensure that judges could administer justice without
fear or favour. The privilege motion, be alleged, had cast aspersions on a judge of the
High Court. The two judges who heard the petition admitted it and ordered issue of
notice to the member. The court also issued notice to the speaker of the Assembly to
show cause why a writ of mandamus directing the speaker to forbear from allowing
consideration or discussion of a certain privilege motion tabled in the assembly should
not be issued against him. On the following day the speaker made a rather dramatic
announcement of the notice in the Assembly and added that he did not propose to
subject himself to the authority of any court in the exercise of his powers (in
accordance with Article 212 of the Constitution). ^^^ The court regretted the
uncooperative attitude of the speaker in helping it to clear up the conflict between
Article 211 and 212 but proceeded to examine the issue of privilege involved in the
case. The Chief justice, who went into this aspect in considerable detail, pointed out

••"' Article 211. 'No discussion shall take place in the Legislature of a state with respect to the conduct
of any .ludge of (he .Supreme Court or of a High Couit in the discharge of hi.s duties.'
"•' Article 212: "(I) 1 he validity of any proceedings in the Legislature of a state shall not be called in
question or the ground of any alleged irregularity of procedures; (2) No officer or member of the
Legislatuie of a state in whom powers are vested by or under this constitution for regulating
procedure or the conduct of business, or for maintaining order, in the legislature shall be subject to
the jurisdiction of any court in respect to the exercise of these poweis."

219
that the criticism leveled against the minister in the court order was in relation to a
member of the Executive Government and not to a member of the Legislature. The
functions of the Legislature and the Executive were different. The Executive were not
protected by privileges in that actions and therefore he could not understand whether
there ^diS prima facie any privilege involved in the orders of the court. As regards the
stand of the Speaker that the court could not issue notice to him relating to his duties
in the Assembly, the Chief Justice observed that notice could be issued anybody in the
land except foreign dignitaries. It was a different question whether the court had any
jurisdiction to pass an order of injunction. This unfortunate episode of a
Constitutional clash between the High Court and the Speaker, arising out of an undue
emphasis on Parliamentary Privilege, came to a happy end, however, by the
adjournment of the House sine die without discussing the privilege motion and by the
subsequent decision of the speaker not to proved with the matter.

Houses of Parliament in India also have the power to punish a person, whether
its member or outsider, for its 'contempt' or 'breach of privilege'. A House can
impose the punishment of administration, reprimand, suspension from the services of
the House for the session, fine or imprisonment.

Raveendran J. in his dissenting judgement in Raja Ram Pal v. The Hon'ble

Speaker, Lok Sabha^^ has rightly held: "The enumeration of disqualification is
exhaustive and specifies all grounds for debarring a person from continuing as a
member. The British parliament devised expulsion as a part of its power to control its
constitution, (and may be as a part of its right of self-protection and self-preservation)
to get rid of those who were unfit to continue as members, in the absence of a written
constitutional or statutory provisions for disqualification. Historically, therefore, in
England, 'expulsion' has been used in cases where there ought to be a standing
statutory disqualification from being a member. Where provision is made in the
constitution for disqualification and vacancy, there is o question of exercising any
inherent or implied or unwritten power of 'expulsion'. '" However, if a member
commits a crime, for example accepts a bribe to vote or ask questions in the house, it

-^^ Supra note 228, at p. 18.

-'" Hardwari Lai v. Election Commission of India, ILR (1977) 2 P&II 269.
-'"'(2007) 3 s e c 184.
Shmii Bedi, 'The Powei- to Punish for Contempt under Parliamentaiy, Privileges: An analysis of the
inheient limitations', .lournal of the Indian Law Institute. Vol. 51, 2009, p. 88.

220
is a matter wherein the guilt of the accused needs to be established. This obviously
can only be done by the judiciary and not the Legislature. The right form to decide the
issue of expulsion of members especially for crimes committed by them would be the
judiciary which possesses the means and power to try such cases.

The cash-for-question scam decided by the Supreme Court gave rise to the
question as to whether the House can expel a member for accepting bribes. The case
was decided in favour of the house. It is apparent that accepting bribe is not a
legislature act. Accepting bribes seriously subverts the legislature process. Such cases
need to be dealt with under the ordinary criminal law since the legislature is not
capable of dealing with it.^'*''

The most outstanding and most controversial case in the area of legislature
privileges, however, was the Kesltav Singh case.^'*^ In this case, the Supreme Court
gave an advisory opinion under Article 143 on certain issues arising out of the claims
for privileges by the Legislative Assembly of the State of Uttar Pradesh, Keshav
Singh printed and published with others, pamphlets against a member of the House
and was reprimanded at the bar of the House. During the course of the administration
of the reprimand, Keshav Singh behaved in an objectionable manner in the House.
Consequently, the speaker directed that Keshav Singh be imprisoned for seven days in
Jail for committing contempt of the House. This decision led to a number of events
which brought the judiciary and legislature into direct conflict. This was challenged
by a writ of Habeas-Corpus, upon which a rule nisi was issued by the Allahabad High
Court and Keshav Singh was admitted to bail pending final hearing of the petition on
merits. The house regarded this as contempt and issued writs for the arrest and
production of the judges who then moved the High Court to get the warrants quashed.
At this stage, the President of India referred the matter to the Supreme Court for its
advisory opinion under Article 143 of the Constitution.

The court gave its opinion by a majority to six to one. The majority opinion
was delivered by the Chief Justice Gajendragadkar, who pointed out the main
controversy lay in a nanow compass, viz:

-•*- Id., at p. 90.

-•'^ Supia note 240.
"•'•' Supra note 241, at p. 90.
^ Supia note 224. In re under Article 143 of the Constitution.

221
 Is the House the sole and exclusive judge of the issue as to whether its
contempt has been committed where the illegal contempt has taken place outside the
four-walls of the Hose? Is the House sole or exclusive judge of the punishment which
should be imposed on the party whom it has found to be guilt of its contempt? And, if
in enforcement of its decision the House issues a general or unspeaking warrant, is the
High Court entitle to entertain a Habeas Corpus petition challenging the validity of
the detention of the person sentenced by the House.^''^

The majority opinion was that legislature in India are not superior courts of
Record and can exercise only those powers of the House of commons which are
integral part of its privileges and which are incidental legislature function, but not
those powers which are exercised by the House of commons as a superior court of
Record or as a result of convention or comity. The Supreme Court was, therefore, of
the opinion that the courts in India cannot only examine the existence or extent of
privilege but can also examine the validity of an order of commitment made by the
Legislature, whether the warrant issued is a speaking or general warrant. The
Legislature cannot question the conduct of, or take action against the judges on the
pleas of contempt for anything done in their official capacity. The Legislature has the
power to punish anyone for its contempt but it cannot be said that the order of the
Legislature will be totally non-justifiable. Coming to the question of judicial review,
the majority laid down a general proposition that Article 19(1 (a) did not control
legislative privileges, but it is mainly under Article 21, which relates to personal
liberty of an individual that the courts can review the order of committed for
. 247
contempt.
Again by a long chalk the majority avoided the difficulty between Article
194(l)(a) by giving a reasoning that the Article 194(1) makes it clear that the freedom
of speech in the Legislature of every state which is prescribe, is subject to the
provision of the Constitution, and to the rules and standing orders, regulating the
procedure of the Legislature while interpreting this clause, it is necessary to
emphasize that the provisions of the constitution subject to which ft'cedom of speech
has been conferred on legislatures, are not the general provisions of the constitution,
but only such of them as relate to the regulation of the procedure of the Legislature.

-""• Id. at p. 759.

-•"id., pp. 765. 770.

222
The rules and standing orders may regulate the procedure of the Legislature and some
of the provisions of the Constitution may also purport to regulate it; for instance,
Article 208.^^*^

As to the applicability of all the Fundamental Rights to the cases where

legislative powers and privileges could be exercised against any individual citizen of
the country, the Supreme Court noticed that Article 19(l)(a) did not apply but Article
21 did.

The majority further commented that if a citizen moved the Supreme Court
and complained that his fundamental rights under Article 21 had been contravened, it
would plainly be the duty of the court to examine the merits of the said contention,
and that inevitably raised the question as to whether the personal liberty of the citizen
had been taken away according to the procedure established by law. If in a given
case, the allegation made by the citizen was that he had been deprived of his liberty
not in accordance with law, but for capricious or malafide reasons the Supreme Court
will have to examine the validity of the said contention, and it would be no answer in
such a case to say that the warrant issued against the citizen was a general wairant and
a general warrant must stop all further judicial inquiry and scrutiny. Therefore, the
impact of the flindamental constitutional right conferred on Indian citizens by Article
32 on the construction of the latter part of Article 194(3) was decisively against the
view that a power or privilege could be claimed by the House, though it might be
inconsistent with Article 21.^'*''

Sarkar, J. in his dissenting opinion took a view that there was no conflict
between Articles 194(3) and 19(1 (a), for they dealt with different matters. The
founder says that the state legislatures shall have the powers and privileges of the
English House of commons whole Article 19(l)(a) states that every citizen shall have
full freedom of speech. The conflict, however, comes to the surface when the
particular privileges claimed under Article 194(3) are concerned. When Article
194(3) says that the state legislature shall have certain privileges, it really incorporates
those privileges in itself Therefore, the proper reading of Article 194(3) is that it
provides that the state legislatures have, amongst other privileges, the privilege to

Article 208(1) provides that a Mouse of the Legi.slaiiiie of a state may make rules for regulating,
subject to the provisions of this constitution, its procedure and the conduct of its business.
" Supra note 224 at p. 7S6.

223
prohibit publication of any of its proceedings. It is only then that the conflict between
Article 194(3) and I9(l)(a) can be seen; one restrictive a right to publish something
while the other says all things may be published. It was further commented that to
allow article 32 and 226 to prevail over legislative privilege under Article 105(3) of
Article 194(3) did not amount to harmonization of two independent provisions, but
was to destroy one of them.^^°

4.6 Sum up

In conclusion, it may be submitted that the law relating to contempt o courts

has been designed to protect the functional independence of the courts, so that they
are able to maintain the rule of law, which is the very basis of the democratic system
of government. However, this does not make the judges and their course absolute,
arbitrary, or completely immune from criticism. Their doings and their decisions are
admittedly open to public scrutiny through the powerful medium of press. The press
is the watch dog to see that every trial is conducted fairly, openly and above board.
But the watch dog may sometimes break loose and has to be punished for
misbehavior. The interference in the judicial process even though an indirect one by a
paroled trial in the media is against the Constitutional right of fair trial of the accused.
The courts have always zealously guarded the freedom of the press, it put media
under the obligation to abstain itself from trespassing in the judicial sphere. Though,
both the press and the judiciary are independent and have their respective function
and both are required to fulfill the same constitutional objective; namely to secure to
all its citizens 'justice' in its full comprehensive sense, including social, economic,
and political.

Criticism of the conduct of judges counteracts the contribution of the courts.

Such a conflict is sought to be resolved by emphasizing that so long as the criticism is
constructive; directed to protect the public interest, the same criticism, should not be
construed as contempt of courts, or destructive the institution of judiciary. Sometimes
contempt power places unnecessary curb on the valuable right of an individual
freedom of speech and expression. It must be remembered that the judiciary, like any
other institution of the state, belongs to and derives its authority from the public
people and should, therefore, be accountable to the people.

-'° Id. at p. 808.

224