Media reporting and contempt of court: The law revisited

The freedom of press, resulting in publication of events and comments relating to sub judice matters, often is a scourge of contempt proceedings before the courts. The Delhi High Court in a recently reported decision [Nehru Memorial Museum & Library Society v. Dr. N. Balakrishnan 2010 (174) DLT 12] discussed the convergence of these two aspects to hold that mere reporting of court proceedings by media would not tantamount to contempt. The High Court further held that it was for the Court itself to decide whether the publication constituted contempt and the same could not be raised by a party.

The Court inter alia observed as under;

3. The contention of the learned counsel for the petitioner is that as per settled law the trial by press is a contempt of court, as it is an attempt to overreach the Court and influence the decision of the Court. According to the counsel, the entire tenor of the newspaper report was that the petitioner in the contempt petition has been greatly wrong and the respondent's so-called crave for justice has to be completed so that he gets justice. It is also submitted that there was no reference in the newspaper report that the matter was being heard on day-to-day basis.

4. Reliance was placed by the petitioner on the following three judgments:

1. In re P.C. Sen, AIR 1970 SC 1821.

2. M.P. Lohia Vs. State of WB, (2005) 2 SCC 686.

3. Rao Harnarain Singh Vs. Ghumani Ram Arya, AIR 1958 Punjab 273.

5. I have heard the submissions of the learned counsel appearing on behalf of Dr. N. Balakrishnan who has also referred few decisions in support of her client.

6. C.K. Thakker's Law lexicon defines 'public domain' as “domain that has no restrictions upon dissemination of information within or from it; the existence of any legal rights to intellectual property in that information does not remove such information from being in public domain”. The 1971 Act was passed with the express intent of bringing the contempt law more in line with widening trends of the freedom of expression.

7. The amendment of Section 13 of the present Contempt of Courts Act in 2006, adding 'truth' as a defence, the scope of what constitutes 'contempt' has been limited even further Section 13 of the present Act also contains a bar against imposing a sentence even where there is a technical contempt unless there has been a substantial interference with the due course of justice.

8. Section 4 of the Contempt of Courts Act, 1971 is relevant to the present case. It rules out of the definition of 'contempt' any fair and accurate report of a judicial proceeding or any stage whereof.

9. In Vijay S. Mallya Vs. Bennett Coleman and Co. decided on 10th March 2010, the Bombay High Court held that an article published under the title “Senior Citizen Takes on 'Bullying' Builder Drags Him to Court over Revdevpt Deal” which detailed the bullying tactics of one of the parties in an ongoing proceeding was held to be not contempt in view of the fact that everything stated therein was based on the pleadings in the pending court proceedings. In fact, the story was based on information supplied by one of the parties and no attempt was made even to secure the comments of the rival party. The Court held “On going through the said paragraph 19 (of the reply) it is crystal clear that the newspaper reporting is based on the documentary (sic) as well as pleadings which form part of the court proceedings. In our view, therefore, it cannot be said that the said reporting was not accurate and bona fide as the reporting is made on the basis of the record placed before the court in the pending proceedings…”. The court went on to add that the media is required to show some restraint particularly in criminal matters where life and liberty would be involved.

10. Even in respect of a murder trial in Sushil Sharma Vs. State (Delhi Administration) & Ors., 1996 Crl. LJ 3944, has repelled the charge of contempt with respect to media reports based on the charge-sheet praising prosecution witnesses and referring to the public desire to hang the offender as also publishing results of the DNA test results which were part of the police investigation. This Court held that “in all these news items press has stated as a matter of fact what has been placed on court record by the prosecution and what is happening in the society after the murder of Naina Sahni. By publishing the news items including reporting of demonstrations, views of some of the people and the evidence filed on record including DNA expert report the press has stated what has come on record. There is no criticism of any of the evidence in any manner. It is more a case of propriety than contempt. In fact people at large have a right to know in order to be able to take part in such like proceedings. The right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under the Constitution of India.

11. In Narain Das Vs. Government of Madhya Pradesh and Ors., AIR 1974 SC 1252, ruled that an unfavourable projection of one of the parties in a pending litigation merely affected the reputation of that party and did not amount to contempt. In Reliance Petrochemicals Ltd Vs. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd and Ors, AIR 1989 SC 190, the broadening and deepening dimensions of the Right to Freedom of expression were recognized as was the case in S. Rangarajan Vs. P. Jagjivan Ram, (1989) 2 SCC 574. Institutions cannot be hypersensitive about comment even pertaining to pending proceedings. In Re Lonrho plc and others, (1989) 2 All ER 1100 and Schering Chemicals Ltd v. Falkman Ltd, (1981) 2 All ER 321 even tendency was held to be “a matter to be judged with a view to a clear and present danger to the one or the other identifiable interest in an ongoing proceeding, such as whether it would affect the conduct of witnesses or deter any party from pursuing the remedy.” The possibility of a professional judge being influenced was held to be far more remote.

12. In the Rao Harnarain Singh case (supra), the daily declaration of a newspaper that the accused in a case were rapists and killers was seen as inimical to their right of due process. M.P. Lohia’s case (supra) is the only post –1972 judgment relied upon by the petitioner which was not a case on contempt of court however, the publishing of an interview of the victim family without any attempt to take the view of the other side when the later was facing criminal charges that would affect his life and liberty was deprecated by the court.

13. In the judgment of the European Court of Human Rights in the celebrated case of Sunday Times v. The United Kingdom. “It is true that if the Sunday Times article had appeared at the intended time distillers might have felt obliged to develop in public, and in advance of any trial, their arguments on the facts of the case; however the facts did not cease to be a matter of a matter of public interest merely because they formed a background to pending litigation. By bringing to light certain facts, the article might have served as a break on speculative and unenlightened discussion.”

14. I have gone through the submissions advanced by the parties also the records of the proceedings and have given the careful consideration to the matter. I am of the opinion that no case is made out to exercise the contempt jurisdiction due to following reasons:

a) The mere newspaper write up raising the grievance and giving the opinion does not by itself amount to trial by media. The right to speech and expression envisaged under the constitution also includes right to express the opinion in media. The times have changed and the media has very active role to play in the country. There are cases of more heineous nature and of utmost importance wherein the media tries to delve into the areas which the parties litigating may find objectionable. But it would be incorrect to draw the inference that the said thing would amount to trial by media by itself or the court is going to be influenced by such things. Thus, I feel that the present case do not fall in the area of the trial by media itself on the reason that the publication and comments which appeared in the newspaper report being the part of judicial proceedings and the matter was being argued in open Court by referring various documents. It was also a matter of fact that Dr. Balakrishnan was suspended on 30.4.209 and charge-sheet was issued against him on 22.6.2009 and the matter was not finalised for more than one year. Therefore, this Court is of the considered opinion that no case of contempt under Sections 11 and 12 of the Contempt of Courts Act, 1971 against Dr. Balakrishanan has been made out.

b) The contempt jurisdiction is exercised by the court wherein there is deliberate or willful disobedience of the orders of the court or in anything which undermines the majesty of the court. The mere newspaper report or write up raising some grievance in the opinion of this court will not enable this court to exercise the contempt jurisdiction.

16. It is well settled that the contempt jurisdiction is the special jurisdiction and the court has to itself form the opinion that it is contempt of the court and not upon the insistence of any party. In Re: Special Reference No. 1 of 1964, [1965] 1 S.C.R. 413, it has been observed by the apex court that it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior Court is entitled to determine for itself questions about its own jurisdiction.

17. The judgment referred by the learned counsel for the petitioner is on different facts. Hence, the same is not applicable to the facts and circumstances of the present case.

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