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Free expression is the fundamental fountain-head of democracy

Written by: Pooja Vatsh - Student of final yr. ll.b from Bharati Vidyapeeth
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Free expression is the fundamental fountain-head of democracy. The right of free expression does not however confer right to disparage others right of person and reputation as such the right Of free expression is subject to reasonable restrictions. Bonafide reprimand of any system or institution including the judiciary cannot be objected on any pretext, be it under the conferred constitutional power or the statutory Court law. The freedom of speech bestowed under the constitution and the independence of the judiciary are the two essential and most important constitutes of democracy in a country. Reconciling these two competing public interest issues and maintaining a balance, presents a challenge to any given democratic set-up. Healthy and constructive criticisms are the necessary feature for the development of the democracy. The Apex court as the guardian of the Constitution must vigilantly protect free speech even against judicial resentment.

Constitutional Provisions:

Article 19(1)(a) of the Indian Constitution states simply that ‘all citizens shall have the right to freedom of speech and expression’. The companion Article, Article 19(2) qualifies this right by providing that the State can impose reasonable restriction on its exercise ‘in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence’.

Article 19(1)(a) does not refer specifically to the freedom of the press as does, say, the corresponding provision in the American Constitution, but judicial decisions have repeatedly affirmed that the Article is sufficiently wide to include the freedom of the press and, by extension, the freedom of other mass media. [1] In Romesh Thapar’s Case and in several subsequent cases strict and narrow limits have been placed on the Legislative powers to abridge the right conferred by Article 19(1)(a). Any restriction on Article 19(1)(a) can only be valid if three conditions are met:
1. It is supported by the authority of law;
2. The law in question is related to one or more of the permitted heads of restrictions laid down under Article 19(2); and
3. The restriction is reasonable.

It is also necessary that the procedure and the manner in which the restriction is imposed be just, fair and reasonable [2]

History:
The origin of the law of contempt in India can be traced to the English law. In England, superior courts of record have from the earliest times exercised the power to commit for contempt those who scandalised the court or the judges. The right of the Indian high courts to punish for contempt was, in the first instance, recognised by the judicial committee of the Privy Council which observed that the offence of the contempt of court and the powers of the high courts to punish it are the same in such courts as in the Supreme Court in England.

Almost all the high courts in India, apart from the chartered high courts have exercised the jurisdiction inherent in a court of record from the very nature of the court itself. The first Indian statute on the Law of Contempt, i.e., the Contempt of Courts Act was passed in 1926.

It is generally felt that the existing law relating to contempt of courts is somewhat uncertain, undefined and substandard. The jurisdiction to punish for contempt touches upon two important fundamental rights of the citizens, namely, the right to personal liberty and the right to freedom of expression. It was, therefore, considered advisable to have the entire law on the subject scrutinised by a special committee.

In pursuance of this, a committee was set up in 1961 under the chairmanship of the late H N Sanyal, the then additional solicitor general. The committee made a comprehensive examination of the law and problems relating to contempt of court in the light of the position obtaining in our own country and various foreign countries. The recommendations which the committee made took note of the importance given to freedom of speech in the Constitution and of the need for safeguarding the status and dignity of courts and interests of administration of justice.

The recommendations of the committee have been generally accepted by the government after considering the view expressed on those recommendations by the state governments, union territory administrations, the Supreme Court, the high courts and the judicial commissioners. The bill seeks to give effect to the accepted recommendations of the Sanyal Committee.

Definition by law
(a) “Contempt of court” means civil contempt or criminal contempt;

(b) “civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;

(c) “Criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which—
(i) Scandalizes, or tends to scandalize, or lowers or tends to lower the authority of, any court; or
(ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;

(d) “High Court” means the High Court for a State or a Union territory, and includes the court of the Judicial Commissioner in any Union territory.

Interdependency of media and democracy

Media is regarded as one of the pillars of democracy. Media has wide ranging roles in the society. Media plays a vital role in moulding the opinion of the society and it is capable of changing the whole viewpoint through which people perceive various events. The media can be commended for starting a trend where the media plays an active role in bringing the accused to hook. Recent broadcasting activities of some channels of the electronic media have comprised sting operations involving invasion of the privacy of citizens. Some virtually tantamount to parallel trials by television channels, along with the on-going trials by the judicial system in criminal matters. This has made the functionaries guarding the system of law and order and the criminal justice delivery system of the country sit up and propose steps to stem this tide rather than helplessly watch the sensational "discoveries" through hidden cameras of the TV channels.

And, despite the fact that some sting operations have rendered yeoman service by bringing forth certain evils such as corruption at the top, cash-for-query activities of the national lawmakers and advocating justice for the poor and the needy, the electronic media cannot have a free run in violation of law. There is a superfluity of laws in place to regulate sting activities, but the executive is not looking beyond bringing forth some state regulation of television channels through a system of do's and don'ts. This is a remedy worse than the disease in a civil society and democratic polity as there have been some socially-oriented sting operations on television channels. But it is the broadcast of some sting operations which are related to matters under trial and thus sub judice in various court cases in trial, primarily concerning the elite accused in criminal courts which has brought into sharp focus the legality and criminality of the contents of these operations.

Ambit of contempt by media:

Trial By Media Is Contempt of Court And Needs To Be Punished [3]. The Contempt of Court Act defines contempt by identifying it as civil [4] and criminal [5]. Criminal contempt has further been divided into three types:
Scandalizing
Prejudicing-trial
Hindering the administration of justice.

Prejudice or interference with the judicial process:

This provision owes its origin to the principle of natural justice; ‘every accused has a right to a fair trial’ clubbed with the principle that ‘Justice may not only be done it must also seem to be done’. There are multiple ways in which attempts are made to prejudice trial. If such cases are allowed to be successful will be that the persons will be convicted of offences which they have not committed. Contempt of court has been introduced in order to prevent such unjust and unfair trials. No publication, which is calculated to poison the minds of jurors, terrorize witnesses or parties or to create an atmosphere in which the administration of justice would be difficult or impossible, amounts to contempt.[5] Commenting on the pending cases or abuse of party may amount to contempt only when a case is triable by a judge. [6] No editor has the right to assume the role of an investigator to try to prejudice the court against any person. [7]

Pre-trial publicity

Sensationalized journalism has also had an impact on the judiciary. For example, in upholding the imposition of the death penalty on Mohammed Afzal for the December 2001 attack on the Indian Parliament, Justice P. Venkatarama Reddi stated, the incident, which resulted in heavy casualties, had shaken the entire nation and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender.[8]

A media trial began almost immediately after Afzals arrest. Only one week after the attack, on 20 December 2001, the police called a press conference during the course of which Afzal incriminated himself in front of the national media. The media played an excessive and negative role in shaping the public conscience before Afzal was even tried.[9]

Similarly, S.A.R. Geelani, one of Afzals co-defendants in the Parliament attack case, was initially sentenced to death for his alleged involvement despite an overwhelming lack of evidence. Large sections of the Indian media portrayed him as a dangerous and trained terrorist. On appeal, the Delhi High Court overturned Geelanis conviction and described the prosecutions case as at best, absurd and tragic. [10]

The Additional Pressure on Judges in High-Publicity Trials

The media create a series of unconscious pressures on a juror in a high-profile trial. Jurors know that they are being watched by the world. They are not only making a decision for themselves, but they are making a statement for their family, co-workers, community, and society as a whole. This elevates their verdict to a level beyond the evidence. In interviewing jurors after the trial of Hollywood madam Heidi Fleiss, many jurors expressed how they hoped that the police would use their resources more wisely than to prosecute victimless crimes, but it comes to the point in this particular case where Dr. Golden has made thirty errors. Now, you can't tell me this man has not made errors on previous autopsies... But this just happened to be a case that came to the court as a 'high-profile' case and the problems were brought to everyone's attention. [11]

1. Reliance Petrochemicals v. Proprietor of Indian Express[12]

Media and Communication - Contempt of court – news item published in “Indian Express”- subject matter of the article was related to matter sub judice - Held, Publications, pre-judging the issue and thereby interfering with the due administration of justice amounts to contempt.

2. Rao Harnarain Singh Sheoji Singh vs Gumani Ram Arya[13]

Media and Communication – malicious publication – publication of news item regarding commission of offence and conduct of parties to criminal suit – alleged contempt of Court – respondents pleaded defense of fair comment – held, comment upon pending case calculated to influence decision of Court has to be legally banned – freedom of press was subordinate to proper administration of justice – publication calculated to poison mind of Court or to create an atmosphere of prejudice against parties or witness amounts to contempt of court irrespective of fact that proceedings are actually pending or imminent – publication by respondents tended to prejudice public as to merits of criminal trial about to commence – Hence, respondents held liable for contempt.

3. Court on its own motion Vs. State and Ors.[14]

The question for our consideration is whether Mr. R.K. Anand and Mr. I.U. Khan, Senior Advocates and Mr. Sri Bhagwan Sharma, Advocate have committed criminal contempt of Court or not. We have found Mr. Anand and Mr. Khan guilty of criminal contempt of Court for reasons recorded in the judgment. Neither of them had tendered any apology or demonstrated contrition or repentance for their actions. Accordingly, towards the end of the judgment, we have pronounced the punishment awarded to them. We have found Mr. Sri Bhagwan Sharma not guilty of criminal contempt of Court.

4. Narmada Bachao Andolan Vs. Union of India (UOI) and Ors.[15]

Contempt of Court - freedom of speech - Article 19 of Constitution of India and Sections 2 and 15 of Contempt of Courts Act, 1971 - matter pertaining to contempt of Court - under cover of freedom of speech and expression no party can give license to misrepresent proceedings and Orders of Court - no one can be permitted to distort Orders of Court and deliberately give slant to its proceedings which have tendency to scandalize Court.

5. In Re: Arundhati roy[16]

Contempt of Court - Criminal Contempt - Cognizance of criminal contempt by the Supreme Court suo moto under Section 15 of the Contempt of Courts Act, 1971 - When action is at the instance of the court, no question of any motive of and prejudice from any judge - Narmada Bachao Andolan on alleged adverse environmental impact of the construction of the Sardar Sarovar Reservoir Dam in Gujarat - Court permitting to increase the height of dam which resented to and protested by the writ petitioners including respondent - Respondent a well known writer who is not a party to the writ proceedings published an article scandalizing the judicial process on the said decision on which the court expressed its displeasure - Contempt petition filed by an advocate on the allegation of respondent raising crowd, holding a dharma and shouting abusive slogans outside the court - On notice being issued respondents filed affidavit denying the allegations, imputed motive for specific courts for entertaining litigations and harassing her by passing orders against her - Court found prima facie those paragraphs in affidavit contemptuous and initiated suo moto proceedings - Respondents accused the court of proceeding with absurd despicable and unsubstantiated petition- Respondent committed the criminal contempt of the Apex Court by scandalizing its authority with maladies intentions punishable under Section 12 of the Act.

Need For Limitations on Freedom of Media:

Every institution is liable to be abused, and every liberty, if left unconcealed, has the tendency to become a license which would lead to disorder and mayhem [17]. It has to be remembered that this freedom is not absolute, unlimited or unfettered and in all circumstances, as giving on an unrestricted freedom of the speech and expression, would amount to uncontrolled license. When there is a conflict between the public interest behind a free press and some other competing interests, it is for the Courts to strike the balance between the two interests. In balancing the two competing public interests the Courts’ role is reserved in the Indian Constitution itself, by the expression “reasonable restrictions” in Clauses 2 – 6 of Article 19.

The Courts are in a way, political institutions in view of the interest – balancers. The judicial process although different in form is an indirect act of legislating. Every case presents a conflict of competing social interests among which a choice must be made. …...This process of balancing competing social interests, influenced as it is by the constitutional values, demonstrates the essential similarities between Judges and other political functionaries. In accordance with the fundamental tenets of democracy and the constitutional principles, the Court should strive to satisfy as many of these conflicting claims as is possible since the happiness of many is to be preferred over the satisfaction of the few. [18].

Conclusion
From the above account it becomes clear that the media had a more negative influence rather than a positive effect .The media has to be properly regulated by the courts. The media cannot be granted a free hand in the court proceedings as they are not some sporting event. The law commission also has come up with a report on ‘Trial by Media: Free Speech vs. Fair Trial under Criminal Procedure (Amendments to the Contempt of Court Act, 1971)’ [Report number 200 prepared in 2006]. The report is still pending in the Parliament as such the researcher could not get a copy of the report. It will be available to the public once it is presented in the Parliament.

The above analysis reveals us the gravity of the situation as it persists in India. An ideal proposal will be that the Indian press and the Indian people are not at present democratic enough to allow the press to intrude in the judicial process. What will an ideal proposition is to not allowing the media trial at this moment. It’s definitely an ideal proposition to allow controlled media reporting of the cases once the media is supposed to come out of the profit and sensational considerations. The media has to play the role of a facilitator rather than tilting the scales in favour of one or the other party.

Footnote:
[1] Romesh Thapar Vs. State of Madras, AIR 1950 SC 124
[2] Express Newspapers Limited Vs. Union of India, AIR 1958 SC 578 at 621.
[3] Trial by Media at http://www.hrdc.net/sahrdc/
[4] Id.
[5] Id.
[6] Section 2(b)
[7] Section 2 (a)
[8] AIR 1943 lah 329(FB).
[9] Subhash Chandra v. S. M . Agarwal, 1984 Cri LJ 481(Del).
[10] Dm v. MA Hamid Ali Gardish, AIR 1940 Oudh 137
[11] Armanda Cooley et al., Madam Foreman: A Rush to Judgment? 162 (Dove Books 1995).
[12] AIR1989 SC 190
[13] AIR1958P&H273
[14] 2009CriLJ677
[15] Writ Petition (C) No. 319 of 1994
[16] AIR2002 SC 1375
[17] Express Newspapers Vs. U.O.I., (1997) 1 SCC 133. See also re: Harijai Singh and re: Vijayakumar, AIR 1997 SC 73 wherein the Supreme Court of India has observed that the freedom of press is regarded as “the mother of all liberties in a democratic society”.
[18] “The Principles of Constitutional Interpretation”: Some Reflection – Justice D.M.Dharmadhikari, (2004) 4 SCC (Jour) 1.

The author can be reached at: vatsh.pooja@legalserviceindia.com / Print This Article

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