The one single thing that strikes fear in the hearts of the hip-shooting reporter is ‘contempt of court’. Contempt of court as a charge that clips the freedoms associated with Article 19(1) (a) of The Constitution of India which guarantees Freedom of Speech and Expression, first made news when Tarun Tejpal, editor of Tehelka published Supreme Court lawyer Prashant Bhushan’s interview. Incidentally, Article 19(2) also empowers the Central government to impose restrictions on the freedom of speech and expression. And, one of the grounds for restriction is ‘contempt’. Articles 129 and 215 give power of contempt to the High Courts of the states and the Supreme Court too.
It is popularly felt that the people have the right to check on the credentials and claims of those adjudicating their disputes. And, it is concurrently also held that if allegations against the judiciary are made “recklessly,” or “without basis” or they eventually turn out to be so, it might quash people’s faith in the judiciary. Public faith is indispensable for the functions the judiciary discharges, risking it is asking for trouble.
The Contempt laws are basically means by which the judiciary protects its own dignity. In a democracy, independence of the judiciary is an essential component but it cannot have unfettered powers bordering on intolerance towards any criticism coming its way. The purpose of the contempt power can only be to enable the court to function. The power is not to prevent the master (the people) from criticising the servant (the judge) if the latter does not function properly or commits misconduct, offered Justice Markandey Katju.
For the media to be able to report without fear of having crossed the contempt laxman rekha, it needs to understand the difference. It’s very easy for the media to cross beyond the arena of freedom of speech and step into the Contempt zone.
It was in the S Mulgaonkar case that the Supreme Court laid down guidelines for courts to follow in order to decide when reporting by the media must attract punitive action.
Firstly, it (courts) will act with severity where justice is jeopardised by a gross and/or unfounded attack on the Judges, and where the attack is calculated to obstruct or destroy the judicial process.
Secondly, the courts are to harmonise the constitutional values of free criticism, the fourth estate included, and the need for fearless curial process and a fearless Judge.
Thirdly, the court should avoid confusion between personal protection of a libeled Judge and prevention of obstruction of public justice and the community’s confidence in the process, the former not being contempt.
Fourthly, the press and the media, which are an indispensable intermediary between the State and the people and necessary instrumentality in strengthening the forces of democracy, should be given free play within responsible limits even when the focus of its critical attention is the court.
Fifthly, the court should not be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, condescending indifference and repudiation by judicial rectitude.
And lastly, after evaluating the totality of factors, if the court considers the attack on the Judge or Judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, “it must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy or the rule of law by fouling its source and stream.”
These guidelines have been framed to ensure a balance between the interests of the judiciary and the media. Now, despite the guidelines the issue of contempt itself is a discretionary jurisdiction and like everything discretionary, it’s prone to arbitrariness among other fallacies.
In the Tehelka case, the suo motu contempt petition opened a can of worms with respect to reporting of court proceedings by journalists who are not trained in law. It is a well-laid principle among journalists that anything legal is not prone to interpretation or change. “Keep it as is,” is the advice given to almost all at a desk in a newspaper so as to avoid making interpretation errors and then have to face the music the next day.
In case the wordings of the court are altered by a journalist to explain a judgement, there’s every chance of the very judgement being convoluted in the process. If there’s no evidence for the allegations of corruption or bias being made against a judge,it tantamounts to hearsay and is prone to be considered libelous.
An amendment to the Act in 2006 recognised truth as a defence in a contempt proceeding in the form of section 13(b) of the Contempt of Courts Act. Also, sections 4 and 5 described situations wherein contempt charges shall not be invoked. A fair and accurate report of a judicial proceeding does not amount to contempt.
However, it has also been held that the Amendment Act of 2006 for the Contempt of Court Act does not bind the Supreme Court and High Courts who are free to prosecute anything they may consider as contempt. To bind them to the defence of truth, it would need a constitutional amendment to Article 19 which was considered unnecessary. And, although the Supreme Court and High Court are not legally bound by the ‘truth as a defence’ amendment, they would be reluctant to oppose legislation already in place.
On their part, the judiciary has changed the norms for accreditation of the legal correspondents in the Supreme Court of India. Revised in 2011, according to the norms, it is mandatory for journalists to possess a law degree to cover legal proceedings. The media criticized it roundly and perceived it as a violation of freedom of speech. Some amount of legal literacy is now considered pivotal to cover court proceedings.
India urgently needs to water down the severity of contempt laws much on the lines of her Western counterparts. In the United States of America, a court cannot order the media in general not to report a case or forbid it from publishing facts discovered publicly. In the United Kingdom, contempt law attempts to seek a balance between fair trial rights and free media rights. Here, the Courts can postpone publication of a report if it prejudices administration of justice.
The contempt laws, being discretionary, must be used with extreme caution. The objective of the laws can be achieved only if the judiciary exercises absolute integrity in performing its duties.