Contempt and the Law Asghar Ali Engineer The legislature, judiciary and media constitute the real pillars of democracy. To preserve and strengthen these institutions is to ensure the smooth functioning of democracy and to protect basic freedoms. Thus, these institutions must be allowed and
BOOK REVIEWEconomic & Political Weekly november 3, 200739Contempt and the LawAsghar Ali Engineer questions posed …there are no easy an-swers, no panaceas. Only the long, hard and increasingly risky road of public opin-ion, to change the attitudes and ideas and statutes and interpretations remains. In fact, public debate is in itself the strongest solvent of tyranny and, hence, the most resisted by any dictatorship.” Privileges and RightsFali S Nariman deals with the privileges of the legislature and the freedom of the press in ‘Legislative Privileges and the Freedom of the Press – A Legal Analysis’. He bases his paper on three cases decided by Constitution Benches of the Supreme Court of India (in the years 1952, 1958 and 1965) that have laid down the contours of the law concerning parliamentary and legislative privileges in India and their im-pact on press freedom. “But they have not been uniformly consistent”, says Nariman. He also deals with another important re-lated question: Can there be a judicial re-view of contempt proceedings by a legisla-tive body against a person not its member? He feels, “No authority in India – whether executive or legislative – can claim immu-nity from scrutiny of its decisions by the higher judiciary except as provided in the Constitution. Whilst the Constitution does provide that their validity of any proceed-ing in Parliament or a state legislature shall not be called in question (in any court) this injunction is expressly circum-scribed, viz, that it shall not be called in question on the ground of an irregularity of procedure.” The issue of contempt, though very im-portant, is highly controversial. It cannot be resolved easily. Both the judiciary and legislature would like to exercise this power. Referring to its highly controver-sial aspects Samar Ditya Pal, observes, “Fundamental right to free speech and ex-pression guaranteed by Art 19(1) (a) of the Constitution is denied to those who speak the truth about judges and this denial is not the basis of any enacted law imposing any or any reasonable restrictions permis-sible under Art 19(2) of the Constitution...” Further he says, “They also emphatically point out that not allowing access to truth would be an unreasonable restriction on the constitutionally guaranteed right to free speech and expression”. The critics of this view, according to Pal, argue that the framers of the Consti-tution were not so naïve that they could proceed on the assumption that there would be no occasion for questions regard-ing the integrity of the judges. For that there are provisions. One can proceed against a corrupt judge on the basis of sub-stantial evidence and draw the attention of the chief justice of the high court in case of the subordinate judiciary. Also, a com-plaint against presiding officers of subor-dinate courts is held not contempt when a person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presid-ing officer of any subordinate court to any subordinate court or to the high court to which it is subordinate. Changing Notions of ReportingN R Madhava Menon has dealt with the question of media reporting and the law of contempt in ‘Media Reporting of Crime and Fair Trial Guarantee’. He refers to a case in Kerala where a case pertaining to a sex scandal was going on; “…a bench of the Kerala High Court expressed its displeasure against media trial in strong words while disposing of an appeal against conviction in a sensational sex scandal involving in-fluential people. The court was against the way in which the press and television car-ried on a campaign from the beginning with stories, real and imaginary, on the case when the investigation and trial were in progress.” What is more, while acquit-ting the accused who were convicted by the lower court, the high court seemed to have wondered whether the campaign did influence the judicial processes resulting in possible miscarriage of justice. Courts, Legislatures, Media Freedom edited by K N Hari Kumar;National Book Trust, India; pp 190, Rs 200.The legislature, judiciary and media constitute the real pillars of demo-cracy. To preserve and strengthen these institutions is to ensure the smooth functioning of democracy and to protect basic freedoms. Thus, these institutions must be allowed and “ensured” to function within their own areas of jurisdiction. However, there is always a gap between the real and the ideal. A flawed functioning for various reasons, including above all, those of clashing interests, create difficult problems and these problems have to be resolved. The volume under review takes a critical view of these problems and suggests ways and means of resolution. The contri-butors to this volume excel in their respec-tive fields. Hari Kumar who has editedthis volume has been editor of Deccan Herald. Others are B R P Bhaskar, a journalist, Fali S Nariman, noted advocate, Samar Ditya Pal, retired judge, NRMadhavaMenon of the National JudicialAcademy,Rajeev Dhavan, senior counsel at the Supreme Court, and Uday Raj Rai, professor of law. The contributors have thrown light on the notion of contempt in legal terms and in context of the legislature and the me-dia. What are the limits of freedom? Can the stick of contempt of legislation or court be indiscriminately held against the me-dia? Is proper discretion exercised by the judiciary and legislature? Can legislature or judiciary indiscriminately apply the law of contempt against the media? Would it amount to curtailing freedom of the me-dia? Can the media fearlessly discharge its duties to the public with the sword of the law of contempt always hanging over its head? Can legislatures prevent media from reporting its proceedings in all fair-ness? These are important questions dealt with in this volume. The issue of contempt is highly contro-versial. Should it be used to maintain the majesty of the court and privileges of legislature, even at the cost of the freedom of the press? The editor says, “For the
BOOK REVIEWnovember 3, 2007 Economic & Political Weekly40Madhava Menon then talks about market-driven journalism which thrives through sensationalism that means more readership or viewership. This is a devia-tion from the noble principle of freedom of expression and using that provision for maximising profit. And this may need the application of some kind of stick, even contempt law. But the law needs more bal-anced coverage in high profile cases. Rajeev Dhavan in ‘Contempt of Court and the Press’, writes, “The rise of print journalism posed an intriguing challenge for the common law…, But the advent of volatile and critical media caused the judges to create a powerful law of contempt of court by which punishment for contempt of court would be dealt with by a summa-ry process…” he also points out, “Although Irish courts were uncomfortable with this massive self-empowerment of the judici-ary, the summary principle had come to stay and gradually ingressed intoIndian law…” Further he observes thathavingtest-ed the power, “punish(ment) for contempt could not be limited to the punishment of six months indicated by the Act of 1926. Its wings in this regard were clipped by an amendment of 1937 which imposed pre-cisely this limitation on the High Courts.” Deciding ResponsibilityUday Raj Rai deals with ‘Governance, Governing Institutions and the Fourth Estate’, where he says, “Freedom of Press or right of speech and expression can be explained and justified in diverse ways. One of the theories which is current these days is the right to know model. This theory is most appropriate for our present purpose because the mainstay of all arguments ad-vanced in this paper in support of the right of the press to gather information, dissem-inate that information and to comment on the same lies in the right of the citizenry to be kept informed and guided about the ways the governance is being carried out.” But again the question is whether the press performs this right with all sense of responsibility and abstains from misusing it in private interest as it happened in com-munal riots in Ahmedabad in 1985 when a Gujarati newspaper published highly irresponsible stories to keep the riot going so that the government of Madhav Sinh Solanki was forced to resign. Often this can happen with respect of a case in the court if powerful interests are involved. Another important question is whether a judgment delivered by a court of law can be criticised or not, at least on grounds of principles and values of justice and fair-play? Rai feels it this should be permissible. He says, “it is respectfully submitted that entire approach of the court was erroneous (citing a particular case). But before I point out the errors in judicial approach, I must point out that the decision of the Court itself is in a very narrow compass. But it is treated to have decided something much wider that what was actually decided.” The present volume edited by Hari Kumar is indeed of great significance as a number of questions continue to be raised with the deepening penetration of demo-cracy on one hand, and, on the other, ex-ploitation of certain provisions of press freedom for personal or group benefits or for commercial gains.Email: csss@mtnl.net.in
BOOK REVIEWEconomic & Political Weekly november 3, 200739Contempt and the LawAsghar Ali Engineer questions posed …there are no easy an-swers, no panaceas. Only the long, hard and increasingly risky road of public opin-ion, to change the attitudes and ideas and statutes and interpretations remains. In fact, public debate is in itself the strongest solvent of tyranny and, hence, the most resisted by any dictatorship.” Privileges and RightsFali S Nariman deals with the privileges of the legislature and the freedom of the press in ‘Legislative Privileges and the Freedom of the Press – A Legal Analysis’. He bases his paper on three cases decided by Constitution Benches of the Supreme Court of India (in the years 1952, 1958 and 1965) that have laid down the contours of the law concerning parliamentary and legislative privileges in India and their im-pact on press freedom. “But they have not been uniformly consistent”, says Nariman. He also deals with another important re-lated question: Can there be a judicial re-view of contempt proceedings by a legisla-tive body against a person not its member? He feels, “No authority in India – whether executive or legislative – can claim immu-nity from scrutiny of its decisions by the higher judiciary except as provided in the Constitution. Whilst the Constitution does provide that their validity of any proceed-ing in Parliament or a state legislature shall not be called in question (in any court) this injunction is expressly circum-scribed, viz, that it shall not be called in question on the ground of an irregularity of procedure.” The issue of contempt, though very im-portant, is highly controversial. It cannot be resolved easily. Both the judiciary and legislature would like to exercise this power. Referring to its highly controver-sial aspects Samar Ditya Pal, observes, “Fundamental right to free speech and ex-pression guaranteed by Art 19(1) (a) of the Constitution is denied to those who speak the truth about judges and this denial is not the basis of any enacted law imposing any or any reasonable restrictions permis-sible under Art 19(2) of the Constitution...” Further he says, “They also emphatically point out that not allowing access to truth would be an unreasonable restriction on the constitutionally guaranteed right to free speech and expression”. The critics of this view, according to Pal, argue that the framers of the Consti-tution were not so naïve that they could proceed on the assumption that there would be no occasion for questions regard-ing the integrity of the judges. For that there are provisions. One can proceed against a corrupt judge on the basis of sub-stantial evidence and draw the attention of the chief justice of the high court in case of the subordinate judiciary. Also, a com-plaint against presiding officers of subor-dinate courts is held not contempt when a person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presid-ing officer of any subordinate court to any subordinate court or to the high court to which it is subordinate. Changing Notions of ReportingN R Madhava Menon has dealt with the question of media reporting and the law of contempt in ‘Media Reporting of Crime and Fair Trial Guarantee’. He refers to a case in Kerala where a case pertaining to a sex scandal was going on; “…a bench of the Kerala High Court expressed its displeasure against media trial in strong words while disposing of an appeal against conviction in a sensational sex scandal involving in-fluential people. The court was against the way in which the press and television car-ried on a campaign from the beginning with stories, real and imaginary, on the case when the investigation and trial were in progress.” What is more, while acquit-ting the accused who were convicted by the lower court, the high court seemed to have wondered whether the campaign did influence the judicial processes resulting in possible miscarriage of justice. Courts, Legislatures, Media Freedom edited by K N Hari Kumar;National Book Trust, India; pp 190, Rs 200.The legislature, judiciary and media constitute the real pillars of demo-cracy. To preserve and strengthen these institutions is to ensure the smooth functioning of democracy and to protect basic freedoms. Thus, these institutions must be allowed and “ensured” to function within their own areas of jurisdiction. However, there is always a gap between the real and the ideal. A flawed functioning for various reasons, including above all, those of clashing interests, create difficult problems and these problems have to be resolved. The volume under review takes a critical view of these problems and suggests ways and means of resolution. The contri-butors to this volume excel in their respec-tive fields. Hari Kumar who has editedthis volume has been editor of Deccan Herald. Others are B R P Bhaskar, a journalist, Fali S Nariman, noted advocate, Samar Ditya Pal, retired judge, NRMadhavaMenon of the National JudicialAcademy,Rajeev Dhavan, senior counsel at the Supreme Court, and Uday Raj Rai, professor of law. The contributors have thrown light on the notion of contempt in legal terms and in context of the legislature and the me-dia. What are the limits of freedom? Can the stick of contempt of legislation or court be indiscriminately held against the me-dia? Is proper discretion exercised by the judiciary and legislature? Can legislature or judiciary indiscriminately apply the law of contempt against the media? Would it amount to curtailing freedom of the me-dia? Can the media fearlessly discharge its duties to the public with the sword of the law of contempt always hanging over its head? Can legislatures prevent media from reporting its proceedings in all fair-ness? These are important questions dealt with in this volume. The issue of contempt is highly contro-versial. Should it be used to maintain the majesty of the court and privileges of legislature, even at the cost of the freedom of the press? The editor says, “For the 
BOOK REVIEWnovember 3, 2007 Economic & Political Weekly40Madhava Menon then talks about market-driven journalism which thrives through sensationalism that means more readership or viewership. This is a devia-tion from the noble principle of freedom of expression and using that provision for maximising profit. And this may need the application of some kind of stick, even contempt law. But the law needs more bal-anced coverage in high profile cases. Rajeev Dhavan in ‘Contempt of Court and the Press’, writes, “The rise of print journalism posed an intriguing challenge for the common law…, But the advent of volatile and critical media caused the judges to create a powerful law of contempt of court by which punishment for contempt of court would be dealt with by a summa-ry process…” he also points out, “Although Irish courts were uncomfortable with this massive self-empowerment of the judici-ary, the summary principle had come to stay and gradually ingressed intoIndian law…” Further he observes thathavingtest-ed the power, “punish(ment) for contempt could not be limited to the punishment of six months indicated by the Act of 1926. Its wings in this regard were clipped by an amendment of 1937 which imposed pre-cisely this limitation on the High Courts.” Deciding ResponsibilityUday Raj Rai deals with ‘Governance, Governing Institutions and the Fourth Estate’, where he says, “Freedom of Press or right of speech and expression can be explained and justified in diverse ways. One of the theories which is current these days is the right to know model. This theory is most appropriate for our present purpose because the mainstay of all arguments ad-vanced in this paper in support of the right of the press to gather information, dissem-inate that information and to comment on the same lies in the right of the citizenry to be kept informed and guided about the ways the governance is being carried out.” But again the question is whether the press performs this right with all sense of responsibility and abstains from misusing it in private interest as it happened in com-munal riots in Ahmedabad in 1985 when a Gujarati newspaper published highly irresponsible stories to keep the riot going so that the government of Madhav Sinh Solanki was forced to resign. Often this can happen with respect of a case in the court if powerful interests are involved. Another important question is whether a judgment delivered by a court of law can be criticised or not, at least on grounds of principles and values of justice and fair-play? Rai feels it this should be permissible. He says, “it is respectfully submitted that entire approach of the court was erroneous (citing a particular case). But before I point out the errors in judicial approach, I must point out that the decision of the Court itself is in a very narrow compass. But it is treated to have decided something much wider that what was actually decided.” The present volume edited by Hari Kumar is indeed of great significance as a number of questions continue to be raised with the deepening penetration of demo-cracy on one hand, and, on the other, ex-ploitation of certain provisions of press freedom for personal or group benefits or for commercial gains.Email: csss@mtnl.net.in
