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Curator: Kartik Chawla, Student, B.A., LL.B. (Hons.), NALSAR University of Law

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Theory of Freedom of Expression and Contempt of Court

1. S P Sathe, EPW, Freedom of Speech and Contempt of Court, October 1970 [Paid Database]
This article is a comment on the EMS Namboodiripad v. T N Nambiar case (ref. ), which also discusses the evolution of the Indian law of Contempt, the influence of the English law on it, and suggests that the power of the courts under ‘contempt’ should be redefined in the context of ‘reasonableness’, and says that the dicta of the chief justice insofar as it restricts the restriction on freedom of expression only to cases where contempt is ‘manifest’ or ‘substantial’ is a definite improvement. It notes that the law of contempt is necessary, but should be redefined and limited to cases where it actually interferes with the administration of justice.

2. Soli J. Sorabjee, Freedom of Expression and Censorship – The Indian Experience, 1994 [Paid Database]
This article discusses the importance of the freedom of expression and the freedom of press in the Indian context, and in the specific context of the constitution and the restrictions it allows to be placed on it. It then discusses censorship as an inevitable result of this, focusing on prior restraint and traces the history of legislation and cases on these principles, from the perspective of both civil and criminal law, and concludes with recommendations on changes which are needed, mentioning the law of contempt specifically.

3. A G Noorani, EPW, Contempt of Court and Free Speech, May 2001 [Paid Database]
This book review discusses the theory of Contempt of Court, in the context of its removal from the English courts, the European Convention on Human Rights, the Australian High Courts, and the Tasmanian case of a newspaper called The Mercury, and concludes with the note that though our Constitution adopted British law as frozen in 1950, it has failed to since then keep up with the developments in it, or with its spirit.

4. B. Manna, Mass Media and Related Laws in India, January 2006 [eBook Chapter]
A summary, analysis, and case study of the laws around contempt of court in India, along with their history.

5. Salonika Kataria & Aneesh Sharma, NUJS Law Review, Cameras In Indian Courtrooms A Bliss Or a Misery – Learning From The American Experience, 2008 [Open Access]
This article focuses on the idea of introducing cameras in Indian courtrooms, tracing the origins of the idea back the United States, making a cost-benefit analysis of the suggestion. It considers the advantages of such a step in educating the Indian masses about the judiciary to its drawbacks with regards to the right to fair trial and due process of law of an accused. It attempts to establish that such a system is not currently feasible.

6. Mriganka Shekhar Dutta & Amba Uttara Kak, Contempt of Court – Finding the Limit, 2009 [Open Access]
This paper traces the origin and the principles behind the theory of Contempt of Court. It starts with tracing the legitimacy of contempt of court and its purpose using sources from English law and Hindu Law, and raises questions regarding the former. It comments on the Contempt of Courts Act, 1971, and the Contempt of Courts Act, 1952, arguing that it seems to be either evolving to a less objectionable model, or heading towards abolishment entirely. It comments specifically on the Arundhati Roy case, criticising the Supreme Court’s actions in it, and also on other landmark Indian cases on Contempt of Court such as Namboodripad and Wah! India case. It then comments on the concept of Truth as a Defence. It concludes with statements that nite the colonial origin of the law of Contempt, the atrocities that are caused by the courts under these principles, and recommend abolishment of the law entirely, or its modification to a more suitable form.
Judicial Accountability

7. Shayonee Dasgupta & Sakshi Agarwal, Judicial Accountability and Independence – Exploring the Limits of Judicial Power, 2009 [Open Access]
This article examines judicial accountability in the context of contempt of court, in its status as being at loggerheads with judicial independence. It does not focus on the media aspect of Contempt.

8. Prashant Bhushan, EPW, Securing Judicial Accountability – Towards an Independent Commission, October 2007 [Open Access]
This article, written in response to Contempt of Court proceedings against journalists, explores the need for greater judicial accountability. It notes that the judiciary currently holds too much power, and how difficult it is to impeach a member of the judiciary, the fear that has been created in the media for Contempt of Court proceedings, traces the colonial legacy of the principle, outlines issues in the 2006 bill, and finally concludes with its recommendation of an independent National Judicial Commission to investigate charges against judges

Contempt of Court and the Media

9. John McGarth, Contempt and the Media – Constitutional Safeguard or State Censorship, December 1987 [Paid Database]
This article discusses Contempt of Court by the media in the context of the Bridges v. California case, elaborating on the views of America and New Zealand to the principle, describing why the law of Contempt of Court is needed, discussing the particular concerns raised with regard to contempt of court from trial by jury, publication of specific kinds of material such as criminal records and confessions. It then comments on the interaction between Contempt and Free Expression and how the law of Contempt is changing with time, and on the Gisborne Herald case, which said that the common law of contempt is a balancing act between public interest factors. It concludes by observing that the conventional acceptance of the media needing to function in a way that protects the criminal justice system has come under pressure, but that the law of Contempt is not a law of arbitrary censorship, but a constitutional safeguard.

10. Michael Bersten, Pecksniff’s Progress – Reforming Media Contempt, December 1988 [Paid Database]
This article analyses the case of Hinch v. A.G. (Victoria) High Court, Unreported 15 October 1987, using it as a basis for a discussion on reforming the law of contempt, in the context of the theory of ‘public interest’ behind it and the political relationship between the law, the production of crime, and the criminal justice system.

11. Donald M. Gillmor, Free Press And Fair Trial In English Law [Paid Database]
This paper discusses, with examples, the conflict between the right to free press and to free trial in England. It describes the procedure of a Contempt of Court proceeding in England, and practical way in which media proceeds in matters involving the court for fear of Contempt of Court proceedings. It considers the question of having cameras in preliminary hearings in detail. It then notes that a ‘third line of defence’ has been created in this issue, with regard to the fear of the media to report, due to contempt of court proceedings.

12. Roger Lend, Contempt – The Courts vs. The Press [Paid Database]

13. Bronwyn Naylor, Fair Trial Or Free Press – Legal Responses To Media Reports Of Criminal Trials, 1994 [Paid Database]
This paper comments on the cases of R v. Taylor, R v. Reade, and other cases in order to consider the question of the checks on the press needed in order to ensure a free and fair trial, in the context of Britain. It claims that a majority of the press activity falls outside of legal regulation, and discuss the available legal remedies for prejudicial publicity, those being pre-emptive restrictions on reporting, proceedings for contempt, and prejudice as a ground for appeal.

Indian Articles and Papers

14. A G Noorani, EPW, Civil Liberties – Public Discussion and Contempt of Court, December 1984 [Paid Database]
This article discusses the question of application of contempt of court in case of not a criminal case but a constitutional one, using the illustration of a writ petition through the Tamil Nadu Exhibition of Films through VCR (Regulation) Act, in which the legislation itself was in question.

15. Article 19, Background Paper on Freedom of Expression and Contempt of Court, November 2000

16. V. Venkatesan, Frontline, What constitutes ‘scandalising the court’, May 2001
This article discusses the exact constituents of contempt of court in the context of its definition under various sources and the Wah! India case. It questions the definition of ‘contempt of court’ as implied by the case, and suggests a rethink on the point.

17. Arundhati Roy, A reply to the court, November 2001 [Open Access]
Arundhati Roy’s affidavit submitted to the Court in response to a Contempt notice issued to her, denying any contempt on her part.

18. S P Sathe, EPW, NBA Contempt of Court Case, November 2001[Paid Database]
A comment on the Contempt of Court law in general, and on the specific contempt of court case against three members of the Narmada Bachao Andolan.

19. Sukumar Mukhopadhyay, EPW, Truth on Its Way to Half a Victory, February 2006 [Paid Database]
A commentary on ‘truth as a defence’ to contempt of court, and how the amendment to the Contempt of Court Act, 1971, is only half a step, though it is nonetheless in the right direction. Also notes that the High Court and the Supreme Court are not affected by the amendment.

20. Dasu Krishnamoorthy, The Hoot, Media and judiciary, Sep 2006
This article is a comment on press reporting on criminal cases, in the context of some of the statements made by then Law Minister H R Bharadwaj, and contradictory statements made by Supreme Court Judge K G Balakrishnan and Solicitor General E. Vahnvati, then Karnataka Lokayukta N. Santosh Hegde, and others.

21. V. Venkatesan, Law and Other Things, Contempt of Court – Arundhati Roy Case Revisited, September 2007 [Blog Post]
An analysis and critique of the 2001-2002 Supreme Court Contempt of Court case of Arundhati Roy (ref. ), in response to the Mid-Day case (ref. )

22. Madhu Bhaduri, EPW, The Contempt of Evidence, October 2007 [Paid Database]
An analysis of the Justice Sabarwal Contempt of Court case, against Mid Day reporters, along with an analysis of the protection the Courts have given themselves from media attention.

23. K.G. Balakrishnan, Address to a Workshop on Media Reporting and NREGA in Assam, April 2009
An address by the the CJI Hon’ble Sh. K.G. Balakrishnan to a workshop in Assam, the first half of which deals with the role of the media in the administration of justice. He talks about ‘freedom of the press’ and its corresponding responsibilities, and also outlines the broad categories of concern with respect to the report of press proceedings. He also provides a basic and broad explanation of the doctrine of Contempt of Court as it stood at the time and comments on the changes technology is bringing to the process.

24. Kannan Kasturi, India Together, Is ‘contempt of court’ blocking justice, December 2010
This article discusses the broad legal definition and constituents of the law of Contempt of Court, touching on the acts of 1926, 1952, and 1971, the Constitution, and certain cases, also discussing the principle of ‘truth as a defence’.

25. N P Chekkutty, The Hoot, A Debate on Right to Report, July 2012 [News Article]
This article discusses the question of Contempt of Court by the Media, right of the media to report in a case once an FIR has been filed, and the extent of such right, in the context of widespread news reports in Kerala after rebel CPM leader P. Chandrashekharan was hacked to death, and the numerous contempt of court petitions that had been filed in the Kerala High Court after the same.

26. Shuchi Bansal, Livemint, ‘What will this SC order achieve’, Sep 2012
This article is a comment on the SC order in Sahara India Real Estate v. Securities & Exchange Board Of India. It also makes note of the various opinions on the topic.

27. Prachi Shrivastava, Legally India, Express & Pioneer to carry front page apologies to SC for court reporting, November 2012 [News Report]
Comment on a SC case wherein it had suo moto brought proceedings against two newspapers for their reports, finding them in contempt of court.

28. Dhananjay Mahapatra, Law Resource India, Harish Salve Explains SC Powers on Contempt, April 2012
An article reporting Harish Salve’s explanation of the SC’s powers on Contempt of Court in response to a query by a five judge bench during the hearing of a case filed by Vodafone, and on the clash between freedom of press and the right to dignity and reputation of the persons involved in a case.

Removal of Contempt of Court Law in the UK

29. UK Law Commission, Consultation Paper on Scandalising the Court, 2012
Consultation paper of the UK Law Commission on the removal of the offence of Scandalising the court, including responses to the paper and its findings, and a summary.

30. Discussion regarding amendment to remove Contempt of Court Laws from England and Wales, Parliament, Lords Hansard text, Dec 2012
Transcripts of the discussion after the removal of the offence of Scandalising the Court was moved in the House of Lords.
Media Trials

31. Law Commission of India, Report on Trial By Media, 200th Report, August 2006 [Law Commission Report]

32. Arpan Banerjee, Judicial Safeguards Against Trial By Media – Should Blasi’s ‘Checking Value’ Theory Apply in India, January 2011 [Paid Database]

33. Mithilesh Kumar, Mondaq, Media Trial Versus Free And Fair Administration Of Justice – Need For Guidelines, September 2013 [Online Article]
A summary of the essential principles given by the court in the case of Sahara v. SEBI (ref. 16), and a commentary on the legal situation surrounding the law of Contempt of Court.

Truth as a Defence

34. V. Venkatesan, India Journal of Constitutional Law, Truth As A Defence: How Effective Is The Amendment Of The Contempt Of Courts Act?, 2008 [Open Access]

Cases

Contempt of Court and the Right to Freedom of Expression

35. Privy Council, Andre Paul Terence Ambard v. The Attorney General Of Trinidad, March 1936
Privy Council decision on what comprises a ‘fair comment’, in the context of the right of an ordinary citizen to criticize “in good faith in private or public the public act done in seat of justice”.

36. State of UP v. Brahma Prakash And Ors, May 1950
Court case in which it was held that the criticism of a judge must be free from the imputation of improper motives.

37. Supreme Court, C. K. Daphtary & Ors v. O. P. Gupta & Ors, March 1971
Supreme Court case which upheld the constitutional validity of the power of contempt of court administered by the Supreme Court under Article 129, as a reasonable restriction vide Article 19 (2).

38. Supreme Court, Advocate General v. Abraham George, June 1975
Supreme Court case on the principle of ‘continuing contempt, based on truth not being a defence in a contempt of court case. The principle has been changed by amendment.

Contempt of Court by Media

39. US Supreme Court, Pennekamp v. State of Florida, June 1946
US case in which Justice Fraknfurter commented on the concept of ‘Judicial Superiority’, and stated why the doctrine of Contempt of Court is needed – that is, since even if the Judges would not be consciously influenced by anything not seen or heard in court and by what is judicially appropriate, they are but human, and can be unconsciously influenced by ‘irresponsible print’.

40. Supreme Court, E. M. Sankaran Namboodiripad v. T. Narayanan Nambiar, July 1970
Landmark case on Contempt of Court, in which the Supreme Court found former CM of Kerla EMS Namboodiripad guilty of criminal contempt of court for his speech on the judiciary, which was a statement on the role of the judiciary from a Marxist perspective.

41. Supreme Court, In Re – Shri S. Mulgaokar, February 1978
Supreme Court case in which the Court laid down guidelines for courts to follow in order to ascertain when reporting by media must be met with punitive action, framed with the aim of maintaining a balance between the interests of the judiciary and the media.

42. Supreme Court, R. Rajagopal v. State Of T.N, October 1994
Supreme Court case wherein the general principle that the courts cannot impose ‘prior restraint’ on publications in media was established.

43. Supreme Court, In Re – Harijai Singh & Anr; In Re – Vijay Kumar, September 1996
Supreme Court case wherein The Sunday Tribune and Punjab Kesari were found guilty of contempt of court for publishing news items stating that two sons of a senior SC judge and two sons of the Chief Justice of India had been favoured in allotment of petrol outlets from a discretionary quota allotted to the Petroleum Minister. The news reports were held, and accept, to be unconfirmed and false. The newspapers were ordered to publish apologies on their front pages.

44. Supreme Court, Narmada Bachao Andolan v. Union Of India (UoI) And Ors., October 1999
Supreme Court case in which it was held that no person is permitted to distort orders of the court and deliberately give a scandalising or ridiculing slant to its proceedings, but the Court also affirmed the right of criticising in good faith in private or public a judgement of the court, while stating that it cannot be exercised with malice or in an attempt to administer justice.

45. Supreme Court, J. R. Parashar, Advocate & Ors v. Prasant Bhushan, Advocate & Ors, August 2001
Contempt of Court case against Prashant Bhushan, Arundhati Roy, and Medha Patekar for staging a dharna in front of the Supreme Court on December 13, 2000, and allegedly insulted and assaulted lawyers of the Court.

46. Supreme Court, In Re – Arundhati Roy, March 2002
Supreme Court case finding Arundhati Roy guilty of Contempt of Court for three paragraphs in her affidavit, and for not apologising to the Court for them on the receipt of the Show Cause notice.

47. Delhi High Court, Court on its Own Motion v. M. K. Tayal and Ors., September 2007
High Court decision finding four Mid-Day journalists guilty of Contempt of Court for publishing a cartoon in the newspaper of former CJI Mr. Y. K. Sabharwal

48. Supreme Court, Sahara India Real Estate v. Securities & Exchange Board Of India, September, 2012
“What constitutes an offending publication would depend on the decision of the court on case to case basis. Hence, guidelines on reporting cannot be framed across the Board.”
Laid down a doctrine that, if requested, would allow courts to temporarily ban media from reporting a case if it would adversely affect the trial, the test being that the ‘actual’ publication “must create a real and substantial risk of prejudice to the proper administration of justice or to the fairness of the trial”.

49. Supreme Court, M.P. Lohia v. State of West Bengal, February 2005
“Even then an article has appeared in a magazine called ‘Saga’ titled “Doomed by Dowry” written by one Kakoli Poddar based on her interview of the family of the deceased. Giving version of the tragedy and extensively quoting the father of the deceased as to his version of the case. The facts narrated therein are all materials that may be used in the forthcoming trial in this case and we have no hesitation that this type of articles appearing in the media would certainly interfere with the administration of justice. We deprecate this practice and caution the publisher, editor and the journalist who was responsible for the said article against indulging in such trial by media when the issue is subjudiced. However, to prevent any further issue being raised in this regard, we treat this matter as closed and hope that the other concerned in journalism would take note of this displeasure expressed by us for interfering with the administration of justice.”

Videos

50. Ram Jethmalani, IBNLive, Exclusive: Jethmalani Flays the Media, November
A video recording of an interview with Ram Jethmalani, in which he responds to the interviewer’s questions about the Manu Sharma/Jessica Lall case with statements about contempt of court by the press.

Comparative Analysis

51. A G Noorani, The Hindu, An American Lesson in Court Reporting, April 2012
This article makes a comparison between the general attitude to Contempt of Court and Court Reporting in the US and in India, which highlights the amount of freedom given to American journalists to comment on court proceedings, and thus also highlights the lack of the same in India.

52. A G Noorani, Frontline, Courts and Contempt Powers, April 2000
This article is a comment on the law of Contempt of Court in India in the context of the Arundhati Roy case, and it also draws a comparison between the decline of Contempt laws in other countries and its Indian situation.
International Principles

53. UN Committee of Human Rights, General Comment 34 on Freedom of Opinion and Expression,

People

Prashant Bhusan
Soli Sorabjee
Arundhati Roy

Bibliography

1. Arpan Banerjee, ‘Contempt of Court and Criticism of the Judiciary’ (2007) 12 Media & Arts Law Review 320 (LexisNexis, Sydney)

2. Report of the Parliamentary Standing Committee on the proposed amendment to the Contempt of Courts Act, 2005

3. Dogmatix, Mathrubhumi, Contempt of court or contemptuous court?, Nov 2011

4. Stanley Shanapinda, Constitutionality of Contempt of Court – Media freedom of speech – The Constitutional Challenge of the Common Law Crime of Contempt of Court-The media, freedom of speech and expression, LAP Lambert Academic Publishing, May 2012

5. Supreme Court, Tata Press Limited v. Mahanagar Telephone Nigam, August 1995
Supreme Court case wherein commercial speech was held to be covered within the ambit of free speech protected under Article 19(a)

6. K.D. Gaur, Law Of Telecommunications And Broadcasting In India, 1991 [Paid Database]
A general overview of the evolution of the Indian telecommunications law, including its current form, and recommendations regarding necessary changes in the law to accommodate for changing technology.

7. Sanyal Committee Report, 1963

8. Clive Coleman, BBC News, Court of Appeal Allows Cameras, October 2013
A video news piece reporting on permission being granted to use cameras in the British Court of Appeals.

9. Abhinav Chandrachud, Speech, Structure, And Behavior On The Supreme Court Of India, 2012 [Paid Database]

10. Sumit Mitra, India Today, Diva of Contempt, August 2001
An article on Arundhati Roy herself, in the context of her disputes with court.

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