First unedited draft
The reportage of legal affairs and proceedings involves the risk of committing contempt of court. The subject is governed in India by the 1971 Contempt of Courts Act which repealed the 1952 Contempt of Courts Act, and which deals with two forms of contempt: criminal and civil. The statute, however, does not consolidate the law of contempt, and Section 22 indicates that it merely supplements other laws relating to contempt without derogating from them. Its applicability is also limited: under Section 21, it does not apply to Nyaya Panchayats or other villages courts, and, even where it does apply, Section 20 requires proceedings of contempt to be initiated within one year after the contempt is alleged to have been committed. Under Section 11, each High Court has jurisdiction to inquire into or try contempt of itself or of any court subordinate to it.
Civil contempt is defined in Section 2(b) to mean ‘willful disobedience to any judgement, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court’ and has become increasingly relevant in an age when courts sometimes issue orders relating to what may legitimately be published.
In contrast, criminal contempt is defined in Section 2(c) of the statute; it can be committed by doing anything or publishing any content which tends to scandalize or to lower the authority of any court, interfere with the due course of any judicial proceeding or with the administration of justice, or to obstruct the latter, or which actually results in any of these consequences. Section 13(a), however, indicates that interference must be substantial for a sentence to be imposed – in other words, a sentence would generally not be imposed for contempt which is trivial.
In the cases of interference and obstruction of justice in relation to proceedings pending at that time of publication, Sections 3(1) and (3) clarify that those who publish assailable content without having reasonable grounds to believe that proceedings were pending shall not be held guilty of contempt of court, and neither shall those who distribute such content as long as they have no reasonable grounds to believe it contains problematic matter and the content is legitimately published in terms of the statute. Further, under Section 3(2), if there are no pending proceedings, there is no contempt committed in relation to obstruction or interference. Criminal contempt may, however, also be committed by prejudicing judicial proceedings, and it isn’t entirely clear how these exceptions to contempt would apply to it.
Thus, publishing any matter relating to courts or legal proceedings which is unfair, or unsubstantiated, or which a court has specifically ordered not be published could potentially result in one’s committing contempt of court. The statute, however, is not intended to act as a censorship tool and, under Section 13(b), a court may permit justification by truth as a valid defence in any proceeding for contempt of court if it is satisfied that it is in public interest and the request for invoking the defence is made is good faith.
The 1971 Contempt of Courts Act also states in Section 7(2) that a person shall not be guilty of contempt of court for publishing the text or a fair and accurate summary of the whole or any part, of an order made by a court sitting in chambers or in camera, unless the court has expressly (and legitimately) prohibited publication. This provision effectively reiterates and builds on the theme of Section 7(1) which, as a general rule, exempts publishers from liability if they publish ‘a fair and accurate report of a judicial proceeding before any court sitting in chambers or in camera’– exceptions to this general rule come into play if there is already a statutory provision prohibiting publication, if a court has expressly prohibited publication of specific information, if the information relates to proceedings where the court sits in chambers or in camera for reason connected with public order or the security of the State, or if the information relates to a secret process, discovery or invention which is an issue in proceedings.
Section 7 of the statute in its entirety also carves out a limited restriction to the aphorism contained in Section 4 which blandly states: “Subject to the provisions contained in section 7, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.” In addition to the provision which deals with reports of judicial proceedings, the statute also contains a broad-spectrum exception to contempt in Section 5 which ensures that a person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided. Thus, it repeatedly attempts to ensure that the provisions of the Contempt of Courts Act cannot be used indiscriminately.
Harkening to the law of contempt at it stood before the passing of the 1971 Contempt of Courts Act, Section 9 clarifies that the statute is not intended to enlarge the of scope of contempt by stating that nothing contained in it ‘shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which would not be so punishable apart from this Act’ while Section 8 says that nothing in the statute ‘shall be construed as implying that any other defence which would have been a valid defence in any proceedings for contempt of court has ceased to be available’ merely because of its provisions.
It contains a multitude of procedural provisions and those found to have committed contempt may, under Section 12, be fined up to two thousand rupees and possibly also punished with simple imprisonment or by being detained in a civil prison for up to six months depending on the nature of the contempt and the facts and circumstances of the case. The accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. The statute mandates that an apology shall not be rejected merely because it is that it is qualified or conditional as long as it is made in good faith.
As such, although the 1971 Contempt of Courts Act limits the publication of some content, it is rife with exceptions that protect free speech. Its aim merely seems to be to restrain reportage which is knowingly reckless and damaging to the judiciary and to the administration of justice. It does not seem to set up a framework in which the courts and their judgments are above all legitimate criticism.
(nb: This post deals with the non-procedural provisions relating to contempt from the point of view of the 1971 contempt statute alone, and nuance has been sacrificed for brevity. It's worth reading the 274th Report of the Law Commission, A Review of the Contempt of Court Act 1971 Limited to Section 2, for an overview of the law of contempt in India and its history.)
(This post is by Nandita Saikia and was first published at IN Content Law.)