Justice B.K. Sharma
(Former Judge, Gauhati High Court)
In 2018, the then Chief Justice of India, Justice Dipak Misra, while delivering a lecture, said, “I am of the firm belief that there should be no guidelines for the media. Let them frame their own guidelines and be guided by that. Nothing can serve better than individual or collective guidelines of the press. There should not be any imposition, but there should be some kind of self-restriction.” The Chief Justice underlined that the media must maintain objectivity while reporting on cases that could stir public emotions.
Needless to say, the freedom of speech plays a pivotal role in shaping public opinion on matters of national importance, thereby creating an informed citizenry. Freedom of the press in a democratic society is the mother of all liberties. There is no doubt it is one of the most cherished and valuable rights guaranteed under the Constitution. It includes the right to know and the right to inform.
If newspapers indulge in scandalous reporting, society risks being swayed by what has been called “the yellow” or “gutter” press. Irresponsible court reporting can also damage public trust. When newspapers attack judges, impute dishonesty or bias, or sensationalise proceedings to influence public perception, the dignity of the judiciary stands jeopardised. Recognising these dangers, the Government of India’s Press Laws Enquiry Committee of 1948 suggested that the press should give truthful and comprehensive accounts of events, provide a forum for comment and criticism, reflect diverse social opinions, and responsibly communicate societal values.
Freedom of the press in India derives from Article 19(1)(a) of the Constitution, which guarantees the freedom of speech and expression. However, this right is subject to the reasonable restrictions laid down in Article 19(2), which include sovereignty and integrity of India, public order, decency, morality, defamation, and contempt of court. Thus, the liberty of the press stands on no higher footing than that of any citizen.
Journalists must therefore exercise great caution when reporting on matters before the courts. Publishing opinions about a case or the guilt or innocence of an accused before the verdict amounts to contempt of court. Similarly, biased or sensational reporting during a trial can prejudice the public mind or even influence witnesses. Even after a verdict, misrepresenting court decisions can be contemptuous. Fair criticism based on facts is permissible, but scurrilous attacks on judges or imputations of corruption and bias are not.
A journalist, as one judge aptly observed, “has no greater right than he who speaks out of it. A newspaper is no sanctuary behind which a person can shield himself from breaking the laws of the land.”
Press contempt may take several forms—scandalising the court or judges, prejudicing a fair trial by commenting on pending cases, or publishing material likely to influence public opinion against a party. The principle is simple: any publication intended or calculated to prejudice the course of justice constitutes contempt.
History offers several instructive precedents. In 1954, the Gauhati High Court in J.C. Medhi v. Frank Moraes held that misleading headlines and inaccurate reporting of court decisions tend to prejudice the public mind and interfere with justice. It was so held when the offending news item conveyed that while the University had rightly failed the candidate, the Court invalidated that decision when it was found that under the Rules, all that was required was to obtain 30% in each of the subjects to make the candidate pass the examination, which the candidate had in fact secured. The offending headline was “Failed candidate to get his degree.”
The Supreme Court has repeatedly cautioned against “trial by media”. In a 1997 case, it observed that such publicity can lead to miscarriage of justice, describing it as “the very antithesis of the rule of law.” In 2005, the Court deprecated a magazine article that discussed a dowry death case while it was sub judice, warning journalists against interfering with the administration of justice. Again, in 2015, it imposed imprisonment on an advocate who publicly insulted judges, observing that freedom of expression does not extend to abusive language against the judiciary. A very recent incident of such nature is that of a lawyer who attempted to throw a shoe at the Hon’ble Chief Justice of India inside the courtroom.
When newspapers discuss evidence, predict verdicts, or publish one-sided versions of sub judice matters, they conduct a “trial by newspaper”—a practice that undermines the courts. Judges, though trained to remain impartial, are not immune to public pressure. As Justice Cardozo famously noted, “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”
It is therefore criminal contempt to publish opinions on cases pending before courts if such comments are calculated to influence outcomes or prejudice parties. However, fair and factual reporting of proceedings does not amount to contempt.
The Supreme Court in Arundhati Roy (2002) aptly observed: “Rule of Law is the basic rule of governance of any civilized democratic polity... For the judiciary to perform its duties effectively, the dignity and authority of the courts have to be respected and protected at all costs.”
The law of contempt exists to maintain public confidence in the judicial process. If this faith is eroded, democracy itself stands imperilled. The Constitution confers on the Supreme Court and High Courts powers under Articles 129 and 215 to punish for contempt. There is no separate guarantee of press freedom—it flows from the same right of expression available to all citizens.
A free press is the sine qua non of any free country where dictatorship is absent, where there is no throttling of dissemination of news and views. However, a free press does not necessarily connote licence without any restriction whatsoever. It merely indicates that the press is allowed to function in the country under the minimum normal restrictions conceived in the interest of the health, prosperity and stability of the very society which the press wants to safeguard. While fair comment in the press is desirable and is privileged, there is no privilege to allege as facts that which is not true. That will be libellous. In ensuring that public discourse remains free, fair, and responsible, both institutions—the judiciary and the media—must act with mutual respect, for together they uphold the very foundation of justice and democracy.