What Is Not Contempt: Sections 3 to 9 and Section 13

and in either case it is deemed to continue to be pending until it is heard and finally decided, that is, where an appeal or revision is competent, until the appeal or revision is heard and finally decided, or where none is preferred, until the period of limitation for it has expired.

A proceeding heard and finally decided is not pending merely by reason of the possibility of further steps.

Why it matters. Limb (ii) of section 2(c) bites only on a pending proceeding. The Explanation therefore fixes the window inside which the press must be careful and outside which section 3(2) makes the publication no contempt at all.

Section 4: fair and accurate reporting

"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."

Two words carry it: fair and accurate. A report that is selective so as to mislead is not fair; a report that misstates what happened is not accurate. Comment is not protected by section 4 at all, which is section 5's work.

The section is subject to section 7, dealing with proceedings in chambers or in camera.

Section 5: fair criticism of a decided case

"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."

Three limits, all of them examinable.

"Fair comment." Honest comment, not abuse and not an imputation of dishonesty.

"On the merits." Comment on the reasoning and the result. Section 5 does not protect an allegation that the judge was bribed, which is an attack on the judge and not on the merits.

"Heard and finally decided." The case must be over, and by the Explanation to section 3 that includes the exhaustion or expiry of appeal or revision.

The width of legitimate criticism is the subject of P.N. Duda v. V.P. Shiv Shankar, AIR 1988 SC 1208, (1988) 3 SCC 167, decided 15 April 1988 by Sabyasachi Mukharji J, in which the Court dealt both with the requirement of consent under section 15 and with the breadth of permissible criticism, holding that the administration of justice and judges are open to public criticism and that the path of criticism is a public way. That is the passage to quote when a question asks how contempt sits with free speech.

Section 6: complaints about a subordinate judge

"A person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate court to (a) any other subordinate court, or (b) the High Court, to which it is subordinate."

Explanation: "subordinate court" means any court subordinate to a High Court.

This is a small section with a large practical value for an advocate. Rule 1 of the Bar Council of India Rules provides that where there is proper ground for serious complaint against a judicial officer it is the advocate's right and duty to submit the grievance to the proper authorities. Section 6 is what makes that safe: a statement made in good faith about a subordinate judge, to the High Court or to another subordinate court, is not contempt.

Note the two limits. It must be in good faith, and it must be made to the right body. The same statement made to a newspaper is outside section 6 entirely.

Section 7: chambers and in camera proceedings

Section 7(1): notwithstanding anything in the Act, a person is not guilty of contempt for publishing a fair and accurate report of a proceeding before a court sitting in chambers or in camera, except in four cases:

• (a) where the publication is contrary to any enactment in force;
• (b) where the court, on grounds of public policy or in exercise of any power vested in it, expressly prohibits publication of all information relating to the proceeding or of the description published;
• (c) where the court sits in chambers or in camera for reasons connected with public order or the security of the State;
• (d) where the information relates to a secret process, discovery or invention which is an issue in the proceedings.

Section 7(2): a person is not guilty of contempt for publishing the text or a fair and accurate summary of the whole or part of an order made by such a court, unless the court has expressly prohibited it on grounds of public policy, public order or the security of the State, or because it contains information relating to a secret process, discovery or invention, or in exercise of any power vested in it.

Sections 8 and 9: the two saving provisions

Section 8: "Nothing contained in this Act 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 by reason of the provisions of this Act."

So the statutory list is not exhaustive of defences. A defence good at common law before 1971 survives.

Section 9: "Nothing contained in this Act 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."

So the Act does not enlarge the offence. Between them, sections 8 and 9 confirm that the Act narrows rather than widens.

Section 13: the substantive limit, and truth

Section 13 was substituted by the Contempt of Courts (Amendment) Act 2006, Act 6 of 2006, and this is the most important recent change in the whole subject.

"Notwithstanding anything contained in any law for the time being in force,

(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;

(b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide."

Clause (a): no sentence for trivial contempt. Note what it does and does not do. It does not say that trivial conduct is not contempt; it says no sentence shall be imposed unless the contempt substantially interferes, or tends substantially to interfere, with the due course of justice. It is a discipline on punishment, and it applies notwithstanding any other law.

Clause (b): truth, on two conditions. This is the clause students mis-state, and the mis-statement is always the same: that truth is now a defence. Read it again.

• The court may permit justification by truth. It is a discretion, not a right.
• Two conditions must be satisfied: that it is in public interest, and that the request for invoking the defence is bona fide.

Before 2006 truth was not a defence at all. The theory was that the harm lay in the publication's effect on public confidence, whatever its accuracy. That is why the older cases, including Namboodiripad, do not discuss truth, and why a book written before 2006 is wrong on this point.

The exceptions at a glance

A worked example

A magazine wants to publish four pieces about a criminal case.

One. A report of yesterday's evidence, accurate and complete. Protected by section 4, being a fair and accurate report of a judicial proceeding, subject to section 7.

Two. An article saying the accused is obviously guilty. Not protected. The proceeding is pending on the Explanation to section 3, the charge-sheet having been filed, and this prejudices the due course of a judicial proceeding under limb (ii) of section 2(c). Section 5 does not help, because the case has not been finally decided.

Three. An article, published two years after the appeal was dismissed, arguing that the judgment misread the statute. Protected by section 5: fair comment on the merits of a case heard and finally decided.

Four. An article saying the trial judge was bribed, which the magazine says it can prove.

Section 5 does not protect it, because that is not comment on the merits. It falls in limb (i), scandalising the court.

Can truth be pleaded? Only under section 13(b), and only if the court permits, being satisfied that it is in public interest and that the request is bona fide. It is not a right. Before 2006 it was not available at all.

And even if contempt is made out, section 13(a) forbids a sentence unless the court is satisfied the contempt substantially interferes, or tends substantially to interfere, with the due course of justice.

Change one fact. Suppose the magazine's editor had no reasonable grounds to believe any proceeding was pending when he published piece two, because the charge-sheet had been filed that morning and was not public. Section 3(1) protects him.

And a fifth situation. An advocate writes to the High Court in good faith alleging that a Munsif has been demanding money. Section 6 protects him, the statement being made in good faith to the High Court to which that court is subordinate, and rule 1 of the Bar Council rules makes it his right and duty to complain to the proper authorities.

What beginners get wrong

Truth is not a defence as of right. Section 13(b) is a discretion on two conditions.

Section 13(b) is new. Inserted by Act 6 of 2006.

Section 13(a) does not decriminalise trivial contempt. It forbids a sentence.

Section 5 protects comment on the merits, not imputations against the judge.

Section 5 needs the case to be finally decided.

Section 6 requires good faith and the right recipient. A complaint to the press is outside it.

Sections 8 and 9 both narrow the law, one preserving defences and the other refusing to enlarge the offence.

Quick revision

• Section 3: innocent publication where there were no reasonable grounds to believe a proceeding was pending; publication about a proceeding not pending is not contempt at all; a distributor is protected on the same footing, subject to the Press and Registration of Books Act 1867 proviso. Explanation: when a proceeding is pending, and that it continues until heard and finally decided, including appeal or revision or the expiry of limitation for one.
• Section 4: a fair and accurate report of a judicial proceeding, subject to section 7.
• Section 5: fair comment on the merits of a case heard and finally decided. P.N. Duda: the administration of justice and judges are open to public criticism, and the path of criticism is a public way.
• Section 6: a statement in good faith about a presiding officer of a subordinate court, made to another subordinate court or to the High Court to which it is subordinate.
• Section 7: chambers and in camera reports, except where contrary to an enactment, expressly prohibited, connected with public order or the security of the State, or relating to a secret process, discovery or invention; and the text or summary of an order unless prohibited.
• Section 8: other defences survive. Section 9: the Act does not enlarge the offence.
• Section 13, substituted by Act 6 of 2006: (a) no sentence unless the contempt substantially interferes or tends substantially to interfere with the due course of justice; (b) the court may permit justification by truth if satisfied it is in public interest and the request is bona fide. Before 2006 truth was not a defence at all.

Test yourself

1. Is truth a defence to contempt? Not as of right. Section 13(b), inserted by Act 6 of 2006, provides that the court may permit justification by truth as a valid defence if it is satisfied that it is in public interest and that the request for invoking the defence is bona fide. Before 2006 truth was not a defence at all.

2. What does section 13(a) forbid? The imposition of a sentence under the Act unless the court is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere, with the due course of justice. It restrains punishment rather than declaring trivial conduct not to be contempt.

3. When is a criminal proceeding pending for the purposes of section 3? Where it relates to the commission of an offence, when the charge-sheet or challan is filed or when the court issues summons or warrant against the accused, and in any other case when the court takes cognizance. It continues to be pending until heard and finally decided, including until an appeal or revision is decided or the limitation for one expires.

4. An advocate believes a Munsif is corrupt. How may he say so safely? By making the statement in good faith to the High Court to which that court is subordinate, or to another subordinate court, which section 6 protects. Rule 1 of the Bar Council of India Rules makes it his right and duty to submit such a grievance to the proper authorities. A statement to the press is outside section 6.

5. Distinguish section 4 from section 5. Section 4 protects a fair and accurate report of a judicial proceeding or any stage of it, subject to section 7. Section 5 protects fair comment on the merits of a case that has been heard and finally decided. Section 4 covers reporting, section 5 covers comment, and section 5 requires the case to be over.

6. What is the combined effect of sections 8 and 9? Section 8 preserves any defence that would have been valid before the Act, so the statutory exceptions are not exhaustive. Section 9 provides that nothing in the Act implies that any act is punishable as contempt which would not be punishable apart from the Act, so the Act does not enlarge the offence. Together they confirm that the Act confines rather than expands the jurisdiction.