Report No. 200

Joint Committee of Parliament (1968-1970): drops the word 'imminent' and requires actual 'pendency' in Court

The Joint Committee of Parliament (the Bhargava Committee) gave its Report on 23.2.1970. It prepared a draft Bill and published it in the Gazette in February, 1968 and invited responses. After receiving responses, the Bill was finalized. It provided any definition of 'contempt' but in clauses 3 to 7 stated what will not be contempt. The Report stated in para 15 as follows:

"15 .. .. .. .. ..

The Law of Contempt of Courts touches upon citizens' fundamental rights to personal liberty and to freedom of expression and therefore, it is essential that all should have a clear idea about it. The Committee were, however, aware that it would be difficult to define in precise terms the concept of Contempt of Court, nevertheless, it was not beyond human ingenuity to frame or formulate a suitable definition thereof. The Committee have, therefore, after giving a very anxious and elaborate thought to this aspect in the Bill, evolved a definition of the expression 'Contempt of Court' in clause 2 of the Bill.

While doing so, the Committee have followed the well-known and familiar classification of contempts into 'civil contempt' and 'criminal contempt' and have given essential indications and ingredients of each class or category of contempt. The Committee hopes that the proposed definitions will go a long way in enabling the public to know what contempt of court means so that they could avoid it; and the courts would find it easy to administer it. The proposed definition would also, the Committee trust, remove uncertainties arising out of an undefined law and help the development of the law of contempt on healthier lines."

But in para 16, the Committee referred to the "other principal changes by the Committee in the Bill". They said that reasons therefor are set out in the "succeeding" paragraph and that reads as follows:

Clause 3

".. .. .. .. .. ..

Paragraph (1) (original): The Committee felt that the word 'imminent' in relation to an impending proceeding is vague and is likely to unduly interfere with the freedom of speech and expression. The Committee are of the view that it is very difficult to draw a line between cases where proceedings may be said to be imminent and cases where they may not be, especially in criminal cases. The Committee have, therefore, deleted the reference to imminent proceedings from the clause and sub-clause (1) has been suitably modified'. Sub-clause (2) (Original): The sub-cluase has been omitted consequent on the deletion of the reference to imminent proceedings as mentioned earlier.

Sub-clause (2) (New): The Committee have added a new sub-clause to make it clear that no publication of any matter should be deemed to constitute contempt of court if it is made in connection with any proceeding which is not pending in a court at the time of publication.

Sub-clause (3): .. .. .. .. .. .. .. .. ..

Sub-clause (4) (Original): The proviso to this sub-clause relating to the burden of proof in imminent proceedings have been omitted consequent upon deletion of the reference to imminent proceedings from sub-clause (1). In view of this, the Committee felt that this subclause which otherwise reproduces the rule in section 105 of the Evidence Act, 1872 is unnecessary and the Committee have, therefore, deleted the sub-clause.

Explanation to clause (3): The original Explanation pertaining to pending judicial proceeding covered the period of time upto which a proceeding is said to be pending without laying down the time from which proceeding is said to commence. The Committee are of the view that the stage or stages from which pendency starts should also be provided in the Explanation, and a proceeding should be deemed to be pending when the case actually goes before a Court and it becomes seized of the matter. The Committee has, therefore, redrafted paragraph (a) of the Explanation and indicated therein the steps after taking which a civil or a criminal case should be deemed to commence."

Question is whether the changes made by Joint Committee in 1970 are consistent with law declared by Supreme Court in A.K. Gopalan v. Noordeen & Maneka Gandhi case ?

The validity of the changes brought about by the Joint Committee in 1970, in the draft Bill prepared by the Sanyal Committee in 1963, by dropping the word 'imminent', and by excluding all publications made before the date of filing of the charge sheet or challan, even if the person had been arrested by the date of publication, will have to be considered in the light of due process of law as decided in Maneka Gandhi's case 1978 (1) SCC 248 and the fundamental right to life and liberty declared in Article 21, and in the light of the view expressed in A.K. Gopalan v. Noordeen, AIR 1970 SC 1694 as to how liberty and freedom of expression require to be balanced.

The first reason given by the Joint Committee for omitting the word 'imminent' is that that word is 'vague. This aspect will be considered in Chapter V.

The second reason given by the Joint Committee is that if imminent criminal proceedings are to be taken into account for considering the question of prejudice, then freedom of expression may be unduly restricted. This will be considered in Chapter VII.

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