Report No. 200

Trial by Media free speech and Fair Trial under Criminal Procedure Code, 1973

Contents
Chapter I	Introductory
	Introductory
Chapter II	Human Right Conventions, Madrid Principles, Indian Constitution and Contempt of Courts Act, 1971
	Human Right Conventions, Madrid Principles, Indian Constitution and Contempt of Courts Act, 1971
	Universal Declaration of Human Rights (1948)
	International Covenant on Civil and Political Rights, 1966
	European Convention
	The Madrid Principles on the Relationship Between the Media and Judicial Independence (1994)
	The Basic Principle
	Siracusa Principles
	Constitution of India: Rights of suspects and accused and freedom of speech
	Art 21 is the crucial article which guarantees the right to life and liberty. It reads
	Contempt of Courts Act, 1971
	Section 3(1), however, exempts the followin
	Pre-trial publications granted immunity under section 3(2) & Explanation
Chapter III	Do Publications in The Media Subconsciously Affect The Judges?
	Do Publications in The Media Subconsciously Affect The Judges?
	In P.C. Sen in re the Supreme Court observed
	Cardozo then stated in a very famous quotation
Chapter IV	How 'imminent' Criminal Proceedings came to be excluded from The Contempt of Courts Act, 1971: A Historical and Important Perspective
	A Historical and Important Perspective
	Law prior to 1971
	A.K. Gopalan v. Noordeen: (1969)
	The Sanyal Committee, 1963: date of arrest should be starting point
	Bill of 1963 Prepared by Sanyal Committee Refers to 'imminent' Proceedings
	Joint Committee of Parliament (1968-1970): drops the word 'imminent' and requires actual 'pendency' in Court
Chapter V	Whether Joint Committee of Parliament was right in Stating that The Word 'Imminent' is Vague?
	Whether Joint Committee of Parliament was right in Stating that The Word 'Imminent' is Vague?
	Whether publications in one part of India do not reach other parts, as stated by Sanyal Committee (1963)
	Why the Joint Committee in its Report 1111(1969-70) is not correct in stating that the word 'imminent' used by Sanyal Committee ink the Bill of 1963 is 'vague'
(a)	United Kingdom: date of arrest accepted as starting point
(b)	Australia: (New South Wales): Date of arrest as starting point
(c)	New Zealand: Case law accepts date of arrest as starting point
(d)	Australia: Case law and Law Reform Commission prejudice on account of 'imminent' proceedings
Chapter VI	Does 'A.K. Gopalan v. Noordeen" (1969)(SC) make 'imminence' relevant only in respect of arrests for serious offences? What is the effect of the 24 hour rule?
	Does 'A.K. Gopalan v. Noordeen (1969)(SC) make 'imminence' relevant only in respect of arrests for serious offences?
	Kapur J further observed
(A)	Prejudice to the suspect means prejudice irrespective of whether offence is a serious one or nor
(B)	Care and protection of Court under Article 22(2) of the Constitution and Sections 57 & 76 of the Code of Criminal Procedure are sufficient to show court proceedings are imminent
(C)	UK - Hall v. Assorted Newspapers
(D)	New South Wales (Australia)
(E)	New Zealand: Case law refers to 'arrest' or 'imminent' stage
(F)	Canada: 'arrest' is given importance
(G)	Irish Law Reforms Commission: refer to 'imminent or virtually certain'
(H)	Borrie & Lowe
	Starting Point
	Summary: Editorial Note in 1969(2) SCC 734 is not correct
Chapter VII	Freedom of expression, Contempt of Court, Due Process to Protect Liberty
	Freedom of expression, Contempt of Court, Due Process to Protect Liberty
	Article 19 and Art 14, 21: Balancing rights of free speech and due process
	Two questions arise for consideration
	New Zealand: freedom of expression and liberty have to be balanced in such a way that there is no prejudice to the suspect or accused
	After refusing to follow the law in USA and Canada, the New Zealand Court of Appeal stated in Gisborne Herald Ltd. v. Solicitor General: 1995 (3) NZLR 563 (CA)
	Australia
	New South Wales (Australia): balancing of expression and due process in criminal trials
	Freedom of Speech v. Due Process of Law
	Final Report of NSW Law Reforms Commission (2003)
	Australian Law Commission: On balancing the rights
	Canadian Law Reform Commission: on balancing the rights
	Irish Law Reform Commission: on balancing the righs
	United Kingdom & the Sunday Times Case
	Our Conclusion
Chapter VIII	Postponement of Publications by Court: Whether 'substantial Risk of prejudice as in UK inappropriate?
	Prior restraint and subsequent punishment are distinct
	Stringent conditions have to be imposed if postponement of publications by Court is to be permitted
	The provision for postponement orders in section 4(2) of the (UK) Contempt of Courts Act, 1981
	The Discussion Paper of the New South Wales Law Reform Commission (2000)
	Final Report of the New South Wales Law Commission (2003)
	Other Law Reform Commissions
	Indian statutes have created some exception to open justice
	Draft Bill attached to the Report (2003) of NSW Law Reform Commission
	Section 7 to 10 of the Bill is important and deal with the 'substantial risk'
	Section 9: Contempt because of pressure on parties or prospective parties to civil proceedings
	Considerations for proposals for postponement orders
	Interpretation of the words 'Substantial risk' of prejudice to administration of justice by Courts in UK creates problems
(A)	Meaning of 'substantial risk of prejudice' in Section 4(2)
(B)	Defects in the language of Section 4(2) of the U.K. Act
	Power of Court to order postponement of publication is not inherent but has to be conferred by statute
Chapter IX	What Categories of Media Publications are Recognized as Prejudicial to a Suspect are Accused?
	What Categories of Media Publications are Recognized as Prejudicial to a Suspect are Accused?
1.	Publications concerning the character of accused or previous conclusions
2.	Publication of Confessions
3.	Publications which comment or reflect upon the merits of the case
4.	Photographs
5.	Police activities
6.	Imputation of innocence
7.	Creating an atmosphere of prejudice
8.	Criticism of witnesses
9.	Premature publication of evidence
10.	Publication of interviews with witnesses
	India
Chapter X	Recommendations for Amending The Provisions of The Contempt of Court Act, 1971
	Recommendations for Amending The Provisions of The Contempt of Court Act, 1971
	Trial by Media free Speach and Fair Trial under Criminal Procedure Code, 1973
Annexure I	Contempt of Court (Amendment) Bill, 2006
1.	Short title and commencement
2.	Definitions
3.	Amendment to section 2
4.	Amendment to section 3 of the Principal Act
5.	Insertion of section 10A
6.	Insertion of sections 14A and 14B