Himachal Pradesh High Court
And vs Editor on 4 October, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 4TH DAY OF OCTOBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL ORIGINAL PETITION CONTEMPT NO.389 OF 2021
BETWEEN:
COURT ON ITS OWN MOTION.
AND
r to ...PETITIONER
1. EDITOR, DIVYA HIMACHAL, DHARAMSHALA, DISTRICT
KANGRA, H.P.
2. PUBLISHER/BUREAU CHIEF DIVYA HIMACHAL,
DHARAMSHALA, DISTRICT KANGRA, H.P.
3. CORRESPONDENT, DIVYA HIMACHAL, DHARAMSHALA,
DISTRICT KANGRA H.P. (AUTHOR OF NEWS ITEM
TITLED "जेओए पो कोड 817 भत पर े " IN NEWSPAPER DATED
27.08.2021)
...RESPONDENTS.
(SH. KUL BHUSHAN KHAJURIA, ADVOCATE)
__________________________________________________________________
This Petition coming on for orders this day, Hon'ble Mr.
Justice Tarlok Singh Chauhan, delivered the following:
ORDER
Having come across an article published in the "Divya Himachal" a vernacular newspaper on 27.08.2021 reporting and commenting on an issue that was pending before this Court with respect to the post of JOA (IT), which was highly ::: Downloaded on - 31/01/2022 23:10:01 :::CIS -2- contemptuous, the Court on 02.09.2021 passed the following .
order:
Learned Additional Advocate General has placed on record instructions dated 1.9.2021, relevant portion whereof reads as under:
"...2. The State Government is also aggrieved with the impugned judgment delivered by the Hon'ble Single Bench in CWP No. 2246 of 2019 and other similar cases and hence, it has been decided that the said judgment may be assailed. Therefore, it is also requested that the Chief Secretary to the Government of Himachal Pradesh and the Additional Chief Secretary (Personnel) to the Government of Himachal Pradesh, who are the present proforma respondents in LPA No. 42/2021 and all other connected cases relating to the Post Code-556 may be transposed as an Appellant alongwith the H.P. Staff Selection Commission, Hamirpur."
LPA Nos. 41, 42, 43, 63, 64, 70 and 71 of 2021.
At the oral request of learned Additional Advocate General, we deem it proper to transpose the proforma respondent No.2, as appellant, who shall now figure as Appellant No.1 and H.P. Staff Selection Commission, shall now figure as Appellant No.2.
Heard in part. List for continuation on 03.09.2021. At this stage we take notice of news-item that appeared in "Divya Himachal" a vernacular newspaper on 27.08.2021, reporting and commenting with respect to the proceedings of this Court concerning the matters of recruitment to the posts of JOA (IT). The tone and tenor of above noticed news-item prima-facie amounts to interference in the Court proceedings and also in the administration of justice.
Thus, issue notice returnable for 16.09.2021 to the Editor and Publisher of the vernacular newspaper "Divya Himachal" and also to the Author/Scribe of the ::: Downloaded on - 31/01/2022 23:10:01 :::CIS -3- news-item dated 27.8.2021 published under the title "जेओए पो कोड 817 भत पर े " to show cause as to why .
proceedings under the Contempt of Courts Act, 1971 be not initiated against them."
2. In compliance to the show cause notice, the respondents filed the replies wherein at the outset they tendered their unconditional and unqualified apology. In view of the unconditional and unqualified apology, the respondents having admitted their guilt shall henceforth be termed to be contemners. However, it was noticed that the respondents apart from tendering unconditional and unqualified apology had not dealt with or even made a whisper regarding the Norms of Journalistic Conduct framed by the Press Council of India. Confronted with this, learned counsel for the respondents, after arguing for some time on 02.09.2021, prayed for and was granted one week's time to file better affidavit. The contemners have filed the reply to the show cause notice, which reads as under:
1. That replying respondent tenders unconditional and unqualified apology for the act which has been considered by this Hon'ble Court as contemptuous, further it is submitted here that there are no words to justify the mistake committed by replying respondent in any manner.
2. That the above mentioned proceedings are pending consideration before this Hon'ble court.::: Downloaded on - 31/01/2022 23:10:01 :::CIS -4-
3. That vide show cause notice under reply the replying respondent has been directed to explain his position.
.
4. That the replying respondent at the very outset tenders unconditional and unqualified apology and submits here that while preparing the news item, which was published in the columns of Divya Himachal issue dated 26.08.2021, mistake occurred inadvertently and replying respondent cannot even think to disrepute or lower down the image if judiciary in any manner, apart from this the replying respondent cannot even think to interfere with the administration of justice.
5. That it is submitted here that the fundamental objective of journalism is to serve the people with news, views, comments and information on matters of public interest in a fair, accurate, unbiased, sober and decent manner. To this end, the Press is expected to conduct itself in keeping with certain norms of professionalism, universally recognised. The norms enunciated below and other specific guidelines appended thereafter, when applied with due discernment and adaptation to the varying circumstance of each case, will help the journalist to self-regulate his or her conduct. The Press Council of India has framed the NORMS OF JOURNALISTIC CONDUCT and clause 6(a) of part-I deals with the publication of court proceedings, which reads as under:
6. a) Caution in Criticising Judicial Acts
i) Excepting where the court sits 'in-camera' or directs otherwise, it is open to a newspaper to report pending judicial proceedings, in a fair, accurate and reasonable manner. But it shall not publish anything:-
which, in its direct and immediate effect, creates a substantial risk of obstructing, impeding or prejudicing seriously the due administration of justice;
or is in the nature of a running commentary or debate, or records the paper's own findings conjectures, reflection or comments on issues, sub-judice and which may amount to abrogation to the newspaper the functions of the court;
or
regarding the personal character of the
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accused standing trial on a charge of
committing a crime.
.
ii) Newspaper shall not as a matter of caution,
publish or comment on evidence collected as a
result of investigative journalism, when, after
the accused is arrested and charged, the court
becomes seized of the case: Nor should they
reveal, comment upon or evaluate a confession
allegedly made by the accused.
iii) While newspapers may, in the public interest,
make reasonable criticism of a judicial act or
the judgement of a court for public good; they
shall
not cast scurrilous aspersions on, or impute
improper motives, or personal bias to the judge.
Nor shall they scandalise the court or the
judiciary as a whole, or make personal allegations of lack of ability or integrity against a judge.
iv) Newspaper shall, as a matter of caution, avoid unfair and unwarranted criticism which, by innuendo, attributes to a judge extraneous consideration for performing an act in due course of his/her judicial functions, even if such criticism does not strictly amount to criminal Contempt of Court.
6. b) Reporting News Pertaining to Court Proceedings:
i) Before publishing a news item about court proceedings, it will be appropriate for the correspondent and edit or to ascertain its genuineness, correctness and authenticity from the records so that the concerned person can be held guilty and accountable for furnishing incorrect facts or wrong information about the court proceedings.
ii) When proceedings of the Courts are held in
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public view in which the reporters of the
newspaper are also present, it is not necessary
.
for the newspaper to obtain the certified copy
of Order before publication of the news.
iii) Observations of a Court during hearing are often
an attempt to solicit information, and not a part
of records/Orders. Thus, there is need for a
reporter to understand the difference to report
correctly.
iv) The media should not carry names of legal
practitioners or name of the judges concerned,
who dealt with particular cases.
v) In the matter of interpretation of a court's
judgments, a newspaper is expected to act
reasonably and not quote selectively. They are
also expected to clearly identify the selection
so made.
6. That the replying respondent most humbly submits that he cannot even think to interfere with the administration of justice being a responsible citizen, he is there to maintain the majesty of law and courts, he tenders unconditional and unqualified apology for the mistake he has committed. The mistake committed by the deponent cannot be justified in any word, deponent further submits here while carrying out news report in future pertaining to the court proceedings he will strictly follow the norms framed by the Press Council of India in that regard.
7. That while publishing the court proceedings, the replying respondent inadvertently could not follow the norms issued by the Press Council of India as stated in para supra, it is submitted here that the replying respondent tenders unconditional and unqualified apology before this Hon'ble court and undertakes to be careful in future while publishing the court proceedings.
In view of the above submissions, it is most humbly and respectfully ::: Downloaded on - 31/01/2022 23:10:01 :::CIS -7- prayed that unconditional and unqualified apology tendered by the replying respondent may very kindly be ordered to be accepted as .
replying respondent holds this Hon'ble Court in great respect and high esteem, and humbly prays before this Hon'ble Court to be magnanimous to accept the unqualified apology tendered by the replying respondent and exonerate the replying respondent from the purview of the contempt proceedings and discharge the show cause notice of contempt proceedings."
3. In addition to an oral as well as written apology, the contemners have also published apology in their newspaper "Divya r Himachal" dated 27.09.2021 under heading "Apology from the High Court".
4. It is more than settled that an apology for criminal contempt of court must be offered at the earliest since the belated apology hardly shows the "contrition which is the essence of the purging of contempt". However, even if the apology is not belated but the court finds it to be without real contrition and remorse, and finds that it was merely tendered as a weapon of defence, the Court may refuse to accept it.
5. The Press Council of India under the caption of Principles and Ethics has framed Norms of Journalistic Conduct. Clauses 1, 2, 3, 12 (a), 12 (b) 13, 16 are reproduced herein below for ready reference:
1. Accuracy and Fairness ::: Downloaded on - 31/01/2022 23:10:01 :::CIS -8-
(i) The Press shall eschew publication of inaccurate, baseless, graceless, misleading or distorted material. All sides of the core .
issue or subject should be reported. Unjustified rumours and surmises should not be set forth as facts.
2. Pre-Publication Verification
i) On receipt of a report or article of public interest and benefit containing imputations or comments against a citizen, the editor should check with due care and attention its factual accuracy apart from other authentic sources- with the person or the organisation concerned to elicit his/her or its version, comments or reaction and publish the same alongside with due correction in the report where necessary. In the event of lack or absence of response, a footnote to that effect may be appended to the report.
ii) Publication of news such as those pertaining to cancellation of examinations or withdrawal of candidates from election should be avoided without proper verification and cross checking.
iii) A document, which forms a basis of a news report, should be preserved at least for six months.
3. Caution against defamatory writings
(i) Newspaper should not publish anything which is manifestly defamatory or libellous against any individual/organisation unless after due care and verification, there is sufficient reason/evidence to believe that it is true and its publication will be for public good.
(ii) Truth is no defence for publishing derogatory, scurrilous and defamatory material against a private citizen where no public interest is involved.
(iii) No personal remarks which may be considered or construed to be derogatory in nature against a dead person should be published except in rare cases of public interest, as the dead person cannot possibly contradict or deny those remarks.
::: Downloaded on - 31/01/2022 23:10:01 :::CIS -9-(iv) The Press has a duty, discretion and right to serve the public interest by drawing reader's attention to citizens of doubtful .
antecedents and of questionable character but as responsible journalists they should observe due restraint and caution in hazarding their own opinion or conclusion in branding these persons as 'cheats' or 'killers' etc. The cardinal principle being that the guilt of a person should be established by proof of facts alleged and not by proof of the bad character of the accused. In the zest to expose, the Press should not exceed the limits of ethical caution and fair comment.
(v) The Press shall not rely on objectionable past behaviour of a citizen to provide the background for adverse comments with reference to fresh action of that person. If public good requires such reference, the Press should make pre-publication inquiries from the authorities concerned about the follow up action, if any, in regard to earlier adverse actions.
(vi) Where the impugned publication is manifestly injurious to the reputation of the complainant, the onus shall be on the respondent to show that it was true or to establish that it constituted fair comment made in good faith and for public good.
(vii) Newspapers cannot claim privilege or licence to malign a person or body claiming special protection or immunity on the plea of having published the item as a satire under special columns such as „gossip‟, „parody‟, etc.
(viii) Publication of defamatory news by one paper does not give licence to others to publish news/information reproducing or repeating the same.
(ix) Insertion of out -of -context, uncalled for and irrelevant statements likely to malign a person or an organisation must be eschewed.
(x) Freedom of Press does not give licence to a newspaper to malign a political leader or mar his future political prospects by publishing fake and defamatory writings.
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(xi) Locus Standi In cases involving personal allegations/criticism, only the concerned person enjoying the locus standi can move the .
plaint or claim right to reply. However a representative organisation of persons attached to an organisation or a sect/group has the locus standi to move complaints against a publication directly criticising the conduct of a leader.
xii) Public Interest and Public Bodies As a custodian of public interest, the Press has a right to highlight cases of corruption and irregularities in public bodies but such material should be based on irrefutable evidence and published after due inquiries and verification from the concerned source and after obtaining the version of the person/authority being commented upon. Newspapers should refrain from barbed, stinging and pungent language and ironical/ satirical style of comment.
12. a) Caution in criticising judicial acts
i) Excepting where the court sits 'in-camera' or directs otherwise, it is open to a newspaper to report pending judicial proceedings, in a fair, accurate and reasonable manner. But it shall not publish anything :-
-which, in its direct and immediate effect, creates a substantial risk of obstructing, impeding or prejudicing seriously the due administration of justice; or -is in the nature of a running commentary or debate, or records the paper's own findings conjectures, reflection or comments on issues, sub judice and which may amount to abrogation to the newspaper the functions of the court; or -regarding the personal character of the accused standing trial on a charge of committing a crime.
ii) Newspaper shall not as a matter of caution, publish or comment on evidence collected as a result of investigative journalism, when, after the accused is arrested and charged, the court becomes seized of the case: Nor should they reveal, comment upon or evaluate a confession allegedly made by the accused.::: Downloaded on - 31/01/2022 23:10:01 :::CIS
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iii) While newspapers may, in the public interest, make reasonable criticism of a judicial act or the judgment of a court .
for public good; they shall not cast scurrilous aspersions on, or impute improper motives, or personal bias to the judge. Nor shall they scandalise the court or the judiciary as a whole, or make personal allegations of lack of ability or integrity against a judge.
iv) Newspaper shall, as a matter of caution, avoid unfair and unwarranted criticism which, by innuendo, attributes to a judge extraneous consideration for performing an act in due course of his/her judicial functions, even if such criticism does not strictly amount to criminal Contempt of Court.
b) Reporting News pertaining to Court Proceedings Before publishing a news item about court proceedings, it will be appropriate for the correspondent and editor to ascertain its genuineness and, correctness and authenticity from the records so that the concerned person can be held guilty and accountable for furnishing incorrect facts or wrong information about the court proceedings.
13. Corrections When any factual error or mistake is detected or confirmed, the newspaper should suo-moto publish the correction promptly with due prominence and with apology or expression of regrets in a case of serious lapse.
16. Editors‟ Discretion
i) In the matter of writing an editorial, the editor enjoys a good deal of latitude and discretion. It is for him to choose the subject and it is also for him to use such language as he considers appropriate, provided that in writing the editorial he doesn't transgress the law and violate the norms of journalism and editorial comments, views published in the newspaper should be couched in sober and dignified language
ii) Selection of the material for publication as reports/articles/letters is within the discretion of an editor, therefore it is his duty to see that on a controversial issue of ::: Downloaded on - 31/01/2022 23:10:01 :::CIS
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public interest, all views are given equal prominence so that the people can form their independent opinion in the matter.
.
iii) The editor should not publish the news report/article if his mind is in doubt about the truth of the news report/article. If the veracity of any part of the news report/article is in doubt, that portion should be omitted and rest be published provided the editor is satisfied that the remainder is substantially true and its publication will be for public benefit.
21. Headings not to be sensational/provocative and must justify the matter printed under them
i) In general and particularly in the context of communal disputes or clashes a. Provocative and sensational headlines are to be avoided;
b. Headings must reflect and justify the matter printed under them;
c. Headings containing allegations made in statements should either identify the body or the source making it or at least carry quotation marks."
6. Going by the records of the instant case, we feel that the contemners are truly contrite and have offered the apology at the first available opportunity, therefore, we are inclined to accept the apology and discharge the contempt notice by admonishing the contemners so that justice is tempered with mercy.
7. In such cases, this Court must remind itself of what Justice Krishna Iyer said in Re. S. Mulgaokars, AIR 1978 SC 727 that to be gentle is to be just and the quality of ::: Downloaded on - 31/01/2022 23:10:01 :::CIS
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mercy is not strained.
.
8. Equally important is the adage, which the Hon'ble Supreme Court quoted in Suresh Chandra Poddar v. Dhani Ram and others, AIR 2002 SC 439 that " it is good to have the power of giant, but not good to use it at all.
9. In the given circumstances, the unqualified apology tendered by the contemners oral as well as in written is accepted and the notice of contempt is ordered to be discharged. However, the contemners are directed to be careful in future and not to indulge in such misadventure act in any proceedings before the Court and their conduct will be under watch for five years and if found that any of the conduct of the contemners is not above board; the Court shall proceed to revive these proceedings and proceed against the contemners in accordance with law.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 04.10.2021 *awasthi* ::: Downloaded on - 31/01/2022 23:10:01 :::CIS