Issue 2 – What efficacious remedy?Posted: May 6, 2012
What efficacious remedies are available to a person who is aggrieved by media?
Whilst most of the counsels contended before the Supreme Court that implementation of laws on ‘defamation’ and ‘contempt of court’ in its true intent can certainly be considered as efficacious remedy, few counsels find them to be inefficient.
Firstly, when a person’s right is violated by hyped media, damage is already done and least expected from such a person is to file a case for defamation which means standing in court for years together. Civil defamation, highly ineffective.
Criminal defamation under Section 500 of the Indian Penal Code is bailable and non-cognizable and has no impact on the offender.
Add to it, unlike most other crimes, the legislature has placed a restriction under Section 199 of the Criminal Procedure Code on the filing of defamation cases that only aggrieved party can set criminal law in motion. In the event of aggrieved person staying behind the bars for months because of adverse media publicity, how can he even file a defamation case which requires the filing of a private complaint through a private lawyer and physical person in the court for the verification statement under Section 200 of the Criminal Procedure Code is required?
Defamation is an efficacious remedy in these cases? Certainly, not.
With respect to criminal cases, Contempt of Courts Act, 1971, expressly states in the Explanation to Section 3 that unless a charge sheet is filed or process of summons or warrant is issued, the proceedings are not said to be pending in a Criminal case. Therefore there is no Contempt of Court for want of ‘pendency’.
Under the law of contempt, the Contempt of Courts Act, 1971 has to be followed even in exercise of the jurisdiction under the Article 215 of the Constitution. This is so as even though the High Court under Article 215 can invoke powers and jurisdictions vested in it but such jurisdiction has to be exercised in accordance with the procedure prescribed by law which is the Contempt of Courts Act, 1971.
Unfortunately, prior to filing charge sheet, press can publish anything and get away with it from contempt of court in the technical sense for want of pendency.
Even if post charge sheet or cognizance by issuance of summons/warrant, contempt is committed, even then a criminal trial court under the Criminal Procedure Code has no inherent jurisdiction. [Bindeshwari Prasad Singh Vs. Kali Singh 1977 1 SCC 57; Maj. Genl. A.S. Gauraya and Anr. Vs. S.N. Thakur and Anr. 1986 (2) SCC 709].
Under the Criminal procedure Code, 1973, there are no provisions for the trial court to pass any orders to prevent such injustice. Criminal trial courts do not enjoy inherent jurisdiction like civil trial courts. High Court, though can exercise its inherent jurisdiction under Section 482 of the Criminal Procedure Code, in the practical sense, it is highly unlikely that a High Court takes cognizance of rights being violated by press under its inherent jurisdiction.
The remedy of contempt, even if committed before the trial court is of hardly any practical benefit as the court cannot punish for contempt.
It has to make a reference under Section 15 of Contempt of Courts Act by which is time-consuming and practically not effective.
So, contempt is an efficacious remedy in these cases? certainly not.
In any event, as the Supreme Court has made it very clear, the entire exercise of the Court in this present case is to find preventive measures to safeguard the fundamental rights but not to find punitive measures. Defamation or contempt serves no purpose in that case.