Contempt of Court and Freedom of Speech A Dispute of Rights and Dignity | law journals
Abstract
The paper aims to present a comparative analysis between two foremost yet contradicting provisions prevailing in the country. On one hand, freedom of speech and expression is the basic human and fundamental right, while, on the other hand, contempt of court is the weapon used against the former right.The perfect irony is that the Constitution of India guarantees fundamental right to freedom of speech and expression vide Article 19, however it is noteworthy that the very same constitution snatches it away using the power to punish for the contempt under Article 129 and Article 215.
The Right under Article 19 is to promote plurality of opinions but this right particularly when juxtaposed with Contempt becomes a controversial issue. There are a very few democracies that still provide contempt power to courts and India is one such nation.
The Right under Article 19 is to promote plurality of opinions but this right particularly when juxtaposed with Contempt becomes a controversial issue. There are a very few democracies that still provide contempt power to courts and India is one such nation.
But it must be kept in mind that it is not the Judiciary which is sovereign but the Constitution that provides the institution with such powers and is hence, supreme. If courts start acting intolerant towards the critical reviews, it would mark the end of democracy. The dignity of judges is not so brittle that it would shatter with some opinions instead of getting motivated to work upon what is right.
The paper aims to draw a comparative analysis amongst both the rights and their importance in democracy. The aim is not to sideline the provision of contempt but to realize the need to restrict it to protect the dignity of courts and not the caretakers. Judges deserve respect but not at the cost of threatening the critics, suppressing them and misusing their powers in the disguise of contempt. No right can be jeopardized to protect the pride and self obsession of judges.
Introduction
Constitution is to speak your mind and write one’s thoughts.” The Basic Right to Freedom of Speech and Expression, a natural right will be bestowed upon the taxpayers of nearly every democratic country. The right is given under Article 19(1)(a) of the Indian Constitution.
The paper aims to draw a comparative analysis amongst both the rights and their importance in democracy. The aim is not to sideline the provision of contempt but to realize the need to restrict it to protect the dignity of courts and not the caretakers. Judges deserve respect but not at the cost of threatening the critics, suppressing them and misusing their powers in the disguise of contempt. No right can be jeopardized to protect the pride and self obsession of judges.
Introduction
Constitution is to speak your mind and write one’s thoughts.” The Basic Right to Freedom of Speech and Expression, a natural right will be bestowed upon the taxpayers of nearly every democratic country. The right is given under Article 19(1)(a) of the Indian Constitution.
The liberty Includes not just the right to propagate the views but also publish them through freedom of press, Industrial speech, the right to broadcast, right to criticize, etc.. But much like the other Basic Rights, the entire body imposes certain restrictions to the right of free speech below clause (2)1 of Article 19.
The limitations are included to ensure that the right does not end up Violating the democratic principles where the country is built upon. These limitations appear Necessary today, as the right is being abused and this is the point where the issue arises as to what Article 19 is a right to express one’s convictions and aspersions. For the common person, it’s the precursor for smooth behavior of any democratic nation.
Like the other pillars of democracy, the Judiciary too is legitimately subject to criticism. As stated in S. Democracy (including the judiciary) aren’t the reasons to limit the liberty of speech and expression. Nevertheless, they should not reduce the officialdom of judges or obstruct the administration of justice.
Insight Upon the Contempt of Court
The concept of contempt had a long way and is derived from colonial legacy. It was rightly built up in England where the concept was introduced to protect the judicial powers of the King. The literal meaning of the word ‘contempt’ in the Cambridge Dictionary is “a strong feeling of disliking and having no respect for someone or something”.
When interpreting the meaning in legal sense, contempt of court means disrespect or disregard towards the court. No statute defines the term, as such, however, for the first time, the Contempt of Courts Act, 1971 (hereinafter, referred to as Act) defined rather classified “contempt of court” into civil and criminal contempt”3 and further defined each of them independently, as “civil contempt”4 and “criminal contempt.
Article 129 and 215 supply the ability to the Supreme Court and High Court respectively, to penalize because of its contempt. The judges, being the court of recording, possess inherent power to punish for their contempt and also for the contempt of almost any court.
The above mentioned powers have been read in conjunction with Article 142(2) of Constitution and Section 228 of Indian Penal Code mandates the penalty for 6 weeks. In Delhi Judicial Services Association vs. State of Gujarat & others, it had been detected that the definition of criminal contempt is broad and covers each action that will interfere with the administration of justice and injuries the dignity of this courtroom.
The ambit is enormous and enables the judges to penalize those who attempt to lower that the standing of those courts. The goal of this Act was explained in Omesh Saigal vs. R.K. Dalmia7, mentioning its objective isn’t to put judges in the area of immunity against criticism except to make sure that the picture of these courts isn’t distorted.
Whereas, in case of E.M.S. Namboordripad vs. T. Narayan9 , the then Chief Minister of Kerala i.e., the petitioner, averred that the Judges are inclined towards the rich and was ultimately held liable for contempt of court under the Act. Hence, the law related to contempt is inconsistent and comes with an undefined boundary.
The aspect of contempt is one of the most under-theorized facets of Article 19. One questions the restrictions under clause (2) being so extensive that it limits the scope of clause (1) itself. In the cases of contempt, the judge is the prosecutor, the accuser and also the judge, who himself decides if the case comes under the ambit of contempt or not.
It is violative of the principle of Natural Justice i.e., “Nemo Judex In Causa Sua”10. This absolute right to judges is abused at times to stifle the freedom of reasonable and fair criticism of the judiciary, no matter how beneficial it is for the better working of the judiciary. Although, the other side of the coin portrays that, such obstruction leads to better administration of justice. It also creates a sense of fear in the minds of people that any attempt to defame the judges or the institution shall come with consequences.
Although, it is not only the defamers who have to face consequences but the institution too as the Judges get themselves and their authority devalued whenever it seems that they are taking undue advantage of the powers provided to them.
The limitations are included to ensure that the right does not end up Violating the democratic principles where the country is built upon. These limitations appear Necessary today, as the right is being abused and this is the point where the issue arises as to what Article 19 is a right to express one’s convictions and aspersions. For the common person, it’s the precursor for smooth behavior of any democratic nation.
Like the other pillars of democracy, the Judiciary too is legitimately subject to criticism. As stated in S. Democracy (including the judiciary) aren’t the reasons to limit the liberty of speech and expression. Nevertheless, they should not reduce the officialdom of judges or obstruct the administration of justice.
Research Methodology
The methodology adopted during the research is secondary sources of data available such as books, provisions, articles, journals, statutes and reports. The authors have deeply studied the existing data and analyzed it in the present context.Insight Upon the Contempt of Court
The concept of contempt had a long way and is derived from colonial legacy. It was rightly built up in England where the concept was introduced to protect the judicial powers of the King. The literal meaning of the word ‘contempt’ in the Cambridge Dictionary is “a strong feeling of disliking and having no respect for someone or something”.
When interpreting the meaning in legal sense, contempt of court means disrespect or disregard towards the court. No statute defines the term, as such, however, for the first time, the Contempt of Courts Act, 1971 (hereinafter, referred to as Act) defined rather classified “contempt of court” into civil and criminal contempt”3 and further defined each of them independently, as “civil contempt”4 and “criminal contempt.
Article 129 and 215 supply the ability to the Supreme Court and High Court respectively, to penalize because of its contempt. The judges, being the court of recording, possess inherent power to punish for their contempt and also for the contempt of almost any court.
The above mentioned powers have been read in conjunction with Article 142(2) of Constitution and Section 228 of Indian Penal Code mandates the penalty for 6 weeks. In Delhi Judicial Services Association vs. State of Gujarat & others, it had been detected that the definition of criminal contempt is broad and covers each action that will interfere with the administration of justice and injuries the dignity of this courtroom.
The ambit is enormous and enables the judges to penalize those who attempt to lower that the standing of those courts. The goal of this Act was explained in Omesh Saigal vs. R.K. Dalmia7, mentioning its objective isn’t to put judges in the area of immunity against criticism except to make sure that the picture of these courts isn’t distorted.
RIGHTS VS. POWER
Article 19 and the relevant provisions of contempt of court are hazy and uncertain per se. This can be seen through the two most interesting interpretations by the Supreme Court. In P.N. Dua vs. P. Shankar8 , a petition was filed against the Union Minister who alleged that the Judges are biased in favour of the rich, the bankers and the Zamindars. But, he was not convicted of the offence. Hon’ble Supreme Court observed that bonafide criticism does not portray contempt of court and such criticism must be welcomed as long as it does not hamper the administration of justice.Whereas, in case of E.M.S. Namboordripad vs. T. Narayan9 , the then Chief Minister of Kerala i.e., the petitioner, averred that the Judges are inclined towards the rich and was ultimately held liable for contempt of court under the Act. Hence, the law related to contempt is inconsistent and comes with an undefined boundary.
The aspect of contempt is one of the most under-theorized facets of Article 19. One questions the restrictions under clause (2) being so extensive that it limits the scope of clause (1) itself. In the cases of contempt, the judge is the prosecutor, the accuser and also the judge, who himself decides if the case comes under the ambit of contempt or not.
It is violative of the principle of Natural Justice i.e., “Nemo Judex In Causa Sua”10. This absolute right to judges is abused at times to stifle the freedom of reasonable and fair criticism of the judiciary, no matter how beneficial it is for the better working of the judiciary. Although, the other side of the coin portrays that, such obstruction leads to better administration of justice. It also creates a sense of fear in the minds of people that any attempt to defame the judges or the institution shall come with consequences.
Although, it is not only the defamers who have to face consequences but the institution too as the Judges get themselves and their authority devalued whenever it seems that they are taking undue advantage of the powers provided to them.
Supreme Court’s take on the issue
Prashant Bhushan Case
The latest and the most controversial contempt case is the Prashant Bhushan Case12 where the Supreme Court found Advocate on Record, Mr. Prashant Bhushan guilty of contempt of court for his tweets. One of such tweets dated back to 2009 wherein he alleged the Judiciary with the charges of corruption.His most recent tweet was regarding the current Chief Justice of India, Shri Sharad A. Bobde astride an expensive motorcycle without keeping in mind the Covid guidelines and during the time when the Supreme Court was kept under lockdown denying citizen’s right to access justice.
He also questioned the functioning of past 4 CJIs and claimed that democracy has been dismantled by them. The Supreme Court took suo moto cognizance of the issue, held him guilty and imposed a fine of Re. 1. Mr. Bhushan denied to apologise for any of his tweets and reverted back by remarking that his tweets were nothing but constructive criticism and a fake apology for sure will amount to contempt. The matter was decided so hastily that one must expect other important issues to be handled with similar efficiency.
Romesh Thapar vs. State of Madras13, was a landmark judgment wherein the Apex Court of India held that Fundamental Right under Article 19(1)(a) also includes freedom to media-houses and press to hold opinions and is one of the most important rights for proper functioning of democracy and in upholding the Rule of Law.
Press and media houses help the general public in creating awareness about the day-to-day decisions of Courts and their critical reviews help in forming opinions and ensure righteousness. In the case of Re: Harijai Singh & Anr. vs. Unknown14 , the Supreme Court has held that for the better functioning of a democracy, free and healthy press is a mandate.
Two important cases related to Freedom of Press dated back to the post emergency period where; one S. Mulgaokar15 and Shamlal16, editors in The Indian Express & the Times of India respectively, were charged with contempt of court for their articles critiquing the A.D.M. Jabalpur vs. Shivakant Shukla judgment and questioning the integrity of the judges who delivered the judgment.
He also questioned the functioning of past 4 CJIs and claimed that democracy has been dismantled by them. The Supreme Court took suo moto cognizance of the issue, held him guilty and imposed a fine of Re. 1. Mr. Bhushan denied to apologise for any of his tweets and reverted back by remarking that his tweets were nothing but constructive criticism and a fake apology for sure will amount to contempt. The matter was decided so hastily that one must expect other important issues to be handled with similar efficiency.
Freedom of Press & Contempt
Romesh Thapar vs. State of Madras13, was a landmark judgment wherein the Apex Court of India held that Fundamental Right under Article 19(1)(a) also includes freedom to media-houses and press to hold opinions and is one of the most important rights for proper functioning of democracy and in upholding the Rule of Law.
Press and media houses help the general public in creating awareness about the day-to-day decisions of Courts and their critical reviews help in forming opinions and ensure righteousness. In the case of Re: Harijai Singh & Anr. vs. Unknown14 , the Supreme Court has held that for the better functioning of a democracy, free and healthy press is a mandate.
Two important cases related to Freedom of Press dated back to the post emergency period where; one S. Mulgaokar15 and Shamlal16, editors in The Indian Express & the Times of India respectively, were charged with contempt of court for their articles critiquing the A.D.M. Jabalpur vs. Shivakant Shukla judgment and questioning the integrity of the judges who delivered the judgment.
Also, one of those articles went on to state that Justice Chandrachud and Justice Bhagwati shall not be considered for the post of CJIs. However, the Constitutional Bench of the Supreme Court held neither of them guilty and upheld the freedom of speech and expression to the Press. However, one should be mindful that the Freedom to Press is not unfettered or absolute right and it comes with restriction.
The Judges shall keep in mind the reasonableness of the protection provided to them under the contempt law as there are two public interests at stake i.e., fair trial and free press. Hence, using the contempt law to unduly advantage themselves by restricting critical publications shakes the faith of the public in the institution. Read more
The Judges shall keep in mind the reasonableness of the protection provided to them under the contempt law as there are two public interests at stake i.e., fair trial and free press. Hence, using the contempt law to unduly advantage themselves by restricting critical publications shakes the faith of the public in the institution. Read more
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