Mains Article

Free Speech Vs. Contempt of Court [Mains Article]

Justice H.R. Khanna from the Supreme Court of India once observed ‘Judges should not silence criticism with threat of Contempt of Court but should remove the weakness and drawback that crept into the judicial system. In India, contempt of court is sui generis and traces its root from the inherent powers of the court that must be invoked in extraordinary circumstances to meet the end of justice.
By IT's Mains Articles Team
October 16, 2020

Contents

  • Introduction
  • What is Freedom of Speech?
  • Where does the free expression become Contempt of court?
  • Contempt of Courts Act
  • Kinds of contempt of court?
  • The statutory basis for contempt of court?
  • The Most recent case
  • Was the decision correct?
  • Reasonable restriction on Freedom of Speech
  • What is not contempt of court?
  • Is truth a defence against a contempt charge?
  • Conclusion

Free Speech Vs. Contempt of Court

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Introduction

The freedom of expression guaranteed under the constitution and the independence of the judiciary are the two basic and most important constituents of a democracy. Constructive criticism is the most important ingredient for the development of democracy and the Supreme Court should protect free speech. But where the line need to be drawn?

What is Freedom of Speech?

  • The freedom of speech and expression provided for in Article 19(1)(a) of the Constitution is a fundamental right.
  • Freedom of speech and expression enables an individual to openly share his or her views, with some reasonable restrictions.
  • It is an essential right in a democracy.
  • It upholds the ‘liberty of thought and expression’ principle provided in the preamble.
  • Freedom of speech and expression grants Indian citizens the right to communicate their thoughts and views without apprehension, by means of words either written or spoken, pictures or some other visual or communicable representation such as gestures or signs.
  •  It contains the freedom to propagate one’s own opinions, and the opportunity to publish other people’s views. 

Where does the free expression become Contempt of court?

  • Constructive criticism is the most important ingredient for the development of democracy and the Supreme Court should protect free speech.
  • In India, contempt of court is sui generis and traces its root from the inherent powers of the court that must be invoked in extraordinary circumstances to meet the end of justice.
  • When the criticism has the tendency of lowering down the authority of the judge and even obstruct the administration of justice, the Court has the power to punish any such act which tends to demean the value of judiciary under the Contempt of Courts Act, 1971 (“Act”).
  • Section 5 of the Act states that fair criticism is not to be termed as contempt of court. However, the irony of the situation is highlighted when it is the judiciary against whom the remark has been made, gets the power to decide whether the same was constructive in nature or not.
  • The punishment for contempt of court is simple imprisonment for a term up to six months and/or a fine of up to ₹. 2,000.

Contempt of Courts Act

  • The Contempt for Courts Act was enacted in 1971 (1971 Act) on the recommendation of the special committee headed by H.N Sanyal, the Additional Solicitor-General of India.
  • The 1971 act refers to two types of contempt – civil and criminal. 

Kinds of contempt of court

  • The law codifying contempt classifies it as civil and criminal.
  • Civil contempt is fairly simple. It is committed when someone wilfully disobeys a court order, or wilfully breaches an undertaking given to court.
  • Criminal contempt is more complex. It consists of three forms:
  • words, written or spoken, signs and actions that “scandalise” or “tend to scandalise” or “lower” or “tends to lower” the authority of any court
  •  prejudices or interferes with any judicial proceeding and
  • interferes with or obstructs the administration of justice.
  • Making allegations against the judiciary or individual judges, attributing motives to judgments and judicial functioning and any scurrilous attack on the conduct of judges are normally considered matters that scandalise the judiciary.
  • The rationale for this provision is that courts must be protected from tendentious attacks that lower its authority, defame its public image and make the public lose faith in its impartiality.

The statutory basis for contempt of court

  • There were pre-Independence laws of contempt in India. Besides the early High Courts, the courts of some princely states also had such laws.
  • When the Constitution was adopted, contempt of court was made one of the restrictions on freedom of speech and expression.
  • Separately, Article 129 of the Constitution conferred on the Supreme Court the power to punish contempt of itself.
  • Article 215 conferred a corresponding power on the High Courts. The Contempt of Courts Act, 1971, gives statutory backing to the idea.

The Most recent case

  • The most recent contempt of court case in India is the Prashant Bhushan contempt case1 wherein the Hon’ble Supreme Court has initiated suo moto contempt proceedings against Advocate on Record, Shri Prashant Bhushan for his tweets against current Chief Justice of India, Shri SA Bobde.
  • He questioned the integrity of a few past Chief Justices of India and some of his other recent tweets where he has questioned the long absence/limited functioning of the courts during the initial days of the lockdown period.
  • However, when the contempt proceedings were initiated Mr Bhushan withdraw his remarks with regard to his tweet and even offered an apology for this tweet and clarified that he meant no disrespect to the office of the Chief Justice of India.
  • However, Mr. Bhushan vehemently refused to apologise either for his Tehelka magazine interview or for any of his other tweets.
  • Mr. Bhushan has in his reply to the contempt proceedings stated that he believes what he meant no disrespect to the offices of the Hon’ble Judges in the interview and the tweets.
  • He said, he was merely offering constructive criticism and that tendering an apology whether conditional or unconditional would not be sincere.
  • A constitutional bench found Mr. Bhushan guilty of the offence of contempt of court and the matter is still sub-judice with regard to the quantum of punishment which is due to be pronounced later this month.
  • This seems to be the quickest the Hon’ble Supreme Court has disposed of a matter on merits in recent times.

Was the decision correct?

  • An Indian citizen definitely has fundamental rights enshrined under Article 19 Clause 1 sub-clause (a) of the Constitution of India however statements which were considered derogatory to the office of the Chief Justice of India and to other senior members of the Judiciary comes under the contempt of court.
  • The proceedings that were conducted against Mr. Bhushan were indeed lawful and as per the established procedure.
  • As much as Mr. Bhushan had a right to freedom of speech and expression, he also had a responsibility especially as an officer of the court to remain within the confines of the reasonable restrictions and above all respect the office of the Chief Justice of India.

Reasonable restriction on Freedom of Speech

  • By enforcing Article 19(2) of the Constitution, the State can enforce reasonable restrictions on the exercise of the right to freedom of speech and expression based on eight grounds. These are:
    • Defamation
    • Contempt of court
    • Security of the state
    • Incitement to an offence
    • Sedition
    • Decency or morality
    • Public Order
    • Friendly relations with other states
  • In addition to the above 8 limitations, the rights to freedom under Article 19 of the Indian constitution are revoked during the time of National Emergency proclaimed by the President of India.
  • Furthermore, during the time of action of the National Emergency, the President is authorized to suspend citizens’ right to move to the Supreme Court to implement their personal freedom.

What is not contempt of court?

  • Fair and accurate reporting of judicial proceedings will not amount to contempt of court.
  • Nor is any fair criticism on the merits of a judicial order after a case is heard and disposed of.

Is truth a defence against a contempt charge?

  • For many years, truth was seldom considered a defence against a charge of contempt.
  • There was an impression that the judiciary tended to hide any misconduct among its individual members in the name of protecting the image of the institution.
  • The Act was amended in 2006 to introduce truth as a valid defence, if it was in public interest and was invoked in a bona fide manner.

Conclusion

While it is to be noted that all citizens of India are guaranteed the right to freedom of speech and expression, contempt of court is indeed one of the reasonable restrictions that can act as a rider on this right. None of the fundamental rights guaranteed to Indian citizens are absolute. The reasonable restrictions were included with the objective of maintaining balance as the framers of the constitution knew that if they were to enshrine absolute rights on Indian citizens, dire circumstances would ensue leading to a failure of constitutional machinery.

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