By Ms. M.K.Mrudula
Over the years, law has evolved and its branches have spread far and wide. Some of those branches are invariably tangled up to each other and it becomes arduous to pinpoint its fruits. An evident example is the conflict between contempt of court and freedom of speech. Contempt of the court is a familiar term to all of us in recent times. It has been a web catching lawyers and actors alike. What is this contempt of the court? Does it infringe on our rights to free speech? Can the two ever coexist peacefully? A definitive answer to these questions might save time and hassle for the whole country.
Contempt of the Court
Contempt of court is any act which disobeys or disrespects a court of law and its officers, including undermining their authority or dignity. The judicial institutions are tasked with interpreting law and administering justice. During the course of such execution, it comes under scrutiny and criticism. ‘Contempt’ seeks to protect judicial institutions from motivated attacks and unwarranted criticism and serves as a legal mechanism to punish those who lower its authority.[i] It is originally stemmed from a desire to protect the king and later the judges who worked under him. Eventually, it evolved to encompass any slight to the judges or obstruction of implementation of their directives, or any such disrespect.
Statutory basis of Contempt
The Constitution provides for the Supreme Court and High Courts to punish people for contempt.[ii] The Contempt of Courts Act, 1971 was framed to deal with this offence. According to this statute, contempt is of two types: civil and criminal contempt.[iii] The former means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court; while the latter encompasses all publications which are scandalising, prejudiced or interfering with the process of administration in any manner. The Act also defines the power of High Courts to punish people for contempt.[iv] These provisions ensure that the judiciary’s orders are implemented. It also aids in maintaining the independent nature of the judiciary. However, there are certain exceptions to what may be perceived as contempt, such as fair criticism and fair and accurate reports. In 2006, the Act was amended to include truth as a defence of contempt, provided it is in public interest and bonafide intention.
Freedom of Speech
The principle of freedom of speech is enshrined in Article 19(1)(a)[v] of the Indian Constitution. It is also recognised by the ICCPR,[vi] to which India is a party. It can be restricted only on certain conditions including contempt of the court. Freedom of speech and expression is considered to be an essential element for the efficient functioning of the government.[vii] This is a right which is exclusive to the citizens of India under its Constitution. This right guarantees a right to express one’s own thought and opinions freely. Any institution can be criticised under this right.[viii]
Clash of Concepts
Contempt and freedom of speech have always been at odds with each other. There have been instances in the past where the Supreme court had adopted a liberal attitude towards contempt of the court. [ix] The court has recognized that the judiciary cannot be spared from scrutiny and the outspoken comment of an ordinary man.[x] However in recent times, we have witnessed how criminal laws such as contempt of court is being used in increasing frequency in India. It may be perceived by some that the judiciary seems to have adopted a hair-trigger attitude. There is no clear demarcation line between the two concepts. In the case of Mulgaonkar (in re),[xi] guidelines for the use of contempt of court has been suggested. This mentions that judges should not be hypersensitive, even where distortions and criticism over-steps the limits. No such tolerance is observed these days.
Contempt proceedings must not be allowed to become the spiteful weapon of judges. Freedom of speech ensures the survival of democracy. Prosecuting the citizens for exercising their rights will be the beginning of the end of democracy, paving the way for tyranny. It is human to err. The judiciary is not above making mistakes. Without criticism, there shall be no room for improvement. Nevertheless, we have seen in the recent case of Prashant Bhushan how the offence of contempt was wielded for merely expressing his views. An emotional and valid statement from an actor had people calling for such expression to be prosecuted as contempt.
Freedom of speech is fundamental to democracy. Constructive criticism is the key to a healthy judiciary and government. Maintaining such a delicate balance between the two is akin to tightrope walking over a bed of nails. The concepts are conflicting and at times contrary to each other. The guidelines to implement the 2002 Bangalore Principles of Judicial Conduct states that “a judge should generally avoid the use of the criminal law and contempt proceedings to restrict such criticism of the courts.”[xii] Contempt of the court has been deemed to be an archaic law and is no longer an offence in some countries.
Acknowledging that free speech could also be misused easily in order to influence the judgment making decision, some middle-ground could be founded. Contempt laws must be revisited and revised. There has been a call for a forum for moderating dialogue between the various parties, where their concerns can be discussed in a peaceful manner.[xiii] Such an initiative would ensure that all remarks are made towards the upliftment of the country and not aimed at undermining the judiciary.
Pointing fingers and prosecution proceedings merely breeds animosity between the judiciary and the common man. As Gschwandtner once said, “Problems are nothing but wake-up calls for creativity.” It is high time that we looked past our differences and find a creative solution to work in harmony.
[i] Venkataraman K, The Hindu Explains | What is contempt of the court?, The Hindu, August 2, 2020, (last visited September 28, 2020) https://www.thehindu.com/news/national/the-hindu-explains-what-is-contempt-of-court/article32249810.ece [ii] Constitution of India, 1950, Art. 129 & 215 [iii] The Contempt of Courts Act 1971, Sec. 2(a) [iv] Id. at Sec. 10 [v] Supra note 2 at Art. 19(1)(a) [vi] UN General Assembly, International Covenant on Civil and Political Rights, Art. 19, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html [accessed 30 September 2020] [vii] Romesh Thappar v. State of Madras, AIR 1950 SC 124 [viii] S. Rangarajan v. P. Jagjivan Ram 1989 SCR (2) 204 [ix] P.N. Duda v. P. Shiv Shankar, AIR 1988 SC 1208 [x] Rama Dayal Markaha v. State of Madhya Pradesh, AIR 1978 SC 921 [xi] AIR 1978 SC 727 [xii] India: Contempt Conviction Threatens Free Speech, HRW, August 19, 2020, (last visited September 30, 2020) https://www.hrw.org/news/2020/08/19/india-contempt-conviction-threatens-free-speech [xiii] Sriram Panchu, Criticism, the judiciary and a word of advice, The Hindu, September18, 2020, at 6