Contempt Of Court And Freedom Of Speech And Expression
Sakshi Singh, Student, Law school, Banaras Hindu University
In recent times, the proclivity of the judiciary in exercising its contempt jurisdiction has led to a burning debate about the power of the court in violation of the provision of freedom of speech and expression. It would be a truism to emphasize the importance of the right of freedom of speech and expression, a right each one of us values very highly. It is the right taken for granted by every citizen. And it is not someone’s gift but is a part of our meaningful existence as a citizen of this country. This right ensures that all literature, journalism, painting, cartoonist, music, dramatics develop and enriches our civilization without any restraint from the state.
Constitution under Article 19(1)(a) has given us the Right to freedom of speech and expression which is not absolute but subject to reasonable restrictions such as contempt of court. This act of contempt aims to maintain dignity, confidence and uphold the integrity of the judiciary. In Arundhati Roy’s contempt case, Court said “Any action, verbal or written which are made in bad faith and is against the public interest could not be considered as judicial criticism.” Judicial criticism must not be based on a gross misstatement and must not be directed at lowering of the judiciary.
What makes the judiciary, one of the three pillars of democracy a special one? It is its feature of being ‘IMPARTIAL’ which distinguishes it from other institutions. Therefore, any doubt cast upon its impartiality might shake the basic foundation of the court and shackle the pillars of democracy and natural justice. So, to maintain its confidence and faith of the people, it uses its power to punish the person for its contempt. The only issue with this controversial law is that it completely and wholly ignores the idea or a possibility that at times judges may compromise this impartiality. They are as humans as any one of us and mistakes are bound to happen which subsequently will be followed by criticism. But the question that need to be addressed is “whether there should be an absolute privilege against criticism when the justice was being compromised”?
In 1950, we made a new beginning or rather we can say a paradoxical beginning where we adopted a new constitution which emphasized immensely on liberty, equality and freedom of thoughts and expression but unfortunately we adopted all legislations/laws which were prevalent or drafted and passed by the British Government with a completely different objective. With British laws, we also adopted their mindset and still not able to leave it. It took 70 years to decrypt that section 377 of IPC is unconstitutional and not in consonance with the constitutional frameworks of liberty, equality and justice. And it took more than 40 years to declare section 303 IPC made for the protection of British jail officials unconstitutional because there was no relevance of this section. It depends on the court which is still working on colonial and feudal mindset. The same mindset applies to the contempt of court act which gives the privilege to the judges of HC’s and SC. Its origin lies in England where king was considered as an incarnation of God and the head of administration of justice who used to function as a fountain head of impartiality. Over the time, any kind of violation of judge’s orders, or disobedience to it or any comments or action that show disrespect towards them came to be punishable. But, we are now living in totally different era altogether where adjudicatory function has now transferred from God to normal ordinary human beings who are now trained in law. So, this concept of divine origin and function does not fit in well with the idea of constitutional democracy. If we have our mind enlightened with basic history, then we can see that initially this contempt of court was passed during British time in 1926 which was replaced by 1952 Act and finally by 1971.
When the constitution was adopted, this contempt law was made one of the reasonable restrictions on Freedom of speech and expression. And under Art.129, it conferred SC the power to punish for its contempt and corresponding powers were given to HC u/A. 215. The contempt of court Act, 1971 gives statutory backing to this notion. There are mainly two kinds of contempt: one is civil and other is criminal. The civil one is quite simple, it is when someone wilfully disobeys a court’s order or breaches an undertaking given to the court. Criminal contempt is bit of a complex. It consists of three forms:
Words, written or spoken, signs and actions that “scandalise” or tend to scandalise or “lower” or tend to lower the authority of the court.
Prejudices or interferes with any judicial proceedings.
Interfere with or obstruct the administration of justice.
The terms used under this section such as scandalising the court, or prejudices judicial proceedings have not been provided with any sorted explanation and which makes it the most controversial aspect in several contempt cases. Justice Krishna Iyer said:
“the law of contempt have vague and wandering jurisdiction with uncertain boundaries such a law regardless of public good may unwittingly trample upon civil liberty”.
Whether this vagueness or absurdity to these terms were purposeful or unintentional, is not the raging question but it is about the fairness of justice where judges are deciding their own cases. Consequently, it is leading towards lowering of its reputation and placing uncertainty in people’s mind through legal atrocities.
Making allegations or harsh comments against judiciary or any individual judges, or attributing mala-fide or ill motives to judgments or judicial working or any scurrilous attack on the conduct of the judges are normally consider as matters that scandalise the judiciary. The only defence or rationality, we know of this provision is that court must protect its public image from getting tarnished which tries to lower the authority of the sacred and independent judiciary. And protect it from those people who try to defame its public image which in order to make people lose faith in the judicial body. In a democracy, of course, the purpose of contempt power is only to enable the court to function ideally or in other words; people should be free and have the right to criticize judges and judgments but they should not go to the making the functioning of judiciary extremely impossible and difficult. Only when imminent danger to the administration of justice occurs, then only the harsh criticism should be viewed in the sense of contempt. Otherwise, in common discourse, the court should be more focussed on performing its duty as an embodiment of hope and justice rather than wither away in controversies and act like a fragile flower. Therefore, a correct balance must be struck between the law of contempt and the Right to freedom of speech and expression.
Rule Of Law And Judiciary
Our constitutional framework is based upon the doctrine of rule of law which is the foundation of a democratic government. Collectively and individually, each one of us is unquestionably under the supremacy of law no matter how rich or poor anyone might be. And for the purpose of achieving and better implementation of this rule of law, our constitution has assigned a special task to the third and the central pillar of democracy “The judiciary”. Even after seventy years of independence, the judiciary is under threat from within and without. Its glory and impartiality need to be protected and maintained. Therefore, to strengthen the confidence of common people, the only weapon left in the armoury of a judicial repository is the long and special hand of contempt of court; which in most needed time can reach the neck whomsoever high or low tried to shake the foundation of the court. It protects the image and reputation of the court from getting tarnished or wiped out by incompliant behaviour of a certain individual. Delivery of fearless and impartial judgments and the confidence of people is the basic foundation on which the court stands. And it will be eroded when anyone tries to disrespect or create distrust in the working of the judicial system. No one can hide under the cloak of freedom of speech and expression after disrespecting the mandate of law which undermined the rule of law.
Contempt Is The New Black
It is not possible for every judgment to be right. So, in the sense it is not possible for every criticism to be fair. And instead of being unnecessarily defensive, court should not become averse of criticism but in a way welcome it and just move on. The contempt power should not be used as a tool to suppress free speeches and people should have of making academic scrutiny and constructive criticism of judgments or judicial performance. Hopefully, someday a more criticism tolerant judicial and legislative community will realise how utterly self-defeating this law is for a healthy democracy, and eventually change it. The role of the judiciary is to protect democracy and fundamental rights and not to suppress or assault on the freedom of speech. Recently, in the past, we saw an unprecedented judgment in one of the most controversial contempt case. It just marked the beginning of political and judicial mayhem. The demagogue sitting on the throne made sure that no voice of criticism should be raised. Subsequently, it becomes difficult for common citizens to speak as they fear attracting contempt of court.
The court must realize that the best way for the court to protect its image from getting scandalise is not by unleashing the contempt whip but by a thorough and gradual process of self-introspection. And this understanding has been summarised by Lord Denning in R v Commissioner of Police of the Metropolis,
“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on the surer foundation. Nor will we use it to suppress those who speak against us. We don’t fear criticism nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comments on matters of public interest.”
In light of this, it is felt that there should be no place for contempt powers in the modern legal system and definitely not in the form it is presented currently. A more open to criticism, the relaxed system will reflect greater confidence and faith in the judiciary and we may find inspiration from a very famous quote of chief justice Marshall of U.S SC, “Power of judiciary lies not in deciding cases, nor in imposing sentences, nor in punishing for contempt but in the trust, confidence and faith in the common man”.
1. R v Commissioner of Police of Metropolis, 1968 2 QB 150.
2. In Re Prashant Bhushan vs Court.
3. In Re Arundhati Roy vs Court, AIR 2002 SC 1375
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