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Freedom Of Speech v/s Contempt Of Court

The Right to Freedom of Speech and Expression as provided under Article 19 of the Constitution of India refers to the liberty of freely expressing one's opinion and views and delivering speeches however such right is not absolute in nature and reserves certain reasonable restrictions. It also means the individual's right to express one's opinions through words, print media, writing, gestures, visible and clear signs, actions, etc.

These rights come with reasonable restrictions imposed by the parliament to prevent danger and various factors which may affect the sovereignty and integrity of the state.

Contempt of court refers to an act of disobedience or non-compliance of orders of the court of any judicial body and such disobedience or disrespect must interfere with the due process of court and reasonable punishment is imposed by the court of law.

As provided under the Black Law Dictionary contempt of court refers to any act to embarrass, obstruct or hinder the court of law in the administration of justice or anything which is done to reduce its authority or its reputation or dignity. It generally means willful disobeying lawful orders or failing to comply with directions of the court of law.

The law related to contempt of court is governed by The Contempt of Courts Act 1971 which defines contempt as 2 types which are civil contempt or criminal contempt under Section 2 (a) of the Act. The Constitution of India in Article 19 (1) (a) reserves the right to freedom of speech and expression. Certain reasonable restrictions are present in Article 19 (2) of the Constitution of India.[2]

Contempt Of Court

Judiciary is generally considered one of the 3 important pillars of democracy and to preserve the judiciary it is essential to protect the rights of the judges and any act which attacks the integrity and honor of the court shall be punished.

It is considered that Judiciary can achieve its purpose of providing justice only if its orders are being executed properly or else there is no sign of having a potent judiciary in the nation and hence there is no right to freedom of speech and expression if this right violates the integrity of the court.

The Law of contempt of court's primary purpose is maintaining public reliance on the way of working of the court of law and the law of contempt of court is not concerned about the criticism of the judge as an individual but it is concerned with criticism of the court

Types Of Contempt

Civil Contempt

Disobedience of the directions or order of the court:
The person who is accused of contempt of court has disobeyed the directions of the court and such action of disobedience has been caused willfully.
The respondent must be competent to comply with directions of the court:
The accused must be a competent person to comply with orders of the court and he or she should not be a third person who has nothing to do with directions of the court
Knowledge of the order of the court:
The accused must know the order which is passed by the competent court and if he or she after complete knowledge of the order fails to comply with directions of the court then they are guilty of the offense of contempt of court.
There must be some direction or order of the court:
The disobedience of the direction of the court can only be caused if the court has explicitly passed the order and the contemnor disobeys the direction of the court.

Criminal Contempt

Publication of any particular matter:
The matter such as words, print, or publications which intermeddles with due process of law and respect or dignity of the court is violated by such publication then such particular acts fall in the scope of contempt of court.
Scandalizing or lowering the power or authority of the court:
The publication must violate the integrity and dignity of the court. The act must be defamatory and it must question the competency of judges.
Interference with administration of justice:
The publication must affect the administration of the court and its capacity to be a competent authority to deal with the matter and such act must indirectly or directly affect the proceedings of the court of law.

In the case of Jaswant Singh Vs Virender Singh (1993):
An advocate cast a derogatory attack on the High Court Judge. An application was filed by an election petitioner who was a lawyer as he wanted to seek a stay of proceedings of election petitions and also for transferring election petitions. It was held by the court that it was an attempt to intimidate the high court judge and caused interference in the conduct of a fair trial

Defenses Of Contempt Of Court

The contempt of court act 1971 provides the following circumstances which will not amount to contempt of court:

Innocent Publication and Distribution of Matter:
Section 3 of the Contempt of Courts Act 1971 provides that no person who practices innocent publication and distribution of matter will be guilty of contempt of court. Subclause 1 of Section3 provides that an individual shall not be punished with punitive measures of contempt of court if he or she has published anything in spoken or written form by visible facts or by way of signs which interferes with the administration of justice only and only if such piece of data was published the publisher has no reasonable reason to believe that proceedings were pending before the court of law.
Fair and Accurate Report of the Judicial Proceeding:
Section 4 of the Contempt of court act provides that no individual shall be guilty of contempt of court if such an individual published a true and correct report of judicial proceedings.

When an individual prints any correct and accurate report of judicial proceedings in open court for transparency of judicial proceedings. However, if the report is biased and if they are not correct then this particular defense of section 4 is not available.
Fair Criticism of the Judicial Act:
Section 5 of Contempt of Court Act 1971 provides that no individual shall be guilty of contempt of court if such person practices the right of fair criticism of acts of judiciary or any case of which the individual knows about. Fair criticism means comments which are fair and it does not intimidate the proceedings of the court. However, if such comments are not true then this particular defense is not available under Sec 5 of the Act.
Complaints against Presiding officers of Subordinate Courts:
Section 6 of the Contempt of Court act provides that no individual shall be guilty of contempt of court if the such individual makes any statement in good faith regarding the presiding officer of subordinate courts.
Publication of Information concerning proceedings in chambers or cameras:
Section 7 of the Contempt of Court Act 1971 provides that if such individual published a correct and true report of proceedings which took place in chambers of judge or camera except when such proceedings are contrary to law, or when such recordings are conducted in chambers or camera due to public policy or security of the state, or then such information is a secret issue of the private proceedings.

Contempt Of Courts Act 1971

According to Section 1 of the Act, The Contempt of Courts act extends to the whole of India. It does not provide for the direct definition of contempt of court but provides for differences between Civil and Criminal Contempt. This act also provides sections that define what is not contempt of court instead of defining what contempt of court is.

Section 12 of this Act provides for punishment for contempt of court. And the punishment for contempt of court shall be as follows:

Simple Imprisonment for a term that may extend to 6 months or
Fine which may extend up to 2000 Rs or
Both [3]

Articles 129 And 215 Of The Constitution Of India

Article 129 of the Constitution of India provides that the Apex Court of the Country which is the Supreme Court to be a Court of Record. It also provides that Supreme Court shall possess all the powers concerning the court of record which also includes the power to punish for contempt of itself. It reserves the inherited powers of the court which punishes contempt of court if any proceedings or judgment violates the dignity of the court.

Article 215 of the Constitution of India provides that High Court shall be the court of the court and it declares that every High Court is the court of record and includes the power to punish for contempt of the high court. It empowers every high court to maintain its records and also provides for power to punish for contempt of itself if any order or judgment of the court violates the dignity or administration of justice.

Limitation Period Under Contempt Of Court Act 1971

Section 20 of the Act provides the limitation for the action of contempt.

It provides that no courts shall initiate proceedings in the following conditions:

When the proceedings are on his motion or
After 1 year from the date on which contempt was alleged to be committed

Conflict Between The Freedom Of Speech And Expression And Contempt Of Court

In Shri Baradakant Mishra v Registrar of Orissa and Another (1973)[4]:
The Apex Court of India observed that the main word is Justice and not judge. The main concern is providing justice to all rather than judge. The Contempt of Court act gives respect to the right to freedom of speech and expression and also the right to justice. The law of contempt of court should be practiced only when there is bad or mala fide intention to violate the integrity and dignity of the court and not fair or trivial comments made on judicial officers or the judiciary.
In Dr. DC Saxena vs Hon'ble Chief Justice of India (1997)[5]:
The Supreme Court observed that the Right to freedom of speech and expression promotes the dignity of the judicial system of the country. This right also plays an important role in the promotion and securing the basic human rights. This right is one of the most essential factors in a democratic country and it is a basic concept for the development of advocacy and all those who are indulged in the legal fraternity.
In The State of Editors, Printers, and Publishers (1954)[6]:
The Apex Court observed that when a particular publication was published to violate the principles of fair trial of the case pending before the court of law then the contempt of court law shall be applied but it shall be applied only in cases of bad or malafide intention of violation of the dignity of the court.

India's problem is not that the constitution does not guarantee freedom of expression, but that the combination of overriding laws, an inefficient criminal justice system, and the aforementioned lack of jurisprudence make freedom of expression easy to silence important rights. The Indian legal system is notoriously crowded and frustrating, resulting in a lengthy and costly process that can leave even innocent people unable to fight for their right to free expression.

Such delays occur. The Sedition Act, Section 124A of the Indian Penal Code (IPC), is a colonial-era provision imposed on political leaders seeking independence from British rule. Unfortunately, it is still widely used against dissidents, human rights activists, and government critics.

The law allows life imprisonment. It prohibits any symbol, visual symbol, or word, whether spoken or written, that the government "may incite or attempt to incite hatred, contempt, or dissatisfaction." India's Supreme Court has imposed restrictions on the application of the Sedition Law, making incitement to violence a necessary element, but police continue to file charges of incitement even when this requirement is not met.[7]

Landmark Judgments Of The Supreme Court

Re Hon'ble Justice Shri C.S. Karnan (2017):
Justice Kernan, who is notorious for his courtroom behavior, has accused many Supreme Court justices of being corrupt, impartial, and dependent. Prime Minister Narendra Modi has been called upon to take serious action against his fellow judges. In addition, Judge Karnan accused the then-chief justice of the Madras High Court of violating one of his decisions.

Judge Karnan also accused the judge of discrimination against him based on caste. He repeatedly filed multiple Suo Moto cases against his fellow judges who voted for his transfer even after the Supreme Court barred him from holding administrative or judicial functions. The court found that Judge C.S. Karnan committed criminal contempt. Judge Kernan infuriated several judges, accusing them of corruption and impartiality without providing any evidence.

The offensive allegations he made before the media and the general public undermined the reputation of the courts and public belief in the concept of justice. The court was shocked by Judge Karnanas actions and said his actions were the court's most blatant and grave insult. The court found him guilty of contempt of court and sentenced him to six months imprisonment.[8]
Re Prashant Bhushan and Another (2020):
Prashant Bhushan, known for his exemplary contributions to the legal community, tweeted two comments regarding the administration of justice by courts and CJI SA Bobde. First, on June 27, 2020, he published a tweet accusing the Supreme Court of "destroying" India's democracy over the past six years.

His second tweet, posted on June 29, 2020, negatively portrayed then Chief Justice of India SA Bobde riding a motorcycle. A petition was filed in court in connection with the second tweet, but the Supreme Court took note of the petition's suo moto and initiated a contempt case against Prashant Bhushan on July 21, 2020.

Primarily, the court ruled that the tweet discredited the administration of justice and was likely to undermine the dignity and authority of the Supreme Court in general, and his CJI office in particular, in the eyes of the general public. Therefore, the court allowed a contempt trial.

The court held that the Supreme Court's inherent power to initiate his Suo-moto contempt action without the consent of the Attorney General was outlined in Section 15 of the Contempt of Court Act and Rule 3 thereafter. Publications that attack individual judges or courts as a whole and advocate unfair and defamatory views about the character of judges are considered court scandals.[9]

The court ruled that the tweet did not constitute a fair criticism of the workings of the judiciary, nor was there any bona fide intention behind the tweet. The court imposed a fine of 1 Rupee and If the fine was not served, he was sentenced to three months in prison and disqualified from practicing in any court for three years.
Re Vijay Kurle (2020):
In this case, Vijay Kurle with Rashid Khan and Nilesh Ojha sent 2 Letters to the Chief Justice of India i.e Justice Ranjan Gogoi. It leveled scandalous allegations against Justice Vineet Saran and Justice RF Narman. The Court ruled that letters were scurrilous and scandalous allegations against the judges and they cannot be made against judges or any court. Court also observed that not even an apology was forwarded by the contemnors.

For commenting or criticizing any judgment of the court individuals must know to challenge the integrity of the court. Hence Court held them guilty of the offense of contempt of court and sentenced them to simple imprisonment of 3 months and a fine of 2000 Rs.[10]
M.V Jayarajan vs State of Kerala (2015):
The Appellant, while he was delivering the speech, used some unparliamentarily words and he abused the judgment of the Kerala high court regarding the banning of meetings on public roads. Kerala High Court initiated proceedings against him and upheld him guilty of the offense of contempt of court and he was sentenced to imprisonment for 6 months. Court also held that no person can use abusive language against judicial officers and can threaten them to step down from their office. The court upheld the decision of the Kerala high court in appeal and the sentence of imprisonment was reduced from 6 to 4 months.
Hari Singh Nagra v.s Kapil Sibal(2010):
In this particular case concept of reasonable and fair criticism was established concerning contempt of court. Kapil Sibal along with others sent souvenirs to be published while expressing concern about the plight of junior members of the bar association and also falling standards of the legal fraternity. It was however published at a later stage when the respondent was contesting the election of the Supreme Court Bar Association.

The court observed that any ridicule brought towards the courts and judges which affects the belief and confidence of the public and the deteriorating foundation of justice should be prevented. As under Article 19(1), (a) of the Constitution freedom of expression when used by the public and press to criticize any judgment reasonably then no charge of criminal contempt can be framed. Hence reasonable and fair criticism of the working of the judiciary can be made without declaring such criticism as contempt of court.[11]

Conclusion And Suggestions
The idea or concept of contempt of court from time to time has been pulled by the judicial system to protect the authority and respect of courts. It is essential to understand the value of the judiciary in the eyes of the general public and discrediting the image of the court will hamper the goodwill or reputation of the court in eyes of the general public. However certain line has to be drawn between the right to freedom of speech and expression and contempt of court.

The publication as made by the contemnor must scandalizing courts and hamper the administration of justice at large. However, it does not mean that freedom of expression is to be curtailed. Hence a careful exercise of power to punish for contempt of court has to be ensured by the judiciary.

The existing role relating to ex-facie contempt of lower courts is unsatisfactory and misleading in India. It appears that evidently, the difficulties in this regard are the after-product of the overlap of contempt powers under the Indian Penal Code, Contempt of Courts Act, and contempt powers of the Supreme Court and High Court under the Indian constitution.

The scenario has emerged as more complicated by way of the inconsistent interpretations followed through the Supreme Court and High Court regarding diverse provisions under the Indian Penal Code dealing with interference with the administration of justice and the exclusion clause contained in the Contempt of Courts Act. Not only the higher court should be given the power to deal with contempt but also the lower court should be given this power. Contempt of the Court if seen from the perspective of the judges, and higher judicial officials seem good but if it comes to the perspective of common people it turns towards its bad effect.

References:

SSRN "Contempt of Court and Free Expression – Need for a … SSRN." 8 Dec. 2008, https://www.ssrn.com/abstract=1311828. Accessed 6th Oct. 2022.
"Freedom of Expression and Contempt of Court – Article 19." https://www.article19.org/data/files/pdfs/publications/foe-and-contempt-of-court.pdf. Accessed 8th Oct 2022.
["Questions of contempt – Frontline – The Hindu." https://frontline.thehindu.com/static/html/fl1620/16200950.htm. Last Visited 8th Oct. 2022.
Amanat Raza Contempt of Court I Pleaders Blog (22nd Oct 2022 8.00 am) https://blog.ipleaders.in/contempt-of-court-2/
Vidhi Kumar An Analysis of Contempt of Court Legal Service India (22nd Oct 2022 12.00 PM) https://www.legalserviceindia.com/legal/article-472-contempt-of-court-analysis.html
Varchaswa Dubey An Analysis of Right to freedom of Speech and Expression and Contempt of Court (22nd Oct 2022 10.00 AM) https://blog.ipleaders.in/an-analysis-of-the-right-to-speech-and-expression-and-contempt-of-court/
Rajeev Rambhatla and Vartika Dixit Free Speech vs Contempt of Court Mondaq ( 31st Aug 2020 10.00 AM) https://www.mondaq.com/india/libel-defamation/980554/free-speech-vs-contempt-of-court-an-analysis-in-light-of-the-prashanth-bhushan-case-
J.K. Samantasinghar Contempt of Court Vis-a-Vis Freedom of Speech ISSN 09970- 8669 Odisha Review pg 70 ( 70-74) (2017) http://magazines.odisha.gov.in/Orissareview/2017/Jan/engpdf/70-74.pdf