A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and public good and permits a process of brevi manu conviction, may unwittingly trench upon civil liberties ...

This is an extract of a 1974 judgement of eminent Justice Krishna Iyer, which highlights the inherent war between the vague contempt law and freedom of speech and expression.

The law of contempt of court is again in news as in the very first week of May 2020, Apex court of India has sentenced three contemnors to three months imprisonment for raising scandalous and scurrilous allegations against sitting SC judges. The Supreme Court had issued notices to Vijay Kurle, Rashid Khan Pathan, Nilesh Ojha and Mathews Nedumpara after taking suo moto notice of their letters against Justice Nariman and Justice Saran.

When contempt proceedings started against Matthew Nedumpara, then as per the Apex court, in order to hamper judicial proceedings against Mathew, the remaining three persons wrote the letter to President of India and Chief Justice of India pressing for withdrawal of the judicial work and prosecution under different sections of India Penal Code against the aforesaid judges. Supreme Court took suo-motu cognizance of these letters and punished the trio with 3 months imprisonment with the rider that the punishment shall take effect after 16 weeks once the lockdown is over.

In India, we have constitutional courts in the form of High courts and Supreme Court. These both courts are court of records and are inherently competent to punish any person for their contempt. This power of punishment for their contempt is mandated under article 129 and 215 for Supreme Court and High Court respectively.

Contempt is a word of very wide and unrestricted connotation. The literal meaning of contempt is to criticize. As every criticism cannot be contempt of court and hence by the Contempt Court Act 1971, the legislation has tried to define and restrict the meaning of contempt of court. This Act talks about two kind of contempt, civil and criminal.

The Act defines civil contempt as willful disobedience of any decree, order or judgement of a court by any person. The civil contempt is nicely worded and no room is left to use it for vested or personal interests.

As per the Act, criminal contempt is committed when any person obstructs the administration of justice, interferes with the judicial process and lowers or scandalizes the dignity or authority of court. This criminal contempt is loosely and vaguely worded and a huge discretion is given to the judge to decide whether a particular act of accused is contempt or not.

The Supreme Court at various occasions said that Parliament cannot restrict or belittle the inherent power of constitutional court of punishment for its contempt.

In Bar Association vs Union of India and Ors, Apex court remarked:
Parliament's power of legislation on the subject cannot, therefore, be so exercised as to stultify the status and dignity of the Supreme Court and/or the High Courts, though such a legislation may serve as a guide for the determination of the nature of punishment which this court may impose in the case of established contempt.

Contempt Law vis-a-vis Freedom of Speech:
Article 19(1)(a) of Constitution speaks in volume about the freedom of speech and expression of every citizen. It is right though, that this freedom is not absolute and is subject to some reasonable restrictions and contempt of court is one such restriction. The reasonability of this restriction can be a moot question.

A question arises, whether every criticism of court would invite contempt or is there any predetermined formula which decides what criticism may amount to contempt of court. It is also an open ended question, that how dignity of court is lowered by a particular incident and how to decide the extent of the lowering of that dignity.

It is also a fact that if the court fails to maintain its authority, dignity and respect in the eyes of commoners, then it will erode the trust and confidence attached to the institution of the Judiciary as a whole. But it is equally true that only in the name of contempt of court, the civil liberties of citizen cannot be undone. Fundamental rights may, in no possible imagination, be at a footing lesser than the authority of courts because courts are for fundamental rights and not the vice versa.


In famous case of Arundhati Roy (AIR 2002 SC 1375), the Supreme Court of India found the Respondent (Arundhati Roy) guilty of contempt and sentenced her to one day's ‘symbolic' imprisonment and fine. The fault of respondent was that she, in response to the Court's earlier decision on developing a dam, criticized the Court for muzzling dissent and subsequently staged a protest in front of the Court. This led to sou-motu contempt proceedings by the Supreme Court against her.

The Court reasoned that freedom of speech and expression is not absolute but subject to restrictions prescribed by law, such as the Contempt of Courts Act which aims to maintain confidence in and uphold the integrity of the judiciary. Further, the Court found that the Roy's statements were not made in good faith and in the public interest and therefore could not be considered fair judicial criticism.

This punishment was symbolic but this decision of court was criticized by many civil activists and they termed it as a staunch blow on the freedom of speech and expression.

Somewhere, the constitutional courts will have to agree that judiciary is also a part of the government. It may not be involved directly like the other two branches of government (legislative and executive), but that does not mean that Courts can rise above the grundnorm of the nation.

The courts are a custodian of the Constitution including fundamental rights of the citizen. If the custodian itself shows its reluctance to the voice of dissents over the judgements delivered by it, that will also amount to lowering the dignity of court.

Are shoulders of Courts too weak to shrug off dissent?
In a recent judgement, Justice Chandrachud rightly said that if democracy is a pressure cooker then dissent is its valve. If valve is taken off, the pressure cooker will blast. This is equally applicable on courts of law also. The courts should not be so rigid, insensitive and callous about the opinions of general public at large.

The opinions, dissents, criticisms should be welcomed by courts unless they are highly offensive. The court should be lenient and should get shrug their shoulders to accommodate such criticism. If the courts start to take cognizance on each trivial issue, then the contempt law itself will lose its relevance.

Justice R V Raveendran in one of his judgement on contempt of court by a police inspector in 2007 said:
It is possible that it is done to uphold the majesty of courts, and to command respect. But judges, like everyone else, will have to earn respect. They cannot demand respect by demonstration of power (of contempt).

In the same judgement, Justice Raveenderan quoted the US Supreme Court Chief Justice John Marshall, who had warned two centuries ago that:
the power of Judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man.

Even Supreme Court time and again has reminded that the power of contempt should not be used mechanically. This may erode the faith of public in Judiciary. Courts should not readily infer an intention to scandalize courts or lowering the authority of courts unless such intention is clearly established. Courts will have to understand, sooner or later that exercise of such power, results in eroding the confidence of the public, rather than creating trust and faith in the judiciary.

Justice Krisha Iyer has discussed the scope of contempt proceedings:

The contempt power, though jurisdictionally large, is discretionary in its unsheathed exercise. Every commission of contempt need not erupt in indignant committal or demand punishment, because Judges are judicious, their valour non-violent and their wisdom goes into action when played upon by a volley of values, the least of which is personal protection-for a wide discretion, range of circumspection and rainbow of public considerations benignantly guide that power. Justice if not hubris; power is not petulance and prudence is not pusillanimity, especially when Judges are themselves prospectors and mercy is a mark of strength, not whimper of weakness

Social Media and Contempt of Court

We are at the end of second decade of the 21st century. Technology has advanced to a great extent. The news and information world has taken a new dimension. Information is now not dependent on newspapers or television. The social media is new romance. Facebook, Twitter, Instagram and hundreds of such platforms are busy in sharing information everyday.

Live orders from court rooms are made available by various social platform and are discussed thereupon. Some discussions are positively diverted while majority of the comments are derogatory in nature unknowing the law of contempt of court.

• The rudimentary question which lies at the root is that how can remarks which flow from the common people describing every third judge as corrupt, be taken care of?
• How to identify such persons? Even if such persons are identifed, can the lakhs of people who share or like any particular contemptuous post be prosecuted under the contempt law?

This is very grey area. Online publication of information raises legal and practical issues for courts seeking to enforce prohibitions and restrictions on publication.

Every other person on social media criticizes many decisions as per his perceptions. It is easy to catch hold on any public figure if he makes a contempt of court, but it is very difficult to hold that if the contempt is committed by any less popular or unpopular face. Well, yes, those laws exist-but social media is a new kind of beast. Old laws are not always effective or even applicable in the digital age. In the pre-internet days, courts had an effective strategy for dealing with any prejudicial publicity that court might access through traditional media.

Firstly and most commonly, courts rely on the law of contempt, which ensures that all the main players in a court case – including judges, parties and witnesses – are not improperly influenced or interfered with while the case is pending. This implies that those who publish material that could prejudice the proceedings could be punished, and this exerts a suitable quelling influence. Traditional publishers were careful to avoid prosecution by simply not publishing problematic material.

As a backup, courts could also issue an order to prevent the publication of prejudicial material in advance of a trial. However, applying these approaches in modern context is much harder as people on social media don't have a background in understanding the relevant laws. Now, if under such circumstances, the court starts to prosecute every Tom & Harry mechanically based on prevalent contempt law, it would only lead to lowering the majesty of court. This was never a purpose of contempt law.

Legality of the case in hand
On April 27, 2020, the Court found Vijay Kurle (State President, Maharashtra & Goa, Indian Bar Association), Rashid Khan Pathan (National Secretary, Human Rights Security Council) & Nilesh Ojha (National President, Indian Bar Association) guilty of criminal contempt under the Contempt of Courts Act and the trio were punished with an imprisonment of 3 months. Prima facie, the letter was written by the contemptors against the judges who are involved in the case.

The root cause of present case started when Advocate Mathew J Nedumparaon on March 12, 2019; was held guilty of contempt for taking the name of noted jurist Fali S. Nariman, the father of Justice R.F. Nariman, to allege that sons and daughters of judges were given priority in awarding ‘senior advocate' designation. The Apex court opined that he attempted to browbeat the court and is guilty of contempt of court.

Opposing this contempt proceeding, the above mentioned three persons wrote letters to President of India and Chief Justice (as he was then) Ranjan Gogoi criticizing categorically Justice Nariman. The Apex Court took the notice of these letters and sentenced all the three for imprisonment of three months under contempt of court.

The academically moot question which arises here is that whether the substance in the argument of advocate Mathew was sufficient to punish him under contempt. Naming and making allegations on a particular person in court without a proof is obviously against all court proceedings, but is it ample for the court to take cognizance against the advocate for contempt?

In Dr. D.C. Saxena v.UOI Hon'ble the Chief Justice of India, this Court held that if maintenance of democracy is the foundation of free speech, the society equally is entitled to regulate freedom of speech or expression by democratic action. Nobody has a right to denigrate others right of person and reputation.

Bonafide criticism of any system or institution including the judiciary cannot be objected to as healthy and constructive criticism augment forensic tools for improving its function.

The Hon'ble Supreme Court, while punishing Advocate Mathew said:
No litigant has a right to attribute motives to a Judge. No litigant has a right to question the integrity of a Judge. No litigant has a right to even question the ability of a Judge. When the ability, integrity and dignity of the Judges are questioned, this is an attempt of contempt of court.

• Is this definition of contempt of court not loosely worded?
• Why there is a blanket ban on questioning the integrity of judges?
• Is asking the property of a particular judge through RTI is also the subject of contempt?

A key issue is that there is no uniform formula to describe or define exactly what contempt is. At various occasions, even contempt doer does not know if he has done made any sort of contempt. Of course, there is a huge discretion given to the constitutional courts but the discretion cannot be used in vacuum. General public must be made aware that this is also a kind of offence. Courts should lay down some guidelines about contempt proceedings keep the civil liberties of citizen into consideration.

Conclusion
Contempt power are vested in Supreme Court and High courts only and not in the subordinate courts, reason being it is to be used rarely when there is utmost requirement to upload the dignity and serenity of judiciary. Personal grudges and scores are not to be settled by using these powers.

As a democratic country, we will have to understand that the broader right of a citizen to criticize the systemic inadequacies is in the larger public interest. It is the privileged right of the Indian citizen to believe what he considers to be true and to speak out his mind, though not, perhaps, always with the best of tastes; and speak perhaps, with greater courage than care for exactitude. Judiciary is not exempt from such criticism.

Judicial institutions are, and should be made, of stronger stuff intended to endure the thrive even in such climate.

It has been rightly said by the American Court:
The path of criticism is public way: the wrongheaded are permitted to err therein... Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men. [ Andre Paul v. Attorney General (1936), AC 322].

Moreover, the object of contempt proceedings is not to afford protection to Judges personally from imputations to which they may be exposed as individuals; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which people have in the administration of justice is weakened. Hence, Indian courts should strike a perfect balance between the laws of contempt of court and the fundamental freedom of speech. Courts should be ready to listen to the criticism and not act out of anguish.

Written By: Aanchal Dahiya - Author is Visiting Faculty at Faculty of Law, University of Delhi