Freedom of Speech vs. Contempt of Court

We don't fear criticism, nor can we resent it.- Lord Denning

The recent Supreme Court verdict in the contempt case against Mr. Prashant Bhushan, a Senior Advocate at the Indian Supreme Court revived debates on laws governing contempt of court in India. Mr. Bhushan was convicted for contempt over his 2 tweets- first tweet was about a picture of Chief Justice SA Bobde sitting on an expensive bike. In the second tweet, Prashant Bhushan put forth an opinion on the role played by the last four Chief Justices in the destruction of democracy in India over the last six years.

Contempt of court is an offence of disobedience or disrespect towards a court of law and its officers within the sort of conduct that opposes or challenges the authority, justice and dignity of the court. Contempt of Court may be a constitutional power vested with the Supreme Court of India.

Article 129 and 215 of the Indian Constitution of India states:

The Supreme Court and high courts of India respectively shall be courts of record and shall have all the powers of such a court including the facility to punish for contempt of itself.

According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt of court or criminal contempt of court. Civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. On the other hand, criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:

1. scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
3. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in the other manner.

A contempt of court could also be punished with simple imprisonment for a term which can reach six months, or with fine which can reach two thousand rupees, or with both, as long as the accused could also be discharged or the punishment awarded could also be remitted on apology being made to the satisfaction of the court.

Freedom of speech is a fundamental right bound to every Indian citizen under Article 19(1)(a) of the Constitution, subject to reasonable restrictions under Article 19(2).

In C.K. Daphtary v. O.P. Gupta (1971), the Supreme Court held that the existing law of criminal contempt is one such reasonable restriction. That doesn't mean that one cannot express one's ire against the judiciary for fear of contempt.

Mr. Prashant Bhushan made the tweets on bonafide beliefs and intention was purely for fair criticism to bring out the corruption in judiciary in the eyes of the public.
After being asked to apologise to the judges, Mr. Bhushan repeatedly refused and claimed he will accept any fine or punishment but will not take back his honest words. The verdict came and he was fined 1 rupee for contempt as penalty.

A statement or action against judges or courts of law has to come under the term scandalous to be considered contempt. Judges cannot seek action for contempt if it occurs on personal grounds. Then, judges can sue the defender for libel or defamation. However, if the professional sphere of judges is damaged, contempt of court is a reasonable action.

In a democracy, courts do not have immunity against comments and criticism. Freedom of speech helps the judges to perform their duty efficiently rather than dictating their authority. In the cases of Prashant Bhushan and Arundhati Roy, the court seemed extremely intolerant toward the comments made against them. It found the statement of both, a threat that shook the foundation of Indian democracy. It should have been ignored by the court but their conviction as an urgent matter showed how oversensitive it has turned towards its dignity.

A fine line of distinction has to be made between scandalous defamatory statements and fair bonafide actions of individuals and this needs to be understood by the judges. The contempt jurisdiction is not intended to uphold the personal dignity of the Judges. In Re: S Mulgaolkar v. Unknown, the Supreme Court has maintained that the judiciary cannot be immune from fair criticism. The contempt action is to be used only when an obvious misstatement with malicious intent seeks to influence public confidence in the courts or seeks to bring down the courts. The charge for contempt should be filed beyond reasonable doubt and not to fulfil the bias and authority of judges.

The freedom of speech bestowed under the constitution and the independence of the judiciary are the two most essential elements of a free and fair democracy. Maintaining a balance between these two public interest issues, presents a challenge to any given democratic set-up. Constructive and healthy criticisms are the necessities for the growth of a democracy. The Apex court as the protector of the Constitution must be alert and vigilant to protect freedom of speech even against judicial resentment. A review on the contempt powers of courts in India has thus, undisputedly become the need of the hour. Written By Damini Chauhan
(BA LLB Student, Manipal University Jaipur)