The thin line between ‘Contempt of Court’ and ‘Free Speech’

This Blog is authored by Kajal Kumari, pursuing B.A. LL.B at Galgotias University, during her internship with NitiNyaya Law Offices

Introduction:

Making any allegations against the individual judges or judiciary, attributing motives to judicial functioning and judgments and any abusive attack on the conduct of judges are normally considered matters that scandalize the judiciary. Scandalizing of Court is one of the ways to do contempt of court. Basically,  contempt of court elaborates scandalizing the Court. Contempt of court means any offence which shows disrespect to the dignity and authority of the Court. In layman language offence of showing disrespect towards the reputation of the court. Freedom of Speech is given under article 19(1)(a) of the Constitution of India but it has also some restrictions which are mentioned under Article 19(2) of the Constitution of India which means freedom of speech and expression is subject to sovereignty and integrity of India, decency, public order and in relation to contempt of court, the security of the State, defamation or incitement to an offence. The restriction on freedom of speech and expression clearly states the thin line between scandalizing the court and free speech. Article 261 of the Constitution of India states that throughout the territory of India, full faith and credit have to given to judicial proceedings.

Constitutional Provisions in relation to contempt:

• Article 19(2) clearly states that freedom of speech and expression is subject to contempt of court.
• Under Article 129, the Supreme Court has the power to punish for contempt of itself.
• Under Article 215, the High Court has the power to punish for contempt of itself.
• Under Article142(2), the Supreme Court has the power to punish for contempt of court to anyone with regard to the making of law by Parliament.

The Contempt of Courts Act, 1971 defines contempt (the expression of contempt of court is not defined in the constitution). It divides contempt into civil and criminal contempt.

1. Civil contempt refers to the willful disobedience of an order of any court.
2. 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 and have the effect of undermining public confidence in the judiciary; or
2. Interferes or prejudices with any judicial proceeding;
3. Obstructs or interferes with the administration of justice.

Punishment: As per the Contempt of Courts Act of 1971, punishment is simple imprisonment for a term of up to six months and/or a fine of up to ₹. 2,000.

Exceptions to contempt of Court:

• Fair and accurate reporting of judicial proceedings.
• Any criticism which is fair and made on the merits of a judicial order after a case is heard and disposed of.
• If the publication or other act is merely a defamatory attack on the individual judge and is not intended to interfere with the administration of justice, it will not be taken as contempt of court.

Judicial Decisions to constitute Contempt of Court in India:

• Interference with Administration of Justice: In Brahma Prakash Sharma v State of Uttar Pradesh,  in order to constitute the offence of Contempt of Court the Supreme Court had held that, it was not necessary to prove that, with the administration of justice actual interference has been committed. The Court held that a defamatory statement was enough if it is likely or in any way tends to interfere with the proper administration of justice.
• Scandalizing the Court: In the case of PN Dua v Shiv Shankar and others, the Supreme Court held that mere criticism of the Court does not amount to contempt of the Court. 
• Interference with due course of Justice: In Pritam Lal v. High Court of M.P., the Supreme Court held that to preserve the proceedings of the Courts from interference and to keep the streams of justice pure, it becomes the duty of the Court, to punish the contemnor in order to preserve its dignity.

Contempt of court: A censor on free speech:

• Democratic reform process: For the advancement of democracy, a constructive difference of opinion and suggestions are very important.
• Right to differ: Individual opinion does not mean that an institution is criticised. By censoring freedom of speech, the judiciary seems to indicate that its institution is infallible and they are superior.
• Self-protective nature: Contempt of court has been used as a tool to protect own image of a judge. 

Conclusion:

Recently, the Supreme Court has held the lawyer-activist Prashant Bhushan as guilty of contempt of court regarding the comment made on social media, targeting the current Chief Justice of India. Under the Indian Contempt of Courts laws power is discretionary in nature. To check its abusive use it should be made more determinate and principled. The power to punish for contempt of court must always be exercised wisely, cautiously and with circumspection. There should be an independent panel to check the misuse of Contempt of Court power. Punishment for contempt is inadequate and is not a sufficient deterrent especially with regard to fine it should be sufficiently enhanced to deal with interference in the administration of justice. It is necessary to distinguish between constructive criticism and malicious statement and the test for contempt needs to be evaluated. It should be whether the contemptuous remarks in question actually obstruct the Court from functioning and should not be allowed to be used as a means to quash reasonable dissent.