Does merely criticizing a court or its decision falls under “Contempt of Court” in India? What is Contempt of Court? Is it still necessary to have The Contempt of Court Act, 1971 in order? What about our freedom of speech and expression? Does this mean that one can never voice any criticism of the judiciary? No. What the law permits you to say regarding the functioning of Indian courts forms the basis of this particular article, i.e., there is a thin line separating criticism and contempt. Freedom of speech is a fundamental right guaranteed to every Indian citizen under Article 19(1)(a)[1], albeit subject to reasonable restrictions under Article 19(2)[1].
What is Contempt of Court?
Contempt of Court in simple words refers to the offence of showing disrespect or disobedience to the court, court officers and/or the judge. The objective for contempt is stated to safeguard the interests of the public if the authority of the Court is disintegrated and public confidence in the administration of justice is weakened or eroded.
We all assume the Hon’ble Courts as Temple of Justice and expect an impartial judgement without any fear, pressure, corruption and so forth.
But if at all anyone outbursts on any occasion about the insufficiency of Justice or so-called by the Temple of justice, they have to face The Brhamaastra called “Contempt of Court”. Although, this weapon used by the judiciary is much needed in high profile cases as it’s almost a ritual for them to indulge in contempt of court by using money power, man power, political power etc. There is a fleet of lawyers to save them from this Brhamaastra but the whole point boils down to,
Is mere criticising the court or the court officers be termed contempt in all cases? Where is our fundamental right to freedom of speech?
The weapon used as and when required by the judiciary called “Contempt of Court” is taken personally here in India till date even when the other countries like England and the United States of America have started to learn how to let it go.
As seen in Spycatcher Case[2], a case from England. It was England, from where we have inherited the unfortunate legacy of contempt law. But seeing how they have adapted to the changes and respected the Freedom of Speech we should take some inspiration from them. Coming back to the celebrated Spycatcher judgment, it was delivered in the late 1980s by the House of Lords, the British tabloid, the Daily Mirror. They published an upside-down photograph of the Law Lords with the caption, “You Old Fools”. Refusing to initiate contempt action against the newspaper, one judge on the Bench, Lord Templeton, reportedly said, “I cannot deny that I am Old; It’s the truth. Whether I am a fool or not is a matter of perception of someone else. There is no need to invoke the powers of contempt.”
Again, in the Case of Balogh v. Court Crown[3], the defendant said to the judge, “You are a humourless automaton. Why don’t you self-destruct?” The judge just smiled but didn’t hold him liable for contempt of court.
Even when, in 2016, the Daily Mail ran a photo of the three judges who issued the Brexit ruling with the caption “Enemies of the People”, which many considered excessive, the courts judiciously and sensibly ignored the story and did not commence contempt proceedings.
It is interesting to note that Indian judges have been touchier in the cases of contempt of court as compared to English judges. Judges are reviving their self-esteem under the guise of judiciary dignity, curbing the fundamental right to speech which includes fair criticism.
Freedom of Speech is the fundamental fountain-head of democracy.
The freedom of speech given under the constitution and the independence of the judiciary are the two essential and most important institutes of democracy in a country.
So, bonafide criticism of any system or institution including the judiciary cannot and should not be objected on any pretext, be it under the deliberated constitutional power or the statutory contempt law. Every citizen has the right to freely express his aspersions and convictions on a judgement or a judge if he’s unsatisfied or he feels that its biased, clouded, confused or miscalculated.
But there must be some purpose of the Law of Contempt?
There are two basic purposes-
- Civil Society is founded: If there is no respect for the law, everyone will choose to break the law and therefore, there cannot be any civil society. And it is this respect for the law and law enforcing agency that someone ensures the freedom recognized in the Indian Constitution.
- A seat of Justice: This Law is for protecting the seat of Justice, more than for protecting the Judge, sitting in that seat.
We should, however, respect one’s feelings, not use abusive language or even insinuate against the present CJIs, Judges of them being corrupt without a binding proof. Criticism to an extent is fine but beyond a certain point would certainly require an action.
There’s a famous Case of Justice Karnan. Flashing his Dalit card to play victim, Karnan tried to pulverise his colleagues in the High Court by adopting a strategy similar to Bhushan’s. He shot off letters periodically to the High Court Chief Justice, the CJI and occasionally to the PM alleging corruption among the judge. As long as his unpleasant accusations and theatrics as a self-proclaimed crusader were confined to the High Court, the Supreme Court was hardly agitated. A maximum punishment of six months jail term and/or fine of Rs 2,000 was given to someone for the first time in the history of India for the Contempt of Court.
Not to forget Prashant Bhushan’s Case, it was one of the most discussed contempt cases. In an interview by Tehelka in 2009, Bhushan alleged eight of 16 CJIs were corrupt. This case was last heard in 2012 but the Supreme Court showed unseemly eagerness in taking up both contempt cases against Bhushan.
Another contempt case had been initiated suo motu by the court in July 2020 over two tweets that Bhushan had issued about the functioning of the judiciary and recent chief justices.
But the proceedings showed that Bhushan’s principled stand has put the court in a difficult position. Bhushan’s lawyer Rajeev Dhavan argued that the Supreme Court would collapse if it does not face severe criticism and reiterated that Bhushan’s statements were aimed at strengthening the court. Importantly, Dhavan said the court’s decision to offer time to Bhushan to consider making an apology was an “exercise of coercion”. “We are not asking for mercy. We are asking for statesmanship from the court,” Dhavan said. He pled that the proceedings should be dropped.
Nonetheless, the court found him guilty and decided his punishment on 31st August 2020, a fine of Re. 1 failing which he will have to undergo a sentence of three months and will be debarred from practise for three years
The court further noted that everyone does have the freedom of expression but at the same time must respect the rights of others.
Remember, fundamental rights under Constitution including Art 19 are conditional. Criticism of court judgments on legal grounds is not illegal and not contempt of court but then again, there is a thin line between criticism and contempt.
In 2002, the Supreme Court pulled up eminent writer Arundhati Roy Case[4] for her remarks over its Narmada dam judgement. Stung by her affidavit in its contempt proceedings against her, in which she expressed no repentance, the judgement was fastened with a condescending tenor. The court passed an eased sentence on the premise that she was a woman and that better sense and wisdom will prevail in the future. The SC was impelled to punish her for contempt because she did not possess any special knowledge of the law and its institutional working other than being a writer of repute. Therefore, according to the court, she was not eligible and had no locus to question and criticise the judiciary. The court examined several precedents, particularly the rationale in PN Duda vs P Shivshankar[5], wherein contempt proceedings were dropped against the alleged critic and distinguished it from the facts in the Arundhati Roy case. The court concluded that those case laws would be inapplicable to the facts of her case and she could not be pardoned.
Is truth a defence against a contempt charge?
For many years, the truth was seldom considered a defence against a charge of contempt. There was an impression that the judiciary tended to hide any misconduct among its individual members in the name of protecting the image of the institution. The Act was amended in 2006 to introduce truth as a valid defence if it was in the public interest and was invoked in a bona fide manner as held by the Supreme Court in Indirect Tax Practitioners’ Association v. R.K. Jain[6].
Conclusion
The Law Commission of India held that there is a need to retain the provision regarding the contempt of courts. However, it also recommended the definition of contempt in the Contempt of Court Act should be restricted to civil contempt, i.e., deliberate disobedience of judgments of the court. Further, in the era of social media, besides the need to revisit the law on criminal contempt, even the test for contempt needs to be evaluated. Moreover, it believes that criticism from non-legal sources do not hold weight because they are not adequately knowledgeable about judicial matters.
On the face of it, a law for criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right.
Regrettably, judges believe that silencing criticism will harbour respect for the judiciary. On the contrary, surely, any efforts to artificially prevent free speech will only aggravate the situation further. As was pointed out in the landmark U.S. case of Bridges v. California (1941), “an enforced silence would probably engender resentment, suspicion, and contempt for the bench, not the respect it seeks”. Surely, this is not what the Court might desire. What do you think?
-Eepsa Bansal, Writer
[1] Article 19(1)(a) and (2) of The Indian Constitution
[2] [1987] 1 W.L.R. 1248, 1306 (H.L.(E.))
[3] [1975] 1 QB 73
[4] “In conclusion, I wish to reaffirm that as a writer I have the right to state my opinions and beliefs. As a free citizen of India, I have the right to be part of any peaceful dharna, demonstration or protest march. I have the right to criticize any judgment of any court that I believe to be unjust. I have the right to make common cause with those I agree with. I hope that each time I exercise these rights I will not be dragged to court on false charges and forced to explain my action.” Arundhati Roy in her reply affidavit to the Supreme Court of India, In Re: Arundhati Roy(2002)3SCC343
[5] (AIR 1988, SC 1208 at 1213)
[6] [(2010) 8SCC 281]