This article is written by Varchaswa Dubey, from JECRC University, Jaipur, and Apurva Pandey and Amrita Malagi ( 2nd Year BA LLB students at Symbiosis Law School, Nagpur). This article is exhaustive work concerning the conflict of right to speech and expression and contempt of court. Further, the article aims at providing a better understanding of the concept of freedom of speech and expression and contempt of court.
Right to speech and expression refers to the liberty of freely expressing the views and delivering speeches however such right is not absolute in nature and reserves certain restrictions. It means the right to express one’s thoughts and concepts freely by either word, prints, writing, etc.
It also involves the representation of independent ideas and thoughts in any form of communication or any clear action or display like, visible and clear signs, gestures, etc. However, such rights of independence and free speech are limited in scope and come with reasonable restrictions by the government to prevent danger and other factors which may affect the sovereignty and integrity of the state.
The contemporary law on contempt of court is governed by The Contempt of Courts Act, 1971 which defines contempt of court as civil contempt or criminal contempt under Section 2(a). The Constitution of India in its Article 19(1)(a) reserves the freedom of speech and expression however such right is not absolute. There are certain restrictions to such rights which are present in Article 19(2) of the Constitution of India.
According to Amnesty International, the right to speech refers to the right to seek, receive and impart information and ideas of all kinds, by any means. The right to speech and expression is considered one of the essentials of a democratic country like India, where the suppression of such rights has been practiced by its formal rulers, i.e. the British.
Contempt of court on the other hand refers to an act of non-compliance or discourtesy against the order of a court or any other judicial body, and such disrespect must interfere with the due process of court, and therefore, a reasonable punishment is imposed by the court.
According to Black’s Law Dictionary, contempt of court refers to “any act which is calculated to embarrass, hinder, or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity. Committed by a person who does any act in willful contravention of its authority or dignity, or tending to impede or frustrate the administration of justice, or by one who, being under the court’s authority as a party to a proceeding therein, willfully disobeys its lawful orders or fails to comply with an undertaking which he has given.”
Origins of freedom of speech and expression and contempt of court
The origins of freedom of speech and expression can be traced back to ancient Greece where citizens enjoyed considerable freedom of speech in the 400s B.C. The Greek people used the term “Parrhesia” which means free speech or to speak frankly. The right to speech and expression became a fundamental right during the period of Athens in Greece and leaders, philosophers, playwrights, and every citizen was free to discuss politics and religion and to criticize the workings of government.
Later the concept appeared in the English Bill of Rights 1689, where it held that the freedom of free speech and expression against any proceedings of the parliament, shall not be rebutted or challenged in any court of law or other than parliament.
Afterwards, the 1st Amendment in the U.S. Bill of Rights, adopted on December 15, 1791, stated that Congress shall not enact any law which will suppress the freedom of speech and expression of the people and the press, and no law shall suppress the right of people to assemble peacefully. However, the first amendment failed to define what refers to the freedom of speech and expression and what type of speeches are protected by the courts in the nation.
The origins of contempt of court originated through an undelivered judgment of the court, in the case of R. v. Almon (1764) wherein the presiding judge held that the power of contempt of court is essential to preserve the respect and dignity of the judges and uphold their jurisdiction. The case is also a landmark case concerning the contempt of scandalizing the court, an offence which every time has come up when the comment about judges crosses the line and affects the proceedings of the court.
In ancient times, it was the duty of the king to administer justice by hearing all the parties to a conflict with the help of advisors to the court of the king. When the king was not able to hear disputes, he appointed the judges to act as his delegate and preside over the matters in conflict. Whoever violated or disobeyed the order of such appointed person by the king, was believed to have committed contempt and was punished accordingly.
What is freedom of speech and expression?
The right to freedom of speech and expression is considered to be God’s gift to mankind, where humans can practice criticism only in a positive way, where the rights of humans are being violated. By virtue of Article 19, everyone shall have the right to hold an opinion without any interference. Such right to free speech and expression shall be made available to every person and no authority shall have a right to suppress such rights.
What are the advantages of freedom of speech and expression?
- Discovery of truth: Exposure to truth is the main reason why freedom of speech and expression is practiced. Truth not only reveals the facts of a case but also leads to a full discussion of truth which leads to the development of society.
- Helps inform the public: Having a right to know what’s going around in the nation or state is also a right and to stay informed and updated about the current issues, freedom of speech and expression shall be practiced.
- Stronger democracy: Criticisms on democracy also impact the democracy in a negative way. Criticism helps in highlighting the mistakes of the government and therefore, the government improves its mistakes.
- Impact on elections: Freedom of speech also prevents the malpractices undertaken by the election candidates to win by unfair means; however, if such practice is witnessed by any person, such person has the right to inform the concerned authorities about such practice, resulting in the suspension of the candidate from elections.
- Protection of human rights: Press and journalists are the most vital ingredient of freedom of speech and expression, and when the press creates awareness about the violation of human rights, the concerned authorities take action and safeguard the rights of citizens.
- Voice of the unheard: By practicing their right to speech and expression, media sometimes becomes the voice of the people whose matters are not considered by police, or courts.
What is the importance of freedom of speech and expression?
The right of freedom of speech and expression is a significant human and fundamental right adopted by the Constitution’s framers which gave citizens the right to freely speak and express their views about most of the things in the country. Such freedom only protects the human rights of individuals but also the rights which are essential for the prosperity of the nation.
Hamdard Dawakhana v. Union of India (1959)
In the case of Hamdard Dawakhana v. Union of India (1959), the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 was challenged on the grounds of violation of Article 19(1)(a) and Article 19(1)(f) of the Constitution of India. The petitioners in the present case, who were into the business of medicines, challenged the 1954 Act because they were facing difficulty in advertising their product and many complaints have been filed against them. The 1954 Act was enacted to regulate and govern the advertisements of certain drugs in public, and to eliminate the advertisements of specific remedies which were alleged to have magical qualities.
The Supreme Court of India in this regard held that such an act is not violative of freedom of speech and expression and that freedom to distribute or publish any advertisement does not fall within the ambit of Article 19(1)(a) of the Constitution of India.
Romesh Thappar v. State of Madras (1950)
In the case of Romesh Thappar v. State of Madras (1950), the Government of Madras, banned a journal named “Cross Roads”, to maintain public order and safety. The petitioners in the present case filed a case against the order of the Government of Madras because such a ban is a violation of his rights under Article 19(1)(a) of the Constitution of India.
The Supreme Court of India, in the said case, held that until and unless there exists a law that restricts the freedom of speech and expression, which straightly goes against the security of the state or tends to violate it, the law shall not fall within the ambit of Article 19(2) of the Constitution of India.
Indian Express Newspaper v. Union of India (1984)
In the case of Indian Express Newspapers v. Union of India (1984), the petitioner challenged the customs tax applicable on the newspaper and the high costs have affected the newspaper violating their Article 19(1) of the Constitution of India. The Supreme Court of India in this case held that the government is indeed empowered to impose a tax on the newspaper, however, the rate of tax must be reasonable. The court also held that the press has adopted the responsibility of public education which gives types of education on a wide scale in contemporary times, where types of communication like television are still not available to the society at large. The aim of the press must be the betterment of the public by printing true events and opinions in the absence of which the democratic electorate cannot make reliable judgments.
Bijoe Emmanuel v. State of Kerala (1986)
In the case of Bijoe Emmanuel v. State of Kerala, (1986), the petitioners in the case, were expelled from their school for not singing the national anthem during the morning assembly. The children believed that their religion does not permit them to join any rituals except it be in their prayers to Jehovah their God.
The Supreme court of India, in the present case, ruled that to compel people to sing the National Anthem in the presence of a genuine religious belief, is violative of the rights enshrined in Article 19(1)(a) and Article 25(1) of the Constitution of India.
What are the international provisions concerning the right to speech and expression?
Article 19 of the Universal Declaration of Human Rights
Article 19 of the Universal Declaration of Human Rights states that every person possesses a right to freedom of speech, opinion, and expression, which also comprises the right to deliver personal opinions in the absence of any hindrance and to strive and receive information from any media.
International Covenant on Civil and Political Rights (ICCPR)
Article 19 of International Covenant on Civil and Political Rights states that:
- Every person has the right to have opinions without interference.
- Every person has the right to have the freedom of speech and expression and the right includes the right to receive information and ideas, irrespective of whether they are written or oral, published or written, etc.
- The rights mentioned in this Article shall be practiced with utmost sincerity and responsibility and that such rights may have certain restrictions, however, these restrictions shall only apply when they are provided by the state.
European Convention for the Protection of Human Rights and Fundamental Freedoms
Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms reserves similar rights to the ICCPR, and states that:
- Every person has the right to freedom of speech and expression and the right also includes the right to have opinions and ideas without any intervention of the state or its authorities. However, the article shall not cease the nations to impose compulsion on obtaining a competent license of broadcasting.
- The rights present in the Article shall be practiced with proper care and responsibility, also such rights may be altered or suppressed or restricted if prescribed by the laws of a particular nation in the best interest of the democracy, society, national security, sovereignty, and integrity of the state to prevent the crimes, and national peace and sovereignty, etc.
American Convention on Human Rights
Every person has the right to freedom of speech and expression and the right includes the freedom to seek, receive information and independent ideas of any kind, irrespective of what form they are in, i.e. written, oral, published, etc, or is delivered by any medium of the choice.
What is freedom of the press?
To maintain the true concept of democracy the people need to know what is going on in their nation and how the government is working for the betterment of the people in the country. A single person cannot cover the events across the nation at the same time, however, the job is done by media which telecasts, prints, announces, broadcasts, etc. the events taking place across the nation and therefore, to get true insights of the working of a nation, the media must not be suppressed by any means, except for the reasonable grounds of restrictions.
In the case of Express Newspapers (Private) v. Union of India (1958), the Supreme Court of India held that with all types of freedom, freedom of the press includes the freedom from and for. An independent press is liberated from any type of bound from any governmental, social, or inter and intra sources.
In the case of Life Insurance Corpn. of India v Prof. Manubhai D. Shah (1992), The Supreme Court of India ruled that the media concerned with printing, the radio media, and the media which telecasts fulfill the responsibility of public educationists, which helps in the development and growth of democracy and therefore, each citizen in this country has the right to broadcast their views, with the assistance of any type of media, however, such broadcast shall be subject to certain restrictions enshrined under Article 19(2) of the Constitution of India.
What are the limitations of freedom of speech and expression?
As mentioned above, the freedom of speech and expression in India is not absolute and there are certain restrictions to the right to freedom of expression:
Security of the state
The security of the nation is one of the most sensitive topics when it comes to the discussion of ambits of right to free speech and expression because certain acts cannot be entertained by the state at any costs including public disorder, waging war against the government of India, riots, unlawful assembly, rebellion, friendly relations with the enemy state, sedition, etc. because such acts cause hate towards the nation which destroys the sovereignty of the country.
One such instance is the national emergency of 1975-1977, a 21-month-old tenure proclaimed by then Prime Minister of India Indira Gandhi on grounds of imminent internal and external threats to the Indian state. The emergency was proclaimed under Article 352 of the Constitution of India which empowers the President of India to proclaim an emergency after communicating it to the Prime Minister and council of ministers.
Decency or morality
The expressed words must be decent and shall not cause a nuisance to the public. The Indian Penal Code, 1860 in its Section 292, Section 293, and Section 294 provides the punishment for words that cause any obscenity or nuisance to the public at large. According to Section 292-294, any word, gesture, publication, book, songs, etc which are immoral and not decent shall not be practiced under the disguise of the right to freedom of speech and expression.
Section 499 of Indian Penal Code, 1860, reserves the legal provision for defamation and states that whosoever, by any signs, words, visible representation, etc, accuses any person to violate or knows that such acts will violate the reputation of a person, shall be termed to have caused defamation.
Defamation is a direct attack on the image of a person in society and such acts shall not be practiced under the disguise of practicing the rights of Article 19(1)(a) of the Constitution of India.
Contempt of Court
Judiciary is considered as one of the three pillars of democracy and to preserve the judiciary it is necessary to safeguard the rights of the judges and any act which attacks the integrity of the court shall be punished.
It is believed that the judiciary can only achieve its objective if its orders are being executed or else there is no sign of having a judiciary in the country and therefore there is no right of freedom of speech and expression if the right violates the integrity of the court.
Incitement of an offence
Section 505(1)(c) of the Indian Penal Code, reserves the provisions of incitement and states that any person with the intention of inciting, or is likely to cause incite, among any community or class of people to engage in any offence, against any other person or the group or community, then such person shall be imprisoned for a term which may extend to three years, or with fine or with both.
Incitement refers to soliciting or instigating a person to commit a criminal offence of any nature, shall not be entertained by the government, and such words are not protected by Article 19(1)(a) of the Constitution of India.
Contempt of Courts Act, 1971
Section 2(a) of the Contempt of Courts Act, 1971, reserves the definition of contempt of court which further classifies contempt of court in civil contempt and criminal contempt. Section 2(b) and Section 2(c) define civil contempt and criminal contempt respectively. While civil contempt refers to any intentional non-compliance with the order of the court, the judgment of the court, the direction of the court, or any other order passed by the court in its official capacity, shall be referred to as civil contempt.
Criminal contempt on the other hand refers to the publication of a statement, either written or spoken, or by any other means, which offends or tends to offends or degrade or tends to degrade, or intervene or tends to intervene with the administration of justice, or interrupts with any judicial procedure or tends to interrupt any judicial procedure, shall be termed as criminal contempt of court.
The law of contempt of court aims at maintaining public reliance on the way of working of the court of law, and the law of contempt of court is not concerned with the criticism of judges as an individual but with criticism of the court.
Background of Contempt of Courts Act in India
Just like most of the contemporary laws governing the country are of British origin, the law of contempt of court also hails from the same background.
The Contempt of Courts Act, 1926 was the first legislation enacted to punish for contempt. However, the Act was very limited in scope and was only concerned with the power of the High Courts to punish itself and the subordinate courts for the contempt of court. The objective behind the Act was to resolve the conflicts of opinion between the High Courts and those subordinate Courts who felt under the jurisdiction of such High Courts. The Act also empowered the High Court to penalize itself and the subordinate courts if they go against the judgment and proceedings of such a High Court.
The Contempt of Courts Act, 1952 replaced the 1926 act and reserved more provisions like the limit of the punishment imposed by the High Courts on itself and subordinate courts. The 1952 Act provided with a punishment of simple imprisonment for a term which may extend to six months, or with a fine which may extend to two thousand rupees, or with both. The 1952 legislation also held that the accused shall be discharged from the punishment of contempt of court if such accused makes an apology to the court and such apology meets the satisfaction of the court.
H.N. Sanyal Committee, 1963
The H.N. Sanyal Committee was made to determine the application of contempt of courts in India. The Committee under the chairmanship of H.N. Sanyal, then Additional Solicitor General of India. The Committee recommended that contempt proceedings should not be initiated by the courts themselves, but on the recommendation of a government law officer.
The recommendations of the Sanyal Committee were incorporated in the Contempts of Courts Act, 1971. The 1971 act was not only wide in scope but also consisted of broader definitions of what does not amount to contempt of court.
The Sanyal Committee also recommended the defences which shall be taken if he/she is charged with contempt of court.
Law Commission of India report
The Law Commission of India in its Report No. 274, 2018, while concluding highlighted the number of cases pending before the court from July 1, 2016, to June 30, 2017, and found that a total of 568 criminal contempt cases and 96,310 civil contempt cases are pending, the highest being in the High Court of Orissa in criminal matters and Allahabad High Court with 25,370 civil cases. The Supreme court of India as of 2018, has 683 civil contempt cases and 15 criminal contempt cases.
The Law Commission also suggested that striking down certain provisions relating to criminal contempt of court like ‘scandalizing of court’ might not be an efficient step and such amendment will have no result on the jurisdictions of the courts to punish for contempt.
The Commission also found that any amendment to the 1971 Act which aims at amending the currently existing definition of the term “contempt” shall also result in vagueness because the very act may result in increased events of uncertain and numerous definitions and interpretations as the superior courts exercising their inherent powers of contempt of court.
Altering the ambits of contempt of court to include “willful disobedience of directions or judgment” seems unacceptable. If the provisions are altered or narrowed in scope, then the impact of such legal provisions will be altered as well. Such an amendment will also lessen the respect for the courts and their authority and functioning.
Whether contempt laws protect the judges as an individual
The objective of the law of contempt is to preserve the integrity of the court and it is not concerned with the criticism of the judges as an individual until and unless such criticism directly affects the administration of the justice and due process of law and such criticism is direct disobedience of the judgment of the court.
In the case of P.N. Duda vs V. P. Shiv Shankar & Others (1998), the Supreme Court of India held that the criticism regarding the judiciary and the presiding officers should be welcomed, as long as such comments do not violate or impact the due course of justice. The court held that contempt laws shall not be practiced by the judges to preserve their dignity and any criticism of the judgment is allowed until it violates the administration of justice.
In the case of Re: Arundhati Roy, (2002), the Supreme Court of India ruled that honest criticism of the working of the judges, and the comments on the judiciary and the way it operates shall not fall within the ambit of contempt of court if such statements are made in good faith.
International scenario of contempt of court
The contempt proceedings are not new to India and can be noticed in a lot of other countries as well. Some of them are discussed below-
- UNITED STATES OF AMERICA–
In the United States of America, contempt proceedings are carried out for the same purpose as that of India i.e. to secure the dignity of court and at the same time ensure smooth administration of justice. Contempt of court is civil or criminal in nature but also direct or indirect as well. Direct contempt is in the presence of the presiding judge and the judge often informs the party in contempt and allows them to respond and may impose sanctions thereafter. Whereas indirect contempt is generally when there is a disobedience of a prior court order.
Coupled with the federal structure of the USA, it is prominent to notice how different states have different rules of conduct and punishments pertaining to contempt proceedings. For instance, in Michigan, a person accused of criminal contempt will have the same rights as that of a criminal defendant including right against self-incrimination, the presumption of innocence and contempt to be proven without reasonable doubt. Whereas under civil contempt basic due procedure is followed. Punishment for contempt at large holds imprisonment and fines in its ambit.
In Australia, the matter of contempt of court arises when there is disobedience of a court order or disrespect of the court. Specifically in New South Wales, a few criteria have been termed and if satisfied, a person can be held under contempt some of which include swearing at the judge, refusal in taking oath in court or refusing to leave the court after being told to along with evading court’s orders among others. Some defenses are also available if we talk about contempt in New South Wales; these include necessity, duress and self defense. The punishment includes fine or imprisonment as decided by the court in question.
- UNITED KINGDOM-
In the United Kingdom, actions like, disobeying or ignoring a court order, taking photos or yelling in court, refusing to answer the court’s questions if you’re called as a witness and publicly commenting on a court case, for example on social media or online news articles can amount to contempt. If one is found to be in contempt of court, they could go to prison for up to 2 years, get a fine or both.
- NEW ZEALAND-
New Zealand is one of those countries where the topic of contempt conviction doesn’t have much clarity to it. However, even if contempt is not widely known it is still practiced. In this country, the idea is whatever is the disruption caused to the system it ultimately results into contempt or in other words anything which plainly tends to create a disregard of the courts of justice”.Contempt includes disruptive courtroom behavior (by words or actions) that threatens the orderly and due disposition of court business. The ambit of contempt is also outside the conventional courtroom setting such that when an individual or entity is charged with an offence (whether criminal or civil), the public must be assured that these issues will be tried in the courts and not the media.
The Contempt of Courts Act, 1971
According to Section 1 of the Act, The Contempt of Courts Act has its jurisdiction across India. It is significant to note that the Act does not provide a direct definition of contempt of court but it gives a difference between civil contempt and criminal contempt.
Apart from jurisdiction and definitions, the Contempt of Court Act also reserves sections that define what is not contempt instead of defining what is contempt.
The Act in its Section 12 reserves the punishment for contempt of court. The Section states that the punishment for contempt of court shall be simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both”
Article 129 and 215 of the Constitution of India
Article 129 of the Constitution of India states that the “Supreme Court to be a court of record.” The Supreme Court of India is the court of record and shall possess all the powers concerning the court of record including the power to punish itself for contempt of court. Article 129 reserves the inherited powers of the Supreme Court of India to punish itself under contempt of court if any judgment or proceedings violate the dignity of the court.
Article 215 of the Constitution of India states that “High Courts to be courts of record.” The article declares that each High Court in India shall be a court of record and such High Courts possess all the necessary powers to act as a court of record, including the power to punish itself for the contempt of court. Article 215 empowers every High Court to maintain the records of itself and its subordinate courts, the provision also empowers the court to hold itself guilty of contempt of court if any judgment or order of such court violates the dignity or administration of justice of itself.
What are the essentials of contempt of court?
- Disobedience of the order of the court: The person accused of committing contempt of court has caused disobedience to the court proceedings, or any order of the court or the judgment of the court, and such action must be done wilfully.
- The respondent must be competent to comply with the order: The accused contemnor must be a person who was competent to the orders of the court and not some random person who has nothing to do with the court’s order.
- Knowledge of the order of the court: The accused must know that the court has passed a certain order, and if after such knowledge, the accused fails to comply with the orders of the court, he/she is guilty of contempt of court.
- There must be an order of the court: The disobedience of the order of the court can only be caused if the court has explicitly passed an order and the contemnor disobeys such order of the court.
- Publication of any matter: any matter, either by words, prints, publication, etc. which interferes with the due process of law and the dignity of the court is violated by such publication, then such acts shall be falling within the ambit of criminal contempt of court.
- Scandalizing or lowering the authority of the court: the publication must be of such a nature that it violates the dignity of the court. The acts must be defamatory and must question the competency of the judges.
- Interference with due course of justice: the published words must be of such a nature that they affect the administration of the court and its ability to be a competent authority to deal with a matter, or that such acts must directly or indirectly affect the court proceedings in any way.
What does not amounts to contempt of court
The contempt of courts defines what shall not amount to contempt:
Innocent publication and distribution of matter
According to Section 3 of the Contempt of Courts Act no person who practices innocent publication and distribution of matter shall be guilty of contempt of court. Sub-clause 1 of Section 3 states rules that an individual shall not be punished with the punitive measures of contempt of court if he/she has published anything, in either written or spoken form, by any type of clear signs, or any visible acts, which interferes or tends to interfere or acts as a barrier or tends to act as a barrier to the natural administration of justice, only if, when such piece of data was published, the publisher has no reason to believe that the proceedings were pending before the court.
A fair and accurate report of the judicial proceeding
According to Section 4 of the Contempt of Courts Act, no person shall be guilty of contempt of court if such person published a correct and true report of judicial proceedings.
When a person prints any accurate report of any judicial proceedings, in the open court for transparency of the judicial proceedings. However, if the reports are biased and are not true, the defence of section 4 is not available.
Fair criticism of the judicial act
According to Section 5 of the Contempt of Courts Act, no person shall be guilty of contempt of court if such person practices his right to fair criticism on the acts of the judiciary, or of any case which he has knowledge about.
Fair criticism refers to the comments which are fair and do not intimidate the proceedings of the court or the dignity of the court. However, if the comments are not true, then the defence of Section 5 cannot be availed.
Complaint against presiding officers of subordinate courts
According to Section 6 of The Contempt of Courts Act, no person shall be guilty of contempt of court if such person makes any type of statement in good faith regarding the presiding officer of any court to either any subordination or lower court or the High court.
Publication of information relating to proceedings in chambers or camera
According to Section 7 of the Contempt of Courts Act, no person shall be guilty of contempt of court, if such person published a true and correct report of any judicial procedure which took place in chambers of the judge or in-camera, except when such proceedings are contrary to the law in force, or when such recordings are being conducted in the chambers or in-camera due to public policy or security of the state, or when the information is of such a nature that is a secret issue of the private proceedings.
What are the advantages of contempt laws?
The independence of the judiciary is considered a significant factor in a democratic country like India, where the courts are the last resort of justice. To deliver justice, the judiciary needs to be independent and not consider the threats and interferences, and therefore, the law of contempt is the most ideal legislation which protects the dignity of the court and punishes those who hamper the administration of justice by intimidating the court.
The contempt laws also punish the disobedience to a court and its rulings for the smooth administration of justice.
The court laws safeguard the judiciary and its working, and the primary objective of enacting the Contempt of Court Act is also to protect the dignity of the court and preserve its due process of law and punish those who disobey or act as a barrier in the due course of justice.
In the case of Shri Baradakanta Mishra v. Registrar of Orissa and Another (1973), the Supreme Court of India ruled that the main word is “justice” and not “judge”, the main concern revolves around justice and not the judges. The Contempt of Courts Act respects the right of free speech and expression and the right to justice. The contempt laws should be practiced only when there is mala fide intention to violate the dignity of the court and not fair or trivial comments made on the judiciary and the judicial officers.
In the case of Dr. D.C. Saxena vs Hon’ble The Chief Justice of India (1997), the Apex Court while speaking of the benefits of the freedom of speech and expression in the legal fraternity observed that freedom of speech and expression promotes the development of the judiciary and its dignity. Freedom of speech and expression also plays a significant role in securing and protecting basic human rights. The right to freedom of speech and expression is one of the most vital factors in a democratic nation and therefore the right to freedom of speech and expression is a basic concept for the development of advocacy and all those who are indulged in the legal fraternity, who practice law in courts.
In the case of The State vs Editors, Printers, And Publishers (1954) the Supreme Court of India held that when a publication was published with the objective of violating the principles of fair trial of a case pending before the court, there is no doubt that law of contempt shall be practiced however in cases where there is no malafide intention to violate the dignity of the court, then the law of contempt does not follow.
What amounts to contempt
Summing up the question with the case of Indirect Tax Practitioners Assn vs R.K.Jain (2010), where the court held that the law of contempt is not practiced by courts to punish the person by violating his right to speech and opinion but in cases where the criticism is of such a nature that it crosses all moral limits and it is a deliberate act to violate the integrity and dignity of the court, then the court shall use the power to punish a person under contempt of court.
The courts never practice the jurisdiction of such laws to protect their dignity but the dignity of the court, neither the contempt laws are used against those who speak against the courts. The right to speech and expression includes the right to criticize the judgments of the court until and unless such criticism violates the dignity of the court.
The law governing contempt needs clarification and its ambit needs to be discussed widely by everyone so that neither is it misused nor is it used as a tool to abuse the rights of the public. Debate and discussion are a part and parcel of Indian democracy and so is active participation. The combination of the two is the ultimate success ‘mantra’ in bringing a reform and that is the first step in this domain as well. Active participation from every side is required to push for reforming this law such that it balances the opinions well in its ambit. Below are some suggestions mentioned that could be a stepping stone in igniting a debate about this hugger mugger topic.
- A remedy available for contempt is Apology. A layman or an advocate might say some things they don’t mean because they are under a lot of pressure or this might happen out of pure frustration in such a scenario it is vital to accept that one has made a mistake and apologize for it hoping that the court remits the punishment awarded. It is vital that the apology is sincere.
- On the other hand, the court must understand the grievances that citizens are under and should be a little more accepting of the criticism, it is crucial to examine why the person took such actions which led to contempt conviction and what were their intentions behind the same.
- The consequences or the punishment should be the same for every citizen, irrespective of if the person is a public figure or a layman.
- The recent lines of contempt paint a very blurred image if anyone files an appeal for contempt conviction a committee should be established that analyses if the case comes under contempt or not, and this committee should be free of interference from the judge’s side this can be established under the idea of checks and balances.
- A crystal clear image between contempt of judge and contempt of court should be made available in the public domain.
- The conviction must be used as an expedient when the court has a very reasonable foundation for contempt.
Narrowing down the solutions, one can understand that the judicial stance over the law of contempt has to be clarified. Additionally, the same has to be communicated and explained better to the people so that the scope of misunderstanding reduces significantly and the communication gap is filled.
There have been numerous cases where the jurisdiction of the contempt of courts is practiced by the court, e.g. the Prashant Bhushan contempt case (2020) where his tweets allegedly scandalized the proceedings of the court, and the lawyer was fined with 1 Rupee only, the reason behind such fine is reflecting the guilt of Prashant Bhushan that he was indeed guilty of contempt of court, and this discretion on the judiciary to decide on the fine is a matter of concern.
The other and the most important matter of concern is the clash of the freedom of speech and expression and the contempt of court where it is not clear as to what shall violate the dignity of the court and whatnot. It is not clear as to what shall be contempt, whereas it is clear what does not amount to contempt in the Contempt of Courts Act, 1971.
The line between freedom of speech and expression and contempt of court is upon the discretion and interpretation of the court and therefore causing uncertainty in the laws of contempt of court.
On the other hand, criticism indeed helps the nation to prosper, but the criticism of the court is not acceptable, however, such acceptance is also upon the understanding of the judges, and therefore, there is an urgent need to enact such legislature which reserves broader definitions and more interpretation with the view of safeguarding the right to speech and expression.
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