This article is written by Vanya Verma from O.P. Jindal University. This article talks about contempt of court as well as fair comment on the judiciary that does not attract contempt of court as well as covers various instances where people got punished for contempt of court and viewpoints of various judges on the matter.

Introduction

Under Article 19(1)(a) of the Constitution, every person, including municipal councillors, has the right to free speech and expression, which includes reasonable criticism of the law or any executive action. In our democratic republic, freedom of speech and expression is guaranteed both in the legislature and in local bodies, thus a lawmaker or a municipal councillor can legitimately voice his opinions on what he considers to be in the public good. A reasonable exercise of one’s right to free speech and expression, which includes fair criticism, is not to be suppressed. 

Section 5 of the Contempt of Courts Act, 1971 states that a person is not punishable for contempt of court if he or she publishes a reasonable comment on the merits of a matter that has been heard and determined or if a person publishes a fair comment on the merits of a matter that has already been heard and determined.

What is contempt of court

Contempt is the power of the Court to safeguard its majesty and respect, as stated by Smita Chakraburtty (2017). This power is inherent, and it is recognised in the High Court’s and Supreme Court’s constitutions. The Contempt of Courts Act of 1971 regulates but does not limit this power.

Both civil and criminal contempt is defined under the 1971 Contempt of Courts Act. Civil contempt refers to willful disobedience to any court judgement, whereas criminal contempt can be invoked if an act tends to scandalise or lower the authority of the court or tends to interfere with or obstruct the administration of justice.

The effect on the judicial process and the authority of the courts are used to determine whether conduct is contemptuous. According to S P Sathe (1970), the intent of the accused in a contempt action is irrelevant. What matters is the impact of his act or the likelihood of it having an impact on the administration of justice. Any conduct that undermines the administration of justice, or otherwise interferes with or tends to corrupt it, must be avoided.

P Chandrasekhar (2002) went on to say that actual scandalization or lowering of the court’s authority is not required. It suffices if it has the potential to cause controversy or undermine the court’s authority.

Whether or not an activity contributes to weakening the court’s authority is likewise susceptible to judicial interpretation. According to Alok Prasanna Kumar (2016), any publication that “scandalises” or “lowers the authority of any court” qualifies as “criminal contempt” under Section 2(c) of the Contempt of Courts Act, 1971. These are broad and vague expressions, but the Supreme Court has underlined that reasonable criticism of decisions is always permitted and that defaming a judge is distinct from contempt of court as held in the case of Brahma Prakash Sharma v State of Uttar Pradesh (1953).

According to Section 5 of the Act, “fair criticism” or “fair comment” on the merits of a final decision does not constitute contempt. The judgement of what is “fair” is, however, left to the judges’ opinion.

Before 2006, even the truth could not be used as a defence in a contempt case. According to Rahul Donde (2007), “truth has been included as a defence with the enactment of the Amendment Act of 2006, but with the restriction that it can be used as a defence only if it is in the “public interest.” The judge has complete discretion over what constitutes public interest. The truth cannot be used as a defence unless the supposedly contemptuous behaviour was both genuine and in the public interest.

Criticism of court when it does not amount to contempt

The obligation of lawyers to criticise the courts is one of their most essential societal responsibilities. Informed criticism of the courts and their rulings, is not only a right but also an ethical obligation put on every member of the Bar.

There are two methods to criticise the Supreme Court in general, they are as follows:

• The critic can present some fundamental principles and argue that the pattern of decisions or a particular decision is inconsistent with these principles. For example, he might argue that constitutional decisions should be based entirely on the document’s terms and the framers’ intent, that the Court should make decisions based on prevalent opinions about core values, or that antitrust rules should be read to promote allocative efficiency. Decisions that are contradictory to these initial principles may be labelled as incorrect or misguided by the critic. The critics who use this strategy base their arguments on documents, proceedings, and norms that are not related to the Court. 
• The Court’s performance as an institution is the subject of the second type of criticism.

The critic can argue that the Court is too frequently divided, that it fails to sufficiently explain its rulings, or that it makes decisions that contradict one another. In other words, he could claim that the Court is divided or that precedent is ignored. Duty on the part of lawyers to identify and discuss incorrect actions by the courts, subject only to the condition that the criticism is motivated by a good-faith desire to improve the law and the legal system. Malicious or false statements about a judge, or disruptive or contemptuous conduct in the courtroom, of course, cannot be tolerated.

Fair criticism as a shield to criticize the judiciary

• Fair criticism of the position stated in a judicial pronouncement, or even other types of judicial activity, is consistent with the public interest and public welfare that judges are sworn to serve and uphold in such circumstances. As a result, awareness among judges that they can or have erred in their judgements would provide much-needed fuel to the judicial system; another perspective, a new dimension, or insight must always be welcomed. Such a realization that would enhance the majesty of the rule of law will only be possible if the doors of self-assessment, in the light of the opinions of others, are kept open by judges.
• On March 4, 2008, in the case of Lalit Kalita and others v. Unknown, (2008), it was stated that the judiciary is not overly sensitive to criticism; in fact, genuine criticism may be welcomed because it allows for self-reflection. Judges are not infallible; they are people, and they frequently make mistakes unintentionally and as a result of their preconceptions. 
• According to Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court, (1973) “if judges decay, the contempt authority would not save them”. It must be stated, honestly and truly, that faith in the dignity of the Court and the majesty of law has eroded, and this has been caused not so much by scandalous words made by politicians or ministers, but by the courts’ inability to provide prompt and significant justice to the needy.
• In Rama Dayal Markarha v. State of Madhya Pradesh, (1978) it was decided that fair and reasonable criticism of a judgement that is a public document or a public act of a judge involved in the administration of justice is not considered contempt. Such reasonable and honest criticism should be encouraged because no one, including judges, can claim infallibility. Such criticism could reasonably claim that the judgement was erroneous or that an error was made, both in terms of law and known facts.
• When it is said, however, that the judge had a predisposition to convict or purposefully took a turn in the discussion of evidence. This is so because he had already made up his mind to convict the accused, or has a wayward bent of mind, it is attributing motives, a lack of dispassionate and objective approach and analysis, and pre-judging of the issues, all of which would bring the administration of justice into disrepute. 
• Judge’s criticism attracts more attention than other types of criticism, and such criticism can sometimes interfere with the administration of justice. This must be measured by the criterion of whether it ridicules the administration of justice or hinders it. After all, predisposition, subtle prejudice, and prejudging the issues and that an investigation into the conduct of the judge will be conducted who delivered the judgment as he is to retire within a month and a wild allegation that judiciary has no guts, no honesty and is not powerful enough to punish wealthy people, would bring the administration of justice into ridicule and disrepute. Unconscious prejudice, or “Sanskar” as it is known in the Indian language, is inarticulate fundamental premises in the decision-making process. That aspect of the decision-making process cannot be overlooked; it should be taken note of. 

• Without a doubt, judgments can be questioned. No amount of vehement criticism of a decision can be considered contempt of court if it is kept within the bounds of reasonable civility and good faith. Contempt would be demonstrated by fair and reasonable criticism of a judgement that is a public document or a public act of a judge involved in the administration of justice. 
• The speech that the decision is rubbish and should be tossed in the trash can’t be considered fair criticism of the verdict. These remarks have gone beyond the bounds of legitimate criticism and have a demonstrable propensity to undermine the judiciary’s dignity and prestige. It tends to raise public suspicions about the judge’s integrity, ability, or fairness, and to discourage actual and potential litigants from placing complete trust in the court’s administration of justice. It is also likely to cause embarrassment to the judge in the performance of his judicial duties.

Many people today suffer from intractable problems that courts of justice are unable to address. For far too long, justice has been silent. The legal wrangling is destroying public trust in our justice system. It is a criticism that judges and attorneys must make of themselves. The searchlight must be directed inward. At the same time, we cannot be blind to attempts to criticise or discredit the legal system, if they are seriously done. 

Contempt of court : does criticism lower the authority of the judiciary

Judges have ample room when it comes to interpreting the law that punishes contempt of court. This kind of discretion could be used to silence critics of the judiciary.

The Supreme Court decided to send notice of criminal contempt of court charges against stand-up comedian Kunal Kamra and cartoonist Rachita Taneja on December 18, 2020, and issued notifications to both.

The contempt charges against Kamra and Taneja were based on their tweets criticising the Supreme Court and its judges, especially when the Supreme Court granted journalist Arnab Goswami interim bail. The Supreme Court’s notices follow Attorney General K K Venugopal’s approval to pursue contempt proceedings.

Why is discretion a concern

The definition of criminal contempt is written in exceedingly broad terms, allowing judges to impose more restrictions on the free press at their discretion. Donde (2007) outlined the difficulties created by judges’ discretionary powers under the Contempt of Courts Act:

To begin with, it is wholly reliant on the judges’ judgments and predispositions. Second, the Act ignores one of the most fundamental principles of natural justice: nemo debet esse judex in propria causa, i.e., no one shall be a judge in his cause. As a result, in contempt proceedings, the court assumes the roles of judge, jury, and executioner, which frequently results in unfavourable outcomes. Finally, Section 14 of the Act gives the court the authority to punish accused acts of contempt immediately. Judges have used this power to prosecute persons in the heat of the moment in various situations, even when the contemptuous act was minor.

He went on to say that another troubling trend is the court’s tendency to interpret personal attacks on their character as contempt. It is sometimes forgotten that the law of contempt is intended to defend the judiciary’s institution from scurrilous and baseless attacks on the institution rather than the individuals who make up the institution.

According to Donde, the implementation of the Act’s contempt powers has been far from satisfactory: “Contempt of court in this country is sadly prone to the twin evils of favouritism and nepotism.” While the Court did not hesitate to arrest a poor Muslim for begging leniency from a Muslim judge in the name of religion, it failed to take any action against Shiv Sena supremo Bal Thackeray, even though he had accused the judges of corrupt election practises.

Kumar (2016) highlighted these concerns, saying, “I have argued elsewhere that the criminal contempt statute has no place under the Indian Constitution” (Kumar 2015). It is a colonial relic that does not ensure the dignity of our courts in the least. Unfortunately, it has been used to settle scores and suppress the Court’s critics. It’s even gotten in the way of reporting on corruption in the judiciary in good faith.

Is contempt action a reasonable restriction on free speech

While the Constitution of India recognises the right to freedom of speech and expression in Article 19(1)(a), Article 19(2) states that laws can put reasonable restrictions on this right for a variety of reasons, including “in relation to contempt of court.”

Even the Indian Constitution, which is the source of all legislation in the country, has recognised contempt as an exception to freedom of speech, according to Donde (2007).

The historical interrelationship between contempt of court and free expression was explained by Sathe (2001) as follows:

Since the early 1970s, when the Supreme Court found Kerala’s then-chief minister, E M S Namboodiripad, guilty of contempt of court for his critical comments on the judiciary as an institution, acrimony has existed between the judicial power to punish for contempt of court and citizens’ fundamental right to freedom of speech, the court had subjugated the most crucial of the fundamental rights, freedom of speech and expression, to the judiciary’s power to penalise for contempt of court. The freedom of speech had been trivialised by a broad contour of contempt of court.

As a result, he advised, “Freedom of expression is the most fundamental of the fundamental rights, and constraints on it must be kept to a minimum.” Only the restrictions necessary to maintain the legitimacy of judicial institutions can be imposed under the legislation of contempt of court. The judges are not required to be protected by the law. Only the judiciary must be protected.

A contempt notice issued without due diligence could put those in positions of public trust in jeopardy. The rule must be freedom, and the exception must be a constraint.

What lowers the authority of courts : criticism or intolerance 

According to Sathe (2001), “the court’s ability to punish for contempt is likely to be ineffective against the moralist Gandhian willingness to bear the punishment rather than apologise for what they regard as defiance rather than the use of their freedom.”

When it comes to the contempt proceedings brought against Prashant Bhushan, Medha Patkar, and Arundhati Roy for their opposition to the Supreme Court’s decision in the Narmada Bachao Andolan case, Sathe wrote: “Where fear of punishment is gone and one is willing to suffer, the deterrence of punishment vanishes.” Furthermore, when people have strong moral convictions, their suffering elevates their social status.

If the court had penalised them, their public respect would have risen, and the court’s public regard would have eroded as a result.

This resolute reluctance to retract or apologise for critical views has been seen on several occasions, most recently with Bhushan in 2020. Justice A P Shah (2020) remarked in response to the contempt proceedings brought against Bhushan for his contentious remarks, “The Court is typically becoming pricklier when it comes to problems of free speech, as seen in the most recent Prashant Bhushan case.”

The Court, in a show of self-proclaimed “magnanimity,” let Bhushan off with a punishment of one rupee for the contempt case against him stemming from two tweets, but not without criticising his behaviour. One thing was evident during the proceedings: the Court came across as an intolerant institution.

The paradox of judicial legitimacy was articulated by Sathe (2001) as follows: Courts must maintain their social legitimacy by their rulings and people’s view that they are objective, unbiased, and principled. Some people believe their decisions are incorrect. Some decisions may be heavily criticised allowing such criticism to strengthen the court’s legitimacy.

A free society is built on such criticism and dissent. What distinguishes a free society from a totalitarian one, according to Sathe (1970), is the freedom of expression in the former. This liberty is available not only for the propagation of the popular viewpoint but also for the propagation of potentially unpopular viewpoints.

Conclusion

The preceding instances demonstrate that whether or not a comment constitutes criminal contempt is dependent on the facts and circumstances of each case. To summarise, conscientious citizens’ tweets or statements have no bearing on the dignity of the Indian judiciary, which, to quote Lord Denning, “must rest on firmer grounds.”

References

• https://www.epw.in/engage/article/contempt-court-does-criticism-lower-authority#:~:text=It%20is%20sufficient%20if%20it,the%20authority%20of%20the%20court.&text=Section%205%20of%20the%20Act,to%20the%20 interpretation%20of%20judges. 
• https://indiankanoon.org/docfragment/1254801/?formInput=fair%20criticism 
• https://indiankanoon.org/doc/419856/ 
• https://www.epw.in/journal/2017/18/web-exclusives/curious-case-justice-karnan.html 
• https://www.casemine.com/act/in/5a979dac4a93263ca60b7240
• https://www.epw.in/journal/1970/42/special-articles/freedom-speech-and-contempt-court.html 
• https://www.epw.in/journal/2016/52/law-and-society/debating-contempt-court.html 
• https://www.epw.in/journal/2002/19/letters/accountability-supreme-court.html 
• https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2051&context=journal_articles 
• https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1004&context=lawyers_and_prof 

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