By
Nithin Manoj, II year of B.B.A.,LL.B. from School Of Law, Christ (Deemed to be) University.
Introduction
This article is an explanation on the topics of contempt of Court and Freedom of speech and expression. The question of whether the Freedom of Speech and expression can be overridden by the Contempt of Court Act is being discussed here.
Contempt of Court
The action of contempt of court which includes the definition, explanation and the punishment that is provided for that action. Contempt of Court has been being divided into 2 types i.e. Civil and Criminal Contempt. The “Civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other processes of a court or wilful breach of an undertaking given to a court”[1].
The Criminal Contempt on the other hand has been defined as an act by a person who through any means tries to scandalise or tending to bring down the dignity of the court then such an act is to be considered as criminal contempt. Criminal Contempt is the type of contempt that is facing a lot of criticism and it has been stated that the such a type of contempt that is mentioned in Section 2(c) of the Contempt of Court Act is a clear violation of the freedom of speech and expression which is a fundamental right that is provided by the article 19 (1)(a) of the Indian constitution. An important thing that every person should understand is that under Article 19(2) that explains the exceptions to the right of freedom of speech and expression.
Contempt of Court is one such exception to the freedom of speech. In the Het Ram Beniwal case, it has been stated that the Court would never use its powers to punish for the act of contempt of court by restricting the right of freedom of speech and expression, under Article 19(1)(a) of the Constitution. The court in their judgement has underlined the statement that “only when the criticism on judicial institution transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the court would use this power.”[2]Whilst Article 19 gives the right of freedom of expression the right is not free in its entirety as it has its restrictions and conditions and one such exception is the Contempt of Court.
In the judgement of P.N. Dua case judges have stated that “any criticism about the judicial system or the Judges which hampers the administration of justice or which erodes the faith in the objective approach of Judges and brings the administration of justice into ridicule must be prevented and the Contempt of Court proceedings arise out of that attempt.”[3] The Contempt of Court is legislation is an acceptable restriction on freedom.
Freedom of Speech
Article 19(1) (a) of the Indian Constitution provides the people with the right to freedom of speech. It gives right to all the citizens to make any idea that is in both written or oral, published or unpublished even if it falls under the line drawn by the reasonable restriction. Article 19 (2) of the constitution states about these exceptions or restrictions for the freedom of speech and expression. In the case of S.Rangarajan states that “the freedom of expression means the right to express one's opinion by mouth, writing, printing, and picture or in any other manner. It would thus include the freedom of communication and the right to propagate or publish an opinion.”[4]The freedom of speech under the constitutions has and its opinion is of paramount importance.
The article tries to question whether the act of courts to consider the criticism of the judiciary as contempt action is a clear violation of the freedom of speech and expression under Article 19(1) (a). It should be understood that the judiciary is also under the purview of criticism as an institution in a democratic country is under the light of the criticism. The judiciary can also come under the purview of these criticisms and only when it loses the limit of decency and tends to scandalise the court decency. But when this criticism is within the limit of bonafide level then taking action against them by making it as a contempt action is a clear violation of the freedom of speech and expression.
“The law of contempt must be read without encroaching upon the guaranteed freedom of speech and expression in Article 19(1) (a) of the Constitution, that the intention of the statement should be examined in the light of political views and that it does not harm the courts.”[5] The court in various has upheld the importance of article 19 of the Indian constitution and the freedom of speech. The judiciary which is considered as the guardian of the constitution and the laws of our country and when they themselves try to curb such freedom and fundamental rights can never be accepted.
In the Sakal (P)Ltd case that “the freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures, governments and judiciary must be preserved.”[6]. Thus it is clearly stated Judiciary is also a democratic organ which is also bound for the act of public scrutiny and criticism wherein the people have the right to comment and criticize any judicial act such as order, judgement etc. which is for the better functioning and also for the development of democracy. To end the statement it better to quote the case of S.Mulgaokar that “Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that a contempt of Court.”[7].
Previous Judgments on Contempt of Court
The Contempt of Court is a legislation that is being set up for taking action against the people who are undermining the dignity of the court and one such landmark judgement on contempt of court is being discussed here:
IN RE: S. MULGAOKAR v. UNION OF INDIA (AIR 1978 SC 727), the 1977 case is considered as one of the landmark judgments in the history of Indian judiciary and on contempt legislation. In this case, the court has taken criminal contempt action against the then editor of The Indian Express Mr.Mulgaokar for publishing an article that was written by A G Noorani on criticising certain judicial decisions of the court during the emergency period. The Court stated that the article is shrivelling and unacceptable as the article tends to undermine the dignity of the court, thus the court has asked the editor of the paper to stop the publishment of the article which was ignored by the editor and had published the entire article which leads to the initiating of contempt action against the editor and the paper.
The case was presided by a 3 judge bench headed by the then CJI Justice Beg, Justice P.Kailasam and Justice V.R Krishnaiyer. The court in the case has stated that “There are occasions when the right to comment may be of supreme value and the law of contempt must adjust competing values and be modified, in its application by the requirements of a free society and the shifting emphasis on paramount public interest in a given situation”[8]. The court in the majority of 2:1 has declared that Mr. Mulgaokar cannot be considered as guilty. Justice Kailasam and V.R Krishna Iyer have pronounced the majority judgement and the only concurring judgement was given by Justice Beg. Justice Krishnaiyer has pronounced certain guidelines for the contempt action in this case that is known as the Mulgaokar Guidelines.
Whether the Contempt of Court Act Undermines The Freedom Of Speech And Expression?
This is a question that has been coming in front of the judiciary for a very long period, there have been a number of cases which discussed the act of contempt and sometimes how that legislation on criminal contempt has been considered as an act of clear cut violation of the fundamental right of Freedom of speech and Expression.
In the case of Prashant Bhushan, the court has stated that the “Article 19(1)(a) guarantees Freedom of Speech and Expression and any provision of the legislation India including Article 129 and 142(2), cannot override Article 19 (1)(a). Free Speech is a highly valued right and is essential for democracy. In a democracy, there is a right to dissent. There is the freedom to build an opinion.”[9]
The fact is that such statements cannot be taken blindly there have been statements that have been made by the courts in various other cases that the fundamental right is liable to restrictions which have been already stated in the constitution under the exception section of Article 19. As stated by the judges in the case of P.N Dua“Article 19(1) (a) guaranteed complete freedom of speech and expression, it also made an exception in respect of contempt of court. While the right is essential to a free society, the Constitution had itself imposed restrictions concerning contempt of court and it could not, therefore, be said that the right abolished the law of contempt or that attack upon judges and courts would be condoned.”[10]
By analysing all the facts, statements, laws and judgements that have been mentioned in the above part of the article it could be understood that any act or statement of criticism that is against the judiciary which is cannot be considered as a morally upright, not made for the development of the judiciary and society or has misused the freedom must be considered as an act of criminal contempt and should take the necessary action against it and thus the contempt of court cannot be considered as a violation or it does not undermine the Article 19 in entirety.
Conclusion
To conclude the article it could be stated that the contempt of court and the freedom of speech is a topic that has a great amount of debating potential. Both are parts of the legal system that can be misused if it is given more freedom. The freedom of speech is an important as well as an accepted right under the constitution of India but it is not a free right it is also under some restriction known as exceptions and any person who breaks such line of acceptability must be stopped. On the other hand, every public body in a democratic country is liable to criticism which also includes the judiciary. The contempt of court is a jurisdiction for the protection of the judicial body from unwanted attacks but when the judiciary and courts try to protect them and cover up their mistakes it leads to the loss in the sanctity of democracy as well as the judiciary. Thus in conclusion both Contempt of court as well as the freedom of speech should be used without encroaching the line of acceptability as well as the reasonability for the betterment of the country.
[1]The Contempt of Court Act 1971, No. 70 of 1971, INDIAN CODE(1971).
[2] Het Ram Beniwal and Ors. vs. Raghuveer Singh and OrsAIR 2016 SC 4940
[3] P.N. Dua vs. P. Shiv Shanker and Ors. AIR 1988 SC 1208
[4]S. Rangarajan and Ors. vs. P. Jagjivan Ram and Ors(1989) 2 SCC 574
[5] E.M. Sankaran Namboodiripad vs. T. Narayanan Nambiar, AIR 1970 SC 2015
[6]Sakal Papers (P).Ltd and ors v. Union of India AIR 1962 SC 305
[7]In Re:S. Mulgaokar vs Unknown AIR 1978 SC 727
[8]In Re:S. Mulgaokar vs Unknown AIR 1978 SC 72
[9]In Re: Prashant Bhushan and Ors, 2020 SCC OnLine SC 698
[10]P.N. Dua vs. P. Shiv Shanker and Ors. AIR 1988 SC 1208