Pragmatic Views on Contempt of Court and Freedom of Speech

About the Author: I am Urja Mishra. I am pursuing B.A.LL.B from D.E.S’s Shri Navalmal Firodia Law College under the Pune University. I am in my Second Year of Study. I am very much keen and interested to work on the following topics: Constitutional Laws, Cyber Law, Social-Media, Psycho-Legal issues and Commercial Laws.

INTRODUCTION

George Orwell quoted, “If liberty means anything at all, it means the right to tell people what they don’t want to hear.” Freedom of Speech is one such liberty, granted by the Constitution to the citizens of India. It is the fundamental pillar of a Democratic Government. Restraining the citizens from this freedom would imply the dissolution of the Constitution and emergence of tyranny thereby undermining Public Liberty at large. Contempt of Court is regarded as the offence of being disobedient to or disrespectful towards a court of law and its officers in the form of behaviour that opposes or defies the authority, justice and dignity of the court. It is a concept that seeks to protect judicial institutions from motivated attacks and unwarranted criticism along with serving as a legal mechanism to punish those who lower its authority. The point here isn’t whether the Contempt of Court puts a restraint on the freedom of Speech but whether this restraint is justified or not in the present scenario.

ORIGIN OF CONTEMPT OF COURT

Contempt of Court has its roots in the Common Law Principle of England which sought the protection of the judicial powers of the King and his panel of judges. Any disregard or violation of their orders was seen as an affront towards the state. Gradually, any sort of contravention of the judiciary was marked as disobedience and was seen as a hurdle in the implementation of the directives; in turn, an obstruction in the delivery of justice thereby entitling it to punishment.

STATUTORY BASIS

Pre-independence India had laws of contempt of court, including the early high courts, princely states, etc. Contempt of court was made one of the restrictions on freedom of speech and expression during the adoption of the Constitution. Solely, Article 129 and Article 215 of the Constitution conferred on the Supreme Court the power to punish for its contempt and a corresponding power on the High Courts respectively. The Contempt of Courts Act, 1971, legitimated the idea once again. The predominant aim of the jurisdiction is to uphold and safeguard the dignity of the court and the due administration of justice.

TYPES OF CONTEMPT

Enlisted under the Contempt of Courts Act of 1971, are 2 types of Contempt:

1. Civil contempt: Under Section 2(b), civil contempt has been defined as willful disobedience to any judgment, decree, direction, order, writ or another process of a court or willful breach of an undertaking given to a court.
2. Criminal contempt: Under Section 2(c), criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:

 Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or

 Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or

 Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Nevertheless, innocent publications, Fair and accurate reporting of judicial proceedings, distribution of matter and reasonable and fair criticism of judicial acts and comments on the administration does not account to Contempt of Court. Amendment of 2006, introduced truth as a valid defence for the same owing to the public interest. Contrary to the popular belief that, freedom of speech and expression is limitless, it is subject to certain reasonable restrictions. Restraints put on the right to freedom of speech & expression are in the purview of the sovereignty, integrity and security of India, cordial relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement of offence. Citizens of India have been granted the liberty to exercise their fundamental right to freedom of speech and expression subject to these restrictions.

CONTEMPT OF COURT vs RIGHT TO FREEDOM OF SPEECH

Following are some of the issues pertaining to the Contempt of Court with regard to Freedom of Speech:

• Cease on Civil Liberties and Ambiguous Concept- A legislation for criminal contempt clashes with the fundamental rights and thereby the Democratic ideologies of India. Pragmatically, it draws a parallel with the executive for using laws to create the CHILLING EFFECT on this freedom. As rightly said by V.R. Krishna Iyer for the law of contempt as “having a vague and wandering jurisdiction, with uncertain boundaries; contempt law, regardless of the public good, may unwittingly trample upon civil liberties.”
• Violating the Principle of Natural Justice- Although Section 5 of the Act states that fair and reasonable criticism is not to be termed as contempt of court but it is the judiciary only, against whom the criticism is to be made and also to adjudicate if the criticism is fair and reasonable in nature or not. This prima facie goes against the principle of natural justice wherein no one can be the judge in their own cause. It is supported by another contention which argues that even if the allegation is true, it is at the discretion of the court whether to hold that allegation as contempt of court.
• Antiquated Ideology- It is imperative to note that laws and practices of contempt have already been abolished in foreign democracies. England decriminalised the offence of “scandalizing the court” in 2013. Canadian laws account its test for contempt to real, concrete and immediate dangers to the administration. American courts consider it obsolete with regard to comments on judges or legal matters.

Despite these issues, the sanctity of the Contempt of Court cannot be ignored due to the following reasons:

CONCLUSION

Power tends to corrupt, and absolute power corrupts absolutely. The Constitution has granted its citizens the right to freedom of speech and expression. In this context, Contempt of court certainly constitutes one of the reasonable restrictions (rather than restraint) that can possibly be a rider on this right. At the same time, it is necessary to understand that none of the fundamental rights is absolute in nature. Consequently, the right to freedom of speech and expression is also subject to certain other reasonable restrictions such as defamation, decency and morality, public order and incitement of offences. It can be contended that the ambit of the reasonable restrictions enshrined between clauses 2 to 6 of Article 19 of the Constitution of India are so broad rather than being explicit that they restrict the very rights that clause 1 of Article 19 provides the citizens with. However, if we think about the thought process behind these reasonable restrictions, it can be easily derived that the sole purpose behind it was to maintain a balance between the implementation and judicious use of absolute rights, which otherwise could have been lethal for the citizens themselves, resulting into a failure of machinery. Throwing limelight on the reports by the Law Commission, which affirmed that a review mechanism must be established within the judiciary to serve as a safeguard against judicial tyranny. Thus, the system should strike the right chord between the Freedoms of Citizens and the Dignity of the Courts. As it has been rightly said by Lord Denning, “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”

REFERENCES:

1)Contempt of Court Act 1970

2) https://www.thehindu.com/opinion/lead/the-chilling-effect-of-criminal-

contempt/article32198138.ece

3) http://www.legalserviceindia.com/legal/article-2638-contempt-of-court-a-

comprehensive-analysis.html

4) https:/www.civilsdaily.com/burning-issue-contempt-of-court/

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