FREE SPEECH AND CONTEMPT OF COURT: WHERE TO DRAW THE LINE?
Author: Anushka Singhal, I year of B.A., LL.B. from Symbiosis Law School Noida
“If the freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter, said George Washington. These lines aptly describe the importance of free speech. A man without this right is no less than an animal. Thus, safeguarding our freedom of speech becomes of utmost importance. Article 19 of the Indian Constitution bestows us with the right to freedom of speech and expression. It gives us the authority to express ourselves, to voice our opinion and make us feel that every human matter. In recent times, though, several eyes have been raised against this right, especially due to the contempt of court cases. Questions have popped up in the minds of people that is there a balance to give equal weightage to both? Where to draw the line? This article makes you delve deeper and acknowledge that we need segregation.
CONTEMPT OF COURT: SOME ARGUMENTS
What is exactly contempt of court? According to the Contempt of Courts act 1971[i], “contempt of court” means civil contempt or criminal contempt. Civil contempt is when we willfully disobey any judgment, order or decree of the court while criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which—
(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice.
It is the criminal contempt that is garnering so much attention these days. It is difficult to establish whether it was mere opinion or an attempt to scandalize the courts. The ‘motorcycle tweet’ topped with another tweet made a perfect cake for the public to have a bite. The tussle between civil rights lawyer Prashant Bhushan and former Justice Arun Kumar Mishra sparked a fresh debate on this issue. Mr. Bhushan was ultimately found guilty and was punished with a fine of Rs.1. But the whole matter raised questions as to how to demarcate these two areas. Where does free speech ends and where contempt of court starts?
Just a single matchstick and the hay automatically catch fire. Same happened here, after this case some people started demanding that the whole law regarding contempt of law gets repealed. Arundhati Roy claimed that these proceedings pose a danger to something as basic as freedom of speech. Everybody came up with his opinion. But will it be advisable or even possible to get away with the contempt of courts law? It seems like a complete Utopian concept.’ The moral arc of the universe is long, but it bends towards justice”, said Martin Luther King Jr. If justice is so important, then, of course, the justice givers are also important. Judges need to be respected and their decisions though can be criticized but cannot be ridiculed. Imagine the stage being open for all, everyone would come and showcase whatever they know, whether good or bad. But if there is a filter mechanism, then only true talent will come. Same is with the contempt law; there needs to be a filter which brings only acceptable criticism for the judiciary. Our basic fundamental right would not be infringed here. We have censorship on films and now even OTT is coming under this ambit. All this is done to eliminate and segregate unacceptable content that would outrage the masses. Morals still find a place in our heart and anything which goes against morality is not accepted, come what may. Allegations and portraying the judiciary in a negative light amounts to immorality and thus needs to be punished. A mechanism is the need of the hour, which would help us identify which comment should be admitted and which one needs to be discarded.
SOME CASE LAWS
“Wise people speak because they have something to say, foolish speak because they have to say something”, said Plato. When we identify these wise and foolish then we would be successful in drawing a line between freedom of speech and contempt of court. S. Mulgaonkar v Unknown[ii] is a landmark ruling on the subject of contempt. In the instant case, Mulgaonkar, the then editor of The Indian Express refused to extend an apology to the Court and retract the article on certain contentious judicial decisions during the emergency, especially the infamous Habeas Corpus Case. The court did not hold him guilty and said that actions should be initiated when the comments obstruct the administration of justice. In P.N. Duda v P Shiv Shankar [iii]court held the same ruling as above. By observing these cases, we see that already a line has been drawn by our honourable courts; they have explicitly tried to mention where the freedom of speech ends and where contempt of court begins. The recent proceedings against comedian Kunal Kamra and cartoonist Richa Taneja aptly explain what a boundary between freedom of speech and contempt means. Posing a question mark on courts impartiality comes under the garb of hampering the administration of justice. We don’t have an explicit codification as to which exercise of free speech would obstruct the administration of justice and which would not. This is not practically possible. All cases are not solved by laws, facts determine their actual fate. There are ‘questions of law’ as well as ‘questions of fact.’ Contempt cases thus also have a wide scope and like several laws, it is at the discretion of the court to decide which comments create a hurdle for justice administration.
A.V Dicey said, “Where there is discretion, there is room for arbitrariness”. If courts will have discretion, then surely there would be scope for something going wrong. We could be punished for our bonafide exercise of the right to freedom of speech and expression. Thus some solution needs to be found for putting an end to this discretion. Amending, the Contempt of courts act 1972, can be a solution. Dealing with contempt cases with a hot head would need anarchy. There is a dire need to go back and reconsider these laws. In these times when we use the term ‘tolerance’, in common parlance, then we should practice it too. Justice Bharucha in the Arundhati Roy case noted that “the shoulders of the court are broad enough to shrug off certain comments” but the rulings on contempt tell otherwise. Freedom of speech is of paramount importance but not at the cost of administration of justice. [iv]