Author: Rimika Chauhan, III year of LL.B.(Hons.) from Galgotias University
Aarti & Rahul are best friends. Rahul decided to ask Aarti about the difference between free speech and contempt of court because he was so confused, he wouldn’t draw a line between free speech and contempt of court. So, he asks along with his ally Aarti to make him understand. The conversations follow:
Rahul: Aarti what does one understand by free speech and contempt of court?
Aarti: Rahul, “free speech” is right to freely express their views and opinions to members of society. It is given under Article 19(1)(a) of the Indian Constitution [1]guarantees the right to freedom of speech and expression to every citizen of our country. Every citizen has the right to freely express his aspersions and convictions and on the other side Contempt of court is behaviour that opposes or defies the authority, justice, and dignity of the court. Contempt charges may be brought against parties to proceedings; lawyers or other court officers or personnel; jurors; witnesses; or people who insert themselves in a case, such as protesters outside a courtroom.
Aarti: Rahul, it's to be understood that free and open criticism will increase the responsibleness of the judiciary towards individuals. It widely affirmed that in any democratic society people are supreme. There's no wrong to tag people as the master in a very democratic set up wherein all other authorities like government, judiciary, executive, etc. are the servants of the master. Criticism helps the authorities to grasp where they're lacking in performing their duties and such criticism acts as a catalyst for the right conduct of the country. But, unfortunately, people don't feel that much liberated to criticize any judiciary due to the fear of getting charged with contempt of court under The Contempt of Court Act, 1971. This act gives unjust power to a court of law to punish any such act which tends to devalue the authority of the judiciary. They have the right to punish any criticism regardless of how beneficial it may be for the judiciary for improving its working. Although Section 5[2] of the said Act states that fair and reasonable criticism isn't to be termed as contempt of court but it's the judiciary only, against whom the criticism is formed, to determine whether the criticism is fair and reasonable in nature or not. Aarti but then what’s the difference between them both because they both contradict each other and also against the principle of natural justice that no one can be the judge of its cause.
Rahul: Ok Aarti I understand but you recognize that under Indian constitution Article 129, makes the Supreme Court the 'Court of record'. Thus, the Supreme Court shall be a court of record and shall have all the abilities of such court including the power to punish for contempt of itself. Article 215[3] of the constitution of India also says that "every judicature shall be a court of record and shall have all the abilities of such a court including the power to punish for contempt of itself. The judge at the same time wears the three heads, one in every one of the private citizens and individuals and also the second of the general public servants and third as a judge. As S-186, IPC gives them ordinary protection against obstruction on the discharge of their duties. However, this doesn’t weaken the necessity for the contempt laws given the very special nature of the court within the justice dispensation system. So basically, it depends on how judge take it in right, Aarti if someone speech is contempt of court within the eye of the judge than he got punishment for contempt of court as we take a recent case of Prashant Bhushan within which SC fines an AOR Prashant Bhushan fine for Rs.1 for contempt
Aarti: No, Rahul this is often not correct to mention that it depends on how the judge takes it in because under Contempt of court Act. Innocent publication and distribution of matter, not contempt (1) A person shall not be guilty of contempt of court on the bottom that he has published (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice about any civil or criminal proceeding pending at that point of publication if at that point he had no reasonable grounds for believing that the proceeding was pending[4] and under Section 5 also Fair criticism of judicial act no contempt. An individual shall not be guilty of contempt of court for publishing any fair discussion of the merits of any case which has been heard and eventually decided. So, in Prashant Bhushan case.
Rahul: Wow, Aarti You know so much! Let’s venture out for some food and celebrate your intelligence?
Aarti: Haha, how about no? Let’s order in some Hyderabadi Biryani instead. COVID- 19 looms large, and it’s not safe to travel out.
Rahul: Ok.
“Let me say at once that we will never use this jurisdiction to uphold our 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: - Lord Denning
ENDNOTES
1. Article 19(1)(a) in The Constitution of India 1949 (a)to freedom of speech and expression;
2. Section 5 in the Contempt of Courts Act, 1971
3. A fair criticism of judicial act, not contempt. —A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided. —A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided."
4. Article 215 in The Constitution of India 1949
5. 215. High Courts to be courts of record Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself
6. Section 3 in the Contempt of Courts Act, 1971
REFERENCES
[1]Article 19(1)(a) in The Constitution of India 1949
(a) to freedom of speech and expression;
[2]Section 5 in the Contempt of Courts Act, 1971
5. Fair criticism of judicial act, not contempt. —A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided. —A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided."
[3]Article 215 in The Constitution of India 1949
215. High Courts to be courts of record Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself
[4]Section 3 in the Contempt of Courts Act, 1971