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FREEDOM OF SPEECH AND EXPRESSION VIS-À-VIS CONTEMPT OF COURT- NEED FOR BALANCE

Author: Kanishka Sharma, III year of B.A.,LL.B. from Symbiosis Law School, Hyderabad


Abstract

Humans express themselves in multiple ways like writing, speaking, dressing, pictures, etc. Freedom of speech was first established in the First Amendment of the United States Constitution in 1791. However, these speeches and expressions may hurt the sentiment of some other person. It leads to the rise of conflict between people. Therefore, few restrictions have been imposed on people to avoid a chaotic situation. One of them is 'contempt of court.' The judicial system is one of the pillars of society. It further gave rise to the question if one can criticise the judicial system or its decisions. This clash has been observed in different cases. The paper glance over the origin of the concept of contempt of court and its need. Further, the bone of contention between freedom of speech and expression and contempt of court will be analysed. Various cases are looked over, along with the need for balance between the two. At last, the paper provides a conclusion and suggestions. The research methodology followed for the article is non-doctrinal. Sources like books, articles, cases, statues, etc. would be used for research.


Introduction

Freedom of Speech and Expression means the right to express one's views and beliefs freely through vocal, written, pictorial mode, etc. It is a fundamental right bestowed upon citizens of India by the constitution under article 19(a)[1], but it is not an absolute right. Freedom of Speech and Expression has certain reasonable restrictions along with it that it shall not "affect the operation of any existing law, or prevent the state from making any law, insofar as such law imposes reasonable restriction on the exercise of the right conferred by the said sub-clause in the interest of the sovereignty and integrity of India, the security of the State, friendly relation with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence".[2]


Contempt of Court is defined in the Contempt of Court Act, 1971 under section (2)[3]. It states that: "(a) 'contempt of court' means civil contempt or criminal contempt; (b) 'civil contempt' means willful disobedience to any judgement, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court; (c) 'criminal contempt' means 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--(i) scandalises, or tends to scandalise, 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 in any other manner;(d) 'High Court' means the High Court for a State or a Union territory, and includes the court of the Judicial Commissioner in any Union territory." [4]


The act doesn't only provide power to courts to try people for 'Contempt of Court' but also offers general defenses for people to restrain arbitrary use of this power by courts. Few defenses available are under section (4) "Fair and accurate report of judicial proceeding not contempt" [5], section (5) "Fair criticism of judicial act not contempt" [6], section (13) "Contempts not punishable in certain cases.—Notwithstanding anything contained in any law for the time being in force,— (a) no court shall impose a sentence under this act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice; (b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide" [7], etc. The truth was introduced as a defense after the case of "Indirect Tax Practitioners' Association v. R.K. Jain" [8], (2010).


The punishments for Contempt of Court are provided under this act. Under section 12[9] of Contempt of Court Act, 1971, "Sub section 1 says that 'a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:' Provided accused may be discharged or the punishment may be remitted on apology being made to the satisfaction of the court. Sub section 2 says that 'no court shall impose a sentence in excess of that specified in sub section (1) for any contempt'. Sub section 3 deals with the discretion of the court on punishment; Sub section 4 deals with the punishment for the person found guilty of contempt of court in respect of any undertaking given to a court is a company; Sub section 5 says that where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer".[10]


There had always been a debate that article 19(a)[11] and contempt of court had always shared a relationwhich is of juxtaposition in nature. A lingering question that comes with it is at which point the freedom of speech and expression ends, and contempt of court starts; there are no clear lines. Different statements are open to varying interpretations by many people. Another problem accompanied by this issue is that if the court can use the power of contempt of court to stifle freedom of speech and expression? This problem calls for an action to maintain a balance between freedom of speech and expression vis-à-vis contempt to court.


An example of the blur lines between freedom of speech and expression and contempt of court and different interpretations would be the case of Mr. Prashant Bhushan, advocate. Mr. Bhushan was charged with criminal contempt of court for his tweets, undermining the dignity of the Supreme Court of India and shaking the public's confidence in the judiciary. He was given an option to apologize, but he denied it; thus, the court ordered him to pay Re. 1/- as a fine, and if he fails to do so by the specified date, then imprisonment for three months and a three-year ban from practicing in the particular court.


Origin and Need of "Contempt of Court"

The concept of contempt of court finds its roots in the notion of 'Contempt of King' in the Anglo-Saxon' Oferhyrnes.' According to the ' Laws ', the idea of 'Contempt of Justice' was also considered an offense in the first half of the 12th century. There is mention of 'Contempt of King's writs' and 'overseunessa', a fine for contempt or disregard of orders in 'Laws' of Henry I. However, we don't find any mention of the term 'contempt of court' in 'Consuetudines et Justicie' of 1091 AD or in 'Laws of Normandy .'Before the end of the 12th century, England recognized the expression' contempt of court' and applied it to people's wrongs. Normandy was under French Kings in the 13th century, where we find 'con/emfipus curiae' and similar things under the title of 'contemplus juslitiae'.

In the 13th century, the principles of punishments of contempt were laid down by Bacton. He also states that there is no greater crime for a subject than contempt and disobeying King and his officers. Magna Carta also has no reference to the word 'contempt,' and the earliest mention of this word was found to be in 'Stature of Labourers .'Later many specific offenses came under contempt with punishments.


The first half of the 18th century witnessed distinguish between 'contempt of court and 'contempt out of court' by Lord Selborne's classification by introducing the "Contempts of Court Bill" in 1883. India adopted contempt of court from the British due to being their colony. Contempt of Court Act, 1971[12] takes its basis from there.


The objective of establishing 'contempt of court' was to maintain the dignity and image of the court before the people. If any publication or act undermines the court's authority and trust in the justice of the court is shaken, then the offender needs to be punished. Maintaining the court's dignity is necessary for the faith of people in the judicial system; if that faith is broken, it will lead to a situation of havoc. People will have nowhere to go to get justice peacefully, leading to the public resorting to violent means for revenge for injustice done to them, leading to anarchy throughout the country. 'Contempt of Court' also helps in the smooth running of administration in courts without any unnecessary hurdles to serve justice to the victims as quickly as possible.


Bone of Contention

Article 19(1) (a)[13] provides every citizen the fundamental right of "freedom of speech and expression"; however, these rights are not absolute. Certain restrictions accompany this right given in Article 19(2). One of the restrictions is contempt of court. One can exercise their right of freedom of speech and expression till the time s/he is not committing contempt of court. This restriction was made to ensure the dignity of the court is maintained.


A person accused of criminal contempt of court is tried under the same court but with different judges than the report or verdict criticized. Now, India is a republic and democratic nation. It derives its power from the people and thus acts as a master to all institutions of India. The citizens shall have the right to criticize the institutions regarding their improper performance. However, that's not the case in the judicial system. A person publishing anything undermining the authority and dignity of the court is charged with contempt of court. It is the bone of contention between the fundamental right of freedom of speech and expression and criminal contempt of court.


Courts are often accused of using this power arbitrarily to stifle "freedom of speech and expression," thus violating the fundamental rights of citizens. It is said that courts assert their dominance by misusing this power, though some defenses exist like fair criticism and truth. A person accused of criminal contempt of court is tried under the same court, but different judges than the report or verdict criticized still it is court's discretion to charge one person with contempt of court. The court defends itself by saying that a person can criticize a Judge to the extent which doesn't hinder its working. It gives rise to another question is criticizing a judge and court the same thing or not? It is answered in the case of Brahma Prakash Sharma And Others v. The State Of Uttar Pradesh[14] where it was held "attack on individual judges or the court as a whole with or without reference to particular cases, casting unwarranted and defamatory aspersions upon the character or ability of the judges. Such conduct is punished as contempt for this reason that it tends to create distrust in the popular mind and impair the confidence of the people in the courts which are of prime importance to the litigants in the protection of their rights and liberties." [15]


Another criticism that 'contempt of court' faces is that people use it to gain publicity and come into the limelight. Mere statements that most people would ignore or look over are given unnecessary importance and waste the court's valuable time on trifle matters while delaying the justice for many other victims facing much more severe offenses. It was stated by Ms. Arundhati Roy, a famous writer, in Re: Arundhati Roy[16] where she states that "By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm"[17].


Instances of Confrontation

Few cases attracted the public's attention on a large scale due to the tiff and vague line between freedom of speech and expression and contempt of court.


In the case of P.N. Duda v. V. P. Shiv Shankar & Others[18], Union Law Minister Mr.Shankar was not held guilty of criminal contempt of court. However, he stated "Anti-social elements i.e. FERA violators, bride burners and whole hordes of reactionaries have found their heaven in the Supreme Court". Another irony that accompanied it was similar to the speech of Kerela's Chief Minister, Mr. Nambudripad, who was held guilty for contempt of court. The justification given by Supreme Court was that Mr. Shankar had "special knowledge" regarding the field of Law, and the right to criticise court should be granted to educationally qualified people.


In Re: Arundhati Roy, the writer was held guilty under 'Contempt of Court' due to her statement, "It indicates a disquieting inclination on the part of the court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it" [19]. However, this decision attracted a lot of controversy with it. In the case of Brahma Prakash Sharma And Others v. The State of Uttar Pradesh, it was mentioned that 'degree of publicity' is a factor for deciding contempt of court. However, Ms. Roy made this statement in the affidavit, which is not a public document, thus attracting dissent from people that the statement wouldn't have made a public impact. Ms. Roy also stated that her comments are 'fair criticism' with proof and examples still Supreme Court didn't consider it due to her not being educationally qualified to do so.


Need for Balance

There is a need for balance between "freedom of speech and expression" and "contempt of court" for proper and impartial functioning of courts and for preserving the fundamental rights of India's citizens. They both are a need for a nation's growth and smooth functioning. "Freedom of speech and expression" provides a voice to people to speak their grievances but can be misused by evil-minded to misguide the public to create a state of anarchy. Similarly, contempt of court is a vital tool to ensure the smooth functioning of courts for the earliest delivery of justice to people. The absence of one of those will lead to an authoritarian or anarchical state. It would force people to live in a world full of injustice, where people are constantly in fear for their security and have no hope of peace.


Conclusion and Suggestion

The concept of "Contempt of Court" found its origin in Anglo-Saxon Laws. It came up as a necessary tool in the hands of rulers for control. After introducing fundamental rights, it stood in a contradictory position with "freedom of speech and expression." Both concepts were right at their places, having both pros and cons. The contradiction is witnessed in different cases, but a need for balance between the two came into existence.


The tiff between "freedom of speech and expression" and "contempt of court" is an important issue that needs to be resolved. It is the only way to bring out the best of both concepts without causing tension and dominance of one over the another. There is a need to overcome the vagueness and blurred lines accompanying these concepts for better working between them. Defining 'contempt of court' properly can be a way to avoid a problem like biases, arbitrary use of power, etc. It will help people know their restrictions better to avoid making statements under the purview of contempt of court and reduce the chances of abridging the fundamental right of "freedom of speech and expression."

[1]INDIA CONST. art. 19 cl.1 pt. a [2]In re Prashant Bhushan, suo moto contempt petition (Crl.) No. 1/2020 [3]Contempt of Court Act, 1971, § 2, No.70, Acts of Parliament, 1971 (India) [4]Id. [5]Contempt of Court Act, 1971, § 4, No.70, Acts of Parliament, 1971 (India) [6]Contempt of Court Act, 1971, § 5, No.70, Acts of Parliament, 1971 (India) [7]Contempt of Court Act, 1971, § 13, No.70, Acts of Parliament, 1971 (India) [8]Indirect Tax Practitioners' Association v. R.K. Jain, (2010) 8 SCC 281 [9]Contempt of Court Act, 1971, § 12, No.70, Acts of Parliament, 1971 (India) [10]Nagendra Pratap Singh, Contempt of Court and the Jurisdiction of Supreme Court, MANUPATRA [11]Supra note. 1 [12]Contempt of Court Act, 1971, No.70, Acts of Parliament, 1971 (India) [13]Supra note. 1 [14]Brahma Prakash Sharma And Others vs The State Of Uttar Pradesh, 1954 AIR 10 [15]Id [16]Re:Arundhati Roy, Contempt Petition (crl.) 10 of 2001 [17]Id. [18]P.N. Duda vs V. P. Shiv Shankar & Others, 1988 AIR 1208 [19]Supranote. 9