During the August of 2020, a case that was on the priority list of the Supreme court of India for hearing was on two tweets by lawyer and social worker Prashant Bhushan. In these tweets Mr Bhushan has called the four most recent Chief justices of India, as extremely partial and alleged them of being on the driving seat in order to bring in an authoritarian and majoritarian government. These convictions and criticisms did not sit well with the Supreme court and it started a Suo Moto criminal contempt case on Mr Bhushan for an attempt of scandalising the Office of Chief Justice of India (CJI). Mr Bhushan was asked to apologise before the court but he did not oblige. On 31st of August Supreme court passed its judgement, convicting Mr Bhushan as guilty of criminal contempt of court and fined him with re 1/-, to be paid within 15th September, if it goes unpaid Mr Bhushan has to undergo 3 months of imprisonment followed by a ban on his practice for 3years. Though Mr Bhushan has said that he will challenge the conviction he has also maintained that it is a watershed moment for the freedom of speech.
In the recent Prashant Bhushan case, we saw the Supreme Court of India to initiate a Suo Moto proceedings and hold the veteran lawyer guilty of criminal contempt of court. This raises the debate between Freedom of Speech and Contempt of Court in a democratic social order. Especially in a society like India, where, the Constitution enshrines that it is the people of India who are the sovereign of the nation, and the Executive, Legislature and Judiciary are merely trustees of the people, this debate is extremely significant.
The media is viewing this as a moral winning for advocate Bhushan. This case also brought forth the age-old contradiction between the freedom of expression and contempt of court. The idea of contempt of court has its roots in the monarchical Britain, where the king used to pass judgements and any disobedience or obstruction of that order, used to get punished for disobedience towards the crown. With time, the baton was passed down to the judges and they started working in the name of the king, thus the phrase ‘Contempt of Court’ came to use. Any disrespect towards the judges were taken as the contempt against the Crown, since they acted on behalf of the King.
However, this is not the case in India, as the preamble of Indian constitution suggests, the people of this country gave themselves this constitution, that means the people of this country are the owner or sovereign of this country. Unlike the United Kingdom where the crown, the king/queen, the Parliament, Judges and the Church of England, combined is the owner or sovereign of the nation.
Whereas in India, it is the people who own nation or are the sovereign of the nation. But, even in 1950, at the time of The Constitution of India coming into force, the total population of the country was 36 crore, and it is obviously not possible for such a vast majority to take care of it’s interest. As a result India adopted the principle of representative democracy where, the Executive, Legislature and the Judiciary were given responsibility as trustees of the people to safeguard their interest. But the idea of ‘Contempt of Court’ has always been there to safeguard the authority of court as the article 129 of the constitution gives power to the supreme court of India to punish any contempt against it and article 215 gives correspondent powers to the high courts and the Contempt of court act,1971 gave the idea a legal backing.
Now the question is whether the ‘Contempt of Court’ is an obstruction to the concept of ‘Freedom of Speech and Expression’ or vice-versa, which drives to the point where the concept of freedom of speech and expression as well as the concept of contempt should be thoroughly analysed.
What is contempt:
Any attempt of violation or any word or action towards the judges, showing disrespect is noted as a contempt. In India the contempt of court is classified in two different types.
When someone wilfully disobeys the order of court or breaches an undertaking ordered by the court, that act falls under the ambit of Civil Contempt of Court. In the 2004 case of Ashok Paper Kangar Union and ORS Vs Dharam Godha and ORS, the Supreme Court of India examined the provision of Sec 2(b) of the Contempt of Court, Act 1971 act and added the word “wilful” as an act or omission done voluntarily with the intent of disobeying the law.
Criminal contempt exists in three forms.
- Any word, written or spoken, signs and actions that “scandalise” or “tend to scandalised” or “lower” or “tend to lower” the authority of any court is treated as a criminal contempt of court.
- Any prejudices, or interference with any judicial proceedings are considered as a criminal contempt of court. And
- Any interference or obstruction towards the administration of justice is also considered as the criminal contempt of court.
While reading the forms of criminal contempt a question arises, what is considered as a scandalisation of the judiciary? To answer this question, it can be said that any allegation made against the judiciary or any particular judge, attributing motives to a judgement, or the working of judiciary, or any scurrilous attack on the conduct of judges, is considered as a matter that scandalizes the judiciary. The principle of this provision is to protect the court from any kind of attack that lowers its authority, defames its public image and makes it lose its credibility to the public. Now, this is where the law of contempt of court juxtaposes with the freedom of speech and expression. Our constitution ensures the freedom of speech and expression including freedom of press as a fundamental right in the article 19(1)(a), where it is clearly understood that any person or organisation including the print and digital media can freely air their views, ideas, and criticise or question the authorities as in a democracy each and every authority is bound to answer the people of the country, as it is the people, that they serve.
Although the constitution of India ensures ‘Freedom of Speech and Expression’ as a fundamental right, UK got its freedom of speech and expression guaranteed by multiple legislations and USA got the right of freedom of speech only after the first amendment of its constitution where, it was stated, “Congress shall make no law abridging the freedom of speech or press.” But it is also been noticed that the Supreme Court of USA has upheld the guarantee of ‘Freedom of Speech and Expression’ on multiple occasions.
A famous English Judge, king’s counsel and a member of ‘King’s Bench’ for the duration 1923-1962, Lord Danning, once cleared the air about the contradiction between the ‘Freedom of Speech’ and ‘Contempt of Court’, from the British perspective, by saying that, the Court should welcome fair criticisms as it increases the credibility, but the criticism should be fair and responsible as the court or a judge has no place to defend themselves in a public front. But the decision of whether the criticism is fair or not is solely on the hands of the court. So, the two most important aspects of democracy, the freedom of speech and the contempt of court are always in a juxtaposition.
Here in India, the situation is a bit more complex than in Britain. In Britain, it is the Crown, who is sovereign and not the people of Britain. Whereas, in India, it is the people, who are the sovereign. Here, the sovereign, to protect their interest, has given the responsibilities to three trustees, namely the Executive, Legislature and the Judiciary. Whom we also refer to as the three pillars of Indian democracy. Hence, here the judiciary is merely a trustee of the people and not the sovereign and hence should be answerable to the people. However, a close reading of the Constitution along with the procedures clears the air that there is hardly much oversight of the people over the working of the Judiciary.
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Even, the Contempt of Court Act, 1971, which provides a legal aid to the provisions of ‘Contempt of Court’ as stated in the constitution, does not clear the contradiction between two of the most important aspects of democracy and unwillingly put some draconian authority in the hands of court curbing the freedom of speech. This is where the role of Supreme Court in the democratic republic of India comes into question.
Role of Supreme court in democratic India:
The Preamble of the Constitution of India, as said before, clearly states that, it is the people of India who are the owner of the constitution and the country of India. In the preamble, the constitution also describes India as a Sovereign, Socialist, Secular, Democratic Republic, where the people can ask for justice, whether social, economic, and political as well as have the liberty of thought, expression, belief, faith, and worship. These liberties are further described in the article 19(1) under the Fundamental Rights, as provided to the people of India.
Freedom of speech is a fundamental right of the citizens of India that provides them with the freedom to express their views, opinions, convictions, belief, either by word of mouth or by printing, writing, picturing or through any other manner, this also ensure the right to propagate one’s or a group’s view and the freedom of press. Press or journalism is considered as the fourth pillar of democracy it works as the representatives of the people of the country. So, in a democratic country the press should have the rights to print their views, commentaries and criticisms freely but in a fair way without profanity. Democracy, as stipulated in the constitution of India is a polity where the power solely lies in the hands of people, hence every pillar of it, that is legislation, executives, judiciary, and press should be answerable to the people.
India unlike USA has a unified judiciary system, where the Supreme Court is at the top of the chain followed by the respective High Courts in the States, followed by the lower judiciary. Here this unified judiciary, on a whole is responsible to safe guard the interest of the people and is also the final interpreter of the Constitution (Article 147 of Constitution of India).
The founding fathers of the Indian constitution had entrusted the duty of taking care of the public interest on the three trustees, legislature, executive and judiciary. The Supreme court of India thus became one of the keepers or trustees of the rights of the people of the Democratic Republic of India. Now it may be said with that, like the other trustees, Supreme court or the judiciary should also be answerable to people, but there are some loopholes. The court unlike the executives can punish someone in case of contempt against itself, moreover, the conduct of a judge cannot be discussed in parliament or in any state legislature, unless an impeachment motion is under consideration in parliament. These particular powers of supreme court, combined with the provisions of Contempt of Court Act, 1971, give it a pedestal where it can decide whether any comment or gesture made by a person or organisation is demeaning towards the authority of the Supreme court or not, in other words the Supreme Court of India has the right to curtail freedom of speech and expression under the Contempt of court law,1971. In this law however it has not been made clear, what will be considered as a contempt and what not. So, this had undergone an amendment on 2006 but the provision of deciding whether a particular gesture or comment made by a person or press, is contempt or not still lies in the hands of the judiciary, hence a lot of irregularity in the verdicts can be witnessed.
Contempt of Court act 1971, and its amendments:
It is in 1971, that the Contempt of Court Act came into effect. It elaborates the provisions, which give the High Courts and the Supreme Court of India, the power to punish someone convicted in charges of Contempt of Court, even by undertaking Suo moto proceedings, that is proceedings by themselves. But this law was literally vague in its definition of criminal contempt. As a result, in a number of cases, the court has shown a great deal of irregularity in the terms of verdict.
According to the act, any kind of fair reporting of a case or fair criticism discussing the merits and demerits of a judgement once the case is heard and disposed, is not a contempt. But the Act is not clear about what is to be termed as ‘fair’ and what is not be. In 2002, when author Arundhati Roy campaigned against the judgement of Supreme Court of India that ensured the building of a dam by vacating a stay, the court held her guilty and sentenced her to a daylong imprisonment.
Hence, in 2006, the law was amended to introduce truth as a valid defence if it was in public interest and was invoked in a bona fide manner. But this too failed to impose a regularity in judgements. Visibly, the Delhi high court sentenced the employees of the paper, Mid-day, for showing a retired chief justice in a bad light and truth and good faith did not stand a chance as a defence.
What is really interesting, in the detailed discussion of the contempt of court topic, is the striking difference found between the temperament of the judges of India and the judges of other countries.
Where India stand adrift from the world:
In 1980, a British judge, Lord Temlpeton, did not bat even an eyelash after being called an “old fool”, he answered to the critic by saying, “I am precisely old and as far as being a fool is concerned it depends on personal perspective.” Even during the Brexit issue, the bench of six judges that gave the verdict over the issue, were called the “enemies of people” by ‘Daily Mirror’ but they did not take any offence on it. On the other side the Indian judges take offence quite easily.
According to Lord Danning, the freedom of speech should not be compromised at any cost but in India the situation is a bit chaotic as the definition and ambit of criminal contempt in the Contempt of Court Act,1971 is very much vague and very easily invokable, and the provision of Suo moto proceedings makes the condition more complex.
As the decision of whether a criticism is fair or not is on the hands of court itself, the bias becomes visible on different cases, the recent Prashant Bhushan case being one of them. The law against the contempt of court being extremely repressive has been shunned by many countries around the world.
Also Read: Judiciary and Right to Information
A UK law commission on 2012 recommended the obsoletion of the Contempt of Court law saying that it is obstructing the people from getting right ideas about the judges, feigning to prevent defamation of the court or the judges. Canada has tied the tests for contempt to real, substantial, and immediate dangers to the judiciary system, whereas USA has stopped using contempt charges over the criticisms made on the judges. But in India it is a farfetched idea to even loose the tight grip of the Contempt of Court from the lip of Freedom of Speech and Expression that the democracy offers as a fundamental right. The courts of India according to Justice VR Krishna, are taking undue advantages of this law by preventing the public from knowing the right thing under the facet of preventing them from spreading wrong information about the court.
The Prashant Bhushan case is an example, how the Court uses the power of punishing Contempt of Court provided to it by the constitution by shutting up any kind of dissent or criticism of the judiciary. Be it Arundhati Roy or Prashant Bhushan, in India dissent has always meant to be a criminal offence, but this should not be the case in a democratic country. Again, at the cost of being repetitive, we must say, that the founding fathers of the country envisaged India as a Democratic Republic, where the people are sovereign. The three pillars of democracy, are there to function only as the trustees of the people but they draw their strength from the people only. Given the understanding, Freedom of Speech and Expression truly becomes a vital right in the hands of a common man to express his opinion and ideas. And it is here that the concept of Contempt of Court becomes juxtaposed with the concept of Freedom of Speech. However, we also must admit, in line with Lord Danning, that the criticism should also be fair and in public interest as truly the judges also do not have any platform to defend themselves.