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Does Contempt Conviction Threatens Free Speech?


The power to punish for contempt bestowed upon Supreme Court and high courts and the right to freedom of speech and expression are two competing constitutional elements of public interest that keep rolling back on the discussion tables of the citizens. Just like other prevailing laws, contempt jurisdiction also derives its legitimacy from the English law. The objective of contempt law is to facilitate fair administration of law and prevent miscarriage of justice. The supreme court has been actively exercising its contempt jurisdiction in the recent years, which has come to be seen as a tool to muzzle bona fide criticism and expression of opinion. Criticism is vital for the growth of any institution in a democratic setup. The line between what is contempt and what is not is not very clear. The article aims to analyze the scope and usage of contempt jurisdiction in contemporary times and whether it curtails free speech in the light of Senior Advocate Prashant Bhushan’s conviction.

Keywords-Constitution, Fundamental rights, Criticism, Judiciary.

The origin of contempt jurisdiction can be traced back to the times of monarchic rule in England. India follows most of the laws on the lines of English Statute and contempt law is no exception to it. The ambit of contempt law is manifold that it is extremely difficult to carve out an exact definition. The overall objective of contempt laws in India is to aid the fair administration of justice and punish any act which undermines the authority of judicial institutions.[1] Development of the Indian statute dealing with contempt, The Contempt of Court Act, 1971 can be traced through mainly two prior pieces of legislations of 1926 and 1952.[2] Rationale behind contempt laws can be best described by assertion of Justice Wilmot in Rex v. Almon[3]:

“And whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and…calls out for a more rapid and immediate redress than any obstruction whatsoever, not for the sake of the Judges as private individuals but because they are the channels by which the King’s justice is conveyed to the people …”[4]

In India, Hon’ble Supreme court of India and high courts drive their authority to punish for contempt by the virtue of Article 129 and Article 215 of The Indian Constitution respectively.

Contempt can be classified as civil that is willful disobedience of an order of the court and criminal contempt that is any act or publication that i) scandalizes the court ii) prejudices any judicial proceedings or, iii) interferes with the administration of justice in any manner.