Does Contempt Conviction Threatens Free Speech?

Abstract


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.[5]


The question to ponder upon here is that whether the criminal contempt laws are used only for the purposes stated or are they being misused to muffle bona fide criticism. This issue comes back rolling to the tables of citizens often. Not long back, the honorable Supreme Court of India initiated a Suo moto contempt proceedings against a senior and renowned advocate and human rights activist Mr. Prashant Bhushan over two social media posts in August 2020 involving the criticism of then Chief Justice Sharad Bobde and Judiciary’s role in Indian democracy since BJP led NDA government came to power. The apex court was put under a spotlight concerning the interplay of right to freedom of speech and expression and contempt laws in legal community and beyond. Advocate defended himself by saying that his statements were an “expression of opinion and cannot be regarded as contempt”. “To critique the actions of a chief justice or a succession of chief justices, cannot and does not scandalize the court, nor does it lower the authority of the court" he said in a written statement. But this defense was rejected on the grounds of statement being a malicious, scurrilous, calculated attack" against the judiciary as stated by the Supreme Court bench in its 108- page judgement. In a way, Supreme court of India said that it is above criticism.


Soon after, a contempt proceeding was initiated against comedian Kunal Kamra who posted a series of tweets criticizing the court against grant of interim bail to Editor-in-Chief of Republic TV, Arnab Goswami.


Talking about the deadlock between right to freedom or speech over contempt or contempt over right to freedom of speech, this right granted by Indian Constitution by virtue of Article 19(1)(a) is the most sensitive one. It finds its essence in a renowned saying by French philosopher Voltaire, “I disapprove what you say, but I will defend to the death your right to say it”. But is subject to reasonable restrictions under Clause 2. Framers of Indian constitution intended that contempt of court should not be committed while exercising this right. It was stated in M.R.Prashar v. Dr. Farooq Abdhullah[6] that the abuse of right to freedom of speech and expression carries the case nearer the law of contempt. It has been repeatedly argued by the patrons of right to freedom of speech and expression that they should be allowed to write and publish any criticism on judiciary being true and fair. The issue has been raised time and again calling for reforms in the contempt law.[7]Right to scrutinize and criticize the Supreme Court judgements has been regarded as essential for the functioning of judiciary in a democratic setup by Mr. Soli Sorabjee, former attorney general. Article 19(1)(a) includes within itself the freedom of press. It is the freedom of individuals to express themselves through media and press.[8]Article 19 of the Universal Declaration of Human Rights and Article 19(2) of the International Covenant on Civil and Political Rights also provides for freedom of speech and expression even in case of internet and social media.


The contempt jurisdiction is to be exercised to avert the administration of justice from being maligned and not to protect an individual judge’s dignity. A defamatory attack on an individual judge is a libel so far a judge is concerned and he/she can bring an action against the libeler if he/she chooses so. But in case of publication of a statement which infringes the process of administration of justice can be punished under contempt. The former one is a wrong against a judge as an individual while later is a wrong done to public as it would create a trepidation in the minds of citizens regarding the ability of judiciary and fairness of a judge. But it has been repeatedly observed in the recent past that judges were assigning themselves the authority to revive their self esteem behind the veil of judicial office mitigating the right to speech and expression which includes fair criticism. The Supreme Court in Rajesh Kumar Sing vs. High court of Judicature of Madhya Pradesh, Bench Gwalior[9] has criticized the judges for assigning to themselves the task of restructuring judiciary’s dignity and for thinking that judiciary’s dignity is so fragile that it falls apart the moment a judgement is criticized. It was opined by Justices RV Raveendran and Lokeshwara Singh Panta that judges will have to earn respect like everyone else. The intention of scandalizing the authority of the court should not be inferred unless such intention is clearly established.


The constitution establishes the Supreme Court as the Guardian of the constitution. But the apex court has not been able to stand up to this tag. In Namboodripad’s case[10], E.M Namboodripad was held liable for contempt over a theoretical speech he made about role of judiciary from Marxist perspective. While Shivshankar[11] was not convicted for contempt even in a case involving criticism of judiciary. Critics while criticizing the lack of standard being followed in contempt law pointed out that former was a minister of central government and later was a high court judge. Though it may be a mere coincidence, but for a vast section of scholars, it was sufficient evidence to raise the issue of disparities in the attitude of courts with regard to contempt.


The victim of this overzealous attitude of the courts has been the ‘truth’. Section 13 of the act enables courts to permit ‘truth’ as a defense in any contempt proceedings if it is satisfied that it is in public interest and the request to invoke it is bona fide. But in many cases, the defense of truthfulness has been denied by the courts in contempt proceedings. The Indian courts closely follow English courts incoherent of the fact that English courts have not resorted to contempt in a long time.[12]


Regarding the famous Prashant Bhushan case, image of apex court of the world’s largest democracy has been tarnished at the transnational level. “India’s Supreme Court has jettisoned its long history of protecting free speech by finding Prashant Bhushan guilty of criminal contempt for his social media posts,” said Meenakshi Ganguly, the South Asia director of the international not governmental organization, Human Rights Watch.[13]“At a time when the space for peaceful dissent in India is fast shrinking, the Supreme Court is sending absolutely the wrong message about the importance of holding democratic institutions in a free society accountable.”[14] Following the episode, Senior Advocate Dushyant Dave who represented Bhushan and also serves as the president of Supreme Court Bar Association regarded Bhushan’s conviction as a defeat of Supreme Court because the court came out very poorly of the entire episode. He added that the Supreme Court has exposed itself as an intolerant institution which does not allow free expression on its functioning and failures. He reiterated the essence of Bhushan’s tweet that Supreme Court did nothing to stop virtual dictatorship prevailing in the country.[15]


Being the guardian of the citizens’ fundamental rights, the Supreme Court has time and again intervened when those rights were curtailed either by legislature or executive actions. But legal experts have been arguing that it functions under a ‘veil of secrecy’ and is not open to free criticism and public scrutiny like the elected officials.[16]


Supreme court had to face a similar criticism regarding its functioning from within the institution when four judges made remarks about Indian democracy being in danger and faulted functioning of the court in the landmark press conference in January 2018. One among them was Justice Madan Lokur (now retired) who co-signed a letter extending solidarity and support to Bhushan in this contempt case. Though the token fine was regarded as a partial win for Bhushan, Justice Lokur said that in his view, the court should not have initiated the contempt proceedings against Bhushan. Post-conviction, Bhushan remarked that the contempt jurisdiction is extremely dangerous and must be abolished.


Constitutional validity of the law has been challenged in the past in a petition filled by Former Union Minister Arun Shourie and veteran journalist N. Ram. The matter was initially listed before Justice D.Y Chandrachud but was later transferred to Justice Arun Mishra, whose aggressive views on contempt are well known. It is a pity for 21st century India that citizens have to gather around to defend a basic right of free speech. Any person who is familiar with the working of judiciary should be able to speak freely about it. Dignity of Indian judiciary is not that fragile to be crushed by a mere expression of bona fide opinion.


In today’s democratic era, judges derive their authority from the people hence they must be answerable to them to some extent. Hence it seems illogical that the basis of contempt law is to protect the image of the authority of courts in the eyes of the people. It is important to understand that in democracy, all institutions drive their authority from people and any law muzzling dissent and criticism goes against all logics. Hence, there is a need to carve out a delicate and workable balance between the two important aspects. Freedom of speech and expression is the very basis of democracy but it does not confer us with a right to vilify someone else’s reputation. Neither constitutional power nor the statutory contempt law must be used to muzzle and suppress the bona fide criticism of any institution, even the judiciary. Balancing these two competing issues of public interest poses challenge to a democracy. While healthy criticism is essential for the growth of democracy, it is also important to prevent miscarriage of justice and authority of the courts from being appalled. Both makers and administrators of law need to understand that in a democratic setup, the authority of courts and judges rest on the trust bestowed upon them by public which in turns depend on their conduct. With her deteriorating global image on the freedom of speech front, it is high time for India to do away with the conservative approach of contempt and bring out a liberal approach which would be more liberal and inclusive of free speech, expression of opinion and bona fide criticism leaving the room for improvement in judicial machinery.

 

[1] Dutta, M.S. and Kak, A.U., 2009. Contempt of Court: Finding the Limit. NUJS L. Rev., 2, p.55. [2] Nath, G.V. and Vavili, A.N., 2008. Contempt of Court and Free Expression-Need for a Delicate Balance. Audhi Narayana, Contempt of Court and Free Expression-Need for a Delicate Balance (December 5, 2008). [3] (1965) Wilm 243 [4] Law Commission of India, 274th Report, Review of the Contempt of Courts Act, 1971, April 2018 [5] Review of the Contempt of Courts Act, 1971, available at https://www.prsindia.org/report-summaries/review-contempt-courts-act-1971 (last visited 24 June 2021). [6] (1984) 1 Cr LC 433 [7]Supra note 2. [8] Srinivas Mohanty v Dr.Radhanathrath 1997 (84) CLT648. [9] AIR 2007SC2725 [10] E.M. Sankaran Namboodripad v. T. Narayanan Nambiar, AIR 1970 SC 2015. [11] P.N Dua vs. P. Shiv Shanker and Ors., AIR 1988 SC 1208. [12](1985) 1 A.C 339, 347. [13] India: Contempt Conviction Threatens Free Speech available at: https://www.hrw.org/news/2020/08/19/india-contempt-conviction-threatens-free-speech(Last visited on 8 July 2021).