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The Conundrum between Freedom of Speech and Expression and Contempt of Court

Sudhanshu Sachan, Nyayshastram

Introduction

The law of contempt has gained an upsurge because of the various incidents that have happened in the recent past. The case of Advocate Prashant Bhushan, stand-up comedian Kunal Kamra, etc. for instance has kept the law in limelight. This article endeavors to give an overview of the law of contempt and freedom of speech and expression. The article further discusses the lacunas present under the law of contempt. The article also focuses on the emergence and impact of social media on society and its ability to mobilize the masses. Moreover, the relationship between social media and contempt has also been dealt with. The author then attempts to draw a line that can strike a balance between the two contrasting views and pave way for decreased conflicts.


The right to freedom of speech and expression is an indispensable part of every democratic polity. It is a fundamental human right as declared under Article 19 of the Universal Declaration of Human Rights, 1948. Free speech does not only provide options for diverse and dissenting opinions but also allows the marginalized and oppressed sections of the society to put forth their demands. According to the Human Freedom Index, in 2020 India ranks 111th out of 162 countries.[1] Under the World Press Freedom Index, 2020 India has been ranked 142nd out of 180 countries.[2] The current practice of contempt law in the country adds to India’s worsening position. This is high time to discuss the lacunas present in the law and the judicial system and bring much-needed reforms.


The Law of Contempt

Contempt can be defined as willful disobedience to the court of law or any act despising the authority of the court[3]. Earlier, in the common law jurisdictions the law of contempt was based on two doctrines:

1. The Rule of Res Subjudice prevented any comment or remarks over cases that were pending in the court of law. This was done with the objective of preventing judges from giving judgments under any kind of pressure or influence.

2. Under the doctrine of Scandalizing the Court, imputing motives upon the judges or questioning their capabilities to hold an office of authority, etc. amounted to Contempt of Court.


In present-day India, the contempt law has been categorized as (i) violation of an order of a court, (ii) interference in the judicial process, and (iii) criticism of a judge, his or her judgment, or the institution of the judiciary.[4] The Rule of Res Subjudice has, however, been done away with in India on the recommendations of the Bhargava Committee, 1970.[5] According to the recommendations, the press is now free to report a case till the time investigation is pending and the charge sheet has not been filed. The notion of scandalizing the court as a ground of contempt still subsists in our country.


The problem with the Law of Contempt

The Indian law relating to contempt has an outer coating of a law made in independent India, however, the content of the law still inherits its colonial legacy. The first lacuna is the lack of a proper definition of criminal contempt[6] and the distinction between what amounts to contempt and what does not amount to contempt. The definition contains phrases such as ‘scandalizing the authority of court’, ‘interference in due course of judicial proceeding’, and ‘obstruction in administration of justice’ which are vague and ambiguous in nature. What will amount to contempt of court and what will not depend on the sole discretion of the judge? The judges under the veil of interpretation can bring even a bonafide action under the ambit of contempt of court. The second argument is that this law violates the principle of natural justice. The judges who issue the contempt notice are generally the judges who adjudge the same. In such situations, the reasonable apprehension of bias is apparent. This violates the right to have an independent tribunal and frustrates the concept of a fair trial.


Freedom of Speech and Expression

The freedom of speech and expression enumerated under Article 19 1 (a) of the Indian Constitution guarantees the right of expressing one's opinions and beliefs with the help of any medium. However, the right comes with some reasonable restrictions under Article 19 (2) which among others, includes the practice of contempt of courts. The Arundhati Roy case[7] is a classic example to explain this dichotomy. In this case, the Booker Prize winner was booked for contempt on an article which she wrote titled ‘The Greater Common Good’, which highlighted the plight of the tribal people. The height of the Sardar Sarovar Dam was going to be increased which in turn would lead to their displacement from their native places. The author criticized the Supreme Court for not having an emphatic approach towards them. The comments made in the article were believed to be made in bad taste by two Supreme Court judges and a contempt notice was issued against the author.[8] The court said that the freedom of speech and expression was used as a garb by the offenders to protect themselves from actions under contempt of court.


Digital Age and Contempt of Court

Law is an ever-evolving discipline. The advancements in technology leading to the digital age have challenged the age-old concepts of law and have compelled it to evolve. Earlier, everyone was not able to publish their thoughts in newspapers and magazines. Only reputed authors and columnists were able to do so. Similarly, very few people were able to get to a public platform and address a gathering. However, the introduction of social media has brought a revolutionary change by providing everyone an opportunity to express their beliefs, opinions and speak out their mind and heart. It has provided every person a platform. But the other side of the story is also there. The emergence of social media has triggered unwarranted and uncontrolled hate speeches, the upsurge of fake news, etc. At times such fakes news and hate speeches have led to incidents of mob lynching and communal violence. Various groups/organizations use these platforms to spread propaganda against rival groups through the narration of wrong facts. The IT Cells of these organizations make the news “trending” and the gullible masses without questioning or cross-checking the facts believe them to be true.


In the Prashant Bhushan[9] and Kunal Kamra case, the apex court issued contempt notice on the basis of some tweets done by them. The first question that arises here is whether “Twitter” is the correct place to discuss any matter of national interest? Secondly, whether some tweets made by a person holds such value which can undermine the reputation of any institution? And thirdly, don’t you think such contempt notices in some way or the other authenticates “Twitter” to be a platform where serious discussion can happen. The answer to these questions requires a deeper analysis into the debate of legitimacy and power of social media which certainly can’t be dealt with here. However, in my opinion, the use of these platforms should be limited only to the extent of disseminating information to the masses.


Drawing the line between contempt of court and freedom of speech and expression

Considering all the factors and circumstances involved in this debate, drawing a single line won’t suffice. We need to draw two lines. One line will limit the people and the other will limit the courts. The words of Dr. Bhim Rao Ambedkar help us to draw the ‘Lakshman Rekha for the people. He said

“I have often in the course of my practice told the presiding judge in very emphatic terms that I am bound to obey his judgment, but I am not bound to respect it. That is the liberty that every lawyer enjoys in telling the judge that his judgment is wrong, and I am not prepared to give up that liberty”.[10] It signifies that though one may not agree with the judgment, but one has to obey the same at all costs. In other words, the judgment does not demand respect, but obeyance, and this does not preclude it from fair criticism either.

The “line of limitation” for the judges can be drawn with the help of the quote of Justice Jackson in Brown v. Allen.[11] He said that

“We are not final because we are infallible, but we are infallible only because we are final.”[12]

The line very beautifully explains the ground rule which the judges should always keep in mind. It simply says that whatever the Supreme Court says through its judgments might not be correct. However, it is final because there is no superior authority over the apex court to make corrections in the same. The judges should not have this mistaken belief that whatever they say is completely correct and can’t be challenged. The judiciary should have broad shoulders to accept fair criticism of their judgments. Lord Denning once said, there are courts superior to the House of Lords, called the ‘Law Quarterly Review’.[13] The judges in America eagerly wait for the Harvard Law Review to look for a juristic response to their judgments. Such practice should also be developed and promoted in India and judges should take the same in the right spirit.


Conclusion

Freedom of speech and expression is the bedrock of any democracy. People's participation can be ensured only when the people have a right to put forth their views, demands rights, and ask for redressal of their grievances. However, all this should take place without transgressing the principles of reasonable restrictions. The institution of the judiciary and the citizens of India need to work together to make an atmosphere where discussion, debate, and dissent can happen without any constraints.

[1] Ian Vasquez and Fred McMahon, THE HUMAN FREEDOM INDEX 2020 A GLOBAL MEASUREMENT OF PERSONAL, CIVIL, AND ECONOMIC FREEDOM, CATO INSTITUTE AND FASER INSTTUTE, 2020. [2] Reporters without borders, 2020 WORLD PRESS FREEDOM INDEX, Available at: https://ref.org/en/ranking. [3] Mriganka Shekhar Dutta & Amba Uttara Kak, Contempt of Court: Finding the Limit, 2 NUJS LAW REVIEW, 55, 56 (2009). [4] Ibid. [5] Abhinav Chandrachud, REPUBLIC OF RHETORIC: FREE SPEECH AND THE CONSTITUTION OF INDIA, (Penguin Books), 2017. [6] Sanjay Hegde, Vague Definition of Criminal Contempt, FRONTLINE, (Feb. 24, 2021, 10:54 PM) Available at: https://frontline.thehindu.com/cover-story/vague-definition/article32439112.ece/amp/ [7] Narmada Bachao Andolan v. Union of India AIR 1999 SC 3345. [8] In Re Arundhati Roy AIR 2002 SC 1375. [9] In re Prashant Bhushan, Suo Moto Contempt Petition (Crl.) No.1 of 2020. [10] Priya Anuragini & Abdullah Nasir, Contempt of Court is not the weapon Supreme Court should wield to preserve its honour, THE WIRE, (Feb. 25, 2021, 4:30 PM) Available at: https://www.google.com/amp/s/m.thewire.in/article/law/supreme-court-contempt-of-court-respect-constitution-power/amp [11] Brown v. Allen 344 U.S. 443 (1953). [12] Mriganka, Supra at 56. [13] Faizan Mustafa, Allowing Judges to be Judged, THE HINDU, (Feb. 27, 2021, 9:00 PM) Available at: https://www.google.com/amp/s/www.thehindu.com/opinion/op-ed/allowing-judges-to-be-judged/article7333969.ece/amp/