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FREEDOM OF SPEECH v.  CONTEMPT OF COURT

“He who dares not to offend cannot be honest.”               

                                                                                         -Thomas Paine.

But one must be wary about the fact as to who will be offended by his remarks. As the story of Socrates tells us about the drastic consequences one has to face when one simply asks questions that can offend the ruling class. As the great philosopher, he was ordered by the jury of Athens either to shut his mouth or to drink the Hemlock. The actions of the jury told the entire world and the generations to come that even genuine questions hold the power to shake the roots of civilisation, then we can only imagine what will be the consequences of knowing the answer. As history is evident of the fact that the demand of having absolute freedom of speech inspired many freedom struggles and gave birth to many revolutions but even to date this right is subjected to reasonable restrictions be it in the name of defamation, Sovereignty of country, incitement of offences, libel- slander or even contempt of court. So mainly today an attempt to make here just to study the fine line which separates free speech from contempt of court.

HISTORY

In India, Article 19(2) of the Indian constitution put reasonable restrictions on the freedom of speech. One of them is contempt of court and to ensure the implementation of  the same there are special provisions in the constitution such as:

  1. Article 129  deals with the power of the Supreme Court to be a
  2. Article 215  empowers the high court to initiate contempt court of record and to punish contempt proceedings for an action taken against them or a court in its jurisdiction.
  3. Moreover, there is the Contempt Of Court Act, 1971: which was enacted on the recommendation of a special committee headed by H.N. Sanyal, Additional Solicitor General of India.
  4.  Section 228 of the IPC, 1860 provides the penalty against anyone who intentionally offers insult or interruption to a public servant sitting in judicial proceedings.

As per Section 2 of Act of 1971 there are 3 types of contempt. But how the first category is dealt proceedings of the court in India is analysed in this blog.

SPEECH SCANDALISING THE JUDICIARY

Everyone knows the famous case of In re Arundathi Roy case in which the respondent after writing an article criticising the judgement of Apex Court in the Narmada Bachao Andolan also hold a protest at the gates of the supreme court and made derogatory remarks against the apex court. The court held her guilty of contempt and imposed a penalty of Rupees 2000 as a fine and symbolic imprisonment of 1 day. Judiciary is not immune to criticism, eliminating the right of public criticism would reduce it to a mere command of the Sovereign. And constructive criticism along with a demand for accountability are the traits that make democracy stand apart from a monarchy.

TRUTH: A DEFENCE OR NOT?

In a defamation case, the truth of the statement made for the public good is a good defence. But it is not the case in contempt as held in the case of

V.M. Kanade v. Madhav Gadkari and Others                                         

A newspaper named Loksatta wrote an article in 1987 stating that certain judges of Bombay H.C. passed orders in favour of a woman advocate irrespective of the merits of the case, just because they were charmed by her beauty. And in the 2nd para, he wrote one of the judges wearing a hearing aid removed it at times when he grew tired of hearing arguments. And in the next para allegations of corruption were made against the members of the Motor Accident claims Tribunal. When Advocate Jethmalani contended to prove the truth of these statements the court ruled out that truth could not be raised as a defence as it would further scandalise the image of the court. But thankfully the ruling was changed in the verdict of  In RE: Prashant Bhushan & Another case as the 5 judge bench held that the truth is a valid defence only if it is Bonafide and is in Public interest.

SCANDALOUS MEMES

Kunal Kamra, the stand-up comic, was already facing contempt proceedings over the tweets he made following his bail orders of Arnab. The matter is still pending in the court but as far as the second matter is concerning the main plea is that the remarks will shake the confidence of the court in the judiciary of the country. How the events take a turn, only the future knows the same. But the honourable court in its many judgements like that of Arnesh Kumar, Maneka Gandhi and many other cases shows that the judiciary stands with the people of the country and every judgement is subjected to fair criticism.

CRITICISM V. CONTEMPT

Judges are not infallible. Keeping this in mind the right to fair criticism of judgement is made available to the citizens and it is reiterated by the court in many of its rulings as in the case of

Mulgaolkar v. Unknown

The contempt of court proceedings can only be filed against the person only if there is a prima facie misstatement made with malice, such must be intended to shake the confidence of the public in the judiciary but this in no way provides that the judiciary is immune to fair criticism.

 C.K. Daphtary v. O.P. Gupta

The Court ruled that although criminal contempt is a reasonable restriction against free speech, it doesn’t mean that a citizen cannot express his resentment against the judiciary due to the fear of contempt of court.

CONCLUSION

Only one aspect of criminal contempt that is any publication that amounts to scandalising or attempting to scandalise the image of the judiciary is studied here with reference to the court proceedings. The law of contempt is quite vague and uncertain, what may amount to contempt and what may amount to fair criticism is ambiguous. On this, a ruling was passed in the UK, which certainly is relevant to many nations also. In Sunday times v. the UK ,  the Court recognising the inherent vagueness of this law laid down a 3 prong test to test the validity of the law. The Court held that reasonable restrictions must be laid down by the law and the interference in the right must be to procure a legitimate aim. Democracy is one of the finest forms of government because of the power it gives to the ruled rather than to the rulings. And the amount of freedom which is offered under this is unparalleled by any other form of governance. The  line that separates free speech and contempt is quite bleak, and the resulting penalties from the same can be seen as proving the saying SPEECH IS SILVER,  SILENCE IS GOLD.

Author(s) Name: Daman preet kaur. (Punjabi university, Patiala)