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Can i criticize a judge without contempt of court?

Can I criticize the Judiciary without contempt of Court?

  • Under Article 19(1)(a) of the Constitution, every person, including municipal councillors, has the right to free speech and expression, which includes reasonable criticism of the law or any executive action. In our democratic republic, freedom of speech and expression is guaranteed both in the legislature and in local bodies, thus a lawmaker or a municipal councillor can legitimately voice his opinions on what he considers to be in the public good. A reasonable exercise of one's right to free speech and expression, which includes fair criticism, is not to be suppressed.
  • Section 5 of the Contempt of Courts Act, 1971 states that a person is not punishable for contempt of court if he or she publishes a reasonable comment on the merits of a matter that has been heard and determined or if a person publishes a fair comment on the merits of a matter that has already been heard and determined.

What is contempt of Court?

  • Contempt is the power of the court to safeguard it's majesty and respect. This power is inherent, and it is recognised in the High Court's and Supreme Court's constitutions. The Contempt of Courts Act of 1971 but does not limit this power.
  • Both civil and criminal contempt is defined under the 1971 Contempt of Courts Act. Civil contempt refers to wilful disobedience to any court judgement, whereas criminal contempt can be invoked if an act tends to scandalise or lower the authority of the court or tends to interfere with or obstruct the administration of justice.
  • The effect on the judicial process and the authority of the courts are used to determine whether conduct is contemptuous. The intent of the accused in a contempt action is irrelevant. Any conduct that undermines the administration of justice, or otherwise interferes with or tends to corrupt it, must be avoided.
  • According to section 5 of the Act, "Fair Criticism" or "Fair comment" on the merits of a final decision does not constitute contempt. The judgement of what is "Fair" is, however, left to the judges' opinion.
  • Before 2006, even the truth could not be used as a defence in the case of contempt case. "Truth has been included as a defence only if it is in the " Public interest." The judge has complete discretion over what constitute public interest. Truth cannot be used as a defence unless supposedly contemptuous behaviour was both genuine and in the public interest.

Criticism of the Court when it does not amount to contempt:

  • The obligation of lawyers to criticize the courts is one of their most essential societal responsibilities. Informed criticism of the courts and their rulings, is not only a right but also an ethical obligation put on every member of the bar.
  • There are two methods to criticise the supreme court in general, they are as follows:
    1. The critic can present some fundamental principles and argue that the pattern of the decision or a particular decision is inconsistent with these principles.
    2. The court's performance as an institution in the is the subject of the second type of criticism.
  • The critic can argue that the court is too frequently divided, that it fails to sufficiently explain its rulings, or that it makes decisions that contradict one another. In other words, he could claim that the court is divided or that precedent is ignored. Malicious or fake statements about a judge, or disruptive or contemptuous conduct in the courtroom, of course, cannot be tolerated.
  • On March 4, 2008, in the case of Lalit Kalita and others v. Unknown, (2008), it was stated that the judiciary is not overly sensitive to criticism; in fact, genuine criticism may be welcomed because it allows for self-reflection. Judges are not infallible; they are people, and they frequently make mistakes unintentionally and as a result of their preconceptions.
  • According to Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court[1], (1973) "if judges decay, the contempt authority would not save them". It must be stated, honestly and truly, that faith in the dignity of the Court and the majesty of law has eroded, and this has been caused not so much by scandalous words made by politicians or ministers, but by the courts' inability to provide prompt and significant justice to the needy.
  • In Rama Dayal Markarha v. State of Madhya Pradesh[2], (1978) it was decided that fair and reasonable criticism of a judgment that is a public document or a public act of a judge involved in the administration of justice is not considered contempt. Such reasonable and honest criticism should be encouraged because no one, including judges, can claim infallibility. Such criticism could reasonably claim that the judgment was erroneous or that an error was made, both in terms of law and known facts.
  • When it is said, however, that the judge had a predisposition to convict or purposefully took a turn in the discussion of evidence. This is so because he had already made up his mind to convict the accused, or has a wayward bent of mind, it is attributing motives, a lack of dispassionate and objective approach and analysis, and pre-judging of the issues, all of which would bring the administration of justice into disrepute.
  • Judge's criticism attracts more attention than other types of criticism, and such criticism can sometimes interfere with the administration of justice. This must be measured by the criterion of whether it ridicules the administration of justice or hinders it. After all, predisposition, subtle prejudice, and prejudging the issues and that an investigation into the conduct of the judge will be conducted who delivered the judgment as he is to retire within a month and a wild allegation that judiciary has no guts, no honesty and is not powerful enough to punish wealthy people, would bring the administration of justice into ridicule and disrepute. Unconscious prejudice, or "Sanskar" as it is known in the Indian language, is inarticulate fundamental premises in the decision-making process. That aspect of the decision-making process cannot be overlooked; it should be taken note of.
  • Without a doubt, judgments can be questioned. No amount of vehement criticism of a decision can be considered contempt of court if it is kept within the bounds of reasonable civility and good faith. Contempt would be demonstrated by fair and reasonable criticism of a judgment that is a public document or a public act of a judge involved in the administration of justice.
  • The speech that the decision is rubbish and should be tossed in the trash can't be considered fair criticism of the verdict. These remarks have gone beyond the bounds of legitimate criticism and have a demonstrable propensity to undermine the judiciary's dignity and prestige. It tends to raise public suspicions about the judge's integrity, ability, or fairness, and to discourage actual and potential litigants from placing complete trust in the court's administration of justice. It is also likely to cause embarrassment to the judge in the performance of his judicial duties.
  • Many people today suffer from intractable problems that courts of justice are unable to address. For far too long, justice has been silent. The legal wrangling is destroying public trust in our justice system. It is a criticism that judges and attorneys must make of themselves. The searchlight must be directed inward. At the same time, we cannot be blind to attempts to criticise or discredit the legal system, if they are seriously done.
  • � Is Contempt action a reasonable restriction on free speech ?
  • While the Constitution of India recognises the right to freedom of speech and expression in Article 19(1)(a), Article 19(2) states that laws can put reasonable restrictions on this right for a variety of reasons, including "in relation to contempt of court."
  • Even the Indian Constitution, which is the source of all legislation in the country, has recognised contempt as an exception to freedom of speech, according to Donde (2007).
  • The historical interrelationship between contempt of court and free expression was explained by Sathe (2001) as follows:
  • Since the early 1970s, when the Supreme Court found Kerala's then-chief minister, E M S Namboodiripad, guilty of contempt of court for his critical comments on the judiciary as an institution, acrimony has existed between the judicial power to punish for contempt of court and citizens' fundamental right to freedom of speech, the court had subjugated the most crucial of the fundamental rights, freedom of speech and expression, to the judiciary's power to penalise for contempt of court. The freedom of speech had been trivialised by a broad contour of contempt of court.
  • As a result, he advised, "Freedom of expression is the most fundamental of the fundamental rights, and constraints on it must be kept to a minimum." Only the restrictions necessary to maintain the legitimacy of judicial institutions can be imposed under the legislation of contempt of court. The judges are not required to be protected by the law. Only the judiciary must be protected.
  • A contempt notice issued without due diligence could put those in positions of public trust in jeopardy. The rule must be freedom, and the exception must be a constraint.
The preceding instances demonstrate that whether or not a comment constitutes criminal contempt is dependent on the facts and circumstances of each case. To summarise, conscientious citizens' tweets or statements have no bearing on the dignity of the Indian judiciary, which, to quote Lord Denning, "must rest on firmer grounds.

  1. 1974 AIR 710, 1974 SCR (2) 282
  2. 1978 AIR 921, 1978 SCR (3) 497

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