Freedom of Speech vs. Contempt of Court
We don't fear criticism, nor can we resent it.- Lord Denning
The recent Supreme Court verdict in the contempt case against Mr. Prashant
Bhushan, a Senior Advocate at the Indian Supreme Court revived debates on laws
governing contempt of court in India. Mr. Bhushan was convicted for contempt
over his 2 tweets- first tweet was about a picture of Chief Justice SA Bobde
sitting on an expensive bike. In the second tweet, Prashant Bhushan put forth an
opinion on the role played by the last four Chief Justices in the destruction of
democracy in India over the last six years.
Contempt of court is an offence of disobedience or disrespect towards a court of
law and its officers within the sort of conduct that opposes or challenges the
authority, justice and dignity of the court. Contempt of Court may be a
constitutional power vested with the Supreme Court of India.
Article 129 and 215 of the Indian Constitution of India states:
The Supreme Court and high courts of India respectively shall be courts of
record and shall have all the powers of such a court including the facility to
punish for contempt of itself.
According to the Contempt of Courts Act, 1971, contempt of court can either be
civil contempt of court or criminal contempt of court. Civil contempt means
wilful disobedience to any judgment, decree, direction, order, writ or other
process of a court or wilful breach of an undertaking given to a court. On the
other hand, criminal contempt means the publication (whether by words, spoken or
written, or by signs, or by visible representations, or otherwise) of any matter
or the doing of any other act whatsoever which:
- scandalises or tends to scandalise, or lowers or tends to lower the
authority of, any court; or
- prejudices, or interferes or tends to interfere with, the due course of
any judicial proceeding; or
- interferes or tends to interfere with, or obstructs or tends to
obstruct, the administration of justice in the other manner.
A contempt of court could also be punished with simple imprisonment for a term
which can reach six months, or with fine which can reach two thousand rupees, or
with both, as long as the accused could also be discharged or the punishment
awarded could also be remitted on apology being made to the satisfaction of the
Freedom of speech is a fundamental right bound to every Indian citizen under
Article 19(1)(a) of the Constitution, subject to reasonable restrictions under
In C.K. Daphtary v. O.P. Gupta (1971)
, the Supreme Court held that the
existing law of criminal contempt is one such reasonable restriction. That
doesn't mean that one cannot express one's ire against the judiciary for fear of
Mr. Prashant Bhushan made the tweets on bonafide beliefs and intention was
purely for fair criticism to bring out the corruption in judiciary in the eyes
of the public.
After being asked to apologise to the judges, Mr. Bhushan repeatedly refused and
claimed he will accept any fine or punishment but will not take back his honest
words. The verdict came and he was fined 1 rupee for contempt as penalty.
A statement or action against judges or courts of law has to come under the term
to be considered contempt. Judges cannot seek action for
contempt if it occurs on personal grounds. Then, judges can sue the defender for
libel or defamation. However, if the professional sphere of judges is damaged,
contempt of court is a reasonable action.
In a democracy, courts do not have immunity against comments and criticism.
Freedom of speech helps the judges to perform their duty efficiently rather than
dictating their authority. In the cases of Prashant Bhushan and Arundhati Roy,
the court seemed extremely intolerant toward the comments made against them. It
found the statement of both, a threat that shook the foundation of Indian
democracy. It should have been ignored by the court but their conviction as an
urgent matter showed how oversensitive it has turned towards its dignity.
A fine line of distinction has to be made between scandalous defamatory
statements and fair bonafide actions of individuals and this needs to be
understood by the judges. The contempt jurisdiction is not intended to uphold
the personal dignity of the Judges. In Re: S Mulgaolkar v. Unknown
Supreme Court has maintained that the judiciary cannot be immune from fair
criticism. The contempt action is to be used only when an obvious misstatement
with malicious intent seeks to influence public confidence in the courts or
seeks to bring down the courts. The charge for contempt should be filed beyond
reasonable doubt and not to fulfil the bias and authority of judges.
The freedom of speech bestowed under the constitution and the independence of
the judiciary are the two most essential elements of a free and fair democracy.
Maintaining a balance between these two public interest issues, presents a
challenge to any given democratic set-up. Constructive and healthy criticisms
are the necessities for the growth of a democracy. The Apex court as the
protector of the Constitution must be alert and vigilant to protect freedom of
speech even against judicial resentment. A review on the contempt powers of
courts in India has thus, undisputedly become the need of the hour.
Written By Damini Chauhan
(BA LLB Student, Manipal University Jaipur)