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Contempt of Court & Free Expression: Need for delicate balance

Introduction

The legal system that we see today is the summit of a long trip which has started from  the wonderful rule that was in legal announcement to the natural law and further to the positive  law that we see today. It is where the perfect world is built in respect and agreement should  arise without any concern about nothing to do with the planning required to move the people  to where they are involved in the justice delivery system. When the dissent or disagreement  becomes the fore runner, it often yields results that take the shape of contempt.

Freedom of speech and expression is the fundamental fountainhead of democracy. This  right does not confer the right to denigrate others’ right of person and reputation. So, this right is  subject to reasonable restrictions. Bona fide criticism of any system including judiciary can’t be objected to by any pretext, be it under constitutional power or statutory contempt law. The  Supreme Court acts as a guardian of the constitution must vigilantly protect free speech even  against judicial resentment. Contempt of court primarily signifies disrespect to that which  ought to get legal regard. Contempt of court is any act which is calculated to embarrass, hinder  or obstruct the court in administration of justice or which is calculated to lessen its authority or its dignity. The freedom of speech bestowed under the constitution and the independence of the  judiciary are the two essential and most important constitutes of democracy in a country. Reconciling these two competing public interest issues and maintaining a balance, presents a  challenge to any given democratic set-up. Healthy and constructive criticisms are the necessary  feature for the development of democracy. The contempt of court jurisdiction is exercised  not to protect the dignity of the individual judge, but to protect the administration of justice  from being maligned. Justice is an indivisible concept.

Meaning and Purpose of Contempt of Court

The idea of contempt of court originated from the phrase “Contempt us Curiae”  recognised in English law. Anything that controls or weakens the freedom of the judicial  proceedings or slow down the management of law it would be the contempt of court.The term  “Contempt of court” is a general term descriptive of conduct in relation to particular series of  event in a court of law which tends to interfere with the system or stop people who lawfully  live in a country from using it for the settlements of their arguments. In other words, contempt  of court can be easily understood as when we are disrespectful towards the court of law which  means we wilfully fail to obey the court.This concept is required for judicial protection in  following ways-:

1. The purpose of contempt jurisdiction is to support the judges and to correct the beauty  and self-respect of the court system.

2. It maintains the dignity of the third pillar of government i.e. judiciary. 3. It helps the judges to do their duties without favour, fear, affection or ill will. 

Historical Background

How did the concept of contempt inherit being?

The idea of contempt of court is several centuries old. In England, it’s a typical legal principle  that tries to safeguard the judicial power of the king initially exercised by him, and later by the  panel of judges who acted in his name. Violation of judges’ orders was carefully believed to be an  insult to the king himself. Overtime, any quiet disobedience, or blocking things or stop  implementation of their orders, and comments and actions that showed disrespect towards them  came to be punishable.

Statutory basis

There were some pre-independence laws of hatred. Besides the first High Courts and therefore  the courts of princely states even have such law. When the constitution was adopted, contempt  of court was made one in every of the restrictions on freedom of speech and expression.  Separately, Article 129 of the constitution gave to the Supreme Court to punish the hatred of  it. The Contempt of Courts Act, 1971, gives statutory backing to the thought.

Indian constitutional background

Article 129: The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 142(2): Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of  India, have all and every power to make any order for the purpose of securing  the attendance of any person, the discovery or production of any documents, or  the investigation or punishment of any contempt of itself.

Article 215: Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Types of Contempt 

1. Civil contempt: – It refers to wilful disobedience to any judgment, legal statement, direction, order or other processes of the court or wilful failure or breaking the project or undertaking given by the court. 

2. Criminal contempt: – It refers to any publication which can result in:

• Scandalizing the court by lowering its authority.

• Interference within the due course of litigation.

• An obstruction within the administration of justice.

The Chilling Effect of Contempt of Court

“It is regrettable that judges believe that silencing criticism will harbour respect for the judiciary”.

These are the strange times we are longing without delay. The pandemic has brought  up all the activities to virtual stop. As the workplaces and institutions all are slowly and possibly  getting back on their feet, the main focus is on securing that the majority important things get  done first.[1]It’s disappointing that rather than seizing the matters of utmost importance such as  the constitutionality of the Citizenship (Amendment) Act, (2019), the electoral bonds matter,  or the issue of habeas corpus petitions from Jammu and Kashmir, in these strange times  Supreme Court chose to require umbrage at two tweets[2].2Suo-moto powers of the court to begin  such series of events only serves up to complicated matters. It comes as no surprise that Justice 

V.R. Krishna Ayer in a very well-known way termed the law of contempt as having the unclear and wandering legal control, with uncertain borders; disobedience with none concern about public good may accidentally step everywhere upon civil liberties. 

Social Media and Contempt of Court

“Media plays an important role in moulding the opinion of the community and it’s capable of fixing the full viewpoint through which individuals perceive different events. Yet there you are, standing before those bizarre reflections, fully formed and hearing little resemblance to any of the photographs before you. The difference is, however, that unlike the fun house of mirrors, the distortions of the media are rarely a joke.”3[3]

Recently, we reviewed the effect of social media on juries and its significant possibility to distort the fairness of the system supported the way of thinking and on the principle of fair trial. In the pre-internet days, the courts had an efficient plan for handling any wrong or pre decided being talked a few lots on T.V, online or any social media channel that jurors might access through traditional media. Committing obnoxious behaviour within the court is arguably the most serious legal risk for professional writers or journalists and also for non-journalists who share unsafe material on social media. Deliberately committing hatred say by breaking any legal order or other reporting restrictions would be to interfere with justice. Generally, a journalist must not prejudice a good trial by publishing:

• a defendant’s previous convictions (details of their past crimes)

• background information that may influence a jury

• a photograph of a defendant IF the identity of the culprit is an issue.[4]

Freedom of Speech and Expression vis-a-vis Contempt of Court

Freedom of speech plays a vital role within the formation of Vox populi on social, political and economic matters. Similarly, the persons in power should be ready to keep the people informed about their policies and projects, therefore, it is often said that freedom of speech is the mother of all other liberties[5]. Democracy is that rule of the people, which has three strong pillars. But as Indian society today becomes somewhat unstable on its 3 legs i.e.  the manager, the legislature and therefore the judiciary the guarantee of Article 19 (1) (a)has given rise to a fourth most vital part referred to as media or press. With this increased role and importance attached to newspapers, websites and T.V, the necessity of its responsibility for behaviour and professionalism in reportage cannot run special attention enough.

Lord Denning said:

“Let me say directly that we are going to never use this Jurisdiction as a means to uphold our own dignity that has got to rest on surer foundations. We don’t ‘fear criticism, or will we resent it, for there is something for more important at state.”6[6]

But this right is subject to reasonable restrictions being imposed under Article 19(2). Free expression cannot be equated or confused with a license to form unfounded and  irresponsible allegations against the judiciary. But now, Indian contempt law was amended in  2006 to form “truth” a defence. However, even after such amendment, an individual is often  punished for the statement unless they were made in public interest. Again, in Indirect Tax  Practitioners Assn. v R.K. Jain7[7] it absolutely was held by the court that, “Truth supported the facts  should be allowed as a sound defence if courts are asked to determine contempt proceedings  regarding contempt proceeding regarding a speech or a piece of writing or article”. 

The words ‘in the interest of public order’ as employed in Article 19 includes not only  statements that are directly meant to steer to disorder but also people who have the need to guide  to disorder. 

Loopholes in the Law of Contempt of Court

According to the Oxford Dictionary, contempt is the state of being dishonoured or disgraceful. Any conduct that tends to bring the authority and management of law into disrespect or;

ignoring people’s feelings or to interfere with or prejudice parties or their witness during lawsuits is carefully thought about/believed to be obnoxious behaviour in court, says Oswald. Context of the contempt of the court in past few years are worthwhile to be discussed here as  under: –

VIJAY MALAYA v SBI[8]

On May 9, 2017, the Supreme Court had directed Malaya to look before it on July 10, after  finding him guilty of contempt of court during a loan default case. Malaya is an accused during  a loan default case of over Rs 9,000 crore involving the now-defunct Kingfisher Airlines.  • SUO MOTO v. YATIN NARENDRA OZA[9]

The Suo moto contempt case was registered by the tribunal after Oza levelled certain  allegations of corruption against the Court registry in an online interview. After the Supreme  Court declined to interfere within the matter and directed Oza to approach the judicature  instead. However, a Bench of Judges Sonia Gokani and NV Anjaria has now rejected this  apology and refused to discharge Oza from the contempt case, giving an opinion that,“We are  neither satisfied with the genuineness of the apology tendered before this court nor convinced  of its bona-fide nature of such apology then, opt to not accept the identical, and to discharge the  respondent at this stage of proceedings.” [10]

LINDSAY INTERNATIONAL PVT. LTD. & ORS. VS. LAXMI NIWAS  MITTAL & ORS.11

The publication of a LinkedIn post containing a screenshot of the virtual court hearing that was  taken without the Court’s permission had led the Court to begin the hatred proceedings. The  Court was also informed that the publication was deleted shortly after. The Judge accepted the  explanation that the publication was completely accidental and there was no attempt to lower  the court’s self-respect or beauty. After thinking about the submissions and apology, Justice  Mentha dropped the contempt proceedings with a warning to not repeat such conduct within  the longer term.

PRASHANT BHUSHAN: THE CASE OF TWO TWEETS 

“The terrible legal accusations, which are totally evil and cruel in nature and so the need to  scandalise the court aren’t expected from a private, who is also a lawyer of 30 years standing” There is an awfully thin line between criticism and insult. one all told the basic rules of  independence is that you simply are free to do anything which does not interfere in any other’s  independence.

Mr. Prashant Bhushan being an awfully senior and famous lawyer, who is known as PIL lawyer  and contested several important matters publicly interest like coal scam, 2G scam etc. cannot  be imagined to be ignorant about law of contempt or thin distinction between criticism and  contempt. The matter deals with certain tweets made by Bhushan. He had recently criticised  the Supreme Court and also the sitting and former CJIs in a very number of tweets which  prompted the Supreme Court to initiate Suo moto contempt petition against him. [11]

On Tweet 1, Mr. Bhushan has blamed the Court, more particularly, the last four CJIs, for “the  destruction of democracy” within the last six years, “even without a correct Emergency”,  requires no defence. It is clearly within the character of a political opinion, be it with respect  to the working of the institution or the four personages who headed the judiciary during the  number.

Advocate Bhushan told the Court that the said tweet is split into 3 parts ie.: First part: democracy has been substantially destroyed in India during the last six years. Second part: The Supreme Court has played a substantial role in allowing the destruction of the democracy

Third part: the role of the last 4 Chief Justice’s specifically in allowing it. On Tweet 2, it tries to present and impression to a regular person who the CJI is riding a 50- lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet, at a time when he has kept the SC in lockdown mode denying citizens their basic right to access justice.

First part: “CJI rides a 50-lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet…”

Second part: “…at a time when he keeps the SC in lockdown mode denying citizens their fundamental rights to access justice.”

The Court refused to easily accept the contention that the said statement was an authentic criticism made by him on account of his anguish of non-functioning of the courts physically. 

His contention, that on account of non-physical functioning of the Supreme Court for the last over three months, the fundamental rights of citizens, like those in detention, those destitute and poor, et al. facing serious and urgent grievances weren’t being addressed or obsessed for redressal, as stated herein above, is fake to his own knowledge.

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has, in an exceedingly 108-pages long verdict, held advocate Prashant guilty of contempt of court within the Suo moto contempt petition initiated against him after he criticised the Supreme Court and thus the sitting and former CJIs in an exceedingly few tweets. It held,

The scholars who have called themselves as “vigilant students” have stated that they were “disheartened witnessing the way our Supreme Court reacted on two tweets by Mr. Prashant Bhushan.” [12]

Pay Re 1 as fine or go to jail: Supreme Court punishes Prashant Bhushan for  contempt of court

The Supreme Court on Monday 31 August2020imposed a Re 1 fine on activist-lawyer  Prashant Bhushan days after holding him guilty of criminal contempt of court for two tweets  against the apex court and Chief Justice of India (CJI) SA Bobde. It said that if he fails to pay  the fine by September 15, Bhushan will have to undergo three-month simple imprisonment and  be barred from practising for three years.

Conclusion and Suggestions 

With res publica comes great responsibility and therefore the Indian constitution places  heavy and difficult responsibilities on the Supreme Court. Already, contempt has practically  become not useful in foreign democracies, with legal controls recognising that it’s an outdated  law. But, The Contempt of Court Act additionally allows the state supreme court to punish for  contempt of subordinate courts. Thus, if the definition of contempt is removed, subordinate  courts will suffer as there’ll be no remedy to deal with cases of their contempt.

The Law Commission of India held that there’s a requirement to stay the availability  associated with contempt of the court. Further, within the time in history of social media,  besides the necessity to revisit the law on contempt of court even the test for contempt must be  evaluated.


[1] IAS EXAM PORTAL, https://iasexamportal.com/editorial-gist/27-07-2020-the-chilling-effect-of-criminal contempt-the-hindu (last visited Aug. 29, 2020 ).

[2] Chandrasekhar Srinivasan, Prashant Bhushan: Case of two tweets, NDTV, (Sep. 13,2020, 3:22 PM),  https://www.ndtv.com/topic/prashant-bhushan.

[3] Nimisha Jha, NLIU, Bhopal, Constitutionality of Media Trials in India: A Detailed Analysis, ACADEMIKE, (Nov. 13, 2015), https://www.lawctopus.com/academike/media-trials-india/. 

[4] WORDPRESS, https://m42mc.wordpress.com/law-basics/contempt-of-court/ (last visited Aug. 08,2020 ).

[5] DR.Mahindra Tiwari, Freedom of press in India: Constitutional Perspectives, The Practical Lawyer, (2006) PL  December 

[6] Karan Thapar, Criticism is not contempt, Hindustan Times, (Mar 11, 2008, 18:30 IST),  https://www.hindustantimes.com/columns/criticism-is-not-contempt/story-WkK8VjmhYTgbTIcvhqk2yO.html. 

[7] (CRL.) NO.9 OF 2009, SC 2010

[8] Apurva Vishwanath, Vijay Malaya guilty of contempt of court, says Supreme Court, MINT, (May 10,2017, 01:03  AM), https://www.livemint.com/Companies/IoCoqUnPI1nVm5oB9IvCtL/Vijay-Mallya-guilty-of-contempt-of court-Supreme-Court.html. 

[9] R/CR.MA/8120/2020

  BAR & BENCH, https://www.barandbench.com/news/litigation/gujarat-hc-rejects-apology-refuses-to discharge-yatin-oza-from-contempt-case(last visited Aug. 30, 2020).

[11] Prachi Bhardwaj, Prashant Bhushan’s tweets not “fair criticism” of judiciary; SC finds him guilty of criminal  contempt, SCC ONLINE, (Aug. 14, 2020), https://www.scconline.com/blog/post/2020/08/14/prashant bhushan-contempt-sc-finds-advocate-guilty-of-contempt-for-his-tweets-to-hear-him-on-sentence/.

[12] Debayan Roy, Reconsider Prashant Bhushan contempt verdict, urge 122 students in “emotional” open letter  to CJI SA Bobde and Justice Arun Mishra, BAR & BENCH, (Aug. 30, 2020 , 1:18 pm), https://www.barandbench.com/news/litigation/students-emotional-open-letter-reconsideration-of contempt-verdict-prashant-bhushan.


Cite this article (The Bluebook 20th ed.)-

Muskan Garg and Ms. Baljinder Kaur, Contempt of Court & Free Expression: Need for delicate balance, Ex Gratia Law Journal, (February 1, 2021), https://exgratialawjournal.in/journal/volume-2/vol-2-issue-1/contempt-of-court-free-expression-need-for-delicate-balance-by-baljinder-kaur-and-muskan-garg/.


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Author

Muskan Garg
Student - Baba Farid Law College
Ms. Baljinder Kaur
Professor - Baba Farid Law College