Author: Rushika Rabha
Campus Law Centre, Delhi University
The Apex Court after initiating suo moto contempt proceedings against advocate Prashant Bhushan found him guilty of the same on 14thAugust 2020. The bench comprising of Justices Arun Mishra, BR Gavai and Krishna Murari, opined that “magnanimity cannot be stretched to such an extent, which may amount to weakness in dealing with a malicious, scurrilous, calculated attack on the very foundation of the institution of the judiciary”. People from the legal fraternity as well as citizens outside the legal fraternity have expressed their apprehension regarding this judgement on the ground that this judgement is not congruous with the constitutional right of Freedom of Speech and Expression. In a letter addressing the President of Supreme Court Bar Association, over 450 lawyers protested against the verdict highlighting the manner in which the Court hurried in holding Prashant Bhushan guilty of contempt. Additionally, the executive committee of the Bar Association of India expressed concerns over this verdict, writing that resorting to suomotu powers to curb freedom of speech and expression is “conspicuously old fashioned”, mere tweets cannot go as far as to destroy the image of the judiciary in the eyes of the public.
The Power of Contempt vis a vis the Freedom of Speech and Expression
Article 19 of the Indian Constitution guarantees the right to freedom of speech and expression, however under clause 2 of Article 19, this right is subject to reasonable restrictions with respect to inter alia contempt of court. Contempt of court is a unique exercise of its powers because it assumes the role of complainant, prosecutor and hangman while in other cases it plays the role of a neutral adjudicator between two parties. In Brahma Prakash Sharma And Others vs The State of Uttar Pradesh, the Supreme Court opined on the purpose of the power of contempt, is not to protect judges from attacks in their personal capacity but to protect the court from attacks that lower the confidence of the public in the judiciary. Attacks on judges in their personal capacity do not qualify the use of contempt powers. In the Contempt of Court Act, 1971, criminal contempt charges can be attracted if any matter that “scandalises or tends to scandalise, or lowers or tends to lower the authority of any court” is published. What constitutes scandalising the court is not strictly defined and is open to the interpretation of the court. In India, this concept of contempt can be traced back to old English Monarchial times where such powers were wielded to protect the sovereign authority. In the historical judgement Rex v. Almon,Wilmont J observed that the ‘authority’ of the court in exercising its contempt powers is not meant to signify the coercive power of judges but “the deference and respect which is paid to them and their acts, from an opinion of their justice and integrity”.
The contempt case against Prashant Bhushan has ignited serious debate and deliberation concerning the extent of right to freedom of speech and expression while critiquing the Judiciary. Justice Krishna Iyer in Baradakanta Mishra vs The Registrar of Orissa High Court & another, observed that judges are not free from criticism. Furthermore, constructive criticism is helpful to bring out the shortcomings that require reformation. Such criticism does not lower the respect of the judiciary in the eyes of the public but instead enhances it. In Re: S. Mulgaokar, he held that judges should not be hypersensitive while exercising this jurisdiction even during times when such criticism oversteps the limits and adopt a liberal attitude towards such attacks. While the line between constructive criticism and contempt needs to be drawn liberally, some argue that this power should be used sparingly or not be used at all. In Mcleod v. St. Aubin , Lord Morris held that “Committals for contempt by scandalizing the court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them”. In his speech titled “The Law of Contempt- is it Stretched too far?”, respected jurist Mr. Fali Nariman argued that since the law on contempt is vague and without proper constraints it leaves the decision of what would amount to contempt totally on the discretion of the judges. This uncertainty in the law leave the citizens at a where they are unsure of what kind of criticism of the judiciary would be protected under free speech and what would constitute contempt. This criticism of Mr. Nariman is not unfounded as while dealing with P. N Duda v. P.Shiv Shankar , Supreme Court held that P. Shiv Shankar criticism of the judiciary as being biased towards the affluent upper class was criticism and did not attract any punishment; while in case of Chief Minister of Kerala, Mr. Nambudiripad in 1972, criticism against the judiciary on similar grounds was ascertained as contempt . As mentioned earlier this power of contempt can be traced back to the monarchial times in England, the basis of this power was to maintain the sovereignty and dignity of the king through the court, however in modern democracy it is the people who are supreme not a king. Therefore, as expressed by Chief Justice Gajendragadkar, the confidence of the public in courts or the dignity of the judiciary is to be maintained through their objectivity in judgements and acting in fairness without fear. There is no need for such a power to punish people for criticism in order to maintain the dignity of the court. Lord Denning observed in R v. Commissioner of Police that while exercising this power of the court, the freedom of speech is at stake. In England, the place of origin of Indian judiciary’s contempt jurisdiction, in 2013 after a recommendation by the Law Commission, the offense of “scandalising the court” was abolished. The effect of this power to censor freedom of speech was noted by the Law Commission. In United States of America, this power is no longer used as the first amendment is given supreme importance.
In a modern democracy, where people are supreme, it is important to diligently observe the freedom of speech and expression to maintain credibility of democratic institutions. Neither judiciary nor the government can be immune from criticism. The uncertainty in the present law on contempt of court makes it difficult for the citizens to assess what would be characterized as free speech and not attract contempt charges. Furthermore, the dignity and confidence in the institution of judiciary can be maintained through the quality of its judgements, it is not necessary as pointed out by some justices, to resort to this power of archaic origin. Its compatibility with a modern democracy is questionable. The safeguards available to the accused to defend himself in the court of law is also not adequate. The place of origin of contempt powers in India has also understood the negative impacts of this power. Therefore, to remove this tussle between the power of contempt and freedom of speech, certainty and clarity must be bought in the law and this power should also be used sparingly or should not be resorted too at all.
https://www.barandbench.com/news/lawyers-write-to-scba-registering-protest-over-prashant-bhushan-contempt-verdict https://www.barandbench.com/news/reputation-sc-cannot-be-dislodged-by-tweets-bar-association-of-indiaprashant-bhushan-contempt-verdict https://shodhgangotri.inflibnet.ac.in/bitstream/123456789/615/2/02_synopsis.pdf 1954 SCR 1169  1765 Wilmot’s Notes of Opinions, 243: 97 ER 94 (1978) 3 SCC 339  1899 UKPC51 https://www.outlookindia.com/website/story/remove-the-uncertainty/233827  ibid  1988 SCR (3) 547 ibid  ibid
https://thewire.in/law/contempt-powers-of-indian-courts-dont-measure-up-to-the-principles-of-natural-justice (1968) 2 QB 150 https://www.lawcom.gov.uk/project/contempt-of-court-scandalising-the-court/ https://www.printfriendly.com/p/g/7Uq4Xx