CRITICISM OR CONTEMPT: FINDING A RATIONAL NEXUS BETWEEN FREEDOM OF EXPRESSION ON MATTERS OF JUDICIAL
Author: Ritik Dhankhar, Army Institute of Law, Mohali
For centuries the system of justice has been contemplated in various formats. It can be found in the knowledge of Vedas and the writings of Smritis which mentioned various rules and regulations for the functioning of a civilized society and was later followed by various rulers of their time. Over a period of time the system of justice evolved by establishing a Judicial Machinery where specific personnels, who are competent enough to make rational decisions, are given the authority to interpret the law enforced upon the public and make lucid decisions in the light of equity, justice and conscience. In the 21st century, the existence of judiciary is an exigent pillar of democracy to maintain peace and harmony among the 1.3 billion souls in India. Since law is never constant, our legislation has made sure that new laws are introduced and old laws should be amended to fulfill the ever-growing needs of the society. But what about the laws protecting the permanence of the judiciary? How can the courts make decisions if no one has the reverence for them in the first place? So therefore, the rule of contempt was introduced in the 20th century to make sure that any person who makes any ill fitted statement that lowers the authority of the court in the eyes of the majority of the public, gets prosecuted and be liable for contempt of court. But the real question is, can someone be the judge of his own cause i.e. can the judiciary be completely impartial, neutral and unprejudiced in the matters of fair and valid criticism of the officer of the court or the institution itself? Will that be fair criticism or contempt?
Does fair criticism of any officer of the court “interferes” with the administration of justice under Section 2(c)(ii) of the Contempt of Courts Act, 1971?
The literal definition of Contempt was not defined in the previous laws until the Contempt of Court Act, 1971 came into force. This Act divides Contempt into two parts “Civil Contempt and “Criminal Contempt”.
“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 the court”.
“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— (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner” .
But even in today’s time the definition is insufficient and does not specifically create a boundary as to where the limit of freedom of expression ends and ultimately the ball is in their court to interpret it. This Act also fails to explain what all can be classified as free criticism.
Although there are some provisions and reliefs mentioned in this Act like Section 3 which states that a person is not guilty if he has published any matter of contempt of a pending proceeding if he had no reasonable grounds for believing that proceeding was pending.
Section 5 also provides a person shall not be guilty of contempt of contempt for criticizing any judgement of the court. However, these defences are baseless and of no value in the matters of criticizing any officer of the court for his duty or criticizing the institution of Judiciary as an institution.
Since the power of contempt lies with the Supreme Court and High Courts, every court has defined the criticism of Judiciary in their own way which has created a state of dubiety among the citizens of this country as to what is the extent of their freedom of expression lies in the matters of criticism of Judiciary.
In Vishwananth v E.S Venkatramaih, former Chief Justice of India E.S Venkatramaih gave an interview to a newspaper wherein he said that the “Judiciary in India has deteriorated in its standards because such judges are appointed, as are willing to be influenced by lavish parties and whiskey bottles”. The Bombay High Court held that one of the reasons that such words did not amount to Contempt of Court on the grounds that the entire interview appears to have been given with the idea to improve the judiciary and since no judge was individually named, the petition was dismissed.
In Hari Singh Nagra & Ors v Kapil Sibal & OrsSenior Advocate Kapil Sibal wrote an article in a publication that “the Public image of the legal community is at its lowest point. Influx of large numbers into the profession, deterioration of moral standards and sheer economic cost of starting as a professional and sustaining have contributed to these falling standards”. The Supreme Court held that the message is nothing but concern of a senior advocate who has practiced long in this court and who noticed that the public image of the legal community was at its lowest point. The article is an expression of opinion about an institutional pattern and does not affect the administration of justice. The contempt proceedings were dropped and the petition was dismissed.
However, one of the most important and controversial contempt proceedings of this year were of the two tweets made by Prashant Bhushan.
In the case of Re: Prashant Bhushan and ANR, Prashant Bhushan had made one tweet which criticised the functioning of judiciary and the work of previous Chief Justices of India . The other tweet directly targeted the current Chief Justice of India where he made personal remarks regarding the motorcycle he was sitting on and his inefficiency to perform his duty during a pandemic. The Supreme Court while finding him guilty of contempt of court also explained that “If constructive criticism is made in order to enable systemic correction in the system, the Court would not invoke the contempt jurisdiction. However, the Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges and where the attack is calculated to obstruct or destroy the judicial process”.
An important view given by SP Sathe inhis article the author showed his disregard over Supreme Court’s decision to hold Arundhati Roy guilty of Contempt of Court over her remarks made in an affidavit in the contempt case when a group of lawyers filed a FIR against Medha Patkar, Arundhati Roy and Prashant Bhushan alleging that they had shouted slogans against the Supreme Court’s decision in the case of Narmada Bachao Andolan v Union of India. After the hearing, the three persons were acquitted. But the court took suo motu notice of the contemptuous statements contained in Arundhati Roy’s affidavit and issued a fresh notice of contempt. Arundhati had said that for “the petitioners to attempt to misuse the Contempt of Court Act and the good offices of the Supreme Court to stifle criticism and stamp out dissent, strikes at the very roots of the notion of democracy” after which the Supreme Court held her guilty under Contempt of Courts Act 1971 and was sentenced to one day imprisonment and a fine of Rs 2000 failing to pay she would have to undergo three months imprisonment. The author believes that the grounds on which she was found guilty was dubious and incredulous. He further writes “The ground of contempt that is known as scandalising the court has fallen in disuse in most of the advanced countries and it has not been used in England during the entire 20th century. In all democratic countries, the space of judicial review has expanded and it has acquired a political dimension. Criticism of judicial decisions and of the judicial system is necessary to reinforce its accountability to the people”.
We can further analyse the problems of the contempt law in “Contempt of Court: Finding a Limit by Mriganka Shekhar Dutta & Amba Uttara Kak” In this article, the authors were of the view that the rule of contempt is not being used as it was supposed to be. They believed that the power of contempt clearly protects the court, but what has always, and even more so today, remained ambiguous is what exactly it aims to protect. The Contempt of Courts Act,1972 is characterized by ambiguity in expression and uncertainty in purpose, making it view it as a necessary evil. The lack of clarity in definition and barely limited scope of the Act is justified with the acceptance that contempt power lies at the core of the judiciary. However, the current law ignores that judges, who have the power to decide their own case, also involve granting them a limitless flexibility in interpretation of key terms, and this essentially goes against the principles of fairness. Even if there was a definition of what constitutes “scandalizing the court”, or what “prejudices or interferes with the course of justice”, the understanding of these concepts is continually changing.
In a report named Report on Review of Law of Contempt’, The Law Reform Commission of Australia, June 2003.
The Law Reform Commission of Australia attributes that having a codified contempt law does not fulfill the requisite safeguards that applies to the contemnor. They have identified those safeguards, and their apparent absence in the case of contempt in the face of the court, as:
(a) The Presumption of Innocence
It has been suggested that the power of the presiding judicial officer to institute proceedings where it appears to him or her that a contempt has been committed and also to determine liability reverses the presumption of innocence. The ALRC went so far as to suggest that the current procedure involves a ‘presumption of guilt”.
(b) The Rule against Bias
Judicial officers determining liability for a contempt committed in their courtroom (particularly insulting judicial officers themselves) gives rise to a reasonable apprehension of bias on the part of the judicial officer.
(c) The Right to a Fair Hearing
The ability of the presiding judicial officer to rely upon his or her own perceptions, without provision for cross-examination as to those perceptions has been said to cause concern both as to whether natural justice is afforded to the alleged offender and generally as to the adequacy of such perceptions as a basis for determining criminal guilt.
The analysis made by the The Law Reform Commission of Australia are some the changes that needs to be incorporated by the legislature as criticisms under Article 19(1)(a) of the Indian Constitution in the 21st century by an law abiding an intelligible citizen is based on more scrutiny and the Judiciary of our country is no exception to those criticisms.
On the basis of the following case laws, we can finally ascertain that there is a need of significant amendments in the Contempt of Courts Act,1971 regarding the criticism of the Judicial Machinery as Supreme Court, led by different benches, has given different annotations for criticising against the court from time to time and it is pretty difficult to make an understanding as to how a person shall use Article 19(1)(a) of the Indian Constitution to criticise any judgement or the duty of any officer of the court. Just like in the case of Kesavananda Bharati Sripandagalvaru and Ors v State of Kerala, where the Supreme Court gave clear cut explanation as to what constitutes as the basic structure of the constitution which can never be amended by the Legislature, similarly in the cases related to contempt of court, the Supreme Court should give clear cut guidelines as to what constitutes criticisms which are susceptible in nature and are liable for contempt and what are not.
 http://legislative.gov.in/sites/default/files/A1971-70_0.pdf  Ibid  (1990) 92 BOMLR 2070  (2010) 7 SCC 502  AIR 2020 SC 663  Ibid   10 S.C.C. 664  In re Arundhati Roy, AIR 2002 SC 1375  http://judicialreforms.org/wp-content/uploads/pdf/Accountability%20SC%20EPW.pdf  http://www.commonlii.org/in/journals/NUJSLawRw/2009/3.pdf  https://www.lrc.justice.wa.gov.au/_files/P93-R.pdf  AIR 1973 SC 1461