By: Shivam Sourav mallick
Speech is God’s gift to mankind from Heaven. A human being transmits his ideas, emotions and feelings to others through speech and expression Therefore, it is a fundamental human right. Equality of expression and speech is considered the first condition of liberty. In the hierarchy of liberty and holds a favoured and important role. It is rightly said about freedom of expression that it is the mother of all other liberties. Freedom of speech and expression means the right, by word of mouth, writing, publishing, photographs or some other mode, to freely express one's own views and opinions. It is generally recognized in modern times that the right to freedom of expression is the cornerstone of a free society and must be safeguarded at all times. An unconstrained flow of words in an open forum is the first concept of a free society. In the creation of that particular society and ultimately for that state, freedom to express opinions and ideas without hindrance, and especially without fear of punishment, plays a significant role. It is one of the most significant constitutional freedoms granted from government suppression or control.
The right to criticize any organization also encompasses freedom of speech and expression. Each authority is the target of public scrutiny in which the general public explicitly and freely criticizes the authority's performance and behaviour. It should be remembered that the right to freedom of speech and expression contains, but not specifically, freedom of the press within its scope. The press has a very important role to play in printing and distributing all the related details that the general public wants to hear about. The press also plays a role in communicating to the superior authorities the view of the general mass, including critiques of certain authorities. The accountability of such authorities’ increases through such criticism.
The judiciary is also subject to public review, where individuals and the press are entitled to comment on and criticize any judicial act. Lord Denning correctly claimed that the press is a watchdog in which the honest, open and above-board nature of all judicial proceedings is observed. But there may be a case in which criticism would threaten to diminish the judge's
authority and even impede the administration of justice. For this purpose, under The Contempt of Courts Act, 1971, the Court has the power to punish any such act that appears to demean the value of the judiciary with contempt of court.
The above-mentioned assertions bring both freedoms of speech and expression and court contempt into conflict. On one side of the coin, the freedom to fairly and reasonably criticize the judiciary increases its accountability, but on the other side of the coin, the power to punish judicial contempt guarantees free and unhindered administration of justice.
It is to be understood that free and open criticism increases the accountability of the judiciary towards people. It is widely affirmed that in any democratic society people are supreme. There is no wrong to tag people as the master in a democratic setup wherein all other authorities like government, judiciary, executive, etc. are the servant of the master. Criticism helps the authorities to know where they are lacking in performing their duties and such criticism act as a catalyst for the proper conduct of the country. But, unfortunately, people do not feel that much free to criticize any judiciary because of the fear of getting charged with contempt of court under The Contempt of Court Act, 1971. This act gives Unjust power to a court of law to punish any such act which tends to devalue the authority of the judiciary. They have the right to punish any criticism no matter how beneficial it could be for the judiciary for improving its working.
Although Section 5 of the said Act states that fair and reasonable criticism is not to be termed as contempt of court but it is the judiciary only, against whom the criticism is made, to decide whether the criticism is fair and reasonable nature or not. This prima facie violates the principle of natural justice wherein no one can be the judge in its own cause.
Secondly, it is submitted that the contempt of court act is vague and uncertain per se. This could be understood in two different cases. In P.N. Duda v. P. Shankar, Union Minister alleged the judges that they are biased toward rich class people. He also claimed all those who violate FERA regulations or are bank defaulters or are zamindars, find heaven in Supreme Court. Contempt of court petition was filed against him but he was not convicted. But, in another case of E.M.S. Namboordripad v. T. Narayan Nambiar, the then C.M. of Kerala E.M.S. Namboordripad claimed that the supreme court judges are inclined towards rich class he was held liable for committing the offense of contempt of court. These instances per se show the inconsistency in the law of contempt.
Thirdly, it is contended that no matter the criticism or specifically, the allegation is true, it is on the discretion of the court whether to hold that allegation as contempt of court. In the case
of Bathina Ramakrishna Reddy v. The State of Madras, the appellant alleged the high court judge to be indulged in bribery and after investigation, it was found that the allegations were true even then the court held the appellant liable for contempt of court. But, in another case of Brahma Prakash Sharma v. U.P when the appellant claimed two high court judges as incompetent in law, the court affirmed with the contention of the appellant and didn't hold him liable for contempt of court.
Although this confusion was resolved to some extent with The Contempt of Court Amendment Act, 2006 by which truth has been declared as a valid defense for contempt of court but its necessity to be in public interest and of bonafide intention has provided a window to court to exercise the power to punish for contempt of court. This was seen in the case of Court on its motion v. M.K. Tayal, wherein an article was published by the respondent in which he said that the sons of former CJI of Supreme Court Y.K. Sabharwal have been operating their commercial business from the official residence of judge. Respondent duly filed affidavits stating that what they have alleged is true and submitted evidence for the same. But, court, taking the window of public interest and bonafide, held the respondent liable for contempt of court
It is interesting to note that Indian judges have been touchier in the cases of contempt of court as compared to English judges. For example, in the case of Balogh v. Court Crown, the defendant said to the judge, "You are a humourless automaton. Why don’t you self-destruct?” The judge just smiled but didn’t hold him liable for contempt of court. In an instance where a person tagged judges as ‘fools’, Fali S. Nariman asked Lord Templeman that why the person isn’t tried for contempt of court, he answered that they (English judges) don’t take notice of such comments.
It is the judiciary that must understand the importance of any judicial action being criticized and not hold any such act as contempt of court. Finally, whenever a case of contempt of court comes before them, the judge should remember Lord Denning's following words: “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself."
It is clearly concluded that one of the most basic rights to freedom of speech and expression is Significant constitutional rights and also a fundamental human right which must be
enforced on the Each country's citizens. Freedom of speech and expression formed the basis for all and it has been a boon given to us by democratic organizations. It is correctly stated by John Give me the liberty to know, to utter, and to freely argue according to Milton, Conscience, above all freedoms. Therefore, a thoroughly educated and equal use of Freedom of speech would establish a healthier society and lead to the welfare of the state. A magnificent nation is being created.