“Justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
In a democracy, freedom of speech and expression of people is a statutory right and a privilege. But, at the same time, the maintenance of independence and integrity of the judiciary and public confidence in the administration of justice is also important. Therefore, it becomes necessary to draw a balance between the two concepts.
In common law jurisdictions, contempt of court has traditionally been categorised into criminal or civil. Criminal contempt includes interference with court proceedings such as publishing matters which may prejudice the right to a fair trial or criticisms of courts or judges which may weaken public confidence in the judicial system also referred to as scandalizing the court. Civil contempt occurs when a person disobeys an order of the court and becomes subject to sanctions, such as fine or imprisonment.
While the Constitution of India guarantees freedom of speech and expression, it also states that in exercising that right, contempt of Court cannot be committed. The underlying idea is that authority of Courts must be preserved and obstruction to the administration of justice be removed. Therefore, this article attempts to analyse the position of the debate consisting freedom of speech and the right to fair trial and contempt of court in the Indian paradigm.
POSITION IN INDIA
Freedom of Speech vis-à-vis Contempt of Court
Article 19(l)(a) of the Indian Constitution guarantees to all citizens the right to freedom of speech and expression. It means the right to express one’s views and opinions at any issue through any medium like words of mouth, writing, printing, pictures or any other mode. Thus, it includes the freedom of communication and the right to propagate or publish opinion. However, this right is not absolute and is subject to reasonable restrictions imposed under Article 19(2).
Freedom of Press is not explicitly mentioned in specific provisions but it is a right flowing from Article 19(1)(a) itself. The Press therefore exercises the right of expression as an ordinary citizen only. However, the Freedom of Press guaranteed under Freedom of Speech and Expression, does not entitle a person to commit contempt of court.
For protecting the dignity of the judiciary, Supreme Court and High Courts are made as courts of record by virtue of Article 129 and Article 215 of the constitution respectively, to punish its contempt. While such wide power is with the Supreme Court and the High Courts, such power has to be cautiously used. The freedom of speech and expression guaranteed by Article 19(1)(a) is thus subject to Articles 19(2), 129 and 215 of the Indian Constitution. Also, contempt of other Courts can be punished by a High Court under the Contempt of Courts Act, 1971.
In C.K. Daphtary v. O.P. Gupta, a Constitutional Bench of five judges had reiterated that the existing law of contempt of court imposes reasonable restriction on the freedom of speech.
In E.M. Sankaran Nambbodiripad v T. Narayanana Nambiar, it was held that while Article 19(1) (a) guaranteed the freedom of speech and expression, Article 19(2) showed that it was also intended that contempt of court should not be committed in exercising that right.
However it was observed in the recent past that judges were assigning to themselves the task of reviving their self-esteem under the guise of judiciary dignity, curbing the fundamental right to speech which includes fair criticism.
The Supreme Court in Rajesh Kumar Sing vs. High court of Judicature of Madhya Pradesh, Bench Gwailor, severely criticized judges for assigning to themselves the task of restoring the judiciary’s dignity and observed that judges think the judiciary’s dignity is so brittle that it’ll crash the moment a judgment is criticized or a judge’s integrity is questioned. While dealing with the matter, the court stated that “Judges, like everyone else, will have to earn respect. Court should not readily deduce an intention to scandalize courts or lower the authority of courts unless such intention is clearly established.”
Trial by Media & Interference with the Administration of Justice
Interference with the administration of justice is not a permissible freedom or unreasonable restriction.
According to Section 2(c) of the Contempt of Courts Act, 1971, criminal contempt includes the publication of any matter or doing any act which “prejudices or interferes with the course of any judicial proceedings” or “interferes with the administration of justice in any other manner.”
In the case of M.P. Lohia v. State of West Bengal, an SLP against a rejection of grant of anticipatory bail was pending before the Supreme Court. Meanwhile, an article was published giving the victim’s side of the tragedy and quoting a lot of material that may be used in forthcoming trial. The Supreme Court held that such articles appearing in media would certainly interfere with the administration of justice and were contempt of court.
The Test of Fair Criticism
The Supreme Court has held that before placing criticism of a judgment in public, all concerned in its publication have to see whether any such criticism has crossed limits of fair criticism.
The right to freedom of media should be exercised responsibly and internal mechanism should be devised to prevent publications that would bring judiciary into disrepute and interfere with administration of justice, especially since judiciary has no way of replying thereto by the very nature of its office.
A free responsible press and independent judiciary are both indispensable for a democratic society. While the media can use reasonable criticism of a judicial act or the judgment for public good or report any such statements, it should refrain from casting scandalous aspersions on, or ascribe improper motives or personal prejudice to the judge.
Scandalising the Court and Right to Free Speech
According to Section 2, clause (c), of the Contempt of Courts Act, 1971, criminal contempt includes the publication of any matter or the doing of any other act which scandalizes lowers the authority of any court.
However one problem that persists is that there is no definition of what constitutes “scandalizing the court or what prejudices, or interferes with the course of justice”. What could be regarded as scandalous earlier may not be regarded as scandalous today and what could earlier be regarded as interfering with the course of justice may not be so regarded today.
In Perspective Publication Ltd v. State of Maharashtra, a distinction was drawn between a mere defamation of a Judge and contempt of court. It was held that a mere defamatory attack on a Judge is not actionable but it becomes punishable when it interferes with the due course of justice or the proper administration of law by the court. Instead, the test is if the wrong is done to the Judge in personal capacity, or done to the public altogether.
In the matter of Brahma Prakash Sharma v. U.P, the Apex Court reversed the order of the High Court which had held Respondents guilty of contempt of court for saying that two judges are thoroughly incompetent in law, do not inspire confidence in their judicial work and are given to wrong facts while passing orders. The Court held that the association had acted in good faith with no intention to interfere with the administration of justice.
The fundamental right to freedom of speech in the context of a news item scandalizing a judge was exhaustively considered in Lokanath Mishra v State of Orissa. It was held that it was in the public interest to ensure that criticism or allegations scandalous likely to lower the authority of the court is not permitted because in functioning of democracy an independent judiciary is to function without fear and its strength is the faith of the public in the institution.
In Bathina Ramakrishna Reddy v. The State of Madras, which is a landmark case, the appellant had made allegations of bribery and corruption against a Sub-Magistrate in an article published in newspaper. The High Court had held that the publication in question amounted to contempt of court, as it was calculated to lower the prestige and dignity of courts and bring into disrepute, the administration of justice.
In the Nambiar case, it was reiterated that charging the judiciary as “an instrument of oppression”, and the judges as “guided and dominated by class hatred” constitutes contempt of court as these words demoralise the authority of law and law Courts, and have the effect of lowering the reputation of judges and Courts in the eyes of the people.
In India, the courts have thus observed a conservative approach in the sense that under the cover of freedom of speech and expression, no party can be given a licence to taint the proceedings and orders of the Court and intentionally paint an absolutely wrong and incomplete picture which has the tendency to slander the Court and bring it into dispute.
Free expression is the basic feature of democracy but subject to reasonable restrictions. Bona fide criticism of an institution such as the judiciary cannot be objected on any pretext, be it under the conferred constitutional power or the statutory contempt law. Healthy and constructive criticisms are the necessary for the development of the democracy.
In India, however, the Supreme Court's decisions have not carefully balanced the protection of the administration of justice from unjustified attacks with the equal necessity for legitimate or reasonable criticism of courts and judges bearing the importance of freedom of speech and expression.
The threat of punishment puts a restraint on the basic right of free speech, which is the bedrock of democracy, and punishment for scandalising the court should be given in the clearest cases. It is high time in India should amend the prevailing conservative view of contempt law and adopt the liberal approach advocating free expression.
The introduction of truth as a valid defence to an allegation of contempt, by an amendment to the Contempt of Courts Act, 1971 in 2006, though a small step in a move to change the pre-judge notion approach of the judiciary, is a right step, as it recognizes the need for balance in exercising the power of contempt jurisdiction of the courts and the right to express and hold ideas.
AG v. Times Newspaper Ltd.  AC 273, p. 308.
Bathina Ramakrishna Reddy v. The State of Madras  SCR 425.
Brahma Prakash Sharma v. U.P  SCR 1169.
C.K. Daphtary v. O.P. Gupta  1 SCC 626, 638.
Dr. Ambedkar’s Speech in Constituent Assembly Debates, VII, 980.
E.M. Sankaran Nambbodiripad v T. Narayanana Nambiar  2 SCC 325.
Justice Markandey Katju, Judge, Supreme Court of India,  CriLJ/16 XII.
In Re Arundhati Roy, AIR 2002 SC 1375.
Lokanath Mishra v State of Orissa  CriLJ 4719.
M.P. Jain, Indian Constitutional Law (reprinted, 8th edn, Lexis Nexis Butterworths Wadhwa 2018) 1452-3.
M.P. Lohia v. State of West Bengal  2 SCC 686.
Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345, 3347.
Perspective Publication Ltd v. State of Maharashtra  2 SCR 779
Rajendra Sail v. M. P. High Court Bar Association, (2005) 6 SCC 109
Rajesh Kumar Sing vs. High court of Judicature of Madhya Pradesh, Bench Gwailor AIR 2007 SC 2725.
The Constitution of India 1950, art 129.