Open Access Research Article
Contempt Law: Court Scandal Prevention or Court Scandal to Limit Free Speech? (By– Prakalp Shrivastava, Anam Zafar & Dishi Shivpuriya)
Published Paper
Article Details
Title of the Paper- Contempt
Law: Court Scandal Prevention or Court Scandal to Limit Free Speech?
Authored By–
Prakalp Shrivastava
University-Jagran
Lakecity University, Bhopal
Year-5th,Semester-9th
Name of
Co-Author-Anam Zafar
University-Jagran
Lakecity University Bhopal
Year – 3rd Semester – 6th
Name of
Co-Author-1- Dishi Shivpuriya
Year – 4th Semester – 7th
[1]Abstract
The
purpose of this research paper is to make a constructive comparison between
contempt of court and freedom of speech and expression. The courts, as the
institution charged with interpreting the law, must interpret what constitutes
its own contempt, as well as the extent and circumstances under which freedom
of speech can be curtailed. So, there is a conflict between contempt of court
and freedom of speech and expression, and in various circumstances, courts have
chosen different explanations interpreting what should and should not amount to
contempt. This research paper explains the scope of the right to free expression
while contrasting it with contempt law, as well as the history of contempt law
and the various provisions of the Contempt of Courts Act, 1971.
This
research paper also includes a detailed examination of the "one rupee
contempt case," i.e., the 2020 contempt case involving Adv. Prashant
Bhushan. This case was an excellent example of the flaws and ambiguity in
India's contempt law.
In
a shocking turn of events, when the public was forced to sit at home,
diplomatic statements were issued in this case, and in the end, Bhushan had to
pay the consequences for the offence for which he was found guilty, as well as
a hefty fine of Rs. 1.
In
today's world, it's critical to understand the scope of one's rights, as well
as when and to what extent they can be curtailed. So, in India, what is the law
of contempt, the prevention of court scandalization, or a scandal to stifle
free speech?
Keywords-Scandal,
Contempt, Offense, Free Speech, and the Judiciary.
Introduction
The
purpose of a concept like contempt of court is to prevent unfair criticism of
the judiciary and to protect the institution's reputation. Contempt of court is
regarded as a serious offense that disrupts the harmony of the court and its
administration of justice, but each citizen is guaranteed fundamental rights
such as free speech. Furthermore, the irony is that the court must determine
what constitutes a contempt of court offense (i.e., what tends to lower its
dignity or authority), and the court must also protect our fundamental rights
while determining the extent to which they can be exercised.
The
Contempt of Courts Act of 1971 was enacted as the first statute to specify the
term "contempt of court." Contempt of court, according to Corpus
Juris Secondum, is disobedience to the court by acting in opposition to its
authority, justice, and dignity. It denotes wilful disregard for or
disobedience of a court's order.
II. The Extent Of Freedom Of
Speech Under Art-19 (A)
I.
Right to "Freedom" of Expression and Speech
Every
Indian citizen has the right to free speech & expression under Article
19(1)(a) of the Indian Constitution. This freedom includes the right to freely
express one's opinion through word of mouth, writing, printing, pictures,
electronic media, or any other means addressed to the eyes or ears. It would
thus include, in addition to press freedom, the ability to express one's ideas
and opinions through visible representations such as gestures & the like.
This
means that the right to free speech & expression includes the freedom to
spread an individual's ideas and opinions, as well as their circulation and
publication[2]. It
includes the right to criticize someone for holding opposing views and the
right to respond to such criticism. As a result, any citizen can acquire or
share ideas and information about topics of common interest.
(B)
Reasonable Restrictions on Free Expression
The
aforementioned fundamental right granted to citizens is not absolute, and
clause (2) of Article 19 imposes some reasonable limitations on this right.
Contempt of court is one of the restrictions imposed on every citizen's right
to free speech and expression.
This
restriction may be imposed if the right is violated by making a malicious or
libellous remark that attempts to foster orderly proceedings and undermines the
integrity of the court. However, this does not mean that judges are immune to
legitimate criticism[3].
Section 5 of the Contempt of Court Act, 1971 states that publishing a fair
criticism of a judicial act that has been heard and a decision has been reached
does not constitute contempt. [4]Brahma
Prakash Sharma and Others v. State of Uttar Pradesh, According to the Supreme
Court, "the attack on the judge is a wrong done to the public, and it
tends to create apprehension in the minds of people regarding the judge's integrity,
ability, and fairness."
(C)
Scope of Free Expression (Article 19) and Contempt of Courts Act
The
right to free Article 19(1)(a) guarantees freedom of expression is regarded as
one of the most valuable rights conferred by the Constitution, but respect for
judicial independence is also essential. What if the criticism levelled at the
court tends to diminish its authority? Section 5 of the 1971 Contempt of Court
Act states that fair criticism does not constitute contempt if made after the
case has been heard and decided.
As
a result, the judiciary is not immune to criticism; however, criticism should
be fair and should not be delivered in a way that appears to undermine public
trust in the judiciary[5]. Freedom of expression cannot prevail where
contempt is malicious, substantial, or manifest[6].
Because freedom of expression is not absolute and has limitations imposed by
Article 19, (2). The line between free speech and contempt of court is thin. It
is determined by the speaker's intention. Because words are the skin of the
language, the words they use serve as determinants.
As
a result, Article 19(1)(a) guarantees Freedom of Speech and Expression for all
citizens of the country, and provisions under Article 129 and Article 142(2) of
the Indian Constitution cannot override Article 19(1)(a) and 19(2) of the
Indian Constitution, because Article 19 falls Part III of the Constitution of
India ( FR), which falls under basic structure of the Constitution. As a
result, free speech is a highly valued right that is necessary for democracy.
In a democracy, there is also a right to dissent, which is part of the right to
free expression. A democratic country allows people to form their own opinions.
(D)
Right to Free Expression vs. Judiciary
Criticism
of a judge's actions (even if it's a strong one) is not contempt as long as it
is made in good faith, temperately, and fairly, but it should not be directed
to a Judge's personal character or the impartiality of a Judge or Court[7].
At the same time, freedom of expression cannot be equated with the right to
make reckless and unfounded accusations against the judiciary[8].
Healthy criticism is acceptable if it is constructive, honest, and, most
importantly, expressed in respectful language. As a result, criticism cannot be
hostile in nature, undermining or tending to undermine public trust in the
administration of justice. To determine public interest and good faith, the
Court must consider all of the circumstances surrounding the person responsible
for the comments, including the person's understanding of the comments and the
purpose in the field that he intended to achieve.
If
a citizen, while exercising their right to free expression guaranteed by
Article 19(1), tries to undermine the dignity of the court and undermine
people's trust in the judiciary, the Supreme Court and High Courts are free to
use powers conferred by Article 215 or Article 129, as the case may be. It
makes no difference whether the act was committed in good faith or without
malice; what matters is that the offending act became or has the potential to
become a hindrance in the effective operation of the court and interfere with
the administration of justice. These are neither relevant nor relevant as a
defense to contempt of court[9].
The law punishes all acts that not only obstruct but also have the potential to
harm the administration of justice[10].
(E)
Judge Defamation and Contempt of Court
Will
slandering a judge in a purely administrative matter amount to contempt of
court? In [11]Baradakanta
v. Registrar, High Court of Orissa, the High Court of Orissa held that it
amounted to contempt, and thus the appellant was convicted of contempt of
court. The court always welcomes constructive criticism, but it must be made in
good faith and in the best interests of the general public.If a judge's
decision or decree in a case is criticized with malice and is not in the best
interests of the public, but only to harm the judge's reputation, it may amount
to contempt.
The
offense of contempt of court is more serious than defamation and has a distinct
personality. Contempt of court is not only an offense against the judge, but it
is also an offense against the public at large by undermining the authority of
the court[12].
Defamation is considered contempt of court when the act of defaming the judge
interferes with the administration of justice. However, contempt can also
include defamation. Truth can be pleaded as a defense in both contempt and
defamation proceedings,[13]
but the speaker will not be protected by the constitutional right if the speech
is untrue and reckless as to its truth.
F.
Inappropriate Gestures and Misbehaviour in Court
The
motive or mensrea of an act is irrelevant in contempt proceedings, it is
repeatedly stated.
Section
2(c)(i) defines criminal contempt as any act that scandalizes or undermines the
authority of any court. Using foul language, making inappropriate gestures, or
shouting in the courtroom may amount to criminal contempt. This misconduct must
be stopped because it has the potential to infect bar members across the
country. As a result, provisions were made to limit these practices. No one,
regardless of position, is immune from this offense. India has a court
hierarchy, with each court entrusted with disciplinary control over the one
below it.
In
L.D Jaikwal v. State of U.P.,[14]
the Allahabad High Court held that the use of abusive language by the advocate
in pleadings vilified the judge and amounted to contempt under Section 2(c)
(i). In K.A Mohammed Ali v. C.N. Prasanaan[15],
the accused used derogatory language against the judge and raised his voice
unusually high during the trial. He was found guilty of the crime of contempt
of court. Advocates are punished for their misconduct in order to prevent
similar incidents from occurring in the future. Because these acts are likely
to embarrass the judge while he is carrying out his judicial duties.
II.
Contempt Law History
(A)
Report of the Sanyal Committee
The
system of contempt law in India is of English origin. The indigenous legal
system of courts in India, founded on the concept of sovereign law above his
courts. It was an offense to scandalize or defame the King, the King's Council,
or any other courts or assemblies, according to Kautilya. Under Lord Minto's
administration in 1908-09, it was recommended to the governments of all
provinces that legislation be drafted to allow High Courts to protect
themselves from contempt of court and allow the High Courts to provide
reasonable protection to all subordinate courts in terms of contempt of court
and improper commenting on pending cases.
(B)
Contempt of Court Act of 1926
In
retrospect, the 1926 Act can be considered a step in the right direction. The
most important contribution of this law is that it imposes certain limits on
the penalties for contempt of court. Undoubtedly, the intention is to apply
these restrictions regardless of whether the court's contempt is directed to
the higher courts or its sub-courts. However, the punitive powers under section
3 apply only to contempt of lower court interpretations, and this act was
amended in 1937 to specify restrictions that apply in all cases.
(C)
The Courts Contempt Act of 1952
The
High Court has the authority under this Act to punish subordinate court
contempt. The Contempt of Court Act, 1926, which was in effect in the states of
Rajasthan and Saurashtra, was repealed by this Act. Despite the fact that the
Act was expanded to include the entire country of Bangladesh. Despite the fact
that these Acts were passed earlier, they do not define the term "contempt,"
and there is still much ambiguity surrounding the law of contempt. This law
must be addressed in light of two fundamental rights guaranteed by our Indian
Constitution: (i) freedom of expression and (ii) personal liberty.
(D)
Contempt of Courts Act OF 1971
(A)
What exactly is contempt of court? (2nd Section)
Nobody
can be allowed to interfere with the due course of justice or lower the Court's
prestige or authority when exercising a person's right to free speech and
expression. Although the term "contempt of court" is not defined in
the Constitution, Section 2(a) of the Contempt of Courts Act, 1971 states:
"Contempt
of court" refers to either civil or criminal contempt."
As
a result, the two types of contempt of court are civil contempt and criminal
contempt. Wilful disobedience or breach of a court order's undertaking
constitutes civil contempt. Criminal contempt is defined as either scandalizing
the authority of the court, jeopardizing the due course of a criminal
proceeding, or interfering with the administration of justice.
(B)
Innocent Publication (Section 3)
If
a person had no reasonable grounds to believe that the proceeding was pending
at the time of publication, that person is not liable for contempt of court.
After the case has been heard and decided, it should be made public.
(C)
What does not constitute contempt? Sections 5-7
•
Publication of a fair and accurate report on any judicial proceedings.
•
Fair and constructive criticism of the court.
•
Publication of information relating to chamber proceedings, unless the
information is related to a secret process, discovery, or invention.
(D)
High Courts' Territorial Jurisdiction (Section 10)
It
makes no difference whether the offense was committed within the territorial
jurisdiction of the High Court hearing the case. When it comes to the offense
of contempt of court, every High Court has the same power, jurisdiction, and
authority.
(E)
Punishment (Section 12)
If
a court is satisfied that the act interferes or tends to interfere with the due
course of justice, it may impose a punishment that may include simple
imprisonment for 6 months, a fine of up to 2,000/-, or both. An apology can
either discharge the offender or act as a mitigating factor in the sentence's
length.
(F)
Procedure and Procedures (Section 14-15)
Whenever
a person is accused of contempt in front of the Supreme Court or any High
Court, the court gives that person an opportunity to defend himself and takes
evidence offered by him before ordering punishment or discharge of that person.
When
a person is accused of criminal contempt, the court may act on its own or on a
motion made by the Attorney General of India or the Solicitor General of India
(regarding the Supreme
Court),
or the Advocate General of a State (regarding High Courts), or any person with
their consent.
(G)
Judge's Contempt (Section 16)
A
magistrate, judge, or other person acting in a judicial capacity can be held
liable for contempt of his own or any other court. It does not apply to any
remark or observation made by a judge in an appeal before a judge of a lower
court.
•
A criminal contempt appeal must be heard by a bench of at least two judges
under section 15 of the act.
•
If one year has passed since the indecent occurred, no court shall be obligated
to initiate any proceedings.
•
This act does not apply to contempt committed in Navya panchayat or any other
village court.
Iv. The Case Of One (1)
Rupee Contempt
(A) Case Specifics the Twitters
It
all started when Adv. Prashant Bhushan posted a tweet on Twitter on June 27,
2020, stating that democracy in India has been destroyed even in the absence of
a formal emergency, and that historians will remember the Supreme Court of
India and the last four Chief Justices of India for their roles in this
destruction[16].
Furthermore,
on June 29, 2020, he tweeted from his Twitter account about the current Chief
Justice of India, CJI S.A. Bobde, riding a 50 Lakh motorcycle belonging to a
BJP Leader at Raj Bhavan, Nagpur; he also mentioned that the CJI was not
wearing any mask or helmet, while the Supreme Court of India was in lockdown
mode, denying citizens their Fundamental right to access justice.[17]
(B) The Decision - Bhushan was found guilty.
The
Apex Court's Hon'ble Bench observed that if an attempt is made to undermine public
trust in the judiciary, including the Supreme Court, as the protector of
citizens' fundamental rights, such an attempt must be met with vigour. It was
also determined that the alleged contemnor's attacks were malicious and not
only not just against one or two judges, but against the entire Supreme Court
and its operations over the last six years Such an attack, which fosters
dissatisfaction and disrespect for the Supreme Court's authority, cannot be
ignored. Furthermore, it was determined that the tweets were based on
"distorted facts" and thus were neither genuine nor in the public
interest.
V. Conclusion
The
term "scandalise," as used in Section 2(c)(i) of the Contempt of
Courts Act, 1971, is not defined anywhere, leaving the Supreme Court and High
Courts with unrestricted contempt powers. This increases the likelihood of the
Courts abusing these powers, rendering the respective Courts' contempt powers
arbitrary. Furthermore, on the recommendation of the Law Commission, the
offence of scandalising the court was abolished under section 33(1) of the
Crime and Courts Act 2013,37 in 2013. The Law Commission repealed the offense because
it violated freedom of expression.
Article Information
Contempt Law: Court Scandal Prevention or Court Scandal to Limit Free Speech? (By– Prakalp Shrivastava, Anam Zafar & Dishi Shivpuriya)
Author Name: Prakalp Shrivastava, Anam Zafar & Dishi Shivpuriya
Title: Contempt Law: Court Scandal Prevention or Court Scandal to Limit Free Speech?
DOI Link:: https://www.doi-ds.org/doilink/07.2022-21715351/Prakalp Shrivastava, Anam Zafar & Dishi Shivpuriya
Email Id: Prakalp Shrivastava-Prakalp999@gmail.com Anam Zafar-dshivpuriya@gmail.com & Dishi Shivpuriya-anammev1@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/05
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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