Contempt of Court vs Freedom of Speech

Contempt of court is any conduct or bad behavior that contentions with or challenges the expert, trustworthiness, and prevalence of the court. 

A democracy without dialogue is hardly a democracy. The Freedom of Speech and Expression as enshrined in the Constitution of India seeks to do just that—facilitate dialogue. All other Freedoms emanating from here heralds it as the greatest and grandest of our guaranteed Freedoms. Free speech should be the birth-right of all, for how else could communication thrive?

This freedom empowers every Indian citizen to criticize any institution including the Judiciary and its functioning. However, the shackles of ‘reasonable restrictions’ render this Freedom not absolute. Thus, one cannot expect to not face the brunt of sanctions after saying or expressing anything that is unreasonable. Incidentally, the Judiciary has the power to decide when and where to impose ‘reasonable restrictions’, and herein lies the irony. The Judiciary would roleplay as judge, jury, and executioner to decide whether a criticism was constructive or not, for those instances also where it would be the one criticised about.

Is the Pen Mightier Than the Sword?

Just as the Lord giveth and thus can taketh away similarly, the Constitution too guarantees but thereafter restricts. Procedural, as well as substantive viewpoints, govern the determination of ‘reasonable restrictions’. This expression ‘reasonable restrictions’, seeks to maintain a balance between the freedom so guaranteed and the societal control expressed by the exceptions.

The State envisages the following restrictions on the Freedom guaranteed under Article 19 of the Constitution of India:

• Defamation;
• Contempt of Court;
• Decency or morality;
• Security of the State;
• Friendly relations with foreign State;
• Incitement to an offence;
• Public order;
• Maintenance of the sovereignty and integrity of India.

Hence, any speech or expression violating or affecting any of the aforementioned restrictions would be liable to be punishable by law.

In Re: Prashant Bhushan & Anr.

Contempt of Court in India is a serious offense. Recently, the Hon’ble Supreme Court of India took to heart, a couple of tweets by Sr. Advocate Mr. Prashant Bhushan; wherein he criticized the Judiciary and its functioning and found him guilty of criminal contempt of court. The alleged contemnor was found guilty of a “malicious, scurrilous, (and) calculated attack”, to weaken the Judiciary and damage the “very foundation of the democracy”. The callousness of such contemnor, in making certain “wild allegations”, almost made the impugned judgment convincing, but alas! Therefore, In Re: Prashant Bhushan & Anr. has rekindled the debate regarding contempt of court vis-à-vis freedom of speech.

This verdict might just imply that irrespective of how you ‘pen’ your expressions, the ‘sword’ of justice might get you. The failure of the democracy to safeguard the expressions of a common man must lead one to bewilderment. The handling of the entire situation was abysmal, to say the least. It was evident that an alarming tenacity governed the opening of long-forgotten cases. Good, bad, indifferent, the situation perhaps could have been handled better.

The Past Is Not Always Prologue

One must not be oblivious as to why the constructors of our Constitution envisaged certain safeguards against our guaranteed freedoms. It was to ensure that the constitutional machinery would not be weakened by those choosing to exercise their freedom maliciously. Just as no power should be made absolute, for that could breed anarchy, any restriction must also be exercised judiciously.

Pained by the ‘gross misunderstanding’, Mr. Bhushan had vociferously argued that “a small attempt to discharge” the “highest duty” of “an officer of the court” had prompted the impugned tweets rather than a“fit of absent-mindedness”.

Browsing through some of the observations of the Judiciary on this aspect, one would be amazed at his findings. Krishna Iyer, J. had observed that “….if Judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar’s wife, must be above suspicion….”.

As the Chief Justice of the Calcutta High Court, Arun Mishra J., had declared along with his brother Justice, Joymalya Bagchi, that,

“Contempt proceedings should not be initiated at every irritant or pinprick. Deference to judiciary cannot be secured by the sceptre of contempt but is to be attained by the sublime quality of our judgement. Prior to invocation of such jurisdiction the Court must be prima facie satisfied that the alleged contumacious act was with the intention of denigrating the judiciary… It is common knowledge that in today’s society there are discussions and/or deliberations in various quarters with regard to impairment of the efficacy of the judiciary due to prevailing corrupt practices.”

2012 SCC OnLine Cal 12794.

To preserve the “fundamental freedom to free speech and expression”, a “wide latitude” ought to be provided. Furthermore, it would be decadent to perceive the Judiciary of a democratic republic as a “cloistered virtue”.

Speech is Silver and Silence Golden

No matter whichever way you perceive it, the decision in the instant case is an unfortunate one. Irrespective of it being Re 1 or its multiples, an innocent individual should not have to pay any fine whatsoever. Yet, if one is guilty, then Re 1 does not seem like a sufficient amount to act as a deterrent. Either way, this is an unfortunate timestamp in the annals of justice. Justice should never give way to vengeance though that is exactly what seems to have transpired here.

Gajendragadkar, C.J., had remarked that “Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the Court, but may sometimes affect it adversely.”

There is power in both the written as well as the spoken word. The same letters form the words ‘live’ and ‘evil’, or ‘unite’ and ‘untie’, and yet they have such stark differences in their meaning. The communicator must be responsible and reserved with his words. Sometimes it is wise to be silent than to use eloquent verbiage. Therefore it is imperative to nurture one’s better judgment.

As an author, my duty is not to urge you to adopt sides. Rather I simply intend to encourage discussion so that you, the reader, can decide the ramifications of this debate. It is important that one be able to dissipate his thoughts without having the fear of attracting sanctions. Skirmishes only lead to destruction, while discussions foster development.