“Without freedom of thought, there can be no such thing as wisdom – and no such thing as public liberty without freedom of speech.” ~Benjamin Franklin
The aforementioned words even though reiterated by Franklin are somehow the very seed giving birth and concurrent growth to a rising democracy. Democracy is incapable of standing alone and is pillared by numerous factors but it derives its major strength from the element that is existent in liberty given to its citizens and not just rendered but secured from time to time.
“The object of the discipline enforced by the Court in case of contempt of court is not to vindicate the dignity of the Court or the person of the Judge, but to prevent undue interference with the administration of justice.” ~ Bowen, L.J
On the other hand, the word ‘contempt’ is a strength entailing source capable of guarding the administration of justice. It is not merely a disciplinary step but is, in fact, a boundary within which the essence pertaining to justice is protected and concurrently, beyond which, if taken a step, mandatorily invites disrespect towards a supreme authority that can be best described as a sacramental institution guaranteeing justice in various forms to every individual without any bias.
The aforementioned approaches are two strong pillars conjointly supporting the marble base named as democracy leaving a corresponding fear or doubt that if the pillars attempt to carry the load itself or shift its burden on the other pillar; the same can lead to an unavoidable eventuality where the marble will fall apart as a sandy structure. This has led us to a discussion where the two crucial aspects strongly prevalent in our judicial system i.e. the freedom of speech and expression beautifully incorporated under Article 19, Part III of the Constitution of India and ‘Contempt’ as defined under s.2(c) of the Contempt of Courts Act, 1971 come in conflict with each other or demarcates circumference for the exercise of such freedom and right.
This can be termed as a rock-solid approach but with the likelihood that many foot soldiers of the constitution would agree it can be stated that ‘Part III: Fundamental Rights’ is the soul of the Indian Constitution which has ensured since its existence that its essence cannot be snatched away thereby reaffirming the very concept of a democratic nation. One of the main highlights of this part is Article 19 which yet again comprises of two clauses, one of which guarantees the right to freedom of speech and expression to each individual and the second clause of this article imposes ‘reasonable restrictions’ on the freedom guaranteed under Article 19(2).
Article 19 has been subject to numerous discussions, debates, opinions but the beauty of all these approaches that were rendered time and again by different individuals’ lies in the fact that no approach entails a complete and concrete rigidity and there is always scope for reasonable justifications. This factor at all times will display the ambit and reach of this particular provision in the Indian Constitution.
Contempt of Court on the other hand has been categorized as an offense that is said to be committed as soon as any disobedience or disrespect towards the court is witnessed, perceived, and correspondingly proved. The objective pertaining to the introduction of this concept in India was to safeguard and ensure the fair administration of justice without pinching a needle on the dignity and authority of any Court of Law. It further entailed intent to build conviction and buoyancy amongst its citizens to not deprive them of the faith the citizens recurrently impose on this particular pillar of the democracy. Owing to the nature of contempt, it is subdivided as civil and criminal contempt. Civil Contempt happens to be wilful disobedience of an order of any court. On the other hand, Criminal Contempt contains within itself a factor which is more than just disobedience and is further capacitated enough to scandalize the court, or prejudicing any judicial proceeding, or interference with the administration of justice in any manner whatsoever.
The main point giving rise to a discussion or conflict is the approach with regard to Criminal Contempt and the very freedom of speech and expression guaranteed in Article 19, Part III of the Constitution of India which whenever witnessed in conflict with any other provision of the Indian Constitution is found to be given supremacy over anything else. The culmination of conflict is existent in the ground that there is an absence of one, a pre-defined parameter capable of either satisfying the ingredients of contempt and two, perception as to what can scandalize the court, cause prejudice to any judicial proceeding or interfere with the administration of justice. However how much relevance can be absented from the fact that the rights guaranteed under Part III of the Indian Constitution were incorporated to somehow secure the justice administration.
This year has yet again opened this controversy through the judgment delivered by the Hon’ble Supreme Court of India in IN RE: Prashant Bhushan & Anr.[1]. Having gone through the minutes of this controversy it could be culled out that where the debate owing to exercise of Fundamental Right and Contempt can be put to rest. Beginning the issue from the stage where Sr. Adv. Prashant Bhushan was held guilty for the Criminal Contempt of Court under Contempt of Courts Act, 1971 for displaying two opinions on a widely used social media platform. Whilst one of his tweets related to Justice S. A. Bobde, the Chief Justice of India riding an expensive motor vehicle during the lockdown period without taking any precautionary measures pertaining to a global pandemic, COVID-19 which has eventually led to the shutdown of the Supreme Court of India, the other one related to the complete downfall of the Indian democracy. Even though the second tweet can be perceived as an opinion had the opinion halted at the above-stated point however it was bluntly coupled with a question mark on the role of the Hon’ble Supreme Court of India with a corresponding role of past four chief justices of India in the aforesaid downfall of the Indian democracy.
The former tweet could not satisfy the essentials of being termed ‘Contempt’ for it was laid down that it was an opinion with respect to an individual acting in violation of the norms that should be followed in this pandemic situation and not against the designation held by such individual. It further inflicted a null impact on the administration of justice hence it could not be held to be contempt of the Court. However, for the second tweet it could be bifurcated into three elements; first and foremost being the destruction of democracy in the past six years; secondly the alleged implicit permit by the Hon’ble Supreme Court of India for allowing that destruction and the last being a question mark on role attached with the past four Chief Justices of India.
From the above stated a crystal clear interpretation with regards to a judicial officer as an individual and a judicial officer as a formal authority can be retracted for an opinion or a comment about what an individual commits in his capacity cannot be termed as ‘contempt’ but a statement casting a sufficiently pessimistic impact on mind frame of budding youth and citizens of the Country concerning a dignitary position was turned out to be as ‘contempt’. The second tweet was well justifiable as an ingredient leading to contempt of the court for that was capable of vindicating the dignity and honor of the individual judge as well as the administration of justice. Furthermore, it can be perceived as an attack on the trust that the citizens of this country have built overtime on the independent judicial system. All the more, such statements can mold a perception leading to the birth of disaffection, doubt, and absence of faith in supreme bodies entrusted with the task of ensuring justice.
Not to forget the observation made by the Hon’ble Apex Court for Article 19(2) of the Constitution that has touched an area falling under reasonable restrictions with a concurrent raising a mark against the Supreme Court of India is sufficiently capable of being termed as contempt. It was further observed that the Judiciary has always attempted to strike a balance between the two clauses contained in Article 19 and that such reasonability shall be ensured at every point in time. An opinion with regards to the other side of this coin has also been established by the Hon’ble Supreme Court of India in various judicial precedents that are depictive of the flexibility established between Contempt and the Freedom of Speech and Expression. It is necessary to state that the freedom of speech and expression, if perceived and exercised optimistically can impart a contribution in the overall functioning of the judicial system thereby enhancing more the principles embedded in a democracy. It was in P.N. Duda v. V.P. Shiv Shankar & Ors.[2], wherein the Apex Court observed that “the contempt jurisdiction should not be used by judges to uphold their dignity.” In the free market places of ideas, criticism about the judicial system or the judges should be welcomed, so long as criticisms do not impair or hamper the administration of justice…” Also, in Arundhati Roy v. Unknown[3], it was derived that the Courts have time and again held people guilty under the cover of Art 19(2) imposing a restriction on an individual’s genuine application of freedom of speech and expression. It was in R. Rajgopal v. State of Tamil Nadu[4]that the Hon’ble Apex Court explicitly stated that public persons must be open to stringent comments and accusations as long as made with bona fide intentions.
The ever-existing and ever going conflict between notions annexed with a fundamental right and an inherent respectful duty towards the dignity of legal institutions, designations, and offices will always be a debatable topic. However, the luster of legal debates that refuse to fade with time is inherent in the fact that there are gazillion opinions and each one of them qualifies to justify what the law seeks to ensure. An individual’s exercise of freedom of speech and expression can merely be an opinion until and unless it is red-flagged as Contempt of Court. On the contrary, his right to seek, ask, raise questions from a dignified judicial office can be held to be as contempt if not refined and aimed at an optimistic objective. The key to the demarcation of the two is a reasonable exercise of one’s fundamental right coupled with rendering due dignity and honor to those pillars of democracy that guarantee a citizen his/her fundamental rights every single day.
About the Author:
Karan S. Thukral is a good strategist and has an excellent reputation in NRI Laws, specifically matters relating to Inter-Country laws and regulations. He has worked amongst international clients and legal peers for many years. He is excellent in dispute resolution on all litigations and international matters. He covers all aspects of family laws, which also include inheritance and real estate issues. He is renowned for his expertise in constitutional law matters as well which include writ petitions against the government and various other statutory departments. Karan S. Thukral is also considered a dominant presence for matters related to international laws, inheritance disputes, and inter-country family law matters.
[1]SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020.
[2]1988 AIR 1208.
[3]AIR 2002 SC 1375.
[4]1995 SCC (6) 32.
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