‘Democracy is fundamentally founded on free speech and open discourse, which is the only correction of government intervention in a democratic environment.’
-Justice P.N. Bhagwati in Maneka Gandhi v. Union of India
Reasonable Restriction on Fundamental Rights for Administration of Justice?
Article 19(1)(a) of the Indian Constitution guarantees the right of Freedom of Speech and Expression. It includes the right of any person to criticize the decisions and working of the court and the judicial system. The Courts use the power of contempt to punish someone who reduces the integrity of the court or interferes with the administration of justice. This precisely explains the disagreement between freedom of speech and expression and contempt of court.
For a healthy and liberal democratic culture, freedom of expression and contempt are important. Both are in the public interest. Freedom of expression and freedom of press guarantee judicial transparency, while the power of contempt ensures reasonable judicial administration. This means the right, in any medium such as word of mouth, writing, printing, photographs or any other form of expressing one’s opinions on any matter. It also requires correspondence rights and the right to disseminate or publish opinions.
On certain occasions, however, freedom of expression and speech is found to be unrestricted. People feel that it is their right to say and believe. However, this is not the case in most situations. This right, however, is not absolute and subject, to 'fair' and 'reasonable' restrictions. As with the other constitutional rights enshrined in Part III of the Indian Constitution, there are some fair limitations on the right to freedom of speech and expression. Restrictions on freedom of expression and expression may be imposed on account and in matters of India's sovereignty, dignity and protection, friendly relationships with foreign countries, public order, decency or moral values, or on account of contempt of the court, disguise or incitement to offence.
The right to freedom of speech guaranteed under the constitution and the independence of the judiciary are the two fundamental, most essential constituents of democracy. Constructive criticism is the most critical aspect of democratic progress and freedom of expression should be safeguarded by the Supreme Court, but how should we demarcate between constructive criticism and contempt, or rather more importantly how do we differentiate between reasonable restriction of rights and disdain for hindering in the process of administration of justice but where should the line be drawn? As criticism threatens to lower the judge's powers and even to hinder the administrative administration of justice, the Court has the power to punish any act that threatens to undermine the value of Judiciary under the Contempt of Courts Act, 1971.
According to Section 5 of the Act, fair criticism should not be represented as contempt of court. The irony of the case is, however, exposed because the judiciary to whom the statement was made has the power to determine if it is constructive in nature or contempt. The courts are the protector of the Constitution, including citizens’ constitutional rights. If the custodian himself expresses his inability to hear dissidents regarding their decisions, it also decreases the integrity of the court. Thus, this somewhat goes against the principle of nemo judex in causa sua, since one of the parties (the judiciary or the courts) has the right to decide. Thus, this is against the principle of natural justice.
Historical Origin of Contempt
The notion of contempt is centuries-old British rule, abolished in 2013 by Great Britain. The Law Commission of the country said it was not only intended ‘to prevent people from getting the wrong impression of the magistrates ... but it is also important that the pubic does not get the right idea when there are shortcomings.’ One aim, in other words, was to cover up judicial bribery. The definition, ab initio, thus conflicted with the need for openness and of course, freedom of expression.
Contempt of Court: Theory of Past or a New Trend?
During the post-emergency period, that is, 1977-78, two editors – Shamlal of Times of India and the S. Mulgaokar of The Indian Express were charged with contempt of the court for their articles in their respective newspapers, challenging the decision of the bench in the case of A.D.M. Jabalpur v. Shivakant Shukla. The articles by Shamlal and Mulgaokar were published when Justice MH Beg was appointed as the Chief Justice of India, and both articles challenged the credibility and integrity of the judges by criticising the judgment in the above-named case. In one of the two articles, input was given from numerous public intellectuals, who addressed the actions and behaviour of the judges during the emergency period that had recently ended. The government which was in power at that time eased the constraints and restored freedom of the press which those articles took advantage of.
One of the articles also claimed that, despite being the next in line next in line (on the basis of seniority), Justice Y. V. Chandrachud and Justice P N Bhagawati should not be appointed as Chief Justice. The two editors were exposed to two separate cases of contempt. Both the editors opted to appeal their issues and ultimately a constitutional bench held that none of them had acted in contempt of court. It is important to note that both editors have made remarks as to the honesty of some of the sitting judges and the then Chief Justice of India. This is intended to illustrate the value given to freedom of speech and expression as well as freedom of press.
The Supreme Court of India found the respondent (Arundhati Roy) guilty of contempt in the famous Arundhati Roy case and sentenced her to symbolic imprisonment for one day. The defendant was guilty of criticizing the Court for having muzzled the opposition and arguing before the Court as a reaction to the Court's earlier decision on creating a dam. This resulted in the Supreme Court's contempt proceedings against her. This punishment was symbolic but this decision of court was criticized by many civil activists and they termed it as a staunch blow on the freedom of speech and expression.
What exactly is Contempt? Is there any Predetermined Formula for Contempt?
Contempt is a word of very broad meaning and is an unrestricted term. It is important to criticize the literal significance of contempt. Since no criticism can be ignored by the courts, and thus in compliance with the Contempt of Court Act, 1971; the law has attempted to describe and regulate the definition of contempt.
Article 129 of the Indian Constitution renders the Supreme Court the ‘Court of Record’. A court of record shall retain the documents and the judicial proceedings of which the evidence is binding on all the other courts for perpetual memory. In India we have constitutional courts in the form of High courts and a Supreme Court. Both tribunals are record tribunals and are inherently competent for punishing anyone for their contempt. The Supreme Court and the High Court respectively have this power to punish for their contempt under Articles 129 and 215. The Supreme Court shall therefore be court of record and have the power to prosecute for contempt. In addition, Article 215 of the Indian Constitution states that “every High Court shall be a record court and shall have all the rights and privileges of that Court to punish for contempt”. According to the Contempt of Courts Act, 1971, contempt of court can either be civil or criminal.
The Act describes civil contempt as a deliberate contempt of a person's decree, order or decision. The civil contempt is well formulated and it is not left for the benefits of private individuals and individuals to use.
In accordance with the Act, criminal contempt arises when an individual obstructs the administration of justice, impairs the judicial process and reduces or shocks the integrity or authority of court. The judge is granted a great power to assess whether or not a specific accusing act is contempt. This criminal contempt has a broad and vague amplitude.
The Apex Court commented in the Bar Association v. Union of India and Ors:
“Therefore, the legislative powers of the Parliament in the field cannot be exercised so as to stultify the Superior Court's status and integrity or the High Court, although such legislation can act as a guide for deciding what penalty the Court could impose in the event of existing contempt.”
There exists a question whether any court criticism will lead to contempt or whether there is any predetermined formula that determines which critique may constitute contempt. It is also an open question, how the integrity of the Court is diminished by a specific event and how the degree to which this integrity is diminished is decided.
 Article 19(1)(a), Constitution of India, 1950.  Free Speech Vs Contempt Of Court, An Analysis In Light Of The Prashanth Bhushan Case - Litigation, Mediation & Arbitration - India (2020). Available at: https://www.mondaq.com/india/libel-defamation/980554/free-speech-vs-contempt-of-court-an-analysis-in-light-of-the-prashanth-bhushan-case- (Accessed: 2 December 2020).  What is criticism and what is contempt? (2020). Available at: https://www.thehindu.com/opinion/op-ed/what-is-criticism-and-what-is-contempt/article32378502.ece (Accessed: 2 December 2020).  Right to freedom of speech and expression through the Internet is part of Article 19(1)(a): Supreme Court of India (2020). Available at: https://www.theleaflet.in/right-to-freedom-of-speech-and-expression-through-the-internet-is-part-of-article-191a-supreme-court-of-india/# (Accessed: 2 December 2020).  Free Speech vs. Contempt of Court: A Face Off (2020). Available at: https://blog.finology.in/recent-updates/Free-speech-vs-contempt-of-court (Accessed: 2 December 2020).  What is criticism and what is contempt? (2020). Available at: https://www.thehindu.com/opinion/op-ed/what-is-criticism-and-what-is-contempt/article32378502.ece (Accessed: 2 December 2020).  A.D.M. Jabalpur v. Shivakant Shukla 1976 AIR 1207.  Arundhati Roy case (AIR 2002 SC 1375).  Article 129, Constitution of India, 1950.  Article 215, Constitution of India, 1950.  Article 215, Constitution of India, 1950.  Bar Association v. Union of India and Ors, Appeal (civil) 4679 of 1995.
Second part of this series of blog shall be published next.
Title Image Source: Probono India
This article has been written by Gyanda Kakar. Gyanda is a second year law student at Gujarat National Law University.