• LAWGIC STRATUM

Freedom of Speech and Contempt of Court

Author: SALOUNI CHOUSHARY





The right to freedom of Speech and Expression is given to all citizens of India vide Article 19(1) (a) of the Constitution of India. The main philosophy behind this right is given in the preamble of the Constitution. Where a solemn resolve is made to safeguard the liberty of thoughts and expression to all citizens. But this right is subject to certain reasonable restrictions that are being imposed under Article 19(2) of the Constitution.


Main elements of Right to Freedom of Speech and Expression are given as:-

  • This right is given only to citizens of India and not available to foreigners.

  • Article 19 provides a right to express oneself in any manner; - by words of mouth, writing, printing, picture, film, movie, etc.

  • The Right to freedom of Speech and Expression is not an absolute right and it allows the government to impose reasonable restrictions in the interest of security, sovereignty, and integrity of India, friendly relation with foreign states, public order, decency, morality, defamation, contempt of court and incitement of offense.

  • The restriction can be imposed by both action and inaction of Government and if in such cases, the right to freedom of speech and expression is not respected by the state then it would constitute a violation of fundamental rights under Article 19(1) (a).


Contempt of Court as a ground of restriction to Freedom of Speech and Expression


The Contempt of Court provides for the administration of justice in the system and contains provisions for punishing actions that are intended to hurt the dignity and authority of Courts. The command to safeguard the dignity of the judiciary in India is given to the judiciary itself. The reason behind this was to bolster the authority of the court and increase the faith of the public in the judiciary which was considered as the central pillar of democracy.


According to Article 129 and 215 of the Indian constitution, the Supreme Court and High Court respectively will be Court of Records and will have all powers including the authority to punish for contempt of itself.


The Contempt of Court Act, 1971 provides two types of Contempt: - Criminal and Civil. Section 2(b) gives the definition of civil contempt as intentional disobedience to any judgment, decree, direction, order, writ, or any other process of the Court. Criminal Contempt as defined under 2(c) of the act, is the publication of any matter (i) scandalizes or tends to scandalize or lower or tends to lower the authority of any court prejudices or, (ii) interferes or tends to interfere with, the due course of any judicial proceeding or, (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. Although, contempt law has many good provisions, in current periods it has trampled upon the liberties of people.


Right to freedom of Speech and Expression vs. Contempt of Court


Both the right to freedom of speech and the Expression & independence of the judiciary provided by the constitution are the two most important components of democracy. Constructive criticism is one of the very important components for the development of democracy and the Supreme Court needs to protect the freedom of speech. But the main question is where to draw lines? When the criticism is of such kind that has the tendency to lower down the power of the judges and is even capable of obstructing the administration of Justice, in such cases, the court has the power to give punishment for any such acts which is done to demean the value of judiciary as per Contempt of Court Act, 1971. According to section 5 of the act, fair criticism does not come under contempt of court. The irony of the situation can be highlighted by the fact when the remarks were made against the judiciary, they got the power to decide whether it is constructive criticism or not.


Comparative Analysis of Contempt across different Countries


In the United Kingdom, the offense of scandalizing against the Court was abolished in the year 2013 after Law Commission reported that this law was against the liberties of people. The interesting fact is the Indian Contempt law is taken from common law only but even after its abolition there it prevails in India in its full colonial form.

The United States of America also abolished Contempt law, remarking that the dignity of the Court cannot be protected by silencing the opinion of the public or by restricting free discussion about the court.

In Canada also, the Court is open to criticism by the public unless such criticism is an imminent danger to the administration of Justice.


Conclusion


While it is the fact that every citizen of India is provided the right to freedom of speech and expression, contempt of court is one of the reasonable limitations that can act as a rider on this right guaranteed. No fundamental rights guaranteed to citizens are absolute in nature. Therefore the right to freedom of speech and expression is also subjected to certain other reasonable restrictions like defamation, decency, and morality, etc.


The reasonable restrictions were included in section 19 with the motive of keeping balance because framers of the constitution knew that if they would provide absolute rights to Indians, dire situations would ensue leading to a failure of the constitutional mechanism. After all, we all knew that the Constitution of India is a living document that has survived for over seventy years now despite several amendments in it being made and various foiled attempts were also made to dilute the spirit of the Indian Constitution.


References


https://www.civilsdaily.com/burning-issue-contempt-of-court/

http://www.legalserviceindia.com/legal/article-572-constitution-of-india-freedom-of-speech-and-expression.html

https://www.barandbench.com/apprentice-lawyer/the-need-to-revisit-anachronistic-criminal-contempt-laws-in-india

https://www.mondaq.com/india/libel-defamation/980554/free-speech-vs-contempt-of-court-an-analysis-in-light-of-the-prashanth-bhushan-case-

https://www.hrw.org/news/2020/08/19/india-contempt-conviction-threatens-free-speech

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