Insights into Editorial: The Basics for Free Speech
30 January 2016
It is generally understood that the contempt of court jurisdiction in India is exercised not to protect the dignity of an individual judge but to protect the administration of justice from being maligned. However, the recent notice issued by the Bomaby High Court to the Booker Prize-winning writer Arundhati Roy for committing what the court believed constituted a clear case of criminal contempt of court has raised a few eyebrows in the country. The court pulled up Ms. Roy up for writing an article criticizing the Indian state, including the country’s judiciary.
What is ‘Contempt of Court’?
According to the Contempt of Courts Act, 1971 there are two common forms of contempt:
- Civil contempt will include, among other things, a wilful disobedience of a court’s judgment, order or direction.
- Criminal contempt will include publications that do one or more of the following: (a) scandalise or lower the authority of any court; (b) prejudice or interfere with the due course of any judicial proceeding; or (c) interfere with or obstruct the administration of justice in any other manner.
The promise of the Constitution:
Article 19 of the Constitution of India guaranteed the right to freedom of speech and expression, but also allowed restrictions on this right to be imposed by law, including any Law of Contempt, provided only that the restrictions were reasonable.
Articles 129 and 215 of the Constitution explicitly spelt out the power of the Supreme Court and High Courts to punish someone for contempt.
The 1971 law clearly divides different types of contempt. Some of these categories- 1 and 2 (b) – are more obviously justifiable as offences. But the idea that the judiciary can also punish acts that have very little to do with the actual administration of justice and all to do with the impact of speech on the institution’s supposed reputation in the eyes of the public is substantially more problematic.
- Also, the power to punish acts which ostensibly scandalise or lower the authority of the court indicate the sense of insecurity that court might be having.
Discussions on this in the Constituent Assembly:
During the course of drafting the Constitution, there was a marked uncertainty among the framers about the understanding of contempt they were inserting into the Constitution.
- When T.T. Krishnamachari suggested the inclusion of contempt of court as one of the permissible limitations to free speech, many members of the constituent assembly opposed his suggestion right away.
- One of these challengers, Pandit Thakur Das Bhargava, believed that contempt of court was simply not germane to a discussion on freedom of speech and expression. He argued that powers to reprimand contempt concerned only actions such as the disobedience of an order or direction of a court, which were already punishable infractions.
- Speech in criticism of the courts, he argued, ought not to be considered as contumacious, for it would simply open up the possibility of gross judicial abuse of such powers.
Supreme Court’s interpretations:
India’s courts have routinely invoked the long arm of its contempt powers to often punish expressions of dissent on purported grounds of such speech undermining or scandalising the judiciary’s authority. But, while doing so, the court has rarely conducted a strict analysis on whether those acts posed any actual threat to — or interfered in any direct manner with — the administration of justice.
- In its 1996 judgment the Supreme Court ruled that “all acts which bring the court into disrepute or disrespect or which offend its dignity or its majesty or challenge its authority” amount to punishable contempt.
- This judgment changed the meaning of free speech in the Indian context. Some experts argue that this judgment henceforth allowed courts oppose some forms of speech purely by virtue of their content as opposed to any actual anti-democratic harm stemming through their expression.
Amended Contempt of Courts Act:
In 2006, with a view to reducing the breadth of the judiciary’s powers, Parliament amended the Contempt of Courts Act of 1971. The law now provides two additional safeguards in favour of a dissenter-
- One, it establishes that a sentence for contempt of court can be imposed only when the court is satisfied that the contempt is of such a nature that it substantially interferes, or tends to substantially interfere with the due course of justice.
- Two, the truth in speech now constitutes a valid defence against proceedings of contempt, if the court is satisfied that the larger public interest is served through the publication of such content.
In spite of these amendments, courts have continued to routinely equate the supposed scandalising of the judiciary’s authority to an act of contempt.
In spite of the fact that contempt of court is one of the explicitly spelled out restrictions to the guaranteed right to freedom of speech under the Constitution, in a democracy, properly understood, it’s difficult to locate any justification for opposing speech at the face of the judiciary. Punishing speech for supposedly scandalising or lowering the authority of the court falls afoul of whichever rationale we might wish to adopt in our theorising of the abstract right to free expression in India. Hence, the power of contempt should be used sparingly and that too, only against those wilfully subverting justice, and not against critics of the state.