The Supreme Court of India while holding 3 people guilty on the 27th of April 2020 in their attempt to scandalize them Court made the remark that knowledge in a particular field is of prime importance before criticizing the Judges of a highly reputed Institution. The Court observed that certain ethics are to be maintained while a citizen criticizes the judiciary. They must themselves have “some standing and knowledge in the field before challenging the integrity and questioning the capability and impartiality of a judge of the highest court of the country.” Each citizen has the freedom to speak and express their discontent in view of the certain judgment of a court. However, the extent of freedom should not cross the boundary to question the competency of Judges and if it threatens the pillars of administration of justice, reasonable restrictions can be put by the court.
Justice Katju has pointed out that the judges in democracy stand at the higher pedestals where they need not show their majesty and that they derive their interest from public confidence.
The observation made by Lord Atkin that “Justice is not a cloistered virtue” still stands firm and has been used multiple times by the Supreme Court while delivering judgments on Freedom of Speech and Expression.
India has adopted its Contempt of Court Act from English laws. It traces back its origin to an observation made by J Wilmot in 1765 while delivering judgment and explained that the power of contempt is an essential feature to protect the sovereignty of the court and honor of those who deliver Justice. In a lack of such protection, the dignity and prestige of institutions will be compromised. [R. v. Almon, Wilm. 243, 97 E.R. 94 (1765).].
In India, contempt is classified under two heads, Civil and Criminal, but what is interesting to observe is that the procedure of the case has nothing to do with the classification but then it is the nature of such cases that defines under which head contempt falls. The Constitution of India guarantees power to the Supreme Court and the High Court to act as Court of Record and punish people for their particular contempt under Article 129 and 215, respectively. For the same purpose, the Contempt of Court Act was passed in 1971 to deal with such cases.[i]
If the order of the court is not adhered to or the individual willfully neglects to act on the basis of an order passed by the court, the court can take an action for Civil Contempt and charges against Criminal Contempt are pressed if an individual creates a ruckus during the proceedings pending in the court, which causes a delay in judgment by means of actions or words written or spoken.
Scandalizing the court means creating such apprehension in the mind of people by words spoken or written which creates doubt and lowers the dignity of those who are responsible for delivering justice or attacks the dignity of the judges by contumely the character of such Judges. It leads to loss of confidence of public vested in the Court and threatens the integrity of the system which works on public confidence.
Freedom of Speech and Expression guarantees the right to criticize the action taken by the Court and to publish such criticism by means of the press under Article 19 of the Constitution (Dr. Brij Bhushan v. the State of Delhi, AIR 1950 SC 129). The Court, in order to maintain the independence of the judiciary, penalizes such citizens who pose a threat to it. This is where the conflict arises.
Justice P.N Bhagwati discussed the importance of Freedom of Speech and Expression in the case of Meneka Gandhi v. UOI and held that for a democracy to work efficiently inclusion of the opinion of the public is substantial to check the power of the State.[ii] The same has been cherished in the article by Justice Markandey Katjuwhere he settled the principle by Abraham Lincon that the State in a democratic nation is for the welfare of the people. Justice Katju further added that the function of Judges is to serve the citizens of the country and they are not masters but servants of the public. The efficient functioning of the Judiciary shares a symbiotic relationship with the public and derives the power from the confidence which the people of the country vest in it. Thus, the fundamental right of the people to criticize the act of Judges under freedom of Speech and Expression is primarily followed by the power of the Court to punish for its contempt.
It is, therefore, in this pretext that it is pertinent here to mention one of the occasions where F. Nariman was explained by Lord Templeman the logic behind lack of contempt laws followed by the Judges in England. On an insulting comment made by a newspaper Judges has a duty and greater responsibility to dispose of justice in all circumstances, Templeman remarked that unjustified opinion and remarks made by a newspaper cannot define the character which a Judge has built through years of practice and therefore personal insults are best ignored.
The uncertainty and arbitrary judgments by the Court have further complicated the Contempt laws. The contrasting opinion in the judgments of E.M.Sankaran Nambbodiripad v T. Narayanan Nambiar and P.N. Duda v. P. Shiv Shankar having similar facts creates a lacuna in the law and has attracted criticism for misuse of power. The Court, on one hand, absolved the Law minister P. Shivshankar for making derogatory remarks in the presence of the press while on the other hand charged Minister Nambbodiripad for scandalizing the court for his statement that “Court seems to have a soft corner for the powerful”. There have been numerous other instances where the Court has taken contrasting steps to charge an individual with Contempt of Court and absolve another from all the charges. This only creates uncertainty in law and calls for a reformation of Contempt Laws to protect the Right to Speech and Expression by revising the existing Contempt of Court Act, 1971.
An Attempt by Court to Resolve Conflict
While delivering, the recent judgment the Court upheld that call for active criticism of action taken by the Court is appreciated. However, the reasonable restriction that can be imposed on such exercise of Freedom of Speech and Expression is no exception. The court confirmed that the present Act contains provisions to protect the “bonafide contemnor” under sections 3 to 5 for such statements which are made in good faith and the public good. But when such statements actively attack a Judge and question the qualification of a Judge, it cannot be said to be made in good faith. Any attack on the Institution which lowers its dignity is ought to be punished if public confidence is lost. The loss of public confidence in the death of independence of the Judiciary as the institution derives its power from such confidence. It is perhaps a feature of the inefficient mechanism of justice delivery that the court needs to protect its Independence and hence, the Contempt Laws form an essential part of the country.
The Supreme Court, in the case of Ram Dayal, held that such publications that contravene with law and administration of justice are to be treated as contempt.[iii] In this respect, Justice Katju has rightly opined that the purpose of contempt laws is not to restrict or inhibit Freedom of Speech and Expression but only to assure that the public maintains its faith in the system.[iv] While deciding the recent judgment, the Apex Court pointed out that citizens are free to criticize the judges as they are no different than citizens[v], but the language of the criticism must not hide any ulterior motives and should be cushioned with respect. Further, when such criticism comes from the member of the Bar, it threatens the integrity of the system. Under such circumstances, the court cannot go blind in an attempt to ensure freedom at the cost of loss of public faith not only on an individual judge but the entire system.[vi] The court further quoting In Re: Arundhati Roy [vii] observed that citizens must have certain knowledge and standing in the field of matter in question before questioning the competency Judge or it will destroy the institution.
While dealing with the issue of Freedom of Press under Art. 19(1)(a), the judges have surmised that such freedom does not go unrestricted even if it stands as a communicator between the government and public (In re Hiren Bose AIR 1969 Cal 1 ¶ 8). It has been established that the press indeed acts as the fourth pillar of democracy. (Printers Mysore Ltd. v. Asst. Commercial Tax Officer, (1994) 2 SCC 434 ). However, the press has no special rights and enjoys the rights and protection of that of a citizen. Thus, freedom granted to the press must be used cautiously and should not be associated with a license to make misleading and capricious remarks against the judiciary.[viii]Further in the case of Lokanath Mishra v State of Orissa[ix], the Court held that scandalizing(C.K. Daphtary v. O.P. Gupta, AIR 1971 SC) news shall be restricted in a view if it threatens the independent nature of Judiciary which has to work fearlessly.
The Supreme Court is the guardian of Fundamental Rights and protector of Justice. Contempt of Court ethics is invested in public interest similar to Fundamental Rights. It is to be concluded that Freedom of Press has been included in Art. 19(1)(a), although such freedom is restricted. It should not be forgotten that with any freedom comes attached the duty to use it judiciously and if remained unchecked, the power can be noxious. Both freedom and restriction balance the power to ensure that the confidence of the citizen is not shattered as it will in turn threaten the survival of democracy. The Court’s power to contempt has been used rarely in view of the fact that the court is accountable to the masses and it must remain impervious of personal attack unless the dignity of the institution is undermined. When the knowledge and ability of a judge are questioned, it tarnishes the institution and lowers the respect of the Court in the eyes of the public.
The Constituent Assembly has drafted the Constitution in such a manner that it leaves a slim chance of injustice and the Court time and again has been successful in ascertaining the loophole, interpreting the law in a fruitful manner, and fostering the same in the society without any further loophole. Thus, we can wrap up by summarizing that the Freedom of Speech and Press regarding criticism of Judiciary assures responsibility of the judges for their own acts on one hand whereas the power to contempt safeguards the Judiciary, guaranteeing impartial administration of justice.
[ii]Maneka Gandhi v. UOI, AIR 1978 SC 597 (India).
[iii]Ram Dayal v. State of UP, AIR 1978 SC 921 (India).
[iv] Markandey Katju, Contempt of Court: Need! for a Second Look, The Hindu, January 22, 2007.
[v]P.N. Duda v. P. Shiv Shankar, (1988) 3 SCC 167 (India).
[vi]SMC(Crl) No. 2 of 2019 (India).
[vii](2002) 3 SCC 343 (India).
[viii]C.K. Daphtary v. O.P. Gupta, AIR 1971 SC 1132 (India).
[ix]1999 CriLJ4719 (India).
This article has been co-authored by Aastha Singh and Piyush Raj from Chanakya National Law University
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