Freedom Of Speech And Expression And Contempt Of

Court
Publications

Abstract: “I will hold you in contempt of court.” We have often come across this statement somewhere. But
do we know about it? The Times of India published a hearing of a two-judge bench of the Supreme Court
noted that the power to punish for contempt was necessary to ‘secure public respect and confidence in the
judicial process.’

Every citizen is granted the freedom of speech and expression which includes them questioning the court,
the judiciary as an institution, and its functioning. While on the other hand, the court has a discretionary
power to punish them back on their statement which lowers the dignity of the court. This clearly shows a
conflict between the contempt of court and freedom of speech and expression but also on the other hand
they are equally important for a democratic set-up as they are made for the benefit of the people.

Contempt of court grants fair administration of justice whereas freedom of speech and expression grants
judicial accountability. In modern times, freedom of speech and expression is considered the mother of all
liberties and is accepted as the essence of society. People use it to write or publish any criticism on the
judiciary which is fair and true without any contempt proceedings. The abuse of liberty of free speech and
expression takes the case towards the law of contempt. The contempt of court is not only exercised to
protect the dignity of the judge but also to protect the administration of justice.

Introduction

Rule of Law is the basic principle to govern any civilized and democratic country.This principle maintains the
supremacy of law, bringing everyone under its control without any subjective discretion. Our imminent
constitution-makers have made certain fundamental rights for the citizens to guide them through and
towards a democratic country. Freedom of speech and expression is mostly considered as the fundamental
fountain-head of democracy. While the freedom of speech and expression is indeed constitutionally
guaranteed fundamental liberties, but they must be exercised responsibly and lawfully.
One very important limitation on these rights is the prohibition against certain acts termed “contempt of
court” as mentioned in Article 19 (2) of the Indian constitution. Regardless of whether contempt is civil or
criminal, the effect is criminal. This is mainly because a person guilty of contempt may either be imprisoned
or fined. The term of imprisonment or the amount of the fine depends largely on the intensity of the
contempt committed. Therefore, a proper balance between the two is very important to achieve democracy.
Now, we will discuss these two topics under different sub-heads.

Freedom Of Speech And Expression

John Milton said- “Give me the liberty to know, to utter and to argue freely according to conscience above all
liberties,” John said that without freedom of human there can be no progress in politics, science, law which
requires free expression of thought.
Freedom of speech and expression is considered as the mother of all other liberties. It is the first condition
of liberty and is widely considered as the essence of society. The first condition towards a free society
includes the unlimited flow of words. Liberty to express thoughts and opinions without any hindrance or fear
has important significance towards the development of society.

Article 19 (1) (a) of the Indian Constitution, guarantees every person of having the freedom of speech and
expression. It is considered as the basic right towards a democratic society. This right is provided to the
people of the country by the constitution-makers but is restricted to the people out of the country, i.e., the
foreigners. The freedom of speech and expression includes the right to express one’s conviction and
opinions freely by words of mouth, writing, pictures, photographs, cartoons, or any other possible mode,
through any communicable medium or visible representation, such as gesture, signs, etc. It includes people
to freely propagate, communicate or circulate one’s opinion or views, before the public in open.

In the case of Union of India v. Naveen Jindal and Others, the court held that the Right to Information is the
essence and part of Article 19(1) (a) because freedom of speech and expression is meaningless without
access to Information. Freedom of speech and expression should, therefore, receives generous support
from all those who believe in the participation of people in the administration. Under English Law, the
freedom of speech and expression is considered of intrinsic importance. It was also held in a case that
freedom of speech and expression serves four broad social purposes, which are:

It helps an individual to attain self-fulfillment;

It assists in the discovery of truth;
It strengthens the capacity of an individual in participating in decision-making; and
It provides a mechanism by which it would be possible to establish a reasonable balance between stability
and social change.

Therefore, it is a settled fact that whenever there is a conflict between the voice of the people and that of the
legislative, the former has to be preferred to the latter.

Other Statutes

Freedom of speech and expression is not only guaranteed by statutes of India but also by many international
conventions like the International Covenant on Civil and Political Rights, European Convention on Human
Rights and fundamental freedoms, and Universal Declaration of Human Rights.

Article 19 of the International Covenant On Civil And Political Rights (ICCPR) states that- “Everyone shall
have the right to hold opinions without interference and everyone shall have the right to freedom of speech
and expression; the right shall include freedom to seek, receive, and impart information and ideas of all
kinds, regardless of frontiers either orally or the form of writing or print, in the form of art, or through any
other media of their choice”.

The French Revolution in 1789 adopted the Declaration of Rights of Man and Citizen. This further affirmed
the Freedom of Speech as an undeniable right. The Declaration of Freedom of Speech in Article 11 states:
“The free communication of ideas and opinions is one of the most precious of the right of the man. Every
citizen may, accordingly, speak, write and print with freedom, but shall be responsible for such abuses of this
freedom as shall be defined by law”.

Contempt Of Court

Contempt of court is regarded as the taboo of the fundamental right of freedom and expression. The fact
cannot be ignored that FREEDOM OF SPEECH AND EXPRESSION is a “sine-qua-non”, i.e., a necessity for a
civilized society having democracy, but also on the other hand the dignity and purity of court must be
protected. Not only the government servants but also all the other persons who are entitled to the freedom
of speech and expression may cross their limit by their professions. This is the main reason behind the
existence of a separate act known as THE CONTEMPT OF COURTS ACT, 1971.

History

Richard C. Brautigam said, “Freedom of the judicial contempt power hat had a long but sordid history.”
In primeval times kings were regarded as the superior of justice and were granted the absolute authority to
hear the cases themselves. The people had no authority to condemn him and criticism, if made was
punishable by the king. But later due to plenty of reasons he delegated his burden of work to a body created
by him, i.e. judges.

The law of contempt of court in India has its origin in the British administration in India. Privy Council in
Surendranath Banerjee’s case observed that: “…a high court derives its power to punish for contempt from
its existence or creations. It is not a power, conferred upon it by law.” In 1926, the Contempt of Court Act
with a motive to bring transparency in the concept of contempt of court and to punish for the contempt of
subordinate courts was introduced.

In India, Contempt of Court is defined under section 2(a) of Contempt of Courts Act, 1971, as civil contempt
and criminal contempt. Article 129 and 215 of the Indian Constitution empowers Supreme Court and High
Court to hold people in contempt and punish them accordingly. Also Section 10 of Contempt of Courts Act,
1971 defines the power of the High Court to punish the contempt of its lower courts.

Types

There are two types of contempt: civil contempt and criminal contempt. Civil Contempt is defined under
section 2(b) of Contempt of Courts Act, 1971 as “willful disobedience to any judgment, decree, direction,
order, writ or another process of a court or willful breach of an undertaking given to a court.” Criminal
Contempt is defined under section 2(c) of Contempt of Courts Act, 1971, “the publication (whether by words,
spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any
other act whatsoever which:

1) Scandalize or tends to scandalize the authority of any court.

2) Interferes or tends to interfere with the due course of judicial proceedings.
3) Obstructs or tends to obstructs the administration of justice in any other manner.”

It was held by the Allahabad High Court in Vijay Pratap Singh v. Ajit Prasad, it was held that “a difference
between a civil contempt and criminal contempt seems to be that, in a civil contempt the purpose is to force
the contemnor to do something for the benefits of the other party, while in criminal contempt the proceeding
is by way of punishment for a wrong not so much to a party or individual but the public at large by interfering
with the normal process of law degrading the majesty of the court.”

In the case of Daphtary v. O.P.Gupta the respondent published and circulated a booklet claiming the
biasness and honesty has been shown by Justice Shah while performing his judicial activity. Mr.
C.K.Daphtary with others filed a petition saying that the booklet has scandalized the judges and brought the
authority of the highest court into contempt and weaken the confidence of people in court.
Therefore we can say anything which could be held under the contempt of court could be one of the factors
to loosen the confidence among the citizen of the country which in turn would affect their decision-making,
thereby affecting the economy as a whole.

Restrictions

Though, the contempt of court itself puts certain restrictions such as:

Restrictions on any sort of writings or speeches made regarding matters pending in the court.
Punishment for defiance by court orders,
Punishment for any sort of attack on the judges or the court.

Balance Between The Two: Freedom Of Speech And Expression And

Contempt Of Court
It is known that both freedoms of speech and expression and contempt of court are vital for a democratic
setup for a country like India. These two are like the two sides of the coin- facing against each other.
The right to freedom of speech and expression as mentioned in Article 19(1)(a) of the Indian Constitution
provides citizens the right to hold and express ideas and opinion; Which implies that they should be allowed
to write, publish and circulate any sort of criticism on the judiciary which is fair and true without any judicial
proceedings. However, this right is not absolute and is subject to reasonable restrictions imposed under
Article 19(2) of the Indian Constitution.

In Maneka Gandhi v. Union of India, Justice P.N. Bhagwati said that, “. If democracy means-government of
the people-by the people-for the people, it is obvious that every citizen must be entitled to participate in the
democratic process, and to enable him to intelligently exercise his right of making a choice, free and general
discussion of public matters is essential.”

On the other hand, the contempt of court act provides the authority to the court to take actions against
those who lower the dignity of the court or interferes with the administration of justice. This precisely is the
conflict between Freedom of speech and expression and contempt of court.
The rights to investigate discuss and comment on judiciary and administrative authority has been a topic
from time to time, and again the issue has been brought up signifying the need to reform the laws related to
contempt of court. The Ex Attorney General, Mr. Soli Sorabjee justified the “criticism of judgment”; he said
that for how severe or painful the laws could be, it is still necessary for the effective functioning of the
judiciary for a democratic country.

In the case of Ambard v. Attorney General of Trinidad and Tabago, Lord Atkin said Justice is not a restricted
virtue, it must be allowed to suffer the clear full examination of respectful, though outspoken, comments of
ordinary men.

The debate of the supreme effect of the contempt law over the fundamental rights under Article 19(1)(a)
has been a flaming issue among reformists, policymakers as well as jurists. In the case of E.M.Sankaran
Nambbodiripad v. T. Narayanan Nambiar, it was held that while Article 19(1) (a) guarantees the freedom of
speech and expression to citizens, Article 19(2) says contempt of court should be precisely avoided by the
citizens while exercising the mentioned fundamental right. The right to freedom of speech and expression
should not be containing the license to make baseless allegations against the judiciary.

The jurisdiction of Contempt of Court is not only extended to protect the dignity of the judges but also to
protect the administration of law from being defamed. Thus, a defamatory statement on any judge may be
liable so far as the judge is concerned and it would be upon him to proceed against the person by taking
proper action if he chooses to do so. But in case of publication of such a defamatory statement dealing with
the interference in the proper administration of law or due course of justice, then the concept of contempt
would be raised. Such a statement will cause injury to the public if it tends to create an apprehension in the
minds of people related to fairness, integrity, and ability of the judge or to discourage the actual and
prospective litigants from placing confidence in the court’s administration for justice.

The Right To Information is all about making citizens informed. Through the RTI, citizens know about
government decisions and the limitations of the country and the government. It promotes transparency and
accountability. In the process, citizens are benefited in two ways — they are getting information through the
RTI and protecting their personal information under the right to privacy.

Information by itself is not power, but it is a necessary first step in the exercise of political and economic
power. The public is only able to truly contribute to the democratic process when they have true and
appropriate information about the activities and policies of the government, and benefits and services that
they must be entitled to, and with this knowledge they are expressing their views, thoughts, and opinions
freely, therefore, creating a basis for natural exchange, allowing both official and the public to take proper
decisions and implement policies properly. This was the main motive of our constitution-makers to include
the Freedom of Speech and Expression as our Fundamental right in our Constitution.

In the case E.M.Sankaran Namboodripad v. T.Narayana Nambiar,(Air 1970 sc 2015) the law of contempt
shall be read without violating the guaranteed freedom of speech and expression under Article 19, and the
intention of making the statement shall be examined in the light of political views as he was at freedom to
put those statement before people.

Therefore, for a democratic society proper balance among these two statutes is very important, i.e. freedom
of speech and expression and contempt of court.

Conclusion
As the above analysis illustrates, there is a significant tension between freedom of expression and the
administration of justice because of the high public interest in maintaining and protecting both principles.
Contempt of court is an exigent part of the judiciary. Besides, the basic principle for a democratic country is
considered to be that the people are the supreme, and all judicial authorities are their servants. Surely, the
supreme has the right to criticize the servant if the servant does not act or behave properly. In a democratic
country, the purpose of the contempt action can only be extended to ensure the proper functioning of the
court.
The power is not to prevent the master, the people, from criticizing the servant, the judges, and other
authorities, if the latter does not function properly or commits misconduct. In other words, the people are
free and have the right to criticize the judges and the authority, but they should not go to the extent that it
makes the functioning of the judiciary extremely difficult.

AUTHOR:

By-Chelsea Gupta (BBA LLB 3RD YR)

Intern at Amicus Qriae.
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