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Criticism to Contempt: Freedom of Expression on Social Media

In recent years, the Indian authorities have increasingly used criminal laws, including for counterterrorism,  sedition, and criminal defamation, against peaceful dissenters, journalists, rights activists, academics, and  students. Contempt of court is one such law and is sui generis and traces its root from the inherent powers  of the court that must be invoked in extraordinary circumstances to meet the end of justice. The Traditional  media and other social media platforms are mainly concerned with Criminal Contempt. According to  Section 2(c) of the Contempt of Courts Act 1971, criminal contempt is defined as; any publication (of words,  

spoken or written, or by signs, or by visible representation, or otherwise) of any matter which (i) scandalizes  or lowers the authority of any court or (ii) prejudices, or interferes with the due course of any judicial  proceeding or with the administration of justice in any other manner. A publication which attacks individual  judges or the court as a whole with or without reference to a particular case, casting unwarranted and  defamatory aspersions upon the character or ability of the judges, has also been recognized as scandalizing  the Court. Similarly the Courts have time and again held that, liberty guaranteed under Article 19 of Indian  Constitution is not to be conferred with license to make unfounded, unwarranted and irresponsible  aspersions against the judges or the courts in relation to judicial matters 

In a new tussle between freedom of speech, contempt and the Supreme Court’s legitimacy, in (i) Prashant  Bhushan Case. The Supreme Court initiated suo moto criminal contempt proceedings against Advocate  Prashant Bhushan and Twitter India, on the basis of two tweets posted by Bhushan on the social media  platform on June 27 and June 29. The reasoning for initiation of proceedings was- Mr. Bhushan, wilfully  and deliberately using hateful and scandalous speech by means of Twitter, against the Supreme Court and  the judicial system. The Supreme Court had imposed a token fine of ₹1 on Mr. Bhushan for his tweets  against the judiciary. His first tweet, reproduced in the court, said: 

When historians in the future look back at the last six years to see how democracy has been destroyed  in India even without a formal Emergency, they will particularly mark the role of the SC in this  destruction, and more particularly the role of the last four CJIs.” 

His second tweet said: “The CJI rides a Rs 50-lakh motorcycle belonging to a BJP [Bharatiya Janata  Party] leader at Raj Bhavan, Nagpur, without wearing a mask or helmet, at a time when he keeps the  SC on lockdown mode denying citizens their fundamental right to access justice!” 

The Second case is of (ii) Comedian Kunal Kamra- wherein Attorney General K.K. Venugopal granted  consent to initiate contempt of court proceedings against Comedian Kunal Kamra for his tweets criticizing the Supreme Court for fast-tracking the hearing of Republic TV Editor-in-Chief Arnab Goswami’s bail  appeal. Kunal Kamra posted four tweets after Arnab Goswami was granted interim bail in a 2018 abetment  to suicide case, with one of them showing a picture of the Supreme Court building swathed in saffron  color with the BJP flag flying atop it. 

The criminal contempt cases against Prashant Bhushan and Kunal Kamra offer an opportunity of  introspection to the judiciary and simultaneously raise questions over the legitimate/reasonable exercise  of freedom of speech by citizens. To quote Lord Denning “We do not fear criticism, nor do we resent it”  Therefore during contempt processing the primary aim of the jurisdiction should be to protect the dignity  of the court and the due administration of justice and then to uphold the personal dignity of the Judges.

Criminal Contempt: A Legal Point of View

Miss. Vidhi Dugad, Mumbai University.

Contempt of Court is a phrase that should be understood by interpreting the word- ‘contempt’. Contempt in simple words means disgrace or disrespect. The Judiciary holds an esteemed position in law, especially in the Indian Legal System. The Indian Legal System is based upon the principle of Rule of Law which means that the law is supreme. In such a state the judiciary is given even more importance because it is considered to be the guardian of laws[i].

The laws for contempt of court exist not to protect the judges or courts but to protect the justice system itself[ii]. The powers to punish for contempt are provided to the courts by the Constitution of India under Article 129[iii] which states that “The Supreme Court of India shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” Furthermore, Article 215[iv] states “High Courts to be courts of record. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” Therefore, the High Courts and the Supreme Court, both have the powers to punish for contempt.

As stated in The Contempt of Courts Act, 1971 S.2(a), there are two major types of contempt:

  1. Civil Contempt[v]

Civil Contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. Therefore, violation of any directions ordered by the court may amount to civil contempt.

  1. Criminal Contempt[vi]

This type of contempt is a more serious one and it is more difficult to determine. There are three things that may constitute as criminal contempt- scandalizing or lowering the authority of a court, prejudicing a judicial proceeding, and obstructing or interfering with administration of justice[vii]. Doing any act or publishing anything which has the above mentioned results amounts to criminal contempt.

Even lawyers are not excused in cases of contempt. For better understanding, we can look at the case of Jaswant Singh v. Virender Singh[viii]. In this case, there was a transfer petition filed which set up a serious allegation on the learned judge and his discharge of judicial functions. The Honourable Supreme Court in this case held that the claims and language used was not only derogatory but it also interfered with the conduction of a fair trial. Therefore, the lawyer was held in contempt. A similar verdict has been upheld several other times in very recent cases where judges have taken suo motu action against advocates who make derogatory allegations against judges[ix].

Media is regarded as the medium that voices public opinion and at the same time brings knowledge of the routine world to the people. However, sometimes the phenomenon of media trial arises. This term- ‘media trial’ is the idea that before the court passes a judgement, the accused has already been tried by the media in a public sphere and has been declared guilty. The Supreme Court of India in certain cases has referred to ‘trial by press’ as a ‘miscarriage of justice’[x]. In the case of M.P. Lohia v. State of W.B[xi], the Supreme Court went as far as warning the editor and writers that their articles would affect the case. Media Trials not only hinder the administration of justice, they also violate the principle of ‘innocent until proven guilty’[xii].

Time and again several cases of criminal contempt have been initiated and most of them have been ruled against the accused. In the Arundhati Roy Case[xiii], based on a statement worded- “By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm” in Ms. Arundhati’s Affidavit, contempt of court proceedings were initiated against her. She responded to this by further criticising the court at several instances. Ms. Arundhati Roy was in the end punished for contempt. This case raised a lot of question on the contempt of court laws and their relevance today.

The most recent case of criminal contempt that has moved the minds of masses is the Prashant Bhushan Case[xiv]. Mr. Prashant Bhushan- a Senior Advocate practicing in the Supreme Court of India made two tweets on twitter. One was regarding the Chief Justice of India riding an expensive motorcycle without mask while the Supreme Court was closed due to the pandemic and a second one regarding how the democracy that is India was being destroyed with reference to the Supreme Court and past four CJIs. The Supreme Court took suo motu cognizance of this case. In the defence of Mr. Prashant Bhushan, it was argued that the first tweet was just a statement to show distress over the fact that the Supreme Court of India was not functioning which violates the citizen’s rights, where meanwhile the Chief Justice of India was enjoying without wearing a mask in times of Covid-19. It was said that if this was contempt the fundamental rights under Art. 19(1)(a)of the Constitution of India[xv] would be violated.

For the second tweet the defence argued that the tweet was a ‘bona fide opinion about the situation in the country’ by Mr. Bhushan. It was further argued that there was no basis for contempt of court accusation because all statements made were at the judge as a private individual. The defence further argued that the decision of the court be given after considering the situations and circumstances surrounding the facts and not only on the basis of the statements made. However, the final decision of this case came with a guilty verdict with a fine of Rs. 1/-.

Exceptions:

There are certain exceptions to contempt of court. Most of them are mentioned in The Contempt of Courts Act, 1971:

  1. S. 3: Innocent publication and distribution of matter not contempt[xvi]. This means that if a person publishes something regarding a case or proceeding or interferes with the process of justice in an ongoing proceeding but has no reasonable grounds to believe that the proceeding is ongoing, they cannot be held in contempt for it,
  2. S. 4: Fair and accurate report of judicial proceeding not contempt[xvii]. and
  3. S. 5: Fair criticism of judicial acts not contempt[xviii]. Which means that comments or criticism on case, judgements, orders, or judicial decisions that have already been decided will not amount to contempt.

Conclusion:

Contempt of court has become a controversial topic overtime; especially criminal contempt. We have observed this in the Arundhati Roy[xix] case where there was a lot of opposition towards the guilty judgement. Furthermore, the contempt of court law is becoming increasingly redundant in other nation states. In England itself, from where India has inherited this law, courts are refusing to peruse contempt cases[xx]. The effect that Contempt of Court has on Freedom of Speech and Expression should not be ignored either. Contempt of Court is a reasonable restriction that can be imposed on the fundamental right guaranteed under Art. 19(1)(a). Therefore, it is important to analyse contempt from the perspective of a restriction especially after the Prashant Bhushan case[xxi] where Mr. Bhushan seeks a right to appeal[xxii]


[i]Spadika Jayaraj, Judicial Accountability and Contempt of Court: Comparing India with U.K., the U.S.A. and Singapore, 1.1 CALQ (2013) 18.

[ii]Attorney General v. Times Newspapers, [1973] 3 W.L.R. 298.

[iii] INDIA CONST. art. 129.

[iv] INDIA CONST. art. 215.

[v] Contempt of Courts Act, 1971.

[vi] supra

[vii] Id at 5

[viii] Jaswant Singh v. Virender Singh, 1995 Supp (1) SCC 384.

[ix] Re: Ajay Kumar Pandey, (1996) 6 SCC 510.

[x] State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386.

[xi]  M.P. Lohia v. State of W.B, (2005) 2 SCC 686.

[xii] Anukul Chandra Pradhan v. Union of India, (1996) 6 SCC 354.

[xiii] Re Arundhati Roy, (2002) 3 SCC 343: AIR 2002 SC 1375.

[xiv] Re Prashant Bhushan, 2020 SCC OnLine SC 646.

[xv] INDIA CONST. art. 215, cl. 1(a).

[xvi] Id at 5

[xvii] Id at 5

[xviii] Id at 5

[xix] Id at 13

[xx] A.P. Shah, The chilling effect of criminal contempt, The Hindu (JULY 27, 2020 00:45 IST), https://www.thehindu.com/opinion/lead/the-chilling-effect-of-criminal-contempt/article32198138.ece.

[xxi] Id at 14.

[xxii] Legal Correspondent, Prashant Bhushan case | Plea to uphold right of appeal in contempt case, The Hindu (SEPTEMBER 13, 2020 08:28 IST), https://www.thehindu.com/news/national/prashant-bhushan-case-plea-to-uphold-right-of-appeal-in-contempt-case/article32589978.ece.