FREE SPEECH v.

CONTEMPT OF COURT- A CRITICAL APPRAISAL

Chippy G. Krishnan*
Vipul Pathak**

ABSTRACT
The paramount role of the judiciary is to secure the rights of citizens and the welfare of society. The transformations in the
judicial system are essential to meet the interests of the ever-evolving society. Therefore, the criticism of judiciary from
the citizenry can prove to be an essential facet behind the reformations.
However, when some one purposely disgraces the judiciary without any logical reasoning or excuse it will lead to
various repercussions for the society, such as; destruction of the faith and respect among others for the judicial system. In
this paper, we would be mainly addressing that the vilification of judiciary on the ground of freedom of speech and
expression or constructive criticism is condemnable.
Keywords: Contempt of Court, Fair criticism, Judiciary, Speech and Expression, Supreme Court.

INTRODUCTION However, it’s of utmost importance to acknowledge that

The object of the discipline enforced by the Court in case when a person makes outrageous comments with the sole
of contempt of Court is not to vindicate the dignity of the intention of derogating the prestige of the judiciary. Then,
Court or the person of the Judge, but to prevent undue there is no room for deriving positive connotations from
interference with the administration of Justice. – Charles such remarks. Therefore, the punishment for contempt of
Bowen, Baron Bowen1. Imagine! What our Nation will court becomes necessary to preserve the faith of other
have to witness if the people are condemning the citizens in the judicial system.
judiciary unjustifiably and brazenly in the name of free Undeniably, the paramount role of the judiciary is to
speech? Truly, such a situation can adversely affect the serve society. Therefore, it is pivotal to acknowledge that
justice administration system because other citizens the Judiciary should duly accept and encourage
might lose faith in the judiciary. The freedom of speech constructive criticism. This type of criticism will enable
and expression is not a safeguard for passing derogatory our judicial system to flourish. More citizens will come
comments on the judiciary. up with their point of views regarding the necessary
Disapprobation towards a judgment doesn't allow modifications in the system. Hence, respecting criticism
passing audacious and outrageous remarks over of citizenry is an essential facet of the responsibility to
Judiciary. Recently, a comedian Kunal Kamra made such serve society. It can also prove to be a way of prosperity.
comments against the Apex Court, when the interim bail Provided the criticism is not mala fide to offend judiciary.
was granted to Republic TV Editor-in-chief Arnab In this study we have addressed the following issues;
Goswami2. This incident has raised a serious concern Whether or not, the freedom of speech and
before the Nation that whether the punishment to such expression extends to contempt of court?
people is crucial to set an example for others that free
Whether or not, the judiciary should stop
speech doesn't extend to the vilification of judiciary.
instituting contempt proceedings?
Well! A large section of people is of the opinion that
The ultimate aim of this study is to advocate that free
judiciary should construe such comments positively.
speech doesn’t extend to contempt of court. Moreover,
People are also advocating for more accountability and
this study emphasizes that constructive criticism towards
transparency in the judicial system. Moreover, the
the judiciary is important for transformations in the
demand for a perspicuous ‘thin line difference’ between
judicial system.
free speech and contempt of court is expanding.
*
Assistant Professor, Centre for Legal Studies – Gitarattan International Business School.Delhi, chippy.krishnan@gitarattan.edu.in.
**
Student, Centre for Legal Studies – Gitarattan International Business School.vipulpathak0002@gmail.com
 WHAT IS CONTEMPT OF COURT? The Supreme Court or High Courts are also authorized to
According to the Contempt of Courts Act, 1971, institute contempt proceedings on its own motion (suo
contempt of court can either be civil contempt or moto)10.
criminal contempt3.
Civil contempt means willful disobedience to any JUDICIAL PRECEDENTS WITH RESPECT TO
judgment, decree, direction, order, writ or other THE CONTEMPT OF COURT
processes of a court or willful breach of an undertaking The remarkable judgments of the Hon’ble Supreme
given to a court4. Court regarding the contempt of court are enumerated
Criminal contempt means the publication (whether hereunder:
by words, spoken or written, or by signs, or by visible I. The Hon’ble Supreme Court while deliberating
representation, or otherwise) of any matter or the doing upon the civil contempt has held that the term willful
of any other act whatsoever which5; under Section 2 (b) of Contempt of Courts Act, 1971
I. Scandalizes or tends to scandalize, or lowers or means an act or omission which is done voluntarily
tends to lower the authority of any court. (or) and intentionally with bad purpose either to disobey
II. Prejudices, or interferes or tends to interfere with, or disregard the law11.
the due course of any judicial proceeding. (or) II. The Hon’ble Supreme Court has established held
III. Interferes or tends to interfere with, or obstructs or that no act of the Parliament can take away the
tends to obstruct, the administration of justice in inherent jurisdiction of the Court of Record to
any other manner. punish for its contempt12.

Contempt of court (civil and criminal) can be punished III. Further, the Hon’ble Supreme Court in the case of
with simple imprisonment for a term which may [Sudhakar Prasad v. Govt. of A. P]13 has reiterated
extend to six months, or with fine which may extend to that the powers of contempt are inherent in nature
two thousand rupees, or with both6. and the provisions of the Constitution only recognize
the said pre-existing situation.Therefore, the
The Contempt of Courts Act, 1971, authorizes courts
provisions of Contempt of Court Act are additional to
to discharge an accused if the apology is made to the
such inherent powers of [Supreme Court u/A 121of
satisfaction of the court7.
the Constitution of India read with Article 142 (2) of
The permission of relevant law officer is required for Constitution] and [High Courts u/A 215 of the
instituting contempt proceedings before the Supreme Constitution].
Court or High Courts when contemptuous words or
IV. Recently, the Hon’ble Supreme Court has declared
acts are alleged to have occurred outside the
Prashant Bhushan guilty of criminal contempt of
courtroom8. The law officers whose consent is
Court by instituting proceedings against him suo
required are9;
moto14. A fine of 1 Rupee was imposed on him.
I. In the case of the Supreme Court: The consent of Failing which would lead him to simple
the Attorney General of India or Solicitor General imprisonment for three months and a ban from
of India is required. practising in the Apex Court for three years15.
II. In the case of High Courts: The consent of the
State's Advocate General is mandatory.

3
https://libquotes.com/charles-bowen/quote/lbh6e0a.
4
A Vaidyanathan & Deepshikha Ghosh, Comedian Kunal Kamra Faces Contempt Charges over Supreme Court Tweets, NDTV, (Nov. 12,
2020),https://www.ndtv.com/india-news/comedian-kunal-kamra-faces-contempt-charges-over-supreme-court-tweets-2324412.
5
The Contempt of Courts Act, 1971, Section 2 (a).
6
The Contempt of Courts Act, 1971, Section 2 (b).
7
The Contempt of Courts Act, 1971, Section 2 ©.
8
The Contempt of Courts Act, 1971, Section 12.
9
Ibid.
10
The Contempt of Courts Act, 1971, Section 15.
11
Ibid.
12
Ibid.
13
A. P. K. Union v. Dharam Godha, AIR 2004 SC 105.
14
Bar Association v. Union of India, (1998) 4 SCC 409.
15
Sudhakar Prasad v. Govt. of A.P., (2001) 1 SCC 516.
WHETHER OR NOT, THE FREEDOM OF WHETHER OR NOT, THE JUDICIARY SHOULD
SPEECH AND EXPRESSION EXTENDS TO STOP INSTITUTING CONTEMPT
CONTEMPT OF COURT? PROCEEDINGS?
Article 19 (1) (a) of the Constitution of India grants the The decision of the Hon'ble Supreme Court of instituting
right to freedom of speech and expression to every suo moto criminal contempt proceedings against Lawyer
citizen16. However, the Hon'ble Supreme Court has held Prashant Bhushan and holding him guilty of contempt of
that the fundamental rights granted under Article 19 (1) of court led to a strong controversy. Many people have
the Constitution are not absolute rights and are subject to opined that the Hon'ble Supreme Court should not resort
the restrictions provided in the subsequent clauses of to contempt proceedings. Instead, it should accept the
article 19 of the Constitution17. criticism positively, so that our judicial systems can
Article 19 (2) of the Constitution enshrines that the become more effective and efficient.
freedom of speech and expression will not affect the It’s per se important to acknowledge that the contempt
operation of any existing law which imposes reasonable proceedings are pivotal for those who are vilifying the
restrictions on the exercise of such freedom in relation to judiciary without any justification or reasonable ground.
the contempt of court18. Moreover, the State is authorized The recent tweets by comedian Kunal Kamra exhibit the
u/A 19 (2) to make such law which imposes reasonable same. Even, the Hon’ble Supreme Court has opined that
restrictions. the judiciary is not only the guardian of the rule of law but
Therefore, the Contempt of Courts Act, 1971 imposes in fact the central pillar of a democratic State. If the
reasonable restrictions on freedom of speech and judiciary has to perform its duties and functions
expression w.r.t. the contempt of court.The free speech effectively and true to the spirit with which they are
will not constitute a defence for criminal contempt of sacredly entrusted to, the dignity and authority of the
court, when the publication (whether by word [spoken or courts have to be respected and protected at all costs22.
written], or signs, or visible representations or otherwise) The contempt proceedings are important to deal with the
of any matter19; miscreants who pass derogatory remarks over the
I. Scandalizes or lowers the authority of the Court. judiciary with mala fide intentions. The various
defencesare provided by the Contempt of Courts Act,
II. Prejudices or interferes with due course of any
1971 in criminal contempt proceedings such as; fair
judicial proceeding.
criticism of judicial act, publishing a fair and accurate
III. Interferes or obstructs the administration of justice report of the judicial proceeding, justification by truth,
in any manner. etc. Therefore, it exhibits that the judiciary is tolerant
The Hon’ble Supreme Court has held that if a citizen, in towards criticism, provided that the criticism is fair and
the grab of exercising the right to freedom of speech and not to vilify the judiciary or judicial system.
expression, tries to scandalize the court or undermines Hence, the constructive criticism is crucial for the
the dignity of the court, then the court would be entitled to betterment and progress of the judicial institution.
exercise power under Article 129 or Article 215 of the Whereas, instituting contempt proceedings is also
Constitution, as the case may be20. Furthermore, the Apex equally important to protect the dignity and authority of
Court has laid down that powers of punishment for the courts, when someone aims to hamper it with ill-will.
contempt under Article 129 of the Constitution of India
INTERNATIONAL JURISPRUDENCE
have to be exercised in consonance with the Contempt of
Courts Act, 197121. Hence, the freedom of speech and The study as to how various countries across the globe
expression doesn’t extend to the contempt of court, which deals with the contempt of court is enumerated
is a punishable offence. hereunder;

16
In Re: Prashant Bhushan and Anr.
17
https://www.scobserver.in/court-case/contempt-petition-against-prashant-bhushan.
18
The Constitution of India, 1950, Art. 19 (1) (a) Protection of certain rights regarding freedom of speech etc. - All citizens shall have the right to
freedom of speech and expression.
19
State of Madras v. V. G. Row, 1952 SCR 597.
20
The Constitution of India, 1950, art. 19 (2)
21
The Contempt of Courts Act, 1971, s. 2 ©.
22
In Re: Arundhati Roy, AIR 2002 SC 1375.
I. Australia: judiciary with mala fide intentions will not be protected
In Australia, a judge may impose a fine or jail for by the free speech and amount to contempt of court.
contempt of court, including for refusal to stand up for Contempt proceedings are important to deal with the
a judge23. miscreants who malign the judicial system without any
II. Unites States: reasonable ground and thuscan never be undermined. In
India, the Contempt of Courts Act, 1971, allows fair
In the United States jurisprudence, acts of contempt
criticism of the judicial act. Such fair criticism is pivotal
are generally divided into direct or indirect and civil or
for the development of the judicial system. Furthermore,
criminal24. Direct contempt is that which occurs in the
there lies a thin line of difference between the fair
presence of the presiding judge. Indirect contempt
criticism and contempt of court. The Hon’ble Supreme
occurs outside the immediate presence of the court
Court has held thatthe fair criticism of the judiciary as a
and consists of disobedience of a court's prior
whole or the conduct of a Judge, in particular, may not
order.Sanctions for contempt can be civil or criminal.
amount to contempt if it is made in good faith and the
For criminal sanction, the contempt must be proved
public interest. To ascertain the good faith and public
beyond a reasonable doubt.The civil sanction for the
interest the courts have to take into consideration all the
contempt is limited in its imposition for so long as the
surrounding circumstances including the person's
disobedience to the court’s order continues.
knowledge in the field of law, the intention behind the
III. England and Wales: comment and the purpose sought to be achieved27.
In England and Wales, the law on contempt was Therefore, when the criticism is in good faith and public
partly set out in common law and partly codified by interest, then it won’t be construed as contempt.
the Contempt of Courts Act, 1981. The contempt is Whether a comment or publication amounts to fair
classified as civil or criminal25. The maximum criticism or contempt of court will be decided on the basis
penalty for criminal contempt under the Contempt of facts and circumstances of each case. The decisions of
of Courts Act, 1981 is imprisonment for 2 years. the Apex Court, such as; (punishing journalist Arundhati
IV. Hong Kong: Roy for contempt of court) or (punishing Advocate
In Hong Kong, the judges from the Court of Final Prashant Bhushan for contempt over his remarks
Appeal, High Court, District Court and members of regarding the present CJI and former 4 CJI of the Apex
various tribunals and Coroner’s Court have the Court); has led to a controversy i.e.(fair criticism v.
power to impose immediate punishment for contempt). Therefore, the thin line of difference should
contempt in the face of the court. Even, the use of be made more perspicuous so that a common citizen can
insulting or threatening language in the Magistrate’s understand that whether his comment will be construed
Courts or against a magistrate is punishable with as contempt of court or fair criticism.
fine and imprisonment of 6 months26. The constructive or fair criticism of the judiciary is
important and must be encouraged by the judicial system.
However, the punishment is equally important for those
CONCLUSION
who misuse the defence of fair criticism or free speech to
The freedom of speech and expression is an essential
offend the judiciary or judicial system for their self-
facet of the Constitution of IndiaIt is guaranteed as
gratification. Therefore, free speech doesn’t extend to the
fundamental rights to the citizens.However, imposing
vilification of judiciary or the judicial system.
reasonable restrictions on it is important to prevent its
misuse.The conduct of passing outrageous remarks over

23
Pallav Seth v. Custodian & Ors., (2001) 7 SCC 549.
24
In Re: Vinay Chandra Mishra, (1995) 5 SCC 584.
25
https://en.wikipedia.org/wiki/Contempt_of_court
26
Ibid.
27
Ibid.
28
Ibid.
29
In Re: Arundhati Roy, AIR 2002 SC 1375.