As it is well known there are three pillars of a democracy. Firstly, the legislator is given the responsibility of making the laws for the country. Secondly, the executive is given the duty of implementing these laws and finally the judiciary with the objective of interpreting these laws to bring justice to the wronged party.
In this fast changing technologically equipped world it is seen that tussle between the Judiciary and people’s expression through social media especially through twitter is escalating.
In a short period of time there has been a sur mount of contempt cases (compared to past) coming from tweets. Such as the tweet of Comedian Kunal Kamra, Adv. Prashant Bhushan, Comic artist Rachita Taneja etc., have been placed under scrutiny. The aim of this article is to understand the liability of a statement made by someone over a social media platform and to understand role of Judiciary in saving its sacrosanct character and the belief of people in the core institution of the judicial system.
WHAT IS CONTEMPT OF COURT?
A wilful disobedience resulting in any action or omission of the judicial proceedings which obstructs the administration of justice and causes impediments in the implementation of due course of law, which brings disrespect to the authority of court or brings prejudice in the minds of public can be said to be a contempt of court.
THE PURPOSE OF CONTEMPT JURISDICTION OF COURTS
The Supreme Court bench presided by Justice G.B. Pattanaik, and Justice Umesh C. Banerjee in the case of Murray & Co. v Ashok Kr. Newatia and Anr. (2000) 2 SCC 367 has beautifully explained the purpose of the contempt jurisdiction of the court which can undoubtedly be related to the present day context.
The court held that the purpose of contempt jurisdiction is to uphold the majesty and dignity of the courts of law since the image of such a majesty in the minds of the people cannot be led to be distorted. The respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizen and the entire democratic fabric of the society will crumble down if the respect for the judiciary is undermined.
It is true that the judiciary will be judged by the people for what the judiciary does, but in the event of any indulgence which can even remotely be termed to affect the majesty of law, the society is bound to lose confidence and faith in the judiciary and the law courts thus, would forfeit the trust and confidence of the people in general. RIGHT TO FREEDOM OF SPEECH AND EXPRESSION IN CONNECTION WITH CONTEMPT
The preamble of the constitution of India which is known as the introduction of Constitution encompasses the philosophy and objectives of the whole constitution. It also talks about the resolution made to secure to all its citizen, liberty of thought and expression.
This is contained in the Fundamental rights which are one of the salient features of the constitution. The right to freedom of Speech and Expression is provided under article 19 (1)(a) which reads as “all citizens shall have the right to freedom of speech and expression”.
To get an inclusive understanding of this right the essential elements of it should be seen which has been from time to time interpreted by the court of law.
ESSENTIALS OF FREEDOM OF SPEECH AND EXPRESSION
- The right to freedom of speech and expression is available to the citizens of this country but not to foreign nations.
- It is a right to express one’s opinions, views, convictions & beliefs freely by the words of mouth, writing, gestures, printing, pictures & by whatever mode one pleases.
- However such right is not absolute. The State may by law impose reasonable restrictions on the grounds stipulated under Art. 19 (2). They are
- Security of the State
- Decency or morality
- Contempt of Court
- Friendly relations with foreign states -(Added by 1stAmendment to the constitution)
- Public order (added by 1stAmendment)
- Incitement to an offence (added by 1stAmendment)
- Integrity & Sovereignty of India — (added by 16thAmendment 1963)
In the case of EMS Namboodripad Vs TN Nambiar 1970 AIR 2015 the Ex chief minister of Kerala in a press conference stated thus “the judiciary is an instrument of oppression & suppression, the judges are guided & dominated by the class hatred & class prejudices, constantly favouring the rich against the poor”. It was held that EMS was guilty of Contempt of court & the court thereby imposed a fine of Re. 50 which the Supreme Court confirmed on appeal.
WHAT CONSTITUES A CONTEMPT OF COURT UNDER THE ACT
Every citizen of this country is vested with the right granted under article 19(1)(a) of the constitution. But it is also well established that every right follows a certain restriction and no right is absolute. Anyone can express their views and opinions over any platform but with certain restriction.
To know if the statements or a remark over social media can form basis of contempt, it is first important to understand the meaning of contempt provided under the laws of India. The contempt of courts act, 1971 Act no. 70 of 1971 (hereafter referred as The Act) which was enacted in the Twenty-second Year of the Republic of India states that there are two types of contempt.
In plain words of the legislator “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;It means that if a party, who is directed by the court to follow a certain order, judgment, decree, direction, writ or any other process does not follow the respective order wilfully or chooses not to abide by such direction of court the result of which may injury the rights of the other party, such wilful disobedience or deviance shall be considered to be a contempt of court.
Whereas a “criminal contempt” under the Act means the publication of something may be by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which-
- scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
- prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
- interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner
It should be noted that the word ‘scandalise’ is not defined anywhere in the act which leaves it up to the discretion of the court to give the word an appropriate interpretation.
LIABILITY OVER TWITTER HANDLE
It is seen that there has been a surge of contempt proceedings filed against public personalities in the recent past. As in the case of Kunal Kamra, following tweets made by him were brought to the notice of court:
The question posed over holding contempt on such tweets is that -Can an individual be held liable for a statement made in the social media platform under the provisions of the contempt of courts act 1971 and if so what is the extent of interpretation given to section 2 © of the act. It must be noted that while the attorney general gave consent to initiate criminal contempt proceedings against Kunal Kamra, following was the statement given by him
“ I am in receipt of your request for consent to initiate proceedings by way of criminal contempt against Sh. Kunal Kamra. I have gone through each one of the tweets which you have annexed for consent to proceed by way of extracting below are not only in bad taste but clearly cross the line between humour and contempt of the Court”.
“I find that today people believe that they can boldly and brazenly condemn the Supreme Court of India its judges by exercising what they believe is their freedom of speech. But under the Constitution, the freedom of speech is subject to the law of contempt and I believe that it is time that people understand that attacking the Supreme Court of India unjustifiedly and brazenly will attract punishment under the Contempt of Courts Act, 1972. I therefore grant consent to proceed by way of initiating contempt proceedings against Sh. Kunal Kamra.”
OBSERVATION: The result of such tweets was that the Court decided to proceed with the case of contempt against Kunal Kamra. Furthermore the Attorney General in an interview with Times of India had said that “any move to curb free speech on social media would be very wrong for democracy and if someone misused the freedom, governments and courts had the option of resorting to contempt proceeding”
In the case of Rachita Taneja she was held in contempt for publishing contemptuous posts on social media which allegedly scandalised and undermined the authority of the court. Rachita, who is a 25 year old cartoonist and founder of the comic portal ‘Sanitary Panels’ had made cartoons about the Journalist Arnab Goswami’s urgent hearing and had criticised the court for granting interim relief to the television anchor during the Diwali vacations. Learned Attorney General for India while giving his consent by letter dated December 1, 2020 was seen that while recording his satisfaction stated
OBSERVATION: Likewise it was also seen that the Supreme Court headed by Justice Katju set aside an order of the Punjab and Haryana High court when he was imprisoned for a month because of his critical remarks at a High Court Judge. Later Justice Katju was tried for contempt of court himself for his blog where he criticized the judge of Supreme Court. Earlier In 1981, V. K. Krishna Iyer, a former Supreme Court judge, delivered a public speech in which he criticised the functioning of the judiciary in India albeit such charges were dropped declaring him not guilty.
This was seen in Re Prashant Bhushan and Ors also where the Supreme Court held Adv. Prashant Bhushan liable for making remarks on the Supreme Court and the Chief Justice of India. On taking suo moto cognizance the court noted that
“We are, prima facie, of the view that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of public at large. We take suo motu cognizance of the aforesaid tweet also apart from the tweet quoted above and suo motu register the proceedings. We issue notice to the Attorney General for India and to Mr. Prashant Bhushan, Advocate also.
The Supreme Court found Adv. Prashant Bhushan guilty of contempt of court and charged him with a fine of Re. 1 failing which he will be liable for 3 months simple imprisonment and cancellation of his licence to practice as an Advocate for 3 years.
PREVIOUS RATIO DECIDENDI OF CONTEMPT CASES
It has been seen in the case of Daroga Singh and Ors v B.K Pande (2004) 5 SCC 26 in 2004 that “the apex court has repeatedly warned that the power to punish for contempt is not intended to be invoked or exercised routinely or mechanically, but with circumspection and restraint. Courts should not readily infer an intention to scandalize courts or lowering the authority of the court, unless such intention is clearly established. Nor should they exercise power to punish for contempt where mere question of propriety is involved.”
Also in the case of P.N. Duda vs. P. Shiv Shankar [AIR 1988 SC 1208] the court had held that administration of justice and judges are open to public criticism and public scrutiny. It was held that the Judges have their accountability to the society and their accountability must be judged by the conscience and oath to their office, i.e., to defend and uphold the Constitution and the laws without fear and favour.
It was held in the same case that any criticism about the judicial system or the Judges which hampers the administration of justice or which erodes the faith in the objective approach of Judges and brings administration of justice into ridicule must be prevented. The contempt of Court proceedings arise out of that attempt. Judgments can be criticised, the motives of the Judges need not be attributed, and it brings the administration of justice into deep disrepute.
OBJECTIVE OF THE ACT: The contempt of courts act 1971 in a brief explains the objective of the act which is to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto. It can be observed that the objective of the act is an attempt to lessen the jurisdiction of the courts and regulate the exercise of such power.
But as seen from recent events of contempt against tweets of Kunal karma, Prashant Bhushan, Rachita Taneja etc., it is seen that this power is exercised widely. To properly understand if this right can be exercised extensively and under what grounds it is important to read the relevant section of the act together.
RELEVANT SECTIONS OF THE CONTEMPT OF COURTS ACT 1971
Section 5 states that Fair criticism of judicial act not contempt in case a person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided.
Section 12 talks about the Punishment for contempt of court where maximum punishment can be 6 months of simple imprisonment or fine of two thousand or the accused may be discharged on giving an apology to the satisfaction of the court
Section 13 talks about the Contempts that are not punishable in certain cases -
(a) It states that no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;
(b) The court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.
OBSERVATION: When acts of judiciary are subjected to fair criticism which is bona fide in nature, no contempt can be exercised by the courts. The act of alleged contempt must be of such a nature that it tends to cause impediment in the course of justice but even so truth shall be a defence available to the person alleged with contempt. Furthermore if the court receives an apology to which it is satisfied, such contempt proceedings might be dropped which is solely the discretion of the courts.
THE FOREIGN COURT’S VIEW ON CONTEMPT
Lord Denning in the case of R v Metropolitan Police Commissioner, ex parte Blackburn (№2) an article called a certain judgment of the court a strange example of the blindness which sometimes descends on the best of judges. He also stated that everyone, it seems, is out of step, except the courts.
It was held that the article was critical of court but Lord Denning pointed that “we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us.
We do not fear criticism, nor do we resent it for there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest; we must rely on our conduct itself to be its own vindication.”
It has been seen time and again that a liberal interpretation is taken by the courts in UK regarding the contempt of court. The stand that right to speech of a person is an undoubted right and any criticism cannot be held for contempt.
OBSERVATION: In India, through various many cases it has been seen that the freedom of speech and expression is upheld by the courts as an unwavering right but this expression cannot scandalise the courts. With the advance in technology and the surge of internet connectivity the number of people who have a reach in social media has increased astronomically. Twitter is one such platform where public personalities are more operative. These people have a large audience at hand.
Twitter also has a feature which does not let the person write for more than a number of characters. This makes the statement direct, precise and to the point. The statements made over such platform are available to a hyped number of people and if such statement tends to shake the belief of general public in the institution which is rested with the responsibility of catering Justice it shall been termed as ‘scandalising’ by the court of law.
This is not a sole stance of the judiciary but drafters of this constitution and the law makers have vested this power of contempt upon the courts putting a legal bar on the exercise of right to freedom of speech and expression.
LEGAL BARS ON THE EXERCISE OF 19(1)(a)
- The supreme law of land, under article 129 states that the Supreme 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.
- Article 215 of the constitution confers similar powers to the High Courts. It states that 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.
- Likewise, section 124 A, 499, 500 of the Indian Penal Code & S 12 of Contempt of courts act, 1971 puts a reasonable restriction on the exercise of article 19 (1)(a).
These legal bars are put forth by the drafters of the constitution and lawmakers for proper use of these rights by individuals without interfering or hurting the sentiments of other and for the smooth functioning of the institution established as an organ of democracy.
BY AND LARGE
Information is one of the most important units of living today. This information day by day is being readily available through different platforms. These platforms not only disseminate information but also give the users the prospect of expressing themselves, their views and remarks.
Few of such platforms where expression is exercisable are twitter, Facebook etc. It is well established that no right is absolute including the right to freedom of speech and expression.
The reading of Article 19(1)(a) is complete only when read along with 19(2). The court while exercising its power reasonably draws a difference between right exercise of freedom and the scandalous remarks which tend to bring down the belief of general public in the core establishment of the institution.
The courts have been proactively in this area in the recent past. Finally through legislations and interpretations it has been noted that remarks eroding the authority of the institution of justice in any way cannot be termed as an exercise of free speech.
Originally published at https://www.lawinsider.in on March 6, 2021.