Contempt powers and free speech

BY Rakesh Shukla| IN Media Freedom | 06/04/2010

The power of superior courts to punish for contempt involves two invaluable rights. As the court can and does sentence persons to imprisonment, the fundamental right to life and liberty enshrined under Article 21 of the Constitution gets directly affected. Similarly, the fundamental right to speech and expression integral to democracy and encoded in Article 19(1) (a) comes into play as far as public speeches and publications are concerned. 

The present definition of criminal contempt uses phrases like scandalizing the court, lowering the authority of courts and prejudicing the course of justice. These expressions are inherently vague and leave a lot of scope for arbitrariness dependent on the individual opinions and predilections of the judge and can lead to unreasonable restrictions on freedom of speech.

In fact, the Philimore Committee in U.K. recommended that the branch of law dealing with scandalising the court should be replaced by a new and strictly defined criminal offence. We need to make distinctions between an intention to interfere with the course of justice as opposed to intending to do the act in question. Similarly, contempt law should take on board an intention merely to insult the judge but not to interfere with the course of justice. The offence of criminal contempt should be so constituted to include the component of intention to impair confidence in the administration of justice.

Adverting to another important aspect of the law, despite the motto of "Satyamev Jayate" or "Truth Will Triumph", truthfulness or factual correctness was not considered a defense to a charge of criminal contempt in Indian courts till the amendment in 2006 to the Contempt of Courts Act, 1971. After the amendment the court may permit justification by truth as a valid defense in contempt proceedings if it is satisfied that it is in public interest and the request for invoking the said defense is bonafide. The present position is definitely an improvement, however, besides the difficulties of establishing a fact as true in a court of law, particularly pertaining to behind the scene transactions which necessarily are cloaked in secrecy, the provision still leaves room for arbitrariness in the matter of determining whether the defense of truth to a contempt charge is bonafide and in public interest.

The emerging complex issues involving free speech, restriction on liberty, truth as defence, inclusion of intention to interfere with the course of justice, need to be debated. Instead, criminal contempt jurisprudence seems to be currently frozen in the rather over-simplistic construct of an all-powerful indignant judiciary and a cowering executive, press and populace in our country.

Contrary to popular impression the power of courts to punish for contempt is not for the protection of the individual judicial officers from insult or injury. In the words of Lord Morris in 1973 in contempt proceedings against The Times, "The power summarily to commit for contempt is considered necessary for the proper administration of justice. It is not to be used for the vindication of a judge as a person. He must resort to action for libel or criminal defamation".

Nearer home, Chief Justice Gajendragadkar, while heading a seven-judge bench of the apex court, cautioned against frequent or indiscriminate use of the power of contempt in anger and irritation and observed, "Wise Judges never forget that that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach and by the restraint, dignity and decorum which they observe in their judicial conduct."

For Justice Krishna Iyer, the essential right of the ordinary citizen to get justice was the basis of the power to punish for contempt. He felt that this power should be exercised to render justice to the people. In 1978, Justice Iyer had dropped contempt proceedings in the Mulgaonkar case arising out of the publication of an article in the Indian Express in December 1977 criticizing the role of the Supreme Court during the Emergency. Justice Iyer laid down that, "the third principle is to avoid confusion between personal protection of a libeled Judge and prevention of obstruction of public justice and the community’s confidence in the great process."

Recent instances of the exercise of the contempt powers by the courts need to be placed in the framework sketched out by Judges Morris, Gajendragadkar and Krishna Iyer.

• In April 2001 Wah India, an English periodical brought out an article titled "Judged Out" with marks being given under different heads to judges of the Delhi High Court. The article claimed to be a humble attempt to hold a mirror to the judiciary to bring about meaningful changes in its functioning. An outraged Court hauled up the editor, correspondent and publisher. Even after rendering an unconditional apology, they had to wait on tenterhooks for weeks before they managed to escape imprisonment.
• The apex court had set a deadline for switching to Compressed Natural Gas (CNG) for all commercial vehicles in the capital including buses. Inadequate number of CNG buses lead to riots and protests including burning of vehicles. The Chief Minister made a statement pertaining to ground realities which the Court may not be aware of and was promptly hauled up for contempt.
• The secretary of Peoples’ Union for Civil Liberties (PUCL), the publisher, Managing Editor, correspondent and sub-editor of Hitvada, an English daily from Nagpur were sentenced to six months imprisonment by the Madhya Pradesh High Court. The paper reported the PUCL secretary’s critical comments on the acquittal by the High Court of the industrialists convicted by the trial court in the assassination of the radical trade union leader Shankar Guha Neogi. In appeal, the Supreme Court in 2005 upheld the conviction of the PUCL secretary and sentenced him to one week’s imprisonment.
• Social norms with regard to acceptable restrictions on liberty, the value of free speech in a democracy change over time. In 1972, E.M.S. Namboodripad, then Chief Minister of Kerala, was hauled up for contempt for stating that judges are prey to the biases of their class and are weighted against the exploited peasants and working classes. The defence that the comments constituted fair and reasonable criticism of the judicial system and were protected by the right to free speech was rejected.
• In 1987, the Law Minister, P.Shiv Shankar referred to the elite background of the judges in a speech at the Bar Council of Hyderabad and declared, " Mahadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic cord nowhere in the whole country except the Supreme Court of India. And the bank magnates, the representatives of the elitist culture of this country, ably supported by industrialists, the beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in Cooper case. Anti-social elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their haven in the Supreme Court". The Apex Court took the view that Shiv Shankar had examined the class composition of the Supreme Court. His view that the class composition of any instrument indicates its predisposition, its prejudices did not amount to contempt. Referring to the EMS case, the Court observed that, "times and climes have changed in the last two decades".

However, the view taken by the Apex Court in the Arundhati Roy case in 2002 is in stark contrast to the liberal perspective reflected in the Shiv Shankar case. After the judgement in the Narmada Bachao Andolan case in 2000, there was a dharna protesting the majority judgment outside the Supreme Court. This led to a petition filed against Advocate Prashant Bhushan, Medha Patkar and Arundhati Roy for contempt of court. The petition was eventually dismissed by the Court. However, the Court initiated suo moto contempt proceedings against Roy for the affidavit filed in the case.

The Supreme Court distinguished the earlier case on the specious reasoning that the criticism of the judicial system was made by Mr. P. Shiv Shankar, a person who himself had been a Judge of the High Court, was a Minister and had made studies about the system and expressed his opinion, while Arundhati Roy did not claim to be possessing any special knowledge of law and the working of the judiciary and only claimed to be a writer of repute. The judgment convicted Roy for contempt of court imposing a sentence of one day imprisonment and a fine of

Rs. 2000/-.

The objectionable paragraphs are ironical in the context of the exoneration of Shiv Shankar and the shift in attitude of the Supreme Court and are worthy of perusal:

"On the grounds that Judges of the Supreme Court were too busy, the Chief Justice of India refused to allow a sitting Judge to head the judicial enquiry into the Tehelka scandal, even though it involves matters of national security and corruption in the highest places.

Yet, when it comes to an absurd and entirely unsubstantiated petition in which all three happen to be people, who have publicly ??" though in markedly different ways ??" questioned the policies of the Government and severely criticized a recent judgment of the Supreme Court, the Court displays a disturbing willingness to issue notice.

It indicates a disquieting inclination on the part of the Court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it. 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."  

Rakesh Shukla is an advocate with the Supreme Court of India. He is based in New Delhi.