It was rightly said by John Milton that for establishing any liberal society it is necessary to give the right to freely express their views and opinions to members of the society. It acts as a precursor for the smooth conduct of any democratic society. With this regard, Article 19(1)(a)[1] of the Indian Constitution guarantees the right to freedom of speech and expression to every citizen of our country. Every citizen has the right to freely express his aspersions and convictions.

Freedom of speech and expression also includes the right to criticize any institution.[2] Every authority is the subject for public scrutiny wherein the general mass openly and freely criticize the performance and doings of the authority. It is to be noted that the right to freedom of speech and expression includes freedom of press within its ambit, though not expressly.[3] Press has a very important role to print and publish all the relevant information which is necessary for the general mass to know about. Press also plays a role to present the opinion of general mass to the superior authorities, including criticisms of such authorities. Through such criticism, the answerability of such authorities increases.

Judiciary is also open for public scrutiny wherein the people and the press have the right to comment and criticize any judicial act. Lord Denning rightly said that press acts as a watchdog wherein it observes the fair, open and aboveboard nature of any judicial proceedings.[4] But there might be a situation wherein the criticism would carry the tendency of lowering down the authority of the judge and even obstruct the administration of justice. For this, the Court has the power to punish any such act which tends to demean the value of judiciary with contempt of court under The Contempt of Courts Act, 1971.

The abovementioned assertions bring both, freedom of speech & expression and contempt of court, in conflict. On one side of the coin, freedom of fairly and reasonably criticizing judiciary increases its accountability but on the other side of the coin, the power of punishing contempt of court ensures free and non-obstructed administration of justice.

It is to be understood that free and open criticism increases the accountability of the judiciary towards people. It is widely affirmed that in any democratic society people are supreme. There is no wrong to tag people as the master in a democratic setup wherein all other authorities like government, judiciary, executive, etc. are the servant of the master. Criticism helps the authorities to know where they are lacking in performing their duties and such criticism act as a catalyst for the proper conduct of the country. But, unfortunately, people do not feel that much free to criticize any judiciary because of the fear of getting charged with contempt of court under The Contempt of Court Act, 1971. This act gives unjust power to a court of law to punish any such act which tends to devalue the authority of the judiciary. They have the right to punish any criticism no matter how beneficial it could be for the judiciary for improving its working.

Although Section 5 of the said Act states that fair and reasonable criticism is not to be termed as contempt of court but it is the judiciary only, against whom the criticism is made, to decide whether the criticism is fair and reasonable nature or not. This prima facie violates the principle of natural justice wherein no one can be the judge in its own cause.

Secondly, it is submitted that the contempt of court act is vague and uncertain per se. This could be understood in two different cases. In P.N. Duda v. P. Shankar[5], Union Minister alleged the judges that they are biased toward rich class people. He also claimed all those who violate FERA regulations or are bank defaulters or are zamindars, find heaven in Supreme Court. Contempt of court petition was filed against him but he was not convicted. But, in another case of E.M.S. Namboordripad v. T. Narayan Nambiar[6], the then C.M. of Kerala E.M.S. Namboordripad claimed that the supreme court judges are inclined towards rich class he was held liable for committing the offence of contempt of court. These instances per se show the inconsistency in the law of contempt.

Thirdly, it is contended that no matter the criticism or specifically, the allegation is true, it is on the discretion of the court whether to hold that allegation as contempt of court. In the case of Bathina Ramakrishna Reddy v. The State of Madras[7], the appellant alleged the high court judge to be indulged in bribery and after investigation, it was found that the allegations were true even then the court held the appellant liable for contempt of court. But, in another case of Brahma Prakash Sharma v. U.P[8] when the appellant claimed two high court judges as incompetent in law, the court affirmed with the contention of the appellant and didn’t hold him liable for contempt of court.

Although this confusion was resolved to some extent with The Contempt of Court Amendment Act, 2006 by which truth has been declared as a valid defence for contempt of court but its necessity to be in public interest and of bonafide intention has provided a window to court to exercise the power to punish for contempt of court. This was seen in the case of Court on its motion v. M.K. Tayal[9], wherein an article was published by the respondent in which he said that the sons of former CJI of Supreme Court Y.K. Sabharwal have been operating their commercial business from the official residence of judge. Respondent duly filed affidavits stating that what they have alleged is true and submitted evidence for the same. But, court, taking the window of public interest and bonafide, held the respondent liable for contempt of court

It is interesting to note that Indian judges have been touchier in the cases of contempt of court as compared to English judges. For example, in the case of Balogh v. Court Crown[10], the defendant said to the judge, “You are a humourless automaton. Why don’t you self destruct?” The judge just smiled but didn’t hold him liable for contempt of court. In an instance where a person tagged judges as ‘fools’, Fali S. Nariman asked Lord Templeman that why the person isn’t tried for contempt of court, he answered that they (English judges) don’t take notice of such comments.

It is the judiciary that needs to understand the importance of criticism of any judicial action and not to hold every such act as contempt of court. Lastly, the judge should remember the following words of Lord Denning whenever a case of contempt of court comes in front of them:

“Let me say at once that we will never use this jurisdiction 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.”

[1] Article 19(1)(a) of The Indian Constitution

[2] S. Rangarajan v. P. Jagjivan Ram 1989 SCR (2) 204

[3] Romesh Thappar v. State of U.P. 1950 SCR 524; Brij Bhushan v. State of Delhi 1950 SCR 605

[4] Lord Denning Road to Justice, 78 (1955)

[5] 1988 SCR (3)  547

[6] 1971 SCR (1) 697

[7] 1952 SCR 425

[8]  1954 SCR 1169

[9] 2007(98)DRJ41

[10]  [1975] 1 QB 73

ABOUT THE AUTHOR

Arjit Mishra

Arjit Mishra is a first-year undergraduate law student at Hidayatullah National Law University, Raipur.