Freedom of speech under the Indian Legal System
Article 19(1) (a) states that all citizens shall have the right to freedom of speech and expression. But this right is subject to limitations imposed under Article 19(2) which empowers the State to put ‘reasonable’ restriction on various grounds, namely, security of the State, friendly relations with foreign States, public order, decency and morality, contempt of court, defamation, incitement of offence, and integrity and sovereignty of India.
Contempt means showing disrespect to the dignity or authority of a court. According to the Contempt of Courts Act of 1971, contempt can be divided into civil and criminal contempt. Civil contempt refers to the wilful disobedience of any order, judgment, direction, or other process of a court or wilful disregard of an undertaking given to a court whereas Criminal contempt means disrespecting any court through publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act which:
(i) scandalises or lowers any court. ‘Scandalising the Court’ broadly refers to statements or publications which have the effect of undermining public confidence in the judiciary.
(ii) prejudices, or interferes in the due course of any judicial proceeding;
(iii) interferes or obstructs the administration of justice in any other manner.
Courts’ immunity to criticism
A person can not be punished for contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided. Truth published with a bonafide intention in public interest has also been declared as a valid defence for contempt of court according to the amendment made in The Contempt of Courts Act in 2006.1
Hence, The judiciary of India is not immune from criticism but when that criticism is based on obvious distortion or gross misstatement and made in a manner which is designed to lower the respect of the judiciary and destroy public confidence in it, it can be brought under the ambit of The Contempt of Courts Act, 1971. 2
Contempt to court an infringement to the Right to freedom of speech
Recently, the Supreme Court of India held lawyer Prashant Bhushan guilty for contempt of court on the basis of his tweet on the Supreme Court. The Court while pronouncing the judgement said that a citizen has the right to freedom of speech and expression under Article 19(1) of our Constitution. So, a citizen is allowed to make a fair criticism of a judge, judiciary and its functioning. If a constructive criticism is made in order to enable systemic correction in the system, the Court will not look into the issue of contempt.
However, the right to speech has certain reasonable restrictions, and an attempt has to be made to properly balance the right and the restrictions. The Court held that if a citizen exceeds the limits and makes a statement which tends to scandalize the judges and institution of administration of justice, such an action could be considered as contempt of court.
Further, the Court said that if a citizen makes a statement which tends to undermine the dignity and authority of the Court, or a statement which tends to shake the public confidence in the judicial institutions, this will come within the scope of ‘criminal contempt’.
When a statement is made against a judge as an individual, contempt of court will not apply. However, when the statement is made against a judge as a ‘judge’, and which has an adverse effect in the administration of justice, the Court can look into the issue of contempt of court. The Supreme Court analysed Prashant Bhushan’s tweet and expressed that the tweet is against the entire Supreme Court in its functioning of the last six years, thus tending to create disrespect for the authority of the Court. Read more here.
- The Contempt Of Courts (Amendment) Act, (No. 6 Of 2006).
- In Re: S. Mulgaokar vs Unknown on 21 February, 1978, 1978 3 SCR 162.
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