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Contempt: An Under – Theory of Free Speech

Contempt of Court

‘Contempt’ is a term with dual implications, i.e. general as well as legal. The term ‘contempt’ as regards its general implication, according to Merriam – Webster, is the “lack of respect or reverence for something” [1]. Whereas, a legal characterization of contempt is found in Section 2 of the Contempt of Courts Act, 1971, which provides that ‘contempt of court’ maybe either civil or criminal in nature. It also provides for certain specifications for the demarcation of the criteria for contempt of court. “Contempt, as a civil offence involves wilful disobedience of a court order. Contempt as a criminal offence, on the other hand, involves either an act or expression (spoken, written or otherwise visible) that does one of three things: scandalizes, or tends to scandalize, or lowers, or tends to lower, the authority of any court; prejudices or interferes (or tends to interfere) with judicial proceedings; or otherwise obstructs, or tends to obstruct, the administration of justice”. [2] A bare reading of the Statement of Objects and Reasons of the abovementioned Act illuminates that it is “an Act to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto”. [3]

Relevant Constitutional Provisions

Article 19(1) (a) of the Constitution of India enshrines the right of every citizen of India to profess its freedom of speech and expression.  Whereas, Articles 129 and 215 of the Constitution of India confer upon the Supreme Court and the High Courts, respectively, the power to punish the contemnors for their contempt, whilst not being subject to the provision of Article 19(1) (a).

Article 235 of the Constitution also provides that the High Court shall have control over the judicial system of the subordinate courts under its jurisdiction.

The Controversy

The Controversial aspect in the whole scenario as regards the provisions of Articles 19, 129, and 215 ascends at the question of reconciliation of the said rights and powers conferred by the Constitution. The issue mainly involves a basic differentiation as regards the persons who are subject to the aforementioned provisions.

Whence it’s the question of Article 19(1) (a), it’s a fundamental right illuminating the freedom of every individual to speak and express its views, i.e. the people at large, who in a democracy are vested with the supreme power [4]; while Articles 129 and 215 confer the power to hold someone guilty of their contempt on the Supreme Court and the High Courts, i.e. the judiciary, who are essentially certain persons incharge of serving the people at large by means of judicial assertions [5]. Hence, it may be ascertained here that the above mentioned provisions under Article 19(1) (a) and Articles 129 & 215 may be reconciled only by proclaiming them to be primary and secondary in nature respectively, and by understanding that the point of essence here is that the power of contempt is not one to be exercised at a mere criticism made by anyone for a judge.

International Stance

  • The American Courts have rejected the ideas of preserving the authority of the judiciary via suppression of certain forms of speech as an end in itself, and that the Courts necessarily be insulated to a certain degree, greater than that provided for other government officials. Consequently, it has to be shown that the impugned expression strikes a clear and present danger to the administration of justice, before it being punished.
  • The Law Commission of England, in 2012, recommended certain reforms as regards the power of contempt and the laws relating to it. It expressly suggested the abolishing of the offence of “scandalizing the court”, which was accepted, and hence, the same was eliminated in 2013 (though it does remain in the statute books of some of the commonwealth nations). Further, the Privy Council, in April 2014, circumscribed the interpretation of the aforesaid provision while adjudicating the case of Dhooharika v. The Director of Public Prosecutions[i], an appeal from Mauritius, and held that “there must be a real risk of undermining public confidence in the administration of justice”, and that the Prosecution must prove the intent of the accused or if it was an act of reckless disregard.[6]

The reasoning adopted by the Law Commission was interestingly enough based on the contravening traces of history of the offence in the 18th century England, noting that the language of the expression suggested that “to be impartial”, and “to be universally thought so” are two independent requirements, which implies that the purpose of the said offence is not limited to preventing the public from getting the wrong idea about judges, but that whence there are shortcomings, it’s equally essential to prevent the public from getting the right idea of them. This emerged as a major problem.

It also noted the adverse impact of this provision on the right to freedom of speech & expression, and the infamous chilling effect whereby the people would self- censor even justified criticism, which can be exacerbated by the vagueness of the offence.  It also referred the intent of such a provision as similar to the seditious libel.

Hence, it can be seen here that the United States has rejected far-reaching contempt powers as unconstitutional. England, which created the offence incorporated by India, stopped prosecuting for it in 1931, and abolished it in 2013.

Indian Scenario & Reforms

Post scrutiny of the stance taken by the countries other than India, it has to be stated here, that unfortunately, whence it’s the question of contempt and scandalizing, the Court has adopted the exact chain of reasoning rejected by it in the cases of public order.

The Supreme Court of India, however, has used the provision of Contempt loosely to construct a strict-liability criminal offence, with boundlessly manipulable categories, which is both overboard and vague, entirely inconsistent with its own free speech jurisprudence, and at odds with free speech in a liberal democracy.

Hence, it is concurred that the present law for contempt of court in India should be reformed, defined, and demarcated clearly so as to culminate its interpretation and effect. Moreover, taking reference from the precedents set by the United States, England, etc., a step has to be taken towards understanding the real object of such a provision, and its  relevance and constitutionality in the modern times.

-Yamini Jain, Member, IDIA Pune Chapter

[i] Dhooharika v. The Director of Public Prosecutions, [2014] UKPC 11, 16 (2014).


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