Freedom of circulation and propagation of Ideas

Propagation of ideas and circulation of information is part and parcel of democracy and it is essential, as the Supreme Court held in Sakal Papers v. Union of India, for the “proper functioning of the processes of democracy”. In this article, the author will look into Article 19(1)(a) with respect to freedom of circulation and propagation of ideas as a Fundamental Right under the Indian Constitution. The availability of various ideas in the marketplace without any interference from the State strengthens the foundations of democracy. People can only have informed debates on the issue of “great importance” when the information is readily available through various portals to the public. With this context, the author will analyse two important judgments of the Supreme Court on this point of law.

Locating the Right to Freedom of Circulation and propagation of Ideas

In Sakal Papers case, the basic issue was constitutionality of Newspaper (Price and Page) Act, 1956 and the Daily Newspaper (Price and Page) Order, 1960. The objective of these laws was to “regulate the prices charged for newspapers in relation to their pages” which was ostensibly done to “prevent unfair competition” and give “fairer opportunities” to all the other newspapers. The petitioners contended that through these laws the selling price of their newspapers will increase for their readers, if they want to retain the same number of pages as they are currently distributing, which will lead to an adverse effect on their circulation. Otherwise, if not to increase the selling price, the newspapers will have to reduce the number of pages which will infringe their right to circulate and propagate ideas. The five-judges bench of the Supreme Court noted in Paragraph 26 that,

26. A bare perusal of the Act and the Order thus makes it abundantly clear that the right of a newspaper to publish news and views and to utilise as many pages as it likes for that purpose is made to depend upon the price charged to the readers. Prior to the promulgation of the Order every newspaper was free to charge whatever price it chose, and thus had a right unhampered by State regulation to publish news and views. This liberty is obviously interfered with by the Order which provides for the maximum number of pages for the particular price charged.

The Supreme Court explicitly held in 1950 in the case of Brij Bhushan v. The State of Delhi that there is no mention of freedom of press in the Constitution, but it falls within the ambit of Article 19(1)(a)—that is freedom of speech and expression. In the Sakal Papers case, the Supreme Court while focussing on this Right under the Indian Constitution, held that “The right to propagate one’s ideas is inherent in the conception of freedom of speech and expression.” Having said this, the Court then held two other important and allied rights, that are, the propagation of ideas can be done either by word of mouth or by writing and the volume of the content published. A citizen has a right to publish whatever she pleases (matter does not matter, unless it lies within the ambit of clause 2 of Article 19) and in any amount she pleases. Any restraint placed on these rights is a violation of Article 19(1)(a). The Order and the Act of the government was held unconstitutional by the Court as they infringe the press’ right to publish their ideas and the volume of the matter they are publishing. The court said in paragraph 27 that,

It cannot be gainsaid that the impugned order seeks to place a restraint on the latter aspect of the right by prescribing a price page schedule. We may add that the fixation of a minimum price for the number of pages which a newspaper is entitled to publish is obviously not for ensuring a reasonable price to the buyers of newspapers but for expressly cutting down the volume of circulation of some newspapers by making the price so unattractively high for a class of its readers as is likely to deter it from purchasing such newspapers.”

Furthermore, the Courts must ensure that the fundamental rights are not to be interpreted narrowly and they must not be “cut down by too astute or too restricted an approach” (see LIC v. Manubhai D Shah). In Manubhai D. Shah, the Court held that a citizen has a right to propagate an idea through “the print media or any other communication channel example the radio and the television”. Circulation of ideas is very important for a healthy democracy as it enables the citizens to gather information and build opinions. The Court held in paragraph 8 that, “freedom to air one’s views is the life line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship.

In Manubhai D. Shah, the Court while building upon the freedom to propagate ideas held that a citizen also has a right to reply/rebut to a criticism levelled against the view propagated by him. Hence, any restriction on speech and expression apart from Article 19(2) on a citizen’s right is a threat to democracy. Further, the restrictions must not be interpreted so widely that it infringes upon the citizens’ right and dilutes the whole purpose.

Conclusion

Authoritarian governments use various penal laws like the draconian UAPA, Sedition (Section 124A of the Indian Penal Code), National Security Act etc., to infringe citizens freedom of speech and expression under the garb of ‘reasonable restrictions. These penal laws have stringent punishments and bail conditions that are restrictive which impedes the courts from granting bail. Although the courts have championed civil liberties despite such stringent provisions for bail, the courts have looked into the accusations more diligently and judicially. The recent ‘toolkit’ incident is a classic example to portray the government’s use of sedition laws to shut dissent and deter informed citizens from critiquing government’s policy.

Read more on democratic backsliding in India here. Here, the author discussed why there must be a push for free media and ‘citizens as watchdogs’ to put the elected executives under strict scrutiny especially under the present government.

Hate Speech vs Free Speech: Where is the current strongest?

[This is a post by Diksha Dadu, Contributing Member]

In this blog, I will be focusing upon the legal provisions with respect to the concept of Hate Speech by critically analyzing Indian precedents and certain foreign judgments to differentiate between discussion and the advocacy of incitement acts which are considered prejudicial to maintenance of peace and harmony. Furthermore, I will be enunciating upon an effort to find a transformative yet harmonious approach in relation to hate speech on Freedom of Expression and examining the restriction thereof, followed by the conclusion.

Introduction

“…[T]hat the law shall be certain, and that it shall be just and shall move with the times.”Lord Reid, Judge as Law Maker

The disparity in jurisprudence on hate speech has been considered as remotely distant in Indian Constitutional Law while the terrain of free speech still remains a contested field. “Hate speech is termed as the speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence”, as defined by Black’s Law Dictionary. According to Article 19(1)(a), the right to freedom of speech and expression is granted to every citizen of democratic India. However, the constitution also provides for the reasonable restrictions against free speech in the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence under Article 19(2) of The Constitution of India. The 2017 Law Commission Report, No. 267 recommended the introduction of new provisions within the penal code that specifically punish incitement to violence in addition to the existing ones while examining the scope of hate speech laws in India. Moreover, free speech is considered quintessential for every democracy to work efficiently. The doctrine of free speech has evolved as a bulwark against the state’s power to regulate speech. The liberal doctrine was a measure against the undemocratic power of the state.

Thus, this gives us an inference upon the reflection and attitude of our legislature and the juncture of decision making by the judiciary towards the issue of hate speech and the real extent of its reasonable restrictions thereof.

Hate Speech: Regulations and Legal Provisions in India 

In a democratic country like India which possess diverse communities of people, castes, creed, religions and languages as its unique nature, the principle of autonomy and free speech does not malign properly and wholly. This idiosyncratic nature of our Indian structure is one of the greatest challenges before the principle of autonomy and free speech principle. There is a constant battle of opinions to ensure that this liberty is not exercised to the detriment of any individual or the disadvantaged group or section of the society. 

As per the Indian Penal Code, the concept of hate speech constitutes under Section 153A, which is the offence of promoting communal disharmony or feelings of hatred between different religious, racial, language or regional groups or castes or communities, Section 153B of the Indian Penal Code, 1860 categorizes the offence of promoting religious, racist, linguistic, community or caste hatred or incites any religious, caste or any other disharmony or enmity within India, through any speech either in written form or spoken, Section 298 also classifies the offence of uttering words with the deliberate intent to wound the religious feelings of any person, Section 505 similarly criminalizes the act of delivering speeches that incite violence. As per the Representation of the People Act, 1951, Section 123(3A) also criminalizes hate speech of candidates contesting elections. 
In 2014, a Public Interest Litigation was filed before the Supreme Court of India seeking guidelines on hate speech during elections. It observed that hate speech attempts to marginalize individuals on the basis of their membership in a group which impacts such people socially by diminishing their social standing and acceptance within society. Hate speech, the Court observed, lays the groundwork for aggravated attacks on the vulnerable communities in the future. This weakens the ability of people to participate wholly in a democracy. It was further observed that the existing laws in India were sufficient to tackle hate speeches. The root of the problem is not the absence of laws but rather a lack of their effective execution, the Court reiterated.

Analysis of Hate Speech in India: Extent of Reasonable Restriction Principle and Position of State

The issue of the validity of hate speech laws and the extent of already existing hate speech laws has always been a heated debate in India. This issue has time and again raised before the legislature, court as well as the public. Under Article 19(2), the hate speech can be curtailed on the grounds of public order, incitement to offence and security of the State. In the infamous case of Ram Manohar Lohiya v. State of Bihar, the Apex Court observed that “One has to imagine three concentric circles. Law and order represent the largest circle within which is the next circle representing public order and the smallest circle represents the security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not the security of the State.” The standard approach applied for restricting Article 19(1)(a) is the highest when imposed in the interest of the security of the State. 

Further, the Supreme Court while upholding the constitutional validity of Section 295A IPC ruled that this section does not penalize every act of insult or attempt to ‘insult the religion or the religious beliefs of a class of citizens but it penalizes only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.’ It was held that if an act does not actually cause a breach of public order, its restriction ‘in the interest of public order’ will be deemed reasonable with respect to Article 19(2), since it has a much wider connotation than interest and maintenance of public order. 

In Shreya Singhal v. Union of India, the court observed that expression could only be restricted when discussion and advocacy amounted to incitement, however, when no ingredient in offence of inciting anybody to do anything which a reasonable man would then the tendency of being an immediate threat to public safety or tranquillity would diminish. Therefore, the context of speech plays a vital role in determining its legitimacy under Article 19(1)(a) of the Constitution and that our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.

Hence, after analyzing the recent landmark decisions, it could be re-iterated that a speech protective regime has been followed in India. The main cause of action behind such a stance is the apprehension and fear of misuse of restrictive statutes by the State. Such a regime has been followed in the United States and the Courts therein are extremely cautious in restricting Article 19 of the Constitution to avoid vitriolic approaches from the public. Pluralism, tolerance, peace and non-discrimination have been termed non-derogatory values by the ECHR in ascertaining the extent of free speech allowed under the Convention.

Conclusion

Hate speech poses a complex situation against freedom of speech and expression. The constitutional approach to these challenges has been far from uniform as the boundaries between impermissible propagation of hatred and protected speech vary across jurisdictions. 

In a landmark judgment of Canada v Taylor, the constitutional validity of hate speech laws was challenged since it violated the right to freedom of speech and expression. It was held that hate and propaganda contribute little to the aspirations of Canadians or Canada in the quest for truth, the promotion of individual self‑development, or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. The Supreme Court of Canada opined that hate speech laws are indeed a part of the global commitment to eradicate racism and communal disharmony. 

However, ‘with every right comes responsibility’; and therein, is the need for a limitation on the right to freedom of speech and expression so as to prevent the destructive and regressive effect it could have. There is a massive need to revise and amend the existing anti-discrimination legislation with respect to hate speech without curtailing the freedom of speech and expression of people. Laws should be implemented in a non-selective, non-arbitrary and transparent manner, along the lines of golden principles of the constitution which should not be used to stifle dissent or the legitimate exercise of freedom of expression. Lastly, the fight against hate speech should not be pursued in isolation but with a harmonious holistic approach. Our constitutional history must be maligned with the traditional approaches along the lines of recent development and usage of hate speech laws, especially in terms of yellow journalism these days. With excessive interference of the media into the facts and evidence of the case has led the judiciary to negatively view such journalists as ‘thought intelligentsia’, which in turn impacts the justice delivery system as well. Therefore, a harmonious balance must be drawn while dealing with such matters and reasonable restrictions must be applied and followed strictly and not liberally in our diverse democratic country.

A Conservative Amendment in a Liberal Constitution: The First Amendment

[Editorial Note: The author would like to thank Tripurdaman Singh for his book Sixteen Stormy Days: The Story of the First Amendment of the Constitution of India and Amit Varma for a wonderful discussion on his podcast Seen and the Unseen]

It was the year 1951 and the Supreme Court had passed two judgments, Brij Bhushan v. the State of Delhi and Romesh Thapar v. the State of Madras, upholding the freedom of speech and expression as guaranteed under the Article 19(1) of the Indian Constitution. It was before the First Constitutional Amendment when the Constitution was considered to be ‘fairly liberal’ as the freedoms guaranteed under Article 19 were not subject to so many restrictions as we see today. Restrictions were there in the original Constitution as well, no doubt, as they are necessary. Then, the freedoms were the rights and the restrictions were the exceptions to those rights. But what followed after these two judgments was an act of Parliament (more of Nehru’s) which turned the freedoms into (somewhat) exceptions.

The First Constitutional Amendment, 1951

It has to be kept in mind that the first amendment was discussed and passed by the provisional parliament which did not have a ‘popular mandate’. It was the provisional Parliament’s members who framed the Constitution but they were not the constituent assembly. But for Nehru, it did not make any difference, as he said in the assembly:

“Now, that Constituent Assembly which has gone into the history of India is no more; but we who sit here, or nearly all of us, still continue that tradition, that link. In fact, it is we after all, who was the Constituent Assembly and who drafted this Constitution. Then we were not supposed to be competent enough to draft the Constitution. But now, the work we did was so perfect that we are not now competent enough to touch it! That is rather an odd argument.” 

He was right somehow, they were not competent to amend the Constitution as they did not have any popular mandate and this amendment could have waited till the elections. But it was nothing, but sixty stormy days of debates, discussion and dictatorial behaviour! Before the amendment, Article 19(2) read as:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

It did not have any ‘reasonable restriction’ clause in it. But the restrictions were not so much. After the amendment, clause 2 of Article 19 read as follows:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

This means that parliament can frame a ‘law’ which can restrict the freedom of speech and expression if that law is in furtherance of the restrictions given thereunder. Restrictions like public order or incitement to an offence are vague and can create a long-lasting chilling effect and they are, even now. Suppose, there is a rally in protest against any law passed by the state, then the state can restrict that protest and say it violates the public order, hence, citizens cannot exercise their right to speak against the government and they can invoke the draconian section 124A (Sedition) of IPC, 1860 [which is an offence under a law made by the state].

The Reasons for Amendment and the Opposing Views

In the cases of Brij Bhusan and Romesh Thapar, the government attempted to curb the freedom of the press and the right to free speech and expression. But the Court struck down that imposed restraint on civil liberties. When the question of interpretation of Article 19 came up, the Supreme Court held that if the maintenance of public, order or securing the public safety was something which did not affect the security of the State or the overthrowing of the State, then there could be no restriction on freedom of speech. The amendment was being made to overrule these judgments [hence, the words public order etc. were added], but PM Nehru said ingeniously in the assembly as he said: “We are not putting down any kind of curb or restraint. We are removing certain doubts so as to enable Parliament to function if it so chooses and when it chooses. Nothing else happens when this Bill is passed except to clarify the authority of Parliament.” These amendments have chilling effects till now. We still see so many violations of civil rights in the name of these so-called restrictions.

Nehru’s vision of freedom was more conservative (and not so liberal) as a Prime Minister than as a leader of the Congress party during the freedom struggle. According to him, the freedom of speech ‘carries with itself responsibilities and obligations’ and if they are not performed, then there would be no freedom. This goes against liberal thought.

The Parliament and the government could have dealt with the problems of public order or incitement of offence through preventive detention laws. Now, supposing there are persons who are preaching murder and who are doing, something of that character, supposing there is some newspaper which is doing something of that character and the writer is there, the individual can be secured under the Preventive Detention Act. So, if the Parliament or the Government want to prevent a person or group of persons from committing acts which they consider to be against the interests of public order, then they are already clothed with sufficient authority to do so.

The amendment does not bear any fruit, except increasing the power of the government. Another restriction which is placed is the restriction on criticism or speech on ‘friendly relations with other states’. On this Shyama Prasad Mukherjee, who I feel is a text-book example of a classic liberal during the debates, said: “I have not been able to find any precedent in any part of the civilised world whereby law under the provisions of the Constitution criticism of foreign powers is taboo.

He cast doubts on the meaning of ‘friendly relations with other states’, as he said: “we may say anything about a foreign country with the utmost friendship in our hearts but if that country misunderstands and says that it offends it or it affects our friendly relations with them, you are at once bound by the provisions of the Constitution.” If the government today passes any law in furtherance of these restrictions, then anything can be restricted and the civil liberties and freedoms will merely become exceptions.

The fears apprehended by Dr Shyama Prasad Mukherjee are now re-surfacing back in 2020 as we witness internet shutdown(s) in Kashmir using Section 144 of Criminal Procedure Code, use of draconian laws like National Security Act and Unlawful Activities Prevention Act (UAPA) to curb Freedom of Speech and Expression among other violations. We see these violations of free speech and civil liberties and the reason (not the sole reason though) behind such regressive measures is this hurried, hasty and (“unconstitutional”) First Constitutional Amendment Act. PM Nehru, despite his charismatic leadership and vision, did put the Constitution and civil liberties in danger.

In conclusion, let us revisit the prophetic warning given by Dr Mukherjee and try to draw parallels in contemporary times:

“Maybe you [Nehru] will continue for eternity, in the next generation, for generations unborn; that is quite possible. But supposing some other party comes into authority? What is the precedent you are laying down?

The fears imagined by Mukherjee in 1951 still haunts us today!

Contempt of Court: Analysis of the Jurisdiction of an “infallible” Court

In the previous post, we discussed all the facts relevant to Prashant Bhushan’s Contempt Case—In this post, I will analyse the Supreme Court’s jurisdiction of Contempt and try to make an objective effort to draw a line between free speech and the law of contempt as in the recent times’ judiciary has exercised its power of contempt which led to a burning debate. The premise for the law of contempt of Court stems from the accountability of Courts. Although the law of contempt has originated from English law, it is not entirely an imported concept.  The age-old systems to protect courts or assemblies (sabhas) point to the indigenous development of contempt law. Kautilya wrote in Arthashastra that, “any person who insults the King, betrays the King’s council, makes evil attempts against the King… shall have his tongue cut off”. Although it is not similar to the modern-day law of contempt but it shows that there was an attempt at protecting the sanctity of the images of justice.

Supreme Court: Court of record and power to punish for contempt of itself

Under in the Indian Constitution, 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.” The provision defines the position of the Supreme Court. Dr B.R. Ambedkar explained the meaning of “Court of Record” in the Constituent Assembly on 27.05.1949 as, “A court of record is a court the records of which are admitted to be of evidentiary value and they are not to be questioned when they are produced before any court.

And, the power of contempt follows from the fact that the Supreme Court is a court of record, as the High Courts. The provisions of contempt were included in the Constitution itself because, in England, this power is largely derived from Common Law and as we have no such thing as Common Law in India, we felt it better to state the whole position in the statute itself. The power of contempt is extraordinary and is exercised only to uphold the majesty of the judicial system. On the question of contempt, the Supreme Court has a summary jurisdiction to punish contempt of its authority. In the case of Om Prakash Jaiswal v. DK Mittal (2000), the Supreme Court emphasised the need for the concept of contempt as follows:

“Availability of an independent judiciary and an atmosphere wherein Judges may act independently and fearlessly is the source of existence of civilisation in society. The writ issued by the Court must be obeyed…..Any act or omission which undermines the dignity of the Court is therefore viewed with concern by the society and the Court treats it as an obligation to zealously guard against any onslaught on its dignity.”

The logic behind the contempt jurisdiction is that if the confidence in judiciary shakes, the due administration of justice suffers. But is there any definite meaning of contempt? The Contempt of Courts Act, 1971 defines criminal contempt as that which ‘scandalizes the court’ or ‘prejudices judicial proceedings’ without providing any explanation of these key terms. An attempt was made in Jaswant Singh’s case and it was held that the offence of criminal contempt is committed when a court is scandalised by casting “unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice”. This is an extremely wide definition and it should not be read apart from the goals set forth by the Founding fathers under the Constitutional provisions. Even though uncertainty makes a law flexible but we cannot ignore the evils that come with this.

Also, according to Justice Mukherjea in a Brahma Prakash case, there must be two primary considerations when dealing with contempt of court amounting to “scandalisation of the court” – Firstly, whether the act is within the limits of fair and reasonable criticism, and secondly,  whether the act is a mere libel or defamatory in nature or contempt of court and if, it is a mere defamatory attack on the judge and is not calculated to interfere with the due course of justice, it is not proper to proceed by way of contempt. The accused must be held guilty only after these two considerations are adjudicated upon. Furthermore, in an interesting case where the accused- U.K. Krishna Menon charged the judiciary as “instrument of oppression”, and then he raised an interesting three-fold contention in his defence that: [a] the law of contempt must be read without encroaching upon the guaranteed freedom of speech and expression under Article 19(1)(a); [b] the intention of the contemnor in making his statement should be examined in the light of the political views as he was at lastly to put them before people and, [c] Lastly the harm done to the court by his statement must be apparent. Although it was rejected by the Court and he was held guilty for stating that judges are “guided and dominated by class hatred” and favours “rich against the poor” as these words weakens the authority of Courts, and have the effect of lowering the prestige of judges and courts in the eyes of the people.  Here, two questions arise: what does the court aim to protect from this law and what image of justice the Court seeks to preserve? A definite answer must come from the Apex Court.

Another question which arises is what are the “standards” of criticisms? According to Perspective Publications judgment, a fair, reasonable, temperate and legitimate criticism of the Judiciary or the conduct of a Judge in his judicial capacity is permissible – but what about the tweet/comment of lawyer-activist Bhushan on the CJI – isn’t that a fact that the Hon’ble CJI was “riding” a Harley Davidson without a mask? Should the reasonable restriction of contempt of court overshadow the freedom of speech and expression? Herein a quote by Justice Felix Frankfurter is relevant:

“Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions…..therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt.”

A way forward

When should the power of contempt be exercised by the Courts? The courts must remember that “Speech is duty and silence cowardice”. The power of contempt is to be availed to aid in the administration of justice and not to shut out voices that solicit accountability from the Court for its fallacy of omissions and commissions. To suppress constructive criticism- or demand for accountability- is not and cannot be a ‘reasonable restriction’. As Prashant Bhushan replied in his affidavit before the Supreme Court, “power of contempt cannot be initiated “into service to stifle bonafide criticism” from citizens who are well-informed about the omissions and commissions of the Supreme Court”. The power must be exercised cautiously, wisely and with circumspection. The Constitutional Courts must protect our free speech even “against judicial umbrage”. Lord Atkin has observed, “Justice is not cloistered virtue”, hence, every judgment and conduct of judges must be open to public discussions and criticisms as they hold constitutional trust, confidence and faith of ‘The People’.

Further, Justice Brenan has observed in Sullivan’s case, “it is a prized privilege to speak one’s mind, although not always with perfect good taste, on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.” Justices should not enter into public or political controversy instead they should rely on their conduct itself “to be its own vindication” and their lordships must have broad shoulders when someone criticises the Courts with an informed opinion.

The Courts must understand that the power of contempt is needed just for the administration of justice and punish those who disobey the order of the courts, not to gain respect. A more relaxed system is something we should strive for – remember post-Skycatcher judgment the British media banner published the photos of judges upside down calling them “You Fools”. Senior Advocate Fali S Nariman asked one of the judges, why they did not initiate contempt against the media, the Court replied it is just an opinion. We do not agree.

In conclusion, it is for us, as citizens, to think whether the court will be able to instil institutional greatness by this flourishing law of contempt- or whether this will lead to, as observed in Barnette’s case, the “compulsory unification of opinion [that] achieves only the unanimity of the graveyard.”

[Note: I would like to thank the editorial board, Manasi Bhushan and Diksha Dadu for their comments]

Prashant Bhushan’s Contempt Case: Are the Indian Constitutional Courts prone to dissenting remarks made in Social Media against it?

[This is a post by Minnah Elizabeth Abraham, Contributing Editor]

“Let me say at once 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.” Lord Denning

The controversial case of contempt of court law against lawyer-activist Prashant Bhushan reveals much of the stifling unaddressed claims of the judicial systems as opposed to the rightful exercise of the freedom of speech and expression within the judiciary. The case draws a pricking line between exercise of the fundamental right of speech and expression with freedom of judiciary to maintain its credibility in the larger public interest.

Trotting down the facts, the whole issue was provoked when Prashant Bhushan tweeted firstly, on the Chief Justice of India, quoting

“CJI rides a 50 lakhs motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice.”.

Secondly, the controversy ensued when he yet again tweeted

“When historians in the future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

Although the Freedom of Speech and Expression in enshrined in Article 19(1)(a) of the Indian Constitution, it is sadly bounded with restrictions under clause 2 of the same Article. In the above controversy, the statements as remarked by Mr Prashant  Bhushan have been claimed to downgrade the Supreme Court of India and judiciary system, attracting the very Contempt of Courts Act, 1971 (“The Act”) calling for his actions as criminal contempt, defined in the 1971 Act, for scandalising remarks against the authority and administration of law. The petitioner’s side (Mr Prashant Bhushan) claims the Act to be unsurprisingly incompatible with the basic structure of Constitution, all the more, perforating the guaranteed freedom of speech expression. However, this is not so, as stated on the other side,

“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 the supreme court in general and the office of the Chief Justice of India in particular, in the eyes of the public at large.”

The legislature does not provide with a concrete definition of contempt – howsoever Section 2(a) of Contempt of Court Act, 1971 defines contempt of court as civil contempt or criminal contempt: “Civil contempt refers to wilful disobedience to any decree, judgement, direction, writ, order or other proceedings of a court or wilful breach of an undertaking given to a court.

According to Section 2(c) of 1971 ActCriminal contempt – whether by word, spoken or written or by signs or by visible representation or otherwise – of any matter or doing of any other act whatsoever which –

  1. Scandalizes or tends to scandalize or lowers  the authority of any court or
  2. Interferes/Prejudice or tends to interfere with the due course  of any judicial proceeding
  3. Interferes or tends to interfere with or obstruct or tends to obstruct the administration of justice in any other manner

The impugned section renders power to the judicial authorities to routinely misuse the power to punish those of contempt of court for their misdeeds rather than carry forward their duties to uphold the laws of Justice. As noted, there are a high number of contempt cases – civil (96,993) and criminal (583) pending in various HC and SC. As clearly noted, the said section is ambiguous as it does not draw any distinction between criticisms or remarks made in consonance with freedom of speech with that of scandalization against the Court of Law. By going deeper into the case, it only points out, how both the issues are contrasting starkly against each other, for which there is a need to modify the laws of contempt of court without breaching the fundamental rights. The Court of Law, like every institution of an order, should fall back in welcoming public criticisms to deliver and serve in the interest of the general public.

To stir up further controversy, the 2009 pending case of Sterlite company, where Mr Prashant Bhushan accused the headed judge of having held shares in the said company was deferred to be heard in the next hearing scheduled on August 4th, 2020 joined with the recent controversy.

The cynicism in all of this brought forth, where the views of the same bench were pointed concerned hearing a matter of disqualification proceedings initiated against Sachin Pilot and other involved MLAs of Rajasthan, observing “Voice of dissent in a democracy cannot be shut down”. This same constituted bench responded completely in contrast to the voice of dissent raised against the very Court and used the provisions of Contempt of Court Act, 1971 to shut down the ensuing alleged claims against it, with due disregard for the Constitutional Rights.

As stated rightly by Mr Shekhar Gupta, Editor-in-Chief of The Print,Politicians run on political capital. Professions run on professional capital…so the Supreme Court’s capital is its own stature. It’s for the court to decide how fragile that stature is.”

Some concluding remarks

If contempt proceedings are going to be instituted against every tweets and remark against Courts of law, there would not be any room for informed public scrutiny, which holds the very purpose of arriving at right delivery of justice, covering all aspect of public concerning matters. Previously, the SC has been considered liberal with contempt proceedings and has set aside the punishment in the case of Chanchal Manohar Singh vs. High Court of Punjab & Haryana due to irregularities of both sides and other past actions have shown that the Courts of Law has subject to have positively drawn in criticisms in public debates and often have taken in consideration of the public remarks.

The case instituted against Mr Prashant Bhushan, especially when the main issue revolves around the freedom of speech and expression, the presiding bench heading the case has to carefully tread on the public’s faith on the judiciary and choose to uphold the dignity of the judiciary by thoroughly inspecting the essentials of the criminal contempt. The ongoing debate lingers on Bhushan case, covering every aspect of freedom of speech and expression and explore as to what extent does the freely expressed criticism turn to contempt. This imposes immense pressure on the Court of Law to distinguish between criticism and contempt on the part of the Bhushan’s action of freely expressed opinions against the Courts of Law and its adjudicating authorities and whether his tweets unquestionably resorts to scandalising the judicial administration.

[Note: This Article seeks to cover all the facts and bring in the legal standpoints as well as point out the need for Constitutional law to supersede the very Act that violates the guaranteed Freedom of Speech & Expression.]