FREEDOM OF SPEECH AND CONTEMPT-FINDING THE LIMIT

ABSTRACT

With the flexibility of the law on criminal contempt with its ambiguous expressions defining
the ambit of contempt, it becomes imperative in the current times to ask what is the limitation
of such flexibility?

In this regard the paper delves into the intent based defenses to understand how the law on
contempt in relation to Article 19(1) has fared in this regard. The paper also analyses the
judicial trend in interpreting ‘criminal contempt’ where it is concluded that there is
uncertainty in interpretation of what constitutes ‘scandalizing of court’. The author in this
regard examines the defense of truth which has the potential to safeguard freedom of speech
and expression. Here the paper examines the hesitance of Supreme Court to rarely, if ever
entertain, the 2006 amendment which provides for defense by ‘justification by truth’ when
invoked by the defendants. This position exists even after a decade of its enactment owing to
the wide discretion granted to the courts to entertain the same in the current contempt
framework. Albeit plausible to a certain extent, the author provides for suggestion to solve
this conundrum by allowing defense of truth at the determination stage of conviction rather
than sentencing by way of suitable amendment of the same.

Key Words: Criminal Contempt, scandalizing of court, defense of truth

INTRODUCTION

The main objective behind the formulation of the contempt law is to protect the judiciary
from any attack in both verbal and written form to secure public confidence, thereby, the
Rule of Law1. It is to be noted that often this contempt power that is derived from England is
used to secure public confidence by contending that courts should be viewed as impartial and
judicial despite it not being true on certain occasions 2. Unlike the conventional adversarial
litigation, a proceeding for contempt before a Court in a practical setting is between the Court
and the contemnor.3 Section 2 of the Act reads contempt as

“§2(c): “criminal contempt” means the 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
1
In Re: Ajay Kumar Pandey, MANU/SC/1137/1998, ¶18.
2
Gautam Bhatia, Free Speech and Contempt of Court – I: Overview, The Centre for Internet and Society (Jun. 9,
2014), https://cis-india.org/internet-governance/blog/free-speech-and-contempt-of-court-2013-i-overview
3
JaipurMunicipal Corporation v. C.L. Mishra, (2005) 8 SCC 423.
act whatsoever which— (i) scandalizes or tends to scandalize, or lowers or tends to lower the
authority of, any court; or(ii) prejudices, or interferes or tends to interfere with, the due
course of any judicial proceeding; or(iii) interferes or tends to interfere with, or obstructs or
tends to obstruct, the administration of justice in any other manner.”4

The author in the first chapter analyses the current contempt framework in India and how it
functions concerning Article 19(1)5. Here the author traces the jurisprudential origin in the
current framework pertaining to intent based defenses in such contempt proceeding. In the
second chapter, the author traces the trends of the judiciary in interpreting the criminal
contempt provisions which the author in the later part finds as conflicting, ambiguous,
arbitrary, and overstepping into the freedom of speech of citizens of the country. Regarding
this, the author provides suggestions in the final chapter as to how these limitations could be
overcome to achieve the main objective of these contempt powers that is, maintaining the
rule of law. This is done by examining how the defense of justification by truth has so for
fared in the judicial proceeding after a decade of its enactment where the author suggests for
urgent revisiting of this section so that its efficacy in securing public confidence and thereby
the rule of law can be achieved.

UNDERSTANDING THE LAW ON CRIMINAL CONTEMPT IN RELATION TO

ARTICLE 19(1): TRACING THE INTENT BASED DEFENSES

Background

It has been debated time and again that the 1971 Contempt Act of our country, India is based
on foundations that are ill-fitting to the present modern society. The law’s origin can be
traced back to British administration of pre-independent India when the main aim was to
reinstate the idea of the supremacy of judiciary for, they were considered as the bedrocks on
which our society rested. Thus, any attempt to lower people’s confidence in it would lead to a
distortion of rule of law since it is the main objective behind contempt powers. However,
such powers are not meant for judges to personally defend themselves but to ensure that the
judiciary as an authority is not undermined. Thus, in India, contempt of law is broadly
divided into 3 categories6 namely, when there’s a violation of court order, when it interferes
in the judicial process, and finally when it is in criticism of a court. To a certain extent, to
limit the scope of abuse of this unlimited discretion which is often applied to control the
4
Contempt of Courts Act, 1971,§2(c), No.70 Acts of Parliament, 1971(India).
5
INDIA CONST. art. 19, cl.1.
6
Contempt of Courts Act 1971, s2(c),No.70 Acts of Parliament, 1971(India).
freedom of speech and expression under Article 19(2)7 of the Constitution of India,
exceptions such as non-contemptuous position on fair and accurate reporting of judicial
proceedings, fair criticism of decided cases and appeal as a procedural safeguard was
framed8. While there are procedural safeguards available to the public against these
unreasonable and broad contempt powers of the court, the law in practical setting has come to
uphold the personal interest of the judges as opposed to the rule of law which it supposedly
intended to uphold.

The Law on Criminal Contempt in relation to Article 19(1)

The main objective behind the formulation of the contempt law is to protect the judiciary
from any attack in both verbal and written form to secure public confidence, thereby, the
Rule of Law9. It is to be noted that often this contempt power that is derived from England is
used to secure public confidence by contending that courts should be viewed as impartial and
judicial despite it not being true on certain occasions 10. Unlike the conventional adversarial
litigation, a proceeding for contempt before a Court in a practical setting is between the Court
and the contemnor.11 Section 2 of the Act reads contempt as

“§2(c): “criminal contempt” means the 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 whatsoever which— (i) scandalizes or tends to scandalize, or lowers or tends to lower the
authority of, any court; or(ii) prejudices, or interferes or tends to interfere with, the due
course of any judicial proceeding; or(iii) interferes or tends to interfere with, or obstructs or
tends to obstruct, the administration of justice in any other manner.”12

While the wordings of this section 2 of the Act13 prompts evident ambiguity, it is retained as
the courts are deriving its power constitutionally through Articles 129 and 215 14. Further, it
has been left with a broader scope, as reiterated by the legislators to benefit the courts to have
their power against any new forms of contempt that may arise in the current fast-changing

7
INDIA CONST. art. 19, cl.2.
8
Contempt of Courts Act 11971, s4,5, No.70 Acts of Parliament, 1971(India).
9
In Re: Ajay Kumar Pandey, MANU/SC/1137/1998, ¶18.
10
Gautam Bhatia, Free Speech and Contempt of Court – I: Overview, The Centre for Internet and Society (Jun.
9, 2014), https://cis-india.org/internet-governance/blog/free-speech-and-contempt-of-court-2013-i-overview
11
JaipurMunicipal Corporation v. C.L. Mishra, (2005) 8 SCC 423.
12
Contempt of Courts Act, 1971,§2(c), No.70 Acts of Parliament, 1971(India).
13
Contempt of Courts Act 11971, s2, No.70 Acts of Parliament, 1971(India).
14
INDIAN CONST. art. 129 & 215-Under the Constitutional provisions, the High Court and the Supreme court
as Court of Record has powers to punish both for their own contempt and that of lower judiciary as well.
technological world. While there exist restrictions in Article 19(2), Article 19(1)15 still
guarantees freedom of speech and expression unless its prejudicial to the authority of the
court.16 This means that certain limit has to be placed and regulated for the benefit of the
society by the legislature17 and thus, if that restriction is unreasonable, it will violate the basic
feature of the constitution18 as such restriction is not in the interest of society. While in other
jurisdiction like USA & UK where contempt law is placed on a lower pedestal to speech and
expression freedom19, in India, an effort has been made to strike a balance between the two.20

When one acknowledges the defenses to these powers of courts that is, non-contemptuous
position in the cases of (i) reporting of a judicial proceeding fairly and accurately 21 (ii) fairly
critiquing the decided cases22(iii) if no specific knowledge/innocent publication of the content
in dispute of contempt has been done23 (iv) unless it the alleged contemptuous statement in
question substantially interferes with course of justice, 24 and (v) an appeal as a procedural
safeguard25; it is to be observed that in all these cases the intention of the contemnor would be
irrelevant even if the contemnor had acted in good faith 26. Thus, it can be concluded that
originally in the circumstances when the law was created intent is irrelevant 27 to convict the
contemnor and that the above mentioned framework works on the assumption that the courts
are the only guardians in maintaining and protecting the rule of law by prohibiting, what in
their view, might stand in the way of maintaining this rule of law. At the most, the guilty are
allowed to lessen their punishment during sentencing by a bona fide apology which may or

15
INDIAN CONST. art. 19, cl. 2.
16
INDIAN CONST. art. 19, cl. 1.
17
Bennett Coleman & co. & Ors v. Union of India, 1973 AIR 106.
18
Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr, AIR 1973 SC 1461- In this case the
basic structure doctrine was established where in the opinion of J.Hegde and J Mukherjea it was held that
essential features of individual freedom are inclusive in the basic structure doctrine. This individual freedom
encompasses the right to freedom of speech and expression as well.
19
R v. Commissioner of Police, [1968] 2 QB 118.
20
It was in the case of Arundhati Roy observed by Justice Krishna Iyer that “the dilemma of the law of contempt
arises because of the constitutional need to balance two great but occasionally conflicting principles - freedom
of expression and fair and fearless justice”. See In Re: Arundhati Roy, AIR 2002 SC 1375.
21
Contempt of Courts Act 1971, s 4, No.70 Acts of Parliament,1971(India).
22
Contempt of Courts Act 1971, s 5, No.70 Acts of Parliament,1971(India).
23
Contempt of Courts Act 1971, s 3(3), No.70 Acts of Parliament,1971(India).
24
Contempt of Courts Act 1971, s 13(a), No.70 Acts of Parliament,1971(India).
25
Contempt of Courts Act 1971, s 19, No.70 Acts of Parliament,1971(India).
26
H.N. SANYAL COMMITTEE, Report of the Committee on Contempt of Courts, Indian Culture-
Discover,learn,Immerse,connect (Feb 28, 1963), https://indianculture.gov.in/report-committee-contempt-courts-
1963.
27
Id, at 31- The Sanyal commission intentionally retained the broadly worded terms such as ‘scandalising’,
‘prejudicing’ & ‘interference’ so that there is no risk in the future for the courts to exercise their powers against
new forms of contempt which may arise. In this regard to safeguard free and fair administration of justice, the
intent of the contemnor was considered irrelevant.
may not serve as a factor in the same 28. Thus, an ordinary man is left in a confused space
where he isn’t certain about what may or may not amount to contempt as the provisions are
vague and its ambit is determined by the court on a case-to-case basis.

UNCERTAINTY IN CRIMINAL CONTEMPT WITH REGARD TO

‘SCANDALISING OF COURT’: A JUDICIAL TREND

The term ‘scandalizing of court’ is often interpreted ambiguously with the objective of
keeping the administration of justice unpolluted29 or to ensure that the confidence of the
public in courts are not diminished or to maintain the dignity of the court or to protect the
public interest30. The trend in determining what is in fact ‘interference in administration of
justice’ is abstruse and conflicting where in some cases it has been ruled that there should be
a ‘real prejudice’ that can be regarded as interference. 31 In others even acts which ‘likely’
tend to interfere32 in the administration of justice is also regarded as contempt. In the latter
circumstance, actual damage of the alleged contemptuous statement is not considered in
certain proceedings33 to rule such interference in the administration of justice. While the
objective is to ensure public confidence, in the words of Justice Krishna Iyer, such criticism
and the administration of justice should go hand in hand. 34 This is because public confidence
cannot be manipulated into submission as such attitude of courts in initiating contempt
proceedings can lead to increased resentment and loss of respect for the judiciary which the
judiciary so fondly wants to maintain. The provision of ‘lowering the authority of the court’
is also in dispute and debates over recent times where it has often been questioned as to how
a few statements made by people could be so threatening to collapse the court’s authority as a
whole in the eyes of the public. In this regard, a classic example is the Mid-Day daily case 35
where the Delhi High Court held without any logic or reason that statements made by the
contemnor had lowered the authority of the court as the person alleged for corruption is the
Chief Justice of India himself. In this case, the court did not bother to go into the validity of
the contention of the contemnors using its discretionary power under Section 13(b) of the
Contempt Act36 although it was raised by the contemnor during the proceeding. Such

28
Contempt of Courts Act 1971, s 12 Proviso, No.70 Acts of Parliament,1971(India).
29
Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895.
30
Brahma Prakash Sharma and Ors. v. The State of Uttar Pradesh, AIR 1954 SC 10.
31
Rizwan-ul-Hasan v. State of Uttar Pradesh, AIR 1953 SC 185.
32
E.M.SankaranNamboodiripad v. T.Narayanan Nambiar, AIR 1970 SC 2015.
33
In Re: Arundhati Roy, AIR 2002 SC 1375.
34
In Re: Roshan Lal Ahuja,1992 (3) SCC 237
35
Court on its Own Motion v. M.K. Tayal and Ors 2007 (98) DRJ 41
36
Contempt of Courts Act 1971, s 13(b), No.70 Acts of Parliament,1971(India)
interference into the flow of information in the name of maintaining the authority of courts is
detrimental to the public interest where the court becomes a mere sham authority than the real
one. Additionally, the line between defamation of a particular judge and contempt has
become blurry in one of the first cases of contempt, i.e., the Arabinda Bose Case. 37 In this
case, the Supreme Court started the tendency of placing reputation or stature of judges as an
end goal of contempt proceeding which was then reiterated in other cases 38. Thus, it can be
observed that there exists no clear demarcation between constructive criticism and contempt.
It can be interpreted as an abuse of the administration of justice, a defamatory attack on the
judges or ends up interfering in the administration of justice 39. Similarly, in the recent
Prashant Bhushan case,40 even a layman can observe how the court is taking the role of a
judge. Both, being the victim and the prosecutor, the court has indeed managed to create
another ADM Jabalpur moment in holding a pro bono advocate guilty of contempt as it
curtailed the very basic personal liberty, the freedom of speech and expression. The court did
so by going from the very defender of freedom of speech and expression to be the one
curtailing it. This is not a reflection of the judgement alone but also the procedure the court
adopted to do so. If we observe how the case was taken up by the court to pass orders on, we
can see it violated Rule 3 of Rules to regulate proceedings of Contempt of Supreme Court,
197541. The court, in this case by-passed the requirements to get the consent of Attorney
General. Such violation of Rule 3(b)42 by converting such petition that came under Rule 2(a) 43
would in itself make the petition un-maintainable on this ground alone since the court has no
power to place such a petition in disguise of ‘Suo Motu’ exercise of power. By doing so, the
Supreme Court has decided for the Attorney General’s sole authority and jurisdiction under
the law to decide upon a petition of criminal contempt, ‘to give a considerable assurance to

37
Aswini Kumar Ghose And Anr. vs Arabinda Bose And Anr AIR 1953 SC 75,Para 2 – Here the court said “No
objection could have been taken to the article had it merely preached to the Courts of law the sermon of divine
detachment. But when it proceeded to attribute improper motives to the Judges, it not only transgressed the
limits of fair and bona fide criticism but had a clear tendency to affect the dignity and prestige of this Court.”
38
C.K. Daphtary vs. O.P. Gupta AIR 1971 SC 1132-“We are unable to agree that a scurrilous attack on a Judge
in respect of a judgment or past conduct has no adverse effect on the due administration of justice. This sort of
attack in a country like ours has the inevitable effect of undermining the confidence of the public in the
Judiciary. If confidence in the Judiciary goes, the due administration of justice definitely suffers.”
39
SeeInRe S.K. Sundaram Suo Motu Contempt Petition,2000 Supp. 5 SCR 677. Here the court said that,
(“Scandalising the court, therefore, would mean hostile criticism of Judges as Judges or judiciary. Any personal
attack upon a Judge in connection with the office he holds is dealt with under law of libel or slander. Yet
defamatory publication concerning the Judge as a Judge brings the court or Judges into contempt, a serious
impediment to justice and an inroad on the majesty of justice.”)
40
In re: Prashant Bhushan 2020 SCC OnLine SC 588.
41
Rules to regulate proceedings of Contempt of Supreme Court, 1975, Rule 3
42
Rules to regulate proceedings of Contempt of Supreme Court,1975, Rule 3(b)
43
Rules to regulate proceedings of Contempt of Supreme Court,1975, Rule 2(a)
the individual who is charged along with the public at large. 44’ Thus, it this power of the
Attorney General has lost its purpose due to the denial of such right by the judiciary. Section
15 of the Contempt of Courts Act 197145 explicitly states the circumstances under which the
Supreme Court or the High Court can take cognizance of criminal contempt other than those
referred in Section 14 of the 1971 Act 46. Under this provision, it can do so (i) either on its
own motion or (ii) by motion of the Advocate General made by either a) the Advocate
General or b) any other person with the consent of the Advocate General in writing or c)the
consent of a law officer in matters arising in relation with the High Court for the Union
Territory of Delhi47 with the consent of the Advocate General for a complaint any other
person, with the consent of a law officer in matters arising in relation with the High Court for
the Union Territory of Delhi. Sub-clause (a) and (b) of Section 15(1) with Section 17(2) of
the 1971 Act48 requires that proceedings that commenced on a motion that mandates the
notice of the court to the alleged contemnor to be accompanied by the affidavit copies on
which the motion was founded. This was never properly followed by the court as well as the
court converted the petition suo motu filed under Section 15(1)(b)49 which is not permitted
under the 1971 Act50 to perform. While there is no dispute in the court’s argument that there
are inherent powers under article 129 of the Constitution 51 to punish a person for contempt,
such an act can only be done by invoking the power as per the procedure prescribed by law,
that is, in this case with the compliance of the Contempt of Courts Act 1971. In bypassing
this scrutiny by the Attorney General, the court violated the very purpose of this safeguard
provision that is to have a policy decision by the Attorney General to take in the nature of
public interest. This judgment has set a wrong precedent with dangerous implications that the
court can, at will, open its doors to punish anyone for contempt. Further, on the alleged
contemptuous tweet in question52, while the court acknowledged that the alleged contemnor’s
comment on the first Tweet regarding the CJI is personal in nature, the court still went ahead
to hold it ‘malicious and scurrilous’. This seems to be personally targeted at Prashant

44
Sanyal Committee Report 1963, Chapter X, Para 5.
45
Contempt of Courts Act 1971, s15, No.70 Acts of Parliament, 1971(India).
46
Contempt of Courts Act 1971, s14, No.70 Acts of Parliament, 1971(India).
47
Contempt of Courts Act 1971, s15(1), No.70 Acts of Parliament, 1971(India).
48
Contempt of Courts Act 1971, s15(1)(a)&(b), 17, No.70 Acts of Parliament, 1971(India).
49
Contempt of Courts Act 1971, s15(1)(b), No.70 Acts of Parliament, 1971(India).
50
Id.
51
INDIA CONST. art. 129
52
Prashant Bhushan(@pbhushan1), TWITTER(June 29,2020,10:55 PM)
https://twitter.com/pbhushan1/status/1276710603214610432?ref_src=twsrc%5Etfw%7Ctwcamp
%5Etweetembed%7Ctwterm%5E1276710603214610432%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A
%2F%2Fthewire.in%2Flaw%2Fsupreme-court-contempt-prashant-bhushan-twitter
Bhushan for his identity as an officer at the court for 30 years 53. The court made a very
illogical link between the reach of the Tweet of the contemnor being a public figure in the
society and the probable absence of good faith on his part. The Court held that Prashant
Bhushan’s intent behind the comment that the court is not working during the Covid-19
lockdown restrictions thereby denying access to justice of public at large is not true to his
knowledge. While the court said that it was due to his alleged intent of the comment made
wherein it was said that the court is not working during the covid-19 lockdown restrictions,
thereby denying access to justice of public at large, it contended that such a comment is false
to his knowledge. However, how can that be equated to being factually incorrect?
Additionally, the court didn’t substantiate on how the comments made is malicious in nature.
Despite there being no connection between what is factually correct and what the court
thought regarding a statement made by the contemnor as not true to his knowledge, the Court
still held that the comments made by the alleged contemnor is ‘malicious’ in nature without
providing any substantiation for the same54.

Further, the judiciary also failed to consider the principles of audi alteram partem when it
denied the alleged contemnor to consider the submissions in defense of truth 55. While the
court through its proceedings stated that it is within the power of the judiciary to accept or
reject the defense of Bhushan that was made in his reply affidavit, it should also be
considered that in a criminal contempt petition before the Supreme Court is petitioner’s last
resport to fall back upon, if found guilty. This makes it more pertinent for the Supreme Court
to take utmost precaution in deciding such cases as such proceedings aimed at bludgeoning
criticism without allowing hearing to the other side, would set a dangerous precedent.
Clearly, the court has confused personal i.e. political with their constitutional role that they
are ought to perform occupying offices of India’s highest authority. Judges serving in such
positions ought to use their offices to perform constitutional functions alone and not for
achieving their personal agendas or to protect themselves personally. The recent cases of
criminal contempt as discussed so far emanates from such arbitrary application of law by the
judges who fail to make clear a distinction between the two, i.e., separating their personal
interests from its statutory duty.
53
Indira Jaising/IPA, Prashant Bhushan and the issue of contempt: Why did the Supreme Court target a
lawyer?, NATIONAL HERALD(May. 5,2021, 8:30 PM), https://www.nationalheraldindia.com/india/prashant-
bhushan-and-the-issue-of-contempt-why-did-the-supreme-court-target-a-lawyer
54
Nihal Sahu, The trial of Prashant Bhushan: narrative flexibility at the Indian Supreme Court, THE
ROUNDABLE,PENN UNDERGRADUATE LAW JOURNAL(May 5,2021, 10 PM), https://www.pulj.org/the-
roundtable/the-trial-of-prashant-bhushan-narrative-flexibility-at-the-indian-supreme-court
55
In Re: Prashant Bhushan,2020 SCC OnLine 646, ¶32
Therefore, it is concluded that though judiciary’s role in understanding and interpreting
concepts of ‘scandalizing or tend to scandalize the court 56’, what ‘prejudices or interferes
with the due course of justice57’ have their limitation though the court’s main intent was to
gain public confidence and maintain the Rule of Law. Thus, the author suggests that this
objective could rather be accomplished not by suppression of such comments rather by
encouraging the public to do so. This can be done with the proper use of the revolutionary
amendment of 200658 which allowed for truth as a defense

DEFENSE OF TRUTH: A WAY TO REALISING A COURT’S ACCOUNTABILITY

AND THEREBY MAINTAINING THE RULE OF LAW

The defense of truth can help courts to maintain the Rule of Law. It is important to address
the judicial disposition of this defense by the courts. The 2006 Amendment 59 to include
defense of truth made bonafide and in public interest has changed the dynamic of placing the
sole responsibility in the judiciary to protecting the administration of justice, to now include
the public as well. It is the position that a layman can also form opinions and make comments
if it is in the public interest. Thus, we can say it is no longer the exclusive domain of courts to
ensure the administration of justice.

However, acknowledging the ground reality and proceedings in court, a different story is
painted. Courts’ jurisprudence of contempt law has been very reluctant 60 in considering the
defense of truth owing to its foundation based on holdings that even an attempt to establish
the alleged contemptuous statement is often regarded as an act of contempt itself in the court
proceedings61. In addition to this even, the quality of proof required to prove such defense in
court is hard as well. Till date, the 2014 case of Arun Shourie 62 remains the only notable case
where the court had accepted and upheld the defense of truth in the past whole decade or so,
after the 2006 amendment. A classic example of such a trend can be seen in the Mid-Day
Newspaper case63 where the court avoided and did not pay heed to sufficient proof provided
by the defendants to prove their alleged contemptuous statement in dispute. This case was
against the Chief Justice of India where the contemnors alleged impropriety against him.

56
Contempt of Courts Act 1971, s2(c)(i), No.70 Acts of Parliament, 1971(India).
57
Contempt of Courts Act 1971, s2(c)(iii), No.70 Acts of Parliament, 1971(India).
58
Contempt of Courts(Amendment) Act 2006, s13(b), No.006 Acts of Parliament, 2006(India).
59
Contempt of Courts(Amendment) Act 2006, § 13(b), No.6 Acts of Parliament,2006 (India).
60
Madhavi Goradia Divan, Facets of Media Law, 93-125 (Eastern Book Company 2nd ed.2006).
61
Advocate General v. Seshagiri Rao, AIR 1967SC 408: (1961) 2 LLJ 117.
62
Subramanian Swamy v. Arun Shourie, (2014) 12 SCC 344.
63
Supra note 28.
However, the court without hearing the other side held them contemning the court’s
authority64. Therefore, it could be observed that while truth as a defense procedural safeguard
is established with the intent to protect people who speak in the public interest, the courts
seem hesitant to not accept that they are no longer the only domain that can secure the
administration of justice. In such cases, the courts are often seen using the wide discretion
given in the framework to dismiss such defense when contended65.

In the current fast pacing technological world of social media with abundant information, the
reluctance and denial of courts to engage the defense of truth might have an adverse impact
on public confidence in the judiciary and consequently the Rule of law. However, this
objective can be accomplished if the defense of truth is amended to be taken up at the time of
determination of conviction rather than at the time of sentencing.

This is because currently Section 13 of the Act 66 provides for circumstances and discretion to
courts to decide the punishment the contemnors, if necessary. This dichotomous position
leaves the court in a hard place where they cannot choose to either allow the defense as well
as reject it as both lead to erosion of public confidence in the administration of justice by the
court67. However, this could be resolved by placing this defense at the stage of conviction and
thus grouping it along other defenses mentioned in Sections 3 to 7 68. Further, from the
Contempt Standing Committee where the idea of insertion of defense of justification of truth
to section 13 first arose, it is interesting to note that the committee itself made an observation
in its report that defense of truth should be in the same breath as other defenses as mentioned
in section 3 to 769. This is because the committee was of the opinion that bona fide truth
should not be seen as a contempt of court 70. The core intention behind Section 13 is to give
courts the discretion to not punish the convicted contemnor if it is of the opinion that it is too
trivial to punish so. was for cases where after conviction for contempt, if it appears to be so
trivial for the court to punish, then it cannot do so. Thus, placing the defense of truth for
addressing the argument of the contempt of court, the core intent shall fail. Thus, it is
64
Court on its Own Motion v. M.K. Tayal and Ors2007 SCC OnLine Del 1243.
65
MADHAVI GORADIA DIVAN, FACETS OF MEDIA LAW 115 (Eastern Book Company 2018)
66
Contempt of Courts Act 1971, s13, No.70 Acts of Parliament, 1971(India).
67
SeeContempt of Courts(Amendment) Act 2006, § 13(b) - Here if the court denies the defense it creates
suspicion among the public and when it accepts the defense it leads to the view among the public that court can
be worthy of disrepute for which it had convicted the alleged contemnor; both leading to deterioration of public
confidence in administration of justice.
68
Contempt of Courts Act 1971, s 3,4,5,6,7, No.70 Acts of Parliament, 1971(India).
69
12th Report of Committee on Personnel, Public Grievances, Law & Justice,
http://164.100.47.5/rs/book2/reports/personnel/12threport.htm (last visited Nov 7, 2020).
70
Id, at 20
proposed that with the proposed Amendment to shift the defense of truth to conviction stages,
the active participation of the public in raising issues concerning the functioning of the
judiciary without the fear of being adjudicated for contempt shall have a positive impact. This
is suggested because a mere suppression of public opinion and comments will only
undermine the authority of the court and satisfy the underlying purpose of contempt.

CONCLUSION:

It is contended that while the test remains to decide contempt on whether an alleged
contemptuous statement in issue has harmed by interfering or tends to do so in the
administration of justice and thereby public at large 71, it has been observed that the courts use
this power to bring contempt jurisdiction even in cases where such administration of justice is
not hindered. This anomaly comes due to courts wanting to have one foot stand on two boats
at the same time, where on one side it wants to promote free speech, and on the other side it is
deeply apprehended and concerned about its image before the society. However, through it
all, the main objective it seeks is to maintain the rule of law where the court’s authority is not
undermined.

However Further, it has to be understood that the images of ‘haze of glory’ of courts through
public confidence don not come by being impartial, controlling, or manipulative. This could
be counterproductive and has lead to resentment among people as they may lose respect for
the courts in safeguarding their interests. sow seeds of distrust among people which is
contrary to the very objective that the law of contempt seeks to achieve.

In this regard to have a balance between these ambiguous terms such ‘scandalizing the
judiciary’ and ‘lowering court’s authority’ which provides for court a broad discretion to
protect the institution from any new forms of contempt that may arise in future as well as on
the other hand safeguard the right to freedom of speech and expression of a citizen, a suitable
amendment to section 3 to 772 which will allow truth as a defense at the stage of conviction
itself rather than at the time of sentencing is recommended.

It is suggested that the courts lay some broad guidelines in this regard for the judiciary to
move in the positive and progressive direction. Further, a suitable amendment should be
made to allow truth as a defense at the stage of conviction itself rather than at the time of
sentencing as it serves no purpose. The public has the right to make reasonable statements
71
Perspective Publications Ltd and Anrv. State of Maharashtra, 1969 SCR (2) 779.
72
Id,at 72
and remarks regarding the functioning of the judiciary in the public interest without the fear
of being adjudicated for contempt. Encouraging such participation of the public will help the
judiciary to be vigilant so that the highest standards of the judiciary are not compromised, and
accountability and transparency of court in the eyes of the public thereby retaining public
confidence and the Rule of law is ensured.

1. The Sentences are too wordy. The author needs to fragment them a bit so as to
give the write-up a bit more clarity.
2. The paper could be structured in a better manner which would reduce the
number of redundant sentences.

The paper is well structured. Author is making good arguments which are also well substantiated.
There are a few arguments that needs a little more research. Overall this is a decent paper.

SENIOR EDITOR’S NOTE:

1. The introduction needs to be short and crisp and it needs to highlight the structure of the paper. For
instance, “ this paper has been divided into 3 parts… the first part of the paper talks about understanding the
law on criminal contempt in relation to article 19(1)” then write 2-3 lines about what’s there in this part and go
the same part using the same structure. Make sure to never write keywords for introduction.

2. Insert an Abstract for the paper, the content of which must be Italicized and the abstract must lay down the
purpose of the paper in not more than 100-150 words. Keywords must be given.

3. move the introduction’s content to another sub-heading, background.

4. Paragraph spacing is necessary as it is becoming too monotonous

5. Has the scope of publication provided the piece becomes more analytical as opposed to descriptive.

ME’s Remarks

- The content of the paper is good. The author must note that writing long sentence leads to reduced
concentration, fragmenting the sentences will turn the paper more formal and crisper. Additionally,
there has been of spoken English multiple times, for instance, Reading the…, In fact…. The author
must also note that words must be written in their full form and not as ‘don’t’ or it’s but as does not
and it is. An abstract to the piece is required. Citations must be at every point where the thought is
not yours but have been taken from somewhere. The author must maintain uniformity in the paper,
for instance, the use of terms like Attorney General has had the A and G in lowercase instead of
uppercase, same goes for Supreme court or even the term Court in general. The author must make a
note of that. The author must also not use “in fact” in formal writings.