SEMESTER I (Academic Year- 2022-23)

Legal Methods
Topic- “Freedom of Speech Vis-a-vis Contempt of Court”

SUBMITTED TO:
Prof. Priya Kumari
Assistant Professor
NMIMS Kirit P. Mehta School of Law

SUBMITTED BY:
Abhishek Kumar Pandey
B.A. LL. B (Hons.) Div. B
Roll No. B011

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Table of Content:

Sr. No. Content Page No.

1. Abstract 2

2. Introduction 3-4

3. Findings 5-6

4. Conclusion 7

5. Bibliography 7

Abstract:

In this research paper, I have made an attempt to examine and explain the concept of contempt of
court. The research will around the every aspect of the contempt of count including constitutional
provisions regarding the power to punish, scope of this power, judicial interpretation,etc. The
wide power of judiciary in frequently exercising the contempt of court has led to a burning debate
on the justifiablity of such power of the court.
With utmost respect of judiciary , this research paper is dealing with various concept of contempt
of court. The main aim of this law is to protect the administration of justice in criminal as well as
civil cases. The makers were not only aware of the responsibility it carried but also they aware of
the great power of this law. And as saying goes “with great power comes great responsibility”
they aware of the consequences it carried if not restricted. In fact, our fundamental rights is not in
the sense of unlimited liberty given to us by ou constitution makers but yes it served in a
restricted sense. Had thee been no restraint, the rights and freedom , may become synonymous
with anarchy and disorder. Further in this research paper I also did the case analysis of Prashant
Bhusan Contempt of case.

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 Introduction:

"What is freedom of expression? Without the freedom to offend, it ceases to exist"

-Salman Rushdie

“Freedom of speech is a principle pillar foe a free government, when this support is taken away,
the constitution of free society is dissolved, and tyranny is erected on its ruins.”
-Benjamin Franklin

“Today truth is defence. So, when the court is offended by the comment of someone, it must, it is
by law bound to give him the opportunity to prove his assertion.”
-Arun Shourie

God bestows onto humans the ability to communicate by giving them the gift of language.
Language is the primary means through which humans communicate their thoughts, emotions,
and experiences to one another. For this reason, it deserves the status of a universal human right.
The freedom to think and speak freely is a prerequisite for other forms of freedom. As such, it
occupies a privileged and pivotal position in the liberty hierarchy. The right to speak one's mind
freely is sometimes called the "mother" of all other rights. The freedom to freely share one's
thoughts and feelings with others, whether verbally, in writing, in the media, through
photography, or through any other medium, is at the heart of the concept of free speech and
expression. In today's world, most people agree that protecting people's freedom of speech is
essential to maintaining a free society. The very foundation of a free society is the free exchange
of ideas in a public arena, free of censorship. The right to speak one's mind freely, especially in
the absence of fear of retribution, plays a crucial role in the development of that society and, by
extension, that state. It's a huge deal that the US Constitution protects us from having our speech
censored or controlled in any way.

Freedom of speech and expression includes the right to criticise any group.1 Each authority is
subject to open and honest criticism from the general public on its performance and actions.
Remember that while press freedom is implicit in the right to free speech and expression, it is not
a necessary component of that freedom. The press plays a crucial role in disseminating relevant
information to the public by publishing and disseminating articles on the topic. It is the
responsibility of the press to relay the views of the masses, including criticisms of specific
officials, to the higher authorities.2 Such criticism raises the authorities' accountability.

Individuals and the media are free to remark on and criticise any court act since the judiciary is
open to public inspection. Lord Denning was right when he said that the press serves as a
watchdog to ensure that all court processes are conducted in an open,fair, and honest manner.3
1
Freedom Of Speech And Expression, https://www.legalserviceindia.com/legal/article-77-freedom-of-speech-and-
expression.html.
2
Emerging issues in Social Responsibility theory of Media in todays era, Scholarticles (Aug. 28, 2015)
3
Journals.Sagepub.Com
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But there might be instances where criticism could potentially undermine the judge's authority. power,
and even obstruct the proper functioning of the judicial system. With this in mind, the Court has the
authority to penalise any such behaviour that seems to denigrate the value of the judiciary with
contempt of court under The Contempt of Courts Act, 1971.4

Research Objective:
1. To what extent is contempt of court affecting the rights of freedom of expression.
2. How does the "scandalization of the court" pose substantial threats to the free expression rights
guaranteed by national constitutions?

Research Question:

1. Why freedom of speech and expression is not absolute in nature?

2. How does the Prashant Bhushan Case become the leading case in the law of Contempt of
Court?

Research Methodology:

In this research paper research methodologies are followed by collecting information from
articles, journals, research papers, report, Case analysis and also the secondary sources of data
have been taken into consideration. A qualitative analysis of the available material has been made
in order to analyse data from multiple resources in a flexible and open-ended manner regarding
the law contempt of court affecting the right of freedom of expression and however, a personal
interpretation of the data collected has also been made. Deductive reasoning method has been
taken into consideration in order to advance a supposition for the said topic and to derive at an
appropriate reasoning from the stated facts relevant to the topic. Analytical reasoning method has
been taken into consideration, wherein the conclusion is assumed and the order in which the
conclusion is derived is taken into consideration and analysed.

Findings:

The aforementioned claims put at odds the right to free speech with the prohibition against
contempt of court. The authority to penalise judicial contempt ensures the open and unfettered
administration of justice, while the right to criticise the court in a fair and reasonable manner
strengthens its accountability

4
Law Commission's Review on amendment to Contempt of Court Act: Whether necessary |, SCC Blog (May 1, 2018)
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 A general common law notion, contempt of court covers a wide range of behaviours. It was
defined as "the Proteus of the legal universe, 5 adopting an almost endless diversity of forms" by
Joseph Moscovitz in a widely cited essay from the Columbia Law Review. 6 Contempt legislation
mostly addresses issues related to disrupting the functioning of the judicial system. Lord Diplock
said when someone is found guilty of contempt of court, it is not the court or the judge that they
are disrespecting, but the concept of justice itself.7

Article 19(2) permits the government to impose reasonable restrictions on the freedom of speech
and expression in regard to contempt of court.Traditionally, in common law jurisdictions,
contempt of court has been divided into two types: in facie curiae (in front of the court) and ex
faciae curiae (outside the court), as well as criminal and civil. This latter distinction is not related
to whether the procedures are criminal or civil, which might lead to some misunderstanding.
Scandalizing the court includes screaming in court, disclosing information that might impair the
right to a fair trial ("trial by media"), or criticising the court or a judge in a way that could cause
the public to lose faith in the justice system. If you defy a court order and are found guilty of civil
contempt, you might be fined or even sent to jail. Since "the administration of justice would be
compromised if the order of any court of law could be rejected with impunity," enforcing court
orders through civil contempt is necessary to preserve public faith in the judicial system. 8 The
difference between the two may be less important now, but it's still helpful for categorising
reasons, as Lord Scarman has pointed out. While the distinction between "civil" and "criminal"
contempt is largely irrelevant today, it does call attention to the fact that some forms of
disobedience—such as "scandalising the court," physically interfering with the course of justice,
or publishing matters likely to prejudice a fair trial—are more serious than others.

In particular, this paper is concerned with contempt rules that limit commentary on current
judicial procedures and criticism of judges and courts, and how these laws impair the First
Amendment right to free speech. Note that a third freedom of speech concern is connected to the
contempt of court theory, and it arises when a journalist is found in contempt for disobeying a
court order to reveal a source. This topic has been extensively discussed elsewhere, therefore it
will not be addressed here. Although there is no parallel to the common law theory of contempt
of court in its wide, inclusive sense9 under civil law, there are definitely practical analogies,
especially in areas pertaining to freedom of expression.

It is important to recognise that open criticism strengthens the judicial system's accountability to
the public. It's commonly agreed that the people are the ultimate authority in any democracy. In a
democratic system, it's perfectly acceptable to refer to someone as "the master," since all other
authorities—the government, the court, the executive branch, etc.—are subservient to "the
master." The right conduct of a country is spurred on by criticism, as it shows the authorities
where they are falling short in their tasks. When people consider the possibility of being charged
with contempt of court under The Contempt of Court Act, 1971, they understandably refrain from
publicly criticising any branch of the judicial system. A court of law is given the unjust power to
punish any action that undermines the legitimacy of the judicial system by virtue of this act. They
can punish any criticism, no matter how helpful it could be in enhancing the efficiency of the
judicial system.

5
Miller on Contempt of Court, Oxford University Press
6
J Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Col. LR 780. (1943).
7
AG v. Leveller Magazine Ltd., AC 440 p. 449. (1979).
8
AG v. Times Newspaper Ltd., AC 273 p. 308. (1974).
9
M Chesterman, Contempt: In the Common Law, but Not the Civil Law, 46 ICLQ p.521 (1997).
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 The judiciary against whom the criticism is made is the sole body with the authority to determine
whether or not the criticism is of a fair and reasonable nature, despite Section 5 of the
aforementioned Act's stipulation to the contrary. There is a clear violation of the presumption of
innocence and the rule that no party should be the judge of its own case if this occurs.
An Analysis in the light of Prashant Bhushan Case:

The Hon'ble Supreme Court has initiated suo moto contempt proceedings against Advocate on
Record (AOR), Shri Prashant Bhushan10 for his tweets against previous Chief Justice of India,
Shri SA Bobde, his 2009 interview with Tehelka magazine where he questioned the integrity of a
few past Chief Justices of India, and some of his recent tweets where he has questioned the long-
term impartiality of the Supreme Court of India. Mr. Bhushan was quick to backtrack on his
defence of the tweet after contempt proceedings were launched. He later apologised for the post
and said he had no ill will toward India's Chief Justice or his position. Mr. Bhushan, however, has
steadfastly declined to apologise for his offensive comments made in a 2009 interview with
Tehelka magazine or for any of his previous tweets. In his response to the contempt proceedings,
Mr. Bhushan said that, to the best of his knowledge, he did not intend any disrespect toward the
Hon'ble Judges' offices in the interview or the tweets. He was only providing helpful feedback,
thus any apologies, conditional or otherwise, would be insincere.

On July 21, 2020, a constitutional bench began suo moto contempt proceedings against Prashant
Bhushan and on August 14, 2020, they found Mr. Bhushan guilty of the crime of contempt of
court; the matter is still pending with respect to the severity of his punishment, which is expected
to be announced later this month. In recent memory, this seems to be the quickest the Hon'ble
Supreme Court has dealt with a case on its merits. We can only pray that this level of
effectiveness is maintained in all future endeavours.
Mr. Bhushan had previously explained to the court in writing that a "allegation of corruption per
se cannot be contempt" because the same applies to criticism of a judge for a biassed dispensation
of justice and would in all cases require further investigation before such allegations are brushed
aside at the threshold. He had claimed that telling the truth was an acceptable defence under
Section 13(b) of the Contempt of Courts Act of 1971.
The senior lawyer claimed in the interview that he meant to embrace all forms of wrongdoing
when he used the term "corruption."

Similarly, in the post-emergency period of 1977–1988, two editors, Shamlal of The Times of
India and S. Mulgaokar of The Indian Express, were charged with contempt of court for articles
published in their respective newspapers in which they questioned the bench which decided the
case of A.D.M. Jabalpur v Shivakant Shukla11, which was decided by the then Chief Justice of
India Justice A K Ray, Justice M H Beg, and Justice Jaswant Singh. Both Shamlal and
Mulgaokar questioned the judges' honesty in their criticism of the aforementioned ruling and
their essays appeared around the time that Justice M H Beg was named Chief Justice of India.
The judges' actions during the recently finished emergency session were addressed in both
publications; one of them included commentary from a variety of public intellectuals. These
pieces took use of the press freedom that had been restored by the Janata Party administration at
the time. Even though Justice D Y Chandrachud and Justice P N Bhagawati are the two senior
most judges in India, one article argued that they should not be considered for the job of Chief
Justice of India. Both editors have been the subject of two separate suo moto contempt

10
2020 SCC OnLine SC 588.
11
ADM Jabalpur vs. Shivkant Shukla (1976) SCC 521
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proceedings. In the end, a constitutional bench found that neither editor had committed contempt
of court, but they had both chosen to fight their cases. It's worth noting that the two editors were
found not to be in contempt of court despite having made comments doubting the integrity of
some sitting judges and the then Chief Justice of India.
This demonstrates the value placed on the editors' and writers' First Amendment rights to
freedom of expression and the press. While Mr. Bhushan, as an Indian citizen, was within his
rights under Article 19 Clause 1 sub-clause (a) of the Indian Constitution, he faced contempt
charges because his comments were deemed to be derogatory to the office of the Chief Justice of
India and other senior members of the Judiciary. Legally and according to protocol, the actions
taken against Mr. Bhushan were proper. Mr. Bhushan, as an official of the court, had the duty to
exercise his First Amendment rights responsibly, within the bounds of reasonable constraints, and
with the utmost respect for the office of the Chief Justice of India.

Conclusion:

Even while it is true that all citizens of India have the right to freedom of speech and expression,
citizens can be punished for contempt of court, which places a legitimate limit on this right. The
government of India guarantees its inhabitants a set of fundamental rights, yet none of these
rights are ironclad. One's right to free speech may be restricted in some circumstances, including
but not limited to those involving defamation, indecency, disruption of public order, and
incitement to engage in illegal behaviour. Some people believe that the expansive nature of the
reasonable restrictions that are outlined in clauses 2 to 6 of Article 19 of the Indian Constitution
is an infringement on the rights that are protected in the first clause of Article 19 of the Indian
Constitution. They understood that if they enshrined absolute rights on Indian citizens, serious
situations would arise, leading to a failure of constitutional machinery; as a result, they included
appropriate restrictions with the intention of keeping balance. The founders of the Indian
Constitution understood that if they enshrined absolute rights on Indian citizens, grave situations
would arise, leading to a failure of constitutional machinery. In the end, the Indian Constitution in
its current form is a living document that has persisted for over seven decades despite numerous
amendments and numerous unsuccessful attempts to water down the spirit of the Indian
Constitution. In other words, the Indian Constitution is a constitution that continues to evolve
over time.
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Bibliography:

1. K. Balasankaran Nair, Law of Contempt of Court in India (2004).

2. Eric Barendt, Media Freedom and Contempt of Court (2017th ed. 2004).
3. Rajeev Rambhatla, Free Speech Vs Contempt Of Court, An Analysis In Light Of The Prashanth
BhushanCase, India (Aug. 31, 2020),
https://www.mondaq.com/india/libel-defamation/980554/free-speech-vs-contempt-of-court-
an-analysis-in-light-of-the-prashanth-bhushan-case-.
4. https://www.article19.org/data/files/pdfs/publications/foe-and-contempt-of-court.pdf.