While the freedom of speech and expression gives all citizens the right to criticise courts and judges, it does not encourage contempt of the same.
Last month, the Supreme Court set aside a contempt order, which was passed by the Punjab and Haryana High Court almost half a year ago, sentencing a lawyer to one-month imprisonment for his contemptuous act of unfairly criticising a High Court judge on Facebook.
The Punjab and Haryana High Court had initiated a suo motu contempt case against advocate Maneesh Vashistha for his post on Facebook, where he stated that a judgment passed by one of the judges of the High Court was not a speaking order and that a better decision could have been written by a magistrate.
Further, he complained that the judge had not uploaded the order even a week after its pronouncement and that this must have happened because he might not have understood what was to be written therein.
The setting aside of the High Court’s order by the apex court raises an interesting question: Where do we draw the line between free speech — criticism and talks that question the authority of the court — and contempt?
To understand the above-mentioned question, let us take a look into the very rationale behind the existence of the Contempt of Courts Act, 1971 (hereafter referred to as the Act 1971). Why does the judiciary, which is the protector of freedom of speech and expression, create an exception for its own criticism?
As it turns out, the judiciary allows for a legitimate criticism of the institution but an unfair comment that unduly lowers or scandalises the authority of the court is a strict no-no. The reason for the same, as has been reiterated in a number of judgements, is to safeguard public interest that would have otherwise been adversely affected by such a comment.
Not only would such a comment diminish the authority of the court but would also erode public confidence in the institution of justice. Apart from the truth, which is a defence that has been inserted after an amendment to the Act 1971 in 2006, the foremost shield is the right to genuine criticism.
It has been time and again held by the Supreme Court that the right to free speech and expression under Article 19(1)(a) of the Indian Constitution includes the right to fair criticism, and the judiciary, like any other organ or institution of the state, does not enjoy immunity from being fairly criticised in the course of its functioning. This freedom to criticise the judiciary includes the right to criticise the judgements of the courts.
Usually, the test employed by the court for contempt proceedings relates to the erosion of public confidence. Though wordings of the test would seemingly make it appear as fairly a simple one, practically speaking, its application is very complicated.
What are the criteria to decide whether a comment denigrates public confidence in the judiciary? Even this question is not so pressing. The real problem arises when a distinction has to be made between a personal attack on a judge in his/her individual capacity — which might fall under the category of defamation — and one that is made on the office of the judge, which tends to interfere with the course of justice and is hence a wrong done to the public.
While initially, the courts held both the aforementioned cases in two different watertight compartments, with time, the distinction became blurred. In the case, DC Saxena vs Chief Justice of India, the top court had held that a defamatory statement against a judge would constitute contempt when the comment is of such a gravity that erodes public confidence in the system.
This test is one that has been formulated on baseless grounds. It is but natural that a statement that tends to raise serious allegations against any judge (even in his/her own individual capacity), can logically be extended as an attack on the judicial institution.
Freedom of speech and expression is an essential right that the makers of the Constitution gifted to the citizens of this country so as to protect the very institution of democracy. Across the globe, the right to free speech is seen as something that is sacrosanct for the effective functioning of a healthy democracy. It is only when a person is provided with a platform to express himself that truth emerges.
This is not to suggest that any imputation, that is not reasonably justifiable or is not rational or sober and is made unfairly, should not be punished. Checks and balances must exist in a way that our pristine institutions of justice are not polluted by those who do not want our democracy to function properly.
Perhaps this can be best explained through a quote by the Supreme Court in the contempt case against Arundhati Roy, which it borrowed from the US Supreme Court judge, Justice Frankfurter in the Pennekamp vs Florida case: “If men, including judges and journalists, were angels, there would be no problems of contempt of court.
Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is given to a lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for judges as persons but for the function which they exercise.”
At present, the judiciary is the only wing of the Government that has not received flak of the people for being an ineffective and corrupt organ of the state. Even today, the phrase: “I will see you in court” not only portrays the intention of the person to fight for his/her cause but also exhibits the confidence reposed by the people of this country in the judiciary as the ultimate place where one can find justice.
In the light of this perception, judges of various courts must be more open and friendly to criticism. Even if an unscrupulous person tries to launch an attack on a judge, he/she should first distinguish whether the criticism is personal or professional. If the latter seems to be more probable, then surely a case of contempt should be instituted. The court in such a situation has to be very mindful because invoking contempt jurisdiction at the drop of a hat will in turn lower respect for the judiciary in the eyes of the people and, therefore, defeat the very purpose for which the Act was established.
Writer: Raghav Pandey/Neelabh Bist
Courtesy: The Pioneer