Free expression is a fundamental source of democracy. However, the privilege of the right to freedom doesn’t give any rights to slander the rights of other individuals and their reputation and thus the right to free expression has some restrictions. Bonafide criticism of any structure or organization including the judiciary can not be objected to on any basis, whether under the constitutional power granted or the legislative rule of contempt.
The constitutional freedom of speech and the judiciary’s independence are the two essential and most important constituents of a country’s democracy. The resolution of these two overlapping issues of public concern and the preservation of a balance is a problem for any given political system. Healthy and constructive criticism is a necessary element in the development of democracy. As guardian of the Constitution, the Apex court must protect freedom of speech, even against judicial resentment. The right of every citizen to criticize the court, the judiciary as an institution and its functioning includes freedom of speech and expression. The courts used the power of contempt to punish one who reduces the court’s integrity or interferes with the administration of justice to protect their freedom. Freedom of speech and freedom of the press guarantee transparency for the courts while power of contempt ensures equal administration of justice.
Traditionally, in common law jurisdictions, contempt of court has been marked either as facie curiae or ex facie curiae, or as criminal or civil. The latter difference may be misleading, because it has nothing to do with the criminal or civil nature of the prosecutions. This paper deals primarily with contempt of court as it affects the freedom of expression, namely the law of contempt which restricts comments on pending judicial proceedings and the criticism of judges and courts.
- To what extent is contempt of court affecting the right to freedom of expression.
- How is the ‘ scandalization of the court ‘ evoking significant challenges to the rights of free speech secured under national constitutions?
Article 19(2) allows the Government to place reasonable restrictions on the freedom of speech and expression in relation to contempt of court. “The Contempt of Courts Act of 1971 is the law regulating contempt powers. Civil crime contempt requires willful disobedience of a court order. Contempt, on the other hand, as a criminal offense requires an act or speech (spoken, written or otherwise visible) that does one of three things: Scandalizes or threatens to scandalize or undermine, or attempts to weaken, any court’s authority; biases or interferes (or tends to interfere) with judicial proceedings; or otherwise obstructs the administration of justice. Contempt is defined in 2 ways which are-: 
- Obstructing the Court’s proceedings by actions such as disobeying an order
- Delaying the hearing because of absence or physical / verbal disruption
The right to freedom is secured under the Indian Constitution and the treaties which India has signed with international countries. Every now and then when the government gets elected they all talk about freedom to speech and have made various commitments with regards to this topic. Whether it is politicians, saints, or activists they all get engaged in various mediums of communications like television and media such as newspapers, internet etc and spread this idea of right to freedom of expression.
In 2014, Prime Minister Modi stated that, “Our democracy will not sustain if we can’t guarantee freedom of speech and expression” But still the governments in India implement such laws and take steps which are against such peaceful expressions. But instead the government is using laws like defamation laws and laws which are linked with hate speech to oppress the voices of the helpless people. These laws are being used more by the politicians rather than the citizens of the country. Criminal law is somehow limiting freedom of expression in India. A lack of consistency has led to an incoherent landscape of freedom of speech and left the door open for repeated use of the legislation by local officials and interest groups to harass and intimidate controversial and opposing views.
The problem in India is not that the Constitution does not guarantee freedom of speech, but that it is easy to silence freedom of speech due to a combination of overarching laws, an inefficient criminal justice system and the lack of jurisprudential consistency referred to above. India’s legal system is notorious for being clogged and frustrated, resulting in long and costly delays that may prevent even the innocent from fighting for their right to freedom of speech. The sedition law, Indian Penal Code (IPC) section 124A, is a colonial-era provision that enforced to political leaders seeking independence from British rule. Unfortunately, it is still used frequently against dissidents, human rights activists and government critics. The law allows full life imprisonment in prison. It forbids any signs, visual symbols, or words, spoken or written, that may cause government “hatred or contempt, or excite or attempt to arouse disaffection.” The Supreme Court of India has imposed restrictions on the use of sedition law, making incitement to violence a necessary element, but even in cases where this requirement is not met, the police continue to file sedition charges.
In February 2016, the Delhi police arrested Kanhaiya Kumar, a student union leader at Jawaharlal Nehru University, after members of the student arm of the governing Bharatiya Janata Party (BJP) accused him of making anti-national remarks during a campus conference. A public meeting was held on 9 February to protest the 2013 hanging of MohammadAfzal Guru, who was convicted in a December 2001 attack on a parliament that killed nine people. The execution of Afzal Guru remains a matter of intense debate in the country. The Delhi police admitted to the court that Kumar had “not been seen” raising any anti-national slogans in the available video footage. He was granted bail by the High Court of Delhi in March. Five more students were taken into custody; two, Umar Khalid and Anirban Bhattacharya, were also arrested and later released on bail. Nevertheless, following the acknowledgment by the police that they had no proof of Kumar’s anti-national speeches, and certainly no evidence of incitement to violence, the government has yet to accept that the arrests were incorrect. Kumar’s arrest thus shows how divided the country is over the sense of harmony and the necessity of legal protection of free, if marginalized, speech. 
Going through the Indian legal process can often be a penalty in itself. Defenders in the country’s criminal justice system also face prolonged, long-standing trials. In some cases, judges often tend to be poorly qualified in matters of freedom of expression and refuse to heed the instructions of the Supreme Court when it comes to imposing limits on political expression. Criminal cases often put pressure upon people because they can’t raise their voices when they are stated as the accused even though they are actually not. Since they are insecure of being punished or saying something which can put them in some kind of risk.
Through all these laws the legal system of India is suppressing the right of freedom to expression which is a fundamental right of all citizens of India. On the other hand the contempt of court is also important but it is the duty of the court to follow the principles and provide justice which comes in the form of these laws rather than compressing the people by violating their right to freedom of speech. The courts are being criticized by the people because it is a public institution and a public institution must be standing upon its own merits in a society.
They have to maintain their position, trust and faith that the citizens of a country have in them. Their conduct has to be such that they are able to stand in the society and are able to develop the confidence within the people of this society. Hence, if their conduct stands up to the expectations of the public and wins their trust and confidence then they do not require any sort of protection laws which acts as a shield for them from the criticism of the public. This will automatically stop the sacandalization of the courts in a country and maintain its dignity and respect amongst the society. Furthermore, the citizens will not also not lose their right to freedom of expression and this will maintain a balance between the contempt of court and freedom of speech.
Human Rights Watch has recommended India to follow certain guidelines which are as follows:-
- Create a clear plan and timeline for reforming or amending laws that criminalize free speech as outlined at the conclusion of this article, and engage Civil Society organisations in an open and public manner when legislation is to be revised.
- Dispose of all charges and close all proceedings in cases where free speech or assembly was involved in the underlying actions.
- Train the police to ensure that illegal proceedings are not put before courts. Train judges on peaceful standards of expression, especially in the lower courts, so that they can dismiss cases that violate protected speech.
To conclude, it can be said that the conflict between freedom of expression and the administration of justice is important because of the high public interest in maintaining and preserving these values. There is also a strong difficulty in finding substantive parallels between the infringement of the rules of the court which occur in common law structures and the different standards which exist in civil and other jurisdictions. There is a very much need to learn something from international standards and how they balance between the contempt of court and the right to freedom of speech. In my opinion it is the duty of any public institution whether it is the parliament or the courts to be impartial, precise and fair to the justice system. If an individual is commenting on a judge’s decision being impartial or the system being unfair then its his/her right to freedom of speech and they can say whatever they like, the institutions can’t take over control over the rights of people to maintain their contempt. Their responsibility is to be fair and impartial to all the citizens. The laws framed are for serving the citizens of this country not for oppressing their voices. A court’s contempt can be balanced if they are fair and able to win the confidence of the people because if people have faith in them then nobody would be able to pass any comments which are against the contempt of the court.
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Note: The opinions are personal to the author, if any.
This article has been contributed by Muskaan Punia of Symbiosis Law School, Noida.