ISSN 0970-8669 Odisha Review

Contempt of Court Vis-a-Vis

Freedom of Speech
J.K. Samantasinghar

In Indian Constitution, Article 129, or by visible representation or otherwise) of any

makes the Supreme Court the 'Court of record'. matter or the doing of any other act what so-ever
A court of record is one whose records and which-
judicial proceedings are preserved for perpetual
(i) Which scandalises or tends to scandalise
memory having evidentiary value binding on all
or lowers or tends to lower the authority of, any
other courts.
court; or
Thus the Supreme Court shall be a court
(ii) Prejudice or interferes or tends to
of record and shall have all the powers of such
interfere with the due course of any judicial
court including the power to punish for contempt
proceedings; or
of itself.
Interfere or tends to interference with or
Article 215 of the constitution of India
obstructs or tends to obstruct, the administration
also says that "every High Court shall be a court
of justice in any other manner.
of record and shall have all the powers of such a
court including the power to punish for contempt Very often it is alleged that, Article 129
of itself." and 215, conferring the Supreme Court and High
As per the contempt of courts Act 1971, Court with contempt power run contradictory to
contempt of court includes both civil and criminal the article 19 (1)(a) which guarantees freedom of
contempt. Contempt of court refers to actions speech and expression.
which eithes defy a courts authority, cast In C.K. Daphtary, Sr. Advocate and Others
disrespect on a court or impede the ability of the
-Vrs-
court to perform its functions.
Shri O.P. Gupta and others1
Civil contempt means:- Wilful,
disobedience to any judgement, decree, direction, His lordship Shrikri held that,
order or other process of a court or wilful breach “Before dealing with the question of maintainability
of an undertaking given to a court. of the petition and other points raised in his
Criminal contempt implies the publication application dated Jan 28, 1971, we propose to
(Whether by words spoken or written by science dispose of the point regarding the validity of the

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existing law relating to contempt of Court. The any unwritten constitution. We have a written
first respondent has urged that the existing law constitution i.e. a codified fundamental law & on
relating to contempt of court by writings in respect the anvil of which other rules/norms must be tested
of proceedings which have finished is repugnant and validated .Like the United State of America,
to Article 19(1) (a) read with article 19 (2). He we have a written constitution. In the American
contends that the existing law imposes constitution, the freedom of speech & expression
unreasonable restrictions on a citizen’s right to is sacrosanct and there is no provision imposing
freedom of speech guaranteed under Article 19 restrictions like Article 19 (2) of our constitution.
(1) (a). He urges that we should follow the law The first amendment to the U.S. constitution inter
existing in the United States of America. Mr. C.K. alia says “Congress shall make no law abridging
Daphtary on the other hand, contends, first, that freedom of speech or of the Press” The above
Article 19 (1)(a) and Article 19 (2) do not apply amendment is couched in such language that
to the law relating to contempt of this Court makes it clear that congress is under an obligation
because of Article 129 of the Constitution, which not to bring any enactment or law abridging
reads: freedom of speech or of the press.
“The Supreme Court shall be a court of record In India however, freedom of speech, one
and shall have all the powers of such a court of the basic rights is subjected to the restriction
including the power to punish for contempt of as mentioned in article 19 (2). We have made the
itself”. scope very limited giving little scope for scathing
Secondly, Mr. Daphtary urges that the criticising for fear of coming under the prohibiting
existing law relating to contempt of courts is not area of Article 19(2)...... and contempt of court
a “law” covered by the definition of the word is one such restricted area in the name of which
“law” in Article 13 (3) (a). Thirdly Mr.Daphtary restrictions can be imposed in the exercise of
contends that the existing law only imposes freedom of speech expression. Deep Respect for
reasonable restrictions within the meaning of the judicial dictum is equally important but at the
Article 19(2) of the Constitution. same time freedom of speech and expression
should not be circumscribed in the name of
Very often doubts are raised as to
whether Article 19 (1) (a) which is general and contempt power of court. It is the basic right of
placed in chapter-III having known as every citizen in any democracy to criticise and
fundamental or basic rights if run subsidiary to comment on the functioning of the organisations
Article 129 and 215. However, if we analyse the of the Government——be it Legislature executive
court rulings or judiciary. In a democracy the freedom of speech
and expression should not be qualified with the
1. AIR 1971 SC 1132 words i.e. bonafide, good faith, constructive,
We will find in most cases, the Judicial criticism and thus any restriction on the pretext of
dictum apparently takes the view that, Article 19 reasonable restriction is against the spirit of
(1)(a) must run subsidiary to that of contempt constitutional government. The importance of
power of apex court as enunciated under article freedom of speech and expression can well be
129 & 215. Unlike British system we do not have inferred from Thomas Jefferson’s2

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2. The writing of Thomas Jefferson- conduct of a judge in his judicial capacity or even
cited in North Dakota Law Review, Vol.42 to make a proper and fair comment on any
(1966). decision given by him because “Justice is not a
cloistered virtue and she must be allowed to suffer
Statement that “the people are the only
the scrutiny and respectful, even though
censors of their governors”. Thus it is needless to
outspoken, comments of ordinary men.”
say that freedom of speech and expression implies
unqualified freedom and otherwise there will be 3. De jonge –vrs- Oregon, 299 us 353
little scope that people may discuss and comment 4. AIR 1971 SC 779
on the grey areas of governance for fear of being
repugnant either to the privileges of court or Hidayatullah,Cj, in R.C.Cooper –vrs-
parliament. Union of India5 observed “There is no doubt
that the court like any other institution does not
American Chief Justice Charels Evance enjoy immunity from fair criticism. This court does
3
Hughes says imperative is the need to preserve not claim to be always right although it does not
inviolate the constitutional rights of fair speech, spare any effort to be right according to the best
free press and free assembly in order to maintain of the ability, knowledge and judgment of the
the opportunity for free political discussion, to the judges. They do not think themselves in
end that government may be responsive to the possession of all truth or hold that wherever others
will of the people and that, changes, if desired differ from them, it is so far error. No one is more
may be obtained by peaceful means. Therein lies conscious of his limitations and fallibility than a
the security of the Republic, the very foundation judge but because of his training and the assistance
of the constitutional government. he gets from learned counsel he is apt to avoid
In perspective Publication Ltd mistakes more than others.........We are
–Vrs- constrained to say also that while fair and
State of Maharastra4 temperate criticism of this court or any other court
even if strong, may not be actionable, attributing
Grover. J, speaking on behalf of the improper motives, or tending to bring judges or
court, reviewed the entire case law and stated courts into hatred and contempt or obstructing
the result of the discussion of the cases on directly or indirectly with the functioning of courts
contempt as follows:- is serious contempt of which notice must and will
1. It will not be right to say that committals be taken. Respect is expected not only from those
for contempt for scandalizing the court have to whom the judgment of the court is acceptable
become obsolete. but also from those to whom it is repugnant. Those
who err in their criticism by indulging in vilification
2. The summary jurisdiction by way of of the institution of courts, administration of justice
contempt must be exercised with great care and and the instruments though which the
caution and only when its exercise is necessary administration acts, should take heed for they will
for the proper administration of law and justice. act at their own peril. We think this will be enough
3. It is open to anyone to express fair, caution to persons embarking on the path of
reasonable and legitimate criticism of any act or criticism.”

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5. AIR 1970 SC1318 than punitive action against a publisher, even

6. AIR 1978 SC 727 assuming (without admitting) he was guilty. The
preliminary proceeding has been buried publicly:
7. AIR 1978 SC 727, Para 23 let it lie in peace. Many values like free press, fair
In Re: S. Mulgaokar6 C.J. observed that trial, judicial fearlessness and community
the judiciary is not immune from criticism but when confidence must generously enter the verdict, the
that criticism is based on obvious distortion or benefit of doubt, without absolutist insistence,
gross misstatement and made in a manner which being extended to the defendants. Such are the
is designed to lower the respect of the judiciary dynamics of power in this special jurisdiction.
and destroyed public confidence in it, it cannot These diverse indicators, carefully considered
be ignored. He further declared: have persuaded me to go no further, by a unilateral
“I do not think that we should abstain from using decision of the Bench. This closure has two
this weapon even when its use is needed to consequences. It puts the lid on the proceedings
correct standards of behaviour in grossly and without pronouncing on the guilt or otherwise of
repeatedly erring quarter.” the opposite parties. In a quasi-criminal action, a
presumption of innocence
Krishna Iyer, J. While concurring observed (para
23)7 Operates. Secondly, whatever belated
reasons we may give for our action. We must not
“The contempt power, though jurisdictionally proceed to substantiate the accusation, if any. To
large, is discretionary in its unsheathed exercise. condemn unheard is not fair play. Bodyline
Every commission of contempt need not erupt in bowling perhaps, is not cricket. So my reason do
indignant committal or demand punishment, not reflect on the merits of the charge.”
because Judges are judicious, their valour non-
violent and their wisdom goes into action when He further observed “contempt power is
played upon by a volley of values, the least of a wise economy to be used by the Court of this
which is personal protection—for a wide branch of its jurisdiction. The court will act with
discretion, range of circumspection and rainbow seriousness and severity where justice is
of public considerations benignantly guide that jeopardized by a gross and/or unfounded attack
power. Justice if not hubris; power is not petulance on the judges, where the attack is calculated to
and prudence is not pusillanimity, especially when obstruct or destroy the judicial process. The court
Judges are themselves prospectors and mercy is should harmonise the constitutional values of free
a mark of strength, not whimper of weakness. criticism and the need for a fearless curial process
Christ and Gandhi still not be lost on the Judges and its presiding functionary, the judge. A happy
at a critical time when Courts are on trial and the balance has to be struck, the benefit of the doubt
people (We, the people of India) pronounce the being given generously against the judge, slurring
final verdict on all national institutions. Such was over marginal deviations but severely proving the
the sublime perspective, not plural little factors, supremacy of the law over pugnacious, vicious,
that prompted me to nip in the bud the proceeding unrepentant and malignant condemners, be they
started for serving a larger cause of public justice the powerful press, gang up of vested interests,

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veteran columnists of Olympian intended that in the exercise of the right, contempt
establishmentarians.” of court shall not be committed.
AIR 1970 SC 2015 In fact before deciding/determining
In E.M.Sankaran Namboodripad –Vrs- whether the language or criticism can be deemed
T.Narayanan Nambiar8 it was stated on behalf of to be contemptuous and thereby justify punitive
the contemners that law of contempt must be read action on the part of the court, we must not
without encroaching upon the guaranteed freedom overlook the fact that in a constitutional
of speech and expression in Art.19 of the government anybody has a right to criticise the
constitution and the intention of the contemner in judgement of any court, the only restriction being
making the statement should be examined in the the criticism must be in respectful language. So
light of his political views as he was at liberty to long such criticism are made in good faith being
put them before the people. It was further argued couched in respectful language and not
as that the species of contempt called intentionally and maliciously tend to bring the court
‘scandalising the court’ had fallen apart and laws into disrepute it cannot be contempt of court and
no longer enforced in England, the freedom of hence proceeded with. In the name of contempt
speech and expression gave immunity to the of court it is not proper to limit the scope of
appellant contemnor to publicise the political freedom of speech and expression to a fix
philosophy in which he believed. The Court while bounded territory saying that travel beyond this
rejecting the plea held “the appellant has contended is contemptuous.
before us that the law of contempt should be so
applied that the freedom of speech and expression
are not whittled down. This is true the spirit
underlying Art.19 (1) (a) must have due play but
we cannot overlook the
8. AIR 1970 SC 2015
Provisions of the second clause of the
article. While it is intended that there should be J.K. Samantasinghar, Secretary, Odisha State Bar
freedom of speech and expression, it is also Council, Cuttack.

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