Rights and restrictions always go hand in hand. There can be no right without reasonable confinements. In a similar thread of rights and reasonable restrictions, the Constitution of India provides freedom of speech subject to certain reasonable restrictions. Indian Constitution enshrines the Freedom of Speech under article 19 as follow;
19.Protection of certain rights regarding freedom of speech etc.
(1) All citizens shall have the right
However, the same article also puts some sort-of restriction to this sub-clause enshrined in clause 2 of this article.
19.(2) Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense.[ii]
Recently, there was a controversy related to this Fundamental right of Freedom of Speech and Expression, where the Supreme Court of India issued a notice to Prashant Bhushan, a public interest lawyer in the Supreme Court of India, regarding his two tweets.
- One of his tweets was related to the” role of the supreme court and four last CJIs in the destruction of democracy”, and
- the other was regarding the Chief Justice of India riding a bike without any mask and helmet during Lockdown due to the Pandemic, COVID-19. The Supreme court issued him a notice for contempt of court.
Prashant Bhushan, a public interest lawyer in the Supreme Court of India, posted two tweets concerning the supreme court and Chief Justice of India.
- He posted his first tweet on 27 June 2020. It states ”When historians in future look back at the 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, and more particularly the role of the last 4 CJIs.”[iii]
- His other tweet was on 29 June 2020. It states, ‘‘CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the Sc in lockdown ode denying citizens their fundamental right to access Justice!”.[iv]
Then the Supreme Court of India on, 22 July 2020, initiated suo moto proceedings for contempt of court to him. The three-member bench of the supreme, including Justices Arun Mishra, B.R Gavai, and Krishna Murari, also issued a notice of contempt of court to him and Twitter for his tweets.
In that order they have stated that;
- “We are, prima facie, of the view that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of the public at large.”[v]
The court asked them to submit their responses as to why they have not committed contempt of court before 5 August 2020. The court also issued a notice to the Attorney General and have asked him to assist them in the matter.
Then the court proceedings started.
- On 14 August 2020, the supreme court of India rejected all the arguments of Prashant Bhushan and asserted that his tweets were based on distorted facts and resulted in a contempt of court. Hence He was held guilty of ”criminal contempt” for scandalizing the judiciary. Then the court said that the next hearing is on 20 August about the quantum of sentencing.
- Then Prashant Bhushan moved to the Supreme court to defer the 20 August hearing on the sentence in contempt of court[vi]. On 20 August, The supreme court rejected this plea and gave him time to reconsider his defiant statement till 24 August, and asked him to submit an ”unconditional apology”, if he wants to.
But Prashant Bhushan said that ‘I do not ask for mercy, I cheerfully submit to any penalty,’
- On 31 August 2020, The Supreme Court imposed a fine of Rs. 1 to him and said that if he fails to do so by 15 September, then he would be imprisoned for three months and barred from practising for three years. Justice Arun Mishra also said that “SC precedents say that the in-house procedure should be adopted for complaints of corruption against judges”.
For better understanding:
What is Contempt of Court
In simple words, Contempt of court refers to any conduct that disrespects the dignity, honour, or authority of a court. In India, the contempt of courts is regulated by the Contempt of Courts Act, 1971.
There are two kinds of contempt of court, Civil and Criminal contempt.
- Civil Contempt: It is defined under section 2(b) of the Contempt of Courts Act, 1971. It reads as-
(b) “civil contempt” means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;[vii]
2. Criminal Contempt: It is defined under section 2(c) of the Contempt of Courts Act, 1971. It reads as-
(c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, 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;[viii]
Punishment of Contempt of Court:
According to section 12(1) of the Contempt of Courts Act, 1971;
”the contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with a fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.”[ix]
It means that an accused may be punished with simple imprisonment that may be extended to six months, or with fine under two thousand rupees, or both can also be awarded depending on the case. However, if the accused apologises to the court and the court is satisfied with that apology, he may be discharged with the liability.
Exceptions to the contempt of court:
According to the Contempt of Court Act, 1971, the following cannot be considered as the contempt of court, so these are the exceptions;
- Innocent publication and distribution of matter (Section3)
- A fair and accurate report of judicial proceeding (Section 4)
- A fair criticism of judicial act (Section 5)
- Complaint against presiding officers of subordinate courts( Section 6)
- Publication of information relating to proceedings in chambers or in camera not contempt except in certain cases( Section 7)
- Act not to imply enlargement of the scope of contempt (Section 9)
What is Suo moto:
It is a Latin term that means ‘on its own motion’. It refers to when a court takes a case on its own, without a request from the parties. It is defined under articles 32 and 226 of the Indian Constitution for the supreme court and high courts, respectively.
Significance of Freedom of Speech and Expression:
In a democratic institution, Freedom of speech and Expression is immensely significant; Democracy is the rule of people, so they must have the right to express their opinion regarding matters that directly and indirectly affect them. A citizen can freely express his or her opinion by distinct means such as by words of mouth, writing, printing, picture, or any other mode. It is a kind of liberty, and liberty is the fundamental and the primary objective of the state, along with Equality, Justice, and Fraternity as defined in the Preamble of India.
However, the State can impose reasonable restrictions on the privilege to maintain morality, public order, and integrity of the state. Moreover, it does not mean that a citizen cannot say anything reasonable and logical against the state or its institution.
Rights are those claims that are crucial for the development of an individual in a community. However, rights can never be absolute; there are always certain restrictions that the State imposes itself. Indian Constitution enshrines certain fundamental rights to all its citizens inclusive of Freedom of Speech and Expression as well. It is very vital for maintaining the very essence of democracy in the world’s largest democratic country.
In this case, also, diverse people including the retired judges of the Supreme Court and high courts, lawyers, politicians, members of the civil society, and others have criticized the decision of the apex court of India. In their opinion, this judgment is limiting or restricting a person to dissent reasonably.[x]
It is noted that there is a need to amend the Contempt of Court Act,1971 as this act does not provide a proper definition of contempt, and it is very vague and questionable. However, the purpose of this act is to limit and restrain people from unreasonable and thoughtless criticism of the judiciary, not restraining from fair, logical, and reasonable criticism.
Student, Jaipur National University
The author is a student pursuing B.A.LL.B.(Hons.) degree at Jaipur National University. She is always eager and enthusiastic to gain knowledge in various subjects and desires to change the wrong perspective of people through her writings. For any clarifications, suggestions and feedback kindly find her at firstname.lastname@example.org