Introduction

The right to free speech and expression is incorporated in Part III of the Constitutionof India as a Fundamental Right of the citizens under Article 19(1aThis, however, is not an unbridled right Article 19(2 allows the impositionof reasonablerestrictions on this right under certain circumstances One of these is “in relation tocontempt of court”. Unlike other restrictions listed under Article 19(2, the Constitution specificallyconfers power on the Supreme Court and High Courts topunish a person who commits contempt of court, under Article 129 and Article 215.

Additionally, the Contempt of Courts Ac t, 1971 (the Act was enacted, and itdistinguished between civil and criminal contempt..

Contempt law in India traces its genesis to the laws enacted by the British in theearly 1900sWhen the ruling power is a coloniser, the dispensation could neverallow its laws and its courts” pronouncements to be criticised or be subjected tocontempt by the ruled To enable their courts to function without criticism and toexact unwavering obedience to their draconian laws, the British enacted thecontempt law While the concept of contemptof courts is a legacy of Britishcolonialism flowing from the Contempt of Courts Act, 1926, its continuance in India and the manner in which contemptpower has been wielded by Indian courtshave been discussed and critiqued widelyA major criticism against contemptlaw in India is that it has been used by the judiciary to suppress public criticism and that, consequently, it undermines the freedom of speech and expression guaranteed by the Constitution While there can be no doubt that the judiciary as a public institutionmust be respected incivil society, the questionthat continues to be debated iswhether respect for the judiciary must bepropped up and enforced through laws orshould respect for judicial institutionsbe commanded through their performanceand conduct? In response, the need for contemptlaw to “protect” the judiciary has Judicial Approach to Free Speech in Contempt of Court Cases

In India, the Act recognises two types of contempt: civil contempt and criminalcontempt Civil contempt refers to wilful disobedience of a judgment, decree, direction, order, writ, or other processe’s of a court, or wilful breach of anundertaking given to a court There is consensus over the reasonableness, need, applicability, and relevance of thispart of the law However, the power to punish forcriminal contempt iswhat has raked up substantial debate and controversy Theinvocation of Section 2(c of the Act is in the context of three main elements: (a words, whether written or spoken, signs and actions that “scandalize” or “tend to scandalize” or “lower” or “tendto lower” the authority of the Court, (b “prejudices” or “interferes with” any judicial proceeding, and (c “interferes with” or “obstructs” the administration of justice.

In a criminal contempt proceeding, the courts don the combined role of victim, prosecutor, and adjudicator As will be illustrated in the sections below, thephraseology in the statute coupled with the broad and discretionary powersconferred on courts wielding the contempt jurisdiction have added tounpredictableoutcomes and grossly disproportionate sentences handed down by courtsto-.

“contemnors”. Additionally, criminal contempt has been criticised as being subject to the opinions and personalpredispositions of the judges.

One could even argue thatthere is a presumption of guilt of the alleged contemnor, and the burden actuallyrests on him toprove his innocence bywhatever yardstick the courts deem fit Thisargument is premised on the possibility that the judge who complains that criminalcontempt has been committed in his cour t, can himself initiate and hear thecontempt action against the “contemnor”.

Thus, the courts act asthe complainant, the victim, and the prosecutor This leaves the “contemnor” to disprove the chargeagainst himself This mismatch, compared toany other criminal proceeding, is alsohighlighted by the lack of a mens rea requirement under the provision since it is the effect of the action that makes itpunishable under contemptproceedings, rather than the intention with which it was done.

Scope of Analysis Introduction to the Cont empt of Courts Act, 1971

In decades past, the application of contemptof court law, more often than not, wasdirected towards the press as itwas only through the press that massdissemination/publication of informationoccurred However, with the advent ofsocial media, specifically designed to provide a platform for expressionand exchangeof thoughts and ideas, a more diverse set of individuals and entities have beensubjected to the criminal contemptjurisdiction of courts..

There are several triggers for courts to wield their criminal contempt jurisdiction.

In this chapter, we analyse these triggers and a few causes To fully understand current trends in the criminalcontempt law, itis necessary to firstunderstand the circumstances that led tosuch a provision being introduced in thestatute book In 1960, a bill was introducedin the Lok Sabha seeking consolidation of the law relating to contempt ofcourtsin IndiaA special committee, the Sanyal Committee, was constituted to examine the existinglaw and providerecommendations on the proposed changes In its report dated 28 February 1963, the Committee observed, Judicial Approach to Free Spee ch in Contempt of Court Cases célèbre where contempt power was wielded by courts on the premis e that certain actions/omissions of the “contemnors” scandalised and/or lowered the dignity of the court We will also briefly examine the approachof the Indianjudiciary in enforcing the law of criminal contempt and the manner inwhich it has been interpreted and applied in various situations We examine whether criminal contempt law has been strengthened or diluted over the years, what principleshave been followed, whether these principles have been applied consistently or in a subjective manner, and whatfactors courts consider while arriving at a conclusionthat certain speech or action constitutes contempt of court In this context, we also examine the interplay between statutory provisions relating tocontemptof court and Article 19(1a of the Constitutionand specifically., how the courts have engaged in the balancing act of protecting citizens.” rights to criticise the judiciary and preserving the integrity of the court We alsoanalyse other components while examining existing jurisprudence in relation to contempt of courts, since the path of each case differsinter alia, that the concept of “contempt” cannot be defined exceptbyenumerating the heads under which itmay be classified.; heads which can never be exhaustive This paved the way for the broad and ambiguous “definition” of criminal contempt under Section 2(c of the Act, which has in fact only led tomore uncertainty and arbitrariness in the exercise of this jurisdictionby courts in India.

Brief History

Before analysing current trends in the law, we briefly examine a few past cases tounderstand how the jurisprudence has evolved to become what itis today In⁴ a case filed under Article 129 of the Constitution of India, 1950, the alleged contemnor, O.-.P.-. Gupta, dissatisfied with the conduct of a sittingjudge of the Supreme Court, moved the Lok Sabha to file an impeachment motion.

This motion, which listed various reasons, such as “prejudice” and “bias” against thejudge, was printed inpamphlets and distributed in Parliament for the proposedmotion Thispamphlet was the subject of the contempt proceedingsinitiated against OP. Gupta The Supreme Court heldthat it is open to anyone to express fair, reasonable, and legitimate criticism of any act or conduct of a judge in his judicialcapacity and that a distinction mustbe made between mere libel or defamation of a judge and an act amounting to contempt ofcourt It specifically distinguishedbetween wrong done personallyto the judg e and wrong done to the public, statingthat onlythe latter can constitute the basis for initiation ofcontempt proceedings.

In this case, the alleged contemnor raised the defence that his criticisms of thejudgmentdelivered by the sitting judgewere valid grounds for impeachment andthat there was no reasonable ground to restrict his right to free speech Interestingly, the Supreme Court made the following observation in its judgment: [that] if a judgment of the Court is criticizedas containing errors, and coupled withcriticism, dishonesty is also alleged, the Court hearing the Contempt petition wouldfirst have to act as an Appellate Court and decide whether there are errors or not Thisis not and cannot be the function of a Court trying a petition for contempt If evidence was allowed to justify allegationsamounting to contempt of Court, it wouldtend to encourage disappointed litigants to avenge defeat by abusing the judge.

Here, the court noted thatit is impermissible to judge a contumacious act byreviewing the judgmentin questionin its entirety, and in doing so, it would act asan appellate court It was also acknowledged thatif the court indulged in such an involved enquiry, it could open the floodgates, encouraging disappointed litigants toreagitate their case in the guise of contempt proceedings It appears that the courtwas keen on limiting the scope of enquiry in a proceeding for contempt and wasreluctant to examine a justification for the alleged contumacious behaviour It isworth noting that the above extract may simply be a reflective observation by thecourt rather than a statement of the law However, in the absence of clear parametersfor concluding that an act is contumacious, the statement is illustrative of factorsconsideredbythe court in a contempt proceeding.

CK. Daphtary vO.PGupta,

The questionthat would arise is onwhat basis would a court hearing a contemptproceeding conclude whether analleged contumacious act is fair criticism orwhether it was intended to undermine the integrity of the court in the minds of thepublic Although the Court heldthatO.PGupta was in contempt and sentencedhim to two months” simple imprisonment, it did not set out any clear reasoning for the convictionand merely placed reliance on several other cases where aspersionshad been cast on the conduct of judges to hold that the instant case would alsoamount to contemptof court Thus, it appears that the conviction, in this case, wasbased on the subjective opinion of the court and not on established legal principles.

This case is perhaps one of the earliestexamplesof how the law relating tocontempt has been vague and ambiguous, and how pronouncements of the Supreme Court have not helped in adding claritytothe law that was since codified.

In the case of⁵ an attack upon judges... which is calculated to raise in the minds of the people a general dissatisfaction with, and distrustof all judicial decisions... weakens theauthority of law and law courts.

Another case that aptly illustrates the peculiar application of contempt law is⁶ In this case, the thenChief Justice of the Supreme Courtconsideredthe effect of a news item titled. “Behaving Like a Judge”, published in a leading newspaper The news article was about a proposed codeof ethics that the Chief Justice of the Supreme Court had allegedly disowned The article generallyalleged corruption and inefficiency of the judiciary and, more specifically, implied a lack of moral courage being the cause for disowning the proposed code of ethicsIn response, the Registrar of the Supreme Court clarified to the editor of the newspaperthat the Chief Justice of India had merely written to the Chief Justices of the High Courts, proposing that such a code be drafted In his reply to this response, theeditor asserted that he was in possession of a copy of this confidential letter, and Judicial Approach to Free Spee ch in Contempt of Court Cases EM. Sankaran Namboodiripad vT. Narayanan Nambiar, contempt proceedings had been initiated against the then Chief Minister ofKerala who had made a public speech proposing that the judiciary was an engine of class oppression Namboodiripad asserted that he had neither attributed motives to any individual judge nor called for disobedience ofcourt orders The contemnor also took the defence, which was ultimatelyrejected by the Court, that his views were informed by the philosophical teachings of Marx and Engels and, thus, his political views were not baseless and were protected by Article 19(1a of the Constitution The Supreme Court again, without laying down any clear standards or parameters for identifying contumacious conduct, merely reiterated in broad general terms that, In Re SMulgaokar.

Current Trends—Intention versus Effect

The Court held that the judiciary could not be immune from criticism but whenthat criticism was based onan obvious distortion or gross misstatement and made in a manner that seemed to be designed to lower respect for the judiciary and destroypublic confidence in it, it could not beignored Although ultimatelycontemptproceedings were dropped, this case is often referred to when seeking to understandthe early problems that plagued the law relating to criminal contemptThejudgment passed in this case contains observations of all three judges of the Benchand while each judge expounded extensively on the principles and need forcontempt law, their decision to drop the proceedings seems to be atodds with theirscathing remarks against thos e who would contribute in any way to the denigrationof the judiciary Thus, while the judgment is a fount of information in relation to the march of law for criminal contempt, itdoes not provide a clear standard thatcanbe applied tofuture cases.

Recently, the Supreme Court⁷ In Re Vijay Kurle & Ors examined the consequences of a letter and complaint filed by the alleged contemnors before the Chief Justice of India and the President ofIndia against a bench of the Supreme Court There were several allegations of bias and incompetence in the complaint Contentious issues that were addressed by the Supreme Court were in relation to the suo motu initiationof contempt proceedings, the validity of the Bench against whomthe complaint was made presiding over the contemptproceedings, and the freedom tocriticise The Supreme Court referred to the three decisions discussed above, as well as the principle of “fair criticism” as elaborated in the following sections, to answer these questions The Court found the three contemnors guilty of contempt under Section 2(ci of the Act on the grounds that there was no fair criticism, that it was merely an attack against sitting judges consisting of spurious allegations, not backed by evidence and had the effect of scandalising the Court and lowering its dignity What

Another recent case that attracted unprecedented attention to the criminalcontempt jurisdiction exercised bycourts in India is⁸ These proceedings were initiated in response to the publication of twostatements on Twitter by Prashant Bhushan, an advocate practising before the Supreme Court The contemnor contendedthat his statements constituted faircriticism on the working of the judiciary and were protected by Article 19(1 of the Constitution However, the Court held that the statements were made basedon distorted facts and thus had the effect or tendency to interfere with theadministration of justice and undermine the dignity and authority of theinstitution of the Supreme Court.

During the sentencing hearing, the Attorney General recommended that nosentence be awarded as the contemnor” s statementscould in some ways beconsidered fair criticism Prompted by this recommendation, the Court went intothe relationship between free speech under Article 19(1 of the Constitution and theapplicability of the Act as a reasonable restriction contemplated under Article 19(2.

The Court acknowledged that the right to free speech is an essential pillar ofdemocracy However, itvaguely stated thatin the “national interest”, it must protectinstitutions that serve the citizens, and thus it must balance free speech withtheprotection of these institutions Ultimately., in this case, also, the court reiterated theposition of law that the provisions of the Act are a reasonable restriction to the rightto free speech.

Similar to other judgments discussed above, even in thiscase, the Supreme Courtmerely examined the Judicial Approach to Free Spee ch in Contempt of Court Cases In Re Prashant Bhushan & Orseffect of the alleged contum acious act while the intention of the contemnor (mens rea, discussed in detail below, was not deemed relevant or worthy of consideration It would seem that regardless of intention and even when an act only has the potential to be contumacious, proceedings are initiated The question is whether, in the guise of protection of the institution, too much is being compromised without almost no consideration or regard for free speech Since Nambooripad, and later, the statute, contempt ju risprudence has hardly evolved in a manner that prioritises free speech over indeterminable threats to the “prestige” and “majesty” of the Court.

Defamation vDenigration

Apart from the established jurisprudence with respect to the manner ofapplication of the provisions of the Act, courts have alsoconsidered other factors indetermining whether or not the provisions ar e to be applied at allA few of thesefactors are examined and discussed below.

From⁹ a Division Bench of the Karnataka High Court considered a falsereport published in the newspapers about the transfer of certain District Judges whowere stated to be involved in a widelyreported scandal involving certain sittingjudges of the High Court Contempt proceedings were initiated against certain newsdailies by the Registrar of the High Courton the ground that such reports were notonly incorrect but also had the tendencyto interfere with the administration ofjustice The Division Bench noted thateven if the reports of transfer were incorrect, the orders of transfer were administrative in nature, not judicial., and could in noway be interpreted to be an interference in the administration of justice The Courtalso noted that at best, perhaps a case for libel could be made out and not contempt.

The High Court of Karnataka had the occasion to examine another such scenarioin the case ofProceedings wereinitiated against a leading newspaper and its editors who reported that thecomplainant was the recipient of special treatment fromhis university with respectto a reevaluation of exam papers It was alleged that this special treatment was onaccount of the complainant”s father being a sitting judge of the Karnataka High Court On examination of the facts, the Court determined that the news report was CK. Daphtary onwards, an aspect that continues to be discussed while deciding contempt is whether the alleged contemptuous act disparagesthe judiciary as an institution or whether it is an act that targets the judge as anindividual As stated in Section 2(c of the Act, criminal contempt provisions are only intended to protect the judiciary as aninstitution and judges in the discharge of their judicial duties The provisions of the Act are not intended to protect actions committed in their personal capacityIn cases where the alleged contumacious act is aimed against the action of the judges in their personalcapacity., it has been argued that rather than use the law of contempt, they ought to personally sue the “contemnor” for defamation, libel, or slander, and no action for contempt would be maintainable against him In 2003, in Registrar General, High Court of Karnataka vThe Editor, Mysore Mitra and Ors, Phaniraj Kashyap vS.RRamakrishna & Ors.

Checks and Balances Attorney General”s Consent

Interestingly, the complainants therein later filed a suit for recoveryof damagesagainst the newspaper before the civil court (OS. No. 3366/2010 which wassubsequently decreed in their favour on the ground of defamation.

If the criminal contempt case initiate d against Prashant Bhushan is examinedusing the same lens as the cases mentioned in thissection, perhaps it can be arguedthat the contemnor”s tweets, which spoke of the Chief Justice of India specifically, could atbestconstitute a cause of action toprosecute the alleged contemnor for libelrather thanproceed against him for contempt Given the broad contours of the concept of criminal contempt and ambiguous language employed in the statute, it isnow important to examine whether there are adequate checks and balances in thesystem to prevent abuse of the process.

Every court of record has the inherent powe r to take cognizance of, try, and punishfor contempt of court This jurisdiction is constitutionally preserved by Articles 129 and 215. The power to act Judicial Approach to Free Spee ch in Contempt of Court Cases suo motu is recognised in Sections 14(1 and 1 of the Act When the court itself initiates suo motu proceedings for contempt, such consent is not necessary However, as a matter of general practice, even in cases where the court has not taken suo motu cognizance and the Attorney General, Solicitor General, or the Advocate General has refused to grant his consent for such proceedings, there is no prohibition in the existing legal framework for a complainant tobring an allegedly violative action to the notice of the court and urge them to take suo motu cognizance of the same Section 15 of the Act describes the procedure for initiating a proceeding for contempt of court In the case of the Supreme Court, the Attorney General, or the Solicitor General, and in the case of High Courts, the Advocate General, may bring in a motion before the court for initiating a case of criminal contempt However, ifthe motion is brought by any other person, the written consent of the Attorney General, Solicitor General, or Advocate General is required The objective ofrequiring such consent before the court can take cognisance of a complaint is to savethe court”s time Suchconsent is meant to act as a safeguard against frivolouspetitions, as it is deemed that the Attorney General, Solicitor General, or the Advocate General, as the case may be, as an officer of the court, willindependentlyascertain whether the complaint is indeed valid.

Fair Criticism and Truth

In recenttimes, this power conferred on the law officers of the State has beenused effectively and consent for several proposed contempt actions has been grantedor rejectedinitiate contempt proceedings against comedian Kunal Kamra and comic artist Rachita Taneja,he had denied consent for contempt proceedings against actor Swara Bhasker.

Earlier, he had similarly declined to give consent to contemptproceedings against Andhra Prades h Chief Minister Jagan Mohan Reddyand mostrecently declined in the case of journalist Rajdeep Sardesai.

In each instance, thelearned Attorney General provided reasons for his decisions, although thisexamination is also a subjective one.

While there are several exceptions to Section 2(c of the Act, as listed in Sections 3 to 7 of the Act, the defence that courts have often discussed isthe exception of faircriticism under Section 5 of the Act There have beeninstances where the courtshave declined to initiate contempt proceedings on the ground that the allegedlycontumacious act was not “abuse of court” but rather “fair comment”.

In the case ofSenior Advocate Duda filed an application in the form of “Information”. before the Supreme Court seeking initiationin limine To illustrate, while the Attorney General gave his consent to PN. Duda vP. Shiv Shankar,

Shiv Shankar, a former High Court Judge, who was then a politician postretirement The petitioner /informant submitted that a speech given by the alleged contemnor, which was reported in a popular newspaper, was derogatorysince it had attributed to the Court partiality towards economicallyaffluent sections of the people He alleged that this could affect public confidence in the judiciary and hence contempt proceedings were to be initiated In this case, the Court also referred to the decision in Namboodiripad In that case, Chief Justice M.

Hidayatullah, as he was then, had held Mr Namboodiripad in contempt on theground that his allegations against the judiciar y, even ifthey didnot infact interferewith the administration of justice, had thepotential or tendency to do so, and thuswas sufficient to constitute contempt ofcourt Indoing so-., the Court disregarded theintent and understanding of the contemnor.

In Shiv Shankar however, the Court, having examinedthe allegations and contextof the impugned remarks, dropped the charges against the contemnor, holding that the impugned remarks were made only in front of lawyers, jurists, and judges, notbefore the general publicand that the speech represented primarily an exercise ofexamining the class composition of the Supreme Court (which is a matter of fact.

He had stated that the class composition of any instrument indicates itspredisposition and its prejudices, which the Court conceded was inevitable Theseremarks were made to formulate a proposition to exact accountability from the judiciary in similar measure, as from the legislature and executive.

The only obvious difference between these two cases appears to be the publicversus private nature of theremarks made The decision in Judicial Approach to Free Spee ch in Contempt of Court Cases Namboodiripad was based on the effect of the remarks or eventhe potential effect of the remarks, while the intention of the contemnor was not deemed tobe of much importance In sharp contrast, in Shiv Shankar, the Court examined the context and intention behind the impugned remarks Further, although certai n damaging portions of the speech were reported by the newspapers, albeit out of context, the remarks were made before lawyers, jurists, and judges and thus held not to be public in natureA comparison of these two cases demonstrat es an apparent lack ofbenchmarks in judicial approach, even in seemingly similar situations, when it comes to the exercise of contempt powers in relation to the “fair criticism” exception In cases of civil or criminal defamation, “truth” or “fair criticis m” is an accepted defence against a charge of defamation Even in cases under Section 123(4 of the Representation of People”s Act, 1951, statements that would ordinarily be held to be corrupt would be justified if the individual making the statement had believed it to be true at the time of making it However, in contemptlaw, whether a statement is a fair criticism, the truth, believed to be true, or entirelyfals e has not been of much relevance Here, the courts have considered the effect or likely effect of an allegedly contumaciousstatement as the deciding factor in contempt proceedings This difference clearlydemonstrates the earlier assertion that16 Arundhati Roy, an internationally acclaimed writer and a socialactivist., had protested infront of the Supreme Court against certain remarksrecorded about her in its orders arising in certain public interest litigation cases The Supreme Court had disapproved of her criticism of various judgments in relation to the Sardar Sarovar Dam Project and had expressed its displeasure at her conduct.

Pursuant to verbal and physical altercations that ensued during the protests, the Supreme Court initiatedmens rea is not considered an essential requirement for conviction in contempt actions In the case of most criminal offences, actus reus (wrongful act and mens rea (culpable mind are required to be convicted of a crime However, in some cases involving strict liability, only actus reus is sufficient The difficulty with contempt law, however, is that eventhe questionof what the actus reus is, is within the discretion of the Court Additionally, in the absence of clear standards for what constitutes “fair criticism”, whether “fair criticism” constitutes an efficacious exception to the rule of contempt is debatable Another case that can be contrasted against the two cases discussed above is In Re Arundhati Roysuo motu contempt proceedings against her In her defence, Ms Roy contended that she was fighting for the dignity of Indian citizensand that to holdher in contempt was to suggest that the dignity of the Court and the dignity of the Indian citizens were incompatible, oppositional, and adversarial propositions The Court noted that Ms Roy had admitted thatshe had no specific knowledge of the judiciary or court system and that she only had aninterest in the results of the Sardar Sarovar Dam Project litigations She admitted that as such, her proclamations were covered byher right to free speech, and she was obligated to provide no justifications for her actions Referring to Shiv Shankar, the Court noted that the benefit to which PShiv Shankar was heldto be entitled, as a retired officer of the judiciary with knowledge of the workings of the judiciary, would not be applicable to Ms Roy Further, the Court also declined to apply the ratio in Namboodripad, holding that it would not be an accurate comparison as in that case the contemnor had based his comments in the context of a philosophical school of thought Ultimately, rejecting her defence, the Court convicted Ms Roy on the charge of criminal contempt, reasoning that she had imputed motives to the judiciary in passing certain orders against her and that th ey were done specifically to harass her The Court convicted her of contempt, but only sentenced her to one day”s simple imprisonment and fine.

Quantum of Punishment During Sentencing Conclusion

Section 12 of the Act deals with punishments that can be imposed and the remediesthat can be directed by the Court once contempthas been established Though the Act only deals with punishments, sometimes, directions given by courts have a definite remedial character and hence Section 12 deals with punishments andremedies The Supreme Court has held in the case ofthat High Courts cannot impose a greater punishment than whatis provided for in the Act However, it has left the question open as to whether the Supreme Court itself is also bound by the Act This is another aspect of theunpredictability of outcomes thatcan emerge from contemptproceedings thataretried before the Supreme Court.

A relevant consideration when determining the quantum of punishment in case ofconviction isSimilarly, while it isnot necessary to prove that the contemnor has derived somebenefit or advantage in order to establish a charge of contempt, the fact that noadvantage was derived may be consideredbythe Court at the sentencing stage.

The questions that require close reexamination are whether proceedings initiatedfor criminal contempt proceedings actually protect and/oruphold the dignity of thecourts at all, and, whether they have actually deterred future “violations”. For thereasons and circumstances discussed above, evidently, the law of criminal contemptis plagued by arbitrariness, subjectiveness, and nonuniformity The public outcryand debate that followed Judicial Approach to Free Spee ch in Contempt of Court Cases Supreme Court Bar Association vUnion of India mens rea We note that courts are reluct ant to levy a heavy punishment on a contemnor where it appears that the contumacious act was unintentional Prashant Bhushan have presented a clear need to reexamine this fiftyyearold law that has barely kept pace with changing global developments in contempt jurisprudence Although, broadly, the judiciary appears to have developed tests for the application of criminal contempt provisions, their practical application still remains subjective and discretionary It can hardly be gainsaid that the judiciary must be protected from denigration However, it ishighly likely that the ambiguity in the application of contempt law can undermine public confidence in the judiciary, the prevention of which, ironically, is the very purpose of criminal contempt proceedings This is equally

Additionally., under Article 19, in case ofrestrictions other thanthose in relationto contempt of court, there is a high threshold of “reasonableness”-. to be passed toensure that a restriction be deemed not violative of Article 19(1. The myriadinconsistencies in the application of the provisions of the Act, and the jurisprudencethat has developed post enactment of the Act, demand a thorough reexaminationand overhaul of the existing regime of contempt law in India Pertinently, the Constituent Assembly debateson contempt of court as a restriction on Article 19 in relation to how there already existed relevant provisions in law prescribing whatwould amount to contempt The Housewas concerned that the additionofcontempt of court as a distinct restriction on Article 19 would confer extensivepowers on the legislature tointroduce laws that could go far beyond the scope ofcontempt in the existing legal framework It was noted that itwould leadtoexcessive and discretionary powers being conferred on the Court.

At the time of the introduction of “contempt of court” as a reasonable restrictionin Article 19(2, “scandalizing the court” was never contemplatedas one of the limbsof the restriction However, it is apparent thatduring the debates, the draftsmenwere more concerned with whether contempt of courts could be a constitutionalrestriction or not; there was hardly any discussion on what categories of actions orspeech could warrant these restrictions Asa result, there is no proper mechanism to-.

Over the years, the manner in which contempt laws have been wielded, interpreted, and enforced makes it apparent that the law has now come to equateoffending the sensibilities of the judiciary todisobeying judicial orders of the court.

It is apparent that the two have been conflated time and again and as a result, theentire regime of contempt law post 1971 ha’s created more confusion than clarity.

In the backdrop of the evolution of contempt law globally, it ismost opportunenow that the law in relation to criminal contempt in India be reexamined andthoroughly overhauled to ensure that itisuniform, fair, and nonarbitrary or, like inother developed countries, it be done away with in part or in its entirety.

— Judicial Approach to Free Spee ch in Contempt of Court Cases