By Abhinav Akash, Student, DSNLU, Vizag
In a democracy the people should have the right to criticise judges. The purpose of the contempt power should not be to uphold the majesty and dignity of the court but only to enable it to function. The basic principle in a democracy is that the people are supreme. It follows that all authorities whether judges, legislators, Ministers, bureaucrats are servants of the people. Once this concept of popular sovereignty is kept firmly in mind, it becomes obvious that the people of India are the masters and all authorities (including the courts) are their servants.  Surely, the master has the right to criticise the servant if the servant does not act or behave properly. It would logically follow that in a democracy the people have the right to criticise judges.
Indian citizens are perfectly correct in saying there should be certainty in the law, and not uncertainty. After all, the citizen should know where he or she stands. There are two reasons for the uncertainty in the law of contempt of court. In the Contempt of Courts Act, 1952, there was no definition of `contempt.’ Secondly, even when a definition was introduced by the Contempt of Courts Act, 1971 (vide Section 2), there was no definition of what constitutes scandalising the court, or what prejudices, or interferes with, the course of justice. In this light, the Arundhati Roy Case  is worth special mention since in that judgment, the Supreme Court of India made a determined effort to elucidate the need to empower the Courts with the power to punish contempt of its authority.
The Court failed to realize the fundamental relation between the authority of any institution, and the respect and trust of the people that such institution commands. The trust in the honesty and integrity of the judges is inspired by their work. If such a fundamental rule is respected and is actually practiced, then certainly the Courts can do without exercise of powers of contempt of court. However, it seems that it is not obsolete in India despite the fact that Article 19(2) of the Constitution permits, inter alia, on the ground of contempt of court only ‘reasonable restrictions’ on the fundamental right to freedom of speech and expression, guaranteed by Article 19(1) (a).
Free Speech and Social Media
Social Media is a very powerful means of exercising one’s freedom of speech and expression. However, it is also been increasingly used for illegal acts which has given force to the government’s attempts at censoring social media. Where on the other hand, the misuse of social media entails the need for legal censorship on the other hand, there are legitimate fears of violation of civil rights of people as an inevitable consequence of censorship. There is a very thin line which demarcates the enjoyment of one’s right and the violation of the enjoyment of else’s right in the process which also lead to sometimes contempt of court proceedings. The social media, the exercise of freedom of speech and expression by one may result in the invasion of privacy and defamation or contempt of court. Again, the ide of objectionable content varies from one person to another. A cartoon is a harmless way of having fun but offence may be taken by the person concerned. Similarly, hate speech, remarks on court judgments have different meanings for different people.
Free Speech and Contempt of Court
When it comes to contempt and scandalising, the Court has adopted exactly the chain of reasoning that it has rejected in the public order cases. As early as 1953, in Aswini Kumar Ghose v. Arabinda Bose , the Court observed that “it is obvious that if an impression is created in the minds of the public that the Judges in the highest Court in the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined.” Subsequently, in D.C. Saxena v. CJI , the Court held that “Any criticism about judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the judges and brings administration of justice to ridicule must be prevented. The contempt of court proceedings arises out of that attempt. Judgments can be criticised. Motives to the judges need not be attributed. It brings the administration of justice into disrepute. Whereas in the Shivashankar’s case  wherein harsh criticism of the judiciary was held not to be contemptuous.”
In Brahma Prakash Sharma and Ors vs State of Uttar Pradesh , the conduct or character of a judge is within the limits of fair and reasonable criticism and whether it is mere libel or defamation of the Judge. If it is mere defamatory attack on the judge and is not calculated to interfere with the due course of justice or the proper administration of the law by such court, it is not proper to proceed by way of contempt. Supreme Court has used the contempt of Court statute to create a strict-liability offence, with boundlessly manipulate categories, which is both over-broad and vague, entirely inconsistent with the court’s own free speech jurisprudence and at odds with free speech in a liberal democracy.
In the Prashant Bhushan case,  a contention was raised citing the case of Baradakanta Mishra vs The Registrar of Orissa High Court and Anr.  which states that while proceedings in contempt are taken for vilification of the Judge, the question which the court has to ask in contempt has to ask whether the abused or disparaging speech against the judge is as a judge or it is as an individual. If the derogatory remark against the judge is as an individual then he is let to his private remedies and the court has not power to punish for contempt. But it was also stated in the case that Court will also consider the degree of harm affecting the administration of justice. As adopted in the Section 13 of the Contempt of Court Act, 1971, where jurisdiction is not intended to uphold the personal dignity of the judges. The bench is the above case came to the conclusion that a vilificatory criticism of a judge functioning as judge even in purely administrative or non-adjudicatory matters amounts to ‘criminal contempt’.
In the Prashant Bhushan case, the Supreme Court was of opinion that the first part of the tweet made by the contemnor was neither against the CJI as an individual nor as an CJI but the next part of tweet mocking him for keeping the SC in lockdown was certainly in the capacity of Chief Justice of India.
The present law of contempt of court in India is a hangover of the original law on this subject in England, where the judge said the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority. In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants. Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and learning.
This view is accepted now even in England. As observed by Lord Salmon in AG vs Bbb , “The description contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice”.
“Justice is not a cloistered virtue,” said Lord Atkin. “It must suffer the scrutiny and outspoken comments of ordinary men”. In R. Vs. Commissioner of Police , Lord Denning observed, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication”.
The distinction between ‘civil’ and ‘criminal’ contempt is no longer of much importance, but it does draw attention to the difference between on the one hand contempt such as ‘scandalizing the court’, physically interfering with the course of justice, or publishing matters likely to prejudice a fair trial, and on those other contempt which arise from non-compliance with an order made, or undertaking required in legal proceedings.
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 Vir Bala Aggarwal, Media and Society: Challenges and Opportunities 23 (1st ed., New Delhi: Concept Pub. Co. 2002)
 In Re Arundhati Roy, AIR 2002 SC 1375
 Aswini Kumar Ghose v. Arabinda Bose, AIR 1953 SC 75
 D.C. Saxena v. CJI, 1996 SCC (7) 216
P.N. Dua vs. P. Shiv Shanker and Ors., AIR 1988 SC 1208
 Brahma Prakash Sharma and Ors vs State of Uttar Pradesh, 1953 SCR 1169
 Live Law News Network, SC Holds Prashant Bhushan Guilty of Contempt for Tweets against Judiciary, Will Hear him on Sentence, Live Law (August 14, 2020, 11:16 AM), https://www.livelaw.in/top-stories/sc-holds-prashant-bhushan-guilty-of-contempt-for-tweets-against-judiciary-161391.
 Baradakanta Mishra vs The Registrar of Orissa High Court and Anr. (1974) 1 SCC 374
 AG vs Bbb, (1981) A. C. 303
 R. vs. Commissioner of Police, (1968) 2 QB 150
 Home Office vs Harman,  1 AC 280.