Comment & Contempt
Recently Supreme Court has slapped contempt proceedings against senior Advocate Prashant Bhushan in which Twitter India has been added as party. Dehors the law relating to Liability is Intermediaries Under Information Technology Act, I though of making a right up Regarding fair comment/criticism and contempt of court. (A separate blog post on intermediary is on pipeline).
As per section 2 (c) of Contempt of courts Act, Any one who commits the following acts would be liable the for the indictment for criminal contempt.
- Scandalises or tend to scandalise or lowers or tends to lower the authority of any court
- Prejudices or interfere or tends to interfere with the due course if any judicial proceedings
- Interfere or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner.
“The path of criticism is A public way: the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.”
There are many judgments of our Apex court has differentiated between a scandalous attack and contempt of court. But it is inevitable in the democratic society that the criticisms on judiciary has to be digested in the perspective of wellness of the institution. But at the same time, maligning the institution in order to tarnish the belief of the people over the institution and attacking or maligning the court or the presiding officer with an ulterior motive to interfere with the judicial administration is certainly amount to contempt of court.
If reasonable argument or expostulation against any judicial act as contrary to law or public good, no court could treat that as a contempt of court. This proposition of the Queen’s bench in Reg. vs Gray [1900] 2 QB 36, clearly states that a fair criticism against a judicial act is admissible. Whereas it shall not exceed its limit.
The Hon’ble Apex court in Rustom Cowasjee cooper vs Union of India1970 (2) SCC 298 has stated that “There is no doubt that the Court like any other institution does not enjoy immunity from fair criticism. This Court does not claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgment of the Judges. They do not think themselves in possession of all truth or hold that wherever others differ from them, it is so far error. No one is more conscious of his limitations and fallibility than a Judge but because of his training and the assistance he gets from learned counsel he is apt to avoid mistakes more than others..”
Certainly ‘ Fair criticism’ is a good defence in contempt of court cases. The test for determining whether a statement is a contempt of court or merely a slander or Libel based on the intention underlying the statement made by the concerned person. The criticism shall not be scandalous to lower the authority of any court, shall not interfere with the due course of any judicial proceeding and it shall not obstruct the administration of justice.
One another note worthy judgment in respect of Fair criticism over Judiciary and its function (functionaries). In Re Arundhati Roy case 2002 (3) SCC 343 whereas the apex court has taken up the matter suo moto in respect of certain remarks made by Arundhati Roy in regard with Narmadha Bachao Andholan case. The Apex court had elaborately looked into the matter of fair criticism as a defence for contempt of court.
The Apex court held that if the fair criticism on the judiciary is made with good faith and intended with public interest, it would not amount to contempt of Court. At these times, the court shall have to look into the facts about the knowledge and Intention of the person making such criticism. After Arundhathi Roy case many other cases has been reiterated the same principle. In Arundhati Roy case, the concept of fair criticism was interpreted in the light of Right to speech and expression.
From the above cases it could be understandable the line between fair and unfair criticism on the judiciary and its functionaries is thin but the quest is almost labyrinthine.
It is an indisputable fact that Judiciary is the Third pillar of governance and it is the pillar over which the entire system of governance is resting. The parliamentary democracy do not enjoy exact theory of separation of powers. The over lapping between executive and legislature is inevitable. At this juncture, judiciary is enjoying the distinctness from the other two pillars. It is crystal clear that judiciary has to be treated with sanctity. There may be some ‘compromise’ in the standard which shall be rectified therein but it shall not be the sole criteria for making maligning criticisms over the judiciary and its functionaries in the guise of fair criticism. A strong word on this regard shall be conveyed.
-BSM
