Criticism vs Contempt | UPSC

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IASbhai Daily Editorial Hunt | 18th Aug 2020

“It is better to fail in originality than to succeed in imitation.” –Herman Melville

Dear Aspirants
IASbhai Editorial Hunt is an initiative to dilute major Editorials of leading Newspapers in India which are most relevant to UPSC preparation –‘THE HINDU, LIVEMINT , INDIAN EXPRESS’ and help millions of readers who find difficulty in answer writing and making notes everyday. Here we choose two editorials on daily basis and analyse them with respect to UPSC MAINS 2020.

EDITORIAL HUNT #114 :“Criticism vs Contempt

Criticism vs Contempt

Gautam S.Raman

Criticism vs Contempt

Gautam S.Raman is an advocate practicing at the Madras High Court

      HEADLINES:

What is criticism and what is contempt?

      CENTRAL THEME:

Whether a comment constitutes criminal contempt would necessarily be decided on the facts of each case

SYLLABUS COVERED: GS 2 : Judiciary

      MAINS QUESTION:

Comments , Criticism and Contempt depend on facts and circumstances . Critically comment -(GS 2)

      LEARNING: 

  • Important Definitions
  • Fair vs Unfairs Comment
  • Examples related to Criticism

      INTRODUCTION: 

A recent order of the Supreme Court found advocate Prashant Bhushan guilty of contempt for two tweets .

  • One relating to the Chief Justice of India astride an expensive motorcycle.
  • The other a comment that the Supreme Court, in his opinion, played a role in the destruction of democracy in India over the last six years.

      BODY: 

CRIMINAL CONTEMPT

  • Let us consider with criminal contempt and not those wilfully disobedient litigants who ignore the orders of the courts.

DEFINITION

Section 2(c) of the Contempt of Courts Act, 1971 defines criminal contempt as the publication of any matter or the doing of any other act which scandalises or lowers the authority of any court.

Or

In other words prejudices or interferes with the due course of any judicial proceeding; or obstructs the administration of justice.

Does this mean that one can never voice any criticism of the judiciary? No.

  • There is a thin line separating criticism and contempt.
  • PART OF REASONABLE RESTRICTION : Freedom of speech is a fundamental right guaranteed to every Indian citizen under Article 19(1)(a) of the Constitution, albeit subject to reasonable restrictions under Article 19(2).
  • C.K. DAPHTARY V. O.P. GUPTA CASE : The Supreme Court held that the existing law of criminal contempt is one such reasonable restriction.

That does not mean that one cannot express one’s ire against the judiciary for fear of contempt.

BACKGROUND

  • GUIDELINES : As long back as in 1968, Lord Denning M.R. set out guidelines in matters of contempt of court.
  • CONTEMPT : Denning stated that contempt is not the means to uphold the court’s dignity.
  • RIGHTS ARE IMPORTANT : He said its jurisdiction is to be exercised sparingly and that protection of freedom of speech is paramount.
  • LEVELLING UP : Lord Denning only requested that it be fair since judges, owing to their status, are not in a position to refute the comments so levelled against them.

INDIAN JUDICIARY

  • FAIR COMMENTS VS UNFAIR : The Supreme Court has held that if a comment is made against the functioning of a judge, it would have to be seen whether the comment is fair or malicious.
  • COMMENTS ON JUDGE : The Court would consider whether the comment seeks to interfere with the judge’s administration or is simply in the nature of libel or defamation.

The Court would have to determine whether the statement is fair, bona fide, defamatory or contemptuous.

  • PRIMA FACIE : A statement would not constitute criminal contempt if it is only against the judge in his or her individual capacity and not in discharge of his or her judicial function.
  • PROTECTION TO JUDGES : Criminal contempt does not seek to afford protection to judges from statements which they may be exposed to as individuals.
  • Such statements would only leave the individual liable for defamation.

Statements which affect the administration of justice or functioning of courts amount to criminal contempt since public perception of the judiciary plays a vital role in the rule of law.
 

  • An attack on a judge in his or her official capacity denigrates the judiciary as a whole.
  • The law of criminal contempt would come down upon such a person unless it is a fair critique of a judgment.

VARIOUS EXAMPLES

  • Sections 4 and 5 of the Contempt of Courts Act are akin to a defense a person may take in a case of defamation i.e., fair comment.

S.MUGOLKAR V. UNKNOWN (1978) CASE

The Supreme Court held that the judiciary cannot be immune from fair criticism.

  • The contempt action is to be used only when an obvious misstatement with malicious intent seeks to bring down public confidence in the courts .
  • Chief Justice M.H. Beg- “magnanimously charitable attitude even when utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement.”
  • The same Justice Beg remarked post-retirement that Justice H.R. Khanna’s #ADM Jabalpur case (1976) made no contribution to law but only to his popularity.
  • The Allahabad High Court citing Brahma Prakash Sharma (1953) did not find Justice Beg guilty of contempt.

      IASbhai Windup: 

  • The above case would show that whether a comment would constitute criminal contempt or not depends entirely on the facts and circumstances of each case.
  • Tweets or remarks by conscientious citizens certainly do not affect the dignity of the Indian judiciary.

 “That must rest on surer foundations”-Lord Denning

       SOURCES:   THE HINDU EDITORIAL | Criticism vs Contempt

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