Dr KD Singh argues that it is high time for a reform of contempt laws.

Recently, the Supreme Court of India held Shri M.V. Jayarajan of Communist Party of India (Marxist) guilty of criminal contempt and sentenced to four weeks in prison.

In a public speech delivered in 2010, Mr. Jayarajan, who is an ex-Member of the Legislative Assembly for Kerala, had criticised a Kerala High Court judgment banning meetings along public roads in order to ensure the smooth flow of traffic, observing that the judges were “idiots,” “should resign from office” and that their judgment had “the value of grass.” The High Court had found him guilty of contempt, and the Supreme Court agreed, but reduced his sentence from six months to four weeks.

The judgment is disquieting as it chills free speech and seeks to immunize the judiciary from any semblance of accountability by way of criticism.

Law of contempt is one of the legacies of the British Raj in this country. Even after independence, this particular law has continued to be understood and interpreted as in the old days of the Raj, causing much resentment among citizens, authors, journalists and others alike.

Our judges have often tended to forget that they are no longer the King's or Queen's judges but judges of the Republic of India.

They have sometimes overlooked that the administration of justice in free Indian Republic cannot have the same connotation as in the days of the Raj, more especially when our Constitution enshrines fundamental rights in respect of freedom of expression and speech. It was expected of the judiciary that it could adjust itself to criticisms and comments without being needlessly sensitive so that the judiciary functions under the effective vigilance of the people and of public opinion. The legacy of the Raj seems to have weighed heavily on the judiciary.

The Contempt of Courts Act, 1971 was amended in the year 2006 whereby clause (b) was inserted in section 13 to provide that the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.

Earlier, in the year 2002, the National Commission to Review the Working of the Constitution recommended introduction of 'truth' as defence in matters of contempt of court, by way of amendment to the Constitution of India. The Commission considered that a mere legislation by the Parliament by amending the Contempt of Courts Act, 1971 alone may not suffice, because the power of the Supreme Court and the High Courts to punish for contempt is recognized in the Constitution.

The Commission, while giving justification on the above recommendation observed that judicial decisions have been interpreted to mean that the law, as it stood then, did not even permit truth to be set up as a defence to a charge of contempt of court. This was not a satisfactory state of law. Article 19(1)(a) of the Constitution guarantees to all citizens the right to freedom of speech and expression. Article 19(2) of the Constitution saves reasonable restrictions on the exercise of freedom.

Therefore, the Commission noted that Article 19(2) of the Constitution will not save any law in relation to contempt of court, if it impinges upon the right to freedom of speech and expression, unless the restrictions are reasonable and are in public interest. If the restrictions that operate upon such rights are unreasonable, they will stand annulled by the operation of Article 19(1)(a) of the Constitution. A total embargo on truth as justification may be termed as unreasonable restriction.

The Commission further noted that it would, indeed be ironical if, in spite of the emblems hanging prominently in the court halls, manifesting the motto of 'satyameva jayate', in the High Courts and 'yatho dharm statho jaya' in the Supreme Court, the courts could rule out the defence of justification by truth.

The Parliament instead of bringing amendment to the Constitution effected the change in the Contempt of Courts Act, 1971 by inserting clause (b) in section 13 thereof, as noted above.

It is submitted that even amended law, as it stands today, is highly unsatisfactory. Section 13 (b) by using of the expression "the court may" confers a discretion on the court to permit or not to permit the defence of justification. And this is so even if the court is satisfied that it is in public interest and that the request for invoking the said defence is bona fide.

The clause is unlikely to achieve the object for which it has been enacted. First, an overriding discretion has been conferred on the court although it is the court against which the concerned allegation has been made. Secondly, the substantive provision regarding satisfaction that it is in public interest to permit is also of the court. Thirdly, it is the court which will decide as to whether the request by the contemnor for invoking the defence is bona fide.

It is submitted that any law which imposes restriction on the fundamental right to freedom of speech expression and does not admit truth without qualification as a defence is ex facie unreasonable, hence unconstitutional.

There is an increasing need of recognition by the courts of the requirement to be sensitive in a democracy to the right of citizens to criticise institutions, including the administration of justice. The classic statement is to be found in Ambard v. Attorney-General for Trinidad and Tobago, (1936) AC 322 at p. 335, where the Privy Council speaking through Lord Atkin formulated the modern approach:

"...whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. 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, the 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."

Further, the following observations of Lord Denning in Regina v. Commissioner of the Metropolis ex parte Blackburn (1968) 2 WLR 1204 are highly illuminating :

Let me say at once that we will never use this jurisdiction as a means 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.

It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.

Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.

The Indian judiciary need to heed these sober observations. The reform of the law of contempt is long overdue.

Dr KD Singh was formerly Assistant-Professor (Law) at University of Delhi and is presently working with the Competition Commission of India (CCI). Views expressed are personal.