Media Laws have a long history in India right from the British Era. Journalism happened when the predecessors started publishing malicious gossip about the private lives of the ruling classes. This led to censoring the information making freedom of the press an uptight resolution.
Mahatma Gandhi’s civil disobedience movement enkindled press attacks on the government and in 1930, the Indian Press Ordinance was brought with the Gandhi- Irwin Pact and the Ordinances were withdrawn. The government tried to control Indian media through the Indian Press Act, 1931 but things took a different turn after the Indian Independence in 1947 and the Indian Constitution was of the view of a free press.
Article 19 of the Constitution of India provides for Freedom of Speech, though it does not specifically mention freedom of press it confers the right of free speech on media.
Article 19 is not an absolute Right and hence, Article 19(2) of the Constitution is subject to the course of restrictions. Contempt of Court is one such restriction provided under Article 19(2) of the Constitution. Contempt of Court is an offense that lowers the authority of the judiciary which radiates from any derogatory statement made. Though the restrictions conferred in Article 19(2) of the Constitution are somehow important for the efficacy of decision making, in recent times it has resulted in the violation of the right to free speech.
According to Halsbury’s Law of England, contempt of court is defined as any act done or writing published which brings a court or a Judge into contempt or lowers the authority or interferes with the due course of justice or lawful process of the court.
In India, there are two types of contempt of court, civil and criminal contempt. In the Contempt of Court Act, 1971, Civil contempt is defined as, “willful disobedience to any judgment, decree or order, writ or other processes of court breach of an undertaking given to a court”. While on the other hand, Criminal contempt is uncertain and the definition is vague. Whereas it can be defined as the publication whether by words, spoken or written or by signs or by visual representation, of any matter which scandalizes or tends to scandalize or lowers or tends to lower the authority of any Court or interferes with due course of judicial proceedings.
The Act provides that the High Court, as a Court of record, may punish for contempt of itself and Courts subordinate to it, even if the contempt is committed within or outside the jurisdiction and irrespective of whether the contempt is for the time being at a place within or outside such jurisdiction. Other than the Contempt of Courts Act, Article 129 of the Constitution provides that the Supreme Court being a court of record, shall have the power to punish for contempt of itself while Article 215 provides the High Court with similar powers.
TRANSGRESSION OF ARTICLE 19
Section 2(c) of the Contempt of Courts Act 1971 states, inter alia, that any publication which ‘scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, amounts to criminal contempt. Though scandalising has not been defined in the act, it has somehow distanced the Right to free speech. The freedom to criticize is not available to everyone and the idea was acquired in the case in Re Arundhati Roy(2002), the Supreme Court of India identified the people who could criticise and who could not. The Supreme Court noted that if the criticism was made in good faith and was of public interest, it would not amount to contempt of court. Arundhati Roy did not qualify for the criticism test and hence, she was not allowed to criticise the judicial authority.
In Kapildeo Prasad Sah and Ors. v. State of Bihar and Ors., it was stated by the Supreme Court that the disobedience of the court's order would amount to a violation of the principle of Rule of Law. There have been many recent scenarios where it was seen that even if the person qualified the criticism test, his criticism would amount to contempt of court. One such example is In Re Prashant Bhushan and Anr, advocate Prashant Bhushan published a tweet about the Chief Justice of India which was accompanied by a picture of CJI Bobde on a motorcycle. The bench was of the view that the statement degenerated the administration of justice and was capable of undermining its authority. Advocate Prashant Bhushan was fined 1 Rupee, which he later paid and filed for a review petition of the judgment.
Another incident took place when the Supreme Court proceeded with criminal contempt of court case against one stand-up comedian Kunal Kamra and cartoonist Rachita Taneja for a tweet criticising the top court which was published by them. These cases have somehow resulted in the transgression of Article 19 of the Constitution.
Contempt of court is a necessary restriction imposed as it prevents people from exhausting their right to free speech. Sometimes people could be seen exploiting their right by publishing gratuitous statements whose aftereffects would be contempt of court but from the cases cited above it could be concluded that even though citizens of India including the media are vested with freedom of speech, there have been instances which amount to violation of this right. Advocate Prashant Bhushan is a person who has been practicing law for some time and disqualifying him from the criticism test would outgrow his knowledge of the law. It is the same with the case of Kunal Kamra, even if he does not know the law, but a mere pleasantry statement should not be able to pester judicial authority. In a democratic country like India where people are becoming more aware of their surroundings and are jauntily expressing their political views, it should not remain as dodgy as it is now. Expressing one’s beliefs should not result in a punishment and if this remains the same it will transgress our Right to Freedom of Speech, Article 19.
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