Contempt of Court and Free Speech

The judiciary has done nobly by the country and enjoys high respect. That explains why cries for a judicial inquiry are heard whenever misdoing in high places arouses suspicion. Judges are trusted to stand up to men in power. This trust is inspired by their work. It can do without exercise of powers of contempt of court As the distinguished lawyer David Pannick, QC, wrote in his superb study Judges in 1987: “In the absence of an allegation of bias, or other improper motive, the offence of scandalising the judiciary is obsolete in England”. Sadly, 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guaranteed by Article 19(1)(a) Our law is based on English law, but our courts follow English precedents regarded as outdated in the UK.

As C J Miller writes in his classic on the subject, now in its third edition, this area of the law has been aptly described as “the Proteus of the legal world, assuming an almost infinite diversity of forms” It was said of the law of equity, before it acquired strict technical rules, that equity varied with the foot of the Lord Chancellor An element of subjectivity resides in the realm of contempt of court also and it has a “chilling effect” on the citizens’ right to free speech. More so when legislators invoke parliamentary privilege and haul up the citizen for contempt.