What is Criticism and What is Contempt?

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

Judiciary’s views on the contempt:

• Reasonable Restrictions on Freedom of Speech: While freedom of speech is a fundamental right guaranteed to every Indian citizen, subject to reasonable restrictions under Article 19(2). 

• The SC in C.K. Daphtary v. O.P. Gupta (1971) held that the existing law of criminal contempt is one such reasonable restriction.

• Thus, this creates a thin line of separation between criticism and contempt.

• Deciding the permissible and impermissible comments:

• On the functioning of Judge: SC 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. 
• On a judge as an individual: 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. 

• 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 affecting the administration of justice: Amount to criminal contempt since the public perception of the judiciary plays a vital role in the rule of law. 

• Judiciary not immune to fair criticism: In Re: S.Mugolkar v. Unknown (1978), the Supreme Court held that the judiciary could not be immune from fair criticism, and 

• A contempt action is to be used only when an obvious misstatement with malicious intent seeks to bring down public con?dence in the courts or seeks to in?uence the courts. 
• Truth is also a defence in matters of criminal contempt if it is bona ?de and made in the public interest, as held by the SC in Indirect Tax Practitioners’ Association v. R.K. Jain (2010). 

Way Forward:

• Guidelines set by Lord Denning M.R in 1968:

• Contempt of court is not the means to uphold the court’s dignity. 
• Courts jurisdiction is to be exercised sparingly, and that protection of freedom of speech is paramount. 
• Criticism needs to be fair since judges, owing to their status, are not in a position to refute the comments so levelled against them.

Conclusion: 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.