Criticism to Contempt: Freedom of Expression on Social Media
In recent years, the Indian authorities have increasingly used criminal laws, including for counterterrorism, sedition, and criminal defamation, against peaceful dissenters, journalists, rights activists, academics, and students. Contempt of court is one such law and is sui generis and traces its root from the inherent powers of the court that must be invoked in extraordinary circumstances to meet the end of justice. The Traditional media and other social media platforms are mainly concerned with Criminal Contempt. According to Section 2(c) of the Contempt of Courts Act 1971, criminal contempt is defined as; any publication (of words,
spoken or written, or by signs, or by visible representation, or otherwise) of any matter which (i) scandalizes or lowers the authority of any court or (ii) prejudices, or interferes with the due course of any judicial proceeding or with the administration of justice in any other manner. A publication which attacks individual judges or the court as a whole with or without reference to a particular case, casting unwarranted and defamatory aspersions upon the character or ability of the judges, has also been recognized as scandalizing the Court. Similarly the Courts have time and again held that, liberty guaranteed under Article 19 of Indian Constitution is not to be conferred with license to make unfounded, unwarranted and irresponsible aspersions against the judges or the courts in relation to judicial matters
In a new tussle between freedom of speech, contempt and the Supreme Court’s legitimacy, in (i) Prashant Bhushan Case. The Supreme Court initiated suo moto criminal contempt proceedings against Advocate Prashant Bhushan and Twitter India, on the basis of two tweets posted by Bhushan on the social media platform on June 27 and June 29. The reasoning for initiation of proceedings was- Mr. Bhushan, wilfully and deliberately using hateful and scandalous speech by means of Twitter, against the Supreme Court and the judicial system. The Supreme Court had imposed a token fine of ₹1 on Mr. Bhushan for his tweets against the judiciary. His first tweet, reproduced in the court, said:
“When historians in the future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the SC in this destruction, and more particularly the role of the last four CJIs.”
His second tweet said: “The CJI rides a Rs 50-lakh motorcycle belonging to a BJP [Bharatiya Janata Party] leader at Raj Bhavan, Nagpur, without wearing a mask or helmet, at a time when he keeps the SC on lockdown mode denying citizens their fundamental right to access justice!”
The Second case is of (ii) Comedian Kunal Kamra- wherein Attorney General K.K. Venugopal granted consent to initiate contempt of court proceedings against Comedian Kunal Kamra for his tweets criticizing the Supreme Court for fast-tracking the hearing of Republic TV Editor-in-Chief Arnab Goswami’s bail appeal. Kunal Kamra posted four tweets after Arnab Goswami was granted interim bail in a 2018 abetment to suicide case, with one of them showing a picture of the Supreme Court building swathed in saffron color with the BJP flag flying atop it.
The criminal contempt cases against Prashant Bhushan and Kunal Kamra offer an opportunity of introspection to the judiciary and simultaneously raise questions over the legitimate/reasonable exercise of freedom of speech by citizens. To quote Lord Denning “We do not fear criticism, nor do we resent it” Therefore during contempt processing the primary aim of the jurisdiction should be to protect the dignity of the court and the due administration of justice and then to uphold the personal dignity of the Judges.