26, Dec 2017 | Madhusruthi Neelakantan
The hyper nationalism of Indian society is a façade to blind different views and mute different voices. It is now becoming strikingly important for one to pledge allegiance to the motherland and its institutions to be granted his/her rights. The construction of the words “enemy”, “threat” , “terror” are all employed to destroy people who are different and have different views. Freedoms need to be sanctioned for the greater good. This employment of laws to curb dissent and opposition has become largely common throughout the subcontinent in recent times (sedition laws, AFSPA etc.). The Contempt of Court Act, 1971 is used no differently. This paper aims to discuss and evaluate the employment and abuse of this Act by the Judiciary. The merits and demerits of this shall be done by throwing light on the jurisprudence of the court through specific cases.
Framework of the law
The Constitution stipulates a balancing act by the court when it comes to exceptions to fundamental rights. This balancing act must always aim at being least restrictive. ‘Contempt’ is an exception to Article 19(1)(a) of the Constitution. Contempt is defined by the act as anything that “(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”
To understand the application of this law, one would look at the jurisprudence of courts. However, to our disappointment, none of these decisions provoke a discussion on the law, but what we see is a detailed discussion on the statements and their theoretical value. This raises a few important questions –
What are the elements of contempt? How is it any different from free speech? Have the lines between free speech and contempt been blurred? Is the judiciary assuming its powers over contempt and ignoring SoP in the constitution? Is the judiciary taking over parliamentary functions?
Application of the law
The first case that I will be discussing is the Communist CM of Kerala E. M. Sankaran Namboodiripad’s case for referring to the judiciary as “dominated by class hatred, class prejudices, instinctively favouring the rich againstthe poor”. The judges in this case, are more threatened by the ministers understanding of these philosophers, than the statements made by him against the judiciary. The crux of the problem in this case seems to be the chief minister’s understanding of Marx and Engles. A substantial part of the judgement dives into the explanation of these philosophies and largely ignores the discussion on free speech. As one of the first cases in contempt, one would expect a discussion on the elements in establishing contempt, the court however largely disappoints in developing this sort of jurisprudence. If you are looking for a lesson on the teachings of Marks and Engles, Justice Hidayatullah sums it up professionally.
The next case would be the Babri Masjid demolition case where certain leaders –specifically chief minister, Uttar Pradesh, Kalyan Singh– were held for contempt in failing to honour their commitment to protect the Mosque made before the Supreme Court on November 30. The chief minister (Kalyan Singh) was sentenced to token imprisonment for one day with a fine of Rs 20,000.”
Another instance would be when the Author Arundhati Roy was asked to apologise to the Supreme court for expressing her anger in the jailing of Paraplegic Former DU Prof. G.N Saibaba. She contented the existence of a malafide motive or game plan in lieu of her stance. She replied with this statement to the media
“By criticising the actions or the lack thereof, of the Legislature, the Judiciary or the Executive, a citizen is merely exercising his or her fundamental right to express ‘opposition’ to the government or one of its wings. Such opposition is fundamental to the very meaning of democracy and should be recognised as a basic feature of the Constitution of India”
The next case I’ll be discussing is Justice Karnan. The most striking parts of the judgments in this case is how they it completely ignored the allegations made by the judge- neither did it order an investigation nor addressed it as an issue. This almost convinces us that the Judiciary does not want to handle the allegations at hand, and would find any way to brush them off and, that, is in fact an issue. Secondly, the judgement completely undermined procedure -starting from a one line order on May 9, 2017(and not a speaking order) to completely ignoring the in house procedure and lastly, the unwarranted media gag in the last paragraph of the ruling. 
What is most striking among all these pieces is the relief ordered by the court. They all seem to be acts of a inflated self-perception. From the indiscriminate use of the suo-motu power, or demanding an apology from the writer, or removing Justice Karnan off his judicial duties (which can only be done by parliament), or Justice Hidayatuallah deciding based on his personal view of Marx and Engles. While carrying out these judgments, the judiciary completely missed out the moot point of discussion which should solely be based on the balance between the Fundamental right of free speech and Contempt law.
This is becoming largely true and especially with an over bearing judiciary that has also assumed the role of Parliament in the ruling of J. Karnan- rule of law seems to be the rule of the judiciary. The Judiciary has assumed its role beyond what was cut out by the Separation of Power Doctrine.
What are the elements of contempt? How is it any different from free speech? Have the lines between free speech and contempt been blurred?
None of these judgments try to answer these questions. In my opinion, it is fundamental to the concept of contempt that a line be drawn between someone’s free speech and the malafide that is required to be established for an act to be an act of contempt. The court should focus more on proving this attitude that is required for a contempt accusation, rather than playing God and ruling on a whim. Defining the line between free speech and contempt is essential and the court must define distinct characteristics of contempt to differential between a simple statement from a statement that attacks the judiciary.
E.M Shankaran’s words “…anything spoken about the court is contempt of court”  is becoming lately true today, and this practice needs to change. The Rule of law must be devoid of passion or ego.
- Justice Karnan Released
- The Elephant in the Room: Caste in India’s Law Schools
- (Justice Karnan Case) Madras High Court Judgement, 2014
- (Justice Karnan Case) Supreme Court Judgement, 2017
 Section 2 (c), THE CONTEMPT OF COURTS ACT, 1971
 1970 AIR 2015, 1971 SCR (1) 697
 supra note 2