The recent remarks made by Senior Advocate Prashant Bhushan against the hon'ble Supreme Court and its officials on Twitter outraged the Supreme Court and compelled it to take cognizance of the matter in the form of a criminal contempt. This not only brought the accused to considerable limelight and media attention, but also highlighted the topic of Contempt and Free Speech, a fundamental right guaranteed by the Indian Constitution under Article 19(1)(a)

However, if Free Speech is a fundamental right, then why is there a law that is restricting it?

Fundamental Rights

Fundamental Rights are the constitutionally owed rights that every citizen of the country is entitled to practice. These rights are classified as essential and basic human rights that the constitution protects. This implies that not even the state or its authorities can infringe the rights that come under Fundamental Rights. Any law which violates a fundamental right is void. The term fundamental right refers to the importance of pride and the holistic development of an individual's personality.

Fundamental Rights are individual rights without which democracy is meaningless. Fundamental Rights cannot be violated in all circumstances. Without Fundamental Rights, a society cannot develop or function effectively. Individuals are granted fundamental rights primarily against the state because the state is widely regarded as the most egregious violator of individual rights. Fundamental rights are necessary because they lay the groundwork for an individual to grow into an independent, intellectually, socially, morally, and spiritually developed citizen.

Free Speech as Fundamental Right

What differs a democracy from an arbitrary or tyrannical form of government is the importance given to the citizens. What makes democracy a democracy is the fact that its citizens are given a voice. This gives the citizens the right to express their views and opinions freely and agree or disagree with political issues.

Exercising these rights-without fear or interference � is essential to living in an open and fair society, where people can access justice and enjoy their human rights as citizens. The Constitution of India through Article 19(1)(a) provides for Freedom of Speech and Expression to all citizens.

Contempt

Contempt of Court takes place when an individual disobeys a court order. It could also be when an individual makes statements about the Court that are tarnishes its image or that of its officials. The Contempt of Courts Act, 1971, governs the law of contempt. According to Section 2(a)(3) of the act, there shall be a civil or criminal contempt of court.

Civil Contempt is the disagreeing of a court order, whereas, criminal contempt is the the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the performance of any other act whatsoever that:
Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or Prejudices, or interferes, or tends to interfere with, the due course of any judicial proceeding; or Interferes or tends to interfere with the administration of justice in any way, or impedes or tends to impede the administration of justice in any other way.

A person is guilty of criminal contempt when his actions tend to undermine the authority and administration of the law, or when his actions interfere with or prejudice litigants during litigation. Many associated Contempt of Court with Free Speech and how it is violative of the fundamental right.

Free Speech not Absolute

It's important to understand that certain fundamental rights cannot be practiced with absoluteness and this applies to the Freedom of Speech and Expression too. The Article mentions that every citizen has the right to free speech as long as the speech doesn't violate another's right. The Supreme Court stated that, while there is freedom of speech under Article 19(1)(a), it is never absolute because the framers of the Constitution imposed certain constraints on it.

This was to ensure that no action, whether by words of mouth or expressed in ways otherwise, of one individual infringes the right of another. Therefore, one cannot just claim to be exercising his right under the aforementioned article when contempt proceedings have been filed against him. Article 19(2) of the Indian Constitution states that freedom of speech is prone to contempt of court when it is practiced out of limitation.

Thus, one must be aware of his fundamental rights but must also be aware of the reasonable restriction that the constitution imposes with it in practice. A constructive disagreement on a judicial issue is different from blatant attacks on the Judiciary which could be a contempt.

Contempt of Court is not a censorship of Free Speech, nor is it a violation of the fundamental right. It merely is responsible for drawing a line before which the right can be practiced.

Written By: Aniket Kumar