Free speech
India has a long tradition of tolerance and plurality. When there is an existential threat to it, the people and the institutions have to work hard to preserve it.
Recent events of intolerance
- Murders have occurred in the name of hurt sentiments from other people’s food choices.
- Children have been denied the nourishment of eggs in school meals as a part of "vegetarianism drive" of few groups.
- The researched works of leading international scholars have been forced to be pulped by scared publishers, threatened to be imprisoned for the offence of allegedly hurting religious sentiments.
- Journalists often receive threats — or worse — for violating the imposed norms of vigilante groups. The Indian media has a good record of standing up against intimidation.
The silencing of dissent and the generating of fear in the minds of people violate the demands of personal liberty, but also make it very much harder to have a dialogue-based democratic society.
What is 'Contempt of Court'?
It is generally understood that the contempt of court jurisdiction in India is exercised not to protect the dignity of an individual judge but to protect the administration of justice from being maligned. (But this was not so when the Madras HC issued a notice to Arundhati Roy.)
According to the Contempt of Courts Act, 1971 there are two common forms of contempt:
- Civil contempt will include, among other things, a wilful disobedience of a court's judgment, order or direction.
- Criminal contempt will include publications that do one or more of the following:
- scandalise or lower the authority of any court;
- prejudice or interfere with the due course of any judicial proceeding; or
- interfere with or obstruct the administration of justice in any other manner.
The promise of the Constitution:
Article 19 of the Constitution of India guaranteed the right to freedom of speech and expression, but also allowed restrictions on this right to be imposed by law, including any Law of Contempt, provided only that the restrictions were reasonable.
Articles 129 and 215 of the Constitution explicitly spell out the power of the Supreme Court and High Courts to punish someone for contempt.
Criticisms:
- Speech in criticism of the courts ought not to be considered as contumacious, for it would simply open up the possibility of gross judicial abuse of such powers.
- India's courts have routinely invoked the long arm of its contempt powers to often punish expressions of dissent on purported grounds of such speech undermining or scandalising the judiciary's authority. But, while doing so, the court has rarely conducted a strict analysis on whether those acts posed any actual threat to - or interfered in any direct manner with - the administration of justice.
Amended Contempt of Courts Act:
In 2006, with a view to reducing the breadth of the judiciary's powers, Parliament amended the Contempt of Courts Act of 1971. The law now provides two additional safeguards in favour of a dissenter-
- One, it establishes that a sentence for contempt of court can be imposed only when the court is satisfied that the contempt is of such a nature that it substantially interferes, or tends to substantially interfere with the due course of justice.
- Two, the truth in speech now constitutes a valid defence against proceedings of contempt, if the court is satisfied that the larger public interest is served through the publication of such content.
In spite of these amendments, courts have continued to routinely equate the supposed scandalising of the judiciary's authority to an act of contempt.
Freedom of speech: ban on murugan’s book reversed
Perumal Murugan, an award-winning Tamil writer had come under sustained attack from local caste-based groups for his fictional novel Mathorubhagan (translated into English as One Part Woman) for hurting their sentiments.
- The Madras HC has rejected the demand for banning the book or prosecuting the author.
- It is a liberal and progressive judgment that emphasises and upholds the freedom of writers to write.
- The HC lambasted the practice of self-appointed super censors in the society to decide on what the people should read or watch. In Court's opinion those professing to be hurt by a book should just avoid reading it. This should set a precedent among others.
- The Bench also reminded the state authorities, like police and the local officials, of their duty to secure freedom of expression and not to succumb to mob demands in the name of preserving law and order.