Freedom of speech is a principle that allows any individual the freedom to articulate and put forth his/her opinions and thoughts without any monitoring / filtering. Freedom of speech is given as a basic human right which everyone gains from birth itself. Freedom of speech as a notion is viewed differently across the world, with some countries having intensive restrictions such as North Korea, where one is not allowed to speak/publish any negative opinions/thoughts about the government, and the government has the authority to monitor and restrict all published content if it doesn’t meet the requirements, on the other hand countries are also extremely liberal about freedom of speech, for example USA allows complete freedom of speech and expression to its citizens as was granted in the 1st amendment to the American constitution. In India freedom of speech has seen many developments throughout since the inception of the constitution in the colonial era. During colonial times there was no system of freedom of speech, most sort of negative opinions towards the British were suppressed and people punished this was predominantly achieved by the passing of the sedition laws of 1870 which were introduced in India to curtail nationalism feelings in the Indian society. Following which towards the end of colonialism the international declaration of Human rights in 1948 granted freedom of speech and expression as a basic human right. Freedom of speech and expression was also recognised in the international covenant on civil and political rights (ICCPR) of the international human rights. In India the freedom of speech is regulated and ascribed to the citizens under article 19(1) (a) of the Indian Constitution. The article reinstates the preamble wherein the constitution pledges to “uphold the liberty of thought and expression” however the right is not an absolute right, since it might be restricted by article 19(2) of the Indian Constitution. Article 19(2) restricts speech and expression that tends towards: defamation, contempt of court, and security of the state, indecency or immorality, relations with other states, incitement of violence, disruption of public order.
One such restriction that was recently in the media was the restriction of free speech on the grounds of contempt of court. This principle was brought to light due to the extensive discussion and controversy that arose out of the Prashant Bhushan case. Prashant Bhushan an eminent Supreme Court lawyer was charged with contempt of court, due to two tweets made by the lawyer.
The tweets posted by the lawyer, meant to showcase the corrupt and dishonest nature of the court, the first tweet by Prashant Bhushan featured the current chief justice of India Mr. S.A. Bobde sitting on an expensive bike that belonged to a politician affiliated with the opposition party, furthermore the second tweet was a remark on the previous chief justices of India and their political affiliations, the lawyer commented that the supreme court is corrupt which can be seen by the fact that the last 3 chief justices of India have gone on to take political positions post their retirement as CJI. Following the viral nature of these tweets criminal contempt charges were filed against the lawyer, criminal contempt as defined by law refers to statements that harm the integrity and/or scandalize the court. The charges were brought upon by the Supreme Court itself and in a hearing of the case the Supreme Court found Mr. Bhushan guilty of criminal contempt. This incident was extensively debated due to its controversial nature, in this paper, I am going to explore, the argument that the Court should not have held Prashant Bhushan guilty for Criminal Contempt.
India falls in the minority of nations wherein Contempt of court is given as a crime under the constitution, in India this provision is enshrined under article 228 of the Indian Penal Code and the contempt of courts act, 1971, which deals with criminal contempt of court, or hurting the integrity of a judicial officer or the court. India is one of the only countries with such a provision, on the other hand, most of the dominant influences/ inspirations for the Indian Constitution, themselves have abolished, or did not incorporate such a law of contempt of court. In England, Criminal Contempt of court, or “scandalizing the court” as a practice has been abolished, on the recommendation by the 335th law commission of the UK report on “contempt of court: scandalizing the court”, on this recommendation the offence of “scandalizing the court” was excluded from the recently passed, crimes and court act of 2013 in the UK.
Similarly, in the USA, which is another major inspiration for the Indian constitution, scandalizing/ criticizing the court was abolished in 1941, similar provisions are available in the Canadian and Australian constitution as well, which exclude scandalizing the court as an offence, the “scandalizing of court” clause in the contempt of court act, 1971 section 2(c) is hugely criticized due to its broad and wide ambit, wherein any sort of remark might constitute as scandalizing of the court. However, another criticism that arises by upholding the “scandalising of court” clause in the Prashant Bhushan case, is that it strays the nation’s judiciary further away from the ideal democracy that India wants to achieve, the court by bringing about action against Prashant Bhushan and charging him for a mere remark on a photograph, has affected the public opinion of the court itself.
As established in Badrakantha Mishra v. registrar of Orissa high court, the court established that vilification of a judge as an individual does not amount to contempt. In the Prashant Bhushan case at hand, it is evident the tweet about a picture of the current CJI, not wearing a mask during the pandemic, is a remark on the CJI as an individual, and therefore isn’t actionable in court, however by finding Prashant Bhushan guilty of contempt for this tweet, the court established itself as a biased institution, which goes against the laws of natural justice that the Indian Judiciary aims to follow. Furthermore, in the landmark case of PN Dua v. Shiv Shankar and others, the SC created precedence for fair criticism as a defence, and such ideas should be welcome so long as they do not hamper the administration of justice.
The tweet made by Prashant Bhushan on the Chief Justice of India was not hampering the administration of justice, but was rather a personal remark on the Justice’s act. Moreover, Prashant Bhushan’s remarks can be considered to be fair criticism towards the Chief Justice of India, according to Canon 2 clause A, point out that the judge “should respect and comply by the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” the remark on the ignorance showed by the CJI on the governmental order requiring masks to be worn at all times was a comment made as fair criticism on SA Bobde’s failure to comply with the conduct that is expected out of the CJI. , pointing out that someone was not wearing a mask, is not hampering rather supporting the administration of rules and laws across the country and propagates the notion of all rules being equal for all, as stated in article 14 of the Indian Constitution. Furthermore, the use of the “scandalizing of court” law to uphold the personal dignity of the CJI sets forth an example wherein any court of law can use this precedent to benefit their own judges and their personal dignity rather than the dignity of the court, which the law is meant for, Lord Denning rightly said “we will never use this jurisdiction as a means to uphold our own dignity. This must rest on surer foundations”.
Furthermore, the contempt of court laws in India are not developed enough to incorporate technological advances and social media. However, the Supreme Court, by charging Prashant Bhushan for tweets made by the lawyer, has now set precedent for future cases of contempt, based on social media. However the criticism that this move entails is the fact, that Supreme Court mandate does not permit it to monitor social media, therefore this move might lead to SC getting mandate for monitoring of social media, which is not permitted under the Personal data protection bill, 2019. Therefore, the precedent set by the Supreme Court, is unfounded and unconstitutional under the bill.
In conclusion, Justice B.N Srikrishna rightly said that surveillance and monitoring of social media and personal information of individuals can lead India to become an “Orwellian state”. With the vague and ambiguous restrictions imposed on free speech in the constitution, can be misused and ill-interpreted for intra-personal gain. The Prashant Bhushan case is a clear example of ill-interpretation of the article 19(2) of the Indian constitution, which has now become a precedent in all records and for several many cases to come, as technology gains more prevalence.
INDIA CONST. art. 19. Cl. 1.
INDIA CONST. pmbl.
INDIA CONST. art. 19, cl. 2.
The Indian Penal Code, No. 45 of 1860, Indian Code (1860), vol. 1
The Contempt Of Courts Act, No. 70 of 1971, Indian code (1971)), vol.1
Hemant Singh, Constitution of India: Features taken from other countries Jagranjosh.com (2020), https://www.jagranjosh.com/general-knowledge/constitution-of-india-features-taken-from-other-countries-1409660545-1
335th Law Commission of United Kingdom Report, Contempt of Court: Scandalising the Court, (2012).
Crime and Courts Act, C.22, § 33 (2013) (United Kingdom).
Supra Note 2, §.2, cl. C.
Badrakantha mishra v. registrar of orissa high court, (1974) 1 SCC 374
P.N. Dua vs V. P. Shiv Shankar & Others, (1988) 3 SCC 167 (India)
Code of Conduct for Judicial Employees and Judges, canon 2, cl. A, (2017).
 Dr. D. J. Christopher & Dr. Prathap Tharyan, Masks are mandatory for all now The Hindu (2020), https://www.thehindu.com/news/cities/chennai/masks-are-mandatory-for-all-now/article31400601.ece
 INDIA CONST. art. 14
 R v Police Commissioner of the Metropolis, Ex parte Blackburn (No 2) 2 QB 150, 154. (1968).
 INDIA CONST. art. 141
 THE PERSONAL DATA PROTECTION BILL, No. 373 of 2019, INDIA CODE (2019), VOL. 1
 Megha Mandavia, Personal Data Protection Bill can turn India into ‘Orwellian State’: Justice BN Srikrishna The Economic Times (2019), https://economictimes.indiatimes.com/news/economy/policy/personal-data-protection-bill-can-turn-india-into-orwellian-state-justice-bn-srikrishna/articleshow/72483355.cms
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