Thursday, February 25, 2016

The basics for free speech


January 30, 2016  The Hindu

Suhrith Parthasarathy

Courts have routinely invoked contempt to punish expressions of dissent, when such expressions often posed no threat to the administration of justice.
Through a most pernicious act of judicial fiat, in a judgment delivered on December 23, 2015, Justice A.B. Chaudhari, sitting on the Nagpur Bench of the Bombay High Court, issued notice to the Booker Prize-winning writer Arundhati Roy for committing what he believed constituted a clear case of criminal contempt of court. The decision was rendered on an application for bail by the Delhi University professor, G.N. Saibaba. Not only did the court reject Dr. Saibaba’s plea, in spite of his substantial disabilities, it also hauled Ms. Roy up for writing in support of the professor, and in criticism of the Indian state, including the country’s judiciary. In initiating contempt proceedings, Justice Chaudhari’s judgment has exemplified the state of the right to free speech in India — a liberty fractured by colonial vestiges such as the law on contempt, which we have embarrassingly embraced as a supposed necessity to uphold the majesty of our courts.
The conventional defences adopted in favour of the judiciary retaining powers to punish acts of contempt invariably point to the Constitution. Article 19(1)(a) no doubt grants to the country’s citizens a right to freedom of speech and expression. But the ensuing clause, Article 19(2), limits this freedom, and accords the state the express authority to make laws that establish reasonable restrictions on speech, on various grounds, including contempt of court. When in 1971, Parliament enacted the Contempt of Courts Act, with a purported view of defining and limiting the powers of courts in punishing acts of contempt, it was the inherent constraint in Article 19 that it took refuge under. But this statute is neither reasonable nor in keeping with the fundamental mandates of a legitimate government.
Contempt’s broad contours

Broadly, the 1971 law recognises two common forms of contempt. First, it defines civil contempt to include, among other things, a wilful disobedience of a court’s judgment, order or direction. And second, it defines criminal contempt to include publications that do one or more of the following: (a) scandalise or lower the authority of any court; (b) prejudice or interfere with the due course of any judicial proceeding; or (c) interfere with or obstruct the administration of justice in any other manner.
As is evident, there are clear divisions between different types of contempt. Some of these categories are more obviously justifiable as offences. For instance, the court’s power to punish acts that tantamount to disobedience of its orders, or indeed a court’s inherent authority to ensure that its hearings are conducted in a fair and undisturbed manner, is required to ensure that we subscribe to a basic rule of law. But the idea that the judiciary can also punish acts that have very little to do with the actual administration of justice and all to do with the impact of speech on the institution’s supposed reputation in the eyes of the public is substantially more problematic. Notably, the power to punish acts which ostensibly scandalise or lower the authority of the court speaks not to the majesty of the institution, but to an ingrained sense of insecurity, coupled with an almost despotic view of its own infallibility, that the judiciary seems to possess. In a democracy, properly understood, it’s difficult to locate any justification for thwarting speech at the face of the judiciary, notwithstanding the fact that contempt of court is one of the explicitly spelled out restrictions to the guaranteed right to freedom of speech under the Constitution.
During the course of drafting the Constitution, there was, writes the lawyer Gautam Bhatia in his new book, Offend, Shock, or Disturb: Free Speech under the Indian Constitution, “a marked uncertainty among the framers about the understanding of contempt they were inserting into the Constitution”. When T.T. Krishnamachari suggested the inclusion of contempt of court as one of the permissible limitations to free speech, he was met by members who were passionate in their opposition to the category’s inclusion. One of these challengers, Pandit Thakur Das Bhargava, believed that contempt of court was simply not germane to a discussion on freedom of speech and expression. In his understanding, powers to reprimand contempt concerned only actions such as the disobedience of an order or direction of a court, which were already punishable infractions. Speech in criticism of the courts, he argued, ought not to be considered as contumacious, for it would simply open up the possibility of gross judicial abuse of such powers. Almost none of the responses to Bhargava in the Constituent Assembly met his core argument: that the guarantee of free speech in a democracy ought to serve as a value unto itself.
Courts and criticism

Bhargava’s warnings have since proved prophetic. 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.
For example, in 1970, the Supreme Court famously upheld a conviction of contempt of court against the former Chief Minister of Kerala, E.M.S. Namboodiripad. During his tenure as Chief Minister, Namboodiripad had apparently delivered a speech arguing that judges were guided and dominated by class interests. “To charge the judiciary as an instrument of oppression, the judges as guided and dominated by class hatred, class interests and class prejudices, instinctively favouring the rich against the poor,” wrote Justice M. Hidayatullah, “is to draw a very distorted and poor picture of the judiciary. It is clear that it is an attack upon judges, which is calculated to raise in the minds of the people a general dissatisfaction with, and distrust of all judicial decisions. It weakens the authority of law and law courts.”
The judgment made no effort at showing any actual link between Namboodiripad’s statements and the supposed weakening of the courts’ authority. In so doing, a disturbing trend was set in motion, which culminated in a 1996 decision in which the Supreme Court ruled that “all acts which bring the court into disrepute or disrespect or which offend its dignity or its majesty or challenge its authority” amount to punishable contempt. The ultimate consequence of this ruling is typical of Indian free speech jurisprudence: a complete eschewal by the courts of any regard for individual choice and liberty, coupled with a belief that some forms of speech are to be muzzled purely by virtue of their content as opposed to any actual anti-democratic harm stemming through their expression.
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, though, courts have continued to routinely equate the supposed scandalising of the judiciary’s authority to an act of contempt.
Constitutional lawyers have proposed many different justifications for the right to free speech. As legal philosopher Ronald Dworkin argued, these justifications usually fall into one or the other of two larger categories. The first involves an instrumental understanding of free speech: that to allow people to speak freely and openly promotes good rather than bad policies. The second justification is premised on a larger platform of a commitment to individual autonomy, of treating people with equal concern, and of therefore respecting their right to speak freely. Punishing speech for supposedly scandalising or lowering the authority of the court falls afoul of whichever rationale we might wish to adopt in our theorising of the abstract right to free expression in India.
Interestingly, in England, whose laws of contempt we’ve so indiscriminately adopted, there hasn’t been a single conviction for scandalising the court in more than eight decades. What’s more, in 2013, after a recommendation by its Law Commission, the country altogether abolished as a form of contempt the offence of scandalising the judiciary. In so doing, it gave credence to Lord Denning’s characteristically precise opinion in a case where contempt charges had been pressed against Queen’s Counsel Quintin Hogg for what was an excoriating attack on the courts in Punch magazine. “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity,” Denning wrote. “That must rest on surer foundations… We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”
(Suhrith Parthasarathy is an advocate practising in the Madras High Court.)

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