The basics for free speech

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.

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