In recent times we have seen a lot of contempt of court cases taken by the SC and various HCs in India. Contempt of court is provided as a reasonable restriction under article 19(2) of the constitution. But what exactly is contempt of court? It is basically disobedience or disrespect towards the court and its officers. The Contempt of Court Act 1971, under section 2 defines it to either civil contempt or criminal contempt. A civil contempt occurs when the judgement of the court is disobeyed willfully, or if there is a willful breach of the undertaking submitted to the court. For criminal defamation to occur it needs to have three things, a publication must scandalise the court, or it may interfere with the due process of the justice or it tends to obstruct the administration of the justice.

The SC and the HC have dealt with a lot of criminal contempt cases since Independence, the one question which has always been up for discussion w.r.t to these cases is the fact that are different individuals judged differently for their remarks on the court? There are various examples which suggest that the SC and in some instances the HC have given benefit of the doubt to people closely associated with the bar or to politicians in some instances, while individuals not from their community haven’t had the same benefit.

The two major cases which were pretty similar to each other which come to mind are the Namboodiripad’s case and the P.N. Duda v P Shiv Shankar case.

These two cases are reflective of the fact that with time social norms regarding acceptable restrictions of freedom of speech changed or at least the judgements of the SC in the cases mentioned made it seem so.

E.M.S. Namboodiripad was the Chief Minister of Kerala in 1972. He was part of the Communist Party of India, the CPI. He was held guilty of contempt of court by the SC of India in 1970. In 1967, in a press conference the CM had stated that the judiciary is part of the oppressive system, that there was a class prejudice within the judiciary and that the judiciary favored the rich against the poor and that the judiciary always worked against the working class and sides with the exploiters. The SC observed that while freedom of speech and expression can prevail everywhere it can’t prevail under the conditions where contempt is substantial, hence the defence of EMS on the grounds that his speech contained a fair criticism of the system of judicial administration in an effort to make it conform to the peoples' objective of a democratic and egalitarian society. He further stated that according to him, as long as the verdicts of the court were enforced and no aspersions were cast on judges, a class-based criticism of the institution was legitimate.

This defence of EMS was rejected by the SC and the court said that he was misrepresenting/manipulating Marx and Engels words.

In 1987, Shiv Shankar, the then law minister was giving a speech at the Bar Council of Hyderabad, there he referred to the elite class background of the judges, he remarked, that the Supreme Court consisted of an elite class with sympathy for the zamindars and had pointed out that bankers got higher compensation because of the Supreme Court and anti-social elements had been protected by Supreme Court Judgement.

The SC in this case dismissed the contempt case against Shiv Shankar and observed that in the free marketplace of ideas, criticism of the judicial system or the judges should be welcomed, as long as such criticisms don’t hamper the administration of justice. The court referring to the EMS case said, “times and climes have changed in the last two decades”. It could be said that Shiv Shankar got away with saying literally the same thing as EMS. Now it could be because he was a retired judge and was also the law minister at that time.

Now it needs to be noted here that the judges of the SC and the HC are conferred with “special status” by the constitution. Even the retired SC and HC judges are conferred with the same, this is because in a democracy the judges are a public servant and hence this special status is based on the fact that they hold public office.

But more recently in 2017, Justice Karnan was held guilty of contempt of court by the SC. It was a landmark moment in the history of Indian jurisprudence as Justice Karnan was the first sitting judge to be held guilty of contempt. The SC in his case seemed to have forgotten about the special status of the judges. The question of whether the SC had the jurisprudence to act against a sitting judge w.r.t. contempt of court has never been answered by the court, since to initiate any action against a sitting judge due process of impeachment is followed, for instance in the case of Justice Soumitra Sen. This case raised several issues, the prominent one being, would the SC initiate a contempt case against sitting SC judges? In 2018, the four senior most judges of the SC for the first time in history held a press conference to talk about underlying corruption in the SC, they made several remarks against then CJI Deepal Mishra, yet no contempt case was initiated against them by the SC.Justice Karnan also alleged that he was being targeted because he was a Dalit judge.

One of the major contempt cases in India which explicitly mentioned who could criticize the judiciary and who could not, was that of Arundhati Roy. A petition was filed by J.R. Parashar in the SC against Arundhati Roy, Prashant Bhusan etc., after the verdict in the Narmada Bachao Andolan case in 2000 for contempt of court. The petition was dismissed by the SC, but the SC initiated a suo moto contempt case against Arundhati Roy for three paragraphs in her affidavit filed in the Parashar Case.

One of the paragraphs in the affidavit and the one to have arguably offended the court stated that the SC was trying to muzzle dissent and silence criticism and it was trying to intimidate those who disagree with it. It further stated that, “by entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm.” The SC found Arundhati Roy guilty of contempt and sentenced her to one day in jail and imposed a fine of Rupees 2000. The SC did refer to the case of Shiv Shankar and distinguished it from Roy’s case on the basis of the fact that Shankar was a part of the judiciary and since he was a retired High Court judge he had a sound knowledge about the law and therefore he could express his opinion. On other hand, the court noted Arundhati had no expertise in law and she was not familiar with the workings of the judiciary, since she was just a writer of repute, her situation can’t be compared with that of Shiv Shankar and the benefit extended to Shankar was not available to her. This again shows that the court applied different rules for different people in deciding the matters of contempt of court. Hence it could indeed be said that the limits of fair criticism against court proceedings or judgements depends on the person making the critique.