Abstract
This article examines the constitutional clash between the right to freedom of speech and judicial authority, specifically considering contempt of court laws in India. In particular, the study will examine whether contempt laws, and “scandalising the court” specifically, are aligned with democratic principles and constitutional rights under Article 19(1)(a). The number of contempt proceedings initiated against comedians, artists and public critics—as illustrated by recent recent contempt cases of Kunal Kamra and Munawar Faruqui—are troubling and foreshadow the judiciary’s increasing intolerance to criticism, satire and dissent. Using doctrinal and constitutional critical methods, this article examines statutes, and judicial pronouncements and compares these with international practices to assess whether the contempt regime in India still serves the purpose of upholding the image of the judiciary or functions as a ban on valid legitimate criticism.The article draws on a comparative perspective with other democracies such as the UK, USA, South Africa, and Canada that have managed more significant thresholds for limiting free speech by contempt. The argument is that judicial dignity, analogous to public trust, cannot be maintained through coercive silence. In its closing, the paper suggests a range of reforms including proportionality, statutory clarity, institutional tolerance, and the repeal of antiquated laws that criminalise dissent. In so doing, it calls for a rethink of the role of the judiciary in a democracy in which open dialogue and criticism of the judiciary are central to constitutional governance.
Keywords: Contempt of Court, Free Speech, Judiciary, Article 19(1)(a), Comedians, Constitution of India
Introduction
In any constitutional democracy, the judiciary has two main obligations: resolve legal disputes, and protect constitutional values. In India, the judiciary has taken a further step in fulfilling this obligation by developing a much more active, although controversial, role in the protection of fundamental rights. However, its invocation of contempt jurisdiction in cases of “scandalising the court” raises distinct concerns about the compatibility of contempt jurisdiction with Article 19(1)(a) of the Constitution with respect to the freedom of speech and expression. Article 19 (2) provides that there is no free speech and expression, just “reasonable restrictions.” One of the restrictions on free speech and expression involves contempt, but it presently lacks clarity if a person engages in contempt when they criticise, satirize, or engage in artistic expression. Most importantly, the such critiques and commentary are much more contentious in light of growing number of comedians and public figures being prosecuted or threatened with prosecution under contempt law. So, the question is this: Is contempt law being used in the interests of the administration of justice or being used to discourage public discourse?This paper will critically examine this tension by examining constitutional provisions, leading case law, statutes, and comparative perspectives. Ultimately, this paper asks if India’s constitutionally framed contempt regime is consistent with the ideals of democracy and constitutionally protected free expression.
Review of Literature
The law of contempt has consistently attracted interest from legal scholars. M.P. Jain in Indian Constitutional Law argued that the powers of contempt are rooted in Articles 129 and 215 of the Constitution of India. Contempt is a function of the inherent and proper power of the Supreme Court and High Court to punish for contempt of court. In Jain’s view, while the scheme may be necessary to protect judicial independence, it provides a loose definition of offence that is not sufficiently demarcated. Here, in Offend, Shock, or Disturb Gautam Bhatia provides a rights-based analysis: he notes that the Indian judiciary has allowed institutional reputation to be prioritized over one’s individual right to dissent. He suggests what he calls a culture of justification, in which restrictions on speech should only be permitted if they meet test of necessity, proportionality, and reasonableness in the Constitution.
The Law Commission of India in its 274th Report (2018) signifies, as an institution, the emergence of a new way of thinking on the part of the Commission in suggesting that “scandalising the court” be rethought as a non-offence, due to its vagueness, unnecessary character, and incongruence with foundational elements of democracy. Scholars like Eric Barendt suggest that a contempt view can be reconsidered through a ‘free speech’ lens. Barendt’s comparative work shows that not only has the United Kingdom done away with contempt in the form of scandalising the court, it also understood that the binary of criminal sanction was a negative abstraction. Last, the United States has applied a “clear and present danger” doctrine following any agnostic rationale, upon which the government can remove free speech at will.
Analysis: Contempt vs. Comedians – A Modern Struggle
The Changing Character of Contempt
Indian contempt of court has always been a instrument of respect for the institution of the judiciary. The origin of contempt of court, however, is rooted in colonial practices. British judges during the colonial period wanted Indian subjects to remain obedient at all times. Contempt in this sense became a judicial weapon to stop disobedience and assure that they continued to be in a position of superiority. Such a legacy has been taken on into constitutional law after independence, by Articles 129 and 215 of the Constitution, where it permits the Supreme Court and High Courts, in their respective jurisdictions, to punish for contempt. Later, the powers under the Constitution was further detailed by the Contempt of Courts Act, 1971, which was in consonance with the powers to punish for contempt, and also provided a quite lengthy explanation of the expression “criminal contempt” in Section 2(c) wisely the act of scandalising the authority of the courts.
The wording of the provision has created a loose, broad piece of legislation but a malleable response. Scandalising the court is not a definable offence and continues as a subjective and speculative phrase left to the determination of the judiciary. There are instances where a judge might perceive what could otherwise be flippantly labelled as a scandalising comment to be severe criticism in reality – the comment might also be considered fair criticism by the eye of the public. This spark element has enabled the constantly shrinking line between judicial conscience and reporting. Thus, there are genuine threats in that in practice, the provision consistently flexes towards the edge of hindering justice and comment that is dissenting.
Kunal Kamra and the Limits of Satire
Kunal Kamra is perhaps the most popular political satirist in India and has found himself at the receiving end of contempt proceedings on several occasions. One was when he posted to the Supreme Court of India that it was absolutely fine if they granted Arnab Goswami bail, but the hasty grant of bail proves a degree of bias that speaks of the institution’s independence and its synergy with the state. Kamra asked whether the Supreme Court would ever remain representative of the people’s will, or will it yield to repetition and coercion from the political class? The second event was a satirical video Kamra uploaded on social media also asking how the judiciary operated independently of the political environment it nurtures. Although the Supreme Court did not sanction Kamra, terming Kamra’s remarks “offensive”, but yet appropriate for a democracy, issuing a rare order to highlight the foolishness of a thin, or febrile, skin to criticism. Kamra did not issue an apology, declaring “jokes are not contempt”. This episode is symbolic of the question: do courts catch satire or take the high road? On the one hand, Kamra’s stance on free expression indicates he thinks, as a matter of constitution, that artistic and political satire are discourse appropriate to a democracy. On the other hand, contempt without conviction has a chilling effect on future expression and provokes inhibiting self-reliance.
Munawar Faruqui and the Chilling Effect of Expected Offence
But Munawar Faruqui was never arrested for contempt, and the 2021 arrest mentioned here in Indore (for hurting religious sentiments, and for issuing a statement that would be criminal prior to conducting a comedy show) is indicative of a much deeper animosity against artistic freedom. The Faruqui case went on not due to what he uttered, but due to what he should have uttered. The premeditated character of his arrest parallels the reasoning of several, what could only be termed as threats of contempt: the public was taken to have been insulted as opposed to an injury being inflicted upon justice. These are symptomatic of a much broader trend, whereby comedians and artists are being made the focal points of non-state actor influences not because they’re obstructing justice, but because of the historically – and currently- placed value on respect for the political institutions of power – including the judiciary.
One should mention, in such moments contempt law’s force is shifting from defending the judicial office to direct the judicial reputation despite being based on pertinent public concern. Judicial Precedent: Fair Criticism or Scandalising the Court?
In Baradakanta Mishra v. Registrar of Orissa High Court (1974), the Supreme Court differed between fair criticism and “scandalising the court”. The confusion lies in the fact that the judgment failed to say in which circumstances meant scandalising. In a pluralistic democratic society, that can differ greatly – irreverence for some will be speaking truth to others.
It should be noted that recent judgments like Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) established the proportionality test where rights are restricted on grounds of public interest.
However, the Court declared that the public interest should have a legitimate aim to cite an example, be a necessary case in a democratic society, and it should also be proportionate to the legitimate aim pursued. In contempt cases, the courts don’t seem to adopt this rationale. The judiciary seemed to be victim and judge at the same time, subjecting serious matters to fairness and bias. As such, in Modern Dental College v. State of Madhya Pradesh (2016), the Court reaffirmed the imperative of reasoned restrictions subject to constitutional scrutiny. However, these proportionality doctrines have not been uniformly applied to contempt jurisprudence, and thus allowed imprecise moral precepts as well as subjective caprices to rule supreme. Such unsteadiness devalues the coercive power of contempt proceedings, and consequently risks undermining trust in the judiciary itself. Social Media, a Democratization of Critique
The digital age adds another layer of complexity.
Social media can now be used to critique and proliferate critique of public institutions.
Judges enjoy no such distance between their decisions and immediate viral critique as we see on social media with traditional media. While some of this material is no doubt the kind of rude or overblown content, a good deal of the criticism leveled against judges is valid and can pose serious questions on the merits of the decision, openness, or impartiality. It is not uncommon in response to this criticism for courts to ahistorical invoke contempt to pre-empt discussion and criticism. But not only does this impugn the judiciary, but it also represents a refusal to lower one’s expectations to democratic standards. Institutional trust in a mature democracy is earned rather than imposed. If courts are to elicit respect, they must welcome criticism, including possibly uncomfortable or irreverent criticism. The Selective Enforcement of Contempt Law
Perhaps the most disquieting feature of India’s contempt regime is that it is selectively enforced.
A few senior lawyers, journalists, and politicians have made absurd charges and claims of judicial misconduct and are immune from contempt proceedings in comparison to artists and stand-up comedians, with much less institutional influence, who frequently end up being the group’s weakest members.
This means that contempt law is not a fair balancing measure meant to shield the judiciary, but a discretionary measure subject to uneven application. Uneven application of contempt law also fosters judicial elitism perceptions. It offers a persistent reality of judicial elitism, one, of monopoly of power, which reinforces the perception that the judiciary is not accountable to the people but institutionally above the people.
Such is the perspective that offers a foundation for inquiry into the appropriateness of judicial elitism in a constitutional democracy, where no institution and individual may be exempt from accountability and criticism by the people.
Comparative Jurisprudence: Lessons from Other Democracies
To evaluate whether India’s current contempt regime of law (particularly the offence of “scandalising the court”) conforms to the constitutional ideals of democratic nations, it is illuminating to see how other jurisdictions balance judicial dignity and free expression. Though constitutional provision is subtle, there are some similarities that become apparent, which point towards a prioritisation of accountability and transparency, with a higher threshold for punishing speech.
United Kingdom: The Outdated Repealed
The United Kingdom, the source of India’s contempt laws, passed the Crime and Courts Act, 2013, which abolished the offence of “scandalising the court.” The legislature did this after the courts realized their existence was not only antiquated but not in line with prevailing democratic principles. In DPP v. Collins (2006), the UK courts asked themselves whether the offence was still needed, considering how established and well-respected the judiciary had become.
The UK Parliament realized that in a mature democracy, it is better that courts be immune to criticism. Judges are public servants – not monarchs – and their authority should be in the exercise of public respect and judicial reasoning, and not in the threat of punishment against dissent. This change in the British parliament offers a significant constitutional lesson: an institution’s dignity should be earned, not asserted.
United States: Actual Malice and Clear Danger
In the United States, the First Amendment virtually completely shields free speech.
Even criticism of the courts is permitted in large part, no matter how severe, and will nearly never be put under punishment unless it presents a “clear and present danger” to justice administration.
In the celebrated case of New York Times v. Sullivan (1964), the Supreme Court promulgated the “actual malice” standard, in which the government must show, in instances where it has penalized free speech, not merely that the publication or speech was false, but that it was done with “actual malice” or in reckless disregard of the truth. This doctrine places the voice of public opinion over the institutional interest for an offended judiciary. The judiciary along with other public institutions is subjected to significant scrutiny by the public, satire, and even occasional vilification. All institutions gain their power on the basis of public trust rather than coercion. There is a significant bar for a government to punish citizens for free speech, even to the point of almost maintaining dissent even when unpopular.
South Africa: Principled Treatment of Criticism as a Civic Responsibility in the Democratic State As a constitutional democracy set to take to the skies from the apartheid pretenses, South Africa is aware that criticism of public institutions is capable of providing a credible contribution towards the determination of public opinion in its Dominican venture.
S v. Mamabolo (2001) held that contempt powers have to be exercised carefully and only when there is a genuine risk of obstructing” the administration of justice”.
The Court called for restraint against resort to contempt in order to “protect” judges from public insult reminding us that credibility is in integrity rather than intimidation.
South African jurisprudence values that criticism – even unfounded, mistaken and stern – are part and parcel of its democratic accountability. The function of the judiciary is not to prevent criticism but to openly walk above criticism with honesty, transparency and sagacity. Canada: Open Debate and Tolerance Canada also places a very high value on free speech under its Charter of Rights and Freedoms.
The local courts have narrowed contempt and used it strictly.
The courts have restricted contempt of court to situations where the speech interferes with court proceedings or causes obvious injury to the administration of justice.
In R v. Kopyto (1987), the Ontario Court of Appeal decided that the fact the appellant personally attacked judges was not contempt of court (despite the fact that they were rude and hyperbolic), were not contempt of court unless they represented a real and substantial risk to the process of law. This illustrates the rule that you can criticise but not impede courts. Canadian legislation does not confuse criticism with disobedience, and accepts public criticism as part of the political and legal discourse. Implications for India Whereas the other jurisdictions have realized the application of contempt in upholding dignity and integrity of the judiciary (particularly when targeted for “scandalizing the court” in regard to judicial independence) to be problematic, India perhaps remains unique in holding on to the colonial provision that is ambiguous and in a haphazard manner applied, while still holding on to rebuking “scandalizing” the courts.
These other instances demonstrate that there are means of treating judges with respect and integrity without suppressing dissent by using coercive suppression.
As India’s democratic institutions mature, they will ultimately have to be able to provide an answer to whether they are served better by employing suppression in the guise of “judicial integrity” or, instead, gaining the public’s trust through humility, accountability, and strength when faced with criticism.
Suggestions for Reform
The increasing use of contempt laws to silence comedians, artists, and critics should seriously concern us and invoke the need for reform. For the sake of judicial dignity, it is not worth an erosion of constitutional accountability in a democracy. The following reforms should be considered:
1. Clarify and Amend the Laws
The contempt of courts act, 1971, will need to re-drafted specifically s. 2(c), so that there is clarity about “scandalizing the court.” The lack of clarity drives subjective and inconsistent application. It is necessary for this legislation to distinguish between:
True obstruction (e.g., disobedience or disturbance), and
Critical or satirical speech that does not obstruct courts’ operation.
Legal certainty can only be achieved with precision. Vague concepts like “lowering the authority of the court” leads to abuse.
2. Apply the Proportionality Test
All contempt cases will need to voluntarily apply the proportionality test established in Puttaswamy and Modern Dental College. The courts, must consider:
Whether the restriction serves a legitimate purpose?
Whether it is necessary in a democracy?
Whether there are less intrusive means, and
Whether the harm caused by the restriction outweighs the benefit?
This will stop free speech being sacrificed at the altar of institutional sensibility.
3. Foster Judicial Tolerance
Judges are public servants and must be able to withstand criticism, both sharp and unfavourable. The legitimacy of democracy does not come from fear, but from public trust. A court that tolerates expressions of disrespect is more respected than one that punishes. Health comes from tolerance, not weakness.
4 Empathize with Satire and Art Speech
The expressive arts comedy, satirical, film and on-line arts speech must be unqualifiedly protected by Article 19 (1)(a). Art expresses public sentiment and generates democratic discourse, responding to social and political stimuli. By criminalising satire as contempt, the engagement shows a lack of understanding regarding speech and the realities of complex pluralism in a digital world.
5 Abolish Scandalising the Court
India should remove the “offence” of scandalising the court, following the UK position. It is a colonial hangover for which there is no place in a modern democracy.
Contempt must be restricted to:
Disruption of court processes,
Disobedience of court process, or
Acts that directly undermine justice.
Disrespect of the court by criticism whether in the form of art, journalism or political opposition must not ever constitute contempt.
Summary
The changes pursued are certainly not radical; they are constitutionally mandated. A strong judiciary does not need protection from speech; instead it gains legitimacy through accountability. Changing contempt law will build judicial legitimacy, bring India into line with democratic norms, and rebalance power and rights.
Conclusion
The contempt law in India is at a crucial point in its constitutional evolution. As the judiciary is a protector of justice, it must do so with a healthy dose of skepticism against undue pressure but cannot be insulated from public scrutiny and criticism. In a democratic society, institutions gain authority and accountability, not unassailably.
The repeated contempt actions against comedians like Kunal Kamra indicate overly-sensitive reactions by the judiciary which threatens to stifle free expression. These types of prosecutions are damaging to constitutional values surrounding free expression and create problems for artistic along with political speech as a whole.
The free expression of individual rights and judicial authority are not exclusive to one another. They must coexist while safeguarding institutional legitimacy and the vitality of democracy. It is therefore time for India to reform its contempt law in ways that make sense for a mature democracy and a living document in its Constitution.
Footnotes
- M.P. Jain, Indian Constitutional Law, 7th ed., LexisNexis, 2014.
- Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution, OUP, 2016.
- Law Commission of India, 274th Report on Review of the Contempt of Courts Act, 1971, 2018.
- Eric Barendt, Freedom of Speech, Oxford University Press, 2005.
- Re: Kunal Kamra Contempt Case, Suo Moto Proceedings, Supreme Court of India, 2020–2025.
- Scroll Staff, “Kunal Kamra Refuses to Apologise: ‘Jokes Aren’t Contempt’,” Scroll.in, Nov 2020.
- “Comedian Faruqui Jailed Over Unperformed Joke,” BBC News, Jan 2021.
- Baradakanta Mishra v. Registrar of Orissa High Court, AIR 1974 SC 710.
- Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
- Crime and Courts Act, 2013, UK Parliament.
- New York Times v. Sullivan, 376 U.S. 254 (1964).
- Contempt of Courts Act, 1971, Sections 2(c), 12.
- Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353.
- DPP v. Collins [2006] UKHL 40 –
Used in your comparative analysis of UK contempt jurisprudence, highlighting the evolution in attitude toward “scandalising the court.” - S v. Mamabolo (2001) ZACC 17 –
Referenced when discussing the South African Constitutional Court’s stance on judicial criticism and the limits of contempt. - R v. Kopyto (1987), 62 OR (2d) 449 (Canada) –
Cited in the section on Canada’s interpretation of contempt and their high tolerance for critique of judges. - Constitution of India, Article 19(1)(a) and Article 19(2) –
These constitutional provisions are foundational to your entire argument and should be footnoted at least once early in the Introduction or Analysis. - Constituent Assembly Debates, Vol. VII, 1 December 1948 –
If you reference democratic intent behind Article 19(1)(a) in any paragraph (especially in the conclusion or introduction), this adds valuable original intent context. - Contempt of Courts Act, 1971 – Preamble –
If you are analysing the original purpose or scope of the legislation beyond Section 2(c), you may want to footnote the Preamble for a doctrinal interpretation. - Crime and Courts Act, 2013 (UK), Section 33 –
To specifically cite the section that abolishes “scandalising the court” in UK law.
Name- Ritika Chaudhary
College – O.P. Jindal Global University