Category Archives: Contempt of Court

Judicial Censorship, Prior Restraint, and the Karnan Gag Order

When the only weapon you have is a hammer, every problem looks like a nail. In recent times, the judiciary’s approach to the freedom of speech and expression seems to be proving this adage true. In response to people saying things that may not be to a judge’s liking, the response has invariably been to reach for the hammer, to ban, prohibit, or compel. Jolly LLB has a few scenes mocking lawyers? Make a committee and order cuts. Fundamental duties don’t have enough of an impact among people? Force them to stand up for the national anthem in cinemas. Condom packets have racy pictures? Direct the Additional Solicitor-General to come up with a way of “regulating” them. People are losing touch with cultural values? Force all schools in Tamil Nadu to teach the ThirukkuralThere are bandhs in Meghalaya? Ban the press from carrying statements about them. And so on.

The judicial hammer was in exhibition again today, in the seven-judge bench order convicting Justice C.S. Karnan of contempt, and sentencing him to six months in prison. The broader contempt case is not something I want to spend time discussing here, apart from noting, as an aside, that a Supreme Court that has no time to hear crucial constitutional cases for years on end on the ground that its judges are overworked and dealing with a backlog, nonetheless found the time to have multiple seven-judge sittings between February and May. Be that as it may, it is the last line of today’s order that I want to focus on. After convicting Justice Karnan to six months imprisonment, the Court states:

“Since the incident of contempt includes public statements and publication of orders made by the contemnor, which were highlighted by the electronic and print media, we are of the view, that no further statements made by him should be published hereafter. Ordered accordingly.”

The scope of this order is breathtaking. The Court takes one individual – Justice Karnan – and gags the media from carrying any statement made by him. In my view, apart from overreaching and violating Article 19(1)(a), the Court has passed an order that it had no power to pass.

Prior Restraint

The order imposes what, in free speech law, is called “prior restraint”: “… [State] action that prohibits speech or other expression before it can take place.” It has long been a position in common law that prior restraints upon speech are impermissible unless exceptional circumstances exist. As early as 1765 in England (a time not exactly known for liberties of speech and of the press), Blackstone famously wrote that “the liberty of the press… consists in laying no previous restraints upon publication.” The American Supreme Court has held repeatedly that “any prior restraint on expression comes to this Court with a `heavy presumption’ against its constitutional validity.” In Brij Bhushan vs State of Delhi, the Indian Supreme Court held, as well, that prior restraint upon speech is presumptively unconstitutional. Prior restraint is considered specially damaging to free speech because it chokes off the “marketplace of ideas” at its very source, and prevents certain individuals, or ideas, from entering the public sphere. In other words, it gives the State exclusive control over “exclusive control over what material can or cannot be allowed to enter the marketplace of ideas.”

The Media Guidelines Case

In Sahara vs SEBI, popularly known as the “Media Guidelines Case”, the Supreme Court carved out a specific exception to the rule against prior restraint. In SEBI, the Court was concerned about the issue of media trials causing prejudice in sub judice matters. In that context, the Court held that it had inherent powers under the Constitution to “prohibit temporarily, statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate courts.” Drawing this power under Article 129 of the Constitution, which authorised the Supreme Court to punish for contempt of itself, the Court held that the power to punish included the power to prevent as well. On this basis, the Court held that it could pass “postponement orders” (i.e., temporary injuncting the media from reporting on a particular event) in order to ensure the proper administration of justice, a fair trial, and the protection of the rights of the accused under Article 21. The Court warned that:

“Given that the postponement orders curtail the freedom of expression of third parties, such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice which in the words of Justice Cardozo is “the end and purpose of all laws”. However, such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint. The order of postponement will only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period.”

Consequently, in SEBI, the Supreme Court authorised prior restraint only in the narrow context of an ongoing trial, where media reporting presented a “real and substantial risk of prejudice to the fairness of the trial.” The Court stressed that the postponement order must be narrow and limited, both in its scope and its duration.

The Karnan Gag Order

The SEBI case has come under serious criticism, but for the purposes of this post, let us take it as binding law, and test the Karnan order against it. It is quite obvious that none of SEBI’s pre-conditions for imposing prior restraint are not even remotely satisfied. There is no ongoing trial – by the same order in which it imposed the media gag, the Court convicted him of contempt. Consequently, the prospect of prejudicing an ongoing trial and thereby interfering with the administration of justice – the basis of the judgment in SEBI – does not exist. The order is neither narrow in scope, nor in its duration: it is, in the true sense of the word, a blanket gag order. Consequently, the Karnan gag order does not fall within the scope of the SEBI judgment.

What, then, is the justification for this sweeping exercise of judicial power to silence speech? The answer is clear: Justice Karnan has, over the course of the last few months, made a number of statements, which formed the basis of his conviction for contempt by the Supreme Court. The Court presumes that he will make more such statements, and many of them will amount to contempt of court. To prevent these statements from being given the oxygen of publicity, the Court decides to gag the media from reporting on them, in advance.

This is the case for the Court, taken at its highest. And at its highest, it is no case at all. There is something particularly disturbing about punishing a man not for what he has said, but for what he might say (we are dangerously close to the realm of thought-crimes here). There is something particularly disturbing about taking the choice and judgment away from the media about what to report and what not to report, to decide for themselves what statements might be legal and what illegal, and imposing a blanket ban on reporting anything one individual might say, in advance. There is no counter-veiling interest: no ongoing trial, no sexual harassment claim where reputations may be destroyed, no grave imperilment of national security. There is absolutely nothing here apart from a man who has made some statements that the Court has found to be contemptuous, and on that basis the Court has decided to gag the media from publishing anything he says. Even if it could possibly be argued that the Court had the power to do this under Article 129 (since, as has been held, the power to punish for contempt includes the power to prevent it), the Karnan order clearly violates Article 19(1)(a), and fails all the proximity and reasonableness tests laid down under Article 19(2).

Needless to say, I don’t believe that the Court does have the power to pass an order under Article 129. SEBI – which held that the power to “punish” contempt includes the power to “prevent” contempt – was already stretching language to its limits. But even if there is some way to justify SEBI on the grounds of its narrowly focused nature, to say that the Karnan gag order falls within the Supreme Court’s power to “prevent contempt” is to act like Humpty Dumpty, and make words mean what you want them to mean, because you are the master.

Now, if the gag order cannot be traced back to Article 129, then – in my view – there is no constitutional source for it at all. As I have argued before in my analysis of the national anthem order, under Article 19(2), speech can be restricted only by the “State”, acting through “law”. It is, by now, well-settled, that under Article 19(2), the judiciary is not “State”, and judicial orders are not “law”. The judiciary’s task is to protect citizens’ right to free speech from executive and legislative tyranny, not to get into the business of censoring speech itself! In my view, therefore, the gag order is entirely illegal and unconstitutional.

Judicial Censorship

I have written before that over the last few years, we have been witnessing a disturbing trend where, in place of the legislature and the executive, it is the judiciary that has been taking upon itself the task of regulating, restricting, and censoring speech. The Karnan gag order is the latest trend in what fast seems to be becoming an established jurisprudence of (what I have called) “judicial censorship”.

The Karnan gag order was written by the Chief Justice, but co-signed by the next six senior-most judges of the Supreme Court. Three of those six judges will serve as Chief Justice in the coming years. What this suggests is that the problem is not with individual judges, but with the fact that, as an institution, the Supreme Court simply doesn’t view the freedom of speech and expression to be of much importance.

That is, in equal parts, alarming and tragic.


Filed under Contempt of Court, Free Speech, judicial censorship

Free Speech and Contempt of Court – II

(This post first appeared on the CIS website)

Towards the end of the last post, we saw how the Law Commission traced the genealogy of the “scandalising the Court” offence, inasmuch as it sought to protect the “standing of the judiciary”, to that of seditious libel. The basic idea is the same: if people are allowed to criticise state institutions in derogatory terms, then they can influence their fellow-citizens who, in turn, will lose respect for those institutions. Consequently, the authority of those institutions will be diminished, and they will be unable to effectively perform their functions. Hence, we prevent that eventuality by prohibiting certain forms of speech when it concerns the functioning of the government (seditious libel) or the Courts (scandalising the Court). This, of course, often ties the judges into knots, in determining the exact boundary between strident – but legitimate – criticism, and sedition/scandalising the Court.

Seditious libel, of course, went out in the United States with the repeal of the Sedition Act in 1800, and was abolished in the England in 2009. Notoriously, it still remains on the statute books in India, in the form of S. 124A of the Indian Penal Code. An examination of the Supreme Court’s sedition jurisprudence would, therefore, be apposite. Section 124A makes it an offence to bring or attempt to bring into hatred or contempt, or excite or attempt to excite, disaffection, towards the government. The locus classicus is Kedar Nath Singh v. Union of India. I have analysed the case in detail elsewhere, but briefly, Kedar Nath Singhlimited the scope of 124A to incitement to violence, or fostering public disorder, within the clear terms of Article 19(2). In other words, prosecution for sedition, if it was to succeed, would have to satisfy the Court’s public order jurisprudence under Article 19(2). The public order test itself – as we discussed previously on this blog, in a post about Section 66A – was set out in highly circumscribed terms in Ram Manohar Lohia’s Case, which essentially required a direct and imminent degree of proximity between the speech or expression, and the breach of public order (in that case, the Court refused to sustain the conviction of a speaker who expressly encouraged an audience to break the law). Subsequently, in S. Rangarajan v. P. Jagjivan Ram, the Court noted that the relation ought to be like that of a “spark in a powder keg” – something akin to inciting an enraged mob to immediate violence. Something that the Court has clearly rejected is the argument that it is permissible to criminalise speech and expression simply because its content might lower the authority of the government in the eyes of the public, which, in turn, could foster a disrespect for law and the State, and lead to breaches of public order.

Unfortunately, however, when it comes to contempt and scandalising, the Court has adopted exactly the chain of reasoning that it has rejected in the public order cases. As early as 1953, in Aswini Kumar Ghose v. Arabinda Bose, the Court observed that “it is obvious that if an impression is created in the minds of the public that the Judges in the highest Court in the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined.”

Subsequently, in D.C. Saxena v. CJI, the Court held that “Any criticism about judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the judges and brings administration of justice to ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be criticised. Motives to the judges need not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice is one of the pillars on which democratic institution functions and sustains.” Notice the chain of causation the Court is working with here: it holds faith in the administration of justice as a necessary pre-requisite to the administration of justice, and prohibits criticismthat would cause other people to lose their faith in the judiciary. This is exactly akin to a situation in which I make an argument advocating Marxist theory, and I am punished because some people, on reading my article, might start to hold the government in contempt, and attempt to overthrow it by violent means. Not only is it absurd, it is also entirely disrespectful of individual autonomy: it is based on the assumption that the person legally and morally responsibly for a criminal act is not the actor, but the person who convinced the actor through words and arguments, to break the law – as though individuals are incapable of weighing up competing arguments and coming to decisions of their own accord. Later on, in the same case, the Court holds that scandalising includes “all acts which bring the court into disrepute or disrespect or which offend its dignity or its majesty or challenge its authority.” As we have seen before, however, disrepute or disrespect of an institution cannot in itself be a ground for punishment, unless there is something more. That something more is actual disruption of justice, which is presumably caused by people who have lost their confidence in the judiciary, but in eliding disrepute/disrespect with obstruction of justice, the Court entirely fails to consider the individual agency involved in crossing that bridge, the agency that is not that of the original speaker. This is why, again, in its sedition cases, the Court has gone out of its way to actually require a proximate relation between “disaffection” and public order breaches, in order to save the section from unconstitutionality. Its contempt jurisprudence, on the other hand, shows no such regard. It is perhaps telling that the Court, one paragraph on, adopts the “blaze of glory” formulation that was used in an 18th century, pre-democratic English case.

Indeed, the Court draws an express analogy with sedition, holding that “malicious or slanderous publication inculcates in the mind of the people a general disaffection and dissatisfaction on the judicial determination and indisposes in their mind to obey them.”Even worse, it then takes away even the basic protection of mens rea, holding that all that matters is the effect of the impugned words, regardless of the intention/recklessness with which they were uttered. The absence of mens rea, along with the absence of any meaningful proximity requirement, makes for a very dangerous cocktail – an offence that can cover virtually any activity that the Court believes has a “tendency” to certain outcomes: Therefore, a tendency to scandalise the court or tendency to lower the authority of the court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice, would be a criminal contempt. The offending act apart, any tendency if it may lead to or tends to lower the authority of the court is a criminal contempt. Any conduct of the contemnor which has the tendency or produces a tendency to bring the judge or court into contempt or tends to lower the authority of the court would also be contempt of the court.”

The assumption implicit in these judgments – that the people need to be protected from certain forms of speech, because they are incompetent at making up their own minds, in a reasonable manner, about it – was made express in Arundhati Roy’s Case, in 2002. After making observations about how confidence in the Courts could not be allowed to be “tarnished” at any cost, the Court noted that “the respondent has tried to cast an injury to the public by creating an impression in the mind of the people of thisbackward country regarding the integrity, ability and fairness of the institution of judiciary”, observed that the purpose of the offence was to protect the (presumably backward) public by maintaining its confidence in the judiciary, which had been enacted keeping in mind “the ground realities and prevalent socio-economic system in India, the vast majority of whose people are poor, ignorant, uneducated, easily liable to be misled. But who acknowledly (sic) have the tremendous faith in the dispensers of Justice.” So easy, indeed, to mislead, that there was no need for any evidence to demonstrate it: “the well-known proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it misses to hit the target. The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow resulting in the destruction of rule of law, the expected norm of any civilised society.”


The American legal scholar, Vince Blasi, has outlined a “pathological perspective” of free speech. According to him, heightened protection of speech – even to the extent of protecting worthless speech – is important, because when the government passes laws to regulate speech that is hostile towards it, it will, in all likelihood, over-regulate purely out of self-interest, sometimes even unconsciously so. This is why, if the Courts err, they ought to err on the side of speech-protection, because it is quite likely that the government has over-estimated public order and other threats that stem out of hostile speech towards government itself. The pathological perspective is equally – if not more – applicable in the realm of contempt of Court, because here the Court is given charge of regulating speech hostile towards itself. Keenly aware of the perils of speech suppression that lie in such situations, we have seen that the United States and England have abolished the offence, and the Privy Council has interpreted it extremely narrowly.

The Indian Supreme Court, however, has gone in precisely the opposite direction. It has used the Contempt of Court statute to create a strict-liability criminal offence, with boundlessly manipulable categories, which is both overbroad and vague, entirely inconsistent with the Court’s own free speech jurisprudence, and at odds with free speech in a liberal democracy.

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Free Speech and Contempt of Court – I

This post first appeared on the CIS website, here)

On May 31, the Times of India reported some observations of a two-judge bench of the Supreme Court on its contempt powers. The Court noted that the power to punish for contempt was necessary to “secure public respect and confidence in the judicial process”, and also went on to add – rather absurdly – to lay down the requirements, in terms of timing, tone and tenor, of a truly “contrite” apology. This opinion, however, provides us with a good opportunity to examine one of the most under-theorised aspects of Indian free speech law: the contempt power.

Indeed, the contempt power finds express mention in the Constitution. Article 19(2) permits the government to impose reasonable restrictions upon the freedom of speech and expression “… in relation to contempt of court.” The legislation governing contempt powers is the 1971 Contempt of Courts Act. Contempt as a civil offence involves willful disobedience of a court order. Contempt as a criminal offence, on the other hand, involves either an act or expression (spoken, written or otherwise visible) that does one of three things: scandalises, or tends to scandalize, or lowers, or tends to lower, the authority of any court; prejudices or interferes (or tends to interfere) with judicial proceedings; or otherwise obstructs, or tends to obstruct, the administration of justice. As we can see, contempt can – broadly – take two forms: first, obstructing the proceedings of the Court by acts such as disobeying an order, holding up a hearing through absence or physical/verbal disturbance etc. This is straightforward enough. More problematically, however, contempt also covers instances of what we may call “pure speech”: words or other forms of expression about the Court that are punished for no other reason but their content. In particular, “scandalising the Court” seems to be particularly vague and formless in its scope and ambit.

“Scandalising the court” is a common law term. The locus classicus is the 1900 case of R v. Gray, which – in language that the Contempt of Courts Act has largely adopted – defined it as “any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority.” The basic idea is that if abusive invective against the Court is permitted, then people will lose respect for the judiciary, and justice will be compromised.

It is obvious that this argument is flawed in many respects, and we shall analyse the Supreme Court’s problematic understanding of its contempt powers in the next post. First, however, it is instructive to examine the fate of contempt powers in the United States – which, like India, constitutionally guarantees the freedom of speech – and in England, whose model India has consciously followed.

America’s highly speech-protective Courts have taken a dim view of contempt powers. Three cases stand out. Bridges v. California involved a contempt of court accusation against a labour leader for calling a Court decision “outrageous”, and threatening a strike if it was upheld. Reversing his prior conviction, the Supreme Court noted that “public interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist.Given the strong public interest, the burden of justifying restrictions upon this speech was particularly high. The Court identified two possible justifications: respect for the judiciary, and the orderly administration of justice. On the first, it observed that an enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” On the second, it held that since striking itself was entirely legal, it was no argument that the threat of a strike would illegally intimidate a judge and subvert the course of justice. Throughout the case, the Court stressed that unfettered speech on matters of public interest was of paramount value, and could only be curtailed if there was a “clear and present danger” that the substantially evil consequences would result out of allowing it.

Similarly, in Garrison v. Lousiana, an attorney accused certain judges of inefficiency and laziness. Reversing his conviction, the Supreme Court took note of the paramount public interest in a free flow of information to the people concerning public officials, their servants…. few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.” Consequently, it held that only those statements could be punished that the author either knew were false, or were made with reckless disregard for the truth. And lastly, in Landmark Communications v. Virginia, the Court held that “the operations of the courts and the judicial conduct of judges are matters of utmost public concern”, and endorsed Justice Frankfurter’s prior statement, that “speech cannot be punished when the purpose is simply “to protect the court as a mystical entity or the judges as individuals or as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed.”

What stands out here is the American Courts’ rejection of the ideas that preserving the authority of judges by suppressing certain forms of speech is an end in itself, and that the Courts must be insulated to some greater degree than other officials of government. Consequently, it must be shown that the impugned expression presents a clear and present danger to the administration of justice, before it can be punished.

Now to England. The last successful prosecution of the offence was in 1931. In 2012, the Law Commission published a paper on contempt powers, in which it expressly recommended abolishing the offence of “scandalising the Court”; its recommendations were accepted, and the offence was abolished in 2013. Admittedly, the offence remains on the statute books in many commonwealth nations, although two months ago – in April 2014 – the Privy Council gave it a highly circumscribed interpretation while adjudicating a case on appeal from Mauritius: there must, it held, be a “real risk of undermining public confidence in the administration of justice” (something akin to clear and present danger?), and the Prosecution must demonstrate that the accused either intended to do so, or acted in reckless disregard of whether or not he was doing so.

What is particularly interesting is the Law Commission’s reasoning in its recommendations. Tracing the history of the offence back to 18th century England, it noted that the original justification was to maintain a “haze of glory” around the Courts, and it was crucial that the Courts not only be universally impartial, but also perceived to be so. Consequently, the Law Commission observed that this language suggests that “to be impartial” and “to be universally thought so” are two independent requirements, implying that the purpose of the offence is not confined to preventing the public from getting the wrong idea about the judges, and that where there are shortcomings, it is equally important to prevent the public from getting the right idea.” Obviously, this was highly problematic.

The Law Commission also noted the adverse impact of the law on free speech: the well-known chilling effect, whereby people would self-censor even justified criticism. This was exacerbated by the vagueness of the offence, which left unclear the intent requirement, and the status of defences based on truth and public interest. The Law Commission was concerned, as well, about the inherently self-serving nature of the offence, which give judges the power to sit in judgment over speech and expression that was directly critical of them. Lastly, the Law Commission noted that the basic point of contempt powers was similar to that of seditious libel: to ensure the good reputation of the State (or, in the case of scandalising, the judges) by controlling what could be said about them. With the abolition of seditious libel, the raison d’être of scandalising the Court was also – now – weakened.

We see, therefore, that the United States has rejected sweeping contempt powers as unconstitutional. England, which created the offence that India incorporated into its law, stopped prosecuting people for it in 1931, and formally abolished it last year. And even when its hands have been bound by the law that it is bound the enforce, the Privy Council has interpreted the offence in as narrow a manner as possible, in order to remain solicitous of free speech concerns. Unfortunately, as we shall see in the next essay, all these developments have utterly passed our Courts by.


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