COMMENTARY

Supreme Court Order on Protests against Clemenceau

THE SUPREME Court order restricting all articles, write-ups, demonstrations, protests etc. on the issue of the entry of the asbestos-laden French Ship Clemenceau into India is not only a violation of the settled law on the issue of contempt of court but it is also a gross violation of the fundamental rights of citizens under section 19.1A of the Indian Constitution which guarantees citizens the right to protest and demonstrate on issues of public interest. The order demonstrates the imperious nature of courts and the psychology of some judges in this regard. The issue of contempt of court being committed by commenting on matters which are pending in court has been the subject of longstanding debate in the courts of various countries.

The law, as settled, is this: It had been held that making comments and writing about pending court matters in a manner that would influence the independent judgement of the court has been held to be contempt because the question was balancing between the right to free trial and the right to free speech. It was therefore held that in individual cases comments in a matter and in a manner, which would influence the independent judgement of the court, would influence the right to free trial of a litigant or of an accused. And therefore that right was held to be more important than the right to free speech in individual matters.

However, when it comes to matters of grave public interest and public concern, the courts held that in such matters right to free speech is more important than the right for free trial. Or in other words that the public interest involved in protecting the right to free speech because when it is a matter of public interest, it is an issue of the democratic right of a citizen to influence the behaviour of public authorities and to influence public opinion this is one of the most important and sacrosanct rights in a democracy. And that right was held to be far more important than any possible prejudice that such comments or such demonstrations etc. might cause to pending court proceedings because it was held that if you restrict the right to speech and expression and demonstrations etc. on a matter of serious public interest merely because a case on the issue is pending before the court that will completely stifle democracy itself. Because not only are many public interest issues pending before the courts because if this were to be the law it would spell the end of democracy, since it would be very easy for the Government to get anybody to file a petition which in the country, and the way the courts function, it may remain pending in the court for years together and thus stifle all public debate and public criticism of the Government. Therefore, in the light of all this, the law, that comment on pending cases of public interest do not constitute contempt, is also settled in India. In the light of this the order of the Supreme Court in the Clemenceau matter is not only very anti-democratic, retrograde, violative of fundamental rights of citizens but it also displays the imperious psychology of many judges in the Supreme Court.

Prashant Bhushan