Are comments on SC, CJI a criminal offence? Amid row over Nishikant Dubey's remarks, a look at what law says

Supreme Court

Bharatiya Janata Party (BJP) MP Nishikant Dubey's recent remarks against the Supreme Court and the Chief Justice of India has snowballed into a major issue with the party categorically distancing itself from Dubey's comments and the legal fraternity questioning the tenability of such criticism and whether such a remark qualifies for an initiation of a contempt proceedings against the BJP MP.

Dubey on April 19 blamed CJI Sanjiv Khanna for alleged ‘civil wars’ in the country, while also tearing into the apex cour for trying to ‘dictate’ the Parliament by asking the President to take a decision within three months. In a post on X, Dubey said in Hindi that the Parliament should close down if the Supreme Court makes laws. “Kanoon yadi Supreme Court hi banayega to Sansad Bhavan bandh kar dena chahiye,” he said.

As members of higher judiciary expressed their resentment over Dubey's remarks, the Supreme Court on April 20 told a petitioner that he didn't need its permission to file a criminal contempt plea against BJP MP Nishikant Dubey over his remarks against the top court over its recent judgement in the Tamil Nadu governor case and the Waqf case.

When the lawyer asked the top court to initiate a criminal contempt case against Dubey for his remarks against the court and the Chief Justice of India (CJI), the division bench of Justices BR Gavai and Augustine George Masih said that the petitioner needed to get the consent of the Attorney-General, Centre's top legal officer.

Here's a look at the legal safeguards provided to the members of higher judiciary and the plausible limits of freedom of speech:

What is the controversy?

Last week, BJP MPO Nishikant Dubey went on a tirade against the top court, saying that the Parliament and assemblies should be shut down if the judiciary was involved in making laws. He also criticised CJI Sanjeev Khanna and claimed that he was responsible for civil wars in the country, referring to the Waqf case and the ensuing violence in Bengal.

What is Contempt of Court?

Contempt is the power of the court to protect its own majesty and respect. This power is inherent and the power is recognised in the constitution of the high court and the Supreme Court. The power is regulated but not restricted in the Contempt of Courts Act 1971.

In assessing whether an act constitutes contempt, the test is of the effect on the judicial process and the authority of the courts. Legal Luminary P Sathe  in an article in EPW engage  elaborated: The intention which acts as a The intention of the accused in a contempt case is immaterial. What really matters is the effect or the likely effect of his act on the administration of justice. Any act which causes lack of confidence in the administration of justice, or otherwise interferes or tends to corrupt it, has to be prevented.

Is contempt action a reasonable restriction on free speech?

While Article 19(1)(a) of the Constitution recognises the right to freedom of speech and expression, Article 19(2) provides that laws can impose reasonable restrictions on this freedom, on various grounds, including “in relation to contempt of court. Freedom of speech is the most fundamental of the fundamental rights and the restrictions thereupon have to be minimal. The law of contempt of court can impose only such restrictions as are needed to sustain the legitimacy of the judicial institutions. The law need not protect the judges. It has to protect only the judiciary.

Passing the legal test for what constitutes “criminal contempt”

Whether an act tends to lower the authority of the court or not—this is also open to judicial interpretation. Co-founder and team lead, Vidhi Centre for Legal Policy, Bengaluru, Alok Prasanna Kumar in an article on EPW engage explained: The legal test for what constitutes “criminal contempt” is laid down in Section 2(c) of the Contempt of Courts Act, 1971 as any publication which “scandalises” or lowers the authority of any court. These are broad and general terms, but the Supreme Court has clarified that fair criticism of judgments is always permitted and that the defamation of a judge is different from committing contempt of court.