In the same boat: Author Arundhati Roy was also sentenced to a day’s symbolic imprisonment for criticising the Supreme Court

Within the last few weeks, two contempt of court cases have left the legal fraternity reeling.

On October 1, the Supreme Court took umbrage at the disruption of normal life in Tamil Nadu even after it had banned a state-wide bandh called by the ruling DMK. This could, it said, be seen as a fit case of contempt and invite the state government’s dismissal.

On September 21, the Delhi High Court sentenced four employees of Delhi tabloid Mid Day to four months’ jail for contempt. Mid Day had, in May, alleged that the sons of former Chief Justice of India Y.K. Sabharwal stood to benefit financially from his orders sealing unauthorised commercial establishments in Delhi. The journalists said they had ample evidence to prove their charges but the high court judges felt “the publications, in the garb of scandalising a retired Chief Justice of India, have in fact, attacked the very institution” and “is nothing short of contempt”.

The Supreme Court has granted bail to the foursome, but the case throws up several questions. Are judicial orders and judges above all criticism? How far can judges go in protecting their fraternity from criticism? Can contempt of court relate to a former judge, even for a judgement handed down while he was serving?

The Contempt of Court Act, 1971, lists two kinds of contempt — civil and criminal. Civil contempt means not obeying a court’s orders or reneging on an undertaking given to a court. That is the issue in the case of the Tamil Nadu bandh. Lawyers are clear that a judgement, once passed, has to be obeyed. One can appeal against a judgement but one can’t ignore it.

But it is criminal contempt that is at the centre of much agonising. Criminal contempt involves saying, writing or depicting anything that “scandalises” or lowers the authority of the court (the argument used in the Mid Day case), prejudices or interferes with any judicial proceeding or interferes or obstructs the administration of justice (threatening or bribing judges and witnesses, not allowing hearings to be held).

It is the first condition that needs to be axed, feels the legal community. “It tends to become personal —any judge who feels offended utilises it to punish,” rues lawyer Fali S. Nariman. That ushers in an element of idiosyncrasy into judgements.

This was tellingly pointed out by Justice Markandey Katju in a lecture at the Indian Society of International Law in January. While former Kerala chief minister E.M.S. Namboodiripad was held guilty of contempt for accusing judges of being biased in favour of the rich, former Union minister P. Shiv Shanker got away with saying “anti social elements, FERA violators, bride burners and a whole hoard of reactionaries have found their haven in the Supreme Court”.

Lawyer K.K. Venugopal, however, insists that the provision should stay. The courts, he argues, have the onerous task of ensuring that the legislatures and the executive keep within the limits of their authority and that wrongdoing by constitutional and other authorities are penalised. Removing the condition could result in personal threats and attacks against the judiciary and individual judges after every judgment against a government or its leaders. “For a fearless and independent judiciary, the institution requires protection against scandalous attacks.”

The concept “scandalising the court”, he agrees, is difficult to define. “That is why many newspapers have in-house counsel who examine material before it is published.”

Where the court erred in the Mid Day case, he says, is in denying it the right to prove the allegations and use the defence of truth and good faith, which the law allows.

The Mid Day journalists aren’t the only ones to be slapped with contempt charges. In 2001, five staffers of wahindia.com were held guilty for publishing an article rating the court’s judges on various parameters, including integrity, based on an opinion poll. They were let off after apologising.

What made the Mid Day case different was that the contempt proceedings were initiated when Sabharwal was no longer Chief Justice. Why, many lawyers asked, couldn’t he have just sued for libel?

Under the present law, says retired judge of the Bombay High Court Justice Hosbet Suresh, contempt notices can be served even in the case of retired judges. But lawyer Prashant Bhushan finds this point irrelevant. “The use of contempt power to punish people who raise any questions about the integrity of judges — serving or retired — is completely wrong,” he asserts. Agrees Suresh: “Every judgement can be subject to criticism.”

But he also notes that contempt of court is an Anglo-Saxon concept. In Sweden, judges can only sue for libel if someone questions their integrity.

The concept is also outdated. In an article in the Asian Age, Nariman points out that in 1899, the Privy Council in England had observed that the courts were willing to let public opinion decide on attacks or derogatory comments against judges and courts. But it also said that contempt of court is still relevant “in small colonies consisting principally of coloured populations” in order to preserve respect for the court. “It was a pompous, colonial view and has no place in modern times,” Nariman told The Telegraph.

People will always impute motives to judges, says Suresh; what is relevant is whether they can prove it. “It is in the judiciary’s interest to look into serious allegations, dismiss them if untrue and find solutions if they are true,” says Justice Suresh.

Bhushan does not concede the oft-cited argument that attacks on judgments lower public faith in the judiciary. “People don’t lose faith because of motivated campaigns or unjust attacks on judges. And faith cannot be restored by using contempt proceedings.”

As it wrestles with the issue, the legal community harks back to these words of British judge Lord Denning: “We will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us.”