People's Democracy

EDITORIAL

Is Questioning Infallibility 'Contempt'?

THE recent Delhi High Court’s punishment of four media persons for being guilty of contempt of court has, once again, raised serious apprehensions on the exercise of this power by the judiciary. In this instance, it is also being seen, by sections, as an attack on the constitutional right of freedom of expression.

Many years ago, progressive and democratic elements of the judicial system had organised a seminar on “Judging the judges”. Many issues concerning the issues of contempt in the context of allegations made against the conduct of judges were discussed. Rightly many of us opined that questioning the conduct of the judges need not always be construed as questioning their integrity. It definitely construes the questioning of their infallibility. This naturally raises the need to create a credible mechanism or process to deal with such allegations of misconduct. In other words, there must be some parameters or limits laid down which will permit the raising of issues of judicial misconduct at least, not deter their raising. In no case can the exercise of this power by the judiciary be allowed to trample upon the right of freedom of expression.

Before we discuss the larger issues, consider the present case. The 'Campaign for Judicial Accountability and Judicial Reforms' has for some months been raising allegations against former Supreme Court chief justice, Sabharwal. These were rebutted by Sabharwal after his retirement, in the print media. Hence, it was clear that the truth behind these allegations could have been established through either an enquiry or through a judicial processes like a defamation suit. This, however, has not been done.

Strangely, the Delhi High Court took upon itself the responsibility to defend the Supreme Court and sentenced these four media persons to four month’s imprisonment. The court ruled “We need not go into the truth or otherwise of the allegations against the former chief justice of India as the same in any case cannot be a valid defence to justify the attack on the Supreme Court as such.”

There are two serious problems here. First, the Indian Constitution (Article 215) empowers a High Court to deal with contempt of itself. The Delhi High Court, thus, appears to have transgressed its jurisdiction since under Article 129 of the Constitution, the apex court alone has the power to deal with contempt against itself.

Secondly, the order appears to negate an amendment brought to the Contempt of Court’s Act in 2006, following a long vigorous campaign by well-meaning lawyers and sections of the media, allowing truth to be used as a defence in contempt cases.

The matter is now before the apex court and hopefully these issues would be considered in right earnest. In doing so, the apex court will surely recollect the following from a judgement delivered by a bench of the apex court headed by Justice R V Raveendran: “It should be remembered that exercise of such power results in eroding the confidence of the public rather than creating trust and faith in the judiciary.”

Disapproving the tendency among judges to treat even technical violations or unintended acts as contempt, it had said: “It is possible it is done to uphold the majesty of courts, and to command respect. But judges, like everyone else, have to earn respect. They cannot demand respect by demonstration of `power’ (of contempt)”. The bench had quoted US Supreme Court chief justice John Marshall, who had said two centuries ago that “the power of judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man”.

It is this trust and faith that the judiciary needs to further strengthen in India today. Invoking the provision of contempt of court to silence critiques of possible judicial misconduct would appear particularly indefensible in this context. In the past, this provision was invoked against politicians who made comments on the content of judgements which they considered not being in the interests of the people. Surely, a judgement can be contested. In a famous case in the 1970s, EMS Namboodiripad was held guilty of contempt for accusing judges of a class bias. Interestingly, similar contempt charges were raised against former law minister and Congress leader P Shiv Shankar who also spoke of the class bias of apex court judges. The courts in the past have banned strikes and other demonstrable public protests and invoked the principle of “no work, no pay” for the working class. However, in a recent case, when doctors protesting against reservations for the OBCs struck work heaping untold miseries on suffering patients, the courts directed that their salaries be paid for the striking period. Would pointing out such glaring inconsistencies, reflecting, amongst others, a class bias, amount to contempt of court?

While these and other larger issues need to be properly discussed and addressed, in this particular instance, since Sabharwal has publicly defended his actions and since the concerned media has stated that it is willing to prove its allegations, let an appropriate enquiry establish the truth. This would only further strengthen the credibility of the judiciary, which by protecting and enlarging the rights of the citizens and guarding against misuse and abuse of executive power, has in the past, and will in the future continue to serve the country well.