But the same judges silenced past critics with contempt!

 

The press conference held by the four Supreme Court judges on the state of affairs within the judiciary has sent shockwaves through the country. There is clearly something very wrong within the judiciary and as much as the Twitter police would like to blame the crisis on their favored judges, we should not forget the Supreme Court’s promiscuous use of contempt laws towards external criticism and scrutiny, is one of the reasons leading up to the volcanic eruption that was yesterday’s press conference. Perhaps if the court was less contemptuous of criticism aimed at it, the media would have acted as a safety valve by conducting public debates regarding the Court’s functioning over the years. Instead, the indiscriminate use of contempt law has led to a chilling effect on speech.

Given the events of yesterday, I think it is fit to have a roll call of some of the court’s critics who have been hauled up by either the High Courts or the Supreme Court for contempt of court.

Let’s begin with the most recent cases, where sitting and former judges of the higher judiciary were hauled up for contempt of court.

In 2016, the Supreme Court of India issued notice to retired Justice Markandey Katju, who ever since his retirement from the Supreme Court has evolved into a vocal and at time, colorful critic of the court’s functioning. Using various social media platforms Justice Katju had launched a broadside attack on the court’s functioning. He had publicly levelled allegations of corruption against the then Chief Justice H.L. Dattu. That the Supreme Court did not initially initiate contempt proceedings against him did lead to speculation amongst some of us that the court had moved to a new era in its contempt jurisprudence. Alas, that wasn’t to be because soon thereafter a bench headed by Justice Ranjan Gogoi (who was present at the press conference yesterday) hauled up Justice Katju for contempt of court, forcing him to tender an un-conditional apology.     

 

The more egregious attempt of the court to stifle criticism of the higher judiciary was the action it took against Justice Karnan, formerly a judge of the Madras High Court and Calcutta High Court. Justice Karnan had issued some rather extraordinary and legally untenable orders directing investigations against other judges on the grounds that they were corrupt. The Supreme Court initially tried brushing the issue under the carpet by transferring Justice Karnan but when even that did not work, a bench of 9 judges sentencedJustice Karnan to jail for 6 months under India’s contempt law. The judges sitting on the bench: Justices Dipak Misra, J Chelameswar, Ranjan Gogoi, M B Lokur, P C Ghose and Kurian Joseph. The four judges at the press conference were on the bench that sentenced Justice Karnan to jail. 

While Karnan’s orders may have been illegal in law and untenable on facts, the manner in which the Supreme Court handled the issue showed little regard for the law or due process. By gagging the media, denying a transparent investigation into the judge’s allegations and last but not the least, denying him a right to a trial before sentencing him to jail, the court did not inspire public confidence in its actions. As the old saying going, ‘Not only must Justice be done; it must also be seen to be done’. There was also little reflection or disclosure from the Supreme Court on the manner in which Justice Karnan was recommended for appointment by the senior most judges of the Supreme Court.

Prior to the contempt actions against Justice Karnan and Justice Katju, the judges of the higher judiciary have often hauled up the media and even common citizens under India’s contempt laws for infractions that would have attracted little retribution in more robust democracies. A case in point, is the judgment of the Delhi High Court convicting editors and a cartoonist from Mid-day for a relatively innocent cartoon lampooning the then Chief Justice of India Y.K. Sabharwal over corruption allegations against him. That bench of the High Court was headed by Justice R. S. Sodhi who in a piece yesterday was frothing against the four judges who held the press conference. It took ten years for the Supreme Court to over-rule the High Court on the issue. 

In 2003, it was the Karnataka High Court which initiated contempt against 53 journalists for reporting on a scandal involving 3 judges of the High Court – many of the judges on the bench who initiated the contempt proceedings were elevated to the Supreme Court. Similarly, Madhu Trehan was hauled up for contempt because she published a survey of the judges of the Delhi High Court. Some of the judges on the bench that heard her case were elevated to the Supreme Court. And who can forget the fact that the Supreme Court convicted Arundhati Roy for contempt of court in 2002 for her criticism of the institution’s handling of the Narmada dam.

 All of these cases were very high-profile and undoubtedly had a chilling effect on those who would have otherwise criticised the judges of the higher judiciary. The lack of public criticism in the media only leads to whispers campaigns and rumour mills amongst lawyers and eventually the public leading to an erosion of public confidence in the institution.

Yesterday’s press conference by the judges should be seen as an outcome of the higher judiciary’s own reluctance to accept criticism from external quarters. If the court had a healthy culture of accepting criticism of its functioning, it would have been held to far higher standards than is the norm today and perhaps even seen a serious attempt at reform. Regardless of whether the Supreme Court reforms itself after yesterday’s event, the fact of the matter is that a precedent has been set and we are likely to see more such press conferences in the future, and I seriously doubt the court’s ability to perform as a stable institution in face of these future challenges. 

 

The writer is an Asst. Professor at NALSAR University of Law