Scandalizing the court - time for reform?
What is so special about our judges that they should be insulated from public criticism or comment that other public officials have to face on a daily basis?
asks PRASHANT REDDY THIKKAVARAPU (Image Courtesy: Law Web).
It has happened once again – yet another gag order by the judiciary against reporting on proceedings involving a publication that was critical about a member of the judiciary. As reported first by the Times of India, a judge of the Delhi High Court initiated contempt proceedings against the entire editorial board of a legal publication which had carried a not-so-flattering story about the judge’s son and also issued an extraordinary gag order directing that no news appear about the proceedings in the print media or electronic media or the internet. The judge was of the opinion that the story was inaccurate and mischievous. Legally India has provided more details including a copy of the order on its website accessible over here.
Regardless of the accuracy of the story in case, this order once again raises the troubling issue of contempt by “scandalizing the court”. Does such an offence still have place in a modern democracy?
“Scandalizing the Court”
The contempt powers for High Courts and the Supreme Court can be traced directly to the Constitution of India. But the Constitution does not specify the exact contours of contempt powers. Parliament, however, did enact a Contempt of Court Act, 1971 which does regulate the contempt powers of the higher judiciary. This legislation classified contempt of court into civil and criminal contempt. While civil contempt pertains to cases where a person has disobeyed the orders of the court, criminal contempt is defined as any act which scandalizes the court or prejudices or interferes with pending judicial proceedings or interferes with the administration of justice.
The provision which attracts the most controversy is the provision regarding acts that “scandalizes” the court. This is a provision that was originally meant to uphold the public confidence in the judicial system by deterring people from criticizing the judiciary. Like several other aspects of Indian law, this offence traces its lineage to the English.
Since there is no real consensus on what constitutes “scandalizing” the court, let me illustrate the scope of this offence by referring to some actual cases which have been reported in India.
The most famous case regarding a court being “scandalized” is that of E.M.S Namboodiripad v. T.N. Nambiar (1970). Namboodiripad, the then Chief Minister of Kerala had made a comment on how Marx & Engels considered the judiciary as an instrument of oppression and also that judges were guided and dominated by class hatred, class interests and class prejudices. Found guilty of contempt by the Kerala High Court, the Chief Minister appealed to the Supreme Court, where a bench led by the Chief Justice of India, Hidayatullah, upheld the conviction and reduced the fine to a token Rs. 50. The judgment states, “Judged from the angle of courts and administration of justice, there is not a semblance of doubt in our minds that the appellant was guilty on contempt of court. Whether he misunderstood the teachings to Marx and Engels or deliberately distorted them is not to much purpose. The likely effect of his words must be seen and they have clearly the effect of lowering the prestige of judges and courts in the eyes of the people. That he did not intend any such result may be a matter for consideration in the sentence to be imposed on him but cannot serve as a justification. We uphold the conviction.”
This precedent by Hidayatullah, which was clearly an over-reaction set a bad precedent for future judges.
In the year 1997, the Supreme Court initiated contempt proceedings against two newspapers for reporting on how the sons of two senior Supreme Court judges had received petrol bunk allotments from the Government of India’s discretionary quote. This turned out to be misreporting since the government filed an affidavit claiming that no such allotments had been made. The Supreme Court then initiated contempt proceedings against the newspapers instead of simply issuing a press release or writing a letter to the editor.
In the year 2002, there was the very famous case involving Arundhati Roy, where the activist was a part of protest outside the Supreme Court against a judgment involving the Narmada Bachao Andolan. She, along with other contemnors, had allegedly “shouted abusive slogans against the court including slogans ascribing lack of integrity and dishonesty to the institution”. That protest led to a contempt petition by some lawyers and when the court issued notice, Roy filed an affidavit denying that she used any of the language ascribed to her but she also reprimanded the Supreme Court for even entertaining the petition, saying that “By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm.” The Supreme Court took exception to three paragraphs of her affidavit and found her guilty of scandalizing the court, stating in pertinent part that “we have no doubt in our mind that the respondent has committed the criminal contempt of this Court by scandalising its authority with mala-fide intentions.” The judgment can be read here.
In the year 2005, there was the case involving Madhu Trehan. In her trademark irreverent style, Trehan had attempted an audacious and breath-taking attempt at judicial accountability by having 50 Senior Advocates ranks judges of the Delhi High Court on various parameters including punctuality, honesty and knowledge of the law. She then published those results in a magazine. Acting on a contempt petition by lawyers, the Delhi High Court swiftly fell on her like a ton of bricks. Ordering the police to swoop in and seize all copies of the magazines and restrained the media from even reporting about the proceedings. The High Court then spared five judges, headed by its then Chief Justice Arijit Pasayat, to hear a contempt petition against Trehan and her colleagues. As you may have guessed by now, this petition too ended with a guilty verdict. Trehan was found to have scandalized the judiciary and was required to publish an apology. The judgement states “There can be no quarrel with the proposition that anyone who intends to tarnish the image of judiciary should not be allowed to go unpunished. By attacking the reputation of Judges, the ultimate victim is the institution. The day the consumer of justice loss faith in the institution that would be the darkest day for mankind. The importance of judiciary need no reiteration.”
Then, in the year 2007, four editors of Mid-day were convicted of contempt of court by the Delhi High Court and sentenced to four months in prison for scandalizing the court by reporting on allegations that a former CJI’s sons were benefitting out of the sealing drive ordered by the CJI while he was still a judge. The CJI was retired at the time of the report and was at liberty to file defamation proceedings. Ultimately, the Supreme Court stepped in to stay the imprisonment, but it too did not overturn the finding of contempt. Anil Divan’s excellent critique of the judgment can be read over here.
As is obvious by now, the offence of “scandalizing the court” is invoked more often by the Courts to protect judges rather than the judiciary. The more pertinent question however is whether our courts even require such powers to protect the judiciary? What is so special about our judges that they should be insulated from public criticism or comment that other public officials have to face on daily basis? If a judge is wronged, shouldn’t he just sue for defamation like everybody else? As things stand today, editors are so scared of contempt proceedings and so unclear of its boundaries, that they prefer self-censorship when it comes to reporting on the antics of our judges. How then can we have a free and fearless debate on substantial judicial reform?
In the U.K., from where we inherited the offence of scandalizing the court, the Law Commission of the U.K. has recommended scrapping the offence since it seriously infringes on the freedom of expression. The last successful prosecution for this offence in the U.K. was in the year 1931. It’s time for the Editor’s Guild to ask for this offence to be put on the chopping block even in India.
The writer is a Delhi-based lawyer.
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