Contempt of Court: The Meghalaya High Court’s Wafer-Thin Skin

Paraphrasing a tweet that I read earlier today: “if the judges of the Meghalaya High Court were any more fragile, they’ll have to be checked in with fragile items and a sticker on top at the airport to be able to fly.” That, at any rate, seems to be the only conclusion one can draw from reading the bizarre order (and the equally disturbing record of proceedings) passed by a two-judge bench of that Court today, holding two journalists from the Shillong Times guilty of contempt of court, fining them Rs. 2 lakh, and failing that, six months imprisonment and a ban (!) upon the newspaper.

What calumny did The Shillong Times level at the Learned Justice S.R. Sen – who, incidentally, issued notice for contempt of himself, and then also wrote the judgment finding the journalist in contempt  (one might call that a classic case of being a judge in one’s own cause, but one wouldn’t, because that might be construed by the Learned Judge to be contempt)? In December 2018, the newspaper published reports captioned “When Judges Judge for Themselves.” The gist of the first report was that the Learned Justice S.R. Sen had passed orders directing that the spouse and children of retired judges should be accorded various benefits, such as medical facilities; and that retired judges themselves were to be granted Rs 10,000 per month for their phone and internet expenses. The second report included a brief summary, ending with:

In the recent order, Justice SR Sen, who is set to retire in March, wanted several facilities for the retired chief justice and judges, their spouses and children. Besides providing medical facilities for the spouses and children, the order stressed the need for providing protocol, guest houses, domestic help, mobile/internet charge at the rate of Rs 10,000 and mobile for Rs. 80,000 for judges”.

Learned Justice Sen took deep umbrage at these reports. A contempt notice was issued. The seriousness of the matter saw four senior counsel volunteer their services as amicus curiae. One of them filed an affidavit alleging that the report was in “bad taste, showed the court in “poor light”, was not “based on facts” and had been published “without research.” Learned Amicus went on to note that the report had been “aptly (sic) highlighted in colour”, and that “scornful” language had been used.

So far, so contemptuous. Immediately after recounting the contents of the affidavit in the judgment, however, Learned Justice Sen switched tack. Now the issue – as highlighted by another one of the affidavits – was that one of the contemnors – Patricia Mukhim – had taken “the help (!) of social media”, and unpardonably “gone to the extent of mocking (!) the judicial system of this country.” In one of the posts, she referred to a “judicial on slaught (sic)”, and in a second, compared her contempt hearing to the Day of Judgment (one may have thought that Learned Justice Sen might have been flattered to have been compared to Almighty God, but apparently not). In a third post, she asked whether “the legal counsel for the accused [should] be told by a judge to literally “Shut up” and not speak?” The affidavit then went on to mention (yet) another article titled “HC Judge should step down: HNCL”, but did not extract its contents. The Affidavit (also) made the argument that one of the contemnors had slandered the amicus curiae,which is a dangerous attack to the entire legal fraternity and publishing such false report is scandalizing the Court. (sic)”

Having traversed this somewhat bewildering factual terrain, Learned Justice Sen then posed the crucial constitutional question, and answered it as pithily:

“We would like to ask the whether the contemnor, Smti. Patricia Mukhim wants to control the judiciary as per her desire and will? If it is so, she is very much wrong.”

Learned Justice Sen then observed that “only true news should be published not the false report (sic)”, that Patricia Mukhim had earlier called for a bandh, proving that “this particular newspaper was always working against the Judges and Judicial System”, and that the media could not publish “false news.”

After so many references to false news, one was, of course, waiting with bated breath for Learned Justice Sen to expose the mendacity of The Shillong Times. This he proceeded to do forthwith, stating that the backdrop of the case had been that:

“… all of a sudden, Government of Meghalaya withdraws the protocol service to the retired Judges and their family members without consulting this High Court. When it came to the notice (sic), Hon’ble the Chief Justice of this High Court called for a meeting where the Chief Secretary, State of Meghalaya, Shillong, Law Secretary, State of Meghalaya, Shillong and the Commissioner & Secretary, GAD, State of Meghalaya, Shillong were placed questions as to how they withdraw (sic) the facilities which was (sic) already given earlier, but they had no answer. Therefore, they were asked to rectify it immediately and to restore the protocol service to the retired Judges and their family members. Unfortunately, after a lapse of 2 (two) months also when the matter was not solved, the retired Judges and their family members faced problems and a suo moto proceeding was drawn as WP(C) No. 337 of 2018 and endorsed to this Court to proceed with the case. Accordingly, notice was issued and since the Government remained silent, necessary order was passed directing to comply within a month. Thereafter, when the Government failed to do so, contempt proceeding was drawn and the Chief Secretary, State of Meghalaya, Shillong, Law Secretary, State of Meghalaya, Shillong and the Commissioner & Secretary, GAD, State of Meghalaya, Shillong were asked to appear in person.”

Thus did Learned Justice Sen nail the blatant lies told by The Shillong Times. Because, after all, The Shillong Times had only gone and written that:

As for the protocol service/Meghalaya State Guest Rules of retired judges, it was informed to the court that the matter was under process by the GAD. According to the court, the Meghalaya State Guest Rule, 1991, was there at the inception of the High Court but suddenly it was withdrawn without consultation of the High Court by some officers. The government had issued a notification on October 4 this year whereby it had amended Rule 10(a) of the Meghalaya State Guest Rule, 1991. “It is unfortunate that such amendment was made without consultation with the High Court. Accordingly, the notification dated October 4, 2018, is hereby set aside,” the court said. The court also directed the GAD to make protocol service as well as the Meghalaya State Guest Rules “at the same tune and equal facilities to be provided as is applicable to sitting judges, including spouse and children”.

Having nailed The Shillong Times by characterising the issue in almost identical terms to how the newspaper had characterised it, Learned Justice Sen then concluded that:

Therefore, the question of a particular Judge on the verge of retirement taking steps for himself or his family does not arise. Hence, the report which appeared in the Shillong Times by the contemnor No. 1 is totally false and without any basis.

The issue, of course, is that neither of the reports stated, as a matter of “fact”, that Learned Justice Sen “on the verge of retirement [was] taking steps for himself or his family” – in fact, the reports were consistent on the point that the order applied to retired judges and their families across the board. That apart, however, what the two reports set out were the facts of the proceedings – none of which were false. On the basis of these facts – which indisputably involved a judge passing very specific and concrete directions ordering the government (under pain of contempt) to provide for certain post-retirement facilities – the report was headlined “When judges judge for themselves.” In the course of this report, the similarity with another case where a judge on the verge of retirement had passed directions for benefits to retired judges was pointed out.

It should now be abundantly clear that Patricia Mukhim and The Shillong Times had no case to answer. Whatever contempt of court might be, publishing an account of a proceeding in which a judge orders the government to provide concrete benefits to retired judges and their families, questioning the putatively self-serving character of that proceeding through the headline, and pointing out a parallel situation from the recent past where judges closed to retirement have passed such orders, does not even come close to constituting contempt. Recall how high the threshold for contempt is: the statement must not only be false, but it must be of such a character that can proximately lead to impeding the course of justice.

Having disposed off the issue of the article, Learned Justice Sen now came to the issue of the fearsome social media posts. Suddenly switching tack and referring to himself in the third person, he observed that:

According to what the contemnor, Smti. Patricia Mukhim stated in the social media as reflected above, Justice S.R. Sen replied that if at all, any such remarks have been made to any litigants or officer by any Judge, the person concerned should have reported to Hon’ble the Chief Justice and I myself with full faith and conscience, I say that I never asked any litigants or officer or lawyer about their personal life, rather it is a known fact to every members in the bar that I speak very less and hear the matters in accordance with law. So, if it indicates to Justice S.R. Sen, it is totally false and without any basis and we Judges maintain the dignity of the Court at all costs. (Emphasis mine)

Having assumed that an allegation had been made about his conduct in court, and having emphatically denied it, one would imagine that Learned Justice Sen would promptly have initiated the normal evidentiary processes that come into play when one needs to adjudicate between two clashing factual accounts: he would, of course, subject himself to cross-examination on the point by the contemnor’s counsel. One would imagine.

Instead, Learned Justice Sen then set out the provisions of the Contempt of Courts Act, and then cited long extracts from various prior judgments, along with the Press Council Norms. Learned Justice Sen then expressed righteous anguish at the contemnor’s counsel argument that the proper procedure had not been followed in this case, as no formal charge had been framed against the contemnor, no evidence taken, and no right of reply granted. Learned Justice Sen considered arguments on “technicalities” to be “against the principles of professional ethics.” He then cited some more judgments to argue that contempt proceedings could be summary in character, and the normal rules of evidence dispensed with.

Having cited all of this, Learned Justice Sen then cited another article from The Shillong Times about another judicial order involving the starting of flights from the Shillong Airport, and took great pains to point out that, contrary to what the article said, the Supreme Court had not stayed the order of the Meghalaya High Court. What relevance this observation had to anything at all is unclear, as a quick Google Search reveals that the same error was made, inter alia, by LiveLaw, ANI, and The Hindustan Times. Learned Justice Sen then further observed that:

Considering the facts and circumstances of this case, we are of the considered view that the contemnor No. 1 has made a derogatory comment which also appears from the affidavit filed by the Amicus Curiae that she has posted in social media dated 17.12.2018 under the statement “Will God reserve the choicest abuses for us journalist? That‟s what the earthly Gods to believe”. When she was confronted on 25.02.2019 for these remarks, she had no answer.

As is par for the course in this judgment, Learned Justice Sen did not provide any further justification for why this “derogatory comment” amounted to contempt of court. Having said all this, however, he came to the order:

In exercise of the power vested on us by Article 215 of the Constitution of India, we sentence both the contemnors to sit in the corner of the Court room till the rising of the Court and impose a fine of Rs. 2,00,000/- (Rupees two lakhs) each which is to be deposited with the Registry within a week and then to be deposited in the welfare fund of this High Court. We also further direct that in default of payment, both the contemnors will have to undergo 6(six) months simple imprisonment and the paper so called “Shillong Times” will automatically come to an end (banned).

In a judgment that had set a very high bar already, the last line performed a Fosbury Flop and went vaulting clean over the top. You might, on reading it, be wondering: what authority does the High Court have to “ban” a newspaper? The answer is “none at all”, and that’s an answer that could apply to many things going on in this judgment.

Sometimes, it seems, judges are so anxious to prevent being mocked, that they do things that accomplish that goal far more effectively than any journalistic Puck could ever hope to do. Apart from everything else in the judgment, this is reflected most clearly in the order issuing notice on contempt, which is extracted:

On perusal of the said news item, it is really shocking that the publisher and editor of the said newspaper without knowing the law or background of the case is making comments which is definitely derogatory to a Judge who is handling the case as well as the entire Judges fraternity, and that too I cannot understand what was so important that it is highlighted in pink colour. When the matter is pending before the Court, media has no business to comment on it and media is also not a party to this case. Secondly, media is not to dictate the Court: what the Court should do and should not do. Therefore, I find that it is purely contemptuous.

“Derogatory” to a judge. A pink colour highlight. And an outrage at the media daring to comment on a sub-judice matter. This is what it boils down to. In the words of Geoffrey Cox, Attorney-General for the UK, “what are you playing at?”

 

When this judgment is appealed, one can only hope that cooler heads in the Supreme Court will be equal parts amused and equal parts alarmed, and consign it to the scrap heap without much ado. And if such judicial pyrotechnics – coupled with what has been going on in the Supreme Court recently – do not prompt an urgent conversation about the dire necessity for doing away with this “boundless and boundlessly manipulable” contempt jurisdiction, one of the most stifling weapons against freedom of speech in contemporary India, nothing ever will.

Notes from a Foreign Field: The Canadian Supreme Court on the “Reasonable Expectation of Privacy”

In an interesting judgment handed down on February 14 – Queen v Jarvis – the Supreme Court of Canada engaged in a detailed discussion of what constitutes a “reasonable expectation of privacy.” The facts in Jarvis were simple. The accused was a schoolteacher, who was caught while surreptitiously taking videos of (primarily) female students, within the school premises, through a pen-camera. The videos focused upon the students’ faces, upper bodies, and breasts. The accused was charged with the offence of voyeurism. The relevant part of the statute had two elements: it penalised observing or making a recording of a person in circumstances that gave rise to a reasonable expectation of privacy, if that was done for a sexual purpose. The courts below were united in affirming that the second element existed, but split on the question of whether students “engaged in ordinary school-related activities in common areas of the school” had a reasonable expectation of privacy within the meaning of the statute. The Supreme Court, therefore, was tasked only with answering this question, which it did in the affirmative.

Background

The significance of the Canadian Supreme Court’s judgment lies in the fact that the phrase “reasonable expectation of privacy” has attained near-universal currency, but its precise interpretation – and therefore, the scope and limitations of the right to privacy itself – remains disputed. It remains an open question whether a “reasonable expectation of privacy” turns primarily on an individual’s subjective expectations or whether those expectations are “objectively” reasonable – or some combination of both. And what constitutes a “reasonable” expectation of privacy? Does it depend upon social norms? Constitutional principles? Is it a function of the space a person is in – i.e., would it be unreasonable to expect privacy in what we understand as “public spaces”? These questions go to the heart of how we conceptualise privacy, and were therefore central to the Canadian Supreme Court’s analysis.

Counsel for the accused argued that “the common areas of the school” were quintessentially “public spaces”, where the students could not have reasonably expected to be free from being observed or watched, especially when the observers were other students, teachers, or anyone who had general access to those spaces. In other words, a reasonable expectation of privacy could arise when an individual was in a space where she did not expect to be observed by anyone (such as a home), or where she was observed by someone other than people who had access to those spaces (such as, for example, a trespasser in the school), or if the observation or recording was of a body part that she did not expect would be the subject of observation (such as, for example, body parts normally covered by the school uniform). (paragraph 25) In other words, the reasonable expectation of privacy depended upon “the physical features of the space in which a person is located and the degree of control the person has over who may obtain visual access to her in the space.” (paragraph 26) This heavily spatial understanding of privacy has its roots, of course, in American Fourth Amendment jurisprudence, including the case that gave birth to the phrase “reasonable expectation of privacy.”

Gladiator

The Majority View 

The Majority of the Court rejected this approach as unduly narrow. The Majority began its analysis by noting that there existed a reasonable expectation of privacy in circumstances where “a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred.” (paragraph 28) This was not an “all-or-nothing” approach but a contextual enquiry, which required taking into account the location the person was in, the nature of the observation/recording (i.e., how intrusive it was), whether there was consent to being recorded, the manner in which it was done, its purpose, the subject matter, the relationship between the two parties, any background rules, and so on (paragraph 29). Consequently, as the Court observed. “a person does not lose all expectations of privacy, as that concept is ordinarily understood, simply because she is in a place where she knows she can be observed by others or from which she cannot exclude others.” (paragraph 37)

The Majority cited a number of examples to drive home the point: a person relaxing in a public park may reasonably expect to be incidentally captured in the background of someone else’s photograph, but would “retain an expectation that no one would use a telephoto lens to take photos up her skirt.” (paragraph 40) Similarly, “the intrusion into our privacy that occurs when a person hears our words or observes us in passing is fundamentally different than the intrusion that occurs when the same person simultaneously makes a permanent recording of us and our activities.” (paragraph 62)

This contextual enquiry, the Majority stressed, was particularly important in order to cope with the evolving use of technology, and its impact on privacy interests. In particular, the evolution of technology that made it easier for government or private parties to “glean, store and disseminate information about us” (paragraph 63), did not therefore imply that “our reasonable expectations of privacy will correspondingly shrink.” (paragraph 63) And this contextual enquiry, further, had to be understood in light of the interests that a right to privacy sought to secure: in this context, for example, the right of individuals to “determine for themselves when, how, and to what extent information about them is communicated to others.” (paragraph 66)

A combination of these factors led the Majority to conclude, therefore:

“… “reasonable expectation of privacy” is a normative rather than a descriptive standard … [and therefore] the question of whether a person claiming the protection of s. 8 had such an expectation cannot be answered by falling back on a “risk analysis” — that is, by reducing the inquiry to whether the person put themselves at risk of the intrusion they experienced … whether a person reasonably expects privacy is necessarily a normative question that is to be answered in light of the norms of conduct in our society. And whether a person can reasonably expect not to be the subject of a particular type of observation or recording cannot be determined simply on the basis of whether there was a risk that the person would be observed or recorded. The development of new recording technology, and its increasing availability on the retail market, may mean that individuals come to fear that they are being recorded by hidden cameras in situations where such recording was previously impossible; however, it does not follow that individuals thereby waive expectations of privacy in relation to such recording or that retaining such an expectation becomes unreasonable.” (paragraph 68)

Applying these principles, the Majority was easily able to find that the accused had breached the law. School students in common areas of a school may not have had a reasonable expectation not to be observed, or not to be recorded by security cameras, but they did have a reasonable expectation not to be recorded by other individuals for sexual gratification, especially when the recording was of intimate or sexualised body parts. The conviction, therefore, was affirmed.

Significance

The combined elements of the Majority holding – the delinking of privacy from space, the focus on contextualisation, the insistence that the “reasonableness” is a normative (not descriptive) enquiry, and the observation that “reasonableness” had to be determined within the framework of the individual right to control information about oneself – represent a valuable addition to global privacy jurisprudence.

In particular, the Majority’s sensitivity to the interface between privacy and evolving technologies is particularly important. To understand why – especially in the Indian context – take the example (of course!) of the Aadhaar case. An argument that was made – both in Court and in the media – went something along the lines of: “if people happily give up their biometric information to immigration authorities at the border or their personal information to Google or Facebook, the privacy interest in such information must be very weak or attenuated.” The Canadian Supreme Court’s contextual analysis demonstrates that this framing itself is fundamentally flawed, because it takes privacy interests as all-or-nothing, instead of context-dependent. It is entirely consistent for an individual to be willing to give up their biometric information at Immigration to an entity that – apart from stamping visas, has little other control over the individual’s life – while remaining unwilling to have it stored in a centralised information database that is then put to use across a number of critical domains, from banking to paying tax (in an abstract way, it is like the distinction in this case between mere observation, and a recording, which the Court measured in the language of intrusiveness). The point is not that because we easily give up personal information to Google, that personal information has lost its value, or that our claim to sanctity of personal information has become weakened. The issue turns, rather, on the manner or nature in which control over personal information is relinquished to an entity such as Google, on the one hand, and when it is commandeered by the State for the purposes of databasing, on the other. A contextual analysis demands, in other words, that each instance be taken on its own terms, and examined on its own merits, on the touchstone of the factors set out by the Canadian Supreme Court.

As I have discussed previously, the “reasonable expectation of privacy” standard was adopted by the Majority judgment in Aadhaar, and done so entirely acontextually. Indeed, the Aadhaar Majority made exactly the error that the Canadian Supreme Court warned against: by observing that there were other statutes that required demographic and biometric information to be yielded up to the State, the Majority then concluded that the privacy interest in biometric and demographic information was weak and attenuated. The Canadian Supreme Court’s judgment demonstrates, however, how out of step the Aadhaar Majority is with contemporary global privacy jurisprudence.

Wonka

The Concurring Opinion

Justice Rowe delivered a concurring opinion for himself and three other judges. While arriving at the same conclusion as the Majority, he took issue with the Majority’s use of Section 8 of the Canadian Charter to interpret the anti-voyeurism statute. That does not concern us here. However, there is another fascinating aspect to this opinion. Agreeing that the question of what constituted a “reasonable expectation of privacy” was a normative one, Rowe J. noted that:

“Privacy” defies a singular definition. It is a protean concept given content from the circumstances to which it is applied. But the privacy interest engaged by s. 162(1) is not so amorphous as to defy sufficient certainty and stability to meet the requirements of the criminal law. The phrase “circumstances that give rise to a reasonable expectation of privacy” in the context of the sexual offence of voyeurism is meant to protect a privacy interest in one’s image against observations or recordings that are, first, surreptitious and, second, objectively sexual in content or purpose. This privacy interest itself, where it is substantially and not trivially engaged (e.g. by merely uncouth or ill-mannered behavior), is founded on the twin interests of the protection of sexual integrity and the autonomy to control one’s personal visual information. (paragraph 128)

What is important about this paragraph is that it defines “reasonableness” not in terms of social norms, but in terms if constitutional values such as sexual integrity and autonomy (although here, in terms of Parliamentary intent behind introducing the voyeurism section). Rowe J., in other words, clarified and further elaborated upon the Majority’s more surface-level treatment of how the framework of constitutional interests shaped and gave meaning to “reasonableness.” Consequently:

In brief, an infringement of one’s privacy interest under s. 162(1) can only be sustained if that individual is recorded or observed in a way that both causes them to lose control over their image; and also infringes their sexual integrity. This conjunctive test accords with what Parliament sought to protect by creating the voyeurism offence: “the state’s interest in protecting the privacy of individual citizens and its interest in preventing sexual exploitation of its citizens coalesce where the breach of privacy also involves a breach of the citizen’s sexual or physical integrity.” (paragraph 133)

And:

The ability to maintain control over what personal visual information is shared, and with whom, is a facet of privacy linked to personal autonomy … privacy is the ability to control what is known or observed about oneself. An infringement of privacy occurs when that which is unknown/unobserved becomes known/observed without the person having put this information forward. These perspectives provide a framework inclusive of location as well as personal dignity: they identify an essential privacy interest that a person retains even when in a public place. (paragraphs 135 – 136)

 

The striking thing about this analysis is how closely it mirrors Chandrachud J.’s articulation of the “reasonable expectation of privacy” test in Puttaswamy. Chandrachud J. had likewise insisted that “reasonableness” had to be adjudicated not in terms of social norms, but in terms of constitutional values. In paragraph 169 of his plurality judgment, he expressly stated that “on an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone.” It was this insight that formed the basis of the disagreement, in Aadhaar, between the Majority judgment and Chandrachud J.’s dissenting opinion: the Majority elected to go back to the old formulation of understanding “reasonableness” as what “society” considers to be reasonable, thus allowing it – in the manner described above – to dismiss the strength and intensity of the privacy interest in biometric and demographic information. On the other hand, it was the understanding of “reasonableness” in the language of constitutional values that formed a major plank of Chandrachud J.’s dissent.

Conclusion

Queen v Jarvis marks the latest attempt by a constitutional court to grapple with the interface between a world in which technology has made collection, storage, and retrieval of information almost costless, and the right to privacy. The Canadian Supreme Court has offered up a nuanced understanding of this interface, providing us with the conceptual framework and the analytical tools to apply it to the more complex situations that we shall face in the future. There is also an interesting conversation between Jarvis and Puttaswamy (Privacy) on the question of how we ascertain the “reasonable expectation of privacy.” The Aadhaar judgment marked a rollback of this progressive understanding, and it remains to be seen what the future holds in this regard.