Contempt of Court and Freedom of Speech: An Analysis of the Prashant Bhushan Judgment

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).


Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].


I began reading the 108-page long judgment (link) of the Supreme Court, which found Prashant Bhushan guilty of serious “contempt”, with a view to analysing its legal reasoning. On finishing the judgment, however, I found myself in a conundrum: there is no legal reasoning, and therefore nothing to analyse. In particular, Mr. Bhushan had filed an extensive reply (link) to the contempt proceedings against him, contextualising and defending the two tweets for which these proceedings were initiated; among other things, this Reply set out the basis for Mr. Bhushan’s opinion about the role of the last four Chief Justices in the decline of Indian democracy.

In the 108-page long judgment (the substantive part of which begins at page 93), the Supreme Court refuses entirely to engage with Mr. Bhushan’s reply. There are some colourful – and somewhat confusing – references to the Supreme Court being the “epitome” (?) of the judiciary, the need to maintain “the comity of nations” (?!), and an “iron hand” (!). There is, however, no legal reasoning, and no examination of the Reply.

It stands to reason that if an individual has been accused of contempt of court because they expressed an opinion about the role of four Chief Justices in undermining democracy, and that individual has filed a Reply setting out the facts upon the basis of which they arrived at that opinion, a “judgment” holding that individual guilty of contempt cannot pretend that the Reply does not exist. It reminds me of the times I used to take a football from the halfway line, dribble it across the pitch, and kick it into the goal – without any opposition players on the field.

But if the Court chooses not to explain itself, then there is little purpose to be served in excavating an explanation that it ought to have made, and then engaging with that imaginary explanation on legal grounds.

Consequently, I end this post here. Interested readers may consult the Reply, the “Judgment”, and draw their own conclusions.

The Supreme Court’s Recusal Order: Glaring Conceptual Flaws

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


Previously on this blog, I had written (here and here) about the problematic composition of the Constitution Bench in the ongoing case involving the interpretation of the Land Acquisition Act. As readers know, parties before the Court had argued last week asking for the recusal of Justice Arun Mishra from the bench. Orders had been reserved after hearing, and a judgment was delivered yesterday, refusing recusal. Now, given that five-judge bench of the Supreme Court had already transformed the proceedings from a legal hearing into theatrics, with Justice Mishra remarking (without contradiction) that it would be “the blackest chapter in history”* if the bench would “succumb”, it is unclear why the bench needed to undertake the farcical exercise of reserving an order than writing out a judgment over the weekend, when minds had apparently been made up at the hearing itself. However, the fact is that a judgment has now been delivered, and must therefore be analysed.

As a prelude to the analysis, I had noted in my previous post that various accusations had been made in court that a “lobby” was writing articles about recusal in order to malign the Chief Justice and the Supreme Court. Unfortunately, these accusations have now found their way into a recorded judgment. At paragraph 11 of the judgment, Justice Mishra notes the Solicitor-General’s submission that ” a tendency is growing in that as soon as important matters are listed, particular articles are written in the newspapers concerning the Constitution of the bench or to influence the decision on merits of a case. Newspaper articles are written to influence Court. The very independence of the judicial system is at stake…” In paragraph 36, he writes that “affronts, jibes, and consciously planned snubs should not deter us from discharging our onerous responsibility (emphasis supplied) In paragraph 39, he writes that “in Bal Kishan Giri v. State of Uttar Pradesh, (2014) 7 SCC 280, this Court has considered derogatory remarks and efforts to destroy the system.” And in their concurring opinion, four other learned Justices write that they agree with Justice Mishra’s “reasoning and conclusion.” One also notes that during oral arguments, Justices Mishra and Saran had made similar remarks, and none of the other judges on the bench had disagreed.

To this one can only say: if indeed there is a “lobby” engaging in “consciously planned snubs” to “destroy the system”, then this is a very serious matter indeed. Nobody can be permitted to “destroy the system.” Attempts to do so would constitute contempt of court. Now presumably, evidence for the existence and actions of this “lobby” exists, because five learned judges of the Supreme Court would surely not make or endorse such claims without evidence. That being the case, the problem would swiftly be resolved by the issuance of a formal notice of contempt to these unnamed “lobbyists”, so that the evidence for their “lobbying” could be exposed in a public hearing.

Now, on to the law: the facts leading up to these proceedings have been set out in my two previous posts, and I will not repeat them here. The key conceptual error that Justice Arun Mishra’s recusal judgment makes can be found in paragraph 11:

The first question before us is whether a Judge who has expressed an opinion in a smaller Bench and the case has been referred to a larger Bench, because of the conflict of the opinion or otherwise, can hear the matter in a larger bench.

It is almost trite to say that the answer you get depends upon the question you ask. The framing of the issue conflates three distinct situations that are, nonetheless, distinct in critical ways. The first situation is when, after the passage of time, a court is prompted to reconsider an earlier verdict that it had delivered. The second is a situation where a smaller bench, on a prima facie examination of binding precedent, makes a “referral” to a larger bench to reconsider it. And the third is a situation where within the same court, there are contrary judgments existing at the same time that require to be settled one way or another. These three situations – as I have argued in my previous posts – also need to be understood within a broader institutional framework: does the court normally sit en banc (all the judges sitting together), and therefore – for all practical purposes – speak at all times within one institutional voice, or does it (like our court) sit in multiple different panels of judges? Note that the first two situations outlined above could occur within either institutional form, while the third is limited to a court (like ours) where thirty-four judges divide themselves into numerous panels of two or three.

The problem with Justice Mishra’s framing, then, is that all his examples that follow after paragraph 11 correspond to either situation A or situation B. For example, his first example – the overruling of the five-judge bench decision in United Motors (1953) by a seven-judge bench in Bengal Immunity (1955) is an example of situation A. At that time, the Supreme Court had eight judges. An issue was decided one way in 1953, and then decided another way in 1955, with two of the judges who had sat in the first case also sitting in the second; in the first case, a majority of the court participated in the judgment, whereas in the second case, it was effectively an en banc judgment. This, therefore, was an example of the Court as an institution changing its mind about the correctness of its earlier ruling. Similarly, his second example – that of the two-judge bench order in Ujagar Prints, which doubted the correctness of the judgment in Empire Industries – is one of referral: there is existing precedent, another bench – on a prima facie examination – proposes a second look at the issue, and the question is referred to a larger bench for resolution. Justice Mishra points out that Justice Sabyasachi Mukherji, who was party to the judgment in Empire Industries, was also on the five-judge bench that reheard the issue. The issue there, however, was that Empire Industries held the field as good law: a referral does not displace or set up contrary precedent that needs to be adjudicated upon. In that sense, therefore, examples under situation B come within the same broad framework as situation A – that of an institution, acting as an institution, reviewing one of its earlier decisions.

A number of examples follow that – as discussed above – fall either within situation A or situation B. In each of these examples, Justice Mishra’s analysis is limited to pointing out that there were a few common judges in both the earlier decision, and the later decision. This is evident from his observation in paragraph 21, where he notes:

This Court has observed that law should be settled permanently and that it should be settled correctly. There may be circumstances where public interest demands that the previous decision be reviewed and reconsidered. Thus, it is apparent that this is the consistent practice of this Court that Judges who had rendered the earlier decision have presided over or been part of the larger Bench.

It is telling that in all of Justice Mishra’s list of relevant precedent, which ends at paragraph 22, there is not one case that is actually on all fours with the present situation: a situation where at the same time there existed two conflicting judgments delivered by different judges, sitting in benches of equal strength, and where the latter had declared the former to be per incuriam. In my previous posts, I have explained why this distinction matters fundamentally – an explanation that I will get back to a little later.

After paragraph 22, Justice Mishra cites a range of judgments on judicial bias that have no application to the present issue. It is unclear, for example, what relevance an American judgment stating the same judge should complete a trial despite showing signs of predisposition through the its course has to do with the controversy here – or another judgment that states that it is “desirable to have the same judge in successive causes.” In any event, after having cited these cases, Justice Mishra then comes to the substantive part of his judgment. In paragraph 27, he notes that:

There may not be even one Judge in this Court who has not taken a view one way or the other concerning Section 24 of the Act of 2013, either in this Court or in the High Court. If the submission is accepted, no Judge will have the power to decide such a matter on the judicial side. We have to deal with the cases every day in which similar or somewhat different questions are involved concerning the same provision. For having taken a view once, if recusal is to be made, it would be very difficult to get a Judge to hear and decide a question of law. We have to correct the decision, apply the law, independently interpret the provisions as per the fact situation of the case which may not be germane in the earlier matter. A judgment is not a halting­place, it is stepping stone. It is not like a holy book which cannot be amended or corrected. It may also work to the advantage of all concerned if a Judge having decided the matter either way is also a member of the larger bench. A Judge who had rendered any decision in a smaller combination is not disqualified from being part of a larger Bench when a reference is made to the larger bench. Rather, it is a consistent practice prevailing in various High Courts as well as of this Court to include the same Judge/Judges in larger Benches.

But it should now be clear that this is a mischaracterisation of the issue, because the dispute is not about whether a judge has “taken a view” on what Section 24 of the Land Acquisition Act says, or the parade of horribles that Justice Mishra trots out in this paragraph, and the ones that follow: bench-hunting, forum-shopping, etc. etc. The issue is a very narrow and simple one, that deserves to be spelt out once more: this is not a case where the institution is reviewing its earlier judgment, or deciding on a referral where a judge – on a prima facie reading – calls for a reconsideration. This is a case where a three-judge bench ruled one way on Section 24. Then another three-judge bench – headed by Justice Mishra and over the dissent of Justice Shantanagouder – held it to be per incuriam and set up its own contrary reading of Section 24. Note that Justice Mishra in that judgment did not simply express doubt about prior precedent and refer it for a fuller reconsideration (which is the normal practice). He overruled that judgment by effectively holding that it had no force in law. Not only did this go against established principles of stare decisis and judicial discipline, where you are not supposed to overrule a judgment that is binding upon you, but it also set up two conflicting lines of precedent within the same court at the same time – and it was that precise issue that the third three-judge bench was considering the day after Justice Mishra’s ruling, when the question was referred (by Justice Mishra) to the Chief Justice. It is telling that in a sixty-two page long judgment, Justice Mishra is unable to provide a single precedent – from India or from abroad – that has similar facts, and in his reasoning, he makes no reference whatsoever to this crucial point.

And the distinction matters. It matters in a polyvocal Court of thirty-four judges, where small panels hear issues on the same legal point, and return conflicting findings. All of Justice Mishra’s precedents and arguments are based upon the vision of the court acting as a unified institution, with internal mechanisms for reviewing and rethinking its previous decisions. However, you cannot eat your cake and have it too: a unified institution does not have a situation where oppositional lines of precedent are generated at the same time, and require further resolution between them. As someone pointed out: this situation is akin to Examiner A failing a student, Examiner B passing him, and the answer-script being sent back to Examiner A to “resolve” the conflict. Yes, Examiner A might be persuaded to change his mind. But that, it should be obvious, is hardly the point. It is for this reason that I had noted in the previous post that:

In India, however, we have a situation where within the highest judicial body, the existence of a multiplicity of judicial panels undermines institutional coherence, and creates a situation where the apex Court is effectively disagreeing with itself. This is what has happened in the present case: abstracting for a moment from the thicker context, what has happened is that two three-judge benches of the Supreme Court have taken diametrically opposite views on the same issue. Now the existence of thirty-four judges on the Supreme Court means that there is a ready solution to hand: send the issue to a bench that has a higher number of judges, in order to “resolve” the conflict.

Shorn of the legalese, what this effectively means is that within the highest judicial body, there is an internal appellate mechanism to deal with the problem of institutional incoherence, flowing from the Court’s unique structure. I use the word “appellate” in its ordinary sense; it is, obviously, not an “appeal” as that word is defined under Indian law, but it is basically a sui generis response to a situation where even within the apex Court, there are situations when conflicting views require a resolution in the interests of institutional coherence.

Once we understand this, however, it becomes clear that if the same judge is going to be present at both stages of the process, then this form of resolution becomes pointless. This is why it is important to understand Mr. Shyam Divan’s argument that what this effectively amounts to is a judge adjudicating upon the correctness of his own judgment in “collateral” proceedings; it is not formally an appeal, but in every significant respect, these latter proceedings are doing the work of an appeal. The source of the confusion is that – for understandable reasons – we continue to think of the Supreme Court as a unified body that speaks in one institutional voice, while the reality has moved very far away from this. A more accurate analogy would be with the European Court of Human Rights, where the same Court is divided into a “Chamber” and a “Grand Chamber.” Chamber judges and Grand Chamber judges are drawn from the same overall pool of ECHR judges: “The Grand Chamber is made up of the Court’s President and Vice-Presidents, the Section Presidents and the national judge, together with other judges selected by drawing of lots.” But: “When it hears a case on referral, it does not include any judges who previously sat in the Chamber which first examined the case.” (Emphasis Supplied)

Needless to say, this point finds no mention in Justice Mishra’s judgment. It also finds no mention in a brief concurring opinion penned by the other four judges – Benerjee, Saran, Shah and Bhat JJ – who repeat the same fallacy when they observe in paragraph 5 that: “We notice that his order has cited several previous instances where judges who rendered decisions in smaller bench compositions, also participated in larger bench formations when the reasoning (in such previous decisions) was doubted, and the issue referred to larger benches, for authoritative pronouncement.”

A final point needs to be noted. As Suhrith Parthasarathy noted at the time, there was a crucial issue of judicial discipline and respect for stare decisis in the manner in which Justice Mishra delivered the Indore Development Authority judgment. Holding a binding three-judge bench judgment to be per incuriam, effectively overruling it, and also overruling at one stroke seventeen Supreme Court judgments that had followed it – instead of doing things the normal way and making a referral – all raised serious questions about the functioning of a polyvocal court. It was precisely those issues that the three-judge bench intended to consider when this judgment was brought to its attention the next day – a process that was stalled when the case was referred to the Chief Justice. The recusal order makes it clear that those issues now stand buried. If henceforth, however, it is open to coordinate benches to overrule each other through declarations of per incuriam – and then for the Chief Justice acting as the Master of the Roster to in effect assign the case to judges who have been on one side through his powers of bench composition – then what we are looking at in the future is a factionalised court, where judicial decisions fall hostage to internal power struggles and bench-formation imperatives. There is indeed a potential parade of horribles in store – but it has nothing to do with bench hunting and forum shopping, and everything to do with the institutional integrity of the Supreme Court.

 


*”Blackest chapter”? Blacker than ADM Jabalpur? Blacker than Koushal v Naz? There is a lot of blackness down that particular road, and such overwrought hyperbole from the bench does nobody any favours – least of all “the system.”

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.

Addendum: Contempt and the Supreme Court’s Humpty Dumpty Jurisprudence

At the time of writing yesterday’s post, the final chapter in the story remained to be told. That chapter was completed today when a three-judge bench of the Supreme Court dismissed the writ petition filed by Kamini Jaiswal, which sought an SIT investigation into allegations of judicial corruption.

As in the previous post, I do not want to go into the merits of the petitions themselves, and associated issues of judicial politics (in fact, today’s judgment doesn’t really doesn’t go into the merits of the petitions either). In the previous post, however, I had made one argument: the Chief Justice’s role as the master of the roster, with its attendant power to list matters and select benches, comes into conflict with the principle of nemo iudex (no person shall be a judge in her own cause) in that class of rare cases where the Chief Justice herself is implicated in an illegal act. In such a situation, the Chief Justice ought to be precluded from hearing the case on merits (of course), but also precluded from passing any administrative orders deciding when, and before whom, the case will be listed.

How did the three-judge bench deal with this? In paragraph 19 of its judgment, it noted that:

“As a matter of fact, this controversy has been set at rest that even when there is an allegation against Hon’ble Chief Justice of India, it is he, who has to assign the case to a Bench, as considered appropriate by him.”

The three-judge bench did not, however, provide any independent reasons justifying this position. It relied upon the Constitution Bench order of 10th November (which we discussed in the previous post), and then cited the judgment in D.C. Saxena vs Chief Justice of India. In that case, the Court had noted:

“When imputations were made against the Chief Justice, the petitioner assumed, in our view, “wrongly” that CJI cannot constitute benches nor he should discharge the functions of Chief Justice until the matter is decided. On appointment by the president by a warrant and on his taking oath of office, the CJI becomes entitled to discharge the functions and duties of that office including constitution of benches and assignment of judicial work to judges as per procedure. This responsibility flows from the office and none including a litigant has right to demand for contra position. As regards his personal disposition to hear a case by a bench of which he is a member, it is his own personal volition. The Chief Justice’s prerogative to constitute benches and assignment of judicial business would no hinge at the whim of a litigant.” (para 26)

Notwithstanding the legal correctness of this paragraph, D.C. Saxena was an entirely inapposite case upon which to rely. D.C. Saxena was a PIL petitioner who, after having had a PIL dismissed by the then-Chief Justice, filed a fresh PIL against the Chief Justice, asking that he be removed from office (among other things). The present case, however, involved a registered FIR and a CBI investigation, whose subject matter potentially implicated the Chief Justice. There is a world of difference between the two situations; but in any event, what is far more important is the three-judge bench’s failure to do two things: first, to show that the nemo iudex principle would not apply to the present case; and secondly, to show that there was something in the Constitution, or in any law, according to which the Chief Justice could be exempted from the operation of the principle.

On the first issue, the Bench repeated that the FIR did not name the Chief Justice, or any Supreme Court judge. However, that was nobody’s case; indeed, according to settled law, judges could not be named in FIRs without following a specific procedure. The Chief Justice’s involvement in the case did not stem from his being named in the FIR, but from the fact that the principal accused – a retired judge of the Odisha High Court – had claimed to be able to fix a Supreme Court bench that the Chief Justice was presiding over. Now, once that is established, there are two possibilities: either the principal accused was lying, or he was telling the truth. In the latter eventuality, the Chief Justice was certainly implicated; and the question of whether the principal accused was lying or not could – naturally – only be determined through an investigation (whether by the CBI or the SIT) and, eventually a trial.

Consequently, the naming of the Chief Justice in the FIR is irrelevant to the question of whether nemo iudex applies or not. And if nemo iudex did apply, the three-judge bench simply didn’t have an independent argument (apart from its dubious reliance on D.C. Saxena) as to why the Chief Justice was exempted, and for good reason: there isn’t one. There is nothing in the office or functions of the Chief Justice that justifies any such exemption; and, as I argued in the previous post, the Chief Justice’s role as the master of the roster can easily be taken over by Court No. 2 at a time like this, in the interests of the continued smooth functioning of the institution.

There is a third possibility, however: that the Chief Justice continuing to play his role as the master of the roster would not violate the nemo iudex principle. In the last post, I provided some detailed arguments about the nature of this administrative power, and why it was serious and far-reaching in character. What did the three-judge bench have to say about this? It said this:

“It is contempt to imply that the Chief Justice would assign it to a Bench which would not pass an order adverse to him. It is also contempt to imply that the Judges would be so amenable to comply that the Bench which heard the second writ petition could not have heard it. This Court has laid down these allegations aimed at bringing the administration of justice in disrepute.” (paragraph 22)

This, however, misses the point entirely. It was nobody’s case that the Chief Justice would assign a case to a Bench that would decide in his favour. Nor was it anybody’s case that the bench hearing it would be amenable to deciding in the Chief Justice’s favour. The point – as we discussed in the last post, is this: the structure of the Supreme Court with its multiple benches and its collegial nature, and the very character of judging as a human enterprise, are such that the power to decide who hears a case necessarily implies a measure of control over its outcome. There is no insinuation that the Chief Justice would abuse his power; what is at issue, however, is that the existence of the power necessarily means that in cases of this kind, when the Chief Justice exercises his role as the master of the roster, he acts as a judge in his own cause. He might be the most honest judge that ever lived, but that is not the point; the principle is not that “no person shall be a (dishonest) judge in her own cause”. It is – for excellent reasons – simply that “no person shall be a judge in her own cause.”

By misunderstanding the character and purpose of the nemo iudex principle, the three-judge bench effectively granted the office of the Chief Justice blanket immunity from its operation. The new principle now seems to be “no person (except the Chief Justice of India) shall be a judge in her own cause.”

What follows, however, is substantially worse. One of the three judges hearing the petition – Justice Khanwilkar – had also been on the bench (alongside the Chief Justice) that the principal accused in the FIR had claimed he could “fix”. Justice Khanwilkar’s presence on the bench hearing the petition on merits, therefore, created a conflict of an order of magnitude more serious than the one created by the Chief Justice’s administrative power to list cases; Justice Khanwilkar was exercising judicial power to decide the case. The inevitable implication of this is that not only the Chief Justice – but every judge of the Supreme Court – is exempted from the nemo iudex principle.

What was the Court’s response to this? It was a familiar one.

“Yet another disturbing feature which aggravates the situation is that prayer has been made, that one of us, Justice A. M. Khanwilkar, should recuse from the matter. This is nothing but another attempt of forum hunting which cannot be permitted. Rather this kind of prayer was held to be contemptuous, aggravating the contempt in the case of Dr. D C Saxena (supra).” (paragraph 28)

According to the three-judge bench, therefore:

(a) It was contempt of court to object to the Chief Justice exercising his administrative power to list a case in which he was potentially implicated, and

(b) It was contempt of court to ask Justice Khanwilkar to recuse himself from exercising judicial power in hearing a case in which he was potentially implicated.

It is fairly clear that on this grotesque definition of contempt, both this blog post – and the last one – are in contempt of court. However, this is not the definition of contempt of court in law. The Contempt of Courts Act is clear that there must be an act that “substantially interferes, or tends substantially to interfere with the due course of justice“; and furthermore, there ought to be clear evidence of such interference. In using the word “contempt” no less than twenty-one times in the course of its thirty-eight page order (and, on occasion, mistakenly equating it with “forum shopping”), the three-judge bench’s order is reminiscent of Humpty Dumpty in Alice Through the Looking Glass:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

At the end of its judgment, the three-judge bench observed that:

“Let the good sense prevail over the legal fraternity and amends be made as lot of uncalled for damage has been made to the great Institution in which public reposes their faith.”

One cannot help wondering whether institutional greatness will truly be nurtured by brandishing the sword of contempt – or whether all that will lead to, in Justice Jackson’s words, will be the “compulsory unification of opinion [that] achieves only the unanimity of the graveyard.”  

Judicial Censorship, Prior Restraint, and the Karnan Gag Order

When the only weapon you have is a hammer, every problem looks like a nail. In recent times, the judiciary’s approach to the freedom of speech and expression seems to be proving this adage true. In response to people saying things that may not be to a judge’s liking, the response has invariably been to reach for the hammer, to ban, prohibit, or compel. Jolly LLB has a few scenes mocking lawyers? Make a committee and order cuts. Fundamental duties don’t have enough of an impact among people? Force them to stand up for the national anthem in cinemas. Condom packets have racy pictures? Direct the Additional Solicitor-General to come up with a way of “regulating” them. People are losing touch with cultural values? Force all schools in Tamil Nadu to teach the ThirukkuralThere are bandhs in Meghalaya? Ban the press from carrying statements about them. And so on.

The judicial hammer was in exhibition again today, in the seven-judge bench order convicting Justice C.S. Karnan of contempt, and sentencing him to six months in prison. The broader contempt case is not something I want to spend time discussing here, apart from noting, as an aside, that a Supreme Court that has no time to hear crucial constitutional cases for years on end on the ground that its judges are overworked and dealing with a backlog, nonetheless found the time to have multiple seven-judge sittings between February and May. Be that as it may, it is the last line of today’s order that I want to focus on. After convicting Justice Karnan to six months imprisonment, the Court states:

“Since the incident of contempt includes public statements and publication of orders made by the contemnor, which were highlighted by the electronic and print media, we are of the view, that no further statements made by him should be published hereafter. Ordered accordingly.”

The scope of this order is breathtaking. The Court takes one individual – Justice Karnan – and gags the media from carrying any statement made by him. In my view, apart from overreaching and violating Article 19(1)(a), the Court has passed an order that it had no power to pass.

Prior Restraint

The order imposes what, in free speech law, is called “prior restraint”: “… [State] action that prohibits speech or other expression before it can take place.” It has long been a position in common law that prior restraints upon speech are impermissible unless exceptional circumstances exist. As early as 1765 in England (a time not exactly known for liberties of speech and of the press), Blackstone famously wrote that “the liberty of the press… consists in laying no previous restraints upon publication.” The American Supreme Court has held repeatedly that “any prior restraint on expression comes to this Court with a `heavy presumption’ against its constitutional validity.” In Brij Bhushan vs State of Delhi, the Indian Supreme Court held, as well, that prior restraint upon speech is presumptively unconstitutional. Prior restraint is considered specially damaging to free speech because it chokes off the “marketplace of ideas” at its very source, and prevents certain individuals, or ideas, from entering the public sphere. In other words, it gives the State exclusive control over “exclusive control over what material can or cannot be allowed to enter the marketplace of ideas.”

The Media Guidelines Case

In Sahara vs SEBI, popularly known as the “Media Guidelines Case”, the Supreme Court carved out a specific exception to the rule against prior restraint. In SEBI, the Court was concerned about the issue of media trials causing prejudice in sub judice matters. In that context, the Court held that it had inherent powers under the Constitution to “prohibit temporarily, statements being made in the media which would prejudice or obstruct or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate courts.” Drawing this power under Article 129 of the Constitution, which authorised the Supreme Court to punish for contempt of itself, the Court held that the power to punish included the power to prevent as well. On this basis, the Court held that it could pass “postponement orders” (i.e., temporary injuncting the media from reporting on a particular event) in order to ensure the proper administration of justice, a fair trial, and the protection of the rights of the accused under Article 21. The Court warned that:

“Given that the postponement orders curtail the freedom of expression of third parties, such orders have to be passed only in cases in which there is real and substantial risk of prejudice to fairness of the trial or to the proper administration of justice which in the words of Justice Cardozo is “the end and purpose of all laws”. However, such orders of postponement should be ordered for a limited duration and without disturbing the content of the publication. They should be passed only when necessary to prevent real and substantial risk to the fairness of the trial (court proceedings), if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those affected by the prior restraint. The order of postponement will only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period.”

Consequently, in SEBI, the Supreme Court authorised prior restraint only in the narrow context of an ongoing trial, where media reporting presented a “real and substantial risk of prejudice to the fairness of the trial.” The Court stressed that the postponement order must be narrow and limited, both in its scope and its duration.

The Karnan Gag Order

The SEBI case has come under serious criticism, but for the purposes of this post, let us take it as binding law, and test the Karnan order against it. It is quite obvious that none of SEBI’s pre-conditions for imposing prior restraint are not even remotely satisfied. There is no ongoing trial – by the same order in which it imposed the media gag, the Court convicted him of contempt. Consequently, the prospect of prejudicing an ongoing trial and thereby interfering with the administration of justice – the basis of the judgment in SEBI – does not exist. The order is neither narrow in scope, nor in its duration: it is, in the true sense of the word, a blanket gag order. Consequently, the Karnan gag order does not fall within the scope of the SEBI judgment.

What, then, is the justification for this sweeping exercise of judicial power to silence speech? The answer is clear: Justice Karnan has, over the course of the last few months, made a number of statements, which formed the basis of his conviction for contempt by the Supreme Court. The Court presumes that he will make more such statements, and many of them will amount to contempt of court. To prevent these statements from being given the oxygen of publicity, the Court decides to gag the media from reporting on them, in advance.

This is the case for the Court, taken at its highest. And at its highest, it is no case at all. There is something particularly disturbing about punishing a man not for what he has said, but for what he might say (we are dangerously close to the realm of thought-crimes here). There is something particularly disturbing about taking the choice and judgment away from the media about what to report and what not to report, to decide for themselves what statements might be legal and what illegal, and imposing a blanket ban on reporting anything one individual might say, in advance. There is no counter-veiling interest: no ongoing trial, no sexual harassment claim where reputations may be destroyed, no grave imperilment of national security. There is absolutely nothing here apart from a man who has made some statements that the Court has found to be contemptuous, and on that basis the Court has decided to gag the media from publishing anything he says. Even if it could possibly be argued that the Court had the power to do this under Article 129 (since, as has been held, the power to punish for contempt includes the power to prevent it), the Karnan order clearly violates Article 19(1)(a), and fails all the proximity and reasonableness tests laid down under Article 19(2).

Needless to say, I don’t believe that the Court does have the power to pass an order under Article 129. SEBI – which held that the power to “punish” contempt includes the power to “prevent” contempt – was already stretching language to its limits. But even if there is some way to justify SEBI on the grounds of its narrowly focused nature, to say that the Karnan gag order falls within the Supreme Court’s power to “prevent contempt” is to act like Humpty Dumpty, and make words mean what you want them to mean, because you are the master.

Now, if the gag order cannot be traced back to Article 129, then – in my view – there is no constitutional source for it at all. As I have argued before in my analysis of the national anthem order, under Article 19(2), speech can be restricted only by the “State”, acting through “law”. It is, by now, well-settled, that under Article 19(2), the judiciary is not “State”, and judicial orders are not “law”. The judiciary’s task is to protect citizens’ right to free speech from executive and legislative tyranny, not to get into the business of censoring speech itself! In my view, therefore, the gag order is entirely illegal and unconstitutional.

Judicial Censorship

I have written before that over the last few years, we have been witnessing a disturbing trend where, in place of the legislature and the executive, it is the judiciary that has been taking upon itself the task of regulating, restricting, and censoring speech. The Karnan gag order is the latest trend in what fast seems to be becoming an established jurisprudence of (what I have called) “judicial censorship”.

The Karnan gag order was written by the Chief Justice, but co-signed by the next six senior-most judges of the Supreme Court. Three of those six judges will serve as Chief Justice in the coming years. What this suggests is that the problem is not with individual judges, but with the fact that, as an institution, the Supreme Court simply doesn’t view the freedom of speech and expression to be of much importance.

That is, in equal parts, alarming and tragic.

Free Speech and Contempt of Court – II

(This post first appeared on the CIS website)

Towards the end of the last post, we saw how the Law Commission traced the genealogy of the “scandalising the Court” offence, inasmuch as it sought to protect the “standing of the judiciary”, to that of seditious libel. The basic idea is the same: if people are allowed to criticise state institutions in derogatory terms, then they can influence their fellow-citizens who, in turn, will lose respect for those institutions. Consequently, the authority of those institutions will be diminished, and they will be unable to effectively perform their functions. Hence, we prevent that eventuality by prohibiting certain forms of speech when it concerns the functioning of the government (seditious libel) or the Courts (scandalising the Court). This, of course, often ties the judges into knots, in determining the exact boundary between strident – but legitimate – criticism, and sedition/scandalising the Court.

Seditious libel, of course, went out in the United States with the repeal of the Sedition Act in 1800, and was abolished in the England in 2009. Notoriously, it still remains on the statute books in India, in the form of S. 124A of the Indian Penal Code. An examination of the Supreme Court’s sedition jurisprudence would, therefore, be apposite. Section 124A makes it an offence to bring or attempt to bring into hatred or contempt, or excite or attempt to excite, disaffection, towards the government. The locus classicus is Kedar Nath Singh v. Union of India. I have analysed the case in detail elsewhere, but briefly, Kedar Nath Singhlimited the scope of 124A to incitement to violence, or fostering public disorder, within the clear terms of Article 19(2). In other words, prosecution for sedition, if it was to succeed, would have to satisfy the Court’s public order jurisprudence under Article 19(2). The public order test itself – as we discussed previously on this blog, in a post about Section 66A – was set out in highly circumscribed terms in Ram Manohar Lohia’s Case, which essentially required a direct and imminent degree of proximity between the speech or expression, and the breach of public order (in that case, the Court refused to sustain the conviction of a speaker who expressly encouraged an audience to break the law). Subsequently, in S. Rangarajan v. P. Jagjivan Ram, the Court noted that the relation ought to be like that of a “spark in a powder keg” – something akin to inciting an enraged mob to immediate violence. Something that the Court has clearly rejected is the argument that it is permissible to criminalise speech and expression simply because its content might lower the authority of the government in the eyes of the public, which, in turn, could foster a disrespect for law and the State, and lead to breaches of public order.

Unfortunately, however, when it comes to contempt and scandalising, the Court has adopted exactly the chain of reasoning that it has rejected in the public order cases. As early as 1953, in Aswini Kumar Ghose v. Arabinda Bose, the Court observed that “it is obvious that if an impression is created in the minds of the public that the Judges in the highest Court in the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined.”

Subsequently, in D.C. Saxena v. CJI, the Court held that “Any criticism about judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the judges and brings administration of justice to ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be criticised. Motives to the judges need not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice is one of the pillars on which democratic institution functions and sustains.” Notice the chain of causation the Court is working with here: it holds faith in the administration of justice as a necessary pre-requisite to the administration of justice, and prohibits criticismthat would cause other people to lose their faith in the judiciary. This is exactly akin to a situation in which I make an argument advocating Marxist theory, and I am punished because some people, on reading my article, might start to hold the government in contempt, and attempt to overthrow it by violent means. Not only is it absurd, it is also entirely disrespectful of individual autonomy: it is based on the assumption that the person legally and morally responsibly for a criminal act is not the actor, but the person who convinced the actor through words and arguments, to break the law – as though individuals are incapable of weighing up competing arguments and coming to decisions of their own accord. Later on, in the same case, the Court holds that scandalising includes “all acts which bring the court into disrepute or disrespect or which offend its dignity or its majesty or challenge its authority.” As we have seen before, however, disrepute or disrespect of an institution cannot in itself be a ground for punishment, unless there is something more. That something more is actual disruption of justice, which is presumably caused by people who have lost their confidence in the judiciary, but in eliding disrepute/disrespect with obstruction of justice, the Court entirely fails to consider the individual agency involved in crossing that bridge, the agency that is not that of the original speaker. This is why, again, in its sedition cases, the Court has gone out of its way to actually require a proximate relation between “disaffection” and public order breaches, in order to save the section from unconstitutionality. Its contempt jurisprudence, on the other hand, shows no such regard. It is perhaps telling that the Court, one paragraph on, adopts the “blaze of glory” formulation that was used in an 18th century, pre-democratic English case.

Indeed, the Court draws an express analogy with sedition, holding that “malicious or slanderous publication inculcates in the mind of the people a general disaffection and dissatisfaction on the judicial determination and indisposes in their mind to obey them.”Even worse, it then takes away even the basic protection of mens rea, holding that all that matters is the effect of the impugned words, regardless of the intention/recklessness with which they were uttered. The absence of mens rea, along with the absence of any meaningful proximity requirement, makes for a very dangerous cocktail – an offence that can cover virtually any activity that the Court believes has a “tendency” to certain outcomes: Therefore, a tendency to scandalise the court or tendency to lower the authority of the court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice, would be a criminal contempt. The offending act apart, any tendency if it may lead to or tends to lower the authority of the court is a criminal contempt. Any conduct of the contemnor which has the tendency or produces a tendency to bring the judge or court into contempt or tends to lower the authority of the court would also be contempt of the court.”

The assumption implicit in these judgments – that the people need to be protected from certain forms of speech, because they are incompetent at making up their own minds, in a reasonable manner, about it – was made express in Arundhati Roy’s Case, in 2002. After making observations about how confidence in the Courts could not be allowed to be “tarnished” at any cost, the Court noted that “the respondent has tried to cast an injury to the public by creating an impression in the mind of the people of thisbackward country regarding the integrity, ability and fairness of the institution of judiciary”, observed that the purpose of the offence was to protect the (presumably backward) public by maintaining its confidence in the judiciary, which had been enacted keeping in mind “the ground realities and prevalent socio-economic system in India, the vast majority of whose people are poor, ignorant, uneducated, easily liable to be misled. But who acknowledly (sic) have the tremendous faith in the dispensers of Justice.” So easy, indeed, to mislead, that there was no need for any evidence to demonstrate it: “the well-known proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it misses to hit the target. The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow resulting in the destruction of rule of law, the expected norm of any civilised society.”

 

The American legal scholar, Vince Blasi, has outlined a “pathological perspective” of free speech. According to him, heightened protection of speech – even to the extent of protecting worthless speech – is important, because when the government passes laws to regulate speech that is hostile towards it, it will, in all likelihood, over-regulate purely out of self-interest, sometimes even unconsciously so. This is why, if the Courts err, they ought to err on the side of speech-protection, because it is quite likely that the government has over-estimated public order and other threats that stem out of hostile speech towards government itself. The pathological perspective is equally – if not more – applicable in the realm of contempt of Court, because here the Court is given charge of regulating speech hostile towards itself. Keenly aware of the perils of speech suppression that lie in such situations, we have seen that the United States and England have abolished the offence, and the Privy Council has interpreted it extremely narrowly.

The Indian Supreme Court, however, has gone in precisely the opposite direction. It has used the Contempt of Court statute to create a strict-liability criminal offence, with boundlessly manipulable categories, which is both overbroad and vague, entirely inconsistent with the Court’s own free speech jurisprudence, and at odds with free speech in a liberal democracy.

Free Speech and Contempt of Court – I

This post first appeared on the CIS website, here)

On May 31, the Times of India reported some observations of a two-judge bench of the Supreme Court on its contempt powers. The Court noted that the power to punish for contempt was necessary to “secure public respect and confidence in the judicial process”, and also went on to add – rather absurdly – to lay down the requirements, in terms of timing, tone and tenor, of a truly “contrite” apology. This opinion, however, provides us with a good opportunity to examine one of the most under-theorised aspects of Indian free speech law: the contempt power.

Indeed, the contempt power finds express mention in the Constitution. Article 19(2) permits the government to impose reasonable restrictions upon the freedom of speech and expression “… in relation to contempt of court.” The legislation governing contempt powers is the 1971 Contempt of Courts Act. Contempt as a civil offence involves willful disobedience of a court order. Contempt as a criminal offence, on the other hand, involves either an act or expression (spoken, written or otherwise visible) that does one of three things: scandalises, or tends to scandalize, or lowers, or tends to lower, the authority of any court; prejudices or interferes (or tends to interfere) with judicial proceedings; or otherwise obstructs, or tends to obstruct, the administration of justice. As we can see, contempt can – broadly – take two forms: first, obstructing the proceedings of the Court by acts such as disobeying an order, holding up a hearing through absence or physical/verbal disturbance etc. This is straightforward enough. More problematically, however, contempt also covers instances of what we may call “pure speech”: words or other forms of expression about the Court that are punished for no other reason but their content. In particular, “scandalising the Court” seems to be particularly vague and formless in its scope and ambit.

“Scandalising the court” is a common law term. The locus classicus is the 1900 case of R v. Gray, which – in language that the Contempt of Courts Act has largely adopted – defined it as “any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority.” The basic idea is that if abusive invective against the Court is permitted, then people will lose respect for the judiciary, and justice will be compromised.

It is obvious that this argument is flawed in many respects, and we shall analyse the Supreme Court’s problematic understanding of its contempt powers in the next post. First, however, it is instructive to examine the fate of contempt powers in the United States – which, like India, constitutionally guarantees the freedom of speech – and in England, whose model India has consciously followed.

America’s highly speech-protective Courts have taken a dim view of contempt powers. Three cases stand out. Bridges v. California involved a contempt of court accusation against a labour leader for calling a Court decision “outrageous”, and threatening a strike if it was upheld. Reversing his prior conviction, the Supreme Court noted that “public interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist.Given the strong public interest, the burden of justifying restrictions upon this speech was particularly high. The Court identified two possible justifications: respect for the judiciary, and the orderly administration of justice. On the first, it observed that an enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” On the second, it held that since striking itself was entirely legal, it was no argument that the threat of a strike would illegally intimidate a judge and subvert the course of justice. Throughout the case, the Court stressed that unfettered speech on matters of public interest was of paramount value, and could only be curtailed if there was a “clear and present danger” that the substantially evil consequences would result out of allowing it.

Similarly, in Garrison v. Lousiana, an attorney accused certain judges of inefficiency and laziness. Reversing his conviction, the Supreme Court took note of the paramount public interest in a free flow of information to the people concerning public officials, their servants…. few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official’s private character.” Consequently, it held that only those statements could be punished that the author either knew were false, or were made with reckless disregard for the truth. And lastly, in Landmark Communications v. Virginia, the Court held that “the operations of the courts and the judicial conduct of judges are matters of utmost public concern”, and endorsed Justice Frankfurter’s prior statement, that “speech cannot be punished when the purpose is simply “to protect the court as a mystical entity or the judges as individuals or as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed.”

What stands out here is the American Courts’ rejection of the ideas that preserving the authority of judges by suppressing certain forms of speech is an end in itself, and that the Courts must be insulated to some greater degree than other officials of government. Consequently, it must be shown that the impugned expression presents a clear and present danger to the administration of justice, before it can be punished.

Now to England. The last successful prosecution of the offence was in 1931. In 2012, the Law Commission published a paper on contempt powers, in which it expressly recommended abolishing the offence of “scandalising the Court”; its recommendations were accepted, and the offence was abolished in 2013. Admittedly, the offence remains on the statute books in many commonwealth nations, although two months ago – in April 2014 – the Privy Council gave it a highly circumscribed interpretation while adjudicating a case on appeal from Mauritius: there must, it held, be a “real risk of undermining public confidence in the administration of justice” (something akin to clear and present danger?), and the Prosecution must demonstrate that the accused either intended to do so, or acted in reckless disregard of whether or not he was doing so.

What is particularly interesting is the Law Commission’s reasoning in its recommendations. Tracing the history of the offence back to 18th century England, it noted that the original justification was to maintain a “haze of glory” around the Courts, and it was crucial that the Courts not only be universally impartial, but also perceived to be so. Consequently, the Law Commission observed that this language suggests that “to be impartial” and “to be universally thought so” are two independent requirements, implying that the purpose of the offence is not confined to preventing the public from getting the wrong idea about the judges, and that where there are shortcomings, it is equally important to prevent the public from getting the right idea.” Obviously, this was highly problematic.

The Law Commission also noted the adverse impact of the law on free speech: the well-known chilling effect, whereby people would self-censor even justified criticism. This was exacerbated by the vagueness of the offence, which left unclear the intent requirement, and the status of defences based on truth and public interest. The Law Commission was concerned, as well, about the inherently self-serving nature of the offence, which give judges the power to sit in judgment over speech and expression that was directly critical of them. Lastly, the Law Commission noted that the basic point of contempt powers was similar to that of seditious libel: to ensure the good reputation of the State (or, in the case of scandalising, the judges) by controlling what could be said about them. With the abolition of seditious libel, the raison d’être of scandalising the Court was also – now – weakened.

We see, therefore, that the United States has rejected sweeping contempt powers as unconstitutional. England, which created the offence that India incorporated into its law, stopped prosecuting people for it in 1931, and formally abolished it last year. And even when its hands have been bound by the law that it is bound the enforce, the Privy Council has interpreted the offence in as narrow a manner as possible, in order to remain solicitous of free speech concerns. Unfortunately, as we shall see in the next essay, all these developments have utterly passed our Courts by.

 

Guest Post: Free Speech, Interim Injunctions and Media Guidelines

(In this guest post, Raag Yadava, a 2013 NLSIU graduate, analyses the High Court’s recent order restricting reporting of the sexual harassment allegations leveled by an intern against a former justice of the Supreme Court)

The Delhi High Court, in an order dated 16th January, 2014, granted Justice Swatanter Kumar (“SK”) an interim injunction in a suit for defamation (permanent injunction plus damages) filed against various media houses, the unnamed intern who made the allegations of sexual harassment and the reporter who sourced the information. (Note: the defendants were not permitted to file replies to the injunction application.)

The facts, briefly, were this: on 30th November, the intern sent an affidavit to the Chief Justice of India complaining of sexual harassment by SK. (It is worth noting that SK’s stance is that this lady ‘was neither an intern nominated by the Supreme Court nor by the plaintiff himself.’ – see, paragraph 5 of the order). Discovering this complaint, from 10th January onwards, various media houses published (on TV and in print) news of this allegation. Crucially, these reports named SK and appeared prominently (as headlines more often than not). These are some examples: “Another intern alleges sexual harassment by another SC judge”, “Justice S. Kumar … put his right arm around me, kissed me on my left shoulder … I was shocked”, “Sex taint on another former SC judge”, “Ex-judge Claims Green Plot in Sex Slur” etc.

The Court granted the injunction. In doing so, the Court considered the issue to be one of balancing the right of freedom of speech under Article 19(1)(a), on one hand, and administration of justice (or the individual’s right to “open justice”), on the other. Narrating the development of the law on prior restraints on press publication in Naresh Shridhar Mirajkar (1967), Reliance Petrochemicals (1988) and Sahara (2012), the Court begins with the observation that prior restraints are per se not unconstitutional, the devil rather lying in the details in which the restraint is crafted.

Thus next, at various instances, the Court considers the legal factors that permit exceptions to the otherwise unregulated norm of freedom of speech and expression of the press. Drawing on Reliance, at paragraph 38, and on Sahara and Mirajkar in paragraph 43, the Court considers this factors to be “an interference with the administration of justice”. Thus, “if … there exists a real and imminent danger that the continuance of the publication would result in interference with the administration of justice,” a prior restraint to the freedom under Article 19(1)(a) is justified. The Court also backs this standard by the recognition of the drafters of the Constitution, given that “contempt of court” – which includes the power to punish for obstructing the administration of justice – was included as an express restriction to the freedom under Article 19(2).

Then comes the question of what precisely ‘interference in the administration of justice’ means – a question previously considered by the Supreme Court. As in Sahara, the Court here notes the “obstruction of the justice … include(s) intrusion in right to have open justice unbiased by any public opinion (from a) publication which would give excessive adverse publicity to the accused … which may likely hamper the fair trial in future.” Thus, even if some amount of fairness can be attached to the publication, or where it appears to be fair, the Court’s reasoning implies that prior restraints may still be imposed.

Till this point, the Court’s reasoning is consistent with the approach of the Supreme Court previously. In such cases, the Supreme Court proceeds to examine on facts whether such “excessive adverse publicity” exists, and whether it “may likely hamper” fair trial. The Court in this case, however, adds another principle to this legal reasoning – that such prejudice “exists in the cases of persons who are seen with the eyes of public confidence and public faith like judges of the Supreme Court or the other superior Courts of justice.” Given that any aspersions cast on a judge reflect on the judiciary, the individual’s integrity and reputation is linked to that of the institution. Thus, for those holding public office, such allegations cast doubt on the “institution as a whole”. Facially, it does not cohere that an individual’s or for that matter, an institution’s interest in maintaining its reputation also justifies a prior restraint, so the Court links this to loss in public confidence to the right to open justice in these terms: “The person who is accused of such allegations is seen with extreme suspicion and the same also creates a kind of pressure of adverse public opinion which may affect his likelihood of getting fair trial or may lead to interference in the course of the justice.” There are two issues with this reasoning: the Court does not explain why “such” allegations would ipso facto affect a trial court, or what “such” allegations are. If by this, the Court means allegations against high ranking public officials, it would imply that since all allegations against public officials affect their institution’s integrity, a prior restraint is justified in principle without the need for any further examination on facts.

Let us parse this: if I allege that A Raja is corrupt and has allocated spectrum improperly, surely this leads the public to reflect on the Ministry of Telecommunication, and “such” allegations would justify a prior restraint. The Court’s answer – when it does ‘consider’ limited facts – comes in paragraph 53, noting that “the allegations made in the complaint have neither been examined or tested in any Court of law nor have they been proved … not any cogent evidence has been produced along with the complaint.” This, however, is unappealing. Either the Court means that no allegations can be published unless proved in a Court of law – which is a patently absurd conclusion. Or perhaps the Court means that to justify a prior restraint in an ad interim injunction, the Court hearing the matter would itself enter into the facts to see whether there is any element of truth on the basis of evidence. This is problematic not only because sexual harassment complaints (being by their very nature private acts) rarely if ever have “cogent (external) evidence”, but also because this would mean the press’ otherwise untrammelled and unfettered freedom of speech to publish daily and contemporary news would be subject to a half-baked appreciation of evidence by the Court, until the matter is finally heard and judgment pronounced several months later.

Curiously, the Court proceeds to abandon this line of reasoning altogether, concerning itself now with SK’s “impeccable reputation” as a judge who “has dealt with many important cases and has always protected and preserved the interests of justice.” Given this, the Court then records these observations, which are best quoted in full:

56. Assuming for the sake of example that a false complaint is filed against the retired judge of high judiciary after his death by raising similar nature of allegations after the retirement of about 10 or 20 years. One would fail to understand that after his death who would protect his interest and defend the case in Court of law when he had in his career given landmark judgments and had a great name and reputation in bar and bench. These questions are to be examined by the Court when the fresh cases are considered 57. In view of the recent stringent provisions incorporated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which provides for a mechanism of dealing with the cases of sexual harassment, this Court is of the opinion that strict view would have to be applied equally to both the sides, i.e. complainant as well as alleged accused specially in cases where the complaint is filed after the lapse of long period. Thus, this Court is also of the view that there should be a limitation of time for the purpose of filing of such complaints, otherwise no one would know when the complaint ought to have been filed and decided. Thus, a balanced approach has to be taken, particularly, in these types of matters. 58. In the present case, assuming the complaint filed by the defendant No.5 is found to be false after inquiry, then who would ultimately compensate and return the repute and sufferings of the plaintiff and mental torture caused to him and his family members.” (emphasis supplied)

Thus, the link between an injury to reputation and the right to open justice, crucial to satisfy the tests in Reliance etc, is forgotten by the Court, speaking solely of how harm to reputation is in itself the relevant factor. Equally, the Court’s remarks on how there “should” be a limitation on sexual harassment complaints seems entirely unwarranted in the facts of this case, and seems to bear no legal relevance to whether the administration of justice may be subverted.

Combing its reasoning till here, the Court finally concludes: (a) given there was only a “stray” allegation (the Court, here, has judged the veracity of the allegation, it seems, on the ground that there was only intern who alleged sexual harassment and not more), (b) there was a ‘delay’ of two and a half years in filing the complaint, (c) the allegations are being excessively published, (d) that such publicity is “destructive of (the individual’s and the institution’s) reputation”, grants the injunction. In line with the general trend, relying on ESN Software Pvt. Ltd., the Court extends the injunction to all non-party media outlets as well.

The injunction itself is found in paragraph 64 – the operative part of the order. It prohibits publication of any material highlighting the “allegation in the form of headlines, without disclosing in the headlines … that they are mere allegations”, and the publication of any photos of SK. The injunction thus curiously seems to fall short of what the reasoning requires. Paragraph 64 only prohibits allegations “in the form of headlines”, thus leaving free publication in less conspicuous parts of the publication, and even then, permits reporting provided that the fact that these are only allegations is made clear. It is unclear how such reporting would also not – if we were to accept the Court’s reasoning – harm SK’s and the Supreme Court’s reputation.

Two crucial questions thus appear: Is it correct for the Court to permit a public official to piggy-back on the institution’s reputation? Is the emphasis on harm to reputation, absent a factual finding of prejudice to a fair trial, consistent with Mirajkar and Reliance? The answer to these questions determines how broad truly the freedom of our press under Article 19(1)(a) is – whether the press’ reporting of facts bona fide against those in high places is constitutionally permissible; whether the “free and healthy press (that) is indispensible to the functioning of a true democracy” is truly indispensible; whether this freedom exists only on paper, to stop the newspapers that matter.