In a contemptuous ruling, the Delhi High Court today sentenced four journalists of Mid-Day newspaper to four months in jail.
It ruled that articles and a cartoon in the newspaper accusing former Chief Justice of India, Mr. Y. K. Sabharwal, were tantamount to contempt of court and would tarnish the image of the highest court in the people’s eyes.
Sabharwal Controversy
Former CJI Sabharwal retired in January this year, after a series of high-profile rulings in his career. In the past few months, he has been embroiled in controversy, especially related to his ruling over banning commercial establishments in residential parts of Delhi. The accusations are that this ruling benefited his son’s commercial enterprises.
Sabharwal broke his silence this month, when he responded to the charges in The Times of India. The Campaign for Judicial Accountability and Reforms, has issued a rejoinder to his defense.
Contempt of Democracy
I wish to focus on the contempt of court ruling by the Delhi High Court, which interestingly was a proceeding initiated suo moto by the Court itself.
The Midday Editor, who was also sentenced, has clarified that they have taken truth to be their defense. They are going to appeal in the Supreme Court.
What is the ‘truth defense’ in this context? The archaic Contempt of Court Act (1971) was amended in 2006 (PDF) to add contempt acts not punishable:
“The court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.”
If the journalists believe they’re telling the truth, why shouldn’t they be allowed the truth defense? Let further inquiry and investigation determine whether the articles and allegations were false, and if so, the journalists can be proceeded against. Gagging the media in such a way is tantamount to contempt of democracy!
Not surprisingly, there is going to be media outrage over this ruling. Experts have argued in the past about how the amendment to the act itself falls short of expectations, and as such is impotent to curtail the draconian contempt powers of the judiciary. A TOI editorial, Contempt for the Pen argues on Mid-Day’s behalf. 18 eminent personalities say “We Are Equally Guilty” on Outlook.
State of the Judiciary
Financial Times from London highlighted the state of affairs in the Indian courts today:
- No. of cases pending before the Supreme Court in June 2007 is over 43,000. In 1998, there were less than 20,000.
- There are 3.7 million cases in High Courts and 25 million in lower courts.
- World Bank rated India 173rd out of 175 for contract enforcement.
- An employment termination dispute takes 20 years if fought all the way.
- It takes an average 3.9 years to enforce a contract (compared with less than 10 months in China).
With such a state of affairs, the Judiciary is showing contempt to itself, to justice, to democracy, and the nation. It better start focusing on reform and clean up its act, rather than hold freedom of expression ransom in this struggling democracy.
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Disturbing indeed. Although I don’t know all about this, it looks like the court seems to have not behaved in the completely unbiased, dispassionate entity that it should be. It is acting like any other entity out to protect its interests, turf.
They certainly should be allowed a chance to defend properly — i.e. the truth defense. How long was the current case in court before this 4-month jail sentence? Were they using the truth defense even during that time or were not allowed to?
I am not familiar with the laws pertaining to libel and contempt of court in India, but I’d like to point out that the amendment that you’ve quoted does not seem to give a carte blanche to the journalists. The operational clause here appears to be that the truth defense is bona fide.
I wouldn’t put much behind the statements on J. Sabharwal, emanating from the Campaign for Judicial Accountability and Reforms, though. The list of signatories to its rejoinder in the Outlook reminds me of the nightmarish days of “the committed judiciary”, a handmaid of Mrs. Gandhi, that would not bat an eyelid before suspending or annulling the constitutionally guaranteed fundamental rights to promote “social justice”.
Taken together with the fact that the most important judgment of J. Sabharwal was one that opened up the acts passed under the Ninth Schedule to challenge for violating fundamental rights, I smell a putrefied rat here!
Arun: the Indian judiciary has never acted in an unbiased, dispassionate entity when the matter involved its own corruption.
Regarding how long was the current case in court: I am not sure, but it seems that there was no duration. Since the court acted suo moto, there was no trial, or anything. It was quick and fast. The so-called ‘trial’ may have lasted just one day today — I’m not sure. Can’t find any details on this so far.
RTF: //the amendment that you’ve quoted does not seem to give a carte blanche to the journalists. The operational clause here appears to be that the truth defense is bona fide.//
Yes, it does not. I do not think any democracy in the world today gives a carte blanche to journalists, however, freedom of expression is at threat here in an unjust fashion.
Note however, that the operational clause you’re referring to is not that the truth defense be bona fide, but that the request for invoking such a defense be bona fide.
I’m also not too enamored with the list of signatories behind Outlook’s protest, but cited it as an example of how the Indian media is protesting. If I’m not wrong, we’re going to see more protests in the media against this ruling.
I’m not knowledgeable about the acts passed under the Ninth Schedule after Sabharwal’s judgment. The putrefied rat you’re smelling is besides my post, which is about treating freedom of expression in a contemptuous manner in what is called as a democracy. Any further wisdom you throw on the matter, is of course, welcome.
Contempt of court is a serious business. One type of contempt of court is “scandalizing the court”, defined as any hostile criticism of a judge as a judge. Among such criticisms, courts in many countries including Australia, U.K. (India’s laws are mostly patterned after the U.K. laws), and the U.S., consider criticisms that impeach the integrity of the judge (Sam Gill, California Law Review, Vol. 24, No. 1), as having the most deleterious effect on the administration of justice.
Thanks.
I am not qualified or informed enough to comment on the merits of the Mid-day Newspaper contempt case, or J. Sabharwal’s conduct in the sealing case. A casual reading of the verdict in the contempt case, found in toto here, seems to indicate that there is a case to be made here for scandalizing the Supreme Court of India, and not just its ex-Chief Justice Sabharwal.
Following Arunk’s comment above, the key question here is whether due process has been followed by the Delhi High Court in rendering its verdict. While the right to freedom of expression is precious in a democracy, it is not absolute. It cannot be abused to undermine the credibility of the very institution that is the ultimate arbiter of infringement of that right. I am all for journalistic investigation of judges’ conduct, but just wary of questioning the integrity of the only institution that has any credibility left in the Indian scene, the Supreme Court of India.
Besides undermining the people’s confidence in the administration of justice — a sine qua non for democracies to function, it is important to note that such questioning can influence the future decisions of the courts by threat of future criticisms. I suspect that’s the intent of the statement signed by the so-called “eminent personalities” that appeared in the Outlook.
In response to your quetion on the Ninth Schedule, among several legilations in danger of challenge resulting from the said judgment, one is the Tamil Nadu Reservation Act, 1994. There is little wonder that J. Sabharwal incurred the ire of India’s Left, including those “eminent personalities” who signed the rejoinder.
I apologize for the rather long comment on your post, Mahendra. Pleae, before this becomes a habit, ask me to shut up
I always thought this contempt thing was a huge umbrella for judges to hide corruption (hypothetically speaking, m’lud).
Hence, if there is some noise over this episode, Indian laws pertaining to this may, just may, be changed.
A sensible editorial in the Business Standard:
Go easy on contempt.
What? I can’t draw cartoons of judges? But some of them are cartoons by themselves and this would mean that, simply publishing their photo would tantamount to contempt of court.
One post in a week? What is this: contempt for blogging?!
RTF: Thanks for the link to the actual verdict, and the BS editorial. I agree with the verdict of the editorial — that this is not the way to uphold the stature of the Supreme Court!
Rambodoc: With the political impasse over the nuclear deal and the ruckus over Ram Sethu, I don’t think either the populace or the parliament would even think of contempt laws at this juncture!
Ha ha — contempt for blogging! On the other hand, I believe in not doing something if one is not able to do it well. Living in a cacophony made my mind too unquiet to blog!
Ashok:
Very well written post Mahendra.
Thank you, Prerna!