A Case of Contempt

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.Justice2

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.

This entry was posted in India, media, politics, society. Bookmark the permalink.
  • Pingback: The Great Indian Mutiny » A Case of Contempt()

  • 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.
    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 🙂 Thanks.

  • 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!