In what could be most provocative newspaper response ever to a court order, the UK daily, 'The Daily Mirror', published on July 31, 1987 a picture of three senior judges - Lord Ackner, Lord Brandon and Lord Templeman- upside down in the front page.
The highlight of the report was its not-so-subtle headline: "YOU FOOLS".
The report was concerning an order passed by the judges upholding a restraint on the publication of the book "Spycatcher", a memoir written by a former intelligence officer. The ban - imposed on the ground that the book disclosed sensitive details - was criticized on the ground that the information was even otherwise available in the public domain.
However, this newspaper report, which suggested that the judges were thinking upside down, did not provoke any contempt action from the Court. As per an account shared by former SC judge, Justice Markandey Katju, eminent jurist Fali Nariman was present in England at that time. He had asked Lord Templeman (the senior judge in the majority) why no contempt action was taken. Lord Templeman smiled and said that Judges in England took no notice of personal insults.
Coming to the Indian context, if a mainstream publication replicates the 1987 precedent of Daily Mail with respect to a judgment or court proceeding, there are high chances of it attracting criminal contempt proceedings on the grounds of "scandalizing the court".
Even the most brilliant legal minds of the country will find it tough to accurately predict when can a criticism amount to "scandalizing the court".
Large room for subjectivity in criminal contempt
The Contempt of Courts Act, 1971, broadly deals with two strands of contempt - one emanates from willful disobedience of directions of the Court or undertaking made before the Court, resulting in civil contempt. The other, criminal contempt, includes acts which scandalize the court, lower the dignity of the court or interfere with the administration of justice.
As it is obvious, the determination of civil contempt is based on objective criteria, as there are concrete facts of the existence of a judicial order and its defiance. Even with respect to the ground of interference with the administration of justice, one can say that there is a considerable degree of objectivity.
However, the assessment of the ground of "scandalizing the court", depends, to a great degree, on the temperament and predilections of the judge.
Going by the definition of criminal contempt in Section 2(c) of the Act, a broad net has been cast, as the act need not even actually scandalize or lower the dignity of the court. Even an act, which tends to scandalize or tends to lower the dignity of the court can be punished. So, apart from giving a large room for subjectivity, the provision opens the door for a lot of speculation as well.
A brief analysis of some judgments on the point of "scandalizing the court" will reveal how its adjudication depends on the "hunch of the bench".
When a Chief Justice lectured a Chief Minister on Marxism
(E. M. Sankaran Namboodiripad vs T. Narayanan Nambiar, CJ M Hidayatullah, Justice G K Mitter and A N Ray, AIR 1970 SC 2015)
In 1967, EMS Namboodiripad, then Chief Minister of Kerala, held a press conference, launching a fiery criticism on the judiciary, in the backdrop of Courts interfering with land reforms legislations on the ground of violation of the right to property.
Speaking from the Marxist worldview which sees State as a tool of the oppressor class, EMS termed judiciary an "instrument of oppression".
"Judiciary is part of the class rule of the ruling classes. The judiciary is weighted against ..workers, peasants and other sections of the working classes and the law and the system-of judiciary essentially serve the exploiting classes. Even where the judiciary is separated from the executive it is still subject to the influence and pressure of the executive.... Judges are guided by individual idiosyncrasies, guided and dominated by class interests, class hatred, and class prejudices" - these were some of the statements.
In the High Court of Kerala, two judges - Justices Raman Nair and Krishnamoorthy Iyer - found the statements to be contemptuous, while Justice K K Mathew (later a judge of SC) felt that they were in the realm of fair criticism(an example of how criminal contempt is based on personal perceptions). He was sentenced with Rs 1000 fine or simple imprisonment for one month.
The Supreme Court judgment which confirmed the conviction of EMS is quite peculiar. The judgment authored by the then Chief Justice Hidayatullah is more of a commentary on what the judge perceived as the correct version of Marxism-Communism. CJ Hidayatullah devotes most of the judgment to explain what is Marxism and how EMS has misunderstood it. Marx never spoke against the judiciary, the judge said. The judge laboured a lot to state how EMS is ignorant of true Marxism, and that his statements were not based on a correct understanding of the ideology.
"Either he does not know or has deliberately distorted the writings of Marx, Engels and Lenin for his own purpose. We do not know which will be the more charitable view to take", the judgment stated. That seemed to be the basis for conviction!
The judgment even went to the extent of saying "The ends of justice in this case are amply served by exposing the appellant's ignorance about the true teachings of Marx and Engels (behind whom he shelters)". Therefore, a nominal fine of Rs 50 was imposed on him, sustaining the conviction.
Responding to the judgment, EMS sent a letter to the Kerala Law Times, stating "To my mind, the function of the Court is to interpret and administer law as it is, and not to pronounce their verdict on the various systems of philosophy in which litigants repose their faith."
What would have been the fate of the case had it been decided by judges with Marxist leanings? I will leave it to the readers to decide.
A Law Minister's criticism will not scandalize the Court?
(P N Dua vs V P Shiv Shankar, Justices Sabyasachi Mukherji and S Ranganathan, AIR 1988 SC 1208)
In 1987, P. Shiv Shankar, the then Union Minister for Law, delivered a speech at a meeting of the Bar Council of Hyderabad. He said that the Supreme Court composed of people from the elite class and had sympathies for the Zamindars. This, according to him, resulted in the SC's interpretation of the word 'compensation' in Article 31
"The Maharajas and the Rajas were anachronistic in independent India. They had to be removed and yet the conservative element in the ruling party gave them privy purses. When the privy purses were abolished, the Supreme Court, contrary to the whole national upsurge, held in favour of the Maharajas", he thundered.
He also said, quite uncharitably, that "Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court."
A lawyer, P N Dua, filed an application before the Attorney General seeking sanction to prosecute Shiv Shankar for contempt. On the AG declining sanction (with the respondent being the law minister), Dua approached the Court.
The statements of Shiv Shankar are similar to the views expressed by EMS, which resulted in the conviction for contempt against him. In fact, Shiv Shankar can be said to have been harsher in his expression.
Yet, the Supreme Court took a magnanimous view, and held that the statements did not amount to contempt; but added that some harsh comments were avoidable.
"..the speech of the Minister read in its proper perspective, did not bring the administration of justice into disrepute or impair the administration of justice. In some portions of the speech the language used could have been avoided by the Minister having the background of being a former Judge of the High Court. The Minister perhaps could have achieved his purpose by making his language mild but his facts deadly. With these observations, it must be held that there was no imminent danger of interference with the administration of justice, nor of bringing an institution into disrepute. In that view, it must be held that the Minister was not guilty of contempt of this Court".
The Court observed that P. Shiv Shankar was "making a study of the attitude of this Court"!
Contempt petition against Justice V R Krishna Iyer!
In 1982, a petition for initiating criminal contempt against former Supreme Court judge, Justice V R Krishna Iyer, was filed in the Kerala HC. The complainant, an advocate named Vincent Panikulangara, alleged that Justice Krishna Iyer had "scandalized the court" with his comments during a symposium on "judicial reforms". He had made comments such as "as an insider, there are many things I know which I should mention in public", "our whole judicial approach has a certain independence from civilized behaviour", "judiciary today is non-est" etc.
The HC held that the comments fell in the realm of "well-informed criticism".
"By pointing out the weak spots in the judicial system and alerting the people to the need for a change lest the people as a whole reject the system, Justice Iyer was alerting his audience to bestow serious attention to the problem. The comments made by him are not of a person who is vituperative or who wants to bring into disrepute the judicial system of this country, but of one who was exhorting the people for revolutionary change in the outlook concerning problems of the judiciary", the Court observed, refusing to issue notice to Justice Iyer.
As in the case of P Shiv Shankar, the stature of the speaker was a factor taken into consideration by the Court in ruling that there was no contempt.
Would the approach of the Court have been different in these cases if such comments were made by a layperson?
No special knowledge of law or working of the court!
(In Re :Arundhati Roy vs Unknown, Justices G B Pattanaik and R Sethi, AIR 2002 SC 1375)
In 2002, the Supreme Court punished writer-activist Arundhati Roy for contempt and sentenced her to one-day imprisonment.
She had written an article in the Outlook magazine, criticizing the SC judgment allowing the raising of water limit of Narmada Sarvoar dam. Though a complaint to take contempt action was filed with respect to that, the SC refrained from acting, observing that the "court's shoulders are broad enough to shrug off the comments".
Later, a dharna was held outside the Court, under the leadership of Roy and other activists, raising slogans ascribing lack of integrity to the judges. Contempt action was initiated for that.
However, what triggered the judges most were some comments made by Roy in her reply affidavit, which were as follows :
"On the grounds the judges of the Supreme Court were too busy, the Chief Justice of India refused to allow a sitting judge to head the judicial enquiry into the Tehelka scandal, even though it involves matters of national security and corruption in the highest places.
Yet when it comes to an absurd, despicable, entirely unsubstantiated petition in which all the three respondents happen to be people who have publicly -though in markedly different ways - questioned the policies of the government and severely criticized a recent judgment of the Supreme Court, the Court displays a disturbing willingness to issue notice.
It indicates a disquieting inclination on the part of the court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it. By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm."
This was beyond the tolerance of judges. Though the expressions of Roy were more reverential in tone when compared to the statements of P Shiv Shankar, the Court refused to apply the precedent of P Shiv Shankar, and distinguished it by saying that he was making a studied criticism of the Court and Roy had no "special knowledge" of law and courts.
"In the instant case, the respondent has not claimed to be possessing any special knowledge of the law and the working of the institution of judiciary. She has only claimed to be a writer of repute. The benefit to which Mr. P. Shiv Shankar, under the circumstances, was held entitled is, therefore, not available to the respondent in the present proceedings", the bench observed.
Calling judges 'fools' contempt
(M V Jayarajan v High Court of Kerala, Justices Vikramjit Sen & C Nagappan)
In 2011, a Kerala politician, MV Jayarajan was convicted for contempt for calling two HC judges "fools". Jayarajan's comments were in response to HC banning public demonstrations and protests. Even there also, the SC did not have much objection with Jayarajan saying that judges are "living in glass houses" and that their "judgments have value of grass". But the Court couldn't condone him calling judges "fools". The Court said that such comments addressed to a 'rustic, illiterate' crowd could incite feelings against the judiciary.
"Judges expect, nay invite, an informed and genuine discussion or criticism of judgments, but to incite a relatively illiterate audience against the Judiciary, is not to be ignored", the SC observed, sentencing him to four months imprisonment.
This judgment should ward off thoughts entertained by any journalist in India to emulate "Daily Mail" while criticizing the judiciary.
When a HC judge gets punished for scandalizing Court
The most curious contempt cases of the recent times is that of Justice C S Karnan, who is the one and only HC judge to get punished for contempt.
Known to be mercurial judge, Justice Karnan had a long history of judicial indiscipline. On May 9, 2017, a seven-judge bench of the SC sentenced him to six months imprisonment and stripped him of his judicial powers after observing that his public outbursts against SC judges amounted to "contempt of gravest nature".
While there is no denying that Justice Karnan's conduct was unbecoming of a judge on many occasions, the SC's use of contempt power in the case seemed to be a short-cut adopted in place of impeachment proceedings.
"The Supreme Court's order is unclear and not truly consistent with the Constitution. A judge of the HC or the SC can only be removed by a majority vote in the Parliament, as per Article 124(4). This is where the May 9 order becomes slightly tricky — while it orders that Karnan be removed from all his judicial duties, it does not clarify whether he is removed as a judge. Surely, taking away Karnan's powers and functions and admonishing him to prison amounts to removing him as judge for all practical purposes — which is a decision the Parliament, and not the judiciary, must take", commented Manasa Venkataraman in 'The Hindu' about the order.
Indira Jaising, Senior Advocate, commented that the contempt action against Karnan "sets a dangerous precedent where the Supreme Court can remove any judge of a high court or indeed of the Supreme Court in contempt powers and do indirectly what they cannot do directly".
The contempt order also imposed a blanket media gag on the publication of the further statements of Justice Karnan.
When comments are patently false
There are some cases where criminal contempt have been invoked with respect to false statements made to attribute ill-motives to the judiciary. In such cases, there is a verifiable, objective criterion - truth.
For example, the Delhi High Court had initiated contempt proceedings against journalist S Gurumurthy for suggestively tweeting that Justice S Muralidhar had granted bail to Karti Chidambaram as he was formerly a junior of Senior Advocate P Chidambaram. This was a false statement, as Justice Muralidhar was never a junior of P Chidambaram.
Later, Gurmurthy expressed apology for the tweet. He also faced another contempt proceedings for tweeting the link of a blog which suggested that Justice Muralidhar granted bail to Gautam Navlakha owing to his friendship with him. The author of the blog later told the Court that he had made the statements relying on misinformation. Gurumurthy also expressed apology and offered to tweet about it publicly. Accordingly, the case was closed.
Last May, in the case Re Vijay Kurle, the SC held three advocates guilty of criminal contempt for making scandalous allegations against the judges. In the contempt proceedings, they could not offer any material to substantiate their allegations, and this resulted in their conviction.
While cases such as above are based on the objective criteria of verifiable facts, the invocation of criminal contempt in cases of criticism is mostly rooted on subjectivity. It is essentially a battle of perceptions, waged on an uneven playing field, with the party wielding power being the aggrieved one. Even the defence of truth cannot come to the rescue in such cases, as criticism is a matter of opinion. The only defence could be that it was a "fair comment". But the effectiveness of pleading the defence of 'bona fides' - again a matter of perception- before the court, which itself is an aggrieved party in the proceeding, is highly doubtful.
What constitutes fair criticism?
A passage from P Shiv Shankar judgment helps us understand what the Courts regard as good criticism.
"In a democracy, judges and courts are subject to criticism, and if any reasonable argument or criticism in respectful language and tempered with moderation,is offered against any judgment as contrary to law or public good, no court would treat criticism as contempt of court".
In the recent decision in Re Vijay Kurle, the Court observed "if the allegations levelled go beyond the ambit of criticism and scandalise the Court then there can be no manner of doubt that such utterances or written words would amount to contempt of Court"
The problem here, at the cost of repetition, is that there are no objective criteria to assess when criticism translates to scandalizing the court.
The Courts have been generally tolerant towards academic criticism of judgments, such as those published in law journals and op-eds by lawyers, academicians, columnists etc. The judgments also emphasize the distinction between "well-informed criticism" and "ill-informed criticism". Relevant in this context is the recent observation made by the SC that a citizen must have some 'standing or knowledge of law' before questioning the capability of judges.
If a layperson, who may not have such "standing or knowledge of law" and who may not be proficient in legalese and sophisticated language, lambasts a judgment in a manner known to her, should that invite criminal contempt? Does this mean that every piece of "ill-informed criticism" is contemptuous?
In this age of social media, where people resort to trolls and memes to express their views, what will be the yardstick for "respectful language, tempered with moderation"?.
There are no real and clear answers.
Another confusing area is the judge-judgment dichotomy. Criticize the judgment, but don't target the judges - this is the principle adopted by Courts.
At the same time, the judgments also state that the contempt jurisdiction is not to protect the individual dignity of judges but to protect the institutions. The contradiction here is too apparent to miss.
In Re Vijay Kurle, the Court went to the extent of saying "No litigant has a right to question the integrity of a Judge. No litigant has a right to even question the ability of a Judge. When the ability, integrity and dignity of the Judges are questioned, this is an attack on the institution"
So, if one calls a judgment "stupid", it may pass off as criticism, but if one calls the judge "stupid", it might attract contempt (think Jayarajan case).
A classic case of abuse of criminal contempt is a 2019 judgment of Meghalaya High Court, which punished two journalists of Shillong Times, Patricia Mukhim and Shoba Chaudhuri for contempt over a report against the judiciary.
What provoked the contempt action was an article published in the "Shillong Times" under the caption "When Judges judge for themselves". The article was related to an order passed by the High Court regarding retirement benefit to judges. The Court also took note of some social media comments by Mukhim.
The glaring impropriety in the case was that Justice S R Sen, who was the subject of the criticism, was part of the bench which decided the case. The judgment was also authored by him.
In what could be indicative of the vindictive nature of the judgment, the Court imposed a hefty fine of Rupees 2 lakhs each on the parties and observed that the punishment will result in the automatic closure of the "so-called paper Shillong Times". The judgment was later stayed by the SC on appeal by the parties.
Despite the oft-quoted sentence in most judgments that contempt power is not for protecting the individual dignity of judges, the fact is that it gives judges a broad field to act on their subjective notions and personal perceptions. In other words, this creates a situation where the fundamental right to freedom of speech of an individual is at the mercy of judges.
As can be seen from the precedents on "scandalizing judiciary", there is no consistent pattern. What could be contempt to Judge A may not be contempt to Judge B.
In this backdrop, a revisit on criminal contempt is necessary, following the example of the United Kingdom, which abolished the offence of scandalizing the judiciary as form of contempt of court in 2013 based on UK Law Commission's recommendation that the law was vague and not compatible with freedom of speech.