On Friday, when a three-judge Supreme Court bench initiated contempt proceedings against former judge Markandey Katju in court room number 6, even calling for Katju’s eviction from the room where he once passed orders, it marked a deeply troubling moment. In blog posts, Katju had criticised the apex court’s September 15 judgement in Kerala’s Soumya rape-murder case. The bench had exonerated the convict, Govindachamy, of the murder charge but sentenced him to life imprisonment for rape — in his blogs, Katju had questioned the wisdom of the judgement, its reliance on “hearsay evidence” in particular, and asserted that the convict was to be held culpable of the murder charge as well as rape. Katju went further. He also made personal comments on the “intellectual level of Supreme Court judges”. While dismissing the review petitions seeking reconsideration of its September 15 judgement, the court described Katju’s comments as an “assault on the judges and not the judgement”, and issued the contempt notice. This is the first time contempt of court proceedings have been initiated against a former SC judge. But the notice is troubling mainly because of what it says not about Katju, but about what is one of India’s most trusted and respected institutions. On Friday, the Supreme Court seemed far too easily “scandalised”. It appeared less capacious than we the people have come to count on it to be. In fact, in a series of judgements and observations, the court has expanded the boundaries of free speech and underlined that its shoulders are broad — and getting broader when it comes to criticism.
Certainly, Katju could have been more sober, less intemperate, in his criticism of the court. Restraint, it could be said, has not been his strong suit in many of the public interventions he has made even earlier — he memorably called “90 per cent” of Indians “fools” and last year, his comments describing Mahatma Gandhi as a “British agent” and Subhas Chandra Bose as “an agent of Japanese fascism” provoked disapproving resolutions by Parliament. Yet, for the court to invoke the Contempt of Court Act 1971 — which, despite amendments, remains a colonial relic relying on antiquated notions of pomp and majesty — against an individual’s criticism, does its own reputation harm. The contempt law sets out unclear boundaries. But a wise and mature reading of the law would be mindful of the chilling effect its arbitrary use can have on free speech and criticism of the judiciary in an open democracy.
That the court should show itself to be less forgiving is particularly disheartening in this moment. A growing culture of intolerance of dissent against the majoritarian common sense is stoking anxieties and fears. Notions of nationalism are being used to cramp and constrict the space for criticism. It is a time when the role of the judiciary as the fair and independent guardian of fundamental freedoms and liberties is especially crucial. And when the court and the executive are engaged in a consequential and bruising battle. For the highest court in the land to lock horns with an individual is a let-down in a time like this.
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