Judiciary 038; free press

An independent judiciary and free press perform the vital functions of ensuring transparency and enforcing accountability of the wielders of public power.

An independent judiciary and free press perform the vital functions of ensuring transparency and enforcing accountability of the wielders of public power. In any liberal democratic society these two are natural allies. Yet, paradoxically the two seem to act as inveterate adversaries because of certain grave misconceptions about contempt jurisdiction. It is a settled law that criticism of a court judgement, however pungent or vigorous, does not constitute contempt provided dishonesty or extraneous considerations are not attributed. In that case the writer will have to justify his allegations by cogent evidence, now permitted by the amended Contempt of Courts Act, or face the consequences.

Again it is a fallacy that no comments or opinions can be expressed on the issues involved in a pending case. The rationale of the sub-judice doctrine is that judges should be able to discharge their functions of deciding disputes in an environment free from pressure, without their acts or orders during the progress of the case at every stage being subjected to continuous comment and criticism. However, the law does not prohibit a generalised discussion of a particular topic without commenting on the factual issues, which are pending adjudication. For example, the writ petition challenging the constitutionality of Section 377 of the IPC, which criminalises homosexuality, may be pending but that does not prohibit expression of divergent opinions on the subject. Again there may be a pending writ petition or a case in which the legality of euthanasia is involved. General public discussion of such issues cannot be prevented, provided there is no focused attempt to influence decision in a particular case. Any other interpretation would result in imposition of excessive and disproportionate restraint on freedom of speech and the freedom of the press and the right of the people to know and to be informed.

In a full bench judgement of the Delhi High Court, Justice H.R. Khanna held that a matter of great national importance could agitate vast sections of the population. Such a matter is bound to be discussed on a platform and in the press. The right to discuss being inalienable and the very essence of a free and democratic society, public discussion of that matter cannot necessarily be stifled because of the filing of a suit by an individual in a court of law.

What is essential is to strike the right balance between the competing values of freedom of the press and the right to unobstructed administration of justice. It is indeed a delicate balancing exercise.

Blues for Somnath

Judicial decisions, orders of tribunals or for that matter the Speaker8217;s rulings may be unacceptable to the aggrieved parties. It is their democratic right to criticise these orders as erroneous. But it is certainly not right to attribute extraneous motives. Speaker Somnath Chatterjee8217;s ruling to suspend CPM MP A.P. Abdullakutty for a day from the House may be flayed as unwarranted. However, to accuse him of discrimination, and that too by a party of which he has been a veteran member, is regrettable. The impropriety lies in casting aspersions on the constitutional office of the Speaker because his particular decision is unpalatable. Would the CPIM have accused the Speaker of discrimination if he had taken similar action against a BJP or RJD member?

The Speaker complained that he is attacked both from the Right and the Left. But that surely is testimony to his impartiality as a strict disciplinarian who is keen that the House should function effectively. Chatterjee8217;s plaintive remarks, 8220;I am going back with lot of pain and agony from this House8221;, reveal his deep hurt. Cheer up, Somnath. You may not be an aspirant for any office but you can always return to the Bar, your home ground, and tick off as a lawyer activist judge who crossed the lakshman rekha as you used to do as a Speaker. Mosin Menezes, one of India8217;s finest jazz musicians, may be graciously commissioned by the CPIM to compose a soulful tune, Blues for Somnath.