Publish and be damned

What was at issue? A campaign had been started by the Commission for Judicial Accountability CJA by the Bhushan and Bhushan team et al asking for an explanation as to why a business was shifted to Justice Sabharwal8217;s residence however temporarily at a time when the Supreme Court was considering a large-scale demolition ordered by the Justice Sabharwal bench for land use violations. A further speculation was raised that the ultimate beneficiaries of the demolition would be Sabharwal8217;s sons whose investments in malls would be enhanced. There were also allegations of the UP government selling land to the Sabharwal family at reduced prices. Justice Sabharwal answered this by stating his lack of knowledge about the business being run from his house and denying the speculation. True or false, this information was in the public domain. When the House of Lords injuncted the publication of the globally available book Spycatcher in England, the Daily Mirror ran a banner headline: 8220;You fools8221;. English courts accepted the media8217;s verdict. No contempt notices were issued.

The contempt power is as awesome as it is awful. It provides no guidelines. Everything is left to the convicting judge. In a judgment, Justice Krishna Iyer exhorted that 8220;the Supreme Court and the high courts must vigilantly protect free speech8230; even against judicial umbrage8221;, from this 8220;vague and wandering jurisdiction8221;. Lord Atkin8217;s much quoted view that 8220;justice is not a cloistered virtue8221;, and must suffer public scrutiny is the flip side of Justice Sodhi8217;s order in the Mid Day case. The Contempt of Courts Act, 1971, allows 8216;truth8217; to be a valid defence in the public interest. Even the salutary procedure of consulting the law officers was not followed. In the Delhi High Court, a designated officer substitutes for the lack of an advocate general. In this case, the bench needed wise counsel.

Justice Sodhi8217;s convicting order is some 763 words of which 549 words are narrative and 214 the reasoning. The underlying logic is that singling out a former chief justice of India and attributing possible bias to him and the other judges who passed the order is contempt which undermines public confidence and suggests that the other judges were 8220;dummies8230; to fulfil the ulterior design8221;. In fact, nothing in the campaign was said that the other judges knew the facts 8212; even those that surfaced from Justice Sabharwal8217;s self-defence 8212; should be included. In law, Justice Sodhi simply says: 8220;There is sufficient case law on the subject and we need hardly add any further material to it. Suffice it to say, the Supreme Court in Haridas Das vs. Smt. Usha Rani Banik and ors.; Civil Appeal No.7948 of 2004, has clearly laid down the 8216;Laxman rekha8217; which we feel the publications have crossed. The publications in the garb of scandalising a retired chief justice of India have, in fact, attacked the very institution which, according to us, is nothing short of contempt8221;. With all the electronic help available, I have not been able to trace the Haridas Das judgment which was not even quoted by Justice Sodhi. Assuming it exists, it is hardly authoritative on the issue.

Earlier, the Supreme Court prevented the Mid Day journalists from being jailed. The Supreme Court will surely be more balanced. Until then, Justice Sodhi8217;s order should not serve as a precedent to be followed. In fact, the order does a disservice to the judiciary and its cause. There will always be speculation as to why the contempt was brought and in whose interest. It also does a disservice to Justice Sabharwal who will otherwise be remembered as a good judge. To add suspicion to alleged taint is hardly a satisfactory solution. Meanwhile, the public8217;s call for transparency remains.

The writer is a senior lawyer