Are judges special or is justice special? It’s an interesting question and not because it’s a tricky one. Actually, it’s the issue at the heart of the debate around the Law of Contempt. It’s been discussed before but two cases of contempt against the human rights lawyer Prashant Bhushan in the Supreme Court have brought it back into sharp focus.
The first contempt case, called the Tehelka case, dates back to 2009 and hasn’t been heard for the last eight years. Why in the middle of a COVID crisis, when the Supreme Court is only functioning virtually and many cases are rejected because there is “no extreme urgency”, has this case been given priority? When the Court cannot find time for the Citizenship Amendment Act or habeas corpus petitions from Jammu and Kashmir, are we to believe this case is more important?
Of course, the Court’s concerns are allegations regarding the judiciary and corruption, made by Prashant Bhushan and published by Tehelka. But if this has really scandalised the Court how come it didn’t act for 11 years? The second contempt case is mystifying. It arises out of one of Bhushan’s tweets commenting on a photograph of the present Chief Justice. The Court claims his tweet “brought the administration of justice in disrepute … undermining the dignity and authority of the institution of Supreme Court in general and the office of the Chief Justice of India in particular”.
These two cases have brought contempt of court back into focus and that’s the reason why the question I started with is important. As regards the cases themselves, they were heard on consecutive days last week (the 4th and 5th) and in both cases a three-judge bench presided over by Justice Arun Mishra reserved judgement. It’s expected in a week or 10 days. If good sense prevails he ought not to be sentenced. I now want to turn to what ought to constitute good sense in this matter. The answer to the question at the very start hinges upon it.
The concept of contempt is a centuries old British law abolished in 2013. At the time the British Law Commission said the purpose was not just “preventing the public from getting the wrong idea of judges … but where there are shortcomings it’s equally important to prevent the public from getting the right idea”. In other words, one intention was to hide judicial corruption. The concept, therefore, clashed with the need for transparency but also freedom of speech.
As far back as 1968, Lord Denning, Britain’s former Master of the Rolls, had this to say of the Law of Contempt: “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity … nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It’s the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest … we must rely on our own conduct itself to be its own vindication.”
In 1987, after the Spycatcher judgement, when the Daily Mirror called British Law Lords “You Old Fools” or, in 2016, after the Brexit ruling, when the Daily Mail called three judges “Enemies of the People” the British judiciary consciously and sensibly ignored the headlines and did not consider contempt prosecution. In fact, Lord Templeton’s comment on the Spycatcher headline is worth recalling: “I cannot deny that I am old; it’s the truth. Whether I am a fool or not is a matter of perception of someone else … there is no need to invoke the powers of contempt.”
A similar position was adopted in a 2008 lecture by Justice Markandey Katju: “If a person calls me a fool, whether inside court or outside it, I for one would not take action as it does not prevent me from functioning, and I would simply ignore the comment or else say that everyone is entitled to his opinion. After all words break no bones”.
More importantly, Justice Katju added: “The test to determine whether an act amounts to contempt of court or not is this: Does it make the functioning of judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court even if it’s harsh criticism … the only situation where I would have to take some action was if my functioning as a judge was made impossible … after all I have to function if I wish to justify my salary.”
I think that answers the question I began with. Whilst justice is important, judges must not take themselves too seriously. Even if their amour propre is offended, it does not mean the institution has been questioned or justice brought into disrepute. Judges deliver justice, they do not embody it. They should never forget their Court is supreme because it’s final not because it’s infallible. When they lapse they can be criticised, but of course, politely and fairly.
I hope the Supreme Court will bear this in mind when it pronounces on Bhushan’s two cases.
The writer is a senior journalist based in Delhi