In 2006, a report published by the Indian chapter of the international non-profit Transparency International and the Delhi-based Centre for Media Studies (CMS) drew the displeasure of a judicial magistrate in Jammu and Kashmir. The report, based on a survey of litigants across the state, was about the corruption in the J&K subordinate judiciary. The head of Transparency International and the CEO of CMS were issued notices under the provisions of the Contempt of Court Act, 1971. Eleven years later, the Supreme Court has quashed the notices on the ground that the subordinate courts do not have the power to issue warrants for contempt of court. But this technicality aside, the remarks of the three-judge bench led by Chief Justice J.S. Khehar, are significant. The court noted that a report based on public views regarding corruption may not invite contempt of court and such surveys, instead, give opportunities to address problems in the judicial system. For an agency that has often been accused of a thin skin in the face of criticism, the apex court’s verdict shows a welcome inclination to self-correct.
The contempt of court provision most often serves to keep the judiciary outside the ambit of public opinion. The judiciary’s view that such insularity is necessary to ensure its credibility as an impartial arbiter is understandable. But in times when the courts are playing an active role in shaping public policy — and also because the public has a general interest in the administration of justice — there are bound to be demands for making judges more accountable. These demands have acquired weight with charges of corruption against individual judges in the last five years or so. In 2013, in another poll by Transparency International, 45 per cent of those surveyed described the judiciary as corrupt. That year, Justice P. Sathasivam, before taking over as the Supreme Court Chief Justice, regretted that “the judiciary is not untouched by corruption”.
On Tuesday, the three-judge bench remarked that surveys of the judiciary were also ways to “understand society”. “Instead of taking offence at such surveys, the judiciary should look at them closely and find ways to remedy the problems,” the bench noted. The Contempt of Court Act is a colonial relic that does the judiciary’s reputation more harm than good. Its arbitrary use has a chilling effect on free speech, especially at a time when the space for dissent is seen to be shrinking. Much more remains to be done to bring the contempt of court provision in line with the demands of a modern democracy. Tuesday’s verdict could be a beginning.