The News Minute | February 2, 2015 | 1.39 pm IST
In the 1970s, Communist leader EMS Namboodiripad had been convicted for contempt of court, and the court had imposed a Rs.50 fine on Namboodiripad for saying that the judiciary will side with the richer man at a press conference held in November 1967.
Upholding the Kerala High Court's judgment, the Supreme Court had said that EMS' statements were clearly “an attack on the judges calculated to raise a sense of disrespect and distrust to judicial decision and it had the tendency to weaken the authority of law and law courts.”
More than four decades later, a former MLA from his party, M V Jayarajan surrendered to the courts on Monday after the Supreme Court upheld his conviction by the Kerala High Court for calling judges 'idiots'. The SC however lowered the sentence to one month from the maximum punishment of six months. He will serve time in the Poojapara Central Jail in Thiruvananthapuram.
The case has once again triggered a debate on the idea of criticism and contempt of court in a democracy.
Courts should tolerate criticism, Programmes Director at Amnesty International India, Shemeer Babu said. In a press statement, Babu said that laws which criminalise expression that allegedly ‘scandalises’ the court must be repealed. He added: “If comments directly affect the reputation of individual judges, they can take recourse to civil remedies like any other person.”
Legal Researcher with Bengaluru-based Alternative Law Forum Smarika Kumar says that there is a structural problem with the law, and that such a law has no place in a democracy: “It reeks of a colonial attitude towards people, rather than a democratic one.”
However, she adds that while scrutiny is necessary, there is a subtlety to the law which needs to be understood in that that the “underlying rationale of the law is that you cannot not impute motive to the judge. In the present case (of Jayarajan), the question to ask is whether a motive has been imputed.”
The United Kingdom, on which India’s legal system is largely modeled on, has abolished the law.
Understanding contempt
In a blog post on the Centre for Internet and Society Gautam Bhatia explains what contempt entails: “Contempt as a civil offence involves willful disobedience of a court order. Contempt as a criminal offence, on the other hand, involves either an act or expression (spoken, written or otherwise visible) that does one of three things: scandalises, or tends to scandalize, or lowers, or tends to lower, the authority of any court; prejudices or interferes (or tends to interfere) with judicial proceedings; or otherwise obstructs, or tends to obstruct, the administration of justice.”
He says that contempt can take two forms: “first, obstructing the proceedings of the Court by acts such as disobeying an order, holding up a hearing through absence or physical/verbal disturbance etc… however, contempt also covers instances of what we may call “pure speech”: words or other forms of expression about the Court that are punished for no other reason but their content. In particular, “scandalising the Court” seems to be particularly vague and formless in its scope and ambit.”
Justice Markandey Katju, who is now a retired judge of the Supreme Court, also has similar views. In a blog post, he argues that people should be allowed to criticize the judiciary as long as they do not obstruct the functioning of the courts.
He also explains that the law came into being from England’s kings who were also dispensers of justice and arbiters of disputes. He also looks at the various cases that have come up over the years, and also at anecdotes, including a very interesting one about Fali S Nariman.
Katju says: “Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided the Spycatcher case (Attorney General vs. Guardian Newspaper, 1987 3 AllE.R.316) “YOU FOOLS”. Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majority, why the Judges did not take contempt action. Lord Templeman smiled, and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion.”
Quoting another case, Katju adds: “In Balogh vs Crown Court at Albon (1975) AC 373, the defendant told the Judge “You are a humourless automaton. Why don’t you self destruct?”. The judge smiled, but took no action.”
The Law Commission of India had invited comments on a 2014 consultation paper on media law. It also looked into whether scandalizing the court should be allowed to continue as a cause for invoking contempt of court provisions.
Perhaps the Indian Parliament could consider the American media and American citizens’ comments in March 2012 when the American supreme court was hearing arguments on the Affordable Care Act which would provide health insurance to Americans.
Columnist for the New York Times Maureen Dowd had written: “Justice John Roberts Jr.'s benign beige façade is deceiving; he's a crimson partisan, simply more cloaked than the ideologically rigid and often venomous (sic.) Scalia. Justice Scalia voted to bypass democracy and crown W [i.e. George W. Bush] President, so he expressed ennui at the idea that, even if parts of the health care law are struck down, some provisions could be saved: ‘You really want us to go through these 2,700 pages?' he asked, adding: ‘Is this not totally unrealistic?'”
She even called one of the judges a liar: “Inexplicably mute 20 years after he lied his way onto the court, Clarence Thomas didn't ask a single question during oral arguments for one of the biggest cases in the court's history.”
Tracing this reportage in an article called An American lesson in Court reporting, A G Noorani quotes the late American supreme court judge Justice Byron White. Speaking about journalism and restrictions on the media, White had once said that even though reportage was often flawed, it did not mandate a law. He said: “Even conduct of “free and fair elections” does not justify curbs. None can “dictate to the press the contents of its news columns or the slant of its editorials” — whether by Congressional laws or judicial “guidelines”. If men elected by the people to make laws cannot legislate press responsibility, still less can unelected judges who have no right to legislate.”
Food for thought?