Justice, Speech and Selective Outrage: The Supreme Court’s Contempt Dilemma

On May 30, a Supreme Court bench headed by the Chief Justice of India initiated suo motu criminal contempt proceedings against Ajay Shukla, a Chandigarh-based journalist, for posting a video on YouTube allegedly containing scathing and scandalous remarks against some senior judges of the Supreme Court.

The bench observed that though the Constitution guarantees to every citizen the right to freedom of speech and expression, this is subject to reasonable restrictions and that such a right does not permit someone to defame a judge or bring into disrepute the institution of the judiciary. Having said so, the court directed that the offending video be taken down forthwith. It also asked the Attorney General and the Solicitor General to assist the court on the next date of hearing. Though the video is no longer available, it is widely believed that contain some allegedly objectionable remarks against Justice Surya Kant, who is next in line for the Chief Justiceship, and Justice Bela M. Trivedi, who retired mid-May.

It may be stated, at the very outset, that the dignity, majesty and honour of the Supreme Court, or for that matter any court of justice must be protected at all cost by every person including by the Supreme Court itself. That said, fair criticism of a judicial decision and the conduct of a judge – provided it is done in good faith and on accurate facts – also needs to be equally protected. In this background, while no one can question the right and the prerogative of the Supreme Court to initiate criminal contempt proceedings against Shukla, the action taken has given rise to certain questions.

Not very long ago, highly objectionable and vicious remarks were made by Nishikant Dubey, a Lok Sabha member of the ruling party, against the then CJI, Justice Sanjiv Khanna. Dubey held him singularly responsible for all the alleged ‘civil wars’ in the country. He also alleged that the Supreme Court was taking the country towards anarchy. These remarks were not only highly toxic and outrageous, they had the potential to rock the very foundation of our judicial system and erode the people’s faith in the judiciary and almost bordered on ‘blasphemy’.

And yet, even though the fountain head of the judiciary was personally targeted, it neither caused any stir nor a ripple. There was a sphinx like silence. No judge deemed it fit to issue any suo motu criminal contempt notice against the errant MP. It was the Supreme Court Bar Association which raised its voice, and urged the Attorney General to grant consent for initiating contempt proceedings against Dubey. The AG neither on his own nor on the request of the Bar Association has till date given or declined to give his consent. This, despite the fact that he as the first law officer of the country, has a duty to uphold the dignity and majesty of the court of which he is an integral part.

It ultimately fell on the lot of Justice Khanna himself to give a befitting response to the likes of Dubey. Though the bench headed by him dismissed a petition which sought contempt action against the MP, he gave a very measured and dignified response to him. Holding that the comments were highly irresponsible and reflected a penchant to attract attention by casting aspersions on the Supreme Court and its judges, he wrote that the courts are not so fragile as flowers to wither and wilt under such ludicrous statements. He further observed, “We do not believe that the confidence and the credibility of the courts in the eyes of the public can be shaken by such statements”. Kudos to Justice Sanjiv Khanna for such a befitting response.

Going by media reports, Justice Bela Trivedi has not been given a farewell by the Supreme Court Bar Association. The CJI is reported to have expressed his disapproval over the decision of the Bar Association, and so has Justice A.G. Masih, who said that tradition must be followed. It is for the first time in the history of the Supreme Court that such a tradition has been broken. The bar, it is said, is the judge of the judges. It is not for nothing that Justice Bela Trivedi has been denied the honour of a farewell by the bar. The question is why did things come to such a pass? It should set both bench and bar thinking. Undoubtedly, a long standing tradition has been broken but, then, judgeship is not a blank cheque. It comes with responsibility. The bar not only helps judges make the justice delivery system work, it also acts as a watchdog. The bar has, by its action, sent a loud and clear message.

It is time for judges to remember that they too are under watch. They may, in a given case, fail to grasp some suspected hidden meaning of a column written in English by an Oxford educated professor and leave the job of deciphering it to some police officer, and that too not from a particular state. But if they fail to take action against a minister who made a highly objectionable statement in simple and understandable Hindi, it does raise eyebrows. It is in such matters that the bar has to play its role. And, if it does play its role, there should be no protest.

Rekha Sharma is a former judge of the Delhi high court.

This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been updated and republished here. To subscribe to The India Cable, click here.

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