Debating Contempt of Court
By issuing a contempt notice to Justice Markandey Katju for his over-the-top criticism of its judgment, in the manner that it did, the Supreme Court has only diminished its institutional dignity. While Katju’s behaviour post retirement is not in keeping with the nature of the office he held, the contempt jurisdiction was not meant to be used like this.
November 2016 saw the unprecedented sight of a retired judge of the Supreme Court of India addressing the Court. Justice Markandey Katju was not appearing on behalf of anyone, but was making his submissions on the request of the Supreme Court itself, specifically Justices Ranjan Gogoi, Prafulla C Pant and Uday U Lalit, who were hearing review petitions against their judgment in the “Soumya murder case” (Govindaswamy v State of Kerala 2016).
What happened afterwards shocked the observers in the Court. After having rejected Katju’s arguments for imposing the death penalty on the convicts, the Court then proceeded to issue a contempt notice to him (Vishwanath 2016). While this took most of those present (including Katju) by surprise, an inkling of this could have been obtained by reading the cause-list, which made a mention of Katju’s blog posts (now deleted) that had criticised the Supreme Court’s judgment in this case. Once the Court dictated its order issuing notice,1 there was an exchange of strong words between Katju and the judges, before he was ushered out of the Court.
Since then, Katju has filed an affidavit apologising to the Supreme Court for the blogs (Indian Express 2016).
No one has emerged out of this episode with any credit to themselves.
Lowering the Dignity of the Office
Since his retirement as a judge of the Supreme Court, Katju has developed a reputation as a public commentator on sundry issues. To the unsuspecting public, used to retired judges quietly setting themselves up as arbitrators, tribunal heads or just enjoying retirement, this was new and unexpected. Whether it was expressing his opinions on the intelligence of Indians, secularism, Subhas Chandra Bose, M K Gandhi, and other subjects, Katju seemed to have an opinion on everything, every day. His blog “Satyam Bruyat”2 is supplemented by an active Facebook page and a Twitter account.
Retired judges of the Supreme Court have offered their opinions on important issues. They have participated vigorously in important debates. The names of Justices V R Krishna Iyer, J S Verma, B N Srikrishna and Ruma Pal come immediately to mind. Their writings and opinions on matters legal and social have been treated with respect, not just keeping their position in mind, but also the measured and informed nature of their interventions.
Some retired judges, such as Justices K Subba Rao, Baharul Islam and K S Hegde, took to electoral politics after their tenure. This attracted its share of controversy and some accusations that they have lowered the dignity of the Court (Gadbois 2011). In 2014, Justice P Sathasivam’s appointment as governor, immediately after his tenure as Chief Justice of India, was criticised in some quarters (Indian Express 2014).
The concern has been that these appointments and political activity might point to compromised independence in their judicial work, and might, send all the wrong signals to future judges. It is a concern that also informs the critique of “tribunalisation;” that post-retirement posts for judges have an unhealthy influence on the judiciary and can affect independence.
The problem with Katju was not that his independence was questioned in any way (even though he was appointed as Chairman, Press Council of India by the United Progressive Alliance II–led government in 2011), but that his comments and tendency to shoot directly from the hip seemed to be an effort to stay in the limelight in any way possible, at the cost of personal credibility and even that of the institution of which he had been a part.
The official reaction did not take long to present itself. The Lok Sabha moved a resolution to condemn his comments on Bose and Gandhi. He challenged it in court and lost (Justice (Retd) Markandey Katju v The Lok Sabha 2015).
His criticism of the Supreme Court’s judgment in the Soumya murder case, where the convicts were given life imprisonment instead of the death penalty on an assessment of the evidence, was clearly over the top. The point is not whether Gogoi’s reading of the law and evidence was right; the tone of the blog post suggested less measured intervention in public discourse and more shrill outrage.
But, should the Supreme Court have necessarily proceeded against him through contempt of court proceedings?
Supreme Court’s Reaction
The legal test for what constitutes “criminal contempt” is laid down in Section 2(c) of the Contempt of Courts Act, 1971 as any publication which “scandalises” or lowers the authority of any court. These are broad and general terms, but the Supreme Court has clarified that fair criticism of judgments is always permitted and that the defamation of a judge is different from committing contempt of court (Brahma Prakash Sharma v State of Uttar Pradesh 1953: paras 12–13).
It is hard to see how Katju’s blog, read in its entirety, could be held to have lowered the authority of the Supreme Court or scandalised it.3 At best, it was an attack on one judge of the bench (which the Court construes to be an attack on the whole bench). While one may conclude that the judgment in the Soumya murder case is wrong (for whatever reasons), it could hardly be an assault on the Supreme Court as a whole, let alone the judiciary.
Even apart from the legality of the Court’s contempt notice, there is a certain gracelessness in the way this exercise was carried out. If the Court felt, in good faith, that Katju’s blog post merited an explanation on the possibility of criminal contempt, the appropriate course of action was to have issued a notice to him, suo motu. Instead, the Court invited him to make his submissions, giving the impression that it was in fact taking his legal arguments seriously, dismissed the case, and, then, brought up the issue of the blogs.
While it made for good drama, it makes for very poor judicial process. It seemed to have been set up and arranged to humiliate Katju in Court. Rather than the Court protecting its institutional integrity, the Court seemed to have gone through with it to settle personal scores with Katju.
The Court cannot have it both ways. Either Katju’s critique was legal and academic, in which case it should have been heard and accepted or discarded with objectivity, or it was a contumacious diatribe, in which case the Court should have simply issued a contempt notice and heard any explanation by way of a defence. Having tried to do both, the Supreme Court has not covered itself in glory.
I have argued elsewhere that the criminal contempt law has no place under the Constitution of India (Kumar 2015). It is a colonial artefact, which does not, in the least bit, ensure the dignity of our courts. It has unfortunately been used to settle scores and silence the critics of the Court. It has even come in the way of the good faith reportage of corruption in the judiciary (Nair 2007).
Perhaps, it is time for the Supreme Court to adhere to Lord Denning’s words in R v Metropolitan Police Commissioner ex parte Blackburn (No 2) (1968)in dealing with criminal contempt:
Let me say at once that we will never use [the contempt] jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. 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. …. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.
1 In re Blog published by Justice Markandey Katju, dated 17 September 2016 titled “Soumya Murder Case,” Suo Motu Contempt Petition (Criminal) No 4 of 2016; In re Blog published by Justice Markandey Katju, dated 18 September 2016 titled “The Intellectual Level of Supreme Court Judges,” Suo Motu Contempt Petition (Criminal) No 5 of 2016 ( SCC Online, SC, 1258).
2 Available at http://justicekatju.blogspot.in/, viewed on 16 December.
3 For the legal test, see P N Duda v P Shiv Shanker (1988).
Brahma Prakash Sharma v State of Uttar Pradesh (1953): SCR, SC, 1169.
Gadbois, George H, Jr (2011): Judges of the Supreme Court of India, 1950–1989, New Delhi: Oxford University Press.
Govindaswamy v State of Kerala (2016): SCC Online, SC, 939.
Indian Express (2014): “Ex-CJI Sathasivam Is Governor, Jurists Say it May Lead to More ‘Political Intervention,’” 4 September, viewed on 16 December 2016, http://indianexpress.com/article/india/india-others/ex-cji-sathasivam-appointed-kerala-governor/.
— (2016): “Contempt Proceedings: Markandey Katju Offers Apology to SC,” 10 December, viewed on 16 December 2016, http://indianexpress.com/article/india/contempt-proceedings-markandey-katju-offers-apology-to-sc/.
Justice (Retd) Markandey Katju v the Lok Sabha (2015): Writ Petition (Civil) No 504/2015, decided on 15 December 2016.
Kumar, Alok Prasanna (2015): “The Contempt Notice against Arundhati Roy Is Yet Another Reminder of Why This Law Must Go,” Scroll.in, 30 December, viewed on 16 December 2016, http://scroll.in/article/778529/the-contempt-notice-against-arundhati-roy-is-yet-another-reminder-of-why-this-law-must-go.
Nair, Harish V (2007): “High Court Convicts 4 Mid Day Journalists of Contempt of Court,” Hindustan Times, 12 September, viewed on 16 December 2016, http://www.hindustantimes.com/delhi/high-court-convicts-4-mid-day-journa....
P N Duda v P Shiv Shanker (1988): SCC, SC, 3, p 167.
R v Metropolitan Police Commissioner ex parte Blackburn (No 2) (1968): QB, 2, p 150.
Vishwanath, Apurva (2016): “Supreme Court Issues Contempt Notice to Former Judge Markandey Katju,” Mint, 11 November, viewed on 16 December, http://www.livemint.com/Politics/s2FlperRbmOBBgXvPWFCtM/Supreme-Court-issues-contempt-notice-to-former-judge-Markand.html.
EPW looks forward to your comments. Please note that comments are moderated as per our comments policy. They may take some time to appear. A comment, if suitable, may be selected for publication in the Letters pages of EPW.