In a judgment delivered on January 2, just a day before his retirement, the Chief Justice T. S. Thakur, sitting along with Justice Khanwilkar, set aside a judgment of the Delhi High Court that had sentenced the editor, a journalist, printer, publisher and cartoonist of Mid-Day to four months in jail. Although this particular case had a relatively happy ending, it is a perfect example of how contempt powers are abused by the judiciary.
Since it has been nine years since the first judgment, it may help to recall the facts before moving to the judgment.
In May 2007, Mid-Day published a series of news reports and a cartoon alleging that the sons of then recently retired Chief Justice of India Y.K. Sabharwal had profiteered from the sealing drive that was ordered in Delhi by their father during his tenure as a judge of the Supreme Court. The sons had apparently entered into agreements with the owners of malls and commercial establishment just before the Supreme Court ordered the sealing drive.
This drive drove businesses out of residential areas and created a sudden and urgent demand for office space in malls and other commercial property. The newspaper also alleged that the sons were carrying out the business from their father’s official residence.
The newspaper also published a cartoon featuring a man sitting on the sidewalk saying “Help! The mall is in your court”.
The news reports and the cartoon were brought to the attention of the court by lawyer R. K. Anand who urged the court to initiate contempt proceedings against the paper for lowering the image of the judiciary. (Two years later, Anand was pronounced guilty of committing contempt of court for attempting to influence proceedings in the Sanjeev Nanda case.) A bench comprising Justice R.S. Sodhi and Justice B. Chaturvedi took suo moto cognizance of the case and initiated contempt proceedings against the newspaper.
The case provoked quite an outcry in the media because several people believed the report to be true. Moreover, Sabharwal had already retired in January, 2007 which meant that he was a private citizen at the time the report was published and was no longer a judge of the court.
During the hearings, the newspaper took a two-fold defence. It first filed an affidavit where it argued that its reportage was targeted only at Justice Sabharwal as an individual and not against the court itself as an institution. It also apologised to the court if its reportage gave the impression that it was maligning the institution as such. An extract of the affidavit is reproduced as follows:
The Article which was published was intended to bring to light such impropriety by Mr. Y.K. Sabharwal and was not intended at all to undermine or malign the Judiciary of India or any other Judge of the Honble Supreme Court of India or of any other court in India. If our articles created any impression on anyone that we were or were intending to malign the judiciary or any other Judge, we sincerely apologise for the same. I most respectfully submit that I have the utmost regard and respect for the majesty of law and the Court of law. The Article in question published by Mid-Day was not intended to undermine the authority of law or lower the image of judiciary or with any intention of interfering with the administration of Justice.
The second rung of the defence was that the report was truthful and that truth was a permissible defence in contempt proceedings.
The Delhi High Court wasn’t moved by this defence and in a rather short judgment, dated September 11, 2007 found the journalists guilty of contempt of court because their articles and cartoon had attacked the Supreme Court and lowered its image. In the words of the court:
We find the manner in which the entire incident has been projected appear as if the Supreme Court permitted itself to be led into fulfilling an ulterior motive of one of its members. The nature of the revelations and the context in which they appear, though purporting to single out former Chief Justice of India, tarnishes the image of the Supreme Court. It tends to erode the confidence of the general public in the institution itself.
In a separate order, the Delhi High Court sentenced the four accused to a jail term of four months. This sentence was stayed by the Supreme Court towards the end of September, 2007. It then took the court almost a decade to hear final arguments and overrule the High Court. Meanwhile, Justice Sabharwal passed away in 2015 with almost every obituary making reference to the controversy involving his sons.
In its judgment of January 2, the Supreme Court overruled the Delhi High Court on a jurisdictional issue. It interpreted Article 215 of the Constitution to conclude that the Delhi High Court could only take cognisance of contempt committed against it or courts subordinate to it.
In other words the Constitution did not give High Courts the power to take cognisance of contempt against a superior court like the Supreme Court and thus the Delhi High Court’s judgment was over-ruled. This is a rather obvious argument which was never addressed in the High Court’s judgment.
Although the four month sentence was stayed in 2007 and the judgment was ultimately over-ruled in 2017, the damage had already been caused. The contempt order in 2007 chilled any criticism of Sabharwal, foreclosing the possibility of any media campaign to have him investigated.
The Supreme Court and High Courts have previously used contempt powers to chill the media when they tried to hold the judiciary accountable. The modus operandi is very simple. A High Court indulges in sabre rattling by issuing a contempt notice or finding a media outlet to be in contempt and then the Supreme Court steps in to stay the order temporarily without ruling on the merits for several years.
Nobody goes to jail but the reporting gets killed at the right time. This was the modus operandi followed even in the Karnataka High Court case back in 2003 when contempt notices were issued against 56 journalists from 14 media establishments for reporting on an alleged sex scandal involving judges of the High Court. One of the High Court judges who issued the contempt notice was Justice T. S. Thakur. In that case too, the Supreme Court stayed the notices but blasted the media for its reporting. A final judgment is yet to be delivered in that case.
The Hoot’s 2007 link: http://www.thehoot.org/media-watch/law-and-policy/tarnishing-the-image-2683
The author is a Research Associate at School of Law, Singapore Management University.