Go easy on contempt

Two weeks ago, the Delhi High Court held four journalists working for the publication Mid-Day guilty of being in contempt of the court. The provocation was that they had written articles suggesting that a former Chief Justice of India had acted in a suspect manner, the suspicion being the accrual of pecuniary benefit in return for two separate rulings "" in one instance to his sons and in another to himself.

The High Court said the articles had tarnished the image of the highest court in the land because "the publications in the garb of scandalising a retired Chief Justice of India have, in fact, attacked the very institution which, according to us, is nothing short of contempt... we find the manner in which the entire incident has been projected appears (as if) the Supreme Court permitted itself to be led into fulfilling an ulterior motive of one of its members..."

In defence, two pleas were entered by the defendants. One was that, after the law was amended in 2003, truth is a defence when it comes to contempt""which is a question of fact. The other is that saying something about a judge "" especially one who has retired "" does not mean that the whole court has been maligned, which is a matter of opinion. Now that the court has held against them, the defendants should ponder the old rule in journalism that, even if you believe something to be true, it is wise to publish it only if the belief can be established as fact, even (and especially) if contested. One of the complications in the immediate case is that there is no established or mandated method for investigating a former Chief Justice of India in matters of corruption. This may be an odd position to be in, but that does not alter the reality.

In some ways, the situation is almost exactly equivalent to the doctrine contained in the infamous 41st Amendment Bill to the Constitution. That amendment was sought to be made at the height of the Emergency in 1975, by amending Article 361. But it was not pursued because of a ruling in the 39th Amendment case. The 41st Amendment had wanted to place the Prime Minister beyond all criminal investigation. The Supreme Court negatived that because it would go against the 'basic structure' principle laid down in the Kesavananda Bharati case. The instant case provides the Supreme Court with an opportunity to deal with this peculiar inconsistency, wherein a former chief justice has immunity for all practical purposes.

The second defence is even more problematic because it is the opinion of the court that the articles in question have maligned the entire court and that this constitutes contempt of court. There is some validity to the argument because the allegations relate to the Chief Justice when he was still in office and, therefore, it can be reasonably held that the court's reputation is involved.

Nevertheless, there is a case for not being very rigid when making contempt rulings, and for doing so when whatever has been said or written involves wilful recklessness with regard to the facts, or plain malice. After all, the esteem in which an institution is held depends not just on legal technicalities but also on the manner in which the people perceive it. The Indian people have come to regard the judiciary as their saviour. That imposes a responsibility on it, not just to demand respect but also to earn it in ways other than through strict rulings in matters of contempt.