If men were any more fragile they’ll have to be checked in with fragile items and a sticker on top at the airport to be able to fly
— Mahima Kukreja 🌱🌈✊🏽 (@AGirlOfHerWords) March 8, 2019
Paraphrasing a tweet that I read earlier today:
That, at any rate, seems to be the only conclusion one can draw from reading the bizarre order (and the equally disturbing record of proceedings) passed by a two-judge bench of that Court today, holding two editor and publisher of the Shillong Times guilty of contempt of court, fining them Rs. 2 lakh, and failing that, six months imprisonment and a ban (!) upon the newspaper.
What calumny did The Shillong Times level at the Learned Justice S.R. Sen – who, incidentally, issued notice for contempt of himself, and then also wrote the judgment finding the journalist in contempt (one might call that a classic case of being a judge in one’s own cause, but one wouldn’t, because that might be construed by the Learned Judge to be contempt)? In December 2018, the newspaper published reports captioned “When Judges Judge for Themselves.”
The gist of the first report was that the Learned Justice S.R. Sen had passed orders directing that the spouse and children of retired judges should be accorded various benefits, such as medical facilities; and that retired judges themselves were to be granted Rs 10,000 per month for their phone and internet expenses. The second report included a brief summary, ending with:In the recent order, Justice SR Sen, who is set to retire in March, wanted several facilities for the retired chief justice and judges, their spouses and children. Besides providing medical facilities for the spouses and children, the order stressed the need for providing protocol, guest houses, domestic help, mobile/internet charge at the rate of Rs 10,000 and mobile for Rs. 80,000 for judges”.
Learned Justice Sen took deep umbrage at these reports. A contempt notice was issued. The seriousness of the matter saw four senior counsel volunteer their services as amicus curiae. One of them filed an affidavit alleging that the report was in “bad taste, showed the court in “poor light”, was not “based on facts” and had been published “without research.” Learned Amicus went on to note that the report had been “aptly (sic) highlighted in colour”, and that “scornful” language had been used.
So far, so contemptuous. Immediately after recounting the contents of the affidavit in the judgment, however, Learned Justice Sen switched tack. Now the issue – as highlighted by another one of the affidavits – was that one of the contemnors – Patricia Mukhim – had taken “the help (!) of social media”, and unpardonably “gone to the extent of mocking (!) the judicial system of this country.” In one of the posts, she referred to a “judicial on slaught (sic)”, and in a second, compared her contempt hearing to the Day of Judgment (one may have thought that Learned Justice Sen might have been flattered to have been compared to Almighty God, but apparently not). In a third post, she asked whether “the legal counsel for the accused [should] be told by a judge to literally “Shut up” and not speak?” The affidavit then went on to mention (yet) another article titled “HC Judge should step down: HNCL”, but did not extract its contents. The Affidavit (also) made the argument that one of the contemnors had slandered the amicus curiae, “which is a dangerous attack to the entire legal fraternity and publishing such false report is scandalizing the Court. (sic)”
Having traversed this somewhat bewildering factual terrain, Learned Justice Sen then posed the crucial constitutional question, and answered it as pithily:
Learned Justice Sen then observed that “only true news should be published not the false report (sic)”, that Patricia Mukhim had earlier called for a bandh, proving that “this particular newspaper was always working against the Judges and Judicial System”, and that the media could not publish “false news.”
After so many references to false news, one was, of course, waiting with bated breath for Learned Justice Sen to expose the mendacity of The Shillong Times. This he proceeded to do forthwith, stating that the backdrop of the case had been that:
Thus did Learned Justice Sen nail the blatant lies told by The Shillong Times. Because, after all, The Shillong Times had only gone and written that:As for the protocol service/Meghalaya State Guest Rules of retired judges, it was informed to the court that the matter was under process by the GAD. According to the court, the Meghalaya State Guest Rule, 1991, was there at the inception of the High Court but suddenly it was withdrawn without consultation of the High Court by some officers. The government had issued a notification on October 4 this year whereby it had amended Rule 10(a) of the Meghalaya State Guest Rule, 1991. “It is unfortunate that such amendment was made without consultation with the High Court. Accordingly, the notification dated October 4, 2018, is hereby set aside,” the court said. The court also directed the GAD to make protocol service as well as the Meghalaya State Guest Rules “at the same tune and equal facilities to be provided as is applicable to sitting judges, including spouse and children”.
Having nailed The Shillong Times by characterising the issue in almost identical terms to how the newspaper had characterised it, Learned Justice Sen then concluded that:
The issue, of course, is that neither of the reports stated, as a matter of “fact”, that Learned Justice Sen “on the verge of retirement [was] taking steps for himself or his family” – in fact, the reports were consistent on the point that the order applied to retired judges and their families across the board. That apart, however, what the two reports set out were the facts of the proceedings – none of which were false. On the basis of these facts – which indisputably involved a judge passing very specific and concrete directions ordering the government (under pain of contempt) to provide for certain post-retirement facilities – the report was headlined “When judges judge for themselves.” In the course of this report, the similarity with another case where a judge on the verge of retirement had passed directions for benefits to retired judges was pointed out.
It should now be abundantly clear that Patricia Mukhim and The Shillong Times had no case to answer. Whatever contempt of court might be, publishing an account of a proceeding in which a judge orders the government to provide concrete benefits to retired judges and their families, questioning the putatively self-serving character of that proceeding through the headline, and pointing out a parallel situation from the recent past where judges closed to retirement have passed such orders, does not even come close to constituting contempt. Recall how high the threshold for contempt is: the statement must not only be false, but it must be of such a character that can proximately lead to impeding the course of justice.
Having disposed off the issue of the article, Learned Justice Sen now came to the issue of the fearsome social media posts. Suddenly switching tack and referring to himself in the third person, he observed that:
Having assumed that an allegation had been made about his conduct in court, and having emphatically denied it, one would imagine that Learned Justice Sen would promptly have initiated the normal evidentiary processes that come into play when one needs to adjudicate between two clashing factual accounts: he would, of course, subject himself to cross-examination on the point by the contemnor’s counsel. One would imagine.
Instead, Learned Justice Sen then set out the provisions of the Contempt of Courts Act, and then cited long extracts from various prior judgments, along with the Press Council Norms. Learned Justice Sen then expressed righteous anguish at the contemnor’s counsel argument that the proper procedure had not been followed in this case, as no formal charge had been framed against the contemnor, no evidence taken, and no right of reply granted. Learned Justice Sen considered arguments on “technicalities” to be “against the principles of professional ethics.” He then cited some more judgments to argue that contempt proceedings could be summary in character, and the normal rules of evidence dispensed with.
Having cited all of this, Learned Justice Sen then cited another article from The Shillong Times about another judicial order involving the starting of flights from the Shillong Airport, and took great pains to point out that, contrary to what the article said, the Supreme Court had not stayed the order of the Meghalaya High Court. What relevance this observation had to anything at all is unclear, as a quick Google Search reveals that the same error was made, inter alia, by LiveLaw, ANI, and The Hindustan Times. Learned Justice Sen then further observed that:
As is par for the course in this judgment, Learned Justice Sen did not provide any further justification for why this “derogatory comment” amounted to contempt of court. Having said all this, however, he came to the order:
In a judgment that had set a very high bar already, the last line performed a Fosbury Flop and went vaulting clean over the top. You might, on reading it, be wondering: what authority does the High Court have to “ban” a newspaper? The answer is “none at all”, and that’s an answer that could apply to many things going on in this judgment.
Sometimes, it seems, judges are so anxious to prevent being mocked, that they do things that accomplish that goal far more effectively than any journalistic Puck could ever hope to do. Apart from everything else in the judgment, this is reflected most clearly in the order issuing notice on contempt, which is extracted:
“Derogatory” to a judge. A pink colour highlight. And an outrage at the media daring to comment on a sub-judice matter. This is what it boils down to. In the words of Geoffrey Cox, Attorney-General for the UK, “what are you playing at?”
When this judgment is appealed, one can only hope that cooler heads in the Supreme Court will be equal parts amused and equal parts alarmed, and consign it to the scrap heap without much ado. And if such judicial pyrotechnics – coupled with what has been going on in the Supreme Court recently – do not prompt an urgent conversation about the dire necessity for doing away with this “boundless and boundlessly manipulable” contempt jurisdiction, one of the most stifling weapons against freedom of speech in contemporary India, nothing ever will.
Gautam Bhatia’s recent book is The Transformative Constitution: A Radical Biography in Nine Acts.
This essay was first published here