When does criticism become contempt?

The apex judiciary has been in turmoil over the past few months due to divergent views of judges regarding the administration of justice. Whether the allocation of cases by the Chief Justice of India (CJI) was arbitrary or not has given rise to differences of opinion among judges of the Supreme Court. In a sense, this amounts to criticism of the CJI’s style of functioning from within the judicial echelons.

The SC tolerates fair criticism about its institution from outside but, for the first time, there is censure from within its own fraternity. Does the Supreme Court’s silence over the appropriateness of the judges’ public articulation of angst amount to evolved maturity?

The apex court views adverse remarks from non-legal quarters with lower tolerance but accepts the same from its fraternity. It believes that criticism from non-legal sources do not hold weight because they are not adequately knowledgeable about judicial matters. In 2002, the SC pulled up eminent writer Arundhati Roy for her remarks over its Narmada dam judgement.

Stung by her affidavit in its contempt proceedings against her, in which she expressed no remorse, the judgement was laced with a condescending tenor. The court passed a mitigated sentence on the premise that she was a woman and that better sense and wisdom will prevail in the future.

The SC was impelled to punish her for contempt because she did not possess any special knowledge of law and its institutional working other than being a writer of repute. Therefore, according to the court, she was not eligible and had no locus to question and criticise the judiciary.

The court examined several precedents, particularly the rationale in PN Duda vs P Shivshankar, wherein contempt proceedings were dropped against the alleged critic and distinguished it from the facts in the Arundhati Roy case. The court concluded that those case laws would be inapplicable to the facts of her case and she could not be pardoned.

The court’s rationale seemed to be grounded in the perspective that fair criticism of the judicial process can be accommodated only if it is made by people erudite in law and the judicial process. Those well-versed in the discipline of law can take liberties with the judiciary to level criticisms but others cannot do so.

Relying and quoting from PN Duda vs P Shivashankar, the court observed that “fair criticism of the conduct of the judge, the institution of the judiciary and functioning may not amount to contempt if it is made in good faith and in public interest.”

The court pointed out that persons responsible for comments, their domain knowledge related to the remarks and their intended purpose are to be taken into account. However, the court observed that not all people could be permitted to comment in the name of fair criticism.

Any remark would be contemptuous if made with an aim to effect a “destructive attack on the reputation and credibility of the institution and it undermines the public confidence in the judiciary”. In PN Duda vs P Shivshankar, contempt was not pressed as the critic — P Shivshankar — was a former high court judge and a minister of law and justice.

Limits of criticism

The judgement is relevant in the context of the present situation as it clearly lists out the acceptable and unacceptable limits of criticism. It delineates to what extent, within the ambit of the law of contempt, there could be criticism from within the legal fraternity.

Further, the assessment should be based on the Supreme Court’s track record in earlier cases which deal with contempt from within and outside the judiciary. Did the conduct of the apex court judges over the past few months violate the code of conduct laid down for Supreme Court and high court judges at the 1999 Chief Justices Conference?

Clause 8 of the code states that a judge must not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination. Similarly, Clause 9 mentions that judges are expected to let their judgements speak for themselves. They are not to give interviews to the media.

Invariably, textual silences in the Constitution of India lead to embarrassment and confrontation among and within constitutional organs. The way forward is a quick recourse to Presidential reference as happened over the functioning of the collegium or a constitutional amendment or law to clarify the CJI’s position rather than leave it to speculation over conventions and practices. Today, the CJI and his brother judges are both floating in unchartered space, and that does not augur well for the judiciary and for legal governance in India.

(The writer is an Associate Professor at the School of Law, Christ Deemed to be University, Bengaluru)