Karnan vs Karnan

Justice Karnan, beyond his quixotic and burlesque judicial behaviour, was beginning to mean different things to different people. To most, he was obviously and insistently asking for it. So, when the seven-judge bench of the Supreme Court headed by the Chief Justice finally and unanimously convicted him to six months’ imprisonment for contempt of court, it did not come as a surprise, or a day too soon. The maverick High Court judge’s recalcitrance, rendered in calibrated instalments in full public view, was making a laughing stock of the judiciary. His serial taunt of the highest court of the land was becoming an embarrassment all round.

To some others he seemed to be acquiring a bit of an underdog image, even a semblance of an unlikely David pitted against the Goliathan apex court, even if he went about his case in a shoddy and ham-handed manner. Maybe there was something to his grouse about being discriminated against as a Dalit? After all, Dalits are discriminated against in almost all walks of life, and the judiciary need not be an exception. Maybe, again, his charge of corruption in the judiciary was not all that absurd, even if the manner of his making it was reckless and irresponsible? After all he is not the first to make the allegation? But the way he went about it all was so ludicrously self-defeating that his case ended up looking like one of Karnan versus Karnan.

Yet others saw a scheming method in the madness and the judge’s tantrums as a guise for astute identity politics leading up to something—exactly what it was is not clear yet. Justice Karnan’s defiance, in this view, was no naive or impetuous belligerence but a carefully scripted act, the real intent and purpose of which is yet to emerge. He has not disclosed his hand, and when he does the reasons and motives will fall in place.

The Supreme Court verdict has been largely welcomed but also critiqued on some substantive and some specious counts. While it is recognised that the court—as a “court of record” under Article 129 of the Constitution with “the power to punish for contempt of court” and, again, with “all and every power” for “the investigation or punishment of any contempt of itself” under Article 142 (2)—acted well within its powers and the constitutional framework, since the matter related to a High Court judge, there were, in the informed public discourse on the case, jurisdictional concerns and a strand of opinion that it was better left to the political establishment to oust him from service through impeachment proceedings in Parliament.

Another thought was whether it would have been more expedient to let matters be until Justice Karnan retired next month, obviating the need for a judgment against a sitting judge, but then that could have been seen as weakness or pussyfooting by the court when it came to a fellow judge being the contemner, and against the principle of equality before the law. These views aired and discussed in the public sphere were not by way of gainsaying the verdict of the Supreme Court but reflected the concern and engagement in social circles with this unprecedented situation in our judicial history. The collegium system of judicial appointments and the criteria adopted for elevation of a judge to a High Court were, once again, collateral concerns on the sidelines of this case.

The two big issues the Supreme Court verdict brings to the fore, which have a critical bearing on democracy and freedom of speech, are, one, whether courts should, in this day and age, be resorting to criminal contempt proceedings at all and, two, and more crucially, the prohibition as part of the order against the press reporting Justice Karnan’s statements—effectively a gag order. Many commentators, including in legal circles, have accepted or seem reconciled to the first but expressed their reservations or disapproval of the second. But the two are in a sense tied together because violation of the gag order could again be cause for contempt action by the court.

Indeed, this whole business of criminal contempt is messy and antithetical to free thought and expression, not least because one is ever on unsure ground about what constitutes the offence. Even where it is not a specific ban as in this Supreme Court order, it exerts a nagging virtual pressure of pre-censorship, or pre-emptive censorship, on the journalist. The sword of criminal contempt hangs over the press even as it goes about discharging its legitimate function of informing the people about the process of justicing in our democracy. Surely, demystifying the judicial process does not detract from or, far from it, scandalise the judiciary. If anything it enhances the institution’s prestige and democratic credentials. Decriminalising contempt has been a long-standing demand of the fourth estate, to unfetter the press in this respect and enable it to report and comment about this vital institution without fear or favour.

Justice Ajit Prakash Shah, former Chief Justice of the Delhi and Madras High Courts, in his illuminating address at the convocation of the Asian College of Journalism (ACJ) on May 3, World Press Freedom day, barely a week before the Supreme Court judgment against Justice Karnan, , weighed in strongly against the resort to criminal contempt action by courts in general. “You must,” he exhorted his audience, comprising primarily journalism diplomates, “ensure that the press is permitted to have its fair share of criticism and call out the courts when they ought to be. Courts, on their part, must be more restrained in their use of contempt proceedings as a tool. When you as journalists believe such restraint is not being exercised, you must point that out… any fear that the court may invoke contempt proceedings must not hold you back. It is your duty, your responsibility, your obligation, to ensure that the court is informed of its poor judgement. Indeed the Supreme Court itself has said that fair comment of this nature is protected under the right to freedom of speech and expression, and the press must use this protection to the fullest, to balance the power of the court.”

That last observation about the press balancing the power of the court, interestingly, also suggests (at least in its best interpretation) that the press, as the fourth pillar of democracy, has agency in the separation of powers envisaged in the Constitution. The executive, the legislature, the judiciary and the fourth estate become, de facto , mutually countervailing forces thereby providing the checks and balances among these institutions that make for a healthy and vibrant democracy. Exercise of criminal contempt against the press upsets this delicate balance.

Briefly touching on the historical rationale for courts taking recourse to the tool of contempt, Justice Shah alluded to Alexander Hamilton’s TheFederalistPapers in which his reading of the judiciary is as the “weakest” and “least dangerous” of the three traditional arms of government. Because while the executive “holds the sword of the community” and the legislature “commands the purse” and “prescribes the rules by which the duties and rights of every citizen are to be regulated”, the judiciary “has no influence over either the sword, or the word or the purse… neither force nor will, but merely judgement…”

Shorn of any powers or control, Justice Shah seemed to infer, “when courts believe that their effectiveness is under threat, they resort to using contempt as a weapon, whenever the court perceives that some statement is contemptuous.” But the judiciary today is not anywhere near as effete as projected by Hamilton. It has power and teeth. “Judicial excess” and “judicial activism” are recurring themes of, real or imagined, concern today, and there is a growing feeling, including in the legal profession, that judicial activity and pronouncements must be held accountable to the letter and spirit of the Constitution. The implications of a powerful judiciary untethered to the Constitution have seldom been posed as sharply as by Robert Bork, former Justice of the United States Court of Appeals for the District of Columbia Circuit. “Once the justices depart, as most of them have, from the original understanding of the principles of the Constitution,” he observes, “they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills. Yet when it rules in the name of the Constitution, whether it rules truly or not, the court is the most powerful branch of government in domestic policy. The combination of absolute power, disdain for the historic constitution and philosophical incompetence is lethal.”

Justice Bork does not stop there, but goes on to ask: “Who is to protect us from the power of judges? How are we to be guarded from our guardians? The answer can only be that judges must consider themselves bound by law that is independent of their own views of the desirable. They must not make or apply any policy not fairly to be found in the Constitution or a statute. It is of course true that judges to some extent must make law every time they decide a case, but it is minor, interstitial lawmaking. The ratifiers of the Constitution put in place the walls, roof, and beams; judges preserve the major architectural features, adding only filigree.”

In his convocation address at the ACJ, Justice Shah pointed out that “scandalising the court”, which along with interference in or obstruction of administration of justice becomes the main ground for criminal contempt in India, had not been invoked for prosecution in the United Kingdom since 1931 and that courts both there and in many other commonwealth countries have held that “scandalising the judges… is virtually obsolescent… and may be ignored”. He cited instances of how courts in the U.S. and England had prioritised freedom of expression even when it might have been directed against them or piqued individual judges. In Bridges vsCalifornia in the U.S., when a labour leader called a court ruling “outrageous” and threatened to call a strike against it, the court, instead of hauling him up for contempt, made what Justice Shah called “an important observation that our own judges would do well to pay heed to”. The court said: “[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion and contempt much more than it would enhance respect.” He might have added that the court in this case also held that striking being entirely legal the argument that threat of a strike would illegally intimidate a judge or subvert justice was untenable.

The Spycatcher case

Another more spectacular instance, also cited by Justice Shah in the course of his address, was that of the Spycatcher case in the U.K. where The Guardian and The Observer were restrained from publishing excerpts from the memoirs of a British secret agent who claimed that MI5 had conspired to assassinate President Nasser of Egypt to subvert the Harold Wilson government.

However, other publications not so specifically restrained, such as The Independent , The London Daily News , TheLondon Evening Standard and The Sunday Times , got the same material separately and published it. When they were proceeded against and found guilty of contempt by the House of Lords because they had in effect made the injunction against publication infructuous, the judgment was pilloried in the press. Daily Mirror even published photographs, topsy-turvy, of those who had placed the injunction with the caption: “You Fools!” But there were no contempt proceedings. Justice Shah narrated the anecdote of the eminent lawyer Fali Nariman, who was in London at this time, asking Lord Templeton why Daily Mirror was not hauled up for contempt. Lord Templeton’s response was, as Justice Shah put it: “….that judges in England did not take notice of personal insults, uttered without malice. After all, he said, he was old, and though he believed he wasn’t a fool, someone else who sincerely thought he was, was entitled to his opinion!”

In Landmark Communications vsVirginia in which the U.S. Supreme Court reversed a lower court’s conviction of the publisher of The Virginian-Pilot for reporting an inquiry by the Virginia Judicial Inquiry and Review Commission and naming the judge whose conduct was being investigated despite a State statute against disclosure of such proceedings, the court held that “the operations of the courts and the judicial conduct of judges are matters of utmost public concern”. The court endorsed Justice Frankfurter’s prior statement that “speech cannot be punished when the purpose is simply to protect the court as a mystical entity or the judges as individuals or as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed”.

‘Haze of glory’

Abstracting and insulating courts and judges from close public scrutiny by creating a mystique around them may have been the initial agenda. The U.K. Law Commission report of 2012 recommending the discontinuance of the crime of contempt refers to the law of criminal contempt being necessitated by the need to create a “haze of glory”’ around courts and judges in 18th century England. It was important that courts were not just universally impartial but also perceived to be so. So, the Law Commission noted: “This language suggests that ‘to be impartial’ and ‘to be universally thought so’ are two independent requirements implying that the purpose of the offence is not confined to preventing the public from getting the wrong idea about the judges, and that where there are shortcomings, it is equally important to prevent the public from getting the right idea.”

In this scheme, truth becomes dispensable, even a liability, as much in criminal contempt as in libel. The origins of truth not being acceptable as a defence in libel, the incredible idea that the truth of a libel aggravated the crime or that “the greater the truth the greater the libel”, are ascribed to the observation by Chief Justice Holt in 1704 (when he gave seditious libel sweeping scope in England) that “if men should not be called to account for possessing the people with an ill opinion of the government, no government can subsist; for it is very necessary for every government that the people should have a good opinion of it”. Governments have since had to learn to live with an adversarial press and the opposition of political parties and the people. Courts have perhaps been slower to reconcile to, or accept, critical opinion and comment. The notion of scandalising the court seems to be in part a vestigial carryover of that of scandalum magnatum , which meant taint of peerage or a judicial officer in that class in early English law.

Truth as defence

In India, it was only relatively recently, in 2006, that the Contempt of Courts Act, 1971, was amended to introduce, in the form of Clause (b) in Section 13 of the Act, the idea of truth as defence in a case of criminal contempt. The clause reads: “The court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide .” Even so, as Justice Shah pointed out, this did not help the employees of Mid-Day from being sentenced for contempt of court by the Delhi High Court “for publishing content that portrayed a retired Chief Justice of India unfavourably. Mid-Day raised the defence of truth and good faith but was not entertained.”

Apart from, and in addition to, the obvious anachronism of criminal contempt law, the restraint on prepublication accompanying the Supreme Court order on Justice Karnan makes it particularly problematic. The replacement of prepublication censorship with post-publication consequence was the result of a protracted struggle in England in the 17th and 18th centuries. The end of licensing, when it lapsed in 1695, after the overthrow of the Stuarts in 1688, marked this shift, although newspapers were forbidden from reporting parliamentary proceedings well into the late 1700s. Meanwhile, though, the ground for a freer speech dispensation was being prepared by the growing assertiveness of a nascent press. In 1644, John Milton’s “Aeropagitica” gave a conceptual fillip to freedom of expression and advanced the idea of the self-righting principle. Milton wrote: “Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?”

Fast-forwarding to the present, as recently as January this year, a Supreme Court bench headed by Chief Justice J.S. Khehar and also comprising Justice D.Y. Chandrachud, disposing of public interest litigation petitions by the non-governmental organisation Common Cause pending since 2013, underlined the rights of the press under Article 19(1) (a) and held that pre-broadcast or prepublication censorship is no business of the court and that all grievances were to be subject, post-publication, to the law of the land. So it is not as if there is a prior restraint mindset in the court when it comes to freedom of speech or expression, including of the press.

Even so, it becomes necessary for the freedom of the press, which is constantly a work in progress, to be alert to and challenge, where possible and where the press has the standing to do so, such gag orders as the one that came with the judgment on Justice Karnan. Interestingly, ever since the U.S. Supreme Court ruled in 1976 that orders restraining the press from putting out information about a criminal case were “improper”, courts have tended to restrain the source of the information rather than the publication of it.

Such a tactic or approach sparing the press per se a gag order was, of course, unlikely to have worked in the case of Justice Karnan and hence ostensibly the prior restraint on the press itself, apart from the fact that the press here does not enjoy the equivalent of the First Amendment rights of its U.S. counterpart. But then, again, the practicality and effectiveness of prior restraint of the press in the face of an uncontrollable and freewheeling social media space is, again, debatable—especially if the source in question here were to resurface from wherever he is and decide to take to it to air his views or “judicial” pronouncements.