What constitutes 'scandalising the court'

Print edition : May 12, 2001

THE contempt of court jurisdiction is exercised not to protect the dignity of an individual judge but to protect the administration of justice from being maligned. There can be little dispute over this observation made by a Constitution Bench of the Supreme Court in Supreme Court Bar Association vs. Union of India & anr. (1998 (4) SCC 409). But problems arise when one seeks to understand "criminal contempt", as defined in Section 2 (c) (i) of the Contempt of Courts Act, 1971. This section defines "criminal contempt" as the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which scandalises or tends to scandalise, or lowers or tends to lower the authority of any court.

According to some experts, when the judiciary as such or a Judge in particular is attacked in this manner and the attack contains various kinds of imputations, such contempt is treated as scandalising the court. The Oxford English Dictionary defines the word "scandalise" as "offend the moral sensibilities of; horrify or shock by a (real or imagined) violation of morality or propriety." In the absence of a legal definition of the term in the Act or elsewhere, the meaning of the term needs to be considered as it is commonly understood.

Put in this context, the Delhi High Court's issuing of notices to Madhu Trehan, Editor-in-Chief of the fortnightly magazine, wah india, and four others for committing contempt of court in connection with a report the magazine carried in its April 16-30, 2001 issue on the Delhi High Court Judge, raises certain issues. The Division Bench, comprising Justice Anil Dev Singh and Justice O.P. Dwivedi, issued the notices on April 26 on a criminal contempt petition by the Bar Council of Delhi. The petitioner, through counsel R.K. Anand, alleged that the magazine carried a write-up, with photographs of the Judges, reflecting on their integrity, quality of judgment, depth of basic knowledge, observance of punctuality, manners in court and receptiveness to arguments, which amounted to contempt of court.

What followed the issuing of notices was bizarre. The Bench asked the Deputy Commissioner (Crime), Delhi Police to seize and confiscate copies of the issue of the magazine from shops, news-stands or any other place where they were being sold. It also asked the respondents to withdraw from circulation copies of the issue. It further directed that no one shall publish an article similar to it or any article, news, letter or any material that tended to lower the authority, dignity and prestige of the members of the judiciary. The Bench also put a bar on reporting the proceedings of the case in the media, including contents of the article, in any manner. Issuing the notices, the Bench asked the respondents to show why they should not be punished for contempt of court.

The court's directions created an uproar in the media. While editorial comments in sections of the print media questioned its order gagging the media, six media personalities on May 1, through an application to the court, sought to be impleaded as parties to the contempt proceedings before Delhi High Court against wah india for its survey grading the court's Judges. They clarified that they did not wish to defend the article or contest the contempt petition but told the court that they were aggrieved by its direction barring the press from reporting the contempt proceedings. The media personalities were the vice-chairperson of The Hindustan Times, Shobhna Bhartiya; the executive managing editor of The Times of India, Dilip Padgaonkar; the editor-in-chief of The Indian Express, Shekhar Gupta; the editor of Outlook, Vinod Mehta; the resident editor of Punjab Kesri Ashwani Chopra and columnist and Rajya Sabha member Kuldip Nayar.

Asserting that the court order affected their fundamental rights, the six applicants said reporting of the proceedings would not interfere with or obstruct the course of justice or the administration of the law in any manner. They contended that in a case involving the honour of the court, it is vital that proceedings conducted in open court be reported in the interests of justice and in public interest.

The editors' intervention had the desired effect when the High Court modified its order on May 2 by allowing media coverage of the proceedings. Madhu Trehan tendered an "unconditional and unqualified apology and expressed deep regret for the article published." The court reserved its judgment in the case.

Notwithstanding the critical observations of the Judges during the hearing of the case on May 2 on the wah india story, it is clear that the only basis for initiating contempt proceedings against the editor of wah india was that the report had "scandalised the court" by making an imputation that some Judges of the Delhi High Court were perceived by some senior advocates (whose ratings were sought by the magazine), as being less than 100 per cent honest. The magazine has not revealed the names of the 50 senior advocates whose ratings it had sought. Although the magazine is not bound to do so, it needs to be asked whether their ratings on the Judges' integrity, understanding of law, and courtroom behaviour on a six-point scale amounted to "scandalisation of judiciary" or lowered the authority of the court.

It needs to be pointed out that a perceived lack of respect for the institution and the credibility of the judiciary, which some Judges who heard the case on May 2 had apparently underlined as the reason why they found the report offensive, cannot be construed as "scandalisation of judiciary" or "lowering the authority of the court". The magazine's survey had added that it was by no means an attempt to cast any aspersion on the competence of the judiciary, but was a small and humble attempt to hold a mirror to it. The ratings show that almost all the Judges, in the overall ratings, secured more than 30 out of 60; only a few of them scored less than 40. The survey rates 31 sitting Judges of the Delhi High Court, in 15 ranks.

It appears that the court has read too much into the ratings, which are purely subjective. An advocate remarked: "In the corridors of the courts everybody talks about these, it is the first time it has appeared in print". It also seems farfetched to infer that the magazine's survey will further erode people's faith in the judiciary. The Chief Justice of the Delhi High Court, Justice Arijit Pasayat, reportedly observed during the hearing on May 2: "We are not defending ourselves. Judges may be wrong, but you cannot question the credibility of the judiciary."

Does the magazine's survey question the credibility of the judiciary? Such an inference would only stretch the reader's credulity too far.

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