Contempt and punishment

The Delhi High Court's verdict in the case against wah india and the magazine's response to it raise questions about the way the judiciary deals with contempt of court charges in general.

THE Delhi High Court, in a majority judgment pronounced on May 28, accepted an apology from the Editor-in-Chief of wah india, Madhu Trehan, and four staff members of the magazine for having published an article rating the High Court's Judges in terms of various attributes and qualities. The court had earlier held these persons guilty of contempt of court (Frontline, May 25, 2001).

In their majority judgment, Chief Justice Arijit Pasayat, Justice Arun Kumar and Justice D.K.Jain said: "A bare reading of the article in question makes it clear that the statements made amount to a scurrilous attack on the integrity, honesty and judicial competence and impartiality of Judges. It is offensive and intimidating. The contemners by their conduct as well as by making such scandalising statements and invective remarks have interfered and seriously shaken the system of administration of justice by bringing it down to disrespect and disrepute. It impairs confidence of the people in the court."

The dissenting judgments, by Justice Anil Dev Singh and Justice O.P. Dwivedi, broadly concurred with this view but held that the apology offered by the contemners, though unconditional and unqualified, was not genuine and therefore deserved to be rejected.

The judgment referred to the petitioners' (the Delhi Bar Council through Surya Prakash Khatri and B.L. Wadhera) complaint that the magazine published the article, which tended to show members of the judiciary in a poor light, without any material to support or even proper verification of the statements purported to have been made by some members of the Bar. The petitioners contended that the article would lead to seekers of justice losing faith in the members of the judiciary and corrosion of the credibility of the institution.

It is debatable whether the wah india article conforms to the standards of good journalism. Many people in the media seem to agree that it does not. However, there is a feeling that this question is best left to be settled within the media, or between the media and the public, and is not a matter to be decided by the judiciary. In a plural society the media are bound to reflect a plurality of journalistic standards, or even the lack of them. Can the courts use their contempt power to teach journalists professional ethics?

The dissenting judgment by Justice Anil Dev Singh finds the article not only insulting but also reckless. The 50 unnamed senior lawyers who were interviewed by the magazine to reach the conclusions that were summed in the article in question do not constitute even 10 per cent of the total strength of the Delhi High Court Bar as claimed by the author of the article. The Delhi High Court Bar consists of more than 4,000 members. The respondents admitted in their affidavit that this was an "error" and that the appraisal in the article was not the representative view of the whole Bar. They also conceded that once the data were tabulated, no further verification was carried out to ascertain the correctness of the results. They claimed that they had not suggested that they had satisfied themselves about the correctness of the appraisal.

Because it is reckless, the article and its website are unlikely to be taken seriously by readers, least of all the discerning readers of an English magazine. Is it right to infer that the readers of such an article will lose faith in the judiciary as a whole or in the Judges who got a poor "rating"?

Indeed, the line dividing contempt of court and defamation of Judge or Judges is thin, but it must be drawn somewhere so as to justify invoking the Contempt of Court Act. In the Perspective Publications v State of Maharashtra (AIR 1971 Supreme Court 221), the Supreme Court held that if the publication of the disparaging statement was calculated to interfere with the due course of justice or proper administration of law by such court, it could be punished summarily as contempt.

The wah india judgment fails to show how the impugned article interferes with or is likely to or tends to interfere with the administration of justice or lowers the court's authority. The contemners had not sought to influence the outcome of any decision by the court by publishing the article. The judgment has also not found any motive on the part of the contemners to threaten the Judges. The only motive, according to the judgment by Justice Anil Dev Singh, appears to be to increase wah india's circulation by indulging in sensationalism.

Wah india's decision to carry the article in pursuit of this motive certainly betrays a lack of professionalism, but by no stretch of the imagination is this motive in conflict with the proper administration of justice. The article did not attribute any motives to the Judges, while conveying how some lawyers had rated them; if the Judges were accused of having any extraneous motives in the performance of their duties, such unsubstantiated allegations could have been held to be in contempt.

Still, a Judge aggrieved by the rating could have sued wah india for defamation, where truth is a defence. However, the High Court chose to invoke the Contempt of Courts Act simply because it asserted that litigants would lose confidence in the court after reading this article, and that the article tended to create an apprehension in the minds of people regarding the integrity and ability of the Judges. The court's perceptions, it is pointed out, lack substance and appear exaggerated.

The worrying aspect of this judgment is that it has sought to legitimise the practice of extracting "apologies" for alleged contempt of court rather involuntarily by the contemners. No doubt, the contemners in this case offered "unqualified" and "unconditional" apologies before the hearings on the case began on May 2.

The contemners indicated in their affidavits that there was no intention to show even the slightest disrespect to the members of the judiciary and that the article was not meant to cast any aspersion on the institution or the Judges, and that it was then not realised that it would be regarded as derogatory to the judiciary. They said that they later realised that this was a serious error on their part. They claimed that the article was published on the lines of similar articles published abroad. The Judges who gave the minority judgment rejected this apology, calling it an attempt to justify what they did; one of the petitioners, B.L. Wadhera, wanted the court to insist that the contemners tender oral apologies in person before the court. He said: "The Judges could have satisfied themselves, by studying the contemners' body language, to ascertain whether their apologies were genuine. But the majority Judges did not accept my argument, as they wanted to close the case at the earliest opportunity."

How could this apology have been voluntary and genuine after the court had given an interim direction on April 26 to the Delhi Police to seize and confiscate copies of the particular issue of the magazine from wherever they were being sold? The police raided the magazine's office in Delhi, under the court's directions. There was also an order from the court banning the media from reporting and commenting on the proceedings in the case, before it was withdrawn on May 2 after the media protested. Therefore it is difficult to agree that the apology tendered by the contemners on May 2 to the court at "threshold", as claimed in the majority judgment, was entirely voluntary.

Counsel for the contemners told the court that an appropriate apology would be published if "so directed". Accepting this undertaking, the court directed that the contemners publish their apology within two weeks of the judgment in five national dailies published in English, failing which the matter could be listed for further orders. The contemners have complied with this order.

The majority judgment says that an apology must be genuine, honest and bona fide. Although the objective of the court was to ensure that the authors' retraction received as much publicity as the article, the process of extracting such apologies, more than the article in question, would do serious damage to the court's credibility, it is pointed out.

The wah india case may perhaps have highlighted the need for some sort of institutional mechanism within the judiciary to rate the conduct of Judges. Senior Supreme Court advocate C.S. Vaidyanathan told Frontline that the Bar Associations of High Courts and the Supreme Court could conduct a poll among practising lawyers to rate Judges. Judges themselves should give the appraisal forms to the lawyers. The results of the poll, he said, may not be revealed to the media unless an internal inquiry found prima facie evidence of wrongdoing on the part of a Judge whose score is very low. Such an opinion poll would, to some extent, check nepotism, favouritism and intellectual dishonesty, if any, among Judges, he felt.