The Supreme Court, as is the case with any higher court, has a power to reprimand anyone who it finds is in its contempt. This power is known as contempt of court.
The question whether the press conference held by four senior judges is contempt of court, has to be answered in the negative, in a strictly legal sense. The judges merely pointed out certain irregularities.
However, had the same press conference been conducted by someone else, it certainly it would have invited the wrath of contempt proceedings. The developments of November 2017 can be recalled, when the court said that the actions of Prashant Bhushan were contemptuous, but they weren’t initiating such proceedings. If that was contemptuous, then today’s actions certainly are.
The series of developments that ensued in the fiasco involving Justice (retd) Karnan, raises interesting questions. Karnan stayed his own transfer order. Legally it wasn’t wrong. The transfer of a judge is done through an administrative order, which can certainly be stayed by a judicial order.
In the current crisis, if contempt proceedings are initiated by the court against the four judges, they can also decide to quash such proceedings against themselves. At the end of the day, all of them are highest judicial officers of the country, who have immense constitutional power. We can only hope that the current debacle doesn’t come to this.
It also raises important issues, which have also been addressed by the four judges in the letter themselves, of putting in place mechanisms for corrective measures for the judges, which is different from impeachment. Impeachment is a long and a difficult process to undertake, requiring immense political will.
Other corrective measures for the judges, which may not involve removal from office, are certainly some reforms which the apex court can choose to undertake.
In India, the judges of higher judiciary, that is the highs courts and the Supreme Court are considered a ‘court’ unto themselves. This means that judges can adjudicate whenever and wherever they are, and it is not necessary that they need to be present on court premises. There have been instances of judges adjudicating upon something while they are travelling. This means they can exercise the power of contempt in a similar way.
Surprisingly, it was only in 2006 that the Contempt of Court Act, 1971, was amended and a defence of ‘truth’ was added. Before this, a person could be made liable for contempt of court, even when they spoke the truth.
Needless to say, this provision was absolutely against the fundamental right to freedom of speech and expression enshrined in our Constitution. However, to enforce a right, one has to approach the court again, which in cases of contempt is anyway against the individual.
Law of contempt of court, along with other laws, like that of sedition, are remnants of our colonial past. The British enacted these laws to curtail public scrutiny. They make little sense today. The government can step up and at least water down the intensity of such laws.
Raghav Pandey is a Research Fellow with the Department of Humanities and Social Sciences, IIT Bombay, Mumbai. He can be reached at firstname.lastname@example.org, Twitter: @raghavwrong
Updated Date: Jan 12, 2018 17:29 PM