Rules for me but not for thee? Courts are not above the people

Judges of the Supreme Court and the High Courts are paid out of the Consolidated Fund of India. Judges of the district judiciary are paid out of the Consolidated Fund of the concerned State. Thus, judges in India get their salaries, perks, allowances and pension from taxpayers' money.

They discharge public functions by deciding cases between individuals and also ruling upon disputes between the government and individuals. Their objective is to serve the people of the country without fear or favour, malice or ill-will.

Courts in India have given themselves wide powers, including in sensitive political matters where they make or break governments, send politicians to jail and disqualify them, and rule on the rights of States in relation to the Centre.

They frequently interfere with policy matters and remove governments that push back against such interference like in 1975, when they unseated a Prime Minister elected by a whopping majority, and in 2009-2014, when they acted on unsubstantiated public interest litigation petitions to damage the face of the ruling dispensation over 2G spectrum allocation. Years later, some of the ex-ministers accused in the case were acquitted.

Recently, a Madras High Court judge expressed his personal desire to have a controversial lamp lit on a disputed site of land, even as he was hearing the case relating to it on the judicial side.

The same judge, Justice G Swaminathan, also recently raised objections to what he claimed as public libraries in Tamil Nadu disregarding a recommendation to procure Manathin Kural - the Tamil translation of Prime Minister Narendra Modi's Mann Ki Baat.

In another instance bordering on hate speech, Allahabad High Court Justice Shekhar Kumar Yadav drew sharp criticism for his use of the term “kathmullah”, a derogatory slur used against Muslims, and for remarks that contrasted Hindu traditions with Muslim practices, including references to polygamy, triple talaq and animal slaughter.

Karnataka High Court Justice V Srishananda sparked outrage after he referred to a Muslim-dominated locality in Bengaluru as 'Pakistan' during a hearing. The Supreme Court took suo motu cognisance of the same, but eventually closed the case after the judge apologised.

The examples are numerous.

On the one hand, judges freely criticise and openly declare their political and philosophical ideologies, but when they are at the receiving end of censure, they immediately nip such tendencies in the bud.

Just two days ago, the Calcutta High Court rebuked Trinamool Congress (TMC) Member of Parliament (MP) Abhishek Banerjee over his claim that some judges had succumbed to political pressure from the Bharatiya Janata Party (BJP). The Court is now contemplating action against Banerjee for these remarks.

In many cases before this, courts have gone beyond the realm of rebuke and made an example of its critics.

The instrument through which they do this is Section 2(c) of the Contempt of Courts Act, a colonial relic that remains in existence in our "modern" democracy. According to Section 2(c),

“criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which—

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner."

While modern democracies punish people for civil contempt (disobeying court orders/directions), India has given courts the power to wield the sword of criminal contempt, to be used against anyone saying anything unpalatable to the judges.

Judges, being public servants discharging public duties, must be subject to criticism. This must include not merely criticism of judgments or orders, but also criticism of judges themselves and their political/ideological leanings.

In democracies like the United States, judges are often identified by their political/social ideologies. Hence, they are often dubbed 'conservatives, liberals' etc depending on their personal afflictions.

In India too, there is no dearth of judges making their political ideologies clear through their judgments and speeches. However, identifying them as such leads to immediate objections. The sword of Section 2(c) is then invoked, particularly sub-clause (ii) which criminalises "scandalising or tending to scandalise, or lowering or tending to lower the authority of, any court".

The provision is frequently employed by courts to coerce apologies from persons whom it considers, in its own subjective terms, to have crossed the line.

The most recent such instance is a tweet by the Kerala unit of the Congress party, which said that Chief Justice of India (CJI) Surya Kant can resign if he cannot do his job. The controversial post against the CJI appeared on the official X handle of the Kerala Congress on October 12. It read:

"Dear Surya Kant, If law and order is not your domain, resign now. We will find your replacement who can handle it."

The post was deleted soon after.

The Kerala Pradesh Congress Committee (KPCC) also tendered an unconditional apology to the CJI. In a reply dated October 22 to a legal notice sent by Supreme Court Bar Association Joint Secretary Meenesh Dubey, KPCC President Sunny Joseph said that the post was published by party worker Vijay Thottathil without the leadership's knowledge, consent or consultation. Thottathil has since been removed from his position, it was stated.

Despite this, the Court registered a writ petition, based on a letter written by right wing lawyer Vineet Jindal.

This is a trend worth exploring.

Advocate Prashant Bhushan was one of the first to be at the receiving end. A contempt case was registered against him in 2020 based on petitions by an unrelated third party.

Under the Contempt of Courts Act, the Court can either suo motu initiate contempt of court proceedings or can register such a case based on private petitions. As per Section 15 of the Contempt of Courts Act, the consent of the Attorney General of India (AG) is required before the Supreme Court can hear a criminal contempt of court petition filed by a private individual.

However, this is a requirement that has been bypassed by the Court of late. The Court has been registering cases based on complaints of third parties without the consent of the AG. The verdict of the Court in the Prashant Bhushan case itself accepted this. In that case, the Court said,

"A petition came to be filed in this Court by one Mahek Maheshwari bringing to the notice of this Court, a tweet made by Mr. Prashant Bhushan, Advocate, alleged contemnor No.1 praying therein to initiate contempt proceedings against the alleged contemnors for wilfully and deliberately using hate/scandalous speech against this Court and entire judicial system. The Registry placed the said petition on the Administrative side of this Court seeking direction as to whether it should be listed for hearing or not, as consent of the learned Attorney General for India had not been obtained by the said Shri Maheshwari to file the said petition. After examining the matter on the Administrative side, this court on the administrative side directed the matter to be listed on the Judicial side to pass appropriate orders."

In other words, the Court itself is not following the law laid down by parliament.

This, it seems, has been replicated in the present case against the Congress party.

A Bench of Justices Aravind Kumar and Vipul M Pancholi asked the office bearers of the KPCC to show cause as to why contempt proceedings should not be initiated against them. The Court indicated that it will appoint Senior Advocates Arvind Datar and Gaurav Agarwal to assist it in considering whether criminal contempt or civil contempt requires to be initiated in the matter. It also sought the Attorney General's assistance.

The Court observed that while its judgments are open to criticism, that cannot be used to intimidate judges. No individual or political organisation is above the Constitution, it said, adding that the independence of the judiciary is not a matter of political convenience.

"Judgements are always open to criticism, however severe. But freedom of expression cannot become a shield for intimidation or interference with the administration of justice. Howsoever, high position a person may occupy, that person cannot be allowed to pollute the stream of justice," the order said.

It added that judicial restraint must never be mistaken for institutional weakness, warning that any attempt to undermine the authority of the Court is required to be dealt with an iron hand.

"The authority of this Court requires neither political endorsement nor approval. It rests upon the Constitution and the rule of law," the Court said.

The pontification of the Court betrays its own actions. On one hand, it claims that it does not require any political endorsements or approval. However, it simultaneously initiates contempt of court against a political party for a social media post asking the CJI to resign.

For one, the criminal contempt of court law should be done away with in a democracy. Judges discharge public functions and are paid out of public exchequer. The office of a judge and the judge himself should be amenable to criticism like any other public servant.

The excuse that judges can't defend themselves is inaccurate. They can very well avail the remedy of defamation if they deem fit, just like any other citizen. Alternatively, they can opt for being thick-skinned and brush such criticisms aside.

On the merits of the present matter, asking a CJI to resign for not doing his job does not, in my subjective opinion, fall within the realm of criminal contempt of court.

Clause (c) of Section 2 of the Contempt of Court Act should be repealed and Article 19(2) of the Constitution should be amended to drop 'contempt of court' as an exception to free speech under Article 19(1)(a).

In a democracy, courts and judges are not above the Constitution or the people.

Disclaimer: The views are of the author and do not necessarily reflect the views of Bar and Bench.