Tuesday, September 18, 2007

A comment on the Delhi High Court's order in the contempt case

Mr.K.Parameshwar, one of our regular readers, has written the following on the Delhi High Court's order holding journalists of the Mid-Day guilty of contempt in connection with the story which the newspaper carried on the Justice Sabharwal issue. The order is here. Mr.Parameshwar's comment follows:

I thought there were crucial issues raised by this judgment. One, of course is raised by Mr. Bhushan that, how can allegations about a retired Chief Justice amount to contempt of court since he no longer occupies an office. More importantly, as pointed out by Mr. Bhushan, the publications werent against the Court but questioned the propriety of a judge presiding over a matter in which his sons had material interests. Both of which I thought were valid arguments.
We must keep in mind that the initiation of contempt of court action is an institutional remedy. One, that should be used only when the image of the institution is tarnished. Say, if there was a call to boycott courts alleging corruption and bias, or say openly abusing the Court etc. How then would we differentiate between personal and institutional allegations? I think the case at hand is an excellent example of the former. The attempt of the newspaper was not to tarnish the image of the judiciary but to bring into a light a case of impropriety. Such an act does not tarnish the image of the judiciary, but if acted upon will defintely enhance the image of the judiciary. It is orders like the one passed by the Delhi HC here, that might actually put the judiciary in bad light.
The contempt of court remedy is akin to the basic structure doctrine. Only judicious, responsive and responsible use can legetimise it in a democratic polity. The apt remedy that Justice Sabharwal should have pursued was one under defamation law, as it happens with the judges in the United States. Instead, the Court chose to take up the institutional remedy within a system where judicial accountability is turning out to be a myth. Such a decision might have adverse impact on the public perception of an ever increasing judicial power, thanks to the judicial interference in matters ranging from forest conservation to airline management. I believe that if the judiciary wants to increase the breadth of its reach it must exhibit a considerable depth of accountability which it has falied to do.

Secondly, the judgment has also raised the issue of whether truth is defence to contempt of court. The Delhi HC definelty does seem to have been bothered by this issue as is reflected in the judgment.
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