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| @KushalNandwani | March 22,2019

WE would like to ask whether the contemnor, Smt. Patricia Mukhim wants to control the judiciary as per her desire and will?”

In a recent contempt order passed by the Meghalaya High Court against the Editor and Publisher of the Shillong Times respectively, the Court posed this question to the two contemnors, namely Patricia Mukhim and Shobha Chaudhari. The order is replete with similar remarks where the Court believes that the articles published in the paper lowered the dignity of the Court and amounted to contempt of court.

The order, however, has now been stayed by the Supreme Court and a notice issued to the Registrar General of the High Court of Meghalaya. The case provides another opportunity to the Supreme Court to identify an objective criterion in deciding the cases of contempt by scandalising the court, and the criteria must be truth.

 

The Facts of the Case

 

On December 06, 2018, a report titled “High Court pursues retirement benefits to judges, family” was published, which mentioned the orders of the court in an ongoing matter against the Government of Meghalaya. The article said that the High Court had directed the government to restore protocol services, guest house facilities, medical facilities, phone/mobile bills, etc. to the spouse and children of the Chief Justice and retired judges of the Meghalaya High Court. The court had taken notice of the notification that was issued by the Meghalaya government on October 04, 2018, where only the retired judges of the high court were to be treated as state guests and offered protocol services. This, according to the court, took away the benefits that accrued to the spouse and children of the judges according to the Meghalaya State Guest Rules (1991). The court held that the earlier available benefits were taken away by the notification without consulting the high court and directed the government to rectify the notification to include “Retired judges Spouse/Children”.

 

 

Another report was published in the Shillong times on December 10, 2018, titled “When Judges judge for themselves”, which described similar orders of the high court. The report said that the current order was reminiscent of a similar order passed by another judge, who was about to retire, asking for Z category security. As in both instances, the judges who ordered for these benefits were set to retire soon, the report drew comparisons between the two orders.

 

Also Read: Supreme Court stays Meghalaya High Court’s order sentencing The Shillong Times Editor and Publisher for contempt of court [Read Petition]

 

Taking note of these two reports, contempt proceedings were initiated against the editor and publisher of Shillong Times, who were accused of having undermined the dignity of the court in the eyes of the public. The court ordered the two contemnors to sit in the corner of the room till the court rises and pay a fine of Rs 2 Lakh, failing which the contemnors would undergo six months of simple imprisonment and the paper would be banned.

 

Where is the Contempt?

 

On the face of it, the judgement accuses the two contemnors of lowering the dignity of the court by publishing the articles in the paper. It takes special notice of the heading of one of the articles titled “When Judges Judge for themselves”.  This, the court claimed, amounted to scandalising the court as it put forward a false image where one judge was seen to be benefitting his own cause. According to the court,  the report was false in nature as it did not represent the facts in proper light.

 

 

However, what must be asked is if the facts stated in the article are wrong, even in part? The order to provide benefits to family and children of the retired judges was made in a previously ongoing matter. The fact that the judge who made the order was about to retire in March 2019 is also true. A similar incident where a judge, who was about to retire, passed a similar order with regard to security arrangements for retired judges which was later denied, did also happen. These were the facts mentioned in the article and all of these facts are on record.  What then was the false information in the report for a matter to qualify as contempt of court?

The judges also referred to comments made by the editor on social media, where she described her experience of dealing with the judiciary. She spoke of how her counsel was asked by a judge to ‘shut up and not speak’, an incident that was denied in the order. No opportunity was provided to the contemnor to provide her side of the story.

 

Contempt of court vs public interest

 

So where, then, was the contempt, if the facts mentioned in the impugned article were true and in public interest and if the comments made on social media did not relate to the case?  In a matter of public interest, it can be argued that there in an inherent right to disseminate information and to discuss the issue; that the public has a right to receive information and it is incumbent on the media to report the facts of an ongoing case. That is what makes for a vibrant democracy. The perks provided to judges and their family members are without doubt a matter of public interest as it involves  taxpayer’s money.

 

 

The right to disseminate information has been upheld by the European Court in the case of Sunday Times v United Kingdom (1992) where it was held

“… freedom of expression constitutes one of the essential foundations of a democratic society; … it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. These principles are of particular importance as far as the press is concerned. They are equally applicable to the field of the administration of justice, which serves the interests of the community at large and requires the co-operation of an enlightened public. There is general recognition of the fact that the courts cannot operate in a vacuum. Whilst they are the forum for the settlement of disputes, this does not mean that there can be no prior discussion of disputes elsewhere, be it in specialised journals, in the general press or amongst the public at large. Furthermore, whilst the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them (see, mutatis mutandis, the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 26, para. 52).”

 

An Objective Criterion for Contempt of Court

 

The order passed by the Meghalaya High Court also offers an opportunity to reflect on the question of what should amount to contempt. Section 2 of the Contempt of Courts Act, 1971, highlights scandalising and lowering the authority of the court as a reason for punishment or penalties. The provision in itself appears quite vague and different judgments have reflected upon it differently. The current order of the Meghalaya High Court relies on some of those to establish its claim of scandalising and lowering the authority of the court. Among others, the order relies on Bal Kishan Giri v. State of Uttar Pradesh (2014 7 SCC 280) which said “…casting of bald, oblique, unsubstantiated aspersions against the judges of the high court not only causes agony and anguish to the judges concerned but also shakes the confidence of the public in the judiciary in its function of dispensation of justice”. It also relies on the case of Arundhati Roy vs Unknown AIR 2002 SC 1375 to to say that any criticism of the judicial institution “couched in language that apparently appears to be mere criticism but ultimately results in undermining the dignity of the courts cannot be permitted when found crossed the limits and has to be punished.”

 

 

As opposed to this, in the case of Sahara India Real Estate Corporation Ltd. v SEBI (2012) 10 SCC 603, the court was far more open when it said there had to be “substantial interference” with the administration of justice for a matter to be considered contemptuous.  It reinforced the view that dissemination of information by the media regarding court proceedings served to enhance public confidence in the transparency of those proceedings. “Open justice permits fair and accurate reports of Court proceedings to be published,” the judges said.

The Contempt of Court Act, 1971 (Section 13(b)) itself  allows for truth as a valid defence if the court is “satisfied that it is in public interest and the request for invoking the said defence is bona fide.”

True and fair reporting, then, must be the objective criteria in judging a case of contempt. In the Meghalaya High Court matter it is not clear why the impugned articles was contemptuous.  The articles correctly represent the facts of the case, and the title only hints at a conflict of interest of judges in asking for post-retirement perks for their family members at a time when they are about to retire. This must surely be construed as fair reporting.

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