The foundation of judiciary hangs on the trust of people in its ability to deliver fearless and impartial justice which is expected not be undermined by scurrilous abuse that brings judges into disrepute. The Contempt of Court Act, 1971 is an assurance that the crime of scandalising or lowering the authority of court would be punished. Constitutional guarantee of freedom of speech and expression does not extend to denigrating the reputation of judiciary.

Justice Markandey Katju after his retirement from the Supreme Court became vocal on several issues on social media and has thousands of followers of his Twitter and Facebook accounts. In two such Facebook blogs while criticising the acquittal of an accused from death sentence in a rape and murder case, he had questioned the intellectual level of Supreme Court judges.

The Supreme Court felt, “Prima facie, the statements made seem to be an attack on the Judges and not on the judgment” and the fallout was the issuance of contempt on him.

The case was that of 23-year-old Soumya who was thrown out of a train and raped by one Govindachamy. She died two days later. The Fast Track, Thrissur court awarded death penalty to the accused which was later affirmed by the Kerala High Court. Supreme Court in September this year acquitted him of murder but convicted and sentenced him to life imprisonment for rape.

Justice Katju in his first blog criticised that the penal provision was not appreciated by the court while in his second blog he questioned the intellectual level of the judge.

The entire incident has drawn so much attention in the legal fraternity because for the first time a contempt notice has been issued to a retired Supreme Court judge. In the past many have been convicted for scandalising the court or bringing the judges to disrepute.

An article by the editor in Perspective publications (1960) alleged that a particular suit was decreed in favour of a particular firm because relations of the presiding judge had pecuniary interest in the firm. The Supreme Court held that “the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability, or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties.”

Then Chief Minister of Kerala EMS Namboodiripad was hauled up for contempt in 1970 for making remarks in public that were derogatory of the judiciary and courts seeking to justify making them in terms of his political ideology based on the teachings of Marx and Engels.

In a democratic set up judiciary cannot be immune from criticism and the court is cautious to distinguish what constitutes contempt. Lord Denning said contempt of court must not be used to protect the dignity of courts, because they must rest on surer foundations.

Clarifying that every criticism is not contempt, Supreme Court held that criticism based on obvious distortion or gross misstatement and made in a manner which is designed to lower the respect of the judiciary and destroy public confidence in it would attract the wrath of contempt. In another case the Supreme Court observed that in the free market places of ideas, criticism about the judicial system or the judges should be welcomed so long as criticisms do not impair or hamper the “administration of justice”. Contempt jurisdiction should not be used by judges to uphold their own dignity.

Justice Krishna Iyer opined that the contempt power, though jurisdictionally large, is discretionary in its unsheathed exercise. Every commission of contempt need not erupt in indignant committal or demand punishment because judges are judicious, their valour non-violent and their wisdom goes into action when played upon by a volley of values, the least of which is personal protection – for a wide discretion, range of circumspection and rainbow of public considerations benignantly guide that power.

The much publicised case of contempt was when Mid-Day published an article alleging that a former CJI passed certain orders in the matter of sealing off commercial establishments in a residential area to benefit his sons who were in the construction business. Editors, publisher, and cartoonist were held guilty of contempt of court. “The manner in which the entire incidence has been projected”, the court held, “gives the impression as if the Supreme Court permitted itself to be led into fulfilling an ulterior motive of one of its members. It tends to erode the confidence of the general public in the institution itself.”

In a recent case a Communist leader of Kerala was jailed for making objectionable comments at a roadside public meeting in 2010. While protesting hikes in petroleum prices he criticised the judgment which banned holding of meeting on public roads and road margins and referred to judges as ‘shumbhan’ (a Malayalam word for ‘idiot’). He was convicted for contempt by Kerala High Court which was later upheld by the Supreme Court with reduction in sentence.

Justice Katju’s alleged contempt is sub-judice and the law will take its own course. As the Supreme Court reassembles for hearing the case in the New Year, it would draw much public attention for various reasons.

First, whether the existing laws and rules permits initiation of contempt proceeding against a retired judge of the Supreme Court. Second, whether the remark made by Justice Katju in his blogs were just a pesky academic criticism or scurrilous abuse of the court and the judge. Third, whether the justification by truth that it was in public interest and was made bona-fide, the only defence under the Contempt of Courts Act, 1971, can bail out Justice Katju.

The writer is an Advocate-on Record, Supreme Court of India, and Life Member, Indian Society of International Law.