Is any criticism of the courts of India a crime?
That’s the simple question that the Meghalaya High Court’s contempt order against Patricia Mukhim, editor of The Shillong Times, boils down to. The court’s order is an answer to this question and it is one that the entire media fraternity should respectfully disagree with.
Justice SR Sen of the high court, who retired after passing the order, took exception to a number of articles published in The Shillong Times. Two of these formed the basis of a contempt charge against the newspaper:
- A news report about Justice Sen’s order on benefits for the families of retired judges and the proceedings which led to this (dated 6 December 2018);
- A comment on how that order was similar to a previous order by two other judges, who were about to retire, on security arrangements for retired judges (‘When judges judge for themselves’, dated 12 December 2018).
Proceedings took place between December and March, during which several lawyers practising in the court acted as amicus curiae, and informed the court of other content they believed showed the court in a poor light. These included social media posts by Patricia Mukhim that allegedly mocked the judicial system, as well as other articles claimed by them to be untrue or defamatory.
Justice Sen’s order (on behalf of himself and Meghalaya HC Chief Justice Mohammad Yaqoob Mir) considers all these things and then holds that the reports in The Shillong Times are “totally false” and defamatory, and constitute “criminal contempt” under the Contempt of Courts Act, 1971.
As a result, Mukhim and publisher Shobha Chaudhari of The Shillong Times were ordered to sit in “the corner of the court room” till the end of the day, and were fined Rs 2 lakh each. The court also said that if they failed to pay the amount, they would be imprisoned for six months, and The Shillong Times would “come to an end (be banned).”
Did the Articles and Social Media Posts Actually Break the Law?
Contempt of court is a powerful tool that is meant to be used by the courts to ensure obedience with its directions, and prevent attempts to interfere with the administration of justice. If this provides scope for restricting freedom of speech and expression, it is meant to be exercised reasonably.
This brings us back to the question at the start of the article: Is any criticism of the courts forbidden?
If the answer to this had been yes, then Mukhim and The Shillong Times would have had no doubt been guilty. But fortunately, this isn’t the case.
Exceptions in Contempt of Courts Act
The Contempt of Courts Act itself says that “fair and accurate” reports of judicial proceedings are not contemptuous (section 4) and nor is fair criticism/comment on the merits of a case which has been decided (section 5).
What this means is that for any court to hold a journalist in contempt of court for their writings, it isn’t sufficient that the journalist was critical of the court, or that what they said wasn’t flattering to the court. There has to be falsehood, there has to be inaccuracy, and when it comes to commentary, there has to be unfairness.
The Articles and Social Media Posts Weren’t False or Defamatory
It is difficult to see how the articles in The Shillong Times fail to meet this standard. The first article, which Justice Sen took exception to, was a factual report of the proceedings, and as constitutional lawyer Gautam Bhatia shows here, the description of the facts is essentially the same as Justice Sen’s version of events.
The next article, ‘When judges judge for themselves,’ makes no editorial comment on Justice Sen’s decision to direct the government to provide benefits for retired judges and their families and doesn’t’ claim he did it for himself or his family. It is an incontestable fact that the Justice Sen was set to retire in March 2019, and that he had also passed this order. For judges to pass orders for security or benefits for themselves when they retire is not improper or illegal, and the articles do not make any such claims. The news report also clearly explained that Justice Sen was actually just reinstating an old protocol.
Perhaps Justice Sen was displeased with the headline for the second article, in which case the unconditional apology offered by Mukhim and the other accused should have been sufficient, since there was no malice behind it. Justice Sen expressly rejected this apology, which he thinks was extended just as a ploy to avoid punishment, though it is unclear on what basis this has been decided.
Of course, Justice Sen and the amicus lawyers might point to the social media posts of Mukhim as proof of the insincerity of her apology, but it is again a stretch to view these as contemptuous.
The first social media post she has been called out for is one where she salutes the CPI(M) for “upholding constitutional morality” and criticises other parties for staying silent in the face of what she calls “judicial onslaught”.
The second is a reflection on the contempt of court proceedings, where she asks if journalists will be abused on the “Day of Judgment,” similar to the treatment in court. The third asks questions about whether it is alright for a judge to tell the lawyer for an accused to “Shut up” and to be “rude”. The article also accuses the court of judicial overreach, alleging that an unnamed judge asked “unnecessary personal questions”.
Justice Sen insists none of these things happened in his court, but Mukhim never makes such an allegation. Her general comments certainly aren’t favourable to the judiciary, but unless they are false, she is entitled to make them. Moreover, these posts came before her apology, so without any other reasons to disregard the apology, it should have covered any offence caused by the articles.
At the end of the day, for any of these things to be contemptuous, the contempt has to be of such a nature that it “substantially interferes, or tends substantially to interfere with the due course of justice,” according to section 13 of the Contempt of Courts Act. In what way do these articles or social media posts satisfy this condition?
Worrying Observations by the Court
Justice Sen’s order also makes two other points, which are worrying. First, he disapproves of Mukhim’s comments on how judges are fed gossip by a “coterie (of) lawyers who are selectively called as amicus curiae.” Supposedly, this shows how little respect she has for the “majesty” of the court, but surely this is an overreach of the contempt powers, by extending it to lawyers rather than the judges.
Second, he also mentions two other articles in The Shillong Times as being problematic: One which says the “HNCL” has said a high court judge should step down; and another on the Supreme Court staying a Meghalaya High Court judgment – according to the judge, the SC never did this.
Both these references have nothing to do with the contempt charges against Mukhim, and should have no bearing whatsoever.
Moreover, there was nothing factually inaccurate about the first reference, and even if there were doubts about the second reference, The Shillong Times certainly wasn’t the only organisation which reported it thus.
The first reference was to a report on a comment passed by a local militant group on Justice Sen’s controversial judgment in an immigration case, where he had said India should have become a Hindu country, which was reported in other publications as well. Similarly, the second reference, to an SC stay, was also reported by NDTV, The Hindu, Hindustan Times and others on the basis of a PTI report.
Fine and Potential Ban on The Shillong Times Have No Basis in Law
As should be clear by now, there are strong grounds to say that Mukhim and her fellow contemnor are not actually guilty of contempt of court. It is concerning that the Meghalaya High Court should have held them to be guilty for articles which weren’t inaccurate or defamatory – not to mention social media posts by just one of them that at worst express an unflattering opinion of one judge.
Even if they are considered guilty of criminal contempt, the sentence imposed by the high court is not justified. Section 12 of the Contempt of Courts Act says contempt is punishable with up to six months’ imprisonment, or a fine of up to Rs 2,000. Justice Sen’s order, on the other hand, imposes a fine of Rs 2 lakh each on Mukhim and the other journalist, failing which they are to go to jail for six months. The court did not have the power to impose a fine beyond that specified in the Act, which is another thing that makes this order questionable.
Further, there is nothing in the Contempt of Courts Act or any other law which allows the court to ban The Shillong Times if two of its employees fail to comply with contempt orders against them. The Editors Guild has rightly said that the court’s order is “intimidatory and undermines press freedom.”
Orders like this are a threat to freedom of speech not just because they could potentially lead to the closure of a newspaper without any basis in law, but also because of the chilling effect they can produce.
This order will lead to self-censorship by other media covering the Meghalaya High Court and indeed journalists covering other courts across the country, because of the precedent this order sets.
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