Illustration: Satwik Gade
Given the secure institutional position of courts, we should err on the side of underenforcement rather than overenforcement
On January 30, 2015, the Supreme Court sent M.V. Jayarajan of the Communist Party of India (Marxist) to four weeks in prison for criminal contempt of court. In a public speech delivered in 2010, Mr. Jayarajan, who is an ex-Member of the Legislative Assembly for Kerala, had criticised a Kerala High Court judgment banning meetings along public roads in order to ensure the smooth flow of traffic, observing that the judges were “idiots,” “should resign from office” and that their judgment had “the value of grass.” The High Court had found him guilty of contempt, and the Supreme Court agreed, but reduced his sentence from six months to four weeks.
We don’t need to agree with Mr. Jayarajan in order to question the Supreme Court’s recent judgment. The concern that the judgment raises is that while chilling statements of the nature that he made, it will also chill healthy and legitimate criticism from being circulated for fear of contempt sanctions. Given the secure institutional position of courts, we should err on the side of underenforcement that promotes genuine criticism, rather than overenforcement which seeks to stifle illegitimate criticism.
Unfortunate assumptions
The Supreme Court and High Court judgments bear out that exercising the criminal contempt jurisdiction passes as much of a judgment about the listener as it does about the speaker. The Supreme Court was mindful of the effects that the speech would have on the “village population” that it addressed while the Kerala High Court noted its concern that the “fickle minded public” would, after hearing the speech, jump to the conclusion that the courts cannot be relied upon to do justice. These are unfortunate assumptions in a maturing democracy with an increasingly well-informed citizenry, not least in the state which has amongst the highest literacy rates in India. People can judge for themselves whether to discredit the judgments of the High Court, or in fact Mr. Jayarajan’s vitriolic speech. Paradoxically, the contempt proceedings have lent much greater publicity to the statements than they deserved.
Responding to criticism
One of the reasons offered by the Supreme Court was that the judges, by virtue of their position, are unable to respond to criticism. That may be true, but it is irrelevant. To their credit, judges of the Supreme Court have consistently recognised that contempt of court protects the authority of the institution, not that of the judge. The inability of judges to personally respond to criticism, then, is overcome by the ability of civil society to condemn the kind of statements made by the ex-MLA. In their private capacity, judges retain the power to commence proceedings for libel or slander.
“Contempt of court powers are necessary where courts are still seeking to establish their legitimacy, but that is untrue of the Supreme Court and High Courts”
The law of criminal contempt for ‘scandalising the authority of the court’ has often been criticised as having originated in imperialist thought. The argument was that the authority of imperial courts needed to be foisted upon colonised populations, in order to prevent the judicial system from being discredited. The most infamous articulation of this argument came from Lord Morris, who said that “in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court...may be absolutely necessary to preserve in such a community the dignity of and respect for the court” (McLeod v. St. Aubyn). This justification no longer holds true in a democratic republic where authority is not commanded, but rather built upon public acceptance. Even the possible postcolonial justification, however, fails. It might be argued that contempt of court powers are necessary where courts in independent nations are still seeking to establish their legitimacy. But that is profoundly untrue of the Supreme Court and High Courts, which, despite their imperfections, are widely considered as the most trusted institutions of state.
Of course, none of this should mean that the courts should be complacent about their institutional standing. After all, they are, as Alexander Bickel famously said, the “least dangerous branch.” They neither have the power of the purse nor that of the sword, and can rely only on their institutional legitimacy. But that legitimacy stems from the quality of their reasoning and the transparency of the adjudicative process. The institutional foundations of our courts are far too robust to be affected by tirades made by disgruntled parties.
