The apex court must not stifle commentary on sub-judice cases

Source: Hindustan Times dated 12.02.2019

GAUTAM BHATIA (Gautam Bhatia is a Supreme Court advocate)

Article 19(2) of the Constitution only allows for speech to be restricted through a law made by the State

OFFICERS OF THE STATE WHO WIELD POWER OF THE KIND THAT JUDGES DO, ARE EXPECTED TO HAVE SHOULDERS BROAD ENOUGH TO SHRUG OFF FIERCE, EVEN VITUPERATIVE, CRITICISM

Earlier in February, the AttorneyGeneral of India, KK Venugopal, filed a contempt of court petition against the lawyer, Prashant Bhushan. The latter had accused the government of “misleading” the Supreme Court in the case involving the appointment of an interim director of the Central Bureau of Investigation (CBI). Venugopal argued that this was a false accusation, and undermined the course of justice.

It is unclear whether Bhushan’s statements amounted to contempt, since they were addressed to the government (and not the court). However, during the hearing on February 6, events took a new and alarming turn. Venugopal changed tack and argued for “guidelines” to regulate commentary (especially by lawyers) on sub-judice (i.e., pending) cases. The Supreme Court (SC) bench agreed to adjudicate the case on those terms, and fixed a date in March to hear it. There are many reasons why the SC should refrain from issuing broad, multi-purpose “guidelines”, of the kind that the AttorneyGeneral has in mind. The first is that it would be a serious attack on the constitutional value of the freedom of speech and expression. One of the core principles of Indian democracy is the principle of open justice: At all times, the work of courts in dispensing justice must be open to public scrutiny. This scrutiny could be outspoken and harsh, at times. It may irritate judges who feel that they are being subjected to unjust and unfair opprobrium. However, officers of State who wield power of the kind that judges do, are expected to have shoulders broad enough to shrug off fierce, even vituperative, criticism.

This is especially true of the Indian Supreme Court that, over the years, has transformed itself from a judicial tribunal that deals only with questions of law, to a forum that intervenes on a wide range of issues involving administration and governance. The SC is often called “the most powerful Court in the world”. It is in the nature of things that the power that a body wields will be directly proportionate to the force of the criticism that it receives.

There is, of course, a narrow exception to this rule. Judges, by virtue of their office, can only speak through their judgments, and are not in a position to publicly respond to personal attacks or allegations. Consequently, attributing extraneous motivations to a judge, or insinuating that a judge has been bought out or is corrupt, are forms of expression that can be regulated and curtailed. This is exactly what the existing contempt of court law does: it requires individuals to refrain from interfering with the administration of justice, a requirement that has been interpreted to mean that while judgments and judges can be criticised (including in harsh and intemperate terms), extraneous motives cannot be attributed to them.

It is clear, therefore, that existing contempt of court law deals with the possible abuse of the right to free speech and to criticise the courts. Any “guidelines” that step beyond this area will amount to an immediate violation of the freedom of speech and expression.

There is a further, more basic reason, why the court should refrain from stepping into this arena. And that is that the Indian Constitution does not authorise the judiciary to directly censor speech. Article 19(2) of the Constitution only allows for speech to be restricted through a “law” made by the “State.” It has long been settled in Indian constitutionalism that the word “law” under this Article does not include judgemade law or judicial orders. The reason for this is clear: The framers of the Constitution wanted a double layer of safeguards when it came to free speech — parliamentary scrutiny (first) and judicial review (second). They did not see fit to vest direct censorial powers in the hands of judges.

For these reasons, whatever the temptations, the SC should desist from acceding to the Attorney-General’s request, and passing “guidelines” curtailing commentary on sub-judice cases.