The power conferred on courts to initiate criminal contempt proceedings is not a shield to be used to choke the voice of citizens in a free country. In a democracy driven by free speech, courts cannot seek the comfort of the cocoon or aim to insulate themselves from criticism, be it just or otherwise, the Madras High Court observed on Wednesday.
“The contempt power is not a privilege for the court to roam free, but is a tool to trim the social psyche in meddling with the public confidence in the institution. The foundational basis for contempt jurisprudence lies in preserving the public confidence in the institution of courts, and upholding the majesty which, it must be stated, is the result of the public confidence,” Justice N. Seshasayee wrote.
He went on to state that public confidence was the anchorage on which the majesty of the courts rests and it would be best served only when courts realise their constitutional obligations to citizens and pass scrutiny by performing extremely well.
“The judiciary should let its performance speak, and it has always spoken through its performance. The power to initiate an action for contempt, therefore, can hardly provide a defence stronger than the quality of judicial performance. Therefore, unless any action or inaction obstructs the course of justice, there is hardly a need to resort to the power of contempt in a democracy,” the judge added.
Justice Seshasayee further said that if one turns to social media and the news television shows, statements were often made, and views were shared on the judiciary “by those uninformed citizens, who know very little about the way the legal system functions.” The critics lavish criticisms on the judiciary even where there was a space for being charitable, he said, adding: “Where expectations on the judiciary are high, and the dreams the citizens hold are big, the judiciary as an institution cannot escape encountering free speech of lesser quality, content or responsibility.... Courts, therefore, cannot and should not be hyper-reactive to every statement hurled at the institution and waste its time on it.”
The observations were made after setting aside an order passed by Advocate General (A-G) R. Shunmugasundaram on September 27, 2021, for recalling his predecessor Vijay Narayan’s March 31, 2021 order through which consent was refused for the initiation of criminal contempt of court proceedings against S. Gurumurthy, editor of Tamil magazine Thuglak.
The incumbent A-G had recalled the order passed by his predecessor and decided to re-examine the issue of granting consent, following a recall petition filed by advocate S. Doraisamy of Thanthai Periyar Dravidar Kazhagam (TPDK) whose request for consent to initiate criminal contempt proceedings had originally been rejected by Mr. Narayan.
Section 15 of the Contempt of Courts Act, 1971, requires the A-G to give his/her nod before any individual could file a petition in the High Court for initiation of criminal contempt proceedings against another person.
Hence, the TPDK leader had approached Mr. Narayan, during the latter’s tenure as A-G, and sought consent for initiating contempt proceedings against Mr. Gurumurthy for certain comments made by him over judicial appointments during the magazine’s annual meet with its readers on January 14, 2021.
Responding to a query from one of the magazine’s readers on judicial delays in deciding corruption cases, he had said that even Supreme Court judges get appointed by politicians and that aspirants succeed in getting appointed to such posts only by beseeching one person or the other and by holding on to their feet.
However, the next day, he expressed regret for the remarks made at the meeting.
He said his intent was to highlight how some candidates for judges, for even the highest court, go and beseech politicians for support. “But in the spur and heat of the moment, I mentioned judges instead of candidates,” he contended.
Thereafter, Mr. Narayan refused consent to initiate contempt, but after a change in office, the incumbent A-G recalled his predecessor’s order and decided to re-examine as to whether consent should be granted. Mr. Gurumurthy filed a writ petition in 2022 challenging the 2021 recall order and got it set aside now.
