Where Angels Fear To Tread

S Sahay discusses the controversy over the Committee on Judicial Accountability’s letter to the President

The Supreme Court Bar Association’s decision to suspend some members of the Committee on Judicial Accountability and issue them show-cause notices for expulsion can be treated as a matter concerning the legal fraternity alone. Of greater relevance for the people at large is the recommendation to the President and the Chief Justice of India that the allegations made by the CJA against Justice M M Punchhi be ignored. This involves public interest.

However, this article concerns itself with the lesson the controversy has for journalists for the SCBA intends to examine whether contempt proceedings can be started against the newspaper that gave it summary of the allegations.

It can be disclosed now that when I wrote in The Pioneer last week that the CJA had sent a letter to the President, enumerating seven instance of "serious misconduct" on the part of Justice M M Punchhi, who ordinarily would succeed Justice J S Verma as Chief Justice of India, I know what the exact allegations against the judge were. However, I deliberately refrained from giving the details of the charge because I felt that journalists (not necessarily fools) would not rush in where lawyers (not necessarily angels) fear to tread.

What struck me was that the CJA had marked its letter to the President as most confidential and sent a copy to the Chief Justice of India. It not only did not officially release the letter for publication but later boycotted the meeting of the Supreme Court Bar Association on the grounds that the Chief Justice of India was seized of the matter and hence it would be contempt of court to discuss the issue.

The question before me as a journalist was whether it would be desirable on my part to discuss in detail the allegations against Justice Punchhi when both the CJA and he SCBA were not doing so. Was it journalistically fair and legally safe to do so? On the one hand, a debate on the issue would be meaningless for the average reader unless he knew what the allegations against Justice Punchhi were; on the other hand, a discussion of the details would be to give the allegations currency, which would not be fair to the judge for even unproved allegations have a tendency to stick in the public mind.

I further delved into the matter and came to the conclusion that it would not be legally safe to mention the allegations because it could lead to contempt of court proceedings against me and the newspaper that published my article.

As a general proposition it may be said that where contempt of court is concerned, journalists as a class do not enjoy the same privilege as lawyers do. If one is to go by past rulings in Bombay and elsewhere, lawyers very successfully and brazenly campaigned against corrupt judges. They were never hauled up for contempt. All that the Supreme Court observed in the 1995 case involving Chief Justice Bhattacharjee was that, "When a Chief Justice is seized of the matter, (or a complaint against a judge) to avoid any embarrassment to him and to allow fairness in procedure to be adopted in furtherance thereof, the Bar should suspend all further actions to enable the Chief Justice of India to appropriately deal with the matter".

"This procedure would not only facilitate nipping in the bud the conduct of a judge leading to loss of confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary, but would also would avoid needless embarrassment of contempt proceedings against the office-bearers and group libels against all concerned." This mild threat to lawyers is of no help to journalists and others.

For them a most pertinent guide is a ruling in the C K Daphtary case decided by a five-judge bench in 1970. In that case Daphtary and three others had brought to the notice of the court the contempt of court committed by one O P Gupta, the Rising Sun Press and the Karak Book Depot for writing, publishing and distributing a booklet in which Justice J C Shah was alleged to have given a dishonest ruling in his case. The actual judgment was delivered by Justice Hedge, but Gupta’s case was that it was Justice Shah who dominated the bench and was really responsible for the contents of the judgments.

Gupta was preparing a case for the impeachment of Justice Shah and one of the arguments produced by him was that anything done in furtherance of impeachment was part of the fundamental right of a citizen and hence no contempt of court lay.

Chief Justice S M Sikri, who delivered the five judge Bench judgment, made a distinction between the rights of a newspaper which was allowed to publish a fair summary of parliamentary proceedings and the writer of a booklet, who admittedly sold it to a person.

Section 3 of the Parliamentary Proceedings (Protection of Publication) Act provide that no person who shall be liable to any proceeding, civil or criminal in any court in respect of publication in a newspaper of a substantially true report of any proceedings in either House of Parliament.

Chief Justice Sikri observed that various questions of interpretation would have arisen if the booklet had been published in a newspaper. One of them would have been whether or not a contempt proceeding was civil or criminal; another question would have been whether any notice of impeachment not admitted by the Speaker under Section 111 of the judges Inquiry Act was a proceeding of Parliament under Section III of the Parliamentary Proceedings (Protection of Publication) Act.

The question was left open because the law protected only newspapers and broadcasting agencies and that too if the publication was made without malice and for public good.

After the 44th Amendment, the freedom to publish a substantially accurate report of proceedings both in Parliament and State legislatures became a constitutional right (Article 361A) but the wordings of the article are substantially the same as contained in the Act and hence the Sikri ruling holds the field.

I have not at all appreciated the brazen attempts by some to make the Press the fall guy, as far as the publicity of the CJA allegations go. To repeat, it is neither fair nor legally safe to give advance publicity to the gist of the CJA’s letter to the President. The stage for publicity would come when a motion is formally moved in Parliament in accordance with the prescribed procedure. It can also be discussed in detail if the CJI issued a statement to the Bar, as Chief Justice Sabyasachi Mukherjee did in the case of Justice V Ramaswamy.

Undoubtedly, who the next Chief Justice is, is of great public importance but the issue must be discussed according to professional norms out in the light of the prevailing law.

The CJA dossier had been available with not only party leaders but also with some members of the press for sometime. To the credit of the professional journalists almost all of them refused to be suckers.

RELATED REPORT: Row over chief justice of India's appointment