The law on contempt, as interpreted by the Supreme Court in a case involving Prashant Bhushan brings back memories from the past; not very recent and not so distant as well.
It happened between December 1977 and February 1978. Two editors – Shamlal of The Times of India and S. Mulgaokar of the The Indian Express – were charged of contempt of court; the force behind the case was M.H. Beg, then Chief Justice of India and the issue was publication of a statement (in Times of India) and an op-ed article (in Indian Express).
Both these pertained to the Supreme Court decision in the habeas corpus case (A.D.M Jabalpur v. Shivakant Shukla) and that the judges failed the constitution. The immediate context was Justice Beg’s retirement due soon and the elevation, thanks to seniority, of Justice Y.V. Chandrachud as the Chief Justice of India.
The Janata Party regime had already restored the statutes protecting freedom of expression and the press. The Emergency era laws curtailing the press were scrapped and laws securing press freedom were restored as much. The press grabbed these as opportunity to assert their freedom, from within the constitutional scheme and editors showing determination to push the envelope, so to say.
Two such instances were publication of an article by the Indian Express on December 8, 1977 (written by A.G. Noorani) and a news report on a statement by a number of public intellectuals in the Times of India on January 7, 1978. Both these pertained to the way in which judges of the highest court had behaved during the Emergency with specific reference to the habeas corpus case decided on April 28, 1976.
M.H. Beg, part of the majority in the habeas corpus case, was now the Chief Justice of India and he was to demit office on attaining 65 years of age on February 21, 1978. Two others who were part of the majority in the case and went out to write separate but concurrent judgments in that – Justices Y.V. Chandrachud and P.N. Bhagwati in that order – were next in line for appointment as Chief Justices (as per their seniority).
In other words, if the canons established by conventions were to be followed (and there were instances in the recent past when the Indira Gandhi regime had strayed out of this and superseded seniors with juniors as Chief Justice of India) Justice Chandrachud was in the line after Justice Beg.
The article in the op-ed page of the Indian Express and the statement by public intellectuals published in the Times of India were concerns about Justice Chandrachud’s elevation and raising questions over his track record insofar as asserting the independence of the judiciary as warranted in the constitutional scheme. The report that the Times of India carried of a public memorandum signed by 52 public intellectuals, including lawyers, former judges and some others was indeed a straightforward attack on Justices Chandrachud and Bhagwati and demanding that neither of them were considered as Chief Justice of India after Beg’s retirement.
The memorandum contained direct references to their judgment in the Habeas Corpus case. It cited what Justice Chandrachud had said in his judgment therein:
Counsel after counsel expressed the fear that during the emergency, the executive may whip and strip and starve the detenue and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of Free India and I have a diamond bright, diamond-hard hope that such things will never come to pass.
And Justice Bhagwati’s statement therein saying:
I do not think it would be right for me to allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the Constitution a construction which its language cannot reasonably bear.
And added that Justice Bhagwati had shared public platforms with the then leaders of the Emergency and thus made no secret of his identification with the then current ‘ism’. These, the memorandum argued, were reasons enough to supersede these two judges while appointing the Chief Justice of India. The memorandum, after heaping praise on Justice H.R. Khanna as well as the judges of the nine high courts who had issued a writ of habeas corpus on petitions by political prisoners (and yet these orders quashed by the Supreme Court in the Habeas Corpus case on April 28, 1978), quoted from a statement by Justice M.C.Chagla on the same issue:
The New York Times, one of the most responsible newspapers in the world, while asking the people of India to raise a monument to Mr. Justice Khanna, observed that the four judges would be remembered ‘only in infamy’. If in the face of it we are to elevate Justice Chandrachud to the highest judicial office in India, we would be making ourselves the laughing stock of the whole judicial world. In any other part of the world, Mr. Chandrachud would have been ostracized – but instead of doing that we are going to give him the accolade of official approval.
The memorandum, as published in the columns of the Times of India cited what Jayaprakash Narayan had held about the habeas corpus judgment: “That the judgment has put out the last flickering candle of individual freedom” and that also his comment on the Supreme Court’s record as “very disappointing because Mrs. Gandhi has packed it with pliant and submissive judges except for a few.”
The op-ed article by A.G.Noorani, published in the Indian Express on December 13, 1977, too was on similar lines and the context was the same: Justice Chandrachud’s elevation as Chief Justice of India after Justice Beg retired. Noorani, also among the 52 signatories to the memorandum that was reported in the Times of India, had put out these arguments in his article.
The Supreme Court took suo motu notice of these; incidentally or otherwise, this was done on authority from the then Chief Justice, M.H. Beg. The memorandum as well as the article, after all, had thrown sufficient innuendoes at him too and his own decision in the Habeas Corpus case.
A short extract from his judgment in the habeas corpus case will be in order here. Justice Beg had said: “We understand that the care and concern bestowed by the State authorities upon the welfare of detenues who are well housed, well fed and well treated, is almost Maternal.”
The Chief Justice, whose term was to end on February 28, 1978, was provoked (and his ‘indignation’ was understandable) and two separate notices of contempt were issued to the respective editors.
Both the cases launched suo motu by the Supreme Court, did not serve Justice Beg’s designs. The Chief Justice of India found himself isolated with his brother judges in both the benches disagreeing with him. Apart from this, both the contemnors – Mulgaokar and Sham Lal – chose to contest the charges against them, through their counsels, rather than expressing regret or plead innocence on the ground that they did not intend to cause contempt; this indeed would have meant conceding their guilt and plead for pardon.
Indeed a sign of the press opting for a fight for its right and unlike the retreat to unfreedom as seen during the Emergency.
The Bench decided the case on January 18, 1978. Justices Untwalia and Kailasam, concurred with each other to hold that there was no contempt involved in the report as published. Their order was short and straightforward. It said:
“Having considered every pros and cons of the matter in regard to the amended notice issued to the editor of the Times of India on the 11th January, 1978, to show cause why ‘proceedings for contempt of this Hon’ble Court under Article 129 of the Constitution should not be initiated against you in respect of the statements made in the aforesaid news item in respect of the habeas, corpus case (A.D.M. Jabalpur v. S. K. Shukla) and the judgments of this Court in that case’, we are of the view that it is not a fit case where a formal proceedings for contempt should be drawn up. We accordingly drop the proceedings.” (emphasis added)
Justice Beg, however, laboured hard to hold his point – that there was cause for contempt – and went into a long excurse into the news report in Times of India dated January 7, 1978 and held its contents objectionable and cause for contempt under the law.
Apart from labouring hard to clarify the reasons behind his decision in the habeas corpus case and holding that the signatories to the memorandum had not reflected his mind properly, Justice Beg recorded his angst over the part in the memorandum that spoke of ‘ostracism’ of the judges in the case in any other country.
Yet, seeing the writing on the wall and realising the abject minority he was in, he held:
“However, as two of my learned brethren are of the view that we should ignore even such news items and not proceed further, I can do no more than to state the reasons for my dissent before signing a common order dropping these proceedings.”
Justice Beg’s position in the case against Mulgaokar was far more difficult. Justice V.R. Krishna Iyer chose to explain his disagreement with Justice Beg rather than restrict himself to stating that he did not see any cause for contempt as did Justice Kailasam in this case. The long excurse by Justice Iyer was typical of his use of words and phrases as well as citations.
In spite of Justice Beg’s efforts to explain why the article (by Noorani) that Mulgaokar had published in Indian Express was eminently liable for contempt, Justice Iyer went on to hold that this was not the case. And as it was in the case against Sham Lal, the majority in this case too held that the charges were unwarranted and the case be dropped with Justice Beg agreeing with his brother judges.
The decision to drop the proceedings was pronounced in the court on January 27, 1978 while the detailed judgment was delivered on February 21, 1978.
The importance of these two cases and the judgments from the concerns of the immediate present is two-fold: One that the higher judiciary seemed to set out, from here, on a course that was distinctly different from that during the Emergency regime. Justice M.H. Beg seemed to be the last vestige of that era that had ended and his term too ended on February 21, 1978. It is another matter that Justice Chandrachud was appointed the Chief Justice of India after Justice Beg and contrary to the apprehensions caused due to his part in the habeas corpus case, Justice Chandrachud would blaze a trail where the apex court contributed to the deepening of democracy as such and also playing along with the resurgent press in the 1980s.
The second reason why these cases are important from the concerns of the present is that it marked the press inventing its strength in a democracy and finding its role as an instrument in deepening democracy.
V. Krishna Ananth is a professor of history at Sikkim University and the author of India Since Independence: Making Sense of Indian Politics. This essay is based on research for an upcoming book on media and the right to freedom.