A division bench of the Madras High Court comprising Justices N Kirubakaran and R Pongiappan on Tuesday asked the Additional Advocate General of Tamil Nadu what action the police had taken against people who had posted allegedly derogatory remarks against the chief justice on social media recently.

The judges asked this question while hearing a case related to the attempted eviction of a tenant from a property by some advocates, with the alleged help of the police.

During the hearing, the court asked the government what it had done about people who had criticised Chief Justice Indira Banerjee on social media for her opinion on the disqualification of 18 MLAs of the Tamil Nadu Assembly. One of the judges also questioned television channel debates for crossing the line.

The disqualification case

The events the judges were referring to go back to August, when 18 MLAs belonging to a faction of the ruling All India Anna Dravida Munnetra Kazhagam submitted a memorandum to the Tamil Nadu governor demanding the dismissal of Chief Minister Edappadi K Palaniswami. The Speaker of the House issued dismissal notices to the legislators. The MLAs said that the issue was beyond the Speaker’s jurisdiction as it was not covered by the anti-defection law. They also argued that they had not violated any party whip. Despite this, they were disqualified from the House.

Following this, they filed writ petitions in the Madras High Court challenging their disqualification. In November, the batch of cases reached a division bench comprising Chief Justice Indira Banerjee and Justice M Sundar. The matters were heard for several weeks and orders were reserved on January 23.

The judgment came on June 13, over five months after it was reserved. The opinion of the bench was divided. While Chief Justice Banerjee upheld the Speaker’s decision to disqualify the 18 MLAs, saying that there is only limited judicial review available and that the decision did not violate principles of natural justice, Justice Sundar set aside the disqualification. In view of the divided opinion, the matter will now go before a third judge whose opinion will be the majority opinion.

But even before a third judge could be assigned, many people on social media began criticising the chief justice. The posts attacked Banerjee and attributed motives to her opinion. The allegation was that her intention was to save the minority Palaniswami government from falling. Without these 18 MLAs, the Palaniswami government would have lost its majority in the 234-member House.

Normally, if the media, including social media, attributes motives to an order of the court, it would certainly amount to criminal contempt within Section 2(c) of the Contempt of Courts Act, 1971. Under this provision, the publication of any matter that lowers the authority of the court can be punished with imprisonment of six months, or a fine of Rs 2,000, or both.

While free speech is protected by Article 19(1) of the Constitution, a reasonable restriction, which includes committing contempt of court, is imposed on it by Article 19(2). Similarly under Section 5 of the Contempt of Courts Act, a person cannot be held guilty of contempt of court for publishing a fair comment on the merits of a case that has been heard and finally decided. In addition to that, Parliament in 2014 made an amendment to the relevant laws that speaking the truth can be a defence against a contempt action.

Action under what law?

The question is not whether the action of social media users who abused the Chief Justice of the Madras High Court amounts to contempt. Section 15 of the Contempt of Courts Act deals with taking cognisance of criminal contempt. Under this Act, the Advocate General of a state can file a contempt petition on her own, or can give consent for any person to file such a case. The court itself can take cognisance on its own, and jail those it finds in contempt. In this case, none of these actions have taken place.

The state police has no role in a matter of criminal contempt and they do not come into the picture at all.

There is no scope for the police to intervene even under the Information Technology Act, 2000. Under Section 66A of the Act, a person who sends, by means of a computer resource or a communication device, any information that is grossly offensive, can be punished with imprisonment of three years with a fine. Since this provision was being grossly abused, and influential political personalities could put anybody behind bars, even before a trial, its constitutional validity was challenged in the Supreme Court. The apex court struck it down in 2015 for violating free speech guaranteed under Article 19(1) of the Constitution and for not amounting to a reasonable restriction under Article 19(2).

So if the police cannot intervene under the Information Technology Act, and action for criminal contempt was not initiated under the Contempt of Courts Act, where is the scope for judges to ask the police as to what action they had taken against persons who posted adverse comments against the chief justice on social media?

It is ironic that the judge asked the police to intervene in this matter while dealing with the misconduct of the police and lawyers in a civil matter during which the judge had criticised them for taking the law into their own hands.

It is also curious that though the court has the powers to take cognisance of the matter on its own, it did not do so. Instead, it wants action to be taken by the police – a third party. It is also not clear as to what action the police can take in the absence of any power being vested in them either under the Criminal Procedure Code or under any other law.

The court’s decision to ask the police what action had been taken against people who had criticised the chief justice of the Madras High Court on social media may not be proper, and does not come within any legal framework. It is high time the court exercises its powers within the four corners of the law and upholds the majesty of the court. This alone will uphold the rule of law that is woven into the fabric of India’s Constitution.

Justice K Chandru is a retired judge of the Madras High Court.