The Meghalaya High Court on Friday held Shillong Times’ editor, Patricia Mukhim, and publisher, Shobha Chaudhuri, guilty of contempt of court. The court was angry with the newspaper for highlighting a judgment that provisioned better post-retirement benefits for judges and their families.
Justice Sen – who had passed the retirement benefits judgment – had taken particular umbrage to the headline “When judges judge for themselves.”
Subsequently, a bench consisting of Justice Sen himself imposed a fine of Rs 2 lakh each on Mukhim and Chaudhuri. In case they fail to pay the amount within a week, the court said that the two would be imprisoned for six months and the paper banned.
It needs to be noted, as legal scholar Gautam Bhatia has argued, under the Constitution, judges have no power to ban newspapers, books or censor speech in other ways. In our constitutional scheme, speech can be restricted only by an existing law or a law made by the State.
The record of India’s judiciary towards free speech has always been spotty. The courts have allowed a host of draconian laws – from sedition to blasphemy – to exist on the books. However, as this alarming threat to ban a newspaper simply for criticising a judgment shows, the judiciary has now itself taken the initiative to gag speech.
In 2002, the Supreme Court convicted Arundhati Roy for contempt in reaction to the writer-activist shouting slogans against the court. A series of reports published by the newspaper Mid-Day pointed to a conflict of interest on the part of a Supreme Court judge in 2007. Rather than investigate the judge, the court issued a contempt notice against the newspaper – a move that made sure that the story was killed in the media. In 2017, the Bombay High Court ordered cuts in a Bollywood movie even though, under Indian law, a court has no legal right to censor a film.
More alarmingly, the courts have now even taken to blanket, pre-emptive media gags, going beyond anything that elected politicians have done in the realm of restricting freedom of the press. In recent times, the higher judiciary has passed orders restricting journalists from reporting on cases such as the Justice Karnan contempt matter, a murder case in which the Bharatiya Janata Party president was an accused and allegations of sexual harassment against a former Supreme Court judge, among others.
In a democracy, it is the job of the judiciary to check any abuse of power on the part of the executive and the legislature. It is the courts that the Indian citizen turns to when she feels that her freedoms and liberties have been eroded. However, the courts themselves infringing on the rights of citizens presents a troubling conundrum for Indian democracy. Who will judge the judges?