Given courts have frequently responded to criticism with the threat of contempt proceedings against the critic, India has long lacked a healthy discussion of its judicial system. Against this backdrop, the Supreme Court observing that data that exposes any lacunae of the judicial system is not tantamount to contempt is a welcome step forward in self-rectification. A subordinate court in Jammu & Kashmir had, suo motu, initiated contempt proceedings against the heads of Transparency International (India) and the Centre for Media Studies—the two organisations had jointly carried out a survey on judicial corruption which showed that the judiciary was widely perceived to be corrupt by the public. The SC first pointed to a technical issue, in that subordinate courts do not have the power to issue contempt warrants, but have to refer the matter to the High Court.
What the SC bench, headed by the Chief Justice, said while doing so was even more important. According to a report in The Indian Express, the bench asked “How do you understand society? You … ask people in the society …what is their perception of a particular institution or an issue. Where will research go if this is contempt?… Are you saying that if there is a malady, whether it is expediting a case or delaying it, and other such acts, should we close our eyes?”
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The SC, at one level, wasn’t saying anything unusual since the Contempt of Court Act 1971 has provisions that expressly lay down what constitutes contempt and what does not. As per Section 5 of the law, publishing fair criticism of a judicial act is not contempt, provided judgments are criticised without casting aspersions on the judge(s). And Section 9 makes it clear that the scope of what is to be treated as contempt cannot be expanded beyond what is provided for in the Act. However, when contempt itself is held to mean anything that “scandalises the courts”, that is so open-ended, it makes invoking the contempt law quite easy. Given how court rulings are increasingly shaping public policy and given even the courts’ own rulings are struck down—the SC struck down the Karnataka High Court’s ruling acquitting late chief minister J Jayalalithaa, for instance—criticism of courts is desirable and can only have a beneficial impact. The SC has not yet ruled on the contempt law—a relic of colonial India—its observations in this case suggest that, at some point, that too could be struck down.