If the object of the order (it can hardly be termed as a judgment) was to enhance the standing of the judiciary, it fails miserably. In fact, the judgment lowers the reputation of the judiciary — suggesting that the judiciary does not welcome criticism of itself; and will smash its bona fide critics with punitive imprisonment. Will the press be silent? No. It will continue to report on the controversy with greater coverage and intensity. Can the entire media be put in jail? No. It is not clear what the judges had in mind in response to this selective targeting by lawyer Anand.

What was at issue? A campaign had been started by the Commission for Judicial Accountability (CJA) by the Bhushan and Bhushan team et al asking for an explanation as to why a business was shifted to Justice Sabharwal’s residence (however temporarily) at a time when the Supreme Court was considering a large-scale demolition ordered by the Justice Sabharwal bench for land use violations. A further speculation was raised that the ultimate beneficiaries of the demolition would be Sabharwal’s sons whose investments in malls would be enhanced. There were also allegations of the UP government selling land to the Sabharwal family at reduced prices. Justice Sabharwal answered this by stating his lack of knowledge about the business being run from his house and denying the speculation. True or false, this information was in the public domain. When the House of Lords injuncted the publication of the globally available book Spycatcher in England, the Daily Mirror ran a banner headline: “You fools”. English courts accepted the media’s verdict. No contempt notices were issued.

The contempt power is as awesome as it is awful. It provides no guidelines. Everything is left to the convicting judge. In a judgment, Justice Krishna Iyer exhorted that “the Supreme Court and the high courts must vigilantly protect free speech... even against judicial umbrage”, from this “vague and wandering jurisdiction”. Lord Atkin’s much quoted view that “justice is not a cloistered virtue”, and must suffer public scrutiny is the flip side of Justice Sodhi’s order in the Mid Day case. The Contempt of Courts Act, 1971, allows ‘truth’ to be a valid defence in the public interest. Even the salutary procedure of consulting the law officers was not followed. In the Delhi High Court, a designated officer substitutes for the lack of an advocate general. In this case, the bench needed wise counsel.

Justice Sodhi’s convicting order is some 763 words of which 549 words are narrative and 214 the reasoning. The underlying logic is that singling out a former chief justice of India and attributing possible bias to him and the other judges who passed the order is contempt which undermines public confidence and suggests that the other judges were “dummies... to fulfil the ulterior design”. In fact, nothing in the campaign was said that the other judges knew the facts — even those that surfaced from Justice Sabharwal’s self-defence — should be included. In law, Justice Sodhi simply says: “There is sufficient case law on the subject and we need hardly add any further material to it. Suffice it to say, the Supreme Court in Haridas Das vs. Smt. Usha Rani Banik and ors.; Civil Appeal No.7948 of 2004, has clearly laid down the ‘Laxman rekha’ which we feel the publications have crossed. The publications in the garb of scandalising a retired chief justice of India have, in fact, attacked the very institution which, according to us, is nothing short of contempt”. With all the electronic help available, I have not been able to trace the Haridas Das judgment which was not even quoted by Justice Sodhi. Assuming it exists, it is hardly authoritative on the issue.

Earlier, the Supreme Court prevented the Mid Day journalists from being jailed. The Supreme Court will surely be more balanced. Until then, Justice Sodhi’s order should not serve as a precedent to be followed. In fact, the order does a disservice to the judiciary and its cause. There will always be speculation as to why the contempt was brought and in whose interest. It also does a disservice to Justice Sabharwal who will otherwise be remembered as a good judge. To add suspicion to alleged taint is hardly a satisfactory solution. Meanwhile, the public’s call for transparency remains.

The writer is a senior lawyer