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.

... contd.