I have read the allegations and Justice Sabharwal’s detailed and precise reply and the published rejoinders, and it is my view that these allegations, at the least, are not worthy of the attention that the press continues to bestow upon them.

Those who make the allegations are “honourable men” and for that reason assert that their allegations call for an inquiry — if not, then what was the need to emphasise that the allegations have been made by “eminent citizens”? Allegations of misconduct levelled against those who have enjoyed public confidence and faith should be made with sufficient specificity and proof so that they do not need to draw upon the eminence of those who make them to make them credible.

I am also clearly of the view that Mid Day jumped the gun in carrying these allegations, without examining the consequences and without being ready with all the evidence in its possession in case it was called to defend its position. However, I find it hard to believe that its article was motivated.

This situation caused by a campaign of calumny against a former chief justice did call for some solution. None of this makes resort to the power of contempt a wise choice.

There are two major reasons why India continues to be a vibrant democracy — if one is a robust judiciary, the second is a fearless press. Both these institutions in India have had to adopt unorthodox methods to preserve the rule of law and bring about some degree of transparency, or at least translucency, in a rather opaque state of governance. The courts, of late, are also seeking to enforce accountability by treating it as a facet of rule of law, while the media achieves (or strives to) the same object by mobilising public opinion.

The source of power of both these institutions is the same — public opinion and public confidence. Eroding public faith and confidence in either of these would imperil democracy.

The courts (specially the high court) have also on occasion erred — and erred seriously — in exercising their jurisdiction in PILs. The media has had its own share of blunders. Neither of these should set one institution against the other.

Every judge has his “foot print”. Justice Sabharwal’s footprint is that of a judge who took on controversial cases and dealt with them squarely. This is reflected in his judgments in the case relating to the expulsion of members of Parliament, the office of profit controversy, Bihar Assembly dismissal, the forest matter, and the Ninth Schedule matter.

His decision in the sealing case follows the same trend. There is nothing odd or curious about his decision in the sealing cases — and the bench hearing the case after his retirement continues to pass orders in the same direction notwithstanding the hamhanded attempt by the government to browbeat the court manifested in the intemperate (and rehearsed) outburst of one of its law officers.

The allegations against him that sought to cast aspersions on his motives in deciding the sealing cases, pursued after his explanation, ought to have been treated with contempt rather than in the contempt jurisdiction.

I do not want to comment on the correctness of the judgment of the high court; that is a matter which would be sorted out in the appeal that would now be filed by the convicted scribes. The point is, even if the judgment is legally correct, was it the wise course of action? The situation is undoubtedly provocative yet one of the defining traditions of the court as an institution has been its restraint.

In a perfect world the intrusive methods of the Indian media would be an intolerable invasion of privacy and an unbearable encroachment on a citizen’s reputation. In contemporary India these methods have gone a long way in serving a larger cause of the fragile democracy of this nascent republic.

The action of the newspaper in publishing these allegations was clearly ill-devised. But in the circumstances, stern action of the kind taken by the court may have a “chilling effect” and may turn out to be a remedy worse than the disease.

We must always remember that in a young nation state struggling to find its identity and its place in the sun, trying to convert its diversity into strength rather than a fissure, there has to be a give and take between institutions subserving a common cause. Democracy is based on institutions and any weakening of these institutions would imperil our fragile democracy — is a message that the media needs to understand and remember and is also a thought that must inform the actions of the court. Confluence — not conflict — between institutions is the need of the day. We can recall, with advantage, the words of Lord Denning who said that the jurisdiction of contempt “... we will most sparingly exercise, more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us...”

The writer is a senior lawyer and former solicitor general of India