According to India’s Supreme Court, ‘Law making through interpretation and expansion of meanings of open textured expressions is a legitimate judicial function.’ The court claims to have undertaken an ‘exercise of exposition of constitutional limitations’. Yet, after proclaiming this right of ‘law making’ and having undertaken the said ‘exercise’, the SC reached no conclusion, merely stating that restraints on publication of media reports on sub judice cases ‘will depend upon the decision of the court on a case-to-case basis’. The function that the court proclaimed for itself was thus not performed, and the exercise that it professed to have undertaken was demonstrably futile. Considering the myriad ways in which the media can impact adjudication, the SC could have taken forever trying to list them and yet have failed to catalogue guidelines.
The SC lamely concluded that contempt ‘consists in interference with administration of justice, in impeding and perverting the course of justice’. ‘Interference’, ‘impeding’ and ‘perverting’ are expressions that are ‘open textured’ whose ‘interpretation’ is the court’s ‘legitimate judicial function’. But in the absence of an occasion to impose a restraint on an offender, this is just an exercise in abstraction. Its pronouncement’s meaning is left to the best judgment of the reader. The expressions, already in use as part of the statutory definition of ‘criminal contempt’, have been subject to several judicial expositions in the past and remain as elastic as their interpretations. The judgment, thus, merely refers to a Lakshman Rekha but does not set it.
The SC expressed no dissent vis-à-vis the prevailing law on the subject (it even cited it with approval). It had earlier quoted Dworkin that principles are propositions that ‘describe rights’, but concluded that it did not wish to ‘enumerate’ the ‘categories’ of contempt, as it would depend on the context of the case. So why was this exercise undertaken at all?
While noting that subordinate courts can restrain publication, it gives ‘higher courts’ power under Articles 129 and 215 to pass ‘postponement orders’ (jabberwocky for an injunction). There are other perplexities too, like postponing publication ‘without disturbing the content of publication’; is it not because of the content that publication is postponed? And since every publication is topical, will a delay not affect its content?
The Supreme Court has in fact unsettled the law by holding that ‘fair and accurate reporting of a trial could give rise to a real and substantial risk of prejudice to connected trials’. In such cases, as the SC holds, postponement orders are permissible as they prevent ‘possible contempt’. Fair and accurate representation of what takes place in court, however, cannot ever be contempt. Commentary, insinuations or coloured/uneven/selective presentations are a different matter. Further, it is elementary that future publication can be restrained (‘postponed’) only when unfair comments are made that would justify such apprehensions. Yet, the SC inexplicably holds that such postponement orders ‘prevent possible contempt’. Since justifying a restraint requires contempt in the first place, how is it a preventive measure? If a publication causes injury, the measures taken subsequently can only be corrective, not preventive, and it would be a case of real and not possible contempt.
The SC has also held for the first time that the power of ‘postponing reporting of judicial proceedings’ can be exercised when other ‘alternative measures like change of venue and postponement of trial are not available’. Since this condition is stated in three different ways, it seems one can thus pick a test of one’s liking. In any case, the complexities involved make it hard to shift a trial. Since ‘alternatives’ have to be considered to decide whether there should be a postponement at all, the existence and efficacy of these alternatives will be thrown open to preliminary wrangling whenever a dispute arises. Further confusion will be caused by the condition that only a displacement of ‘the presumption of open justice’ calls for postponement.
The real risk of prejudice is the only simple and effective test to restrain an offending publication, and linking it to alternatives and adding requirements of displacing presumptions carry an imminent danger of perpetuating the injury inherent in the risk instead of eliminating it. Public interest demands that there be no interference with judicial processes, and the effect of the judicial decision not be pre-empted or circumvented by publications or public agitations. Parties must get to courts without interference; courts must get to try cases without interference; and the authority and administration of the law must be maintained. But does the SC’s judgment serve that end?
It has no justification, except, to borrow a term it used in a different context, to indulge its ‘zest for abstract speculation.’