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On 30 January, the Supreme Court sent M.V. Jayarajan, a politician from the Communist Party of India (Marxist), to jail for four weeks for calling judges shumban in a speech critical of judicial activism in the Kerala high court.

The word shumban apparently means idiot in Malayalam. Here is a look at provisions of the Indian contempt law in an easy-to-grasp question-and-answer format:

What is contempt under the Indian law?

In India, the Contempt of Courts Act, 1971, divides contempt into civil contempt and criminal contempt.

Civil contempt is when a person wilfully disobeys any order of a court (a recent example of civil contempt would be Sahara Group chief Subratra Roy’s failure to obey an order by the Supreme Court to refund investors from whom two group companies raised money through schemes the market regulator ruled were illegal, prompting the apex court to send him and two board members to judicial custody in March 2014).

Criminal contempt is “interfering" with the administration of justice (for instance, interrupting a court hearing by singing obnoxiously), or “scandalizing" the court or “lowering its authority".

Jayarajan was convicted for scandalizing the court and lowering its authority.

Is there criticism of the judiciary that’s permitted?

Yes, some.

For example, the Contempt of Courts Act, 1971, very clearly states that fair criticism of any case which has been heard and decided is not contempt. And as conceded by even the judges who sent Jayarajan to jail:

“Judges expect, nay invite, an informed and genuine discussion or criticism of judgments but to incite a relatively illiterate audience against the Judiciary, is not to be ignored."

What would count as incitement?

The problem clearly arises when either the judiciary is criticized or individual judges are publicly questioned on their integrity.

For example, in 1970, when E.M.S. Namboodiripad, then chief minister of Kerala, made a comment on how Marx and Engels considered the judiciary to be an instrument of oppression, the Supreme Court punished him for contempt on the grounds that he lowered the prestige of judges and courts in the eyes of the people.

Namboodripad was let off with a fine of 50.

And in 1988, when another politican, P. Shiv Shankar made similar comments about how Supreme Court judges displayed class bias in cases on land reform, the contempt petition filed against him was dismissed by the apex court.

To be honest, those punishments don’t seem so bad...

You may be right, but there is another aspect to it—having to pay lawyers, fighting your way through various courts for many months; it is not a pleasant experience.

Well, then people should ensure they don’t incite disrespect against judges!

Well yes, that’s what basically ends up happening, but usually editors, journalists, academics and lawyers are so unclear on the boundaries of contempt law (or testing those boundaries) that they prefer to keep silent when it comes to criticising the judiciary, even if such criticism might be fair.

In a way, criminal contempt laws in India are as vague as section 66A of the Information Technology Act, which could criminalize something as vague as an annoying Facebook post criticising the late Bal Thackeray.

And just as a draconian section 66A has a chilling effect on free speech over the Internet, criminal contempt laws have a chilling effect on any possible criticism of the judiciary.

I see the problem. So what then is fair criticism of the Indian judiciary, other than criticism of their judgments?

There is honestly no completely accurate answer to that question, but we can get closer through a process of elimination.

Simply publish a statement you deem “fair criticism" of the judiciary in a newspaper that is read by a judge of a high court or Supreme Court. If you don’t receive a contempt notice for scandalizing the court, you are probably safe.

Or you could use as guides a few writers and journalists like Arundhati Roy and Madhu Trehan who already carried out that risky experiment.

Roy criticized the court in an—according to the judges—“absolutely not necessary" affidavit, which she filed in another contempt case against her. While the latter contempt case was dropped, her affidavit accused the court of “a disquieting inclination on the part of the (apex) court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it", which was “doing its own reputation and credibility considerable harm". Roy, unrepentant and unwilling to apologize, got a “symbolic" one day in jail and a 2,000 fine for that statement.

Trehan got away with an apology, accepted by three out of five judges, after having rated judges in categories such as punctuality, integrity, judgement quality, depth of basic knowledge, manners and receptiveness.

So what did Jayarajan deserve four weeks of jail for?

Jayarajan, in his speech, reportedly said (in translation): “Why should those Judges sit in glass houses and pass verdicts any more?", and “today is the day on which the verdict of two senior Judges of Kerala high court has been given only the value of grass", and that “if those judges have any self respect, they should resign and quit their offices".

In his later defence, Jayarajan claimed that he was only trying to criticise a high court judgment that banned meetings on public roads to prevent accidents.

He also claimed that his comments, made in a public but unscripted speech, were misreported by the media that quoted the word “idiot" out of context.

And finally, he also claimed that “shumban" did not actually, in any translation, mean “idiot" or “fool".

But while his entire explanations were very apologetic in tone, he expressly declined to apologize for his statements; something that the Supreme Court took explicit note of.

The judges ended up buying neither his translation nor his excuses offered, but found “an intentional and calculated obstruction in the administration of justice", which “requires to be roundly repulsed and combated", on the grounds that he was trying “to incite a relatively illiterate audience against the judiciary".

So if he had said the same before a ‘relatively literate’ audience he might have got off?

Maybe, we’ll never know. It was probably a judgement call...

How about if he’d said sorry?

Possibly. In any case, it definitely wouldn’t have hurt, as even without an apology the judges showed him some mercy and reduced his original jail sentence from six months to only four weeks.

Should we perhaps get rid of the ‘scandalizing the court’ law?

Like many other laws, we’ve inherited the offence of ‘scandalising the court’ from the British. Initially, it was reasoned that judges were appointees of the king and to abuse the judge was to abuse the king himself.

Except, the last time the UK convicted a person for scandalising the honour of the judiciary, was 1931—i.e., 84 years ago.

Even when the Daily Mirror carried an upside-down photograph of three “law lords" with the caption, “YOU FOOLS", while criticizing their judgement, no action was initiated against the paper for scandalizing the judiciary.

In 2012 the UK Law Commission recommended abolishing the offence of scandalizing the court.

But the court is the last great and mostly unsullied bastion of our democracy. If the judiciary didn’t have ‘scandalising the court’ in their arsenal, Indian media would misbehave and the courts’ authority would be lowered in the eyes of the common man.

At least, that’s the perception...

Mint’s association with LegallyIndia.com will bring you regular insight and analysis of major developments in law and the legal world.

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