The recent judicial orders in the contempt case initiated by the Supreme Court over a chapter in a textbook published by NCERT discussing judicial corruption are going to set back the conversation on judicial reforms by a decade, if not more. To discuss the contents of the chapter is an invitation for the worthies at the bar to go complaining to the Supreme Court once again. Hence, it is not possible to explain the flaws in the court’s claim that the three experts “misrepresented the facts”  to tarnish the judiciary’s image. 

Apart from banning the book, the court also directed the “Government of India and all states/UTs/Universities etc. to disassociate 3 of them [the experts who wrote the chapter] forthwith and not to assign any responsibility which involves public funds” until they provide an explanation to the court. In other words, the three academics involved in writing the chapter cannot be employed at public universities or by the government unless they can convince the court to lift the ban on their livelihoods.  

Both of the above orders, the banning of a textbook and depriving the authors of the chapter of their livelihood, are extraordinary, but even more worrying is the signalling effect the court’s orders in this case will have on the High Courts, which also have contempt powers. 

A magnanimous Chief Justice of India, willing to ignore a shoe thrown at him, sends a signal to the High Courts to be cautious in the use of their contempt powers. A less forgiving Chief Justice of India can send the opposite signal to High Courts via his words and actions. 

This is not just theory. 

India witnessed some of the most shocking use of contempt powers by the judiciary in the decade following the contempt case initiated against Arundhati Roy in 1999. By 2002, the Supreme Court imprisoned Roy for her comments about the judiciary. While Roy’s imprisonment made international headlines , less attention was paid to the extraordinary exercise of contempt powers by the High Courts in the following years. 

Three precedents are worthy of mention. 

The first was a case in 2001 in which a news magazine, Wah India, founded by Madhu Trehan, published a survey of judges of the Delhi High Court, with the respondents being senior advocates of the court. In that case, the Delhi High Court ordered the police to seize all copies of the print magazine and then also gagged the media from reporting about the case. The gag order was lifted only after senior journalists protested loudly but the police did seize copies of the magazine and also raided the office of Wah India! The case was closed only after the editors tendered an unconditional apology. 

The second was a contempt case initiated by the Karnataka High Court against 56 journalists and 14 newspapers in 2003 for allegedly scandalising the image of the judiciary by reporting on allegations of a “sex scandal” at a resort in Mysore involving a group of judges of the High Court. Long after the damage was done, the Supreme Court stayed the order while lambasting the media.

The third was a contempt case initiated by the Delhi High Court in 2007 against two journalists, a cartoonist and the publisher of Mid-Day for contempt of the Supreme Court – the journalists had reported about corruption allegations against the Chief Justice of the Supreme Court, in the aftermath of the sealing drive in Delhi. The High Court found the four guilty of contempt and sentenced them to four months’ imprisonment . An appeal was filed. A decade later, the Supreme Court set aside the judgment on the grounds that the High Court lacked jurisdiction to punish for contempt of the Supreme Court. 

Long story short, an entire generation of editors and journalists was repeatedly reminded by the High Courts that the judiciary was untouchable when it came to allegations of corruption. 

As a result of this intimidation, the public record will show how the conversation on judicial corruption faded into the background, discussed only in living rooms and rarely in the public domain. The chilling of speech by the judiciary through the use of its contempt powers undoubtedly contributed to the court preserving its image as a credible public institution in the eyes of the public, as evidenced by survey data. This cycle will repeat itself now after the Supreme Court, via the NCERT case, has once again signalled to the High Courts that they can exercise their contempt powers without restraint. 

The one difference in the NCERT case is that the target of the court’s contempt powers is not just journalists and editors but also academics, a community that already censors itself significantly when speaking on judicial ethics or reform. It is no secret that academics at national law universities are already hesitant to write about the judiciary, as judges sit on the governing councils of these universities. A search for high quality academic papers will throw up only two papers on judicial corruption, and even  those are written by an academic tenured at a foreign university. 

There is little doubt that the handful of people who have been writing on judicial reforms and ethics over the last decade will now think ten times before writing about the judiciary, not just because of the fear of loss of livelihood at the hands of the judiciary but also the concrete knowledge that, as in the NCERT case, it is the senior advocates at the bar who will instigate the court to initiate contempt cases against them.

It will not serve the cause of the judiciary or justice in this country if the only remaining avenue to discuss judicial corruption and reform is the bylane of social media.  

The writer is the author of Tareekh Pe Justice: Reforms for India’s District Courts.