The Supreme Court of India at crucial junctures in the evolution of our political democracy has stood for the freedom of the media, which were burdened with all kinds of cumbersome regulations.

Some publications faced an outright ban, while some had to vet their editorials and opinions so that only pieces which suited the political masters of the day could be published. Some media houses to face high taxes and some even had to suffer restrictions on supply of raw paper to go to print daily. If there was no paper to print on, how could the media exercise its freedom!

Most of these were ironically during the era of either during the time of Jawaharlal Nehru (who ironically is considered the apostle of liberalism by many today!) or during the time of his daughter, Indira Gandhi who is known for imposing the infamous Emergency.

The Supreme Court’s contribution in cases such as Sakal Papers v. Union of India (1962 AIR 305), Bennett Coleman & Co. v. Union of India (1973 AIR 106) and Indian Express Newspapers Pvt. Ltd (1986 AIR 515) to name a few, has been monumental.

While the courts have done their bit in protecting the freedom of the press, it is also important to see what certain sections of the media have done with this freedom and responsibility. On 13 January 2019 a digital portal came out with a story about Justice A K Sikri, the senior-most judge of the Supreme Court after the Chief Justice of India, and an alleged ‘plum posting’ offered to him by the Government of India.

The crux of the story was highlighting the link between this posting and Justice Sikri being a part of the high powered committee which removed the erstwhile CBI chief Alok Verma.

In highlighting these two separate events, the nature of the two posts has been distorted and the timeline has been twisted to invariably create a cause-effect relationship, thus casting aspersions on the credibility and integrity of a judge of the highest court. Not only does this morally bring shame to the etiquette of journalism, legally speaking it is also a clear case of contempt of court.

Firstly, the sequence of the two events. As reported in December 2018, the Government of India sought the Chief Justice of India’s (CJI’s) consent to nominate Justice Sikri to the Commonwealth Secretariat Arbitral Tribunal (CSAT).

Possibly Justice Sikri’s consent was already taken by then, and the CJI approved his nomination too. It is difficult for any rational mind to digest that at this point of time, in nominating him to the position, the government could have pre-empted a defeat in the then pending Alok Verma case. Not just that is it possible that the government could have pre-empted the CJI’s direction in the judgement to present Alok Verma’s case before the Committee? Could it have pre-empted the CJI’s recusal and also the CJI’s precise nomination of Justice Sikri amongst 25 judges of the Supreme Court?

Therefore, what is clear till now is that when the decision to nominate Justice Sikri as India’s representative to the CSAT was taken, Justice Sikri had no connection to the Alok Verma case, whatsoever, and no power to influence his continuance or removal from office. In that case, Justice Sikri could have been chosen only because of his seniority or his stature at the bench to take India’s seat at a multi-state tribunal.

Secondly, a tribunal located at London must have been enough information to give an impression of a luxury chair because of which they branded it as a ‘plum posting’, without enough enquiry into the nature of the post and the work associated with it. But was this really a ‘plum posting’?

The CSAT nomination was a representation of India’s seat at the Tribunal. It was not a posting to a government appointed or government controlled commission which could help the government with a favourable report. Justice Sikri’s possible work at CSAT had nothing to do with the Indian government, not the least to favour the present dispensation in any manner.

His position was a representation of the Indian state, much like Justice Dalveer Bhandari represents as judge of the International Court of Justice. In fact, Justice Sikri’s position would have been worse than Justice Bhandari’s as the CSAT does not sit regularly. It only sits when an application is made by a Commonwealth employee to adjudicate an alleged breach in his contract of service, which has been found to be two or three times a year only.

There is also NO remuneration for a member of the CSAT. In the light of this information, it is difficult to comprehend why the journalist who wrote that piece for the portal found a seat at a Tribunal which sat two or three times a year and paid no salary or remuneration as a ‘plum posting’ for a senior SC judge!

Much beyond Justice Sikri, the misleading article also casts doubts upon the CJI, Justice Gogoi in effectively carrying out his duties. The CJI had consented to Justice Sikri’s nomination to CSAT, and then the CJI also nominated him in his own place to the committee which was considering Alok Verma’s case.

Therefore, were there to be any substance in the insinuations against Justice Sikri, the CJI would have been central to the alleged misdemeanour; Justice Sikri could not have been nominated to CSAT without the CJI’s knowledge and no one but the CJI could have nominated him to the High Powered Committee as his own replacement.

The logical conclusion of accepting that any part of that portal’s unfounded insinuations may have occurred knowingly, amounts to questioning the credibility of the CJI too.

If we look closer, this attribution was not about nomination by the government, it was about something else. Justice Sikri was nominated for CSAT in December 2018, and just one month later to the High Powered Committee. In the interim, he must have heard cases where the Union of India was a party.

In such a scenario, all such cases should have been considered allegedly compromised by the entire conspiracy theorising brigade. But the regular Union of India matters do not create controversy. Controversy was created by the media only when Alok Verma was removed legally, by due procedure of the CBI statute (Delhi Special Police Establishment Act or DPSE Act).

This due process under the act has politicians on two sides of the spectrum as two out of the three constituents. Hence the need for an eminent, impartial and most importantly independent voice above the political discourse who would decide on the basis of facts and merits before the Committee was fulfilled by Justice Sikri. In January 2017, when Alok Verma was appointed by the same committee the PM and the then CJI, Justice J S Khehar, affirmed the appointment.

Therefore was siding with the dispensation then a case of going beyond the statutory duty? Should judges donning multiple hats under the law be seen in the binary of siding with or opposing the government? Hence, this staged controversy was an attempt to take away the perception of independence and respectability that the view of a judge holds.

One wonders whether it was meant to suit certain political masters who had lost their political mileage with Alok Verma’s removal and thus had deep interests in creating conspiracy theories.

Readers would appreciate some recent contributions of Justice Sikri from the Supreme Court bench. Justice Sikri in a majority judgement of the Constitution Bench struck down several provisions of a loophole-laden Aadhaar Act, a creation of the present government.

He also struck down the Karnataka Governor’s decision of allowing 15 days to the Bharatiya Janata Party to prove its majority in the Karnataka assembly. Political analysts believe the grant of only three days by the bench headed by Justice Sikri was a primary reason of the BJP not being able to accumulate the necessary numbers in the house.

It is rather shameful to witness that a man of strength and principle at the bench for more than 20 years would have to face this just three months before his retirement.

We now address the most important aspect - the recourse to be taken. Section 2(c) (i) of Contempt of Courts Act, 1971 reads: “(c) ‘criminal contempt’ means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which: (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court”.

A plain reading of the aforesaid provision shows us that any publication which scandalises or tends to lower the authority of the court amounts to criminal contempt. In Halsbury’s Laws of England (4th Edn.) Vol 9, (para 27 at page 21) on the topic ‘Scandalising the Court’ it is stated that scurrilous abuse of a judge or court, or attacks on the personal character of a judge, are acts of punishable contempt. Indian courts have relied on this standard in dealing with contempt cases concerning insinuating allegations against a judge.

In Rajendra Sail v Madhya Pradesh Bar Association (MANU/SC/0310/2005) the Supreme Court at paragraph 44 opined the following – “…but when it is said that the Judge had a pre-disposition to acquit the accused because he has a bias or has been bribed or attributing such motives, … the comments that a judge about to retire is available for sale, that an enquiry will be conducted as regards the conduct of the judge who delivered the judgment as he is to retire within a month and a wild allegation that judiciary has no guts, no honesty and is not powerful enough to punish wealthy people would bring administration of justice into ridicule and disrepute. … It has a tendency to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the Judge and to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice, it is also likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties.”

In DC Saxena v. Hon’ble Chief Justice of India, (MANU/SC/0627/1996) the Supreme Court at paragraph 40 held the following on contempt by imputations against a judge – “… imputing partiality, corruption, bias, improper motives to a judge is scandalisation of the court and would be contempt of the court. Even imputation of lack of impartiality or fairness to a judge in the discharge of his official duties amounts to contempt. The gravamen of the offence is that of lowering his dignity or authority or an affront to the majesty of justice. When the contemnor challenges the authority of the court, he interferes with the performance of duties of judge’s office or judicial process or administration of justice or generation or production of tendency bringing the judge or judiciary into contempt.”

To hyperactive, ethics-preaching journalists, it is trite to rely on the following advice of the Supreme Court – “All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.” (J R Parashar v. Prashant Bhushan, MANU/SC/0493/2001 at paragraph 18).

Justice Sikri was no less performing a duty brought to him by dint of holding the office of a Supreme Court Judge. His duty at the High Powered Committee was a judicial duty prescribed by the DSPE Act. In light of this, all unscrupulous, demeaning insinuations against him qualify for contempt.

Shivam Singhania and Shubhendu Anand

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