People's Democracy

Contempt Case in Kerala:

A Vindictive Verdict

M A Baby

THE verdict of the division bench of Kerala High Court on M V Jayarajan in the contempt of court case has evoked spontaneous protest demonstrations across Kerala.

CPI(M) Kerala state committee member, Jayarajan was awarded  with six months of jail term and a fine of Rs 2000. This verdict comes after legal proceedings were initiated by the court against him for the alleged derogatory remarks about judges at a public speech on June 26. The speech was against a High Court verdict banning public meetings and demonstrations on roads. This was a democratic right enjoyed by people even during the British colonial rule. Many leaders of the democratic and progressive movements expressed their strong objection to this insensitive verdict of the High Court, as it is inconceivable to surrender their hard won rights on flimsy grounds. The alleged contempt of court case and the punishment meted to Jayarajan have to be seen in this context. It has to be noticed that even for those who expressed certain reservations about some formulations of the speech of Jayarajan, the High Court judgment was not acceptable. The verdict is harsh and unjust for the following reasons.

Firstly, maximum punishment for the offence has been awarded to the accused which is a very rare instance. Secondly ‘rigorous imprisonment’ is never awarded to an accused in a contempt case. Only simple imprisonment is awarded but in this case the judgment first pronounced was rigorous imprisonment. However, when the faux pas was brought to the notice of the judges, they have corrected the error in their verdict and stated that the sentence is NOT rigorous imprisonment.

Thirdly, the exemption to the accused to approach the higher court of appeal has been denied by the Kerala High Court which is a case of gross discrimination. In any punishment of less than three years, two weeks time is given for filing of appeal in the higher court. Apparently, the Kerala High Court did not want the CPI(M) leader to seek justice immediately from the higher court and Jayarajan is physically put in jail before the consideration of appeal. This shows the vindictive attitude of the judges which is unbecoming of the high and exalted position they occupy.

Kerala High Court earlier banned all mass mobilisation on public roads whether of religious, political or festive nature. This raised widespread resentment from different sections of people in general and democratic forces in particular.

Following this, the then LDF government, after having consulted other political parties and social organisations brought legislation in the assembly, viz, The Kerala Public Ways (restriction of assemblies and processions) Act, 2011. This bill was unanimously passed by the assembly and with the assent of the Governor on February 18, 2011, it became an Act. However, the High Court of Kerala again questioned this Act and effectively frozen its operation. While introducing reasonable restrictions on the rights of any section of the public to assemble and collectively move, the Act as passed by the assembly also ensured their inalienable right to participate in demonstrations and meetings with due permission from appropriate authorities. The High Court intervention was to prevent the operations of this democratic legislation.

Now with this excessive and harsh punishment meted out to Jayarajan, the Kerala High Court judgment raises many relevant questions related to the contempt of court law and its interpretations.

Justice Markandeya Katju, judge of the Supreme Court of India made certain thought provoking observations on this topic.

Justice Katju begins by quoting the preamble of our constitution: “We the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic and to secure to all its citizens, justice, social, economic and political, liberty of thought, expression, belief, faith and worship equality…. fraternity….’’ etc. and states that these words emphasize the republican and democratic character of our constitution and shows that all power ultimately stems from the people. Justice Katju argues that once this concept of popular sovereignty is kept firmly in mind it becomes obvious that the people of India are the masters and all authorities in India (including the courts) are their servants. “Surely”, the Justice underlines, “the master has the right to criticise the servant if the servant does not act or behave properly. It would logically seem to follow that in a democracy, the people have the right to criticise the judges.

Article 19 (1) (a) of the constitution gives the right to freedom of speech and expression to all citizens. But Article 129 and 215 give the power of contempt of court to the higher judiciary, and this power limits the freedom granted by Article 19(1) (a).

On the question as to how these two provisions can be reconciled, Justice Katju has the following to state: “In my opinion once it is accepted that India is a democracy and that in a democracy the people are supreme, the reconciliation can only be affected by treating the right of the citizen of free speech and expression under Article 19 (1) (a) to be primary and the power of contempt to be subordinate. In other words, the people are free and have the right to criticise judges, but they should not go to the extent of making the functioning of the judiciary impossible or extremely difficult. Thus, in my opinion the test to determine whether an act amounts to contempt of court or not is this: does it make the functioning of the judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court, even if it is harsh criticism.”

It is hoped that the learned Judges of the Kerala High Court who have pronounced their judgment on M V Jayarajan would go through this clear and unambiguous observations of Justice Markandeya Katju in order to undertake a dispassionate introspection.