Why Meghalaya HC order against editor, publisher of Shillong Times is unlikely to pass judicial scrutiny

Even as the editor and publisher of Shillong Times, Patricia Mukhim and Shobha Chaudhuri prepare to challenge in the Supreme Court the order of the Meghalaya High Court holding them guilty for Contempt of Court, legal experts have expressed their dismay at the order and the process.

A bench comprising the chief justice M.Y. Mir and Justice S.R. Sen, who retired soon after dictating the order on March 8, had taken umbrage at two reports published in Shillong Times. The reports had correctly mentioned an order by Justice Sen to the state government to ensure that retired judges, their spouses and children be accorded the same medical facilities, protocol, Internet and mobile charges etc. at par with what was being made available to serving judges.

But Justice Sen held the two ladies guilty and ordered them to pay a fine of Rupees two lakhs each within a week, failing which they would be imprisoned for six months and the newspaper banned.

The order is unlikely to pass judicial scrutiny, say experts, for the following reasons:

1. The reports in Shillong Times referred to by the Meghalaya High Court were factual reports of judicial orders.

2. The high court has no power to ban publication of a newspaper for ‘contempt’

3. The high court can under the Act impose a fine of up to Rupees two thousand for ‘contempt of court’ and/or imprisonment up to six months. It cannot arbitrarily impose a fine of Rupees two lakhs.

4. The Act allows fair criticism of judicial pronouncements

5. Meghalaya High Court dispensed with laid down procedure, framed no charges and called for no evidence before concluding a summary trial

What is even more shocking is that the Meghalaya High Court refused to accept an unconditional apology on the ground that it was not sincere enough and had been tendered to avoid punishment. The court apparently was rude to the ladies and ordered them to sit in a corner till the rising of the court for the day.

The Editors’ Guild of India and journalists’ bodies have ‘ slammed’ the judgment, especially the part which reads, “ When the matter is pending before the Court, media has no business to comment on it and media is also not a party to this case. Secondly, media is not to dictate the Court: what the Court should do and should not do. Therefore, I find that it is purely contemptuous.”

In recent times the media have debated and commented on several high profile cases including the midnight coup in the CBI and prayers for an independent investigation into the Rafale deal. But the Meghalaya High Court apparently believed that such discussions in the media amounted to interference in the administration of justice.

Legal experts are hopeful that the order will be struck down by the Supreme Court. But they also believe that the contempt of court jurisdiction needs to be revisited. Since Justice Sen denied being rude to the defence counsel and asking him to ‘shut up’ , the apex court may also be urged to explore the possibility of video recording court proceedings.

Gautam Bhatia, lawyer, researcher and scholar summed up the controversy in his blog and wrote, “Paraphrasing a tweet that I read earlier today: “if the judges of the Meghalaya High Court were any more fragile, they’ll have to be checked in with fragile items and a sticker on top at the airport to be able to fly.”

Bhatia concluded by writing, “ When this judgment is appealed, one can only hope that cooler heads in the Supreme Court will be equal parts amused and equal parts alarmed, and consign it to the scrap heap without much ado. And if such judicial pyrotechnics – coupled with what has been going on in the Supreme Court recently – do not prompt an urgent conversation about the dire necessity for doing away with this “boundless and boundlessly manipulable” contempt jurisdiction, one of the most stifling weapons against freedom of speech in contemporary India, nothing ever will.”