THE CHICKENS WILL COME HOME TO ROOST

The judgement of the Supreme Court in Shreya Singhal is lauded, quite rightly for its scholarly attempt in striking down a penal legislation and the English press is more vociferous in its excitement. However two of the grounds on which the constitutionality of Section 66A is mainly tested viz., its vagueness and chilling effect may embarrass the Supreme Court when it sits to hear a Criminal Appeal pending on its file in Criminal Appeal No. 1234 of 2007.

It was in 2007, Mid Day ran certain investigative stories on the retired Chief Justice Y.K.Sabharwal, suggesting that he allowed his sons to benefit from the series of orders he passed, presiding the Court as Chief Justice to seal thousands of shops, houses and commercial complexes that cropped up all over Delhi in violation of Master Plan. The allegation was that such steamrolling of all commercial establishments into dust raised the demand for spaces in the Malls, where his sons had stakes.

Mid Day made known its intentions more succinctly by publishing a cartoon, depicting Chief Justice Y.K.Sabharwal in his robes holding a bag with currency flowing out and a man in the sidewalk crying ‘Help! the mall is in your court’

It was the cartoon more than the articles, which made the Delhi High Court to go livid with anger when Senior Advocate R.K.Anand brought them to its notice, which promptly initiated Contempt proceedings against the Cartoonist Irfan Khan besides the Editor, Printer and the Publisher trio. In the words of the Delhi High Court, the cartoon and the articles were aimed at lowering the image of judiciary. As expected Bhushan Sr. and Junior, stepped in aid of the contemnors.

In a strange irony of facts, R.K.Anand who made the Court to initiate contempt proceedings against Mid Day within few days found himself caught on tape in a sting operation, bribing a witness in the infamous BMW hit and run case and was proceeded against for contempt and punished within an year.

In Mid Day case, Bhushans defended the contemnors, submitting that Justice Y.K.Sabharwal was already retired no longer holding Court; and the element of truth. The Delhi High Court was not impressed and in a brief order sentenced the contemnors to imprisonment for four months. The Delhi High Court held that in the garb of attacking a retired Justice, the contemnors scandalised the Institution. The press all over India instantaneously rose up in protest against the sentence.

The Supreme Court brought in a temporary truce in suspending the sentence and it will be exciting to any student of law, if the Supreme Court takes up these appeal and hear it in the light of its observations in Shreya Singhal case on the ‘manageable standard' by which a person can be said to have committed an offence or not have committed an offence’

It is interesting to note whether the terms ‘scandalising the institution’ and ‘lowering the image of judiciary’ will be examined in the new findings of the Supreme Court that ‘ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed so that arbitrary and discriminatory enforcement of the law does not take place’

The Mid Day Cartoon and the Articles were there before the nation and the entire press, barring few exceptions thought that the contemnors did not cross the ‘Laxman rekha’ to be hauled up for contempt; Will it be safe, in such a scenario to leave it to the wisdom of two learned Judges to say the collective wisdom of thousands of Cartoonists, Correspondents and Intelligentsia who rose in support of the contemnors as wrong?

I can’t wait, the day when the chickens will come home to roost!

Madurai
29/03/15