Why this “contemptuous” double standard Your lordships?

Article 129 of the Constitution of India – Supreme Court to be a court of record – The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself..Former Supreme Court judge, Markandey Katju has long since been known for his maverick ways and opinionated posts on social media. After retiring from the post of the Chairperson of Press Council of India, the retired judge has been very active on Facebook with long winding posts on judiciary, politics and religion..A number of his posts have been picked up by both mainstream, and alternate media; at times the posts push the boundaries. The Parliament had also condemned Katju once for his posts about Mahatma Gandhi and Subhash Chandra Bose prompting him to move the Supreme Court to quash the same..Despite all these, those at the helm have largely been indifferent to the tirades of the former Supreme Court judge choosing to ignore them despite being played up by the media. Katju’s post on former Chief Justice of India, HL Dattu, and his assets had created quite a stir..In his most recent post on Facebook, Katju has taken things too far by making some scathing attacks against the current crop of Supreme Court judges, singling out the names of four judges..The post titled ‘The intellectual level of Supreme Court judges’ posted on September 18 has taken a dig at Chief Justice of India TS Thakur, and Justices Anil R Dave, Dipak Misra and NV Ramana while granting an honourable exemption to Justice Rohinton Nariman and Justice Jasti Chelameswar..“While some of them have high intellectual level and character, like Justice Chelameshwar and Justice Nariman, the vast majority of the present Supreme Court Judges are people of very low intellectual level”, the post says..He goes on to say that from his experience as a Supreme Court judge, he was able to gauge the level of “intellect” of his brother judges..“The level of their conversation was usually about cricket or the weather, never on any intellectual subject….Not once did I hear any discussion by Supreme Court judges about the theories of jurisprudence, e.g. the historical jurisprudence of Savigny and Sir Henry Maine, natural law, the positivists like Bentham, Austin, Hart and Kelsen, the sociological jurists like Jhering, Ehrlich, Durkheim, Geny, Roscoe Pound, Frank, Llewelyn , Gray, etc. …...Probably most Indian Supreme Court judges have not even heard of their names, nor of Justices Holmes, Brandeis, Frankfurter, Douglas or Hugo Black, or of their contributions.”.All these seem quite ordinary and predictable from Justice Katju. But not the ensuing tirade against four sitting judges which seems to have thrown caution to wind. The attack on Justice Dipak Misra seems to stand out among the four..“Justice Deepak Mishra, in line to become CJI, was appointed a Judge in Orissa High Court at a very young age because of the influence of his relative Justice Ranganath Mishra, former CJI, who was one of the most corrupt judges in India.”.Similar attack has been made on Justice Ramana about whom he says:.“Justice Ramana, who is also in line to become CJI, was appointed as a High Court Judge in Andhra Pradesh at a very young age due to his political connections, and later became Supreme Court Judge not because of merit but purely due to seniority.”.Ever since Justice Katju has embraced social media, the Supreme Court has always maintained a stoic silence.The question is, will this silence continue after the September 18 post?.More importantly, should it?.The latitude granted to Justice Katju is a luxury that has rarely, if at all, been afforded to common man or even members of the Bar. The Supreme Court has frequently used its contempt powers to heckle the Bar, media and the laymen. The country’s High Courts are no different..Just last month, Gujarat Senior Yatin Oza was made to tender an unconditional apology for writing against two sitting judges of the Gujarat High Court..Oza’s letters and the language used by him had greatly upset Justice Dipak Misra who had condemned Oza in strong words:.“This is contempt on the face of it. How can a President of the Bar support such language. Don’t kill the institution. He may be the Bar President but he does not have the right to kill the institution. How can you blame the institution?”.Another advocate, who has been at the receiving end of Supreme Court is Prashant Bhushan. He has been hauled up for contempt more than once – the most infamous being the suo moto contempt initiated against him for his remarks against sitting judges in an interview given to Tehelka..The media too has not been spared. The Rs. 100 crore episode involving Times Now news channel would perhaps be the most infamous one in which the Supreme Court had refused to interfere with the order of the Bombay High Court directing it to deposit 100 crore before taking up its appeal against a trial court verdict in a defamation case..And if we go back a good fifteen years, there was the apology of Madhu Trehan and the magazine ‘Wah India’, which were in the line of fire of Delhi High Court for publishing an article “rating the High Court judges.”.But just what is contempt of court, and why is it so important?.According to its own decision in the Supreme Court Bar Association case, the apex court held,.“The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law. It is an unusual type of jurisdiction combining “the jury, the judge and the hangman” and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge but to protect the administration of justice from being maligned…. No such act can be permitted which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice.”.A few years earlier, in Jaswant Singh’s case the apex court ruled that the “safeguard” of contempt jurisdiction is,.“not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the courts and for upholding the majesty of law. …Fair comments, even if, out-spoken, but made without any malice or attempting to impair the administration of justice and made in good faith, in proper language, do not attract any punishment for contempt of court. However, when from the criticism a deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute the courts must bestir themselves to uphold their dignity and the majesty of law.”.Most recently, in Subrata Roy Sahara v. Union of India & Ors., the Court had held that besides punishing those who interfere in due course of judicial proceedings and those who obstruct the administration of justice, contempt jurisdiction extends to punishing those who scandalize or lower the authority of any Court..But this deafening silence over Justice Katju’s comments is dangerous in more ways than one. After all Justice Katju is a former judge of the country’s most important court; his words and observations are automatically presumed to have a certain amount of truth and accuracy. People are more likely to lend credence to Justice Katju’s comments than some rank outsider..Furthermore, the silence also lends support to the theory that the court is reluctant to act against one of its own. The double standards are quickly becoming the elephant in the room..It is a known fact that the judiciary has always refrained from acting against its own even when the credibility of the institution was at stake. Justice AK Ganguly and Justice Swatanter Kumar are as free as any free man..Whether the latest of the rants from a person, whom the most top brass have always chosen to ignore, would shake up the Supreme Court of India or whether he will be honourably exempted remains to be seen.