Harish Salve on Mid-Day case

In my post yesterday, I indicated that I had doubts as to whether the media had gone overboard on the Justice Y K Sabharwal case. My doubts were about the manner in which the case was reported, the point on which the Delhi HC based its decision to hold the journalists concerned in contempt of court.

In today's Indian Express, Harish Salve goes further. He is dismissive of the allegations themselves and he also makes the point that Sabharwal's judgement in the sealing case must be viewed in the broader context of several bold judgements he had made:

Every judge has his “foot print”. Justice Sabharwal’s footprint is that of a judge who took on controversial cases and dealt with them squarely. This is reflected in his judgments in the case relating to the expulsion of members of Parliament, the office of profit controversy, Bihar Assembly dismissal, the forest matter, and the Ninth Schedule matter.

His decision in the sealing case follows the same trend. There is nothing odd or curious about his decision in the sealing cases — and the bench hearing the case after his retirement continues to pass orders in the same direction notwithstanding the hamhanded attempt by the government to browbeat the court manifested in the intemperate (and rehearsed) outburst of one of its law officers.

The allegations against him that sought to cast aspersions on his motives in deciding the sealing cases, pursued after his explanation, ought to have been treated with contempt rather than in the contempt jurisdiction.

Salve, however, argues that the judiciary might show greater consideration to the media in such instances, especially where media reports may be well-intentioned. Stringent action against the media, while perhaps defensible on technical grounds, may have the effect of weakening the institution of a free press. And, after all, when it comes to enforcing accountability, the media and the judiciary are on the same side.

In a perfect world the intrusive methods of the Indian media would be an intolerable invasion of privacy and an unbearable encroachment on a citizen’s reputation. In contemporary India these methods have gone a long way in serving a larger cause of the fragile democracy of this nascent republic.

The action of the newspaper in publishing these allegations was clearly ill-devised. But in the circumstances, stern action of the kind taken by the court may have a “chilling effect” and may turn out to be a remedy worse than the disease.