Armed with 35 years of hindsight, Justice Bhagwati, in 2011, expressed regret for his 1976 Judgment upholding Prevention Detention during the Emergency. Justice Chandrachud did so in 1978 in case his chances of being CJI were blighted. Were these declarations simply a flourish to catch the public eye? Do Judges even concede they are wrong?

Former Justice Markandey Katju learned the answer, the hard way. 

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“Many years ago, it used to be a rather interesting feature of one of the English publications to draw pointed attention, in parallel columns to the strangely anomalous differences between the sentences imposed by various Magistrates and Judges in cases which seemed, from the reports, to present a fair similarity of facts. In some quarters, the criticism, often unexpressed in actual words, was resented as taking no account of circumstances which a Judge was fully entitled to give effect to, though they might not strike the ordinary reader of the press reports. But on the whole, it was felt that, in the majority of instances, useful public service was rendered by this showing up of the inequalities of legal punishments.”

– Andre Paul Terence Ambard, The Human Element, The Port of Spain Gazette, 1934.

“All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.”

– Lord Denning, Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn, [1968] 2 W.L.R. 1204.

“Justice is not a cloistered virtue… she must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men.”

– Lord Atkin, Ambard v. Attorney-General for Trinidad and Tobago, [1936] A.C. 322.

Shri P. Shiv Shankar, the then Hon’ble Minister for Law, Justice and Company Affairs, delivered a speech before a meeting of the Bar Council of Hyderabad on 28th November, 1987: “Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court.” The SC found the language to be ‘intemperate’ but considered that there was no imminent danger of interference with the administration of justice, nor of bringing an institution into disrepute. On that view the Minister was held not guilty of Contempt of Court.

“As has been rightly observed by Justice Markandey Katju, there is a lack of uniformity in contempt cases because even after ‘contempt’ was defined in The Contempt of Courts Act, 1971 there was no definition offered regarding ‘what constitutes scandalizing the Court’, or ‘what prejudices, or interferes with, the course of justice’. Thus there is still a huge scope left for the Court to intentionally or unintentionally utilize the power of contempt proceedings in an attempt to reassure itself of its authority and dignity.”

 – Contempt of Court: Finding the Limit, (2009) 2(1) NUJS Law Review 55.

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“Prima Facie, the statements seem to be an attack on the Judges.”

– Gogoi, Pant and Lalit JJ., In Re: Markandey Katju’s Facebook Posts, [Suo Motu Contempt Petition (Criminal) No. 4-5 of 2016].

Red flags raised by Justice Katju is not new. They have been flying high for decades. Following Katju’s post there was enough debate on the issue. People commented and most of them agreed to Justice Katju’s criticism. However, his standard reply to a host of comments that questioned his position and remark was, “You have no idea of the extent of corruption in the judiciary”. Constructive criticism is essential for the growth of any institution. But it remains a fact that even the most well-intentioned ‘constructive’ criticism of judiciary remains a privilege enjoyed by few and always battles the risk of being hounded by a case of contempt.

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Inside a Courtroom, Former Judge Markandey Katju was, on 11.11.2016, pulled up for contempt over blogs criticizing Supreme Court Judges. “I don’t bother,” he declared before storming out.