'It cannot be stated sufficiently strongly that the public life of persons in authority must never admit of such charges being even framed against them. If they can be made, then an inquiry, whether to establish them or to clear the name of the person charged, is called for.’ What was sauce for Bihar’s Chief Minister KB Sahay is sauce also for the former Chief Justice of India YK Sabharwal under CJI M Hidayatullah’s ruling. The charges are specific. Public interest mandates an enquiry. A CM is subject to checks. A CJI to none.
That is the heart of the Mid-Day case. A citizen’s right to publicise charges on the strength of documents and demand a probe. Mid-Day published on May 2, 2007, a report alleging that Justice Sabharwal “who nearly demolished half of Delhi to stop commercialisation of residential areas, had three commercial companies owned by his sons running from his official residence at 6, Motilal Nehru Place in New Delhi”. It reproduced his denial of knowledge. The writers Vitusha Oberoi and MK Tayal [Editor and City Editor respectively] sought his explanations. “When questioned if the shifting of the registered office (of the companies from Punjabi Bagh residence) to Motilal Nehru Place was legal, Justice Sabharwal hung up."
Further reports appeared on May 18, 19 and 23. Pleas for probes by lawyers and others were published on May 19. Anand said, "If it’s true he should be brought to book and must be prosecuted. This man demolished the whole of Delhi.” However, on May 21, Anand placed before the Delhi High Court a copy of the issue of May 18 in which was published: “he alleged that a scandalous article maligning the former Chief Justice of India and tending to lower the image of the judiciary”. Justices RS Sodhi and BN Chaturvedi issued showcause notices to the writers and to the printer and publisher SK Akhtar. On May 25, Anand filed a copy of the issue of May 19 which carried a cartoon by M Irfan Khan.
They pleaded ‘truth in the public interest’, a defence explicitly permissible under an amendment to the Contempt of Courts Act; the reports were based on documents available on the website of the Registrar of Companies; Sabharwal was no longer in office; Sabharwal should not have sat on the bench which passed sealing orders on businesses which benefited his sons who invested in malls.
On September 11, the court held the four guilty of contempt of court and sentenced them to four months imprisonment on September 21. There was justified uproar at the result. Mid-Day’s reports said less than did a press release of August 3, issued by the Campaign for Judicial Accountability and Reforms, with 15 annexures of supporting documents. Its patrons comprise judges like Justice VR Krishna Iyer, lawyers like Shanti Bhushan and public figures like Arudhati Roy and Admiral RH Tahiliani. It was entitled ‘Whither judicial accountability? The case of Justice Sabharwal. Disquieting facts, disturbing implications’. Its criticisms are valid. “While the power of higher judiciary has greatly increased… Its accountability has been gradually reduced… A draconian contempt law has been used to silence any public and media scrutiny of judicial misconduct.”