[Ed Note: As part of our series marking 15 Years of Law and Other Things, we bring to you posts from our long-time contributors and supporters! In this post our Senior Editor V. Venkatesan writes about the contempt case against the actor Suriya]

I am surprised that In re: Suo Motu Criminal Contempt  No.791 of 2020  pronounced by the Bench of the Chief Justice Amreshwar Pratap Sahi and Justice Senthilkumar Ramamoorthy of the Madras High Court on September 18 has evaded the serious and trenchant criticism in the media which was evident on the conviction and sentencing of lawyer, Prashant Bhushan by the Supreme Court recently.  

On the face of it, it may appear that since the court did not find actor Suriya’s statement contemptuous, and dropped further proceedings against him, the matter ends there.  But when one reads the order carefully, it would appear that the court has indeed found him guilty, although it avoided using the word ‘contempt’ or ‘conviction’ which would have required the court to issue him a formal notice, and hear his defence. 

What Suriya said in public has to be reproduced in order to appreciate the court’s order closing the case. Suriya has been quoted by the court as saying that judges in general are apprehensive of their own lives functioning through video-conferencing, yet they displayed a practice contrary to what they preach vis-à-vis the matter relating to students appearing for the National Eligibility cum Entrance Test (‘NEET’) examination. 

The Bench then referred to Justice S.M.Subramaniam’s letter to the Chief Justice dated 13^th September, 2020 as being offensive to the judicial system in general, which undermined its majesty through a criticism which is a threat that may result in loss of public confidence in the judiciary.  The Bench also took note of concerns expressed by a cross-section of people from the civil society debating the pros and cons of the issue, and about the proposed contempt action against Suriya.  

The Bench then noted the Advocate General (‘AG’) Vijay Narayan’s opinion in the shape of an order declining to consent for any step to initiate a criminal contempt proceeding. 

At this stage, the Bench could have closed the proceedings deferring to the AG’s opinion.  But it didn’t. Rather, they justified its decision to render a ‘judicial opinion’ apart from the administrative exercise that it undertook before the AG, because Justice S.M.Subramaniam, one of the Judges of the High Court, requested it to draw suo motu proceedings.  The Bench then saw no problem in invoking Section 15 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution which empowers the high court to initiate suo motu contempt proceedings.  “It was, therefore, directed that the present proceedings should be registered for a delivery of opinion on the judicial side as well”, the Bench noted in its order.

The Bench then went on to pronounce its opinion on whether Suriya’s view publicly expressed is a fair criticism or not.  It is here the Bench’s decision turned out to be erroneous.  How could the Bench pronounce an order saying that Suriya’s comments were unfair, without hearing him in the first place? 

In Paragraph 5, the Bench observed: “The background in which the statement of the cine actor has been taken to be a subject matter of undermining the authority of the court and Judges and devotion of the Judges towards their duty, is their mode of functioning through virtual hearing during the pandemic, which may be a sneer, but before a scoff or a mocking comment is made, it should also be weighed as to whether it is fair criticism or not.  This too at the instance of one who is stated to be a philanthropist and a self-righteous person dedicated to the cause of public at large….The freedom of speech to call a spade a spade and to exercise free unrestrained speech are two different dimensions.   The Right to Freedom of Speech that includes fair criticism is guaranteed under the Indian Constitution, but the same Constitution also protects and insulates judicial governance from insidious and derogatory comments under Article 215 of the Constitution and the laws made thereunder”. 

Surely, Suriya has a right to defend himself from this insinuation that his comments were unfair.  What if he genuinely disagrees with the Bench’s view that the freedom of speech to call a spade a spade and to exercise free unrestrained speech is one and the same, and not two different dimensions?  What if Suriya believes that his freedom of speech that includes fair criticism is not inconsistent with Article 215 of the Constitution, and that he did not make insidious and derogatory comments, as the High Court erroneously assumes that he did? 

The point to be noted here is that the high court converted the contempt proceedings as ex-parte proceedings against Suriya, and it assumed it didn’t have to issue notice to him and hear him only because it didn’t consider it as ‘contemptuous’.  

In the garb of contempt proceedings which were considered and dropped as unnecessary, the Bench expressed its opinion about the actor’s comments, without giving him an opportunity to defend himself.  By converting the proceedings ex-parte it made comments about the actor’s conduct, and his standing in the profession, adversely affecting his reputation in the eyes of the public.

This is worse than the Supreme Court’s contempt proceedings against Prashant Bhushan, because in that case, the court had given him an opportunity to rebut the allegations against him, and defend himself from the charge of contempt of court.   In the Prashant Bhushan case,  the court fell short of full compliance with the requirements of natural justice, by denying him a copy of the original petition, which it took note of on the administrative side, before converting it as suo motu proceedings on the judicial side.  But none can accuse the Supreme Court of not hearing Bhushan, before finding him guilty of contempt, and then after a lengthy hearing again, sentencing him with a fine of Rs.1.

Neither the Contempt of Courts Act, 1971 nor the High Court’s inherent powers to punish someone for contempt of itself empowers the high court to find someone “less than guilty of contempt”, by passing severe strictures, as it has done with regard Suriya.

Contempt of Courts Act, 1971 enables the court to find someone guilty of contempt, but still leave him or her free without imposing any punishment.   Therefore, could the high court have passed the order finding Suriya’s statement not contemptuous enough to merit sending him a notice, but yet describe it as “unfair”?

In Paragraph 11, the Bench says reliability of sources of information should always be observed when people occupying a public space speak on issues that deserve to be based on ground realities.   The inference which the Bench makes here is that Suriya’s statement did not so observe, though he was occupying a public space.  

The Bench then adds that any statement bereft of foundational facts may be fraught with a danger of spreading prejudices and adding to the ignorance of the public at large. Again, Suriya has been condemned without hearing him.  In response, the court appears to be saying, “We are not finding you guilty of contempt, so we are free to criticise you in our order without hearing you”.

Speculations and narratives with embellishments may be a form of advertisement, but it should not be an off the cuff depiction, the order says. Was Suriya’s statement an off-the-cuff depiction?  Does he not have the right to say it, because he occupies a public space? The court does not enter into a debate into all these, as if it does not want to hear even respectful disagreement with its view. The court does not appear to think that Suriya may have a different view on this, and it is not fair to disparage him without hearing him, even though there is no prima facie finding of guilt against him.

So, how does the court justify the proceedings without giving Suriya a notice to appear or defend himself? The court denies that it had a ‘compulsive obligation’ to do so, but justifies it because there are ‘such issues in larger public interest’ which must be settled to satisfy inquisitive, agitating and anxious minds, and ‘to bestow a judicial opinion’.   

It also justifies the order because the matter involves both dispensation of justice, and upholding the majesty of the court itself, with foundations in the faith of the public at large.   

One is tempted to ask whether by holding ex parte proceedings as it did on Friday, without naming Suriya and elevating him to the level of the respondent-accused in this case, it could restore the faith of the public at large and uphold the court’s majesty, especially because it chose to tarnish the image of the actor by its unsavoury comments about his statement.

Many thanks for the student editors who thought it appropriate to invite me to contribute to mark LAOT’s 15^th year].