There is an old joke amongst lawyers. Annoyed with a lawyer’s argument, the judge asks the lawyer: “Counsel do you take me for an idiot?”

Pat comes the answer from the lawyer: “Your honour, I can’t answer that question without being sent to jail for either contempt or perjury.”

Closer to reality, the Supreme Court on 30 January sent MV Jayarajan, a politician from the CPI(M) to jail for four weeks for calling judges “sumbhan” during a firebrand speech criticising judicial activism in the Kerala high court.

The word “sumbhan” apparently means “idiot” in Malayalam.

So how did India end up with a contempt law which is starting to resemble medieval laws against blasphemy?

So what exactly is contempt of court anyway?

In India, the Contempt of Courts Act, 1971 divides contempt into civil contempt and criminal contempt.

Civil contempt is when a person wilfully disobeys any order of a court (a recent example of civil contempt would be Sahara’s chief, Subratra Roy, who was sent to jail for failing to obey an order of the Supreme Court to pay a lot of money to Sebi).

Criminal contempt is “interfering” with the administration of justice (for instance, interrupting a court hearing by singing obnoxiously), or “scandalising” the court or “lowering its authority”.

MV Jayarajan was convicted for scandalising the court and lowering its authority.

Surely there must be some criticism of the Indian judiciary that's ok?

Yes, some.

For example, the Contempt of Courts Act, 1971 very clearly states that fair criticism of any case which has been heard and decided is not contempt. And as conceded by even the judges who put away Jayarajan:

“Judges expect, nay invite, an informed and genuine discussion or criticism of judgments but to incite a relatively illiterate audience against the Judiciary, is not to be ignored.”

So what would count as incitement then?

The problem for judges clearly arises when either the judiciary is criticised or individual judges are publicly questioned on their integrity.

For example, in 1970, when EMS Namboodripad, then-communist Chief Minister of Kerala, made a comment on how Marx and Engels considered the judiciary to be an instrument of oppression, the Supreme Court punished him for contempt on the grounds that he lowered the prestige of judges and courts in the eyes of the people.

That said, Namboodripad was let off with a fine of Rs 50.

And in 1988, when another politican Shri P Shiv Shankar made similar comments about how Supreme Court judges displayed class bias in cases on land reform, the contempt petition filed against him was dismissed by the apex court.

To be honest, those punishments don't seem so bad...

You're kind of right, but often the punishment lies in the process itself: having to pay lawyers, fighting your way through various courts for years and worrying and wasting your own time for months and months, is not a pleasant experience.

Well, then people should ensure they don't incite disrespect against judges!

Well yes, that's what basically ends up happening, but usually editors, journalists, academics and lawyers are so unclear on the boundaries of contempt law (or testing those boundaries) that they prefer to keep silent when it comes to criticising the judiciary, even if such criticism might be fair.

In a way, criminal contempt laws in India are as vague and oppressive as Section 66A of the IT Act, which could criminalise something as vague as an annoying Facebook post criticising the late Bal Thackeray.

And just as a draconian Section 66A has a chilling effect on free speech over the internet, criminal contempt laws have a chilling effect on any possible criticism of the judiciary.

I see the problem. So what then is fair criticism of the Indian judiciary, other than criticism of their judgments?

There is honestly no completely accurate answer to that question, but we can get closer through a process of elimination.

Simply publish a statement you deem “fair criticism” of the judiciary in a newspaper that is read by a judge of a high court or Supreme Court. If you don’t receive a contempt notice for scandalising the court, you are probably safe.

Or you could use as guides a few writers and journalists like Arundhati Roy and Madhu Trehan who already carried out that risky experiment.

Roy criticised the court in an – according to the judges - “absolutely not necessary” affidavit, which she filed in another contempt case against her. While the latter contempt case was dropped, her affidavit accused the court of “a disquieting inclination on the part of the [apex] court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it”, which was “doing its own reputation and credibility considerable harm”. Roy, unrepentant and unwilling to apologise, got a “symbolic” one day in jail and a Rs 2,000 fine for that statement.

Trehan got away with an apology, accepted by three out of five judges, after having having rated judges in categories such as punctuality, integrity, judgment quality, depth of basic knowledge, manners and receptiveness.

So what in heaven did poor Jayarajan deserve four weeks of jail time for?

Jayarajan, in his fiery speech, reportedly said (in translation): “Why should those Judges sit in glass houses and pass verdicts any more?”, and “today is the day on which the verdict of two senior Judges of Kerala High Court has been given only the value of grass”, and that “if those judges have any self respect, they should resign and quit their offices”.

In his later defence, Jayarajan claimed that he was only trying to criticise a high court judgment that banned meetings on public roads to prevent accidents.

He also claimed that his comments, made in a public but unscripted speech, were misreported by the media that quoted the word “idiot” out of context.

And finally, he also claimed that “Sumbhan” did not actually, in any translation, mean “idiot” or “fool”.

But while his entire explanations were very apologetic in tone, he expressly declined to apologise for his statements; something that the Supreme Court took explicit note of.

The judges ended up buying neither his translation nor his excuses offered, but found “an intentional and calculated obstruction in the administration of justice”, which “requires to be roundly repulsed and combated”, on the grounds that he was trying “to incite a relatively illiterate audience against the judiciary”.

So if he had said the same before a 'relatively literate' audience he might have got off?

Maybe, we'll never know. It was probably a judgment call...

How about if he'd said sorry?

Possibly. In any case, it definitely wouldn't have hurt, as even without an apology the judges showed him some mercy and reduced his original jail sentence from six months to only four weeks.

So can I call a judge an idiot or not?

It's probably not a good idea, especially if it's likely your outburst will be carried by several newspapers and TV channels.

How about corrupt? Can I call a judge corrupt?

Generally that's not advisable, although theoretically truth is a defence under contempt law so if you have very strong evidence of such corruption, you should be able to call a judge corrupt.

However, in 2007, four staff from Mid-Day - publisher, editors and a cartoonist - were sentenced to jail for contempt when they published a story accompanied by a cartoon of how the sons of a former Chief Justice of India benefited from the orders of their father.

The lawyers for Mid-Day tried arguing that truth was a defence, but the high Court found them guilty of contempt because the “nature and context” of their “revelations”, “tarnishes the image of the Supreme Court. It tends to erode the confidence of the general public in the institution itself”; it was left to the Supreme Court to stay the operation of the sentence.

So should we perhaps get rid of the ‘scandalizing the court’ law?

Like many other laws, we’ve inherited the offence of ‘scandalising the court’ from the British. Initially, it was reasoned that judges were appointees of the king and to abuse the judge was to abuse the king himself.

Except, the last time the UK convicted a person for scandalising the honour of the judiciary, was 1931 - i.e. 84 years ago.

Even when the Daily Mirror carried an upside-down photograph of three “law lords” with the caption, “YOU FOOLS”, while criticising their judgement, no action was initiated against the paper for scandalising the judiciary.

In 2012 the UK Law Commission recommended abolishing the offence of scandalising the court.

But the court is the last great and mostly unsullied bastion of our democracy. If the judiciary didn't have 'scandalising the court' in their arsenal, Indian newspapers would misbehave and the courts' authority would be lowered in the eyes of the common man.

Indeed, so they say...

Prashant Reddy Delhi-based lawyer.

A version of this article was first published in Mint.

Photo by Augustus Binu