In late May and early June, with mounting reports of people needing medical attention being turned away from hospitals, the Supreme Court ordered doctors striking against the proposed extension of quotas in elite educational institutions back to work. And by and large, the doctors complied, returning to their places of employment. The success of this intervention, however, should not blind us to the difficulties inherent in the court's chosen method for intervention.

In the justices' view, since the merit of 27% OBC reservations was now a matter before them for consideration, there was little need or further justification for the strikes. On this sub judice matter, they felt that continuing the strikes would amount to disrespect for their roles, and therefore invite contempt of court if continued. Quite likely, it is this fear of judicial action, combined with the threat of action by the Health Ministry - and not their confidence that the court will resolve the matter itself satisfactorily - that pushed the anti-quota protesters off the streets.

While the justices directive did push the striking doctors to back down, did the court go too far in threatening to invoke contempt charges to quell the protests?

Contempt of court is certainly a grave offence, and clearly one that justices are empowered to check wherever necessary. This, we do not question. But when do protests and expressions of speech on an issue being heard by the court become contemptuous? When do citizens run the risk of disrespecting the court merely because a volatile case is being heard? When might it be fair for our courts to charge citizens or media with contempt? We believe that these questions are not yet settled.

Most dissent does not invite contempt

Let us begin with the following observation: Although nearly everything that happens in a court can be called sub-judice - i.e. 'awaiting judgement' - the courts themselves issue such gag orders in only a tiny minority of cases. This suggests that in most cases, it is alright for citizens to have opinions on matters that are being considered by the courts.

Having forced the doctors back to work, for instance, can the courts parallelly restrain the government from any further consideration of quotas until the matter is fully settled in court first?

 •  Dissent isn't defection
 •  Contemptible, but true
 •  The doctors keep away
 •  The politics of illusion

This is as it should be. In a free society with representative government, public positions on government policies and actions are par for the course. Given how long it takes for matters to be resolved in Indian courts, and how contentious many disputes are, and equally, how much all of this has been factored in our people's thinking about redressal, it is hardly reasonable to imagine that there would be no public voices during the time it takes to resolve differences, disputes or end prosecutions. Most public matters before the justices are simply 'in court', and not necessarily sub judice to the extent that public expression of opinion would merit contempt charges.

For many contentious cases, such tolerance is the only practical choice, anyway. When an anti-conversion law is challenged in the courts, does that mean that neither minorities nor Hindus should have public positions on the legislation anymore? Would Sikhs demanding justice for the 1984 riots have been in contempt of court, simply because some individuals were being tried for their crimes before the judiciary? Not at all, and any suggestion to the contrary would have raised eyebrows.

The 'separation of powers' problem

Second, when the government itself is one of the parties to a dispute, this introduces a de facto restraint upon the court, inevitably limiting its gag orders. Given the separation of powers between legislative and judicial arms of government, and Parliament's repeated claim to exemption from various laws that apply to ordinary citizens, this restraint is vital to preserving the court's own separate powers fully. This is especially so in a setup where our executive (central government) and legislature (Parliament) often act as if they were one, rather than independent arms of government.

Having forced the doctors back to work, for instance, can the courts parallelly restrain the government from any further consideration of quotas until the matter is fully settled in court first? Not a chance. Parliament will never accept such a restriction; indeed, if the court were to find new quotas unacceptable, it can be safely assumed that many legislators will attempt to get that overruled by passing new laws. The action against doctors, therefore, has amounted to restraint of one party in an ongoing dispute. This does not inspire confidence in the other party (the doctors), which is why they have to be threatened with prosecution for contempt of court.

A clearer standard

The Supreme Court must draw a clearer distinction between matters that are simply in court, versus others that are sub judice enough to be left entirely to the courts, and therefore likely to attract contempt charges if taken to other arenas. One way to draw this distinction is by using two criteria to determine which cases are of the latter type. First, the court must be final arbiter of the matter under consideration; and secondly, the court must be able to sufficiently and equally impose itself on all parties to the dispute while the matter remains before it.

In this particular case, there is a further problem. By passing the 93rd Amendment to the Constitution, Parliament has already empowered itself and the executive in developing law and policy that explicitly control admissions in educational institutions, leaving little room for court opinions. Clause 5 added to Article 15 reads:

"Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30."

The court's order to striking doctors failed both of these tests. Not only is the court unlikely to provide the final word on reservations in public and private institutions, its intervention amounted to a restraint of one side only, leaving the government free to pursue its policies while opposite views have been shackled.

Note, in particular, that even the explicit threat of a contempt charge has not ended all protests and public expression of opinion. Even after the courts intervention, pro-reservation rallies and public expressions have continued, while the anti-quota stir has subsided. Clearly, pro-reservationists sense that they have the weight of the political parties behind them on the matter, and as a result, feel that the judges' warning against protests is not a significant threat. It's almost as if the anti-quota groups alone were silenced, in effect. Surely, this is not the outcome the apex court desired from issuing its caution.

One other point. The remedy of getting striking public service personnel (such as doctors) back to work could also be achieved in the same manner that essential services are protected against disruption from strikes and protests by overriding legislations. The fact that such remedies are in place in many states and those legislations have withstood judicial scrutiny against the Constitution's riders indicates those avenues work adequately.

In sum, restrictions placed by courts on disagreeing parties' actions in public spaces are best kept to a minimum; indeed, it would be best if they are used only in disputes not involving the government, and altogether avoided where the government itself is a party. Threatening contempt merely gives the appearance that the court is acting to preserve its prestige in a political environment that does not respect the courts. That is the politicians' fault, and citizens must not pay the price, or be seen to paying the price, with their freedom of speech and expression.