The following is the test of a Statement issued by the Asian Legal Resource Centre, Hong Kong, on September 25, 2007
THE Delhi High Court on September 21, 2007 sentenced the editor, the resident editor, the publisher and the cartoonist of English daily Mid-Day guilty in a contempt of court case. The charge against the convicted journalists was that they published a report and a cartoon concerning the former Chief Justice of India, Mr. Y.K. Sabharwal. The report and the cartoon were published after Mr. Sabharwal retired from service.
The report, relying upon documentary evidence, alleged that the judge's two sons Mr. Chetan and Mr. Nitin had made material benefits out of their father's position in the Indian judiciary as a senior judge and also as the Chief Justice of the country. The report alleged that the judge’s sons managed their business from their father's official residence at 6 Moti Lal Nehru Marg, New Delhi. The report further alleged that the Chetan and Nitin also availed huge loans from a nationalised bank in favour of their business concerns without providing adequate collateral security. There were also allegations that the judge's two sons were allotted prime land by the Uttar Pradesh state government with heavy price concessions, an act which was under investigation. The investigation was however stayed later by the Supreme Court.
The Supreme Court of India is known for using the constitutional mandate and authority to initiate actions of public interest. The court in the past has even taken note of newspaper reports to initiate suo motu actions against suspected breach of law and misuse of office by public servants. This earnestness and enthusiasm has not been thus far reflected in the Indian courts' approach against scrutinising the activities of the courts and its judges. On the contrary, the Indian courts have been very parochial in its approach in facing criticism.
Earlier this year, the Supreme Court of India had forced Mr. Vijay Shekhar, a journalist with a television news channel, who exposed the caucus of a corrupt magistrate, his court staff and some lawyers in Gujarat state in the "Warrants for Cash" scam to apologise to the court or to face a term in jail for contempt of court. The court staff and the lawyers were caught on camera negotiating and accepting bribe for the magistrate for issuing arrest warrants. In the episode which was telecast nationwide, the magistrate after accepting bribes, issued arrest warrants on false charges against the President of India and the Chief Justice of the Supreme Court.
The Supreme Court took up the matter and directed the Gujarat High Court to initiate an internal enquiry against the concerned judicial officer and his staff. The judge was however absolved by the Gujarat High Court without examining the complainants. Thereafter, the Supreme Court of India condemned the journalist who had carried out this operation and threatened to send him to jail for contempt unless he apologised.
The conviction and sentencing of journalists of Mid-Day for publishing information about the conduct of Mr. Sabharwal has brought to the fore the issue of judicial accountability. The Indian judiciary is one of the most powerful judiciaries of the world. The conduct of the judiciary has a direct impact upon the life of the ordinary people of the country. It is imperative in these circumstances that a state institution of such high powers must be transparent and accountable for its actions. The courts in India have however consistently avoided calls for accountability despite there being many instances of serious allegations of misconduct and misdemeanour. At one time Justice S. P. Bharucha, former Chief Justice of India, admitted that about 20 percent of the higher judiciary in India is corrupt. According to Justice Michael Saldahna of the Karnataka High Court it is 33 per cent. Despite there being such admissions, no enquiry has ever been initiated against any judge for past 15 years.
Under the Constitution of India, the only way to remove a judge from the High Court or the Supreme Court is by way of impeachment. This constitutional provision has failed miserably. Its ineffectiveness was clearly demonstrated in the case of Justice V. Ramaswami. At the same time, despite verbal homilies, the courts and judges have been the most reluctant to evolve even a self-monitoring mechanism for accountability. Such a situation has caused enormous arrogance and abuse of power.
This is reflected in the procedure adopted for appointment of judges in the higher judiciary as well. Even though the appointment is made by the President of India, the selection is made by the collegium of judges. The selection process is non-transparent and all attempts to make the process transparent have been resisted by the judiciary thus far.
Demanding judicial accountability has almost certainly caused initiation of contempt proceedings, thereby, stifling of free discussion on the issues plaguing the judiciary in India. Unwarranted use of contempt of court proceedings in fact diminishes the public perception about the judiciary's openness and transparency, of which the case against the Mid-Day publishing house is the latest.
There are judicial systems within Asia which are considered to be failed beyond the point of recovery. Of this, the most glaring example is the judiciary in Sri Lanka, which is now facing criticism on all counts including politicisation of the judiciary to meet the ends of a corrupt Chief Justice. The Chief Justice of Sri Lanka, an infamous figure in the country, is feared for abusing contempt of court proceedings against anyone who opposes his questionable actions.
The Supreme Court of Sri Lanka has now stooped down to a stage where public perception about the impartiality of the court and its competency to decide matters on merits is at an all time low. As a result the general public views the courts in Sri Lanka as a failed state apparatus which in fact adds to the decades long ethnic conflict in that country.
The term democracy implies the notion that the people are supreme. All state institutions, whether it be the judiciary, legislature or the executive are merely the servants of the people. The basic principle behind the contempt of court proceedings is that the use of this authority by the court must be only in circumstances where otherwise the functioning of the court is impossible or obstructed.
In India under the Contempt of Courts Act, 1971, the term 'contempt' is not defined. Therefore if any person makes adverse comments against the court or a judge, the power to punish for "scandalising the court…" is frequently invoked. This approach is considered obscure in most established jurisdictions.
The contempt of court action must not be an attempt to protect the dignity of the court, but to promote the administration of justice. The dignity of the court is promoted by the court being humble enough to face criticism, whereas promotion of justice is to be carried out by removing all hindrances in the delivery of justice. By the unrestrained use of contempt of court actions the courts in India are in fact derogating from their duty to safeguard the Constitution of the country, which also guarantees freedom of speech and expression in Article 19 (1).
The honour of the judge and the judiciary - a state institution through which a judge is supposed to serve the people - is promoted and protected by the openness of the judge and the judiciary to face any criticism. Intolerance to scrutiny and lack of openness equates the judge and the judiciary with a dictator.
At this pace the Indian judiciary once known for its eloquence and its contribution to the advancement of free thought and expression will soon be reduced to an egotistical institution. Such a judiciary is definitely not what modern India aspires for. India as of today requires a transparent, accountable and sensitive judiciary.
The imperatives for the judiciary in India are obvious. It has a duty to protect, promote and fulfil the Constitutional guarantees. The judiciary must be open and transparent with a clear conscience that it is not beyond criticism. For this, it must be accountable to the people, which it is bound to serve. The judiciary in India is the last hope of a fragmented society, which when fails to respect its responsibilities, will soon bring insurmountable peril to the country and its people.
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About ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at local and national levels throughout Asia.