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വായന

29 September, 2010

Test of honesty for the judiciary or an ode on its demise?

The following is a statement issued by the Asian Human Rights Commission, Hong Kong:

The contempt of court proceedings initiated against Advocate Prashant Bushan in the Supreme Court of India for the allegations he made against some of the former Chief Justices of the country will test the maturity of India's judicial system and that of its democratic framework. Indeed the Court has a statutory right to initiate proceedings against anyone, suo motu or through a petition presented before it. So have Prashant, and every other citizen in the country, a right to express their opinion of what they believe is to be true. Unfortunately, the tainted image of the Indian judiciary is one among them, whether the judges like it or not.

In an interview with Thelka magazine, published on 5 September 2010, Prashant alleged, "… that out of the last 16 to 17 Chief Justices, half have been corrupt". Through an Amicus Curiae petition filed by a lawyer, Mr. Harish Salve, the Supreme Court of India issued notice to Prashant asking him to show cause why his statement and opinion should not be treated as 'contempt of court'.

Prashant's affidavit filed in reply to the contempt proceedings reiterate, explain and further name some of the 'tainted' judges. All of those who have been named, to clear their name if they can, must undergo a thorough investigation and a public trial by an impartial tribunal. Indeed it is to be seen whether the Indian judiciary, or any other democratic institution worthy of its salt and name (as democratic) will be willing to take this 'risk'.

Prashant's original opinion, further reiterated and explained in his affidavit is nothing but a detailed narration of the reasons why the average Indian fear that the country's judiciary, in particular its Apex Court, has become unworthy of the maxim it claims to uphold, 'Yaddo Dharmastho Jayah', the Sanskrit equivalent of fiat justitia ruat caelum. Indeed Prashant being a lawyer, is privileged to possess 'written, documentary and oral' evidence to substantiate his apprehensions than the aam admi (ordinary person), who face the worst brunt, should the judiciary of the country, the working for which his tax money is used is indeed corrupt.

Judiciary's negation of every attempt to bring 'fresh air and light into (its) dark and dusty corridors of power' has become its deplorable character during the past decade. By preventing all attempts to bring transparency in the functioning of the court, ranging from the question of appointment of judges to the applicability of the Right to Information Act, 2005, the Indian judiciary has behaved in such fashion as if it has indeed embarrassing things to hide behind its elevated dais where the most paid and immune jurists in the largest democracy of the world are seated. These attempts have reduced the Indian judiciary into despicable situations where on one occasion it had a serving judge, transferred and later elevated to the Apex Court while unambiguous allegations of material corruption were made against him based on which there was an audit objection and an impeachment proceeding. The Supreme Court also had the unique opportunity to direct its own Registrar to file an ap peal against the order of a subordinate court, the Delhi High Court, in the Supreme Court, so that it could affirm the absoluteness of its impunity against public accountability at the expense of the taxpayer's money.

The Court has also the record of 'legally and fatally injuring' everyone who dared to suggest that the 'king is naked' using its sword of Contempt of Courts Act, 1971. This law, based on a medieval mental framework, has no place in a democracy, like a judiciary that despises transparency and decries accountability.

The allegation Prashant has made is just not an Indian issue. For instance a former Chief Justice of India, Mr. A. M. Ahmedi, was nominated to serve in international committees. He was appointed to look into human rights violations in East Timor by the United Nations, to assist the judiciary in Liberia by the International Court of Justice, and has been requested to review the state of relations between the judiciary, the legal profession and the executive and violation of human rights in Zimbabwe by the International Bar Association. Any argument that Ahmedi would do justice to the victims of human rights violations in foreign lands, while he has allegedly robbed the same for sheer self-interest and greed from his countrymen (and women) does not hold water. Ahmedi's case is just one among many that must be investigated.

It is often said that making public statements of the above nature against the judiciary of a country is immature. Some may ask, will such statements help in sorting out the mess that has now surfaced? Is it not amateur and nonprofessional to say these things in such emphatic tone? The Asian Human Rights Commission believes that the professionalism of the civil society is demonstrated in its ability to raise timely questions of rule of law, with an expectation that it would generate a worthy public debate in the country where it is engaged.

Unfortunately, most of India's media are observing their characteristic silence on the issue. They have apparently perfected their art of stirring public opinion for the wrong cause using all the wrong methods, as they demonstrated in dealing with the parliament attack case, where they proved the case against the 'suspects', parroting the confession statement of the accused, extracted by some of the dreaded criminals wearing police uniforms, who practiced some of the most inhuman methods upon the accused, including torture. Indeed the Indian judiciary convicted the accused, despite the prosecution failing to prove their case, an act by which the judiciary too reiterated that pride and speculation rules above justice.

The AHRC supports and congratulates Prashant Bushan for the bold initiative that he has taken by calling for openness and transparency in one of the most immune public institutions of the world. It is now the responsibility of India's civil society to wake up from its slumber and augment this process of fastening public accountability to one of India's oldest constitutional institutions. It is the primary responsibility of the lawyers and judges who believes in the rule of law and democracy to publically support the process Prashant has initiated.

The AHRC requests everyone to sign an online petition created for the purpose.

To say the least, if the allegations made by Prashant do not lead into an impartial, prompt and public investigation, it has to be believed that the democracy is dead in India.

* The affidavit filed by Prashant Bushan is available here.
* The affidavit filed by Santhi Bushan is available here.
* The online petition can be accessed here.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984

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