JUDICIAL ACCOUNTABILITY & THE LAW OF CONTEMPT OF COURT

The role of the judiciary in the Indian polity has grown significantly over the years. Insensitivity and inertia of the executive and the legislature have turned the common people away from these organs of the State. The masses increasingly look up to the judiciary to redress their grievances, secure their rights and address the neglected issues of governance. The judiciary has also progressively been enlarging the space allocated to it under the scheme of the Constitution. In this context, it is of utmost importance to preserve the faith of the common man in the judiciary and ensure that it always functions in an objective and transparent manner which may inspire public confidence.

Unfortunately, the judiciary in India has shown a marked preference for a mode of functioning which would take it beyond the pale of public scrutiny and accountability. This preference is sought to be rationalized by invoking the high principle of independence and autonomy of the judiciary and incorporating it into the basic structure of the Constitution. The draconian law of contempt of courts bequeathed by a colonial power is freely used to silence any voice that might be raised to question the misconduct of a judge. The Delhi High Court has now, in the Mid Day Case, sought to extend the cloak of protection to retired members of the judicial fraternity on the ingenious ground that attribution of a personal motive to Justice Sabharwal, former Chief Justice of India, constituted a slur on his brother judges who sat on the bench that passed the order in question, and amounted to an attempt to lower the dignity of the institution of judiciary itself. The journalists responsible for the exposé and the publisher of Mid Day have, in consequence, been convicted of contempt of court and sentenced to four months' imprisonment.

It is no wonder that this order has led to an uproar in the media, the civil society and a few political formations as well. Many a legal luminary, including several former Chief Justices and Judges of the Supreme Court, has lent support to the demand for an inquiry into the allegation against Justice Sabharwal, if only to lay the grave accusations of malfeasance to rest. They have also asked for institution of an effective procedure for investigating complaints of judicial misdemeanour and inflicting punishment in cases of proven misconduct.

  • JUDICIAL ACCOUNTABILITY
  • PEOPLE'S POLICE
  • PUBLIC SERVICE REFORMS
  • KUDUMBASHREE & WOMEN EMPOWERMENT
  • CCTVs IN ICUs
  • PRIVATE SCHOOL TEACHERS

The need for a complete overhaul of the law of contempt of court has assumed a new urgency. The Indian law of contempt continues to be out of step with the march of a free democratic society and falls woefully short of the practice in established democracies, such as the UK and the USA. The relevant provision in the new section 13 of the Contempt of Court Act is hemmed in by so many subjective conditions as to empty it of all meaning. In a nation which swears by the credo of "Satyamev Jayate" Truth alone triumphs -, why should it be left to the discretion of the court to permit or to disallow justification by truth as a valid defence in a proceeding for contempt of court? Why should the grant of permission be contingent on the satisfaction of the court that the request for invoking this defence is bona fide and that it is in public interest to allow it? Should there be any need to seek the permission of court to state the truth when one is willing to carry the onus of proof? Can public interest be served by refusing the permission to state the truth? Can the defence of justification by truth be invoked in bad faith? These questions call for straight answers without recourse to legal chicanery.

Thankfully, the Supreme Court has stayed the sentence awarded by the Delhi High Court. A writ petition filed by an advocate seeking a judicial probe into the "reckless" allegations of misconduct against Justice Sabharwal, has, however, been dismissed on the ground that it may prejudice the appeal of the journalists held guilty of contempt of court. This leaves the door ajar for an investigation to be launched in future after the appeal has been disposed of. It is true that the law, as it stands today, does not lay down the procedure for conducting such an investigation, but the Supreme Court, once it is convinced that the situation warrants a remedy, has never been deterred in the past by the absence of an established procedure. The Court is known to fill the legal lacuna by issuing binding directives, which have the force of law till the Parliament enacts an appropriate legislation.

In the meantime, the civil society has to ensure that the central issues of judicial accountability and reforms and review of the law of contempt of court remain in sharp focus. The Campaign for Judicial Accountability and Reforms, spearheaded by the distinguished father-son duo of Messrs. Shanti Bhushan and Prashant Bhushan, has created a platform for an informed debate which should lead to a consensus on the systemic reforms in the administration of justice. It is hoped that the government will give due consideration to the recommendations made from the platform of the Campaign and by other distinguished jurists and committees such as the Parliamentary Standing Committee of Law and Justice, which has suggested that the scope of the long pending Judges' Inquiry Bill, 2006 should be expanded to include retired judges, subject to a two year post-retirement deadline.

In this number, we have reproduced Mr. Prashant Bhushan's Background paper for a Seminar on Judicial Accountability of Reforms, which was organized on October 13, 2007 at New Delhi under the aegis of the Campaign. We appeal to the members of COMMON CAUSE to lend their full support to the Campaign.

- Kamal Kant Jaswal

July - November 2007