(1888PressRelease)
March 27, 2007 - New Delhi, 27th March, 2007. Both have a large bearing on how the judges conduct themselves in further and how any complaints against anyone of them would be dealt with in future. There has been a long standing demand of lawyers and political analysts that the judiciary, considering the gradual slide down in their public image, need to be reformed in a manner that retained the sanctity of the this important limb of democracy while toning up the system to weed out those whose conduct is unbecoming of the high office they hold.
Let us take the Contempt Law first. Much of the Contempt Law in India is a hangover of the British rule. The law was worded in such a way to bar any attempt to criticize the judiciary even remotely, to overawe the citizens to simply accept without demur even patently unjust interpretation of laws as they existed then.
After Independence, the ushering of democracy meant primacy of place to freedom of speech and the power of contempt had to be subordinate to it. Which could be interpreted to mean that people had the right to criticize Judges but make sure that the criticism did not go so far as to affect the functioning of the judiciary.
The relevant provision in the contempt law (as it existed prior to the recent amendment) the court could take cognizance of any offence which in its opinion "scandalized the court". But what is "scandalizing the court"? As Mr. Fali Nariman, the doyen of the Bar, had said in a speech, "the offence of scandalizing the Court" was a mercurial jurisdiction in which there were no rules and no constraints. Criticizing the contempt law in Anglo-Saxon jurisprudence in England in the past and in India in the past and (then) present, Mr. Nariman said: "There are no rules, no constraints – no precise circumstances when the administration of justice is brought into contempt. The judgments are strewn with pious platitudes that give little guidance to the editor, to the commentator, to lawyers, and to members of the public; this part of the law of contempt though necessary, is a standing threat to free expression as it leaves too much to the discretion of the particular judge (or judges). And at times decisions do give rise to a strange feeling that the status of the person who scandalizes the Court perhaps did affect the ultimate result."
Giving two instances to substantiate his argument that the status of a person did indeed matter in dealing with contempt cases, the noted lawyer quoted a sitting Cabinet Minister in 1988 to say "Zamindars like Golaknath (in the Golaknath case) evoked a sympathetic chord nowhere in the whole country except the Supreme Court of India …… ….. Anti-social elements, FERA violators, bride burners and a whole hoard of reactionaries found their haven in the Supreme Court." The Minister further alleged that because the Judge of the Supreme Court had their "unconcealed sympathy for the haves" (as opposed to the have nots) they had interpreted the expression "compensation" in the manner they did clearly imputing motives. And yet, a bench of two Judges exonerated him.
Again, Mr. Mohd. Yunus, Chairman of the Trade Fair Authority of India, known at the time to be very close to the Prime Minister, had criticized a judgment by a Supreme Court Judge in the Jehova Witness' case, holding that the singing of the National Anthem for a particular sect of Christians was not compulsory, Mr. Mohd. Yunus said that this Judge "has no right to be called either an Indian or a Judge." An Association of individuals called the Conscientious Group filed a petition asking for Mr. Yunus to be hauled up for contempt but a bench of Judges suddenly found themselves powerless on the technical ground" that the Attorney General had declined to give his sanction and the Solicitor General had also demurred even though they knew that the power to issue suo motu notice for any contempt was plenary (not dependent on the fiat of the Attorney General or Solicitor General), said Mr. Nariman.
Inconsistencies in dealing with contempt cases by the court have also been made by members of Parliament in earlier parliamentary debates. As one member pointed out, the Supreme Court had in the Arundhati Roy's case had imposed a day's imprisonment and a fine of Rs. 2000/- a Chandigarh-based professor was imprisoned for six months for making derogatory remarks against a former Chief Justice of India. There were others whose remarks were either ignored or got away with just a reprimand.
An important amendment that has been made in the Contempt law now is that truth is now a defence in contempt of court proceedings "if it is in public interest and is bona fide. This amendment was long overdue but many feel that more need to be done to bring the law in line with a vibrant democracy where citizens have the fundamental right to call into question acts of omission and commission of any creature or the Institution.
Now for the second important legislative measure on the subject before Parliament. Titled Judges (Inquiry) Bill, it details the procedure for hearing complaints against individual Judges. The proposal is to constitute a National Judicial Council comprising the Chief Justice of India as the Chairman and some senior most Judges drawn from the Supreme Court and the High Court to her all allegations. The debate on the measure continues with many, including former judges and eminent lawyer describing the Bill variously as a "remedy worse than the disease" and "a sham".
The criticism is against the "in-house procedure" being proposed. The argument against this is how could judges all by themselves decide against any brother judge's misdemeanor. There ought to be at least one eminent public figure associated with the inquiry process.
Chief Justice, Mr. Justice Bharucha, is often quoted to underline the extent of the malady though everyone agrees that the large part of the judiciary is above reproach.) He had then said that about 20 percent of the Judges were corrupt.
A debate in the Rajya Sabha three years ago brought out significant points for consideration whenever reforms in the judiciary were contemplated. For instance, Mr. Kapil Sibal (then only a member of the Rajya Sabha not a Minister), speaking about the judiciary keeping to itself the power to appoint Judges, asked the then Law Minister to study the cases of all appointments in the previous twenty years to find out whether they fell in any one of the following three categories – how many of these appointees were related to other Judges, how many of them had been juniors to other Judges and how many of them belonged to a particular caste or community.
Speaking about eh cloak of secrecy surrounding the judiciary, Mr. Sibal said that to a citizen wanting to know how many cases were pending in a Court and how many were disposed of, the Registrar would say he was not obliged to give this information. Again for information on how many Judges in the country have not delivered judgments in the last six or eight months or one year the Chief Justice would say "this was confidential information and to part with it would destroy the independence of the judiciary."
Another member quoted the former Chief Justice of India, Mr. J. S. Verma, whose suggestion to tone up the judiciary was - to ask Judges to declare their assets, as he had done, prepare a code of conduct for judges and enact a law to ensure accountability.
This is good time to give effect to some of the important suggestion that is being aired both inside and outside Parliament.
