The recent outburst of the Chief Justice of India on the TV journalist who had done the sting operation on the "Warrants for Cash" scam in the courts of Gujarat has again brought to the fore the related issues of judicial accountability and the court’s powers of Contempt. The TV channel had conducted a sting operation on officials of the
district courts of Gujarat who were filmed negotiating amounts for getting warrants issued from the Gujarat courts. The "bribes" were paid and warrants were actually got issued against the then President of India, the Chief Justice of the Supreme Court, and others. The telecast was made after informing the Supreme Court about it. The Supreme Court then took serious note of the matter and the Gujarat High Court started a departmental inquiry against the judicial officers through whom the warrants were got issued. Though the judges had not bothered to examine the complainants before issuing the warrants, yet the judicial officers were acquitted by the High Court. It was thereafter that
the current Chief Justice slammed the journalist who had carried out this operation and threatened to send him to jail for contempt unless he apologized.
The Chief Justice’s outburst was widely reported in the media and it provoked a few critical comments by the media on the unjustified threat of contempt in this case. But the threat had its effect. A few days later, on 3rd August, the Campaign for Judicial Accountability and Reforms, an organization whose patrons and members include such respectable figures as Justice Krishna Iyer, Justice Sawant, Mr. Shanti Bhushan, Admiral Tahiliani and others, held a press conference in Delhi to highlight a case of Judicial Misconduct at the highest places in the Indian Judiciary. The facts revealed and documents released in the Press Conference showed how the sons of a former Chief Justice of India had got into partnerships with large shopping mall and commercial complex developers and got into the business of developing commercial complexes just before their father called the case of sealing commercial establishments operating from residential areas to himself and thereafter passed the orders of sealing them. These orders created panic in the city, led to the sealing of lakhs of shops and offices, and forced many of them to find spaces in malls and commercial complexes, thereby raising their prices enormously.
Around the same time, the sons’ companies were allotted several commercial plots of more than 6 acres in Noida, by the Mulayam Singh/Amar Singh government. These plots worth over a hundred crores were allotted for a tenth of those prices. All this at a time when the judge was dealing with cases of Amar Singh’s infamous tapes, whose publication by the media he went on to restrain.
Unimpeachable documents attesting to these facts were released at the press conference, which was attended by virtually the entire mainstream media. Yet the story of such enormous public interest, showing judicial misconduct at the highest places, was blacked out by the entire mainstream media, ostensibly due to fear of courting Contempt. And this, despite the fact that this was the case of a former judge and despite the fact that the Contempt of Courts Act has been recently amended to allow truth as a defence to a contempt action. This episode underlines the dread that the draconian law of contempt still continues to inspire in the media. A fear which has effectively prevented a proper exposure of the rot within the judiciary and has stilled serious public discussion of what is to be done about corruption in the judiciary.
The judiciary is the only institution in the country which remains totally unaccountable. There is no institution with disciplinary powers over the judiciary. In order to provide for their independence, the Constitution made judges of the superior courts immune from removal except by impeachment. The Ramaswami case and subsequent attempts to impeach judges have demonstrated the total impracticality of that instrument to discipline judges. There has thereafter been persistent talk of setting up an independent National Judicial Commission, but it has been a non starter with the judiciary firmly opposing any outside body with disciplinary powers over them. However, the self disciplining mechanism suggested by the judiciary itself by way of an "In house committee" of judges to enforce a code of conduct nominally adopted by the judiciary in 1999, has also been a non starter in the face of a reluctance on the part of judges to inquire into the conduct of their own brethren. That is one of the reasons why the Parliamentary Standing Committee has rejected the government’s draft of the Judicial Inquiry amendment bill which proposes an "in house Judicial Council" of sitting judges to inquire into judicial misconduct. The bill would in fact make the removal of judges even more difficult than at present.
Compounding the problem further is the Supreme Court’s decree that no judge can be investigated for even criminal offences without the written consent of the Chief Justice of India. In the last 16 years since that judgement, no sitting judge in India has been subjected to a criminal investigation. And not because people have not tried. Very recently, the previous Chief Justice of India refused to accord permission to register an FIR against the senior judge of Lucknow who had purchased land worth 7 Crores for 5 lacs from well known members of a land mafia in the name of his wife.
And now various High Courts have framed rules to make themselves virtually immune from the Right to Information Act. Thus many of them have fixed application fees of Rs. 500, instead of the usual 10. Many say, contrary to the Act, that information will not be provided to those who are not directly affected by the information. Worst of all, many prohibit information on administrative and financial matters. Thus the Delhi High Court refused to give information about class 4 employees recruited by them, citing this rule.
Bringing accountability to the judiciary must be preceded by frank public discussion and debate. Unfortunately that cannot get started with the threat of contempt looming over people. That is why it has become urgent to completely overhaul the law of contempt.
Prashant Bhushan is an eminent public interest lawyer in the Supreme Court.