Judicial Impunity

Thus, Arundhati Roy was jailed for commenting in her affidavit that the court’scontempt notice to her on a palpably absurd petition indicated a disquietinginclination on the part of the court to "muzzle dissent and stifle criticism".And the order was made by the very judge against whom this comment was directed.Though this was clearly a legitimate comment on the court, and an exercise of acitizen’s fundamental right to free speech guaranteed by the constitution of acountry which is supposed to be a democratic republic, the Supreme Courtdeclared it to amount to contempt of court, sending a clear signal to the mediain particular that the court would not hesitate to use this power to "muzzledissent and stifle criticism".

Again, when Kumar Rajesh of Aaj Tak, sent a fax to the former ChiefJustice of Tamil Nadu, that he wanted to have his response to the chargesagainst him in an impeachment motion prepared by a large group of lawyers ofTamil Nadu, which was circulating among members of Parliament, the High Courtimmediately issued contempt notice to the correspondent and issued an injunctionto him and his channel restraining them from carrying any story related to theimpeachment motion.

Thus, if you make adverse comment on the judiciary, you run the risk ofcontempt as Arundhati Roy discovered. Even if you talk about the chargescontained in a formal impeachment motion circulating among MPs, you still runthat risk. How then do you expose the rot in the institution? Does the judiciarystand above our democratic republic?

And the draconian power of contempt is not the only reason for the lack of accountabilityof the judiciary. The primary reason for this is the lack of any practicalmechanism for holding judges of the High Courts and Supreme Court responsiblefor misconduct. In order to keep the judiciary independent of the executive, theconstitution provided impeachment as the only method for disciplining errantjudges. That remedy has been shown to be completely impractical in the Ramaswamicase, where the judge escaped removal by making a political alliance with thethen ruling party, which abstained from voting in Parliament, even after he wasfound guilty of many charges of misconduct, by a committee of three judgesappointed under the Judges Inquiry Act.

In Ramaswami’s case, evidence of his misconduct surfaced because of areport by the Accountant General on the purchases made by him from governmentfunds. Normally however, it would not be possible for a citizen to get evidenceof a judge’s misconduct, for even drafting an impeachment motion, without anyofficial investigation. And by a judge-made law (in Veeraswami’s case) thejudges have ruled that no official investigation can be conducted against ajudge without the written permission of the Chief Justice of India. And nobodydares apply for such permission unless they already have evidence against thejudge. This is why there has not been a single official investigation against ajudge in the 15 years since the Veeraswami judgement, despite the fact that theformer Chief Justice Bharucha officially lamented that at least 20% judges ofthe higher judiciary are corrupt.This triple shield of: no practical remedy forremoval of corrupt judges, no investigation of charges against judges, andfinally, the power of contempt, have served to provide complete immunity tojudges and has institutionalised judicial impunity.

It is in this background that the proposed amendment tothe Contempt of Courts Act must be seen. The amendment provides that truth maybe considered a good defence in contempt proceedings provided it is in publicinterest. The Parliamentary Standing Committee in its recently tabled report onthis amendment, while approving it, has suggested the removal of the additionalrequirement of showing that the truth is also in public interest. They have alsoexpressed the hope that the judge against whom an allegation has been made willnot himself sit in judgement over the contempt proceedings, in accordance withnatural justice. They have also asked the government to consider Mr. Jethmalani’ssuggestion that even an allegation made bona fide with due care and cautionwould not be regarded as Contempt.

The Committee has noted the suggestion made by the Committee on JudicialAccountablity that the words "scandalising the court or lowering the authorityof the court" should be altogether removed from the definition of Contempt.This is the part of the definition of Contempt which is used to stifle speech,or allegations and comments against the judges. This will still leave intact theparts dealing with disobedience of court orders (which is civil contempt) andinterference with the administration of justice, which would include any attemptto threaten or influence a judge, lawyer, litigant or witness.

In fact, contempt by "scandalising" the court owes its origin to themedieval ages in England, when the courts were considered representatives of theBritish Monarch and were called King’s Courts or Queen’s Courts. Thus anyimputation against the courts was considered an imputation against the sovereignand thus punishable. The U.S. has a more liberal dispensation, where onlysomething which presents a clear and present danger to the administration ofjustice is considered contempt. Though contempt laws in India, with theirBritish origin, clearly have no relevance today, the judiciary has found itconvenient to continue them and has gone on to declare that even truth cannot bea valid defence to a charge of contempt.

It is also argued, that if the courts are not able to punish scandalousallegations levelled against judges, public confidence in the courts wouldevaporate. This view suggests that the only basis of public confidence in thecourts is the power of the courts to stifle criticism by using the power ofcontempt. Obviously, this is an absurd view, since if this were correct, thereshould be no public confidence in any other institution or individual, since noone other than judges have the power of contempt.

Public confidence in the judiciary depends on its actions and behaviour,especially at a time when such enormous publicity is given to their judgementsand utterances by the media. Any unfair and scandalous allegations made bydisgruntled litigants will be ignored and recognised for what they are by thepublic, and can be dealt with under the law of civil and criminal defamation.The retention of the power to punish for contempt for acts of speech alone,which do not directly interfere with the administration of justice, has removedthe last shred of accountability of the the higher judiciary in the country.That is why the proposed amendment to the Contempt of Courts Act, is a verysmall step to correct this, but falls far short of what is required to preventthe abuse of this draconian power.

Prashant Bhushan is an eminent public interest lawyer in the Supreme Court.