Contempt ? But Critic Is A Friend Of The Court
By Sandeep Jalan
14 November, 2009
Countercurrents.org
Whereas Senior Advocate of Supreme Court Prashant Bhushan is served with the notice of Contempt of the Supreme Court when he had given interview to Tehalka magazine over misconduct of a Supreme Court Judge, I take this as a opportunity to express my thought on the subject.
In modern societies, wide powers vest with Legislators, Judges, with Govt, and with Bureaucrats. Each group, if it so wishes, may act quite fancy, in any or all the way.
In many respects, we now live in a society that is only formally democratic, as the great mass of citizens has minimal say on the major public issues of the day, and such issues are scarcely debated at all in any meaningful sense in the electoral arena.
A Critic is a Friend of the Court. A Person who seeks to publicly criticize any Judicial action or inaction invariably requires a pack of Courage, Conviction and Complete faith in his critical stand.
Leave alone exceptional case, a person publicly critical of any Judicial action or inaction doesn’t do so to malign or scandalize any Judge or Judiciary, or out of sheer fancy, or to gain cheap publicity and on the contrary he is the ONE who is concerned and well wisher of the Judge and the Judiciary. He is the ONE who wants the Person or the System to be corrected. In Fact, it is no exaggeration if I were to say that he is the ONE who wants the dignity of the Justice System be protected. ONE who criticizes has a profound interest in the well being of the criticized.
The inherent objective and purpose of criticism is not to malign but to ensure that a person loaded with discretionary powers exercises the same not only in accordance with law but also ensure it is socially just and reasonable.
The dignity and the respect by its very nature cannot be commanded or enforced. It is earned by service and sacrifice in a similar fashion the head of the Family earn by securing and ensuring a food security, a good education, access to healthcare, a roof to live in safely, to every member. A king merely shouting from the Ivory tower commanding Respect does not get any. Instead, People fear of him for his mindless presumed and imagined insult.
The Judges are not divine beings. Their acts and omissions can have the element of error and foul play inherent in every other human being. Their acts and omissions can be and must be critically argued. The essence of immorality is the tendency to make an exception of MYSELF.
The Courts are not mere benches where they adjudicate upon disputes but are Temples where they get an opportunity to serve and protect suffering humanity and foester human development. The Court of Law or as fondly called the Courts of Equity, like the Temples, must be the place at least where People can come with no fear.
The Judicial dignity and Rule of Law in the society go hand in hand. They are inalienable.
It appears that judges suffer from selective blindness or they just play us for fools. If at all the Judges are so concerned and passionate about Judicial dignity, why are they not disturbed, sleepless and responsive at the premise where millions of childrens are malnourished, innocent childrens are forced to beg by begging mafias, People are living on the footpath, Farmers committing suicides, millions of people displaced and never rehabilitated, in the name of development.
Why it doesn’t shocks the conscience of the Judges by the fact that millions of people still do not have access to clean drinking water and are forced to do toilets in the open.
Why it doesn’t shock the conscience of the Judges by the fact that millions of Childrens and women are trafficked for prostitution and the State fondly call them Commercial Sex Workers{CSWs}. Does this CSWs has the requisite sanction of Constitution of India.
The Judges merely talking tough and doing nothing. Rather they have assumed the role of commentator than adjudicator, at least when mighty State is involved.
Is it sufficed that Orders are passed on deaf ears of the State, without being follow up of their implementation. Doesn’t the Judiciary has powers to monitor implementation of Orders passed by itself. And the State leadership get away Judges momentary fury with cultivated tradition of strictures and criticism, caution and advice and are merely branded callous or worse.
The sustained bleeding of the section of the People’s inhumane sufferings has failed to impress the Judges. The Judges are not seen alarmed or panicked over the state of affairs.
It can be said with near certainty that Judges of India have hardly employed the Landmark Judgment of Hon. Justice Krishna Iyer in Ratlam Municipality Vs Vardichand(1980) in which the Hon.Court fully acknowledging the magnitude of corruption and colossal waste of public money in the State Administration, observed that the State cannot plead paucity of funds for its inability to ensure basic necessities of life. The Court further Said,"regardless of the Cash in their coffers, even as human rights under part Three of the Constitution have to be respected by the State regardless of Budgetary provisions;Otherwise a Statutory body or Govt agency may legally defy duties under the Law by urging in self defense a self created bankruptcy or perverted expenditure budget. That cannot be."
It is pertinent to mention words of wisdom by some of the finest Jurists we have in recent times on the sensitive issue of Contempt of Courts.
The Hon. Supreme Court, thru Justice Krishna Iyer, did try to restrain the use of Contempt of Court Act 1971 when it stated in Ram Dayal Markarha V State of MP AIR 1978 SC 922 that the path of Justice is not strewn with roses and Justice being not a cloistered virtue, it must be allowed to suffer the scrutiny, even though outspoken comments of ordinary man.
Hon.Justice Markandey Katju has said and I quote, “In a Democracy the People should have the right to criticize Judges. The Purpose of the contempt power should not be to uphold the Majesty and Dignity of the Court but only to enable it to function.
As observed by Lord Denning, one of the finest Judge of England, “Let me say at once that we will never use contempt Jurisdiction as a means to uphold our own dignity. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor we resent it. For there is something far important at stake. It is freedom of speech itself ”.
The Contempt of the Court or Scandalizing the Judges is a whim that is fancy. This is an illegality for an undefined cause. It is simply Judge’s vandalism. Overzealous defenders of Judicial dignity only serve to erode its credibility.
Satyamev Jayate as we call it and which is one of the foundation of our Life and it is fallacy to presume that Truth came to be a valid defense only after the amendment so brought then.
Yet a Constitution, no matter how well conceived, can only create institution on papers. Breathing life into them is up to the men occupying constitutional seat.
The ultimate Judicial dignity lies in People getting “Preamble Justice”, or else the Judges may seek illusory, cosmetic and customary dignity. The Judicial dignity shall occasion, by default, where the offender of law will stop laughing at the premise of threat of legal action.
Either we have the right to democratic dissent and criticism or we all lie down and let the Judges do what they think is best, while we follow uncritically, and obey whatever he commands. But then democracy is not about trust; it is about distrust. It is about accountability, exposure, open debate, critical challenge, and popular input and feedback from the citizenry.
Sandeep Jalan [B Com, LLB]
[email protected]
