It happened during the last year of my Bachelor’s degree in Law. We had organized a lecture by Shri. C.L.Ramakrishnan, the then state Chief of Vigilance. He spoke on ‘Corruption – meeting the challenge’. The talk concluded with a Q&A session during which I asked him about the levels of corruption in the higher judiciary. “Do you want me behind bars for contempt?” was his shocked response. It was the earliest lesson I learnt in jurisprudence. The emperor may be stark naked but you may not call him nude.
Twelve years have since gone by. Time enough to lose one’s innocence. I can see now that the institution of judiciary is as bad or as good as any other. Every human fraility and inadequacy I see elsewhere, I see them here too. There is a feverish lobbying for obtaining judicial appointments, few are called to the Bench, the notion of impartial justice is plain humbug, judges also practice favoritism, advocates are chosen to argue a case on the merits of their ‘face-value’. You find networking and sometimes even purchase of judgements. All this is known but not stated openly in so many words. Even when stated, it is only in general terms. The press is yet to do a tehelka on the judiciary, on a judge. Why, even simple reporting and commenting on the Mysore sex scandal that shocked us all, has provoked the judiciary into instituting contempt proceedings against scores of magazines and newspapers.
Let us take an inventory of some of the recent happenings in the judiciary. In Punjab, three sitting judges were found to have been involved in the Public Service Commission scam. In Allahabad and Rajastan, judges were reportedly guilty of sexual harassment. In Karnataka and Tamilnadu it was the unseemly spectacle of inebriated judges seen in highly questionable company, in dubious places to boot.
And yet the media is not as relentless or persistent with its investigative reporting of such unedifying behaviour of judges as it normally would have been had the same been true of politicians or other persons in public life. The print and electronic media have been muzzled by the threat of ‘contempt of court’. And our judges are as desirous of material perks and privileges as our politicians whom they frequently castigate. Last year, when Tamil Nadu was facing an unprecedented financial crisis, the High Court judges got themselves each a brand new Honda City car. When ‘The Hindu’ and ‘Vikatan’ carried caustic news reports in this regard, threats of being booked under the ‘contempt’ law, forced them to tender an apology. The peculiar thing about the ‘contempt’ law is that the prosecutor and the judge are one and the same. The one who accuses, will himself decide if the accusation is true. The first principle of natural justice is that one should not be the judge of his own cause. But contempt jurisdiction is held to be an exception to this basic principle.
The power of the ‘Contempt’ law is both inherent and statutory. The object of contempt jurisdiction is ostensibly to uphold the dignity of court and administration of justice. It has two faces : civil and criminal. Civil contempt is deliberate disobedience of any court order. Criminal contempt is one which scandalises the court. Casting aspersions, imputing motives, questioning the integrity of judges and scurrilous criticism would attract the provisions of the contempt jurisdiction. You would be shocked to know that truth is not recognised to be a legitimate defense against the contempt law. That is, if the truth of the matter is that the said judge or judges have not acted in a manner befitting the high office they hold, that truth may still not be spoken or the judges exposed.
So what happens? Legitimate criticism and a salutary expose of the conduct of judges is stifled. You cannot say what you see or know. A judge can be lazy and unpunctual. Worse still, he may be corrupt or his character may not live up to his position. But you cannot call him to account. A politician has to ultimately present an account of himself to the people who elect him. A judge has no such pressure. He has security of tenure. He can be ‘de-frocked’ only by impeachment. Which is a virtual impossibility, as was seen in the case of a judge of the Supreme Court.
It is not as though judges are above all rules or that there are no norms governing a judge’s conduct. There is a code of conduct for judges. It is simply ignored. You have the strange spectacle in the Madras High Court of a husband being a judge and the wife practicing in the same campus. A sitting judge becomes the President of a leading club. I can catalogue a host of such instances which do not add to the dignity or integrity of the higher judiciary. And because a judge cannot be removed from work except through impeachment by Parliament, the only course open to us is to embarrass him. In a democracy, public opinion is the greatest deterrent and the highest judiciary. But how do you mould public opinion? The media and the fearless among the people must come forward to discharge this responsibility. A Lawyer has everything to lose if he dares to take on the judiciary, however right he may be or however righteous his cause. A lawyer punished for contempt can lose his right to practice.
The time has come to abrogate the criminal contempt jurisdiction. ‘Scandalising the court’ should be made a non-cognizable offence. Let truth, and bona fide expression of opinion in good faith be made legitimate defense. The institution of judiciary will only gain in credibility and respect in the process.