Who Will Judge…

…the judges? Is a question that’s been featuring increasingly in the media. And it used to be something that I immediately black-balled as attempts by the political-class to discredit what is probably the only institution in our country that is holding against their corrupt, power-grabbing and venal interests. I’ve also managed to dislodge the morning newspaper & tea ritual, so my news consumption is erratic, to put it mildly, but even so, the patchwork of information that I gleaned on the Delhi non-commercial property sealing drive (earlier this year) and the conversations that I had with Delhiites had left me bewildered about whether the approach taken by the SC was entirely appropriate; it didn’t seem fair to treat a wealthy boutique owner and a local provision store in the same way, particularly when the latter was providing a valuable service that the administration had abdicated. But I internalized that too, thinking that if the exceptions were so many, then the rule would become meaningless, and how would you decide what was appropriate or not without once again introducing the menace of corruption and venality.

Then, amid the tiny victories of the RTI Act and the accountability it is beginning to create, came the snippets about how the judicial system was refusing to be subject to it, and this struck a discordant note - after all, aren’t the custodians of accountability supposed to be the leaders of accountability? So why would the courts and the judges want to remain inscrutable and above accountability? The politicians and bureaucrats were trying to conceal their file-notings and not the actual files themselves, but the judiciary, it appeared were not even willing to show the file? This one refused to get rationalized away

All of the above was meant to serve as an explanation of sorts on why this story got me alarmed:

While it is important in any society that its judiciary inspire public confidence, such confidence cannot be engendered by using the threat of contempt action to deter exposure of any wrongdoing in the judiciary. Public confidence in the judiciary is created by the actions of the judiciary and any reckless allegations against it are quickly seen to be what they are. In a free society, such allegations do not stick, if they are incorrect or reckless. The use of the power of contempt to stifle allegations against judges would only increase public suspicion about the judiciary and indeed engender contempt for it. Public confidence in the judiciary cannot be maintained by silencing dissenting voices or exposure of wrongdoing. Such exposure of all institutions including the judiciary is also essential in public interest for corrective action to be taken. Expose of any wrong doing in any public institution and action against the wrong doing only enhances the prestige of that institution rather than lowering it. It suggests that self correcting mechanisms exist.

From the article ‘Sentence Us To The Same Punishment…’ in Outlook India Online

Trying to find out more about what this was all about led me to this piece by Arundhati Roy, also on Outlook India. While the tone and manner is classic A Roy, i.e. carrying a big bag-full of her view of matters, the questions posed seem extremely pertinent, and the response of the judiciary seems dangerous, whimsical, arbitrary, venal and unaccountable. Strong words, I agree, but considering that we’re talking about the custodians of our last recourse to redress in an increasingly corrupt and mercenary political system, I’d imagine that the judiciary above all others must truly exemplify the phrase ‘like Caesar’s wife, above and beyond reproach.’ So why would they require a weapon like this:

Until recently, under the Law of Contempt, even truth was not considered a valid defence. So suppose, for instance, we had prima facie evidence that a judge has assaulted or raped someone, or accepted a bribe in return for a favourable judgement, it would be a criminal offence to make the evidence public because that would “scandalise or tend to scandalise” or “lower or tend to lower” the authority of the court.

Yes, things have changed, but only a little. Last year, Parliament amended the Contempt of Court Act so that truth becomes a valid defence in a contempt of court charge. But in most cases (such as in the case of the Sabharwal…er… shall we say “affair”) in order to prove something it would have to be investigated. But obviously when you ask for an investigation you have to state your case, and when you state your case you will be imputing dishonourable motives to a judge for which you can be convicted for contempt. So: Nothing can be proved unless it is investigated and nothing can be investigated unless it has been proved.

Or why would they need to shield themselves in this manner?

The expansion of judicial powers has not been accompanied by an increase in its accountability. Far from it. The judiciary has managed to foil every attempt to put in place any system of checks and balances that other institutions in democracies are usually bound by.
It has opposed the suggestion by the Committee for Judicial Accountability that an independent disciplinary body be created to look into matters of judicial misconduct. It has decreed that an FIR cannot be registered against a sitting judge without the consent of the chief justice (which has never ever been given). It has so far successfully insulated itself against the Right to Information Act. The most effective weapon in its arsenal is, of course, the Contempt of Court Act which makes it a criminal offence to do or say anything that “scandalises” or “lowers the authority” of the court. Though the act is framed in arcane language more suited to medieval ideas of feminine modesty, it actually arms the judiciary with formidable, arbitrary powers to silence its critics and to imprison anyone who asks uncomfortable questions.

Both the above quotations are from the article Scandal In The Palace, on Outlook India Online.

Read the article, and sign the online petition at the end, if you find it appropriate. And I’d appreciate your views and comments here as well :o)