The Supreme Court and its exercise of contempt jurisdiction in the recent case of Prashant Bhushan have brought to light crucial aspects of judicial accountability and transparency. As one of the core pillars of Indian democracy, the judiciary, as a non-elected and non-representative institution, plays a critical role. As an impartial and independent pillar, the apex Indian judiciary is really the finest of the three pillars of our Constitution and has brought great pride to the constitutional system of India. However, to compliment is not to become complacent, and it is with this spirit of constructive criticism that one needs to examine the functioning of our courts in India. Free and fair criticism of institutions is not only a right guaranteed under Article 19 of the Constitution but is, in fact, a duty under Article 51A(h) which mandates every citizen to develop a scientific temper, humanism and, most importantly, a spirit of enquiry and reform.
The Supreme Court, in the landmark Maneka Gandhi case (1978), had laid down that the requirement of ‘right and just and fair’ is just as applicable to administrative action as is required of legislative action. However, we must keep in mind that judges are not accountable in the way politicians are. Politicians have to go to the public every five years and more often than not even sooner. Bureaucrats are accountable to their ministers, the legislature, the courts and other watchdog bodies like the CVC, CBI and the office of CAG. While the judiciary expressly states that there should not be any administrative arbitrariness, what are the safeguards against judicial arbitrariness? If lower courts go wrong, one can approach the High Court and Supreme Court. But the Supreme Court is the last resort.
The most interesting judgement in this context had been the case of ADM Jabalpur (1978) where a five-judge bench of the apex court had held that citizens’ fundamental right to life remained suspended during Emergency. The judgement was of course ultimately, emphatically overruled by a nine-judge bench in the seminal Puttuswamy judgement in 2017.
However, there have been instances such as the Thapar case (1985) where the then Chief Justice, E.S. Venkatramaiah, had at midnight proceeded to grant bail to industrialist L.M. Thapar, who had been arrested on allegations of the violation of the then Foreign Exchange Regulation Act.
The apex court has often come down hard on citizens who have raised concerns and allegations against judges of the higher judiciary. In 2015, for instance, while Senior Advocate Shanti Bhushan was arguing a petition seeking the registration of an FIR against retired Supreme Court judge Justice C.K. Prasad, Justice Dipak Misra had sternly observed that if the petition is admitted “it will open a dangerous door in our democracy”, while rejecting the argument that, in fact, not entertaining the petition would affect the credibility of the institution. That petition had been ultimately dismissed.
As former Chief Justice of the United States Warren Burger had noted, “A sense of confidence in the courts is essential to maintain the fabric of order, liberty for free people and three things could destroy that confidence and do incalculable damage to society: People come to believe that inefficiency and delay will drain even a just judgement of its values; people who have long been exploited in the smaller transactions in daily life come to believe that courts cannot vindicate their legal rights from fraud and overreaching; and people come to believe the law in the larger sense cannot fulfil its primary function to protect them and their families in their homes, at their work and on the public streets”. Justice Holmes, another judge of the American Supreme Court, who served for more than 3 decades, had once remarked, “A long time back I realized that I may be a justice of the Supreme Court but I am not a demigod, that was the starting point of my wisdom.”
The contempt jurisdiction of the Supreme Court of India is yet another area of law which has often been used. A fascinating case in this regard, which has come back to the limelight, would have to be the contempt petition initiated by the Supreme Court (2009) against Advocate Prashant Bhushan for his remark that “half of the last 16 CJIs were corrupt”. He was immediately hauled up for contempt and subsequently, the details of the list of allegedly corrupt CJIs in a sealed cover were handed over by him to the Supreme Court. Eleven years thence, the Supreme Court has now decided to list the matter before a new bench. With no visible sign of the case being listed, it is unlikely that the seal has been broken.
The contempt jurisdiction of the Supreme Court is unique in the sense that it is the complainant, the prosecutor, the judge and the hangman. It is powerful in the sense that it is claimed to be an “inherent” power, uncircumscribed by any statute passed by Parliament.
Lessons of judicial reticence can be learnt in this aspect from the House of Lords, and there is probably no better example than the Spycatcher Case, when after the verdict, a prominent newspaper printed upsidedown photos of the Judges with the headline: “You Old Fools”. When Lord Templeton was asked later as to why he did not initiate contempt against the publication, his simple answer was, “I cannot deny I am old. Whether I am a fool or not, is a matter of perception.”
Judges would do well to reflect on the words of the celebrated Lord Denning, who once remarked, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it so suppress those who speak against us. We do not fear criticism, not do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”
The author is an IAS officer and co-editor of the book ‘Judging the Judges’, with Biswajit Bhattacharya (Gyan Publishers). The views expressed are personal.