[Reader-list] Prashant Bhushan on COURTS, CONTEMPT & A CLIMATE THAT DEMANDS ACCOUNTABILITY
shuddha at sarai.net
Fri Feb 15 00:24:34 IST 2002
Further on Arundhati Roy and the case against her in the Supreme Court of
COURTS, CONTEMPT &
A CLIMATE THAT DEMANDS ACCOUNTABILITY
By Prashant Bhushan
In the Constitution of India the Supreme Court and the High Courts were seen
as watchdog bodies, independent of the executive, and entrusted with the task
of seeing that all institutions function in accordance with the Constitution,
and the Rule of Law. They were assigned with powers not only to declare and
set aside Executive acts of Government, but also to strike down (even declare
unconstitutional) laws made by Parliament and the State Legislatures.
Over the years, the judiciary has expanded its own powers by creative
interpretations of the Constitution, particularly Article 21 which guarantees
the right to life. This has been interpreted by the Supreme Court to include
the right to a healthy environment, to health, primary education, livelihood
and shelter. Thus the Supreme Court has ordered the removal of polluting
industries from Delhi, the total removal of industries from the vicinity of
the Taj Mahal in Agra, the change of all commercial vehicles to CNG fuel, and
the stoppage of all commercial activities in forest areas. All of these
orders have had far reaching effects, and have drastically affected the lives
and livelihoods of millions of common persons.
In recent years, and especially after the implementation of the Structural
Adjustment programme (the so called Economic Reforms programme), the
jurisdiction of the Superior Courts has also been invoked to challenge the
Constitutional validity of some elements of this programme. This includes -
the Enron Case, which challenged the manner in which a privatized contract
the Telecom case, which challenged the manner in which privatized telecom
contracts were awarded
the Balco case, which challenged the manner in which a government company was
the Panna Mukta oilfields case, which challenged the manner of selling and
privatizing oilfields owned by the Public sector
It is another matter that in none of these cases did the court interfere in
the governments decisions. Indeed, in some of these cases, such as the Balco
and the Telecom cases, the courts decisions were in fact used by the
executive to legitimize and promote its policies and programmes, already
under attack by various public campaigns and mass movements.
Indeed the courts have often been seen to go beyond the issue brought before
it, and have used the occasion to put their seal of approval on the
programmes and policies of the government. This is what happened in the Balco
disinvestment case where the Court went on to approve and applaud the entire
disinvestment policy of the government, and in the Sardar Sarovar Case where
the court went on to extol the virtues of large dams, even in the absence of
this issue being before it.
Constitutionally endowed with enormous powers, the clout of the Indian
Courts, has increased even further they are in fact widely regarded as the
most powerful courts in the world. Despite this, the Courts in India are
virtually unaccountable. In assuring their independence from the executive,
impeachment was made the only method of accountability for judges in the
Constitution. This has proved to be illusory as was demonstrated so starkly
in the V. Ramaswami case. At the same time, the Courts and judges have been
reluctant to evolve even an in-house system of self-monitored accountability.
The result is a situation where they have enormous power without any
accountability a situation tailor-made for breeding sloth, arrogance and
abuse of power.
It is against this background that one has to examine the right - indeed the
need - for free discussion and criticism of the role being played by the
courts in this country. In a democracy like ours where every institution is
exercising power on behalf of the people, are the people not entitled to
scrutinize, discuss and comment upon the actions of the judiciary? Obviously
every institution, including the judiciary can go wrong. Every institution,
including the judiciary has its share of black sheep and corrupt judges. Even
the Chief Justice of India said so recently in Kerala.
The judiciary is peopled by judges who are human, and being human, they are
occasionally motivated by considerations other than an objective view of law
and justice. It would be foolhardy to contend that none of them, at least
some times, are motivated by considerations of their own personal ideology,
affiliations, predilections, biases, and indeed even by nepotistic and
corrupt considerations. In this day and age of common and frequent social
interaction between politicians and judges, instances of judges being spoken
to on matters pending before them in court are also not unheard of.
In stifling all criticism by the threatened exercise of the power of
contempt, the issue in a democratic society is ultimately one of the
accountability of the judiciary itself. In order to stifle free speech and
comments on the Courts, even an occasional exercise of this power is enough
to deter most persons from saying anything that might annoy their Lordships.
Perhaps the most important reason for lack of reforms in the judiciary is the
reluctance of the Press to write about and discuss the state of affairs
within it for fear of contempt.
It is for this reason that Arundhati Roys case is a test case in which the
right of a citizen to criticize the Courts and discuss its motivations is
pitted against the power of the Courts to punish for contempt. The decision
in this case and the response of the people and the press to the decision
will be a decisive moment in this struggle.
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