Hong Kong, China — The Supreme Court of India is known for using its constitutional mandate and authority to initiate actions in the public interest. The court in the past has even taken note of newspaper reports to initiate actions against suspected breach of law and misuse of office by public servants.

This earnestness and enthusiasm have not been reflected in the Indian courts’ approach in scrutinizing the activities of the courts and their judges, however. On the contrary, the Indian courts have been very parochial in facing criticism.

Earlier this year, the Supreme Court of India was found locked in a battle with the legislature regarding the issue of transparency of the judiciary. The court that once said the newly implemented right to information law was a necessity in India to bring light into the dark corners of administration, is becoming increasingly wary about the same principles applied to the courts.

This attitude is an extension of the Supreme Court’s earlier “allergy” toward bringing transparency into the Indian judiciary. In 2007 the court forced Vijay Shekhar – a journalist with a television news channel who exposed the caucus of a corrupt magistrate, his court staff and some lawyers in Gujarat state in a “warrants for cash” scam – to apologize to the court or face a term in jail for contempt of court. The court staff and lawyers were caught on camera negotiating and accepting bribes for the magistrate for issuing arrest warrants.

The Supreme Court took up the matter and directed the Gujarat High Court to initiate an internal enquiry against the concerned judicial officer and his staff. The Gujarat High Court absolved the judge, however, without examining the complainants. Thereafter, the Supreme Court of India condemned the journalist who had carried out this operation and threatened to send him to jail for contempt unless he apologized.

The conviction and sentencing of journalists in 2007 for publishing information about the conduct of Justice Sabharwal, a Supreme Court judge, had brought to the fore the issue of judicial accountability. But the issue soon died a natural death, since no one wanted to get into trouble with the court.

The Indian judiciary is one of the most powerful in the world. Its conduct has a direct impact upon the life of ordinary people. A state institution of such high powers must be transparent and accountable for its actions.

The courts in India have however consistently avoided calls for accountability despite many serious allegations of misconduct and misdemeanor. At one time Justice S. P. Bharucha, the former chief justice of India, admitted that about 20 percent of the higher judiciary was corrupt. According to Justice Michael Saldahna of the Karnataka High Court, it is 33 percent. Despite such admissions, no enquiry has ever been initiated against any judge in the past 15 years.

Under the Constitution of India, the only way to remove a judge from the High Court or the Supreme Court is by way of impeachment. This constitutional provision has failed miserably. Its ineffectiveness was clearly demonstrated in the case of Justice V. Ramaswami. At the same time, despite verbal homilies, the courts and judges have been the most reluctant to evolve even a self-monitoring mechanism for accountability. Such a situation reflects enormous arrogance and abuse of power.

This is reflected in the procedures for appointing judges to the higher judiciary as well. Even though appointments are made by the president of India, the selection is made by the collegium of judges. The selection process is nontransparent and all attempts to make the process transparent have been resisted by the judiciary.

Demanding judicial accountability has almost always caused the initiation of contempt proceedings, thereby stifling free discussion on the issues that plague the judiciary. Unwarranted use of contempt of court proceedings in fact diminishes the public perception about the judiciary’s openness and transparency.

There are judicial systems in Asia considered to have failed beyond the point of recovery. Of these, the most glaring example is the Sri Lankan judiciary, which is now facing criticism on all counts including politicization of the judiciary to meet the ends of a corrupt chief justice. The chief justice of Sri Lanka, an infamous figure in the country, is feared for abusing contempt of court proceedings against anyone who opposes his questionable actions.

The Supreme Court of Sri Lanka has now stooped to a level where public perception about the impartiality of the court and its competency to decide matters on their merits is at an all-time low. As a result the general public views the courts in Sri Lanka as a failed state apparatus which in fact adds to the decades-long ethnic conflict in that country.

The term democracy implies the notion that the people are supreme. All state institutions, whether it be the judiciary, legislature or the executive, are merely servants of the people. The basic principle behind the contempt of court proceedings is that the court must use this authority only in circumstances where otherwise the functioning of the court would be impossible or obstructed.

In India under the Contempt of Courts Act, 1971, the term “contempt” is not defined. Therefore if any person makes adverse comments against the court or a judge, the power to punish for “scandalizing the court” is frequently invoked. This approach is considered obscure in most established jurisdictions.

The contempt of court action must not be an attempt to protect the dignity of the court, but to promote the administration of justice. The dignity of the court is promoted by the court being humble enough to face criticism, whereas promotion of justice is to be carried out by removing all hindrances to the delivery of justice. By the unrestrained use of contempt of court actions the courts in India are in fact derogating from their duty to safeguard the Constitution of the country, which also guarantees freedom of speech and expression in Article 19 (1).

The honor of the judges and the judiciary – the state institution through which the judges are supposed to serve the people – is promoted and protected by the openness of the judges and the judiciary to criticism. Intolerance to scrutiny and lack of openness equates the judges and the judiciary with a dictatorship.

At this pace the Indian judiciary, once known for its eloquence and its contribution to the advancement of free thought and expression, will soon be reduced to an egotistical institution. Such a judiciary is definitely not what modern India aspires to. India today requires a transparent, accountable and sensitive judiciary.

The imperatives for the judiciary in India are obvious. It has a duty to protect, promote and fulfill the Constitutional guarantees. The judiciary must be open and transparent with a clear conscience that it is not beyond criticism. For this, it must be accountable to the people, which it is bound to serve. The judiciary in India is the last hope of a fragmented society. When it fails to respect its responsibilities, it will bring insurmountable peril to the country and its people.

(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master’s degree in human rights law.)

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