[Reader-list] Prashant Bhushan on COURTS, CONTEMPT & A CLIMATE THAT DEMANDS ACCOUNTABILITY

[Shuddhabrata Sengupta]

Further on Arundhati Roy and the case against her in the Supreme Court of 
India 

Shuddha
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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 
was awarded
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 
disinvested 
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 Roy’s 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.