NOT long ago, the curiosity of the resident editor of a tabloid was ignited by addresses of certain companies on the letterbox outside the residence of the then Chief Justice of India. Discreet enquiries conducted by her revealed that the registered offices of certain companies were indeed the official residence of the CJI. A visit to the website of the Ministry of Corporate Affairs showed that one of these companies had become richer by millions of rupees in a short span of time. The tabloid investigated the story in a professional manner and carried a report that suggested that orders to seal certain unauthorised properties in the national capital issued by an apex court bench presided over by the CJI might have benefited these companies. Delhi High Court found the resident editor, the reporter and two others of the said tabloid guilty of contempt of court and sentenced them to imprisonment. A statutory appeal to the apex court stayed the operation of sentences against the four contemnors. The resident editor and the reporter were in good time eased out of the tabloid by the publisher to avoid any further trouble. So much for investigative journalism in our liberal democracy!
Media and civil society took up the issue in right earnest. Twenty seven eminent citizens petitioned the Supreme Court to impede them in the case and urged the court that they too are given the punishment that was awarded to the four contemnors. The apex court declined to entertain the petition saying it didn’t need intellectuals’ assistance in a contempt case. Further, the apex court refused to go into the merits of the case against the contemnors but indicated that it would adjudicate only on the correctness or otherwise of the High Court orders. Civil society was outraged pointing out that the Parliament had a few years ago amended the contempt law to provide that truth was a valid defence in contempt cases to negate apex court’s earlier view that truth was no defence in such cases. Several jurists, including former judges of the apex court, issued statements requesting the CJI to ask for a transparent enquiry to clear his name as dignity and credibility of the highest court was involved. The judge concerned maintained a studied silence and after his retirement wrote a newspaper article to give his side of the story. He maintained that there was no mala fide intention in ordering sealing of certain properties. He further disclosed that he had asked his sons to shift their company offices from his official residence. He, thus, virtually admitted that his sons were running their businesses from his official residence. Supreme Court’s stand that there was no provision in law to hold an enquiry into the conduct of a former CJI is surprising.
The controversy about judiciary launching proceedings under the contempt law to silence critics of judicial misconduct has been revived by the sensational allegations recently made by none else than former Law Minister and a veteran lawyer, Shanti Bhushan. In his petition to the Supreme Court, he alleged that eight of 16/17 former CJIs were corrupt and listed charges against them in a sealed envelop virtually daring the apex court to read them out in the court. Asking to be impeded in the contempt proceedings against his son, Prashant Bhushan, who too is a noted lawyer, former Law Minister urged the apex court to try him along with his son so that he (Shanti Bhushan) was also suitably punished for contempt. He went on to add that he would consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary. The petitioner submitted that since the question arising out of the case affects judiciary as a whole, his petition needed to be heard by the entire court and not merely by three judges “handpicked” by the Chief Justice. He caused a flutter in judicial and political circles by pointing out that the list of 16 CJIs he had submitted started with Ranganatha Misra to YK Sabharwal. Prashant Bhushan, who is facing contempt proceedings for his interview to a media house, has submitted that his allegations of corruption against certain former CJIs are based on “some documentary, some oral and some circumstantial evidence and material”.
The father-son-due has made serious charges that can’t be brushed aside. They have brought into sharp focus the vital issue of judicial accountability and transparency. Independence of judiciary is a cherished value in a democratic polity. It should never be compromised but it can’t be anyone’s case that judiciary is accountable to none but itself. As of now, judiciary is the last hope of the people who doesn’t have much faith in the political class. A critical and honest scrutiny by media and the civil society can ensure accountability and credibility of judiciary. Former Supreme Court judge, V R Krishna Iyer, says, “Informed criticism of judicial misconduct or incompetence or institutional turpitude or dysfunctionalism creates corrective public opinion through vigilant scrutiny and media publicity. Speech is duty and silence cowardice, since information, accountability and transparency of judiciary are inalienable attributes of any democratic institution”. Contempt law, he holds, must doctrinally accept the proposition that truth of adverse allegation is a valid justification. Unfortunately, one hears too many whispers about corruption in judiciary. A retiring Chief Justice of India had made the startling observation that 80 per cent judges were honest. Another retiring CJI said he was aware of the fault lines but was helpless. There is near unanimity among the political class that impeachment of judges of higher judiciary under Article 124 (4) is unworkable. It was proved beyond a shadow of doubt in the case of Justice V Ramaswami of the apex court. A political deal was struck under pressure from a regional party and the Congress MPs abstained from voting on the impeachment of the judge after he was found guilty by the committee set up by Parliament. The judge escaped punishment and was later appointed Chairman of the Tamil Nadu Law Commission. He unsuccessfully contested parliamentary election in 1999 on AIDMK ticket.
Jurists have rightly pointed out that impeachment being an extreme and final remedy couldn’t be resorted to in every case of alleged impropriety or misconduct. It would be like a penal code providing only one extreme punishment viz death sentence and nothing else. Noted jurist, the late Dr L M Singhvi, had proposed a system of redressal mechanism with well laid down procedures, albeit internal, that needs to culminate in a final result one way or the other within a time-bound schedule. He suggested that the action taken, be it admonition, warning, request, transfer or curtailment of jurisdiction or anything more drastic may be done discreetly, internally and soberly. These are proposals the Government can work on in consultation with the opposition and higher judiciary to cleanse the judiciary of corruption and misconduct. Judicial statesmanship must come into play to ensure judicial accountability, transparency and credibility for no matter how high you are law is higher than you.