Contempt punishment to Arundhati Roy ‘black spot in judicial history’

IN Judgements | 15/06/2010
Judicial accountability and the untrammelled powers of the judiciary to punish those who commit contempt of court can lead to a dangerous abuse of power,
says JUSTICE SHYLENDRAKUMAR of the Karnataka High Court. Extracts from the endowment lecture delivered by at SDM College in Mangalore, Karnataka on April 4, 2010

I am humbled at having been invited to deliver the Silver Jubilee Memorial Endowment Lecture on the topic of The Need for Judicial Accountability in the Era of Judicial Transformation, sponsored by the Alumni instituted Endowment Fund of Shri Dharmasthala Manjunatheshwara Law College and Centre for Post Graduate Studies, Mangalore in the series of Endowment Lectures.

 

‘Judicial Accountability’ is a phrase which everyone can understand, ‘Judicial Transformation’ is a phrase capable of multiple communications and the bigger phrase of ‘in the era of Judicial Transformation’ obviously implies that this is an era wherein is taking place judicial transformation and as is the nature of human beings, the era is always the current era and the person from whose angle, from whose perception, understanding, the change is taking place is obviously the self.

 

..........The degree of judicial accountability, which the founding fathers of our Constitution presumed to exist, in the judges of the superior courts and with which faith the founding fathers of our Constitution insulated judges of superior courts with foolproof protection, has unfortunately started working in the opposite direction with the induction of suspect, incompetent, dishonest judges into the superior judiciary and of course judicial accountability is the victim.

 

Protection to the judges of the superior courts provided with the principal object of ensuring that the judiciary remains totally independent of outside influences and more so from the overbearing influence of executive governance, has only been abused in recent times with errant judges who have become insensitive not only to their duties and responsibilities but also to public opinion, doggedly clinging on to their posts and offices even when faced with impeachment motion initiated by the only Constitutionally provided disciplinary body viz., the Parliament of the country and as a result, the image of the judiciary has diminished and the common man of the country has started to exhibit signs of despair, loss of confidence and trust in judiciary.  This has happened only because of lack of judicial accountability on the part of the judges of the superior courts of the country.

 

The judges in the subordinate courts are made accountable and their conduct and functions are made answerable directly to the High Courts of the state and that can definitely take care of the errant judges in the subordinate judiciary, which, no doubt, constitutes the base and foundation of the Indian judiciary.

 

But, with the judges of the superior courts having been bestowed with the protection under the Constitution and the protection here to stay, in general to all the judges of the superior courts, but the exception being only a judge whose misconduct is proved and on a motion and debate, supported by two-third membership of the members present in each of the two Houses of Parliament and such supporting members being not less than half of the total membership of each House, for the removal of the judge and such a possibility having become more imaginary than real in the present day state of polity in our country with innumerable and fractured political parties, only vying with one another for grabbing power and not either adhering to their party manifesto or to any ethical value on the part of the individual members, such conditions have only emboldened and encouraged the errant judges to act in a brazen manner, to dare and challenge the only disciplinary body – Parliament – to try and take any action against them.   This is definitely not a very healthy augury to the society, to the country and to our Constitutional mandate of social democratic system of governance. 

 

The other major contributory factors, in the context of judicial accountability being not in vogue in the higher Judiciary are:

1.                  The misuse and abuse of the power to punish persons committing contempt of court available under the Contempt of Courts Act.

2.                  Varied activities and diversion of attention of Judges to non-judicial functions/activities.

3.                  Non-existence of an effective disciplinary mechanism to identify and take action against the errant Judges.

4.                  Judges yielding to outside pressures and dictates.

5.                  Foolproof immunity to Judges of the superior courts which has virtually insulated the Judges from all sorts of outside pressures and influences having virtually become a fortress like a shield the well protected Judges having started misbehaving and misconducting themselves while enjoying such protected privileges.

6.                  Misuse and abuse of the potent power for imposing punishment for contempt of court as provided under the Contempt of Courts Act.

 

............I am of the earnest opinion that the power to punish people who have committed contempt of court proceedings and orders is a very drastic power without even reasonable safeguards, but more disturbingly without adequate remedial measures at all.  If mistakes, errors or even illegalities are committed in the exercise of this power and this definitely happens when the power is abused at the level of superior courts in this country and of course becomes irreversible and without remedy when it happens at the highest level of the judicial system, abuse of judicial power is total and lack of judicial accountability perpetuates the abuse.

           

While the breed of journalists, are by and large victims of this phenomenon of tyrannical and abusive exercise of the power for punishing people for contempt, the case of Ms Arundhati Roy will remain as a black spot in the judicial history of this country forever.  I am of the personal opinion that the day when Supreme Court punished Ms Arundhati Roy for contempt and sentenced her to undergo a day’s imprisonment and sent her to Tihar Jail in the case of ARUNDHATI ROY, IN RE reported in [2008] 3 SCC 343 was the darkest day in the history of the Indian Judiciary.  I, as a Judge, through this expression, offer my personal regret and apology to Ms Arundhati Roy for the judicial tyranny let loose on her by the most improper use of the power to punish a person for committing contempt of court.

 

It is high time, members in the superior courts of this country exhibit greater awareness of the sense of judicial accountability required to be exhibited and adhered to while exercising the unruly power of punishing people for committing contempt of court.

           

This again is an area for legislature to get active in the wake of past experiences and to usher in suitable legislation to ensure that the power does not become tyrannical. The power while is to be retained, should also be ensured to be available only in instances of statutorily recognized situations and not left to be nebulously expansive in its range and reach.

 

A judge is a public servant.   Every public servant is accountable to the people and to the society and to the entire country at large.  [decision in K VEERASWAMI  vs  UNION OF INDIA – (1991) 3 SCC 655].

 

Accountability means a judge should discharge his duties and responsibilities in a proper, efficient and law conforming manner.   Ultimately, the accountability of the judge is to his own conscious and, therefore, should be an in-built quality in every judge.

 

Click here to read the entire text of the lecture

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