The Hindu : Judicial excesses

Online edition of India's National Newspaper
Monday, Dec 09, 2002

Opinion

Opinion - Editorials

Judicial excesses

IF THE POWER to punish for contempt is only rarely to be invoked to protect the authority of the judiciary against the occasional scandal monger, the Karnataka High Court's reaction to media allegations of improper personal conduct against some judges has been unprecedented in its sweep. It has started contempt of court proceedings against 14 publications and 56 persons, covering almost the entire press in the State. The facts on the conduct of the judges are still to emerge fully but the reports have been taken seriously enough by the Chief Justice of India who has initiated an enquiry by a committee of chief justices of high courts. Yet even at this stage and without regard to whether or not the reports are true, the High Court has charged the publications with having "tarnished the image of the judiciary and scandalized the High Court". The course that the High Court has adopted brings out once again the anachronistic state of the law where even truth which ought to triumph over all other considerations is no defence to a charge of contempt of court. The need for judicial restraint is underlined even more when one considers that in contempt cases the judiciary is the judge in its own cause. In the Karnataka case, the Registrar General of the High Court on the direction of the Chief Justice places the matter before a bench of three judges who are to decide on the issue concerning their colleagues.

Even more disturbing are the implications for the press and the larger democratic system as the High Court's action threatens to upset the balance to be maintained among the various institutions. The Court has observed "we hope and trust that the Press shall, in view of the pendency of these proceedings, act with greater restraint and responsibility". The very purpose of starting contempt proceedings at this stage seems to be to make the issues sub judice and silence the press on the ground that the matter is before the court. The higher judiciary should ponder over whether the contempt jurisdiction should be invoked to decree all round silence. The authority of the judiciary should surely stand on a firmer footing than a reflexive stifling of all public scrutiny. And there is the larger question of whether the judiciary in seeking to maintain its authority and reputation should go to such lengths and impose such high costs on the rest of the society in terms of curbs on freedoms.

Of the institutions of state, the judiciary is the one that still commands the respect and confidence of the people. Yet even with the judiciary all is not well, and we have it on the authority of a former Chief Justice of India, Mr. Barucha, that 20 per cent of the judges are corrupt. In a commendable move to ensure probity and public confidence in the judiciary, the Chief Justice of India has initiated the practice of enquiry into serious charges against any judge by a committee of chief justices. Given the problems in resorting to the extreme step of impeachment which is the only course available in the Constitution to deal with errant judges, such an informal enquiry coupled with the withholding of court work from those found guilty and resignations could serve as a corrective. Apart from the case of the Karnataka judges, an enquiry was also made into the conduct of some of the judges of the Punjab High Court who were linked to the Punjab Public Service Commission scandal. Again, there is the proposal for the creation of a formal judicial commission which would deal with the appointment and conduct of judges. The Karnataka High Court move, by drawing a veil of secrecy over the conduct of judges, runs counter to the recent reforms that seek to bring in greater transparency, internal monitoring and accountability within the judiciary. It is ironic that at a time when the courts have become active in ensuring a greater public scrutiny and accountability of political office holders some sections of the judiciary should seek to fortify themselves in unaccountable seclusion.

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