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THE growing disquiet over the general failure of governance, so far confined primarily to the legislature and executive, now seems to be enveloping the judiciary. At one level is the systemic tendency to offload problems which strictly ought to lie in the domain of the former onto the lap of the latter. So we have our judiciary not only giving directions about cleaning up the city or conducting criminal investigations but even taking on the onerous burden of overseeing progress in implementation. On the other is the process of our judges developing an unnaturally thin skin, a growing intolerance towards any criticism of their actions.

The recent spat between the judiciary and the media in the Wah India case is symptomatic. The magazine in question published an article – Judged Out – which rated the judges in the Delhi High Court on their integrity and personal qualities. Our judges expectedly took a dim view of the matter and issued a contempt notice against the offending parties. Further, they banned the media from reporting the contempt proceedings.

The latter impelled six senior media personalities to jump into the fray, pleading that it curtailed their fundamental rights and that proceedings of an open court should be reported in the interests of justice and public interest. Fortunately, the court took a lenient view and lifted the ban, though it took umbrage at an editorial hinting at the extra sensitivity of the judges as also their taking frequent recourse to invoking the law of contempt. As for the main case, an abject and unconditional apology by Wah India managed to get them off the hook.

It may be argued that the Wah India team transgressed the bounds of propriety. But would we argue the same in the Arundhati Roy, Medha Patkar and Prashant Bhushan case? These three notables are currently facing contempt proceedings in the Supreme Court because some ‘over enthusiastic members of the Bar’ filed an FIR against them, accusing them of bringing the court into disrepute by their writings and actions protesting against the unfairness of the Sardar Sarovar judgement.

Arundhati Roy, incidentally, had earlier been castigated by the court for her essay, ‘The Greater Common Good’, which questioned the role of the court in the Narmada dams dispute. Even to someone like this writer, long a critic of the NBA strategy, this appears patently unfair. Just how can criticism of a court judgement or process, even if the language is harsh, be deemed worthy of ‘contempt’?

Some time back, Rajendra Sail, a social activist associated with the PUCL in Madhya Pradesh was sentenced to six months imprisonment for hinting at mala-fide in the High Court’s overturning of the lower court’s conviction of the accused in the Shankar Guha Neogi murder trial. The decision had caused widespread dismay and Sail only articulated what many felt.

As a forum for final appeal, it is understandable to institute systems which provide protection to the judiciary from gratuitous pressure or abuse. To however argue that the judicial system represents a category apart, that judges are definitionally immune from the temptations or pressures that other ordinary mortals face, or that the judicial process is not the site of a contestation between social forces and ideologies is to live in a fool’s world.

Why else is there a system of review of earlier judgements, be it by higher courts or by larger benches? Similarly, why is there so much concern about the procedures underlining judicial appointments? Are we not aware of how political pressures operate to delay or speed up judgements?

Our current Chief Justice has been accused by senior members of the Bar, including a former Minister for Law for altering his date of birth and intervening in property disputes involving immediate members of his family. The charges have both been written about and editorialised. None of the above led to an invocation of contempt. Surely not only because those accusing were senior lawyers? No wonder the perception deepens that the weapon of contempt is used capriciously.

Specific instances apart, we need to debate the merit of these special dispensations – ‘contempt’ in the context of the judiciary and ‘privelege’ vis-a-vis the legislatures. Without for a moment seeking to undermine the dignity of these institutions we must not forget that loss of respect can as easily result from an indiscriminate use of protective privelege as unwarranted and normless criticism from the outside. Respect, to be genuine, can neither be demanded nor ensured by coercive fiat. If we have to err at all, one would rather it be in favour of free speech.

Harsh Sethi