Shocking Abuse of Judicial Power Gobind Thukral - South Asia Post September 30, 2007 “IN February 2006, 26 Supreme Court (INDIA) judges faced a backlog of more than 30,000 pending cases; over three million cases were pending in the high courts - 350 years of work for the country’s 670 judges at the current rate of resolution”. Transparency international. The Indian republic of circa 2007 is marked by increasing threats to freedom of thought and expression and shocking abuse of powers by all its institutions. Parliament’s functioning is thwarted not only by when MPs are caught on camera accepting bribes in defence deals or asking questions to take money, but rowdy behaviour of its members. Same is true about our assemblies. Executive is long known for its insensitivity towards the public and its myriad problems. It has become the epitome of corruption and inefficiency. Judiciary the last resort for those who can afford to knock its doors for justice at times abuses its powers and is becoming corrupt and even lazy in the dispensation of justice. Media, the fourth estate is now more for profiteering and monopoly control over information and opinions. It employs every gimmick to increase circulation in order to sell readers to advertisers and make money. It sounds cynical. But how could one see these institutions which at times perform well and add enormously to the public welfare, going sick. Look at the two controversies that have emerged only this month. It involves disparate people, issues and agencies but have a common link; denial of fundamental freedoms. The Delhi High Court’s action in holding the editor, the publisher, the resident editor, and a cartoonist of Mid Day (published from Delhi) guilty of contempt of court for making allegations of gross judicial misconduct against the former Chief Justice of India Y.K. Sabharwal and sentencing them to four months’ imprisonment raises troubling questions. The court did not admit truth as a plea against contempt ad defined in the latest amended Indian Contempt Act. It clearly is an instance of inappropriate use of the contempt power to bar an attempt to raise the issue of judicial misconduct. It clearly underlines the danger to freedom of expression. Does our judiciary’s want to use its untrammelled contempt power to stop newspapers from exposing the misconduct of the judges at any level? Does it not strengthen the impression that the judiciary as an institution has much to hide? This in turn undermines its credibility in the eyes of the public. Some years back a well known judge of the Supreme Court justice Krishna Iyer observed that contempt cases are “Vague and wandering jurisdiction with uncertain frontiers”. Apart from the built-in unfairness in a judge acting in his own cause, serving as prosecutor, judge, jury, and hangman, a great deal of uncertainty marks the offence of “scandalising the court.” Two years ago, the Center of Media Studies conducted survey which found that 77 per cent Indian perceived judiciary to be conduct. Our judges know that several factors include corruption, paucity of judges, procedure wrangling and poor infra structure are causing inordinate delays. Only this week, the Supreme Court decided case pending since 1947 from Kerala about some land dispute. There are 40,243 cases pending in the highest court. 20 million cases are filed each year and only 19 million decided, leaving a huge backlog. According one estimate Rs 2500 crore is the amount that is paid as bribe to lawyers, court officials and to judges every year. Yet the courts would routinely punish journalists and writers of eminence like Arundhati Roy for raising serious issues. The Delhi High Court has taken no action against the lawyers and judges who had investigated the case of corruption against justice Sabharwal and levelled these allegations through press conferences and articles. Now several newspapers have written hard hitting editorials on the issue. In case of justice Sabharwal, there is no mechanism available to get the charges investigated. The absence of an effective and credible institutional mechanism to probe allegations of misconduct against judges of the high courts and the Supreme Court lends credence to the charge that our judges believe in cloistered virtue. This is clearly unhealthy for any democracy. Any criticism of the judiciary customarily invites the wrath of judiciary that refuses to submit itself to any inquiry except by them. Other countries have institutional mechanisms like complaint officers. Leading lawyers and the Campaign for Judicial Accountability and Judicial Reforms have been making two broad allegations against Mr. Sabharwal. One is that his orders on sealing irregular commercial premises in residential areas of Delhi were ultimately to the benefit of two business associates of his sons who were engaged in developing commercial complexes and malls. Because of the sealing drive, property values and rents went up in those areas. His sons benefited from this. The allegation looks wild at its face. The second charge is more serious. It is that even as he heard the case relating to the tapes said to contain recorded conversations of the Samajwadi Party General Secretary Amar Singh and passed an interim order staying their broadcast, the Uttar Pradesh government allotted his sons plots of land in Noida at rates that were a fraction of the market prices. Mr. Sabharwal found that silence was no longer an option, refuted these charges point by point in a newspaper article. Take the case of a former RAW [India’s external secret agency] Officer V.K. Singh, a major general from the Indian army who exposed through a book the inefficiency and corruption in this premier intelligence agency. The result: a CBI raid on him for violating the Official Secrets Act. Interestingly three months after the book was published, the cabinet ordered the CBI, it handmaiden to probe. The CBI has raided the publisher too. This 84 year old archaic British law is being kept alive to frighten anyone who dares to reveal the truth. Anyone, journalists and writers , whether former bureaucrats are anyone else can be hauled up for possessing a piece of paper on which the Babu has written ‘secret’ or ‘top secret’ and you are in jails for months and years. It is a convenient tool to shut up anyone who threatens to spill the beans? Dissent and debate are the foundation of any democratic society, particularly a multi-cultural, multi-religious and pluralistic like ours. Whether it is a work of art or a film, out comes the government, the judiciary or those loony fringe to impose their will on the masses. Remember in Punjab head of the Takht Damdama Sahib Balwant Singh Nandgarh declared that any one bringing the head of the chief dera Saccha Sauda would be weighed in gold and following this former BJP MP Ram Vilas Vedanti has offered gold for the head of Tamil Nadu Chief Minister Karunanidhi for his remarks on lord Rama. What has happened to the liberalism and the spirit of accommodation? The Indian state and people are surely not so frail that they cannot withstand constructive criticism or the questioning of beliefs.