The Hindu : Tilting at Windmills

Online edition of India's National Newspaper
Wednesday, Jun 05, 2002

Opinion

Opinion - Editorials

Tilting at Windmills

OF THE MAJOR institutions of state, the judiciary still retains the pride of place in terms of credibility, respect and integrity. Yet, the recent period has seen some disquieting trends even in the functioning of the judiciary, and we have it on the authority of a former Chief Justice of India that a quarter of the subordinate judiciary is corrupt. The issue of internal rot is sought to be addressed through judicial reforms and the efforts of the chief justices, the Law Commission and the commission to review the Constitution. However, the judiciary's interaction with the public, and in particular with the media, has hardly come in for serious attention. It is a well known dictum that justice is not a cloistered virtue and should suffer the outspoken but respectful comment of ordinary men. The extent of outspokenness that is common elsewhere is illustrated by a headline in an article by a law professor in the United States describing the Supreme Court judges who ruled against Al Gore as "five robed bandits". The judges there with their supreme confidence in their learning, fairness and integrity would never think of hauling up even such critics for contempt of court or for scandalizing the judiciary which smaller minds in their insecurity are often wont to do in India.

Judicial credibility, dignity and respect are qualities that accrue naturally through learning, fairness and a certain reserve and distance from the society around and cannot be acquired by tilting at the windmills of public and press scrutiny as if they were to blame for the ills afflicting the judiciary. A certain measure of intolerance manifests itself at times in gag orders seeking to cut out reporting of investigation and even judicial proceedings in open court merely to avoid embarrassment to the judges rather than out of any higher consideration of the welfare or the rights of the litigants. Worse still is the increasing resort by some courts to contempt proceedings to deter public scrutiny of their actions, both judicial and administrative, and to draw a cloak of secrecy over the functioning of the institution that has to be seen by the public as transparently just. A judge is expected to rise above any prejudice from out of his past once he becomes a judge. However, it is difficult to maintain the fiction that a judge can be totally cut off from his philosophical orientation or his background, that one judge is as good as another and that any judge can be expected to give an absolutely unbiased judgement. This became very clear in the matter of the criminal appeals filed in the Madras High Court by the Tamil Nadu Chief Minister, Jayalalithaa, when the judge hearing them was changed twice. On the second occasion, it was the Attorney General who argued that the judge was not giving the prosecutor a proper hearing and the Supreme Court thought it fit to change him on the ground of manifest bias. In such a milieu, there is a legitimate public interest in the identity, the background and the pronouncements of any new judge appointed to hear specific cases, particularly cases with political overtones, and the judiciary ought to tolerate such scrutiny so long as it does not turn offensive or libellous.

It is true that the salaries and perquisites of judges at all levels are grossly inadequate relative to other professions, but the way to redress the situation is through open public debate and voting of funds by the legislature on the basis of widely discussed norms. Instead, if the judiciary were to appropriate for itself such perquisites through judicial orders in the manner of legislators voting themselves more and more, or through the dispensation of the executive outside the public view, it offends the sense of democratic accountability. As for the executive, it is not out of any regard for judicial independence and dignity that it is going to oblige the judges but merely to maintain good relations and not to offend them, if not for baser considerations. If in the exercise of even essential administrative functions, a judge gets down to negotiating with salesmen of houses or cars or maces or carpets and other appurtenances of office rather than follow established procedures that would put some distance between him and such mundane commercial matters, his actions involving the use of public funds become a legitimate subject of public scrutiny.

There is an element of unfairness built into contempt proceedings because the judge often decides his own cause while a person hauled up is not allowed to offer any defence other than an apology, and their frequent invoking threatens to chill legitimate democratic debate. It is time the higher judiciary woke up to the danger and restrained judges from invoking the contempt jurisdiction to shield themselves from criticism and public scrutiny. The cause of judicial dignity is ill served by judges who seek to extract respect through the crude and unrestrained use of authority.

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