If you leave out the magnetic stardom of sportsmen and actors, middle-class India today really has just two heroes — the army and the judiciary. The army’s original job description was to protect borders, but a demanding country depends on it for everything else too, from rebuilding bridges after a tsunami to keeping the peace when religious riots erupt. And the courts today are seen by most of us as an ally in the crusade against corruption. So, whether it is a contentious quota policy, pulling off polluting buses off the road or bringing down illegal buildings, we have come to treat the judiciary almost as an alternative mode of governance. Stung by relentless intervention in what was once their domain, politicians have often objected strenuously to the overweening authority of the judiciary. But the knee-jerk contempt for the neta ensures that the public at large tends to deride these complaints. Ordinary folk have sometimes devoted decades of their lives getting knocked about from court to court. but even so, they look towards the judiciary as their ultimate gateway of hope.
But the power that comes from playing Chief Arbiter in all our lives has bestowed judges with a near God-like seclusion from scepticism and scrutiny. Just as the believer is not meant to ask for proof at the temple of faith, we are expected not to demand evidence that the men and women who uphold our Constitution have the integrity to do so. Every institution of India — politicians, journalists and corporate chieftains — comes within the purview of the judiciary but when it comes to auditing their own conscience, judges want everyone else to stay out.
If you have been following the controversy surrounding India’s previous Chief Justice, Y.K. Sabharwal, you will know that four journalists from Mid-Day have been slapped with a prison sentence on charges of contempt of court for their critical reports of him. Though the journalists are out on bail, the court made it clear that “in the garb of scandalising a retired Chief Justice of India… the image of the highest court has been tarnished”.
The charges against the retired judge are grave and complex. Essentially, he has been accused on two counts. The first allegation was that his verdict on shutting down lakhs of commercial establishments in Delhi benefited his sons, who had business partnerships with mall-owners — presumably the next logical destination for all those whose shops had been closed. Several lawyers and jurists say Justice Sabharwal shouldn’t have sat in on this particular case because of the obvious conflict of interest. instead, they have claimed that he specifically assigned it to his own court. Those campaigning against him pointed out that his sons had used the judge’s official residence as their business address. Justice Sabharwal says this was a clerical error that was rectified as soon it came to his notice.
The second allegation relates to land allotted to his sons by the erstwhile Mulayam Singh government in Uttar Pradesh. His detractors claim that four different plots were sanctioned to the judge’s sons by the state government at prices considerably lower than the market rate, while he was handling a case on whether or not Amar Singh’s private telephone conversations could be broadcast. The judge had ruled against the publication or airing of the CDs, propelling the criticism that once again, a quid pro quo could not be ruled out.
Justice Sabharwal has refuted every allegation and claimed absolute innocence. It is virtually impossible for you or I to walk through the maze of documents and make sense of who is right and who is wrong. If the journalists have failed to do their homework and indulged in lazy or scurrilous reportage, they should get the punishment they deserve. But what if there is an element of truth to the allegations? Can we count on the cozy club of judges to be impartial with one of their own? Should there not have been an independent inquiry before the court determined that it was the media that had got it wrong?
But the judiciary has resisted accountability to the outside world at every stage. The ring-fencing is justified with the old argument that its independence would be at risk. The newly created National Judicial Council has been hard-sold as the mechanism that will make the legal system more transparent. The council is to be made up of five senior judges, three from the Supreme Court and two from the High Court, who will examine all complaints of corruption and impropriety. So, yet again, the judiciary remains accountable only to itself.
The only other way to make a serving judge accountable is through the an impeachment motion, which needs the signatures of 100 MPS to get off the ground. History has witnessed how hopelessly impractical and entangled in prejudice this can be. You only have to rewind to 1993 and recall how the impeachment motion against Justice Ramaswami — the first such action against a Supreme Court judge — failed to go through after the ruling Congress decided to abstain from voting.
Worse, under the new laws, the Chief Justice of India is entirely exempt from the microscopic examination of the judicial council, and its powers will not extend to complaints against retired judges. In other words, there is currently no institutional mechanism that can investigate the allegations against Justice Sabharwal. Surely the judiciary can see that this extreme insulation can only irrevocably damage its credibility?
You and I may not believe that a minister or parliamentarian is above suspicion and are likely to oppose any political presence on the judicial council. But surely an ombudsman or an elder statesman, or even a group of eminent citizens, should be able to find a seat? Recently, Britain set an example by appointing a well-respected naval officer as its ombudsman on all judicial appointments. Why should any judge in India resist a similar move? In a country where the Chief Justice of India is on record saying that at least 20 per cent of all judges are corrupt, there has been virtually no public debate on how to monitor the judiciary. Contempt of court remains the judiciary’s most autocratic weapon, designed to keep the normally bulldog-like media on a tight leash. Ironically, I think it was the former Chief Justice of India who, while explaining the decision to drop the archaic and colonial prefix of ‘Your Lordship’ from the court rulebook, had famously said, “The Lord is only one and he is God above all of us. I am not God; Judges are not Gods.”
In that case, they should stop acting holier than thou.
Barkha Dutt is Managing Editor, NDTV 24x7