Prashant Bhushan, counsel for Arundhati Roy in the contempt of court case in which she was convicted and fined, points out why it is vital to have free discussion and criticism of the role being played by the courts in India
In the Constitution of India the Supreme Court and the High Courts were seen as watchdog bodies, independent of the executive, and entrusted with the task of seeing that all institutions function in accordance with the Constitution and the rule of law. They were assigned powers not only to declare and set aside executive acts of government, but also to strike down (even declare unconstitutional) laws made by parliament and the state legislatures.
Over the years, the judiciary has expanded its own powers by creative interpretations of the Constitution, particularly Article 21 which guarantees the right to life. This has been interpreted by the Supreme Court to include the right to a healthy environment, to health, primary education, livelihood and shelter. Thus the Supreme Court has ordered the removal of 'polluting' industries from Delhi, the total removal of industries from the vicinity of the Taj Mahal in Agra, the change of all commercial vehicles to CNG fuel, and the stoppage of all commercial activities in forest areas. All of these orders have had far-reaching effects, and have drastically affected the lives and livelihoods of millions of common persons.
In recent years, and especially after the implementation of the Structural Adjustment Programme (the so-called economic reforms programme), the jurisdiction of the superior courts has also been invoked to challenge the constitutional validity of some elements of this programme. This includes -
- the Enron case, which challenged the manner in which a privatised contract was awarded
- the telecom case, which challenged the manner in which privatised telecom contracts were awarded
- the Balco case, which challenged the manner in which a government company was disinvested
- the Panna Mukta oilfields case, which challenged the manner of selling and privatising oilfields owned by the public sector
It is another matter that in none of these cases did the court interfere in the government's decisions. Indeed, in some of these cases, such as the Balco and the telecom cases, the court's decisions were in fact used by the executive to legitimise and promote its policies and programmes, already under attack by various public campaigns and mass movements.
Indeed the courts have often been seen to go beyond the issue brought before it, and have used the occasion to put their seal of approval on the programmes and policies of the government. This is what happened in the Balco disinvestment case where the court went on to approve and applaud the entire disinvestment policy of the government, and in the Sardar Sarovar case where the court went on to extol the virtues of large dams, even in the absence of this issue being before it.
Constitutionally endowed with enormous powers, the clout of the Indian courts has increased even further - they are in fact widely regarded as the most powerful courts in the world. Despite this, the courts in India are virtually unaccountable. In assuring their independence from the executive, impeachment was made the only method of accountability for judges in the Constitution. This has proved to be illusory as was demonstrated so starkly in the V Ramaswami case. At the same time, the courts and judges have been reluctant to evolve even an in-house system of self-monitored accountability. The result is a situation where they have enormous power without any accountability - a situation tailor-made for breeding sloth, arrogance and abuse of power.
It is against this background that one has to examine the right - indeed the need - for free discussion and criticism of the role being played by the courts in this country. In a democracy like ours where every institution is exercising power on behalf of the people, are the people not entitled to scrutinise, discuss and comment upon the actions of the judiciary? Obviously every institution, including the judiciary, can go wrong.
The judiciary is peopled by judges who are human, and being human, they are occasionally motivated by considerations other than an objective view of law and justice. It would be foolhardy to contend that none of them, at least sometimes, are motivated by considerations of their own personal ideology, affiliations, predilections, biases, and indeed even by nepotistic and corrupt considerations. In this day and age of common and frequent social interaction between politicians and judges, instances of judges being 'spoken to' on matters pending before them in court are also not unheard of.
In stifling all criticism by the threatened exercise of the power of contempt, the issue in a democratic society is ultimately one of the accountability of the judiciary itself. In order to stifle free speech and comments on the courts, even an occasional exercise of this power is enough to deter most persons from saying anything that might annoy their Lordships. Perhaps the most important reason for lack of reforms in the judiciary is the reluctance of the press to write about and discuss the state of affairs within it for fear of contempt.
It is for this reason that Arundhati Roy's case is a test case in which the right of a citizen to criticise the courts and discuss its motivations is pitted against the power of the courts to punish for contempt. The decision in this case and the response of the people and the press to the decision will be a decisive moment in this struggle.