Contempt of justice be just, not just legal

Policemen ignore missing children in Nithari; judges don’t take note of undertrial prisoners

Dr. Malay Chaudhuri
Founder - Director, IIPM & Author of the Best Seller ‘The Great Indian Dream

[February, 2007]

Chief Justices of the Supreme Court are the wisest people India can boast of! Yet, one Chief Justice, in his wisdom, allowed the suspension of Fundamental Rights to Life during the Emergency. Another Chief Justice recently took upon the task of enforcing the town planning law, on a street by street basis, appointing a monitoring committee equipped with unrestrained power without the need to follow the procedures and processes of implementation, so fundamental to the rule of law. It has been estimated that his ‘wise’ actions led to deprivation of the ‘Fundamental Right to Livelihood with Dignity’ of nearly half a million people. Chief Justices have come and gone, yet none of them has cared to monitor the effect of the implementation of their verdicts on Right to Live, which according to them is the Right to Live with Dignity, Right to Shelter etc.

It is not without reason that Shiv Shankar, the Law Minister in 1987, said at a meeting of the Bar Council in Hyderabad, “Mahadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic chord nowhere in the whole country except in the Supreme Court of India... and a whole lot of reactionaries have found their haven in the Supreme Court.” The Supreme Court, in an admirable display of wisdom, hailed that the statement did not amount to contempt of court in 1988. Yet, the Additional Solicitor General was threatened with contempt of court by the Chief Justice for merely pointing out that ‘the judiciary and the executives have separate power’. The Court warned him not to speak (Hindustan Times 6 January 2007). The Additional Solicitor General had to protest against gagging by the Lordship.

It is high time that we have a re-look into the archaic law of contempt of court in India, which for all practical purposes has been given up by many civilised democracies as an infringement to the Fundamental Right to free speech.
What India has recently witnessed may be compared by future historians with the tyrannical days of Mohammed bin Tughlaq and the Emergency imposed in 1975. Even the wisest of all men can err and there should be a way to restrain erring judges, however high and mighty they think of themselves.

The remedy to criminalisation of Parliament and the extraordinary high rate of corruption of bureaucracy is not through neglect of proper judicial processes and contempt for the common man’s right by the judiciary. Judicial reforms are urgently required and should be considered mandatory if India wants to reconvert herself from a Demonocracy to a Democracy. Those are not only the police stations where the common man is held in contempt, but also the law courts that deny him justice for years because the common ‘undertrial’ is poverty stricken and cannot furnish the bail amount. In the process, about three lakh undertrial prisoners languish in jails, most of them spending more time in jail than the maximum punishment that could be imposed on them even if they were to have been convicted for their alleged crimes. Policemen do not take note of lost children in Nithari when reported by the poor; many of our judges similarly do not take notice of these undertrial prisoners languishing in jails for years. Are they not equally insensitive as these policemen of the Noida police station or liable for the miseries suffered by the poorest of the poor? The Indian justice system has been kept functioning at a level, which enables the rich and the upper middle class to approach the courts to obtain some kind of exorbitantly costly justice, especially in urgent matters, if judges in the High Courts and the Supreme Court consider them urgent and take up the cases ‘out of turn’. The poor and the lower middle class are therefore sometimes compelled to approach ‘Kangaroo Courts’ run by various kinds of musclemen and slum and jungle lords, often with criminal records.

Yet, justice can be delivered without delay and need not be denied to the common man, if only our judiciary were committed to the common man and compelled by the Union Finance Minister (who always mentions in his Budget speech year after year, how his heart is on the right side of the poor) to demand proper budgetary allocations (the Union Budget for 2006-07 provides a mere 0.08% of the entire budget for the law and justice ministry). In our book, The Great Indian Dream (p 203), we calculated that the government needs to budget Rs 7,200 crores annually to liquidate all pending cases and to bring the judiciary at par with the developed countries. We have also shown in the same book how this money can be allocated. Yet, recent researches have pointed out that subordinate courts are able to dispose off as many as 88% cases filed before them in a year, despite the existence of about 22% vacancies in their sanctioned strength (Kiran Bedi, 9 December 2006, Hindustan Times). Thus, even if the vacancies are brought down by 50%, it will logically lead to 100% disposal of cases filed during a year (here we are not raising questions regarding the quality of justice, since it has been noted that our judges dispose off five times the cases as compared to judges of the developed countries).

Filling up 100% of all vacancies, therefore, helps us to reduce even the backlog of cases. This indicates that budgetary allocation for improving the justice delivery system may not need the amount mentioned above, unless we undertake to improve the quality of justice to the level of the developed countries. Therefore, Rs 7,200 crores as budgetary allocation can be seen as the maximum amount that we may need to overhaul the justice system, taking into account the quality of verdicts in the lower courts, making it almost superfluous to approach the upper courts. This can also be greatly helped if we, like the practice is in the US, rigorously follow and implement the system of Plea Bargaining. There, 90% of the criminal cases are settled outside the court through a process of Plea Bargaining, which also leads to high rate of conviction in the remaining 10% of the cases (the conviction rate is around 90% in the US for offences like murder, while in India it is barely 33%).

We can therefore ensure a humanised judicial system even in the remaining two years of the UPA government if our Prime Minister (obviously with support from the ‘inner voice’ of the Congress Party) desires to leave an indelible mark on history by abolishing injustice inflicted on the aam aadmi for centuries.

Our previous column on “Three wrongs don't Make a right. Why the left, the Tatas and Mamta are all wrong...” received tremendous feedback from the readers. Every month, India: Today & Tomorrow reaches around 125 lac urban house holds, with approximately 750 lac readership, perhaps the highest ever in the world! You can log on to www.iipm.edu/itt.html to read our previous articles. Your feedback is important. Send your feedback at: feedback@iipm.edu or to Prof. Arindam Chaudhuri, IIPM Tower, B-27, Qutab Institutional Area, New Delhi - 110 016. The views expressed above are solely of the author. IIPM does not necessarily share the same opinion.