The Contempt Of Courts Law Unleashes Terror, Suppresses Freedom Of Expression
And Shields Corrupt And Inefficient Judges
By Dr. P.S Sahni
08 June, 2016
On 24 April, 2016, the Chief Justice of India lamented about the backlog of cases in the courts to be at a staggering figure of over 3 crores (30 million). His misty eyes captured in the print media said it all. The image of an emotional Chief Justice got embedded in the psyche of sensitive citizens.
The Indian constitution embodies upon every citizen the duty to develop a spirit of enquiry and reform. Moreover as members of PIL Watch Group – a non-funded, non-party organization – we are mandated to keep a check on the accountability and transparency of the judiciary. Outlined below are two cases of complaints against two sitting judges of the Delhi High Court and the response of the establishment to these complaints.
Case no. 1
On 5 January, 2014 PIL Watch Group had sent a complaint against a sitting judge of the Delhi High Court to the then Chief Justice of India; Chief Justice, Delhi High Court; President of India; and Union Minister of Law and Justice. The name of the judge is being withheld so that the debate is on the content of the complaint without inviting contempt charges. The pertinent points raised in the complaint were:
• Justice A has indulged in conduct which on the face of it is unethical and unbecoming of a sitting judge. Whether it is illegal or not requiring impeachment is a matter which can be decided only after a detailed enquiry is conducted into the matter.
• Justice A’s earlier residential-cum office address is well known among the lawyers and his earlier clients – as he was elevated from the bar. (The property is still owned by Justice A). Recently on a visit to the area PIL Watch Group was shocked to see that a law firm is running from this very address. The building adorns the name plates of Justice A; of his father, another well known lawyer of his time along with the name plate of a law firm. It was shocking to say the least and we wondered since when have sitting high court judges been allowed to practice law also simultaneously.
• Further research on Delhi High Court website showed that the law firm started filing cases in Delhi High Court only since 2013. Apparently the law firm moved to its present location in 2011. While the internal details of the working and functioning of the firm, its past dealings and understanding with Justice A are not known to us, the following questions beg an answer:
1. Is a law firm running from a sitting judge’s property not utilizing the goodwill of the judge?
2. Does not the fact that the judge’s name plate is still on the building further gives the impression to the prospective litigant that there is an understanding between the judge and law firm?
3. How does one compute the financial gains received by the law firm just by being in that building and using the judge’s name plate even if there is no other understanding?
4. If the building is rented to the law firm why is the name plate of Justice A still there? Isn’t there an ulterior motive?
5. Has Justice A heard any case as a judge filed by this law firm / or its associates? Only a detailed enquiry into all the cases filed by the law firm and cases related to any of its clients filed through other advocates would be able to establish the truth of the matter.
6. If the area in which the property falls is residential use zone than is the property not being misused by Justice A?
7. Is this not directly or indirectly even more unethical than what Judge Soumitra Sen had done?
PIL Watch Group urged for a high level enquiry to be conducted urgently into the matter and appropriate action taken.
Needless to say that till date we have neither received an acknowledgement nor a reply from the authorities even after two and a half years! It is not known whether an enquiry was initiated and what action if any has been initiated against the concerned judge. Doubts also arise as to whether the complaint reached the W.P.B.!
In the aforementioned complaint detailed as case no. 1 we had not made the matter public through the print or visual media. In any case 99.99 % of the journalists are terrified of writing on such complaints as the sword of contempt law hangs over their heads. However we at PIL Watch Group made a field study of Justice A’s property on 6 March, 2014 and found that judge’s nameplate had been removed from the said house. Also the sign board of the law firm had been replaced with the signboard of an individual lawyer. Whether this is the result of the action taken on our complaint or destruction of evidence is yet to be determined. However, only the members of PIL Watch Group are aware of the developments. We have not received any communication from the authorities so far which means the 135 crore people in India would never get to know about our complaint as also what surreptitiously had been done by the judge concerned. The contempt law effectively shields the judges – both honest as well as dishonest ones – from the consequences of any wrong doing. It is said that sunlight is the best sanitizer. Why then should the shenanigans of judges be kept out of public domain simply by the threat of the contempt law? This is at the cost of suppressing the right of freedom of expression of the citizens.
Journalists in India function under the threat of contempt proceedings and hence the misconduct/misdoings of judges escape public scrutiny. Unlike judges in western countries, the Indian judges appoint themselves and also stay insulated from public gaze. The law of contempt in India functions like a de facto MISA in continuous operation without any formal announcement as far as the journalists and other public spirited citizens are concerned.
Clandestine procedure for handling complaints against judges
On 31 March, 2014 an RTI activist filed an application with the Delhi High Court asking interalia the following questions:
1. What is the in house procedure for handling complaints relating to judicial impropriety against a sitting judge of the Delhi High Court?
2. What is the procedure for handling complaints relating to judicial impropriety against a retired judge of the Delhi High Court committed during his/her tenure as a sitting judge?
3. What is the procedure for handling complaints relating to judicial impropriety against judges of Delhi Higher Judicial Service and Delhi Judicial Service?
For the next two years the Delhi High Court did not furnish the replies on the ground of this or that technicality, which anyway was found to be of no consequence by the Chief Information Commissioner (CIC). It was only in May 2016 on the orders of the CIC that the Delhi High Court sent the following reply:
1. In House procedure for handling complaints is available on the website of the Supreme Court of India.
2. No such information is available on record.
3. Complaints against Officers of Delhi Higher Judicial Services and Delhi Judicial Services may be addressed to the Hon’ble Chief Justice of Delhi High Court.
Thus for two long years citizens were even deprived of this basic information; even as of date the website of the Delhi High Court does not contain this information. A ten-paged document on the Supreme Court website alone gives this simple but useful information. Even a net-savvy citizen would be hard put to reach this ten-paged document as the title preceding the information is “Report of the Committee on In-House Procedure”.
It is apparent even to a novice that there is a conscious effort by the authorities to keep the information a secret. So much for the transparency of the institution of Indian judiciary! It is just as well to add that in the Vishakha judgement (1997) dealing with the sexual harassment at workplace the court had prescribed guidelines and norms for protection of women from sexual harassment at workplace. It took the Supreme Court of India another 16 years before a system was put in place to deal with sexual harassment cases in the Supreme Court and this too needed the public spiritedness of two women lawyers to coax the court into action! Around that time the complaints of sexual harassment against two retired Supreme Court judges surfaced in the media.
Case no. 2
On 30 March, 2016 a complainant sent a communication to the Chief Justice of India elaborating on the case disposal rate of a sitting judge of the Delhi High Court. The highlights of the complaint include:
• The judge sits in court for hardly one hour a day and that too is spent on giving public lecture to the lawyers and litigants as to how administrative work keeps the judge busy.
• The judge’s disposal rate is the lowest.
• All matters in the judge’s court are simply adjourned. In the month of January 2016 the bench presided over by the judge disposed off only nine matters. Two were dismissed as withdrawn. Two matters were disposed off by a common judgement and three others by a judgement each and two more by orders. The four judgements are of ten, four, eleven and thirty-three pages. Two matters disposed of by orders are in two and three pages respectively. In the whole month only sixty-three pages were dictated.
• Performance in the month of February 2016 is only seven disposals five by judgements and two by orders, one of which pronounced in court on 18.02.2016 did not get uploaded on the website till 30.03.2016. The five judgements and one order authored in February 2016 totals only forty-eight pages.
The complainant had used the data available on the official Delhi High Court website. Ironically the complainant had only urged the Chief Justice of India to ensure that the concerned judge sits in court for the full duration of five hours i.e. from 10.30 a.m. to 1.15 p.m. and thereafter from 2.15 p.m. to 4.30 p.m.
The communication was quoted in a news item published in The Times of India dated 17 May, 2016 under the byline of Mr. Abhinav Garg – a journalist with an impeccable record of integrity, honesty and professionalism. (The name of the judge was mentioned in the news report, though we are withholding it in this article). The complainant was ostensibly forced to make the matter public as no action was taken on the complaint dated 30.03.2016 by the authorities. The publication of the disposal rate of cases of one judge of the Delhi High Court (a micro study in effect) let slip the dogs of war. The concerned journalist – moved by the image of weeping CJI over pendency of cases – had contempt proceedings initiated against him and was made to tender an unconditional apology. Ironically before filing the story the journalist had contacted the concerned judge who declined to comment. The journalist had even verified from the High Court website that the numbers cited by the complainant are accurate. Till date no lawyer in the whole country has disputed the substance of the complaint pertaining to disposal rate etc. A handful of senior advocates harped upon getting an unconditional apology from the newspaper rather than reply to the substance of the complaint. Evidently the data provided by the complainant is indisputable. Even so the Delhi High Court Bar Association passed a resolution on 18.05.2016 condemning the publication of the said article!
From the two cases detailed above certain conclusions emerge:
• If a complaint is sent to the authorities about a certain judge and the authorities do not act within a reasonable period of time (say six weeks) the complainant is inclined to make the issue public as in Case 2.
• Case 1 sends a message that when a complaint is made about a judge to the authorities, the chances are that there would be no acknowledgement or communication sent to the complainant even at the end of two and a half years.
So if the complainant goes to the media after waiting for a reasonable period of time the publication carrying the complaint would face contempt proceedings as in Case 2. The casualty in these situations is the freedom of expression. The most pertinent question is being swept under the carpet in Case 2 viz why did the authorities not take any action on the complaint for one and a half months? The normal practice adopted in a democracy is to send a complaint and wait for a reasonable period before making it public; the point of decision to go public is that the complaint is not being looked into.
Case 2 above shows that just by raising an issue of how many hours a judge spends in just one court in India or by making public the disposal rate of cases creates a storm in a teacup. We at PIL Watch Group are conducting a study into the number of hours judges are functioning in their courts. To begin with we chose the Tis Hazari District Courts, Delhi (said to be the largest court in Asia). On 25.05.2016 we conducted a survey by physically entering the court rooms in all the floors where the courts function and seeing for ourselves whether the judge is sitting in court or not. The visit was conducted between 11.40 a.m. to 2.35 p.m. (minus the lunch break from 1.30 p.m. to 2 p.m.). We chose the peak time when maximum number of judges are expected to be holding court. In about 30% of the courts visited the judges were not sitting in the court room. Would the Chief Justice of India please take note of this? Could we expect the judges in the District Courts to be holding court six hours a day minus half an hour for lunch? We feel that the case disposal rate would improve considerably if even this basic step is implemented. Why can’t an exercise similar to the one conducted by us be undertaken by court-appointed commissioners along with members of civil society all over the country? The debate on over 3 crore (30 million) pending cases should not lose track of this vital reform which has to come from within the judiciary.
Finally we urge the Chief Justice of India to expunge the contempt proceedings against Mr. Abhinav Garg from the record of the Delhi High Court.
[Dr. P.S. Sahni is the Secretary of PIL Watch Group and can be contacted at: firstname.lastname@example.org]