The other side of justice -Pakistan Press Foundation (PPF)

Paksitan Press Foundtion

The other side of justice

UNTIL recently, the Indian judiciary was at war with parliament on who was supreme. The confrontation is far from over. Meanwhile, the judiciary has now thrown down the gauntlet to the media, another pillar on which the edifice of democracy rests.

Four journalists, including a cartoonist, have been sentenced to four months each for “lowering the dignity” of the Supreme Court in the eyes of the common man.

The charge against the journalists is that they had committed contempt of court by reporting how the sons of the former Chief Justice of India V.K. Sabharwal had ‘benefited’ from the orders he passed on sealing commercial establishments in New Delhi and how the sons had ‘operated’ from the official residence of the Chief Justice.

The judgment has set two precedents which may be difficult to follow. One, the proceedings were initiated for the contempt committed against a retired judge. The court said that the report tended to ‘erode the confidence’ of the general public in the institution itself.

I do not want to go into the merits of the case – the sealing of commercial establishments and the functioning from the official residence of the Chief Justice. But what I want to point out is that it is the first time that there have been contempt proceedings for writing against a judge who had retired. True, he was the chief justice of India, but judges after retirement ceased to enjoy any hierarchical status.

I presume that from now on every retired judge will be entitled to immunity. It is a tough proposition because there are hundreds of judges of high courts and the Supreme Court living all over the country. Anything said or written about them anywhere, allegedly casting aspersions, can land the person concerned in jail if brought to the notice of the court as happened in the case of the journalists.

The second precedent is that the truth is no more the defence. Not long ago, the contempt law was amended to allow the person held for contempt to prove that what he had written or said was factually correct. All the four journalists – and the paper carrying the report – have said that they stood by what they wrote.

Apparently, the court did not take this into account because it sentenced them to imprisonment. I fail to understand why the truth has not been considered as the defence, despite the amended contempt law?

The judiciary should appreciate the media’s dilemma. Should it tell when it discovers something wrong? This is a difficult decision to make because while doing so, it runs the risk of annoying somebody somewhere. In the case of the government, the tendency to hide and to feel horrified once the truth is uncovered is greater than in any individual.

This is reportedly so because, to use official jargon, the repercussions are wider. What are they? Who assesses them? How real are they? These questions are never answered.

The judiciary, which protects the freedom of speech guaranteed by the constitution, cannot take a posture which amounts to muzzling the press.

If the four journalists had gone wrong, they should be punished. If they are correct, the action taken against them is not justified. That they reported against the retired chief justice does not change the situation.

In democracy, where faith stirs the people’s response, the truth cannot and should not be curbed.

In any case, Justice Sabharwal’s role cannot be left unchecked. Two former chief justices of India have already demanded a probe. They have gone to the extent of saying that Sabharwal’s entire tenure of 15 months should be looked into to restore ‘the faith of the common man in the judiciary’.

They are not hapless journalists. They are two former chief justices of India. The problem that India faces is that there is no law to initiate an inquiry into the conduct of judges. But this is no concern of the common man.

Parliament or the government has to find an answer. There has to be accountability. The constitution provides for only impeachment, a course which is not easy to traverse.

I do not want an institution like the judiciary to lose respect in the eyes of the public. Bar associations and such other organisations in the country must take up the matter and restore the dignity of the court, as the lawyers in Pakistan have done by getting the wrongly dismissed Chief Justice reinstated.

While occupying the office, Chief Justice Sabharwal said that the Supreme Court is supreme. True, but it is not infallible. The judiciary too is accountable. It cannot and should not cross the Lakshman rekha, the limits. Justice Sabharwal should himself volunteer an inquiry into the allegations made. The Supreme Court can itself appoint a committee to do so and if it does not want any outsider, let the committee be composed of judges. But the matter cannot rest at where it is now.

The court, no doubt, is a court of law. But it is also a court of justice.

It means that the court is primarily concerned with the meaning of the law but it is also concerned with the fate of individuals who encounter the law. What is the fault of the four journalists except that they dared to uncover certain actions of the former chief justice?

Look at the other side of the coin; a retired chief justice of the Allahabad high court has become a target of contempt proceedings. S.S. Sodhi quit the judiciary 12 years ago. A petition has been filed against him for his book, The Other Side of Justice, which tells how he followed the then Chief Justice Venkatachellaiah’s instructions to ‘manage the most difficult court’ that had gone off the rails.

The then chief justice later sent Fali Nariman, a lawyer, to find out firsthand why courts struck work virtually throughout UP. Nariman testified that Sodhi was a firm and dignified judge.

Even a cursory reading of the book gives the impression that Sodhi is not a person who would tolerate any nonsense. His book is bold and thought-provoking – it has to be read for this to be felt.

The transparency of the author comes out clearly. He has attributed motives to some of the judges who while on the bench ‘tried to use the judicial process to settle scores’ with the then high court registrar. Some judges have characterised the remarks as ‘prejudicial and partisan’.

This is a natural reaction to Sodhi’s frank speaking. But where is the contempt? He told the truth and that is his defence. I wish the Delhi high court had torn a page from his book before sentencing the journalists to imprisonment.
The writer is a senior columnist based in New Delhi.
Source: Dawn
Date:9/28/2007