citizens sovereignty

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Contempt of Citizen’s Sovereignty

It is well recognized that the center of a democratic setup is the individual Citizen who is a sovereign in her own right. She gives up part of the sovereignty to the State in return for a Rule of Law. The Instrumentalities of the State exist to serve the Citizens who are the Masters. The Masters have the right to scrutinize and question their Public servants about the actions that are taken on their behalf. The existence and legitimacy of the Public servants is derived from the service they provide to the Citizens. Some special privileges and immunity may be given to the Public servants only to ensure that they can function to serve this objective. Otherwise the key principle of democracy is equality before the law. “Be they ever so high, the law is above them.”

Let us now look at three sets of Public servants as an example and test the principle of the respect and protection they need, to be able to discharge their duties for the Citizens. Take the elected representatives, the Police and the Judges to test this principle. The elected representatives have the highest legitimacy because they subject themselves to an approval by the Citizens every five years. It can be argued that they need to be able to command respect from the Citizens, without which respect for the laws they frame will not be forthcoming. They frame policies, which have political and financial impact on the present as well as future generations. They have to face people directly in every conceivable place and time, and if special privileges or protection against criticism is not given to them, they will not be able to discharge their functions. Let us now picture a policeman who has to enforce the law. He again faces Citizens,- even enraged or inflamed mobs,- and must function in the midst of all the dirt and grime to enforce the law. If Citizens do not respect him,- or believe he is corrupt and a criminal himself,- can he discharge his law enforcement function to the Public? On the other hand a judge sits in a cloistered and protected environment and dispenses justice to supposedly uphold the law. He is in a very safe and secure environment and discharges his functions at his own languorous pace comfortably sitting in a chair.

And yet, the judges have given unto themselves the supernatural power to try Citizens for contempt if they speak or write critically about their conduct. This has been brought out very starkly in the way they have used the Contempt provisions against journalists recently. Allegations have been made against former Supreme Court Chief Justice Shri Sabharwal by a set of eminent Citizens who have demanded an enquiry. It is commonsense that if any impropriety has been committed the responsibility will lie with those making the allegations. By no perverse logic can the journalists who reported these be held guilty. However, the Delhi Court by this decision has presented us with an opportunity to question and rectify a grievous anomaly in our democratic functioning. We can certainly understand the need for the Court to have the powers to try for Contempt if its orders are not implemented. But the privilege of being able to terrorize Citizens and media into not examining or questioning their actions or decisions is an anachronism. Criticism strengthens all democratic institutions and the power of the Citizens to question their Servants is Supreme. If allegations and charges of impropriety or corruption render Public Servants ineffective then we must consider extending the warm obfuscating cloak of ‘Contempt powers’ to all of them. Surely the need for them to have it is higher? We have made allegation against MPs and MLAs, carried out sting operations against them, and nobody including the Courts have argued that this is the cause of our misgovernance. Charges have been leveled against the DGP of Maharashtra, Chief Ministers and Prime Ministers and nobody contends that these are responsible for misgovernance. If anything a greater need for transparency and accountability has been felt and the Right To Information Act is one of the recent manifestations of this. It is worth remembering that the Courts,- which made lofty pronouncements of the Right To Information being a fundamental right of Citizens,- have been laggards at implementing them. The Delhi High Court first asked for Rs.500 as application fee, compared to 10 rupees in most States and the Central Government and the Bombay High Court illegally refused to subject itself to this law for a full year!

A myth is being propagated that the judiciary is much better than the other instrumentalities of the State, by this weapon of contempt. This is untrue and most probably the same diseases which afflict the rest of our governance exist in the Courts. All voices are terrorized into silence by muzzling. Nobody knows the truth; and the peril is that the decline could be more than elsewhere because of this cloak of Contempt with which the judiciary protects itself. The recent cases of the Zee and the Midday journalists should awaken us into demanding that the Courts exercise some wisdom and maturity in using this law. Let us stop mouthing the cliché, “ We have faith in the Judiciary,” and give the clear statement that we shall question, since it is our fundamental right.

The Court has no authority to make Laxman Rekhas for its Masters-the Citizens of India. It is we who will draw the Citizen’s Rekhas which the Public servants shall not cross. When a Prime Minister of India tried to muzzle our Freedom of expression and press, we defeated her at the elections. For unwarranted or motivated allegations, the Citizens including the Prime Minister and judges have the protection of the laws on defamation. There is absolutely no justification for the judges to give themselves the power of the Lord to be above all criticism. I hope the Supreme Court will in the present cases, exercise its discretionary powers with wisdom, but it is necessary for us to remove the clauses relating to Criminal contempt of Court, and retain only the Civil Contempt provisions so that they may be used by the Courts to stop contempt of their orders.

shailesh gandhi: shaileshgan@gmail.com

RTI Activist