Contempt of Citizen's Sovereignty

By Sailesh Gandhi, June 27, 2008

Sometime back the Chief Justice of India has made two statements in
Public speeches, which have a seminal bearing on the functioning of
our democracy. He has expressed reservations on the applicability of
the Right to Information to the judiciary. Later,- in Kerala,- he has
justified the existence of the Contempt powers of the Court, saying
that," No executive officer will obey court orders if they are not
afraid of the provisions of contempt of court."

There are two types of Contempt of Court-criminal contempt and civil
contempt. If somebody does not obey the orders of the court, he is
held guilty of committing 'civil contempt'. Nobody has questioned the
need for continuing the provisions of 'civil contempt' to enforce the
orders of the courts. On the other hand, the provisions of 'criminal
contempt of court' are attracted if the court feels its decisions, or
conduct, are questioned; as they say if the judge or court are
scandalized. Citizens have been questioning the need and desirability
of continuing with the 'criminal contempt' provisions.

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. Let us 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 a direct 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 uphold the law. He is in a very safe and secure
environment and discharges his functions at his own convenient pace
comfortably sitting in a chair.

And yet, the judges have been given the supernatural power to try
Citizens for contempt if they speak or write critically about their
conduct. 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. We make allegations against MPs
and MLAs, carry out sting operations against them, and nobody
including the Courts have argued that this is the cause of our
misgovernance. The Courts infact have ruled that Citizens have a right
to know about the personal assets and even details of criminal charges
from those who seek our vote. Can the executive and the judiciary then
be exempt from this? It is unfortunate that the Courts,- which made
lofty pronouncements of the Right To Information being a fundamental
right of Citizens,- have been extremely reluctant to subject
themselves to the provisions of this law.

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. Let us stop mouthing the

" 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

Shailesh Gandhi

Satyamevajayate: Contempt of Citizen's Sovereignty