Contempt Of Court: Why Power Of Citizens To Question Public Servants Is Supreme

It is well recognised that the centre of a democratic set-up is the individual citizen, 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 criticise, scrutinise and question their public servants over 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 a democracy is equality before law. "Be they ever so high, the law is above them."

Let us now look at three sets of public servants – the elected representatives, the police, and the judges - as an example and test the principle of the respect and protection they need to be able to discharge their duties towards the citizens.

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 the laws they frame will not be respected. They frame policies, which have political and financial impact on the present as well as future generations. They must 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 must enforce the law. He again faces citizens, even enraged or inflamed mobs, and must function amid 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 pace comfortably.

And yet, judges have been given the overriding powers 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 civil contempt if its orders are not implemented. But the privilege of being able to subjugate citizens and media into not examining or questioning their actions or decisions is an anachronism.

Criticism and dissent strengthen all democratic institutions, and the power of the citizens to question public 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 allegations against MPs, ministers and even Prime Ministers, carried out sting operations against them, and nobody including the courts, has argued that this is the cause of our misgovernance.

If anything, a greater need for transparency and accountability has been felt and the Right To Information (RTI) Act is one of the recent manifestations of this. It is worth remembering that the courts, which made lofty pronouncements about RTI being a fundamental right of citizens, have not been role models at implementing them.

A myth is being propagated that the judiciary is much better than the other instrumentalities of the state, by the instrument of criminal contempt. This is untrue and most probably the same diseases which afflict the rest of our governance exist in the courts too. All voices are scared 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 is protected. Let us stop mouthing the cliché, "We have faith in the judiciary," and say that we shall question because it is our fundamental right.

In matters seeking transparency, there should be no Laxman Rekha for citizens. When a former Prime Minister of India tried to muzzle our freedom of expression and press, we defeated her at the elections. For unwarranted or motivated allegations, all public servants have the protection offered by many laws. There is absolutely no justification for judges to give themselves the power of the Lord to be above all criticism.

About the author: Shailesh Gandhi (shaileshgan@gmail.com) is Right to Information activist and Former Central Information Commissioner.

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