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Judiciary and the Role of the Fourth Estate

Written by: Bishakha Chakraborty - Advocate, Patna High Court
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Should judiciary be left alone to freely execute its functions as enjoined by the Constitution and statutes emanating from it and to deal with malfunctioning on its own or the press should be given a free rein to criticize every action of state organs.

The stance taken by Delhi High court against the Mid day journalists for allegations against ex-chief justice Y.K.Sabharwal had taken many by surprise ruffling the feathers of big brains of the country and small brained social observers alike. The media played its role well in accordance with the spirit of giving the right information at the right time. But coupled with the contempt proceedings initiated by the HC it has raised many questions in the intellectual circles as to what is of greater importance - the free judiciary or a free press. Should judiciary be left alone to freely execute its functions as enjoined by the Constitution and statutes emanating from it and to deal with malfunctioning on its own or the press should be given a free rein to criticize every action of state organs.

Lord Denning once said - 'supervision of judges encroach upon the independence of judiciary, judicial behaviour should invite no scrutiny or criticism or discussion or debate as it would affect the administration of justice and deter the judges from expressing an independent and fearless opinion.'

The reason given by Lord Denning is prudent but it might not be wise in the present socio-legal-political scenario to rule out the scope of any judicial scrutiny, discussion or debate or criticism.

In the present context the fear of interference with the judiciary can be set aside, for although the actions of CJI has been scrutinised and discussed it aims at holding judicial organ accountable and there is no apparent threat to independence of judiciary. The concept of independence of judiciary runs rather too deep to be affected by holding the judges and judicial officers accountable.

In simplest terms independence of judiciary means that it should be free from the interference of state organs like the legislature and the executive which has the capability of influencing the impartial execution of justice. An independent judiciary ensures a fair play of fair justice.

The Constitution of India envisioned such possibilities and so inserted three pronged provisions to ensure that judicial organ can function in furtherance of justice without external interference.

Firstly complex and complicated procedure for removal of the judges has been prescribed. It is said about impeachment proceedings that it is easier to amend the Constitution than to impeach a judge.

Secondly Art.50 lays down that the state shall take steps to separate the judiciary from the executive in the public service of the state.
Thirdly a complete mechanism to control the subordinate courts has been provided under Articles-233-236 wherein the HC has been empowered to supervise their functioning. All matters related to promotion, demotion, suspension of sub judges, posting etc. are also controlled by the HC.

Apart from this Art.121 prohibits any discussion in Parliament about the conduct of the judges of HC or SC in discharge of their duties except in case of impeachment proceedings against them. Thus independence of judiciary has been sufficiently guarded.

But to rule out fair criticism to ensure independence of judiciary would amount to the assertion of the policy of secrecy which marked the colonial era in India. During the British rule, the right to question the actions of government was denied and laws were introduced to eliminate such rights completely. With a population desperately trying to free itself from the webs of colonial hangover, unmindful restrictions on freedom to express opinions and to question the actions can be intrusive and unwelcome. In a free democracy and a young democracy as that of India, no organ should shield itself from the eyes of the masses nor it should claim an immunity from fair criticism.

The spirit of Rule of Law which is one of the essential part of the concept of basic structure of Constitution as laid in Maneka Gandhi case (1978) requires that every judge should submit before law. It proclaims --- "be you ever so high the law is above you."

And history is testimony to the fact that neither judges nor the judiciary as a whole has been spared fair or unfair criticism.

In 1990 for the first time the impeachment proceedings were initiated against Justice Ramaswamy, Chief Justice of Punjab and Haryana High Court for misconduct and financial irregularities. Likewise, the image of Judiciary was tarnished by the statement made by the then law minister in 1988 in a meeting of Bar council of Hyderabad. Commenting on Apex court he said that SC was composed of persons of elite class and anti-social elements like bride burners, FERA violators and whole herd of reactionaries have found their heaven in the SC.

Similarly ex-Chief Justice of India E.Venkatramaih said in an interview -"The Judiciary in India has deteriorated in standards because such judges are appointed as are willing to be influenced by lavish parties and whisky bottles."

It definitely had greater power to shake the faith of people in administration of justice than the allegation leveled by the Mid-day journalists on three counts-
Firstly , because the statement was made by former Chief Justice of India.

Secondly the statement was not only sharper but had more credibility because it was made by an insider.

Thirdly it was not an allegation leveled against a particular judicial officer but it lay bare the very system of working of the Apex body.

But the Bombay HC was not alarmed by such scandalisation and ruled out any contempt of court to have been caused by such statement. And such reaction is desirable because stifling fair criticism does more harm to the respect of a body than a scandalous publication. Even under English law, which have been borrowed freely to develop our legal system public opinion, criticism are left to the conscience of the people. Holding people guilty for contempt has become obsolete.

An informed press is therefore should be welcome rather than being hammered down by court rulings. The informed press has a long way to go in nurturing healthy inquisitive spirit amongst the citizenry. If press were to give only tailored information democracy will become merely a mask on the face of dictatorial governments. In Romesh Thappar's case Patanjali Shastri ,J. Observed "freedom of speech and press lay at the foundation of all democratic organisation for without political discussion, no political education, so essential for the proper functioning of the government is possible." The press is watchdog and a free press must be embraced by each and all.

In a democracy which upholds the principles of participation of people, it is a sensible question as to where the freedom of organ to function freely should be limited and freedom of people to know should start. Can highlighting corruption in any organ of the state amount to overstepping into the jurisdiction of such organ. On principle at least people are supposed to have the power to criticize and inquire into the actions of every organ of the state, for each organ has inter alia, the foremost and fundamental duty to serve the people, judiciary cannot be an exception to this.

Corruption has become rampant and judiciary cannot be immune to these developments. Corruption cannot be confined to a straight jacketed definition. Just as making money by undesirable means amount to corruption, influence of nearest relatives and friends in deliverance of justice is equally a corruption. And it is this latter form of corruption that was exposed by the Mid-day journalists against the ex-CJI. Besides, the judges are also human, human frailty can sometimes afflict even the purest of them.

The plea that criticizing judiciary would lower the respect of judiciary in the eyes of people cannot hold ground because if the judges and magistrates are delivering justice - free and fair, it shall continue to command respect irrespective of such exposes. If there are fears that the media has the power to mislead the masses, it is not completely unjustified. And this is also true that scanty knowledge and adulterated information can be a deadly combination.

But such possibilities of exploitation have to be accepted as inseverable part of free press. Unfettered press should be allowed to do its functions properly as it has been doing for last fifty years in our country. As Madison said in First Amendment of Federal Constitution of the USA.

"It is better to leave some noxious branches to their luxuriant growth than by pruning them away, to injure the vigour of those yielding proper fruits"
In other words, just because there are possibilities of failure we cannot abandon the pursuits of truth and sooner it is realized, the better and quicker shall we reap its benefits.

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