In a riveting scene in the 1967 Disney movie, The Jungle Book, a python named Kaa hypnotises Mowgli in a raspy, lilting voice:
I’m not like those so-called fair weather friends of yours
You can believe in me
Trust in me, just in me
Shut your eyes, and trust in me
You can sleep, safe and sound
Knowing I am around
Kaa’s complicated role as Mowgli’s antagonist aside, it is clear to even a wide-eyed six-year-old watching the animated classic that the python – contrary to his assertions in the song – is not to be trusted. There is (naturally) an abiding sense of distrust for an entity that tells you – repeatedly – to repose unquestioning faith in it. And yet, when the most powerful organ of our democratic state demands just that, it is in fact sanctified as law, and weaponised into what we know as criminal contempt of court proceedings.
Despite historical notoriety for its erratic invocation, the Supreme Court’s criminal contempt jurisprudence has remained remarkably consistent. The Court has repeatedly held that the law relating to criminal contempt of court is not a punitive measure to protect the court as a whole, or individual judges, from defamatory or slanderous remarks. It has held that criminal contempt jurisdiction is to be exercised to remedy injury to the public, who the court believes has traditionally reposed confidence in it to deliver justice, and to act with integrity and fairness.
There was deserved outrage and condemnation in the wake of Prashant Bhushan’s conviction for criminal contempt, as it was a striking instance both of how the law of criminal contempt is abused, and is antithetical to our fundamental right to freedom of speech and expression. However, it is important to remember that the outcome was far from exceptional: it was not just consistent with, but the inescapable consequence of, the criminal contempt jurisprudence developed by the Supreme Court that seeks to punish acts that erode public faith in the judiciary. Should this public confidence in the judiciary be undermined through acts of criminal contempt, the Supreme Court warned (in a 1995 judgment) that “…the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society”. The judgment in In Re Prashant Bhushan echoes this sentiment, and prophesises that such statements would have grave implications on the health of Indian democracy, “national honour” and the “comity of nations”
It is absurd that any jurisprudence in a 21st century democracy is anchored to such vague and dystopian visions of a world in which citizens distrust the judiciary. What’s worse is that for an institution that seems to place public trust at the forefront of its concerns, the Indian judiciary functions in a manner that can only (charitably) be described as opaque, unaccountable, inaccessible, and overwhelmingly unrepresentative.
By discussing two key structural issues that plague the Indian judiciary, this article seeks to highlight why the philosophical underpinning of the law of criminal contempt—that the public’s faith in the judicial system must be guarded—is problematic. First, it examines the judiciary’s failure to put in place even basic processes for comprehensive documentation and archiving of judicial proceedings. This is no innocuous omission, for as set out below, the absence of such records has played a key role in facilitating judicial impunity and blocking access to justice for the less privileged. Second, it deals with the insulation of judicial office in constitutional courts from any accountability. An institution that is built in this manner should not only be disentitled from commanding public faith or trust, but is deserving of unsparing scrutiny and critique.
A court of record
One of the unsavoury facets of the judicial system highlighted by the Prashant Bhushan contempt saga is the absence of comprehensive transcripts and records of court proceedings. This is ironic, as the power of the Supreme Court and High Courts to punish for contempt of court arises from their designation as “courts of record” under the Indian Constitution. Courts of record are those whose acts and proceedings are documented for perpetual memory and testimony. Their records are treated as authoritative accounts of the proceedings before such courts.
The mere status as a ‘court of record’ cannot lend veracity to the records of the court, as was evidenced by the proceedings in Prashant Bhushan’s case. Key oral submissions made by Bhushan’s counsel, senior advocate Dushyant Dave, that were clearly embarrassing and inconvenient for the court, found no place in any order or judgment arising from the proceeding. The widely reported submission by the attorney general (at Bhushan’s hearing on sentencing) met with a similar fate. The attorney general had argued that certain retired and sitting judges had also been critical of the Supreme Court, and also referred to a statement by five judges that the Supreme Court had failed to maintain democracy. These submissions were also omitted from the court’s orders and judgment. The only available account of these oral submissions is in reports by the media.
The Supreme Court, far from facilitating the media’s role in this regard, has in fact made its hostility towards it apparent. During the lockdown, the Supreme Court failed to provide proper access to online hearings for the media. Journalists have been confined to observing proceedings from media rooms on the premises of the Supreme Court, and have not been provided links to live hearings, despite repeated requests and representations. They have also come in for unwarranted and unsubstantiated criticism, such as Justice Arun Mishra’s remarks at a hearing on 25 August 2020 (also in respect of contempt proceedings against Prashant Bhushan). Justice Mishra expressed his displeasure at the purportedly ‘one-sided’ reporting by the legal news portals Bar & Bench and Live Law, without offering any specific instance of such reporting.
The Prashant Bhushan episode and the accounts of restricted access to proceedings for journalists during the lockdown are not exceptional occurrences in our legal system. Despite repeated affirmations through judicial pronouncements as to the importance of public access to court proceedings (including in the recent 2018 Supreme Court judgment in Swapnil Tripathi v. Supreme Court of India & Ors.), the Indian judicial system has demonstrated a marked reluctance to actually allow sunlight to disinfect its opaque corridors. Instead, our judiciary is content to rest on a system where the only record of proceedings are the orders passed by the courts, as dictated by the judges.
The absence of comprehensive court records has serious implications. At a more immediate level, there is the problem of orders of the court deliberately or unwittingly omitting, or inaccurately recording, oral submissions. Orders fail to capture much of what transpires in a courtroom. There is the more insidious issue of the knowledge of the absence of a comprehensive transcript/audio-recordings emboldening lawyers to make irresponsible, misleading or inaccurate submissions. The absence of audio-recording also enables inappropriate comments and remarks to be made with impunity by judges. Such acts of hostility, bias or discrimination from the Bench could be reined in if proceedings were recorded and preserved for posterity.
There is also the larger issue of the right of citizens of a country to know how the time of the courts is being spent. Judicial time, like a country’s tax revenues, mineral wealth or airwaves, is a public resource. Those entrusted with this resource are accountable for how it is used. The misuse of judicial time manifests itself in many ways, including lengthy, irrelevant digressions, practices such as the preferential listing of certain cases and indulgence granted to a certain profile of matters and lawyers. Certain matters are granted extended hearing time, while other, less “high-profile”, or politically inconvenient, cases, are sidelined or delayed. There is also the problem where cases that have been argued at length and reserved for judgment are then listed for re-arguments (in the absence of a proper record of the first round of arguments), thus costing litigants both time and money. These however are not merely frustrations of the profession that advocates or individual litigants must suffer, but in fact represent an irreparable loss of a valuable (and already scarce) public resource—judicial time.
What makes the judiciary’s failure in this regard egregious and inexcusable is that technology to enable comprehensive documentation of court proceedings (including audio-recording and live transcription) has been available for decades. The Indian judiciary’s reluctance to adopt proper systems of documentation is in contrast to the approach of the higher judiciary in several other jurisdictions, including Brazil, Romania, Malaysia, Germany, South Africa, New Zealand, Australia, the United States and the United Kingdom. For decades, the apex courts of these jurisdictions have recorded and archived their proceedings through comprehensive transcripts and audio-records. Some of these courts undertake video-recordings, and even provide live broadcasts of proceedings. The European Court of Human Rights, the International Criminal Court and the International Court of Justice also record and broadcast their proceedings.
Tied to the issue of proper documentation of court proceedings is the necessity for cases to be listed and heard in an egalitarian, transparent manner. For this, there needs to be an acknowledgment that the present system of listing and hearing matters in our courts is inherently flawed. Attempts at questioning the present system of listing are however imperiously shut down, like in the recent case of Reepak Kansal v. Secy General, Supreme Court of India. Here, a petition filed by an advocate of the Supreme Court, alleging arbitrariness in the system of listing of matters by the Registry of the Supreme Court, was dismissed with costs of Rs 100. Justice Arun Mishra, who authored the judgment, made a thinly veiled threat of contempt proceedings against the petitioner. Quoting from a 2019 judgment of the Supreme Court, he observed: “Soul searching is absolutely necessary and the blame game and maligning must stop forthwith. Confidence and reverence and positive thinking is the only way.” Justice Mishra also took the opportunity to remind the petitioner that he ought not to “…unnecessarily cast aspersions on the system”. The court’s approach is in consonance with its criminal contempt jurisprudence that is committed to preserving faith in the judiciary, even at the cost of silencing legitimate criticism. In the wake of the Reepak Kansal judgment, in a show of solidarity, and as a form of symbolic protest, several Supreme Court lawyers contributed 50 paise each towards the costs imposed on advocate Reepak Kansal. Heedless of the barking dogs, our judicial caravan moved on unperturbed.
A court most supreme
The Indian Supreme Court is widely regarded as the most powerful organ of the state and arguably, the most powerful court in the world. Appointments to the Indian higher judiciary are made by a collegium of judges – a body that was invented by the Supreme Court in 1993, in an attempt to wrest effective control over judicial appointments from the executive. This was prompted by alarm over executive interference in judicial appointments. While there may be sympathy for the circumstances that motivated such unconstitutional usurpation of power, it is important to remember that the process of appointment of judges to the higher judiciary has always been inscrutable. Records of deliberations in respect of the appointment or transfer of judges to High Courts and the Supreme Court have historically been withheld from the public, and there is no information as to what (if any) the objective yardsticks are that form the basis of these decisions.
Further, decisions relating to the appointment or transfer of judges are not amenable to judicial review, as the Supreme Court asserts that the integral role played by the judiciary in making judicial appointments itself cleanses the process of any sins of omission or commission.
There is no dearth of evidence that judges, by virtue of their assumption of constitutional office, are not automatically above suspicion. On 10 May 2019, the Supreme Court Collegium comprising chief justice of India Ranjan Gogoi, Bobde J. and Ramana J. recommended the appointment of Justice Arun Mishra’s brother, Vishal Mishra, as a judge of the Madhya Pradesh High Court. Acting with great alacrity, by a notification dated 22 May 2019, Vishal Mishra’s appointment was confirmed by the executive, and he assumed office as a judge of the Madhya Pradesh High Court. This was despite the fact that he did not meet the criteria for a minimum age of 45 years, as prescribed under the draft memorandum of procedure for judicial appointments. The Collegium’s resolution contains an oblique reference to a certain “justification” that the High Court Collegium gave for overlooking the “age factor” and recommending him. The justification for this departure from procedure has never been made available to the public. Interestingly, information in the public domain did make clear Vishal Mishra’s support for the ruling party—the BJP.
On the very same day that the Supreme Court Collegium had recommended Vishal Mishra’s appointment as a judge of the Madhya Pradesh High Court, it had also recommended the appointment of Justice A. A. Kureshi as the Chief Justice of that very High Court. Recall that Justice Kureshi had in 2010 remanded the current Home Minister, Amit Shah, to police custody in connection with the investigation into the extrajudicial murder of Sohrabuddin Sheikh. The executive, unlike in the case of Justice Vishal Mishra, did not confirm his appointment as recommended by the Collegium on 10 May 2019. Instead, it referred the recommendation back to the Chief Justice of India by two communications dated 23 August 2019 and 27 August 2019, along with “accompanying material”. The contents of this communication (and the mysterious material that accompanied it) have never been disclosed to the public. It prompted a reconsideration of the original recommendation, and resulted in the Collegium recommending by its resolution of 5 September 2019 that Justice Kureshi be transferred as Chief Justice of the Tripura High Court (a court with less than one-seventh the bench strength of the Madhya Pradesh High Court).
It may be tempting to view these accounts as instances of wrongful interference in judicial appointments by the executive. The reality however is that this has come to pass because the judiciary has itself fashioned the veil of secrecy around matters of judicial appointments. When the basis for decisions in respect of appointments and transfers is deliberately withheld from the public, the courts automatically create a system that can be and is abused by those in positions of power.
The laws relating to judicial misconduct at high courts and the Supreme Court also serve to insulate the higher judiciary. There is no independent authority to investigate instances of judicial misconduct. In 1997, our higher judiciary devised its own “in-house” procedure to examine complaints against judges of high courts and the Supreme Court. The preliminary remarks in the document setting out the in-house procedure note that “…the allegations against a Judge would be examined by his peers and not by an outside agency and thereby the independence of the judiciary would be maintained”. After all, who better to judge the fallibility of judges but judges themselves?
The in-house procedure also notes “…the awareness that there exists a machinery for examination of complaints against a Judge would preserve the faith of the people in the independence and impartiality of the judicial process”. If our higher judiciary is to be believed, the mere existence of a machinery to examine complaints against judges ought to engender faith in the judicial system. No matter that under this in-house procedure, there is no requirement to disclose the findings of any inquiry conducted under such procedure. No matter that the procedure does not enable a complainant to examine or deal with the response received from the judge under investigation. No matter the wide discretionary powers conferred upon the Chief Justice of India (and the high courts) as to how to deal with the complaints.
Even in the event that an inquiry results in a finding of wrongdoing, a judge of the Supreme Court (or any high court) may only be removed by impeachment proceedings in the parliament. The fact that this mechanism has not once been successfully deployed to secure the removal of a judge of a constitutional court speaks volumes of its potency as a measure to check judicial misconduct.
The preservation of our fragile democracy requires that we distrust the judicial system, that we move the courts from their pedestal of untouchable majesty and splendour, and subject them to relentless scrutiny and interrogation. It also requires that the judiciary rid itself of feudal vestiges like the law of criminal contempt, which can be unleashed on those who question its actions. The degree of concentration of power in the higher judiciary, and the fact that it is the least representative amongst the organs of state (be it on caste, gender or class lines) necessitates that it be approached with wariness and skepticism.
Faith in the judiciary cannot be engendered by stray progressive pronouncements, or by its own assertions of the vital role it plays in a democracy. It arises from the institution’s ability to open itself up to scrutiny as to its manner of functioning, and to make itself accountable to the people it serves.
It is time to disabuse the Indian judicial system of its delusions as to its sacred foundations. Such truth telling does not portend the end of our democracy, but in fact reaffirms it, for to question the legitimacy and functioning of a vital organ of our state and express our distrust for the manner in which it functions is a democratic right. J. M. Barrie in Peter Pan wrote: “All the world is made of faith, and trust, and pixie dust.” For the sake of our Constitution, democracy and its people, we can only hope that our judiciary realises that it must rest on firmer foundations than these.
Arti Raghavan is an advocate at the Bombay high court.