“When voices are being muzzle off and laws are ill- manifested. The democracy peters out
and constitution gets demean.”
In the words of George Orwell, “The further a society drifts from the truth the more it will hate those that speak it”. It presents the complete picturesque of the affairs of present governance and other attached organs of the country who carry the policies of political, social, justice system of the country.
By Aabid Mushtaq
Judiciary is a guardian and protector of the basic fundamental rights of the people. Judiciary plays a pivotal role in being a vanguard of any violations of rights. The institution of judiciary in Indian state is of great importance and is an independent one; it should not substandard its levels for simplest opposing opinions but upheld and review for its good and proper working. Judiciary being the highest abode of justice should face fierce disagreements be it against the institution or the office bearers, because at the end matters decided, issues prosecuted and resolved _ justice delivered by it has a good representation of people, which gets shape of accountability and equitability through it.
Before clutching, the recent event of supreme courts contempt case, concern must be revealing towards the process of justice delaying by the judiciary in India that gives free space for crime mongers to make havoc in the societies. Over 3.7 million, or around 10% of the 37.7 million cases before high courts, district and taluka courts across India, have remained pending for over a decade, according to National Judicial Data Grid (NJDG), which monitors the performance of courts nationally. They include 2.8 million cases in district and taluka courts and 920,000 before high courts. Over 660,000 cases have remained pending for over 20 years and 131,000 for more than three decades. Supreme Court called it “chronic pendency of criminal appeals” a challenge to the judicial system.
From Kashmir to whole states of India, there are mammoth number of human rights violations that took place day in and day out and the judiciary never bothers to squeeze and lower down the crime rates and come to the speedy trials of the cases. An average of 80 murders, 289 kidnappings and 91 rapes reported every single day across the country in 2018, National Crime Records Bureau (NCRB). Apart from that, the Kashmir lonely is witness to suffocating and devastating situations. Wherein, human rights violations are common thing and which go unheard unfairly as half of a million jobs lost due to ‘Digital Siege’ and whopping economy loss of about 18 thousand corers. JKCCS has revealed that Kashmir saw 229 killings in 107 incidents of violence during first six months of this year, besides an uptick in the destruction of residential properties during gunfights between security forces and militants. The negligence shown towards such a gigantic crimes and human rights violations and indulging into and getting bother about positive criticism is showing the underrating and clutching of judicial system of India by political regimes of times.
Coming to the Supreme Courts contempt case, Wherein prashant bhushan_ a leading lawyer of Supreme Court held guilty on remarking or figuring out at the CJI of SC, Sharad Arvind Bobde. A tweet, he has passed on the CJI of SC was in concurrence of a legitimate expectations (an individual’s reasonable relations with the authority or institution of which he is a part or have some nexus with it), that was clear and positive one. The tweet was well advance that tried to question the deliberate acts of the CJI of SC. whatever the words prashant used to express his regret was all truth and factual that sanctify and uphold the majesty of court and its highness rather mortifying its image . In 2006, government brought in an amendment of Section 2(c) of the Contempt of Courts Act, 1971, which now provides “truth” as defense provided it is bona fide and in public interest.
According to the Contempt of Courts Act, 1971, contempt of court can be either civil contempt or criminal contempt. Civil contempt means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. On the other hand, criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which. (i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
(ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or,
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. In 2006, government brought in an amendment, which now provides “truth” as defense provided it is bona fide and in public interest. As such ingredients have not matched or doesn’t attract what prashant Bhushan’s tweet intended or expressed so.
Furthermore, anything that curtails or impairs the freedom of limits of the judicial proceedings must of necessity result in hampering of the administration of law and interfering with the due course of justice. This necessarily constitutes contempt of court.
The expression “scandalizing the court” has not been defined. However, In Shiv Shankar (1988), the Supreme Court held that a criticism of the court that does not impair and hamper the administration of justice can’t be punished as contempt.
From interconnecting and merging CJI of SC with the current political regime, BJP, by the Prashant Bhushan changes the whole scenario of the behavior of judges. The judges while deciding the remarks of Prashant tend to act as an immature democratic which paved the way for making it a committed system rather than an independent one. From riding a Harley Davidson, motorcycle of a Bjp man to make a tweet to fall within the ambit of contempt of court is a clear picture of interconnecting BJP and their ill conceived and mala fide manifestation on Supreme Court. As such grudges have been shown by when On January 11, 2018, the four then senior-most judges of the Supreme Court had held a press conference to say that the “credibility of the highest judiciary is at stake”. They asserted that democracy would not survive, as an independent judiciary is the hallmark of successful democracy. The Supreme Court had tolerated such a strong indictment of itself but were not held accountable for passing such comments. A different application of same law is a clear credence that the case is being hit out at something else_ on a political member of Bjp, who’s actually the motorcycle, was? The usurpation of judiciary by the political party is the real denigration of institution and that should be treated as an open attack on it. The doctrine of separation of powers states that there should be no interference of any organ to each other’s premises but when such whimsical intrusion happens for their ill-conceived agendas to be accomplished, mean that the affairs of a country is on stake.
The Bench cited Baradakanta Mishra (1974) in which the court had held that scandalizing of the court is a species of contempt, and a common form is vilification of the judge. The question the court has to ask is whether the vilification is of the judge as a judge, or as an individual. If the latter, the judge is left to his private remedies, and the court has no power to commit for contempt. The Bench held that fair criticism of judges, if made in good faith in public interest, is not contempt. How to ascertain the good faith is the million-dollar question. The Bench said that for ascertaining good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field, and the intended purpose. However, the purpose of keeping the standards of judiciary at higher levels by terming criticism as contempt is against the tenets of the democracy and natural justice. The ambiguity in declaring any view on the slow process of judiciary as vilification of a judge and makes whole of that as denigration of the court is actually the muzzling off voice and vitiation of the freedom of speech and expressions , a fundamental right. As, in the case of Maneka Gandhi V. Union of India, AIR 1978 SC 597: (1981) SCC 248., Bhagwati J, has emphasized on the significance of the freedom of speech and expression in these words:
Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic setup. If democracy means government of the people by the people, it s obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential.
The magnitude of freedom of speech and expression is much valued where there is democracy, as is being said it is the bulwark of democratic government. The freedom is essential for the proper functioning of the democratic government. If voices are being stifled and citizens are being punished for expressing their opinions, being apologetic will be what Prashant Bhushan says “The contempt of one’s conscience”
Supreme Court of India is an epitome of Indian judiciary. There should be proper, just and equitable acceptance of any matter or opinion which surface against it. Being an independent one among the trio organs of system (legislative, executive and judiciary) it has to work more vigilantly, steadfastly and focuses on solving disputes impartially and adequately. Judiciary must adhere to the basic principles of constitution and uphold the fundamental rights of its citizens; an open and broader space should be created in order to make democracy stronger and valid.
Author is a student of law , at department of law in University of Kashmir, can be reached at [email protected]