Mid Day

The recent case of Justice Sabharwal and the sentencing of four Mid Day journalists again brought to the fore the problem of the lack of accountability of the higher judiciary in the country. "We have today, a judiciary with enormous powers, but virtually no accountability" said senior Supreme Court advocate Prashant Bhushan, on behalf of Campaign for Judicial Accountability and Reforms (CJAR) committee which is patronized by Justice VR Krishna Iyer, Justice PB Sawant, Justice H Suresh, Shri Shanti Bhushan, Shri Prabhash Joshi, and Arundhati Roy among others.

With the failure of the impeachment system, no mechanism has been put in place for investigating and taking action against judicial misconduct. "The problem is compounded by the use of contempt power which is deterring even exposure of judicial misconduct" said Dr Sandeep Pandey, Magsaysay Awardee (2002) and National Convener of NAPM (National Alliance of People's Movements).

An Independent National Judicial Commission might be able to regulate the power of contempt of the Judiciary. CJAR is dedicated to build strong public opinion to force Parliament and the Government to bring the required amendments to the Constitution and the laws for an independent judicial commission.

The judiciary in the country today is not only the arbiter of disputes between citizens, between citizens and the State, between States and the Union, it also in purported exercise of powers to enforce fundamental rights, directs the governments to close down industries, commercial establishments, demolish jhuggis, remove hawkers and rickshaw pullers from the streets, prohibits strikes and bandhs etc. In short, it has come to be the most powerful institution of the State.

Every other institution of the State is accountable to the anti-corruption agencies, and to the judiciary which has the power of judicial review over every executive and legislative action. Moreover, the political executive is accountable to the legislature and the legislature is democratically accountable to the people-that at least is the theory of our constitutional scheme.

However, when it comes to the judiciary, we find that it is neither democratically accountable to the people, nor to any other institution. The only recourse against a judge committing judicial misconduct is impeachment, which has been found to be a totally impractical remedy. To initiate the impeachment process one needs the signatures of 100 Lok Sabha or 50 Rajya Sabha MPs. This one cannot secure unless two conditions are satisfied. First, one must have conclusive documentary evidence of very serious misconduct against a judge. And second, the evidence and the charges must have been publicized, such that it has assumed the proportions of a public scandal. Till that happens, there are few MPs who are willing to put their signatures on an impeachment motion. Most MPs or their parties have cases in court, and nobody wants to invite the wrath of the judiciary.

The media is unwilling to publicise the charges against judges (even when they have documentary evidence to back the charges) because of the fear of contempt of Court which constantly hangs as a sword over their necks.

Mid Day had carried a series of articles in May and June 2007 showing how Justice Sabharwal passed the orders of sealing commercial properties in residential areas in Delhi after his sons had got into partnerships with at least two of the leading shopping mall and commercial complex developers of Delhi. These orders stood to directly benefit his sons and their partners by pushing the sealed shops and offices to shopping malls and commercial complexes and thus driving up their prices.

Mid Day published much of the documentary evidence in support of this huge story exposing what appeared to be a scandalous conspiracy at the Apex of the judiciary.

Yet neither any other media organization, nor any judicial, executive nor legislative authority acted upon these news stories.

Thereafter, on 3 August 2007, CJAR released a detailed charge-sheet containing as many as 7 serious charges against Justice Sabharwal, each backed with documentary evidence. Tehelka and Karan Thapar carried major stories on it. The story however hit the headlines in the mainstream media only after the conviction of 4 Mid Day journalists by the Delhi High Court for contempt.

If someone has evidence of corruption by a judge, there is not much that can be done. It cannot be exposed because of the fear of contempt, in the absence of which, even impeachment is a non-starter. FIR cannot be registered against the judge under the prevention of Corruption Act, because of an embargo created by the Supreme Court in 1991 by means of a judgement where they held that no judge can be subjected to a criminal investigation without the prior written consent of the Chief Justice of India. In the 16 years since that judgement, not even a single FIR has been registered against a sitting judge. To top it all, the recent attempt by the judiciary to insulate themselves from the Right to Information Act, has made it further difficult.

The Mid Day journalists were convicted despite their offering to prove the truth of all their allegations. The High Court held that the truth of the allegations was irrelevant since they had brought the entire judiciary into disrepute.

All this underlines the need to do away with this jurisdiction of punishing for "scandalizing the court or lowering the authority of the court."