There Should Be No Criminal Contempt, If The Criticism is Well Founded It Is Fine, If It Is Not Forget About It: Justice Madan Lokur

Speaking at a webinar on Keys to Governance: Independence of Judiciary organised by the India international Centre and DS Borker Memorial foundation, the former Supreme Court judge was addressing whether the Contempt of Courts Act ought to be relaxed.

As regards the propriety of post retirement benefits, Justice Lokur said that it depends on each individual judge. He narrated how news channel yesterday were reporting the events in Washington DC- "One speaker talked about Republican judges and how President Trump had lost all cases even though most of them were heard by Republican judges. Can you imagine in India but some judge is aligned to a political party? As long as the judge has integrity, it does not matter what political alignment he has. This ties up with post retirement benefits also. If a judge has no integrity or little integrity, he will be swayed by political consideration"

"And this topic is not confined to the judges alone, but also extends to other senior bureaucrats, the Election Commissioner, the members of the Public Service Commission – a whole debate needs to take place", he stated.

Agreeing that the Indian Judiciary has had a "tumultuous" 2019 and 2020, he chose not to "dwell on the past": "We must look at the future..as to what can the Judiciary do in 2021 to regain the prestige, which has been lost in part, and most importantly to deliver justice to the people of India"

"The judiciary needs to be far more transparent than it is at the moment", he suggested. He narrated how a few years ago, there was an informal discussion on the appointment of a Public Relations Officer or a spokesman for the Supreme Court. "There are several stories, rumours, comments doing rounds and clarifications are needed by the media, by the lawyers and by the citizens of the country. Having a PRO would have greatly helped in making the Supreme Court accessible to the people", he commented.

Discussing the appointment of judges in India, Justice Lokur remarked that when a name has been recommended by the High Court collegium, everyone knows and that it is an "open secret". "So why not own up to it and say that we have considered this name and recommended it? In the US, there are hearings in the Senate where the judges are questioned. The UK Supreme Court invites applications from persons who wish to be appointed as judges. There is no harm in disclosing that such and such person is under consideration", he said.

"After the NJAC was held to be unconstitutional, suggestions from the public were called for. The Department of Justice was requested to look into them. Some 4000 suggestions came and were compiled and the lawyers had even placed them before the court during their arguments. They were all on the website of the Department of Justice and there was nothing hidden about it. That is how the Memorandum of Procedure was finalised. But it has not been officially signed!", continued the judge.

"I am not saying that the collegium system is perfect, but nothing else can come and take its place at the moment unless someone give a suggestion!", he stressed.

He was of the view that "a lot more can be done so far as technology is concerned", recommending the use of computers for case management.

"The time has come for live streaming, particularly in the important court proceedings. This is something we need to look at very seriously", he urged. "One of the sitting Supreme Court judges (Justice S. K. Kaul) has recently said that the system of virtual court hearings is not working well. It is a shame if the Supreme Court of India cannot provide technologically-good services to the people!", he exclaimed.

Former Editor-in-Chief of The Hindu, Mr N. Ram, in his turn, advanced how advocate Gautam Bhatia, in a "very robust criticism" of the performance of the Supreme Court in the last two years, asserted that one of the Chief Justices was in the process of becoming an "Executive Court" from being the "Rights Court". He cited the examples of the NRC in Assam, the procedural opacity in terms of sealed covers, the treatment of the Evidence Act in context of the Rafale case, and the unnecessary gratuitous and pompous judicial conduct, the treatment of fundamental rights like charity, particularly in the habeas corpus cases.

"The Supreme Court and many High Courts may be said to have become 'executive courts'. But we also have a good judges – there are those of the Allahabad High Court and the Karnataka High Court, who would uphold Fundamental Rights. Recently, we had the case of a young Hindu woman who had married a Muslim man out of her own will and the state had intervened, but the Allahabad Court supported her right", he continued.

He expressed that while it would be an exaggeration to say that the Supreme Court has far gone the process of becoming an 'executive court', giving up its commitment to the championship of Fundamental Rights, "there is a real case" on this point.

He canvassed the excessive focus on Chief Justices, to the extent that they are becoming "dictatorial and overweening" in their power to allocate cases- "It is no secret that four of the senior most judges had come out in a press conference on this very issue (in 2018). They had tried everything within the system and were pushed to this extreme on account of this mysterious, non-transparent way of allocation of cases against all conventional practises, to junior judges. One judge, after retiring, had even said that there is external influence on the posting and appointment of judges"

He urged that the appointment system ought to be better and the Executive be restricted in its influence in enforcing or blocking any appointment. He cited as an example senior advocate Gopal Subramanium, whose name was recommended for elevation to the Supreme Court and had to be withdrawn on account of extreme political pressure.

He called for robust, strong, uninhibited, and informed criticism of the functioning of the judiciary for the purpose of judicial accountability. "The major obstacle in this path is the Contempt of Courts Act and its Section 2(1)(c) on 'scandalising the court'. We had challenged this before the Supreme Court. Unless it is struck down, it being unlikely that the Parliament will repeal it, intolerant judges retain in their power the weapon which silences criticism and has a chilling effect", he said.

He indicated the recent instance of contempt proceedings against advocate Prashant Bhushan, calling the judgement in the case "shocking" and "fierce". "People should be able to call out the Judiciary when it makes grievous mistakes, acts arbitrarily, is corrupt or steps out of line or succumbs under external influence, like the four judges who had come out in 2018. Was that contempt of court? Was that 'scandalising?", he pressed.

As another way of instilling judicial accountability, he suggested an appropriate procedure for removing "a corrupt judge who defies the court itself"- "I am not to take any names...you can imprison a judge but cannot remove him from the post, except by way of the extreme method of impeachment. We need to bring back the movement of judicial accountability" 

Question-and-Answer Session

As regards the query if the Judiciary in India has been vested with too much trust and too much discretion, resulting in the belief that it can never go wrong, Justice Lokur asserted that every Judiciary in every country is given the utmost respect. "But it would be stretching it too far to say that it can never be wrong. It can be wrong and it has been wrong, and it has also reviewed itself", he opined.

Another question was about the alleged involvement of the PM in the 2019 Ayodhya judgement, subsequent to which the then-Chief Justice Ranjan Gogoi, who had presided over the bench in the said matter, was nominated to the Rajya Sabha by the President. "I have never heard of this before. I am hearing about this involvement of the PM here for the first time. The nomination to the Rajya Sabha is also kind of a post retirement benefit. A lot of discussion is needed, in the context of both the judges and of the other public officers. The nomination, of course, was not right. It should not have happened. But now that it has, there is no going back", he remarked.

As regards whether raising the retirement age of judges to 70 years would make post-retirement jobs scarce, Justice Lokur said that people these days continue to work till the age of 80. "If I can work after 65, why can I not work after 70? This depends entirely on each individual judge. These things need debate among the people, like we are doing today", he replied. "There was the instance of a former Chief Justice of India becoming the Governor of a state (P. Sathasivam). Another judge of a High Court became a Governor. There was one judge who wanted to resign and stand for elections (Justice Rajendra Sachar). So we have also had such problems in the past. There is a need to frame some kind of a Standard Operating Procedure or a law so that things don't go out of control", he added.

"If the tenure is increased by 15 years, it may add to the problem. We wait for some judges to retire- the ones who have not done well. Increasing the retirement age would add to the problem, particularly when we speak of the arbitrary power of the Master of the Roster", interjected Mr. Ram.

On whether the independence of the judiciary would result in the Judiciary going out of control and not acting within the domain of the Constitution, Justice Lokur opined that while the Judiciary has to be independent, accountability can be procured by ensuring enough checks-and-balances in the framework-"Impeachment was thought to be good enough by the Constitution-makers. Then there is the system of an in-house procedure in case of a complaint against a judge. I happened to be a member of one such in-house committee. We recommended that the judge had received the money, but nothing happened. He simply retired and, though he is now being prosecuted criminally, he was not even transferred and nothing happened even after we gave the Committee report to the CJI. That is why I said the Judiciary needs to introspect and acknowledge that things have gone wrong and try to correct them. There needs to be a mechanism in place to check any misuse or no-use", he said.

As regards the "atrocious" judgements in the Ayodhya matter, the UAPA related cases and the Central Vista decision, and whether the Judiciary is lacking to enforce the Constitution and allowing the government to act with impunity, Justice Lokur said that people are free to criticise judgements. "People may have different points of view. For example, in the Central Vista case, one judge dissented (Justice Sanjiv Khanna). There could be some judgements which are perverse, where no reasonable person would come to that conclusion based on the facts of the case. But I have not come across any such judgement where one could say that something is fishy. The Federal Court, on reading a judgement in the 1940s, had said that the judge, who happened to be of the Allahabad High Court, is corrupt and should be sacked, and he was sacked!", expressed Justice Lokur.

As regards the whether live streaming of court proceedings would result in judges being hesitant in taking a strong stand, Justice Lokur said that he did not think so.

On whether the Contempt of Courts Act should be relaxed, Mr. Ram said that the provision on 'scandalising the court' should be struck down, as should criminal defamation, on grounds of being unconstitutional, arbitrary and incurably vague. Justice Lokur agreed that there should be no criminal contempt. "Judges should not be hyper sensitive about everything. If the criticism is well-founded, then it is fine. Even if it not, forget about it! There are so many things in life!", he remarked.

On how to keep the government of the day at bay to safeguard judicial independence, Mr. Ram strongly advanced that a relentless right to criticism in a reasonable and informed way is the solution.

Justice Lokur chose to "pass" on this question. On insistence from the moderator, he replied, "There is no evidence that the government directly interferes in the administration of justice. Judges have to be strong enough to say 'this is my work, so don't interfere in it'. You have to be tough and have a spine, as they say"