Contempt of Citizen's Sovereignty

Contempt of Citizen’s Sovereignty
Sometime back the Chief Justice of India has made two statements in Public speeches, which have a seminal bearing on the functioning of our democracy. He said that judges are above the Right to Information law. Later,- in Kerala,- he justified the existence of the Contempt powers of the Court, saying that,” No executive officer will obey court orders if they are not afraid of the provisions of contempt of court.” The first statement seeks to put judges beyond the RTI law and the second misses the major point why Citizens have been highlighting the misuse of contempt powers.
We must understand that there are two types of Contempt of Court-criminal contempt and civil contempt. If somebody does not obey the orders of the court, he is held guilty of committing ‘civil contempt’. Nobody has questioned the need for continuing the provisions of ‘civil contempt’ to enforce the orders of the courts. On the other hand, the provisions of ‘criminal contempt of court’ are attracted if the court feels its decisions, or conduct, are questioned; as they say if the judge or court are scandalized. Citizens have been questioning the need and desirability of continuing with the ‘criminal contempt’ provisions.

It is well recognized that the center of a democratic setup is the individual Citizen who is a sovereign in her own right. She gives up part of the sovereignty to the State in return for a Rule of Law. The Instrumentalities of the State exist to serve the Citizens who are the Masters. The Masters have the right to scrutinize and question their Public servants,-including the judges,- about the actions that are taken on their behalf. The existence and legitimacy of the Public servants is derived from the service they provide to the Citizens. Some special privileges and immunity may be given to the Public servants only to ensure that they can function to serve this objective. Otherwise the key principle of democracy is equality before the law. As Justice Mathew had said, “Be they ever so high, the law is above them.”
Let us now look at three sets of Public servants and test the principle of the respect and protection they need, to be able to discharge their duties for the Citizens. Let us take the elected representatives, the Police and the Judges to test this principle. The elected representatives have the highest legitimacy because they subject themselves to a direct approval by the Citizens every five years. It can be argued that they need to be able to command respect from the Citizens, without which respect for the laws they frame will not be forthcoming. They frame policies, which have political and financial impact on the present as well as future generations. They have to face people directly in every conceivable place and time, and if special privileges or protection against criticism is not given to them, they will not be able to discharge their functions. Let us now picture a policeman who has to enforce the law. He again faces Citizens,- even enraged or inflamed mobs,- and must function in the midst of all the dirt and grime to enforce the law. If Citizens do not respect him,- or believe he is corrupt and a criminal himself,- can he discharge his law enforcement function to the Public? On the other hand a judge sits in a cloistered and protected environment and dispenses justice to uphold the law. He is in a very safe and secure environment and discharges his functions at his own convenient pace comfortably sitting in a chair.
The Police and elected representatives face our criticism and the judges themselves have ordained greater transparency and accountability for them. They cannot claim supernatural power to try Citizens for contempt for speaking or writing critically about their conduct. We understand the need for the Court to have the powers to try for Contempt if its orders are not implemented. But the privilege of being able to terrorize Citizens and media into not examining or questioning their actions or decisions is an anachronism. Criticism strengthens all democratic institutions and the power of the Citizens to question their Servants is Supreme. If allegations and charges of impropriety or corruption render Public Servants ineffective then we must consider extending the warm obfuscating cloak of ‘Contempt powers’ to all of them. We make allegations against MPs and MLAs, carry out sting operations against them, and nobody including the Courts have argued that this is the cause of our misgovernance. The Courts infact have ruled that Citizens have a right to know even the personal assets and details of criminal charges from those who seek our vote. Can the executive and the judiciary then be exempt from this? It is unfortunate that the Courts,- which made lofty pronouncements of the Right To Information being a fundamental right of Citizens,- have been extremely reluctant to subject themselves to the provisions of this law.
A myth is being propagated that the judiciary is much better than the other instrumentalities of the State. This is untrue and most probably the same diseases which afflict the rest of our governance exist in the Courts. All voices are terrorized into silence by muzzling. Nobody knows the truth; and the peril is that the decline could be more than elsewhere because of this cloak of Contempt with which the judiciary protects itself. Let us stop mouthing the cliché, “We have faith in the Judiciary,” and give the clear statement that we shall question, since it is our fundamental right.
The Court has no authority to make Laxman Rekhas for its Masters-the Citizens of India. It is we who will draw the Citizen’s Rekhas which the Public servants shall not cross. When a Prime Minister of India tried to muzzle our Freedom of expression and press, we defeated her at the elections. For unwarranted or motivated allegations, the Citizens including the Prime Minister and judges have the protection of the laws on defamation. There is absolutely no justification for the judges to give themselves the power of the Lord to be above all criticism and trnsparency. The Criminal contempt of Court must be scrapped.
“A discriminating irreverence is the creator and protector of human liberty”. –MARK TWAIN