It was 1999 when novelist, and activist, at that time associated with the Narmada Bachao Andolan, Arundhati Roy was dragged to the Supreme Court for an essay she wrote ‘The Greater Common Good’ – a recollection of her standing on a hill overlooking a village that would be drowned soon with a dam coming up, all with best wishes of the Supreme Court. Looking at little children grazing their goats, Roy wrote satirically of the “tender concern” of the judges, enquiring whether Adivasi children will have “seesaws and slides and swings” in their resettlement colonies.
In 1999, this was enough for the Supreme Court to charge her with contempt – “During the hearings, the exasperated brother judges passed copies of Outlook and Frontline to each other pointing out the sentences they were unhappy about,” Roy writes in her recent book Mother Mary Comes To Me, “"She thinks we don’t understand English.’”
It is time that dictates the tides of how seriously the Supreme Court takes its contempt power. Last week, when CJI Surya Kant issued notice to the Secretary, School Education Department in the Ministry of Education, and the NCERT Director, seeking ‘show cause’ as to why they shouldn’t be charged with contempt, we worried that the Court was easing itself again to a power that it has slowly softened upon in the last decade – reverting into a dark age where critical legal commentary had limited space to grow. “They fired the gun and judiciary is bleeding,” the CJI had appealed emotively.
But beyond concerns of contempt, we chose to think more politically on the NCERT saga – was there some weight to the CJI’s concern that there was a motivation at play – what the Court claimed to be a “deep rooted, well-orchestrated conspiracy” (We couldn’t miss that it is the Solicitor General who really popularised the phrase).
This is not, at all, to say that the judiciary has not witnessed corruption. In 1976, a complaint alleged that K. Veeraswami, then Chief Justice of the Madras High Court, had amassed disproportionate assets through benami transactions. When Veeraswami appealed the Supreme Court to quash the proceedings in the Special Court against him, the Court dismissed his challenge but noted that under Section 154 of the Criminal Procedure Code no criminal case could be registered against a judge of the higher judiciary without prior consultation with the Chief Justice of India. Judges were not immune, the Court said, but the criminal process would not move in the ordinary way.
The impeachment proceedings against Justice V. Ramaswami soon demonstrated how removal under Articles 124(4) and 217 required an exacting parliamentary majority that could collapse for political reasons, even after confirming multiple charges. In 1995, the Court in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee recognised the need for an in-house mechanism to examine complaints internally. That procedure, later formalised by the judiciary, allowed corrective measures short of impeachment.
Last year, when burning piles of cash were discovered in the outhouse of Justice Yashwant Varma, the inquiry committee did find glaring mismatches in the story. But to speak of judicial corruption, without speaking about the frameworks, existing and those that could be evolved, to maintain judicial accountability, is misaligned. If Justice Varma’s account, and the long history of major cases of judicial corruption, impeachment and how they subsequently fell apart, tells us anything, it is that there is a glaring need for deeper transparency in the accountability frameworks. There have to be frameworks that take direct participation of the public, the media and the bar, and open, democratic interactions seriously.
Back on the NCERT issue, we believe there should not be too much feigning of innocence – the NCERT syllabus is conceived, enforced, and routinely modified, directly under the executive. In recent years, we have also seen that curriculum designing has also been a deeply political exercise, whether in terms of revisionism, or in influencing how knowledge and critical thinking are dispersed in schools. Given the tensions that we have seen among the executive and the judiciary in the past few years – from conflicts with the former law minister Kiren Rijiju and former vice president Jagdeep Dhankar (amidst more longstanding tensions on the NJAC and the Memorandum of Procedure) – the publication of a chapter on judicial corruption in a textbook taught to fourteen year olds, without appropriate context setting - and that means supplying formal data on corruption in the judiciary and discussing the mechanisms in place to account for judicial malpractices - has the net effect of distorting how the judicial institution is understood, and perceived. It has, in its hidden prints, many of the makings of a conscious attempt to malign the integrity of the judiciary, which, in extension, could contribute even more towards executive centralisation.
While there may be some weight to the CJI’s accusations, a heavy-handed approach in such situations, particularly a threat of contempt, shows the judiciary in a disingenuously fragile light, ultimately affecting public faith. The use of contempt is equally confounding because last year when a BJP MP accused the sitting chief justice of “civil war” in India, the bench simply ruled, “Courts are not as fragile as flowers to wither and wilt under such ludicrous statements.” But was the NCERT chapter a step too far? Or is contempt itself a fragile power - it could come after both Arundhati Roy and the NCERT? Was the CJI’s reaction justified, simply the Court pushing back against a larger, emerging problem? Will there be more ‘conspiracies’ coming its way?
For now it certainly seems that the wisest response to these tensions of ‘public faith’ is for the Court to truly evolve stronger accountability frameworks that are deeply transparent and answerable, an argument recently advanced in The Leaflet by Mohammad Wasim, who makes the case for a Judicial Council as a structural, not political, necessity.