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The Hindu on : The dignity of judges - I

Online edition of India's National Newspaper on
Wednesday, December 15, 1999

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The dignity of judges - I

By Gail Omvedt

THE MUSINGS of the Supreme Court in October over whether the author, Ms. Arundhati Roy, and the Narmada Bachao Andolan leader, Ms. Medha Patkar, should be held guilty of ``contempt of court'' raises crucial issues regarding the dignity of judges - and the overall functioning of the judicial system in India. Law is clearly a profession requiring expertise and knowledge, and dispensing justice is among the most terrifying of human responsibilities. This obviously means that judges deserve to be accorded dignity. The role of the judge as expert requires dignity, pomp, presence, and an ability to create a some amount of awe among those standing in the court.

Still, for the judge, as expert, dispensing justice conflicts with another legal tradition, that of democracy: a person should be judged not by aliens, but by those of his own nationality, class, sex, race etc. In the American legal system, which has sought to combine expertise with democracy, it has been the jury system that has embodied democracy. In this, a ``jury of one's peers'' decided upon the evidence whether the accused was guilty or not, while the expert, the knowledgeable judge, dispensed the law.

The balance between democracy and expertise is a delicate one. As young radicals of the 1960s in California, we believed that the atmosphere of courtrooms (like those of hospitals, universities, and so forth) fostered too much alienation between those who judged (or doctored, or taught) and those who were subjected to law (or medicine or education). Since then, the dignity of judges in the U.S. has apparently declined.

Today, anyone who has watched the O.J. Simpson trial, or English- language serials, or read John Grisham's novels, will realise that the jury has increased its powers significantly (for instance, it can decide on huge amounts of awards in trials against tobacco companies) and that there is very little of pomp and dignity of either judges or lawyers. In other words, democracy has been encroaching on the role of expertise. In fact, the notion of being ``judged by one's peers'' seems to be increasingly interpreted so that not only are juries often packed with minorities and women, but there are also increasing women and African-Americans to be found among the honourable judges. Both lawyers and judges are also now often dressed in ordinary street clothes; it is assumed that the lawyers and judges, including the African-Americans and women among them, can establish their dignity with their own presence and don't need artificial props such as wigs or gowns.

It is surprising, then, to find that in India judges still need to establish their dignity by continuing the rituals of British times. And even more surprising to find that, when the President, Mr. K.R. Narayanan, pointed out that the Supreme Court had not a single Dalit he was reportedly responded to by the Chief Justice claiming that no Dalit had the merit to reach that status - and that when I raised the issue of the caste compensation of the Supreme Court in an article, an apparently Brahmin lawyer from Hyderabad wrote to threaten me with ``contempt of court.''

``Contempt of court'' is a curious phrase. The words would seem to imply that to be accused of contempt of court I am treating the court as contemptible. In fact, if we define ``contemptible'' and show, with sociological evidence, in what sense the court is contemptible, then this itself could be judiciable. Or, if the Supreme Court judges are all Brahmins and if any person could produce evidence to show - as a statistical correlation and not a statement about individual motivation - that the social characteristics of human beings influence their decision, then it is hard to see how any court in the modern world could convict. To do so, they would have to negate the entire field of sociology.

In India the use of the notion of ``contempt of court'' (or contempt of parliament or whatever) seems to have expanded beyond all reasonable limits. In its recent intervention, the Supreme Court had questioned the activities of the activists of the Narmada Bachao Andolan for giving press conferences, interviews and providing material for newspaper reports that would constitute ``knowing comments on pending proceedings,'' considering these disobedient to interim injunctions issued by the court in 1997-98 against making comments on the merits of the pending proceedings. The court, or perhaps we should say Court, also expressed displeasure at the ``distorted writings'' of Ms. Arundhati Roy, arguing that she had ``decided to use her literary fame'' to misinform the public and project a ``totally incorrect'' picture of how the Supreme Court had dealt with rehabilitation. However, the court graciously declined to initiate contempt proceedings against the NBA, its leaders and Ms. Arundhati Roy. It simply concluded with being ``unhappy at the way the leaders of the NBA and Ms. Arundhati Roy have attempted to undermine the dignity of the Court.''

Now it is hard to understand how the court has any right to do this. One may agree that Ms. Arundhati Roy's writings are distorted, or feel that the NBA and its leaders get publicity all out of proportion to the support they may get from dam evictees. But how should this concern the Supreme Court? Ms. Medha Patkar and the NBA, with Ms. Arundhati Roy's new support, are, after all, carrying on a movement, whatever its size; they have every right to make speeches, try the best they can to get publicity, and if in the process anyone gets emotional and makes a statement about the court, Court, or its Judges, so what? It was so hard for me to understand how the Court could possibly infringe on the freedom of speech of citizens that I had to seek informal legal advice (since formal legal advice is practically unaffordable by anyone in these days of commercialisation). I was told that, yes, the Indian law differs from that of the U.S. in that the decisions of judges cannot be publicly criticised while there are pending proceedings; and aspersions cannot be cast on their motives. This apparently means maintaining the ``dignity of judges.''

If this is true, if the Indian law does prevent criticism of judicial decisions or public comments on pending cases (especially when cases are often pending for years and years), then the law itself is highly questionable. Besides being an infringement on the freedom of speech, declared a Fundamental Right in India, it is simply impossible to implement. In most countries, there is no such law preventing criticism of judges or any discussion of a case under consideration by the court. In the U.S., with its jury system, juries are ``sequestered'' while a major case is going on - they are kept in a closed room, with food brought to them from outside, forbidden contact with family and friends, for days and even months. (Any reading of John Grisham's novels such as The Runaway Jury, a brilliant tale of how tobacco companies were made to bite the dust by courageous lawyers and intelligent jurors, will make the situation clear). But nobody would dream of thinking that such a law could be applied to judges, who must be left free to read, think, ponder the issue, and who are presumed to be intelligent enough to assess all the arguments and counter-arguments on cases that come in the newspapers. If a person is to be left free, ie not ``sequestered,'' then it is impossible to prevent him (or her, which hardly happens in India) from having access to ``public'' discussion of a case. For, after all, where can we draw the line between ``public'' and ``private''? Discussions go on everywhere, people comment, talk to their friends; the line between that and a classroom situation or a public meeting is impossible to define, and in the days of email, there is no distinction between ``personal'' or ``private'' and ``public.'' A law trying to prevent this is not only unjust, it is ridiculous.

If Ms. Arundhati Roy's speeches or Ms. Medha Patkar's attempt to organise while a case is still going on in the court (and cases go on apparently indefinitely) constitutes ``contempt of court,'' then we should all be counted in this ``contempt'' and this infringement of ``the dignity of judges.''

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