People's Democracy(Weekly Organ of the Communist Party of India (Marxist)
November 18, 2007
Probe Charges Against Justice Sabharwal
CPI(M) Seeks President's Intervention
The following is the text of the letter written by CPI(M) Polit Bureau member and leader in Rajya Sabha, Sitaram Yechury to Madam Rashtrapathi Pratibha Patil on November 2, 2007 seeking her intervention in probing the charges against Justice Sabharwal.
I AM constrained to write to seek your intervention on an important matter concerning the credibility of the judiciary in India. At the outset, it needs to be reiterated, that all of us hold our judiciary in the highest of esteem. Over the years since independence, it has earned for itself the reputation of being the most credible of the three arms of our parliamentary democracy. This is something that needs to be strengthened and any allegation or acquisition against it must be dispelled with urgency in order to consolidate modern India further.
In this context, the refusal by the Supreme Court to order a judicial enquiry into allegations of misconduct against former Chief Justice of India, Y K Sabharwal, is, indeed, disappointing and undermines the credibility of judicial accountability.
The campaign for judicial accountability and judicial reforms has for some months been raising allegations against Justice Sabharwal. These were rebutted by Sabharwal after his retirement in the print media. Hence, it was clear that the truth behind these allegations could have been established through either an enquiry or through a judicial process like a defamation suit. This, however, has not been done.
Strangely, the Delhi High Court took upon itself the responsibility to defend the Supreme Court and sentenced four media persons who raised these allegations to four month’s imprisonment. The court ruled: “We need not go into the truth or otherwise of the allegations against the former Chief Justice of India as the same in any case cannot be a valid defence to justify the attack on the Supreme Court as such.”
There are two serious problems here. First, the Indian Constitution (Article 215) empowers a High Court to deal with contempt of itself. The Delhi High Court, thus, appears to have transgressed its jurisdiction since under Article 129 of the Constitution, the apex court alone has the power to deal with contempt against itself.
Secondly, the order appears to negate an amendment brought to the Contempt of Court’s Act in 2006, following a long vigorous campaign by well-meaning lawyers and sections of the media, allowing truth to be used as a defence in contempt cases.
The apex court will surely recollect the following from a judgement delivered by a bench of the apex court headed by Justice R V Raveendran: “It should be remembered that exercise of such power results in eroding the confidence of the public rather than creating trust and faith in the judiciary.”
Disapproving the tendency among judges to treat even technical violations or unintended acts as contempt, it had said: “It is possible it is done to uphold the majesty of courts, and to command respect. But judges, like everyone else, have to earn respect. They cannot demand respect by demonstration of `power’ (of contempt)”. The bench had quoted US Supreme Court Chief Justice John Marshall, who had said two centuries ago that “the power of judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man”.
It is this trust and faith that the judiciary needs to further strengthen in India today. Invoking the provision of contempt of court to silence the critiques of possible judicial misconduct would appear particularly indefensible in this context.
In the background of the apex court’s decision, I wish to draw your attention to the opinion expressed, on record, by Justice V R Krishna Aiyar (a former judge of the Supreme Court for seven long years) that the President of India is competent to order an enquiry in this matter. He says: “An inquiry should be conducted under the Public Inquiries Commission Act. In my view, the President should proceed in the matter in consultation with the CJI and also with Justice Sabharwal himself, who would have to come clean. It has to be a high-level inquiry, as this is a serious matter involving the entire higher judiciary alongwith Sabharwal”.
May I sincerely request you to have the matter examined and intervene in the interests of India and its democratic future.