Commentary/Saisuresh Sivaswamy

The law takes its own course

Amidst all the sense of jubilation and relief among the liberal sections of society over the Nagpur bench of the Bombay high court sentencing Shiv Sena pramukh Bal Thackeray to two weeks's simple imprisonment over the derogatory remarks he made against the judiciary, what is being missed out is the chance to examine whether the fourth pillar of democracy is indeed free from flaws.

However, what deters such an exercise are the stringent contempt laws in this country, under which one is guilty of contempt even if the intent to commit contempt is not there. On a simpler level, I could be held guilty of contempt of court merely for expressing the view as a concerned citizen that the courts need to clean up their act, and along with me the editor too would have to visit the innards of a jail for having published the same, be it in a letters of to the editor column tucked away out of sight in the back of the book.

Where one cold disagree with Thackeray need not be in the content of what he said, but in the language how he expressed the same. Alas, being a homespun politician, he sees no need for a little savoire faire, hence he finds himself in the predicament he is in today.

The courts, of course, need not concern themselves with the rules of Realpolitik, considering the awesome backlog of cases that faces them. However, for the political opposition in the state, joy over the correctness of the sentence is tinged with despair over its timing. For, with the state scheduled to hold elections to zilla parishads and municipalities, the issue could easily become fodder for the Sena.

That, in a nutshell, gives us the hurdles to having a more liberal contempt law, in place of the straitjacket one we have now that confers limitless powers on the judiciary. No one in his or her right mind would plead for a lessening the power, in other spheres, of the custodians of law; heaven knows that without this, the unheeding administration would not have been brought to heel.

What we need is more room for the judiciary to examine malfeasance on the part of our rulers who behave as through they are accountable to no one but the good lord above, certainly not to those who voted them to power. At the same time, we also need less touchy judges, who would not see contempt every time someone says boo.

The problem, however, is not so simple. For one, no one would volunteer to have one's powers whittled, especially something one has come to enjoy as a matter of right. And, neither the executive nor the legislature can do it either, considering that it is they who have been put over the mat by the courts and hence would clearly overstep their brief in curtailing the judiciary. But the issue of contempt is a genuine one, and the courts themselves need to examine it, without letting either pride or prejudice come in.

Of course, any discussion on the matter of contempt cannot be divorced from the issue of privileges that confer judicial powers on the legislature. Experience has shown that a decisive number of legislators could easily sentence an individual for his or her views, even if those views did not denigrate the legislature at large but was merely critical of some of them

The tragedy here is that when these laws were codified conferring great powers, the landscape was dotted with great men who would not use these powers to settle petty scores. And, our visionary fathers could not foresee a time when our lives would be governed by ordinary men, for whom the movement of shadows represented potent danger.

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