“Their conduct is so reprehensible that it would be a travesty of justice if the Courts were to allow gross contempt of Court to go unpunished without adequate sentence.” With this Justices C. K. Prasad and (Ms.) Usha Shukla of Madhya Pradesh High Court sentenced five people to six months’ imprisonment for condemning the acquittal by the same Court of the accused in Shankar Guha Niyogi Murder Trial. The five include well known social activist Advocate Rajendra K. Sail (Organizing Secretary, National PUCL), the Managing Editor, the Associate Editor and two journalists of Hitvada, an English Daily published from Nagpur.

In Delhi, the Supreme court is hearing charges against Medha Patkar of Narmada Bachao Andolan (NBA), writer Arundhati Roy and Advocate of NBA, Mr. Prashant Bhushan, for contempt. Earlier, the same Court had labeled as ‘Verappans’ and ‘hooligans’ the common people of Delhi who came on to the streets to protest the all Delhi forcible closure of tiny industries due to the Court’s activism on Pollution. This venomous attack on the protests was translated into a veritable police seize of the city to prevent any democratic protest against the closures and loss of livelihood.

In fact, countrywide, over the past ten years, there is a clear change in the role the Courts of India are playing in the socio-political life of the country. These years also mark the period of NEP and WTO, when on the one hand, pro-imperialist policies are being actively imposed with the consensus of the ruling class parties. On the other, the people are stirring into struggle against the effects of these policies. Third, an active cultural change is being propagated in consonance with the ideology of ‘globalization and privatization’. Gone are even the slogans of ‘socialism’, ‘govt.’s responsibility’ and ‘welfare measures’ and with it the value of individual’s duty to society, which marked the years when world over ruling classes contrived to keep socialism at bay. These are the years when the whole world is a market, and only the moneyed of all countries will matter.

With this transition can be seen a change in the role of the Courts. From being that wing of state power which ‘acts from the wings’ so to speak – as a support of the other organs, – it has stepped centre stage. The essential reason is the inability of the executive to push through the ‘new scheme of things’ in face of rising reaction. This general truth is reflected in the overtures or ‘high profile cases’ across various fields which caricature and highlight what has become the rule.

No longer is the Supreme Court restricted to defending the occasional Anderson, as MNCs become the order of the day and active defense of their dictates and interests becomes a daily necessity. The Supreme Court has its hands in ensuring MNCization of Telcom Sector, in pushing through the Enron Deal and now Balco – to name a few. It even takes on the role of the executive to bypass laws, subvert and throttle public dissent. No longer are High Courts restricted to occasional grants of stay orders against gate struggles. Now they issue bans against strikes and bandhs, and the Supreme Court upholds the same. The Constitutional Right of the people to organize, to struggle to defend their interests, to freedom of speech under Article 19 – all these have been, by Court ordain, relegated before the private right to mint profit. Constitutional Directive Principles of State Policy are bowing their head before the Market. The Courts – which even take suo motto cognizance of the colour of the buses in the Capital – are content to let it to be so. The strain on the system is such that what it was earlier able to conceal albeit with occasional revelations, have now been forced out into full play – the Courts are defenders of the status quo.

Instead of starting from the more obvious political acts of the Courts the issue can be taken up from the angle of social issues. These show that today that today the Courts increasingly do not bother to camouflage their defense of upper class values and vested interests. They have become naked defenders of the brash, new market culture. The Sanjay Nanda BMW case in Delhi had the 16 year old grandson of the Admiral Nanda family (another member, an arms dealer, is mentioned on the Tehelka tapes) drinking and driving, mowing down six people on the streets at night. The case was tracked down by bloodstained tracks. The Court itself permitted the family of the accused to setup a trust to disburse money to victims’ families, that too before the recording of evidences, rather than ordering the accused to pay interim compensation or some other punitive judgement which would amount to Court relief. Under the open power of money, the ‘car’ became a ‘truck’ in the mouth of witnesses, and now has become a ‘red Contessa’ in the prosecution’s log-book! No doubt other evidences will go the same way. Similar is the killing at point blank range of a minor model Jessica Lal in a celebrity tavern, where all rules were broken and where not less than three very senior Delhi Police Officers were present. Political cover up of the moneyed society living by the mores of imperialist culture has made one of its own cogs the victim, as shoddy investigation and money kill the case. To date no witness is left to testify to the point blank shooting, which killed the girl because she refused to serve a drink. But here the courts stick sedately to the facts put before them, do no ‘activism’, take no ‘suo motto’ cognizance.

Women remain an arena where the pro-system attitude of the Courts is easily demonstrable. From the dark hour of the Mathura Rape case, where four policemen were absolved of custodial rape of a young adivasi girl “because she was accustomed to sexual intercourse”, today is the time of Priyadarshini Mattoo. A young student of Law at the prestigious Delhi University, being harassed by the son of an ACP, having approached the courts, having been provided with security guards against the unrelenting harasser – she was found assaulted and murdered, but the case against the accused has come to naught. The judge remarked against the loose prosecution case. But the judiciary, which, as mentioned earlier, takes cognizance nowadays of whatever it chooses, did not move to uphold the dead girl’s right to justice. Priyadarshini, Jessica Lal on the one hand, Sanjay Nanda on the other, they along with hundreds of their parallels across the country, are examples of what role the courts will play in the culture of globalization.

Such also is the situation with cases of sexual harassment at workplace. With the ‘market culture’ of globalization era putting commercialization of women high on the agenda and the influx of imperialist culture, which views women of Asian countries in most derogatory forms, it is an issue of importance. The much quoted Vishakha judgement of the Supreme Court, called for watchdog standing committees at workplace as a mechanism to establish guilt and form the basis for administrative action. It was supposedly aimed at protecting the women from the rigors of following up criminal procedures in court. In reality, a spate of cases have established that the judgement only aids in subverting even the right to justice against a superior through criminal prosecution, while committees universally standup for the accused. As for the general recommendations, they are not implemented even in the premises of the Supreme Court itself! Yet the Court is ‘above’ taking cognizance of mundane things like representations before it on the issue, struggles before its eyes or even suicides due to this harassment (as in the Hyderabad High Court).

Contempts – Move Against Movements

Where the Courts are moving in to take over the role of the executive, they actually seek to force through contentious policy decisions under the halo of ‘judgements’. Thus the right of accountability to the people for these executive decisions is the right that is being denied by hiding behind the contempt clause. The whole country, aghast at the violation of the secular fabric, the heritage and court orders, watched Kalyan Singh face one night’s punishment for ‘contempt’. He had violated an assurance given to the Court to protect the Babri Masjid. But Rajendra Sail and four journalists face six months’ imprisonment for expressing regret at the acquittal of the guilty in the Niyogi Murder case. It is known countrywide that Niyogi (like Datta Samant) was the target of vested interests. The CBI had charge-sheeted three industrialists belonging to the Simplex Group of Industries, four of their musclemen and hired assassin Paltan Mallah for his murder. In June 1997, the trial Court of Durg of Shri T.K. Jha sentenced Mallah to capital punishment and five others with life (including two of the industrialists). However, MP High Court acquitted all accused on 26th June 1998 in a widely condemned decision. Four days later at a public meeting organized by the Chattisgarh Mukti Morcha (CMM), Sail spoke expressing regret at the decision. Copies of the judgement were also burnt at the meeting by CMM members and general public.

On 4th July 1998, the Hitavada carried a story based on a ‘private conversation’, called, “Sail Terms High Court Decision on Niyogi Murder Case as Rubbish”. A contempt case was filed by the MP Bar Association on this basis!

Equally flimsy is the basis of the contempt case in the Supreme Court against the Advocate and activists of the NBA. The Supreme Court, prefacing its verdict on raising the height of the Sardar Sarovar Dam with an eulogy of big dams, allowed the height to be raised. The NBA filed a review petition in the Supreme Court and also a protest demonstration was held outside the Supreme Court’s premises against the order, addressed by leaders of several organizations. That evening, an advocate, Prashar, filed an FIR accusing Advocate Prashant Bhushan of pulling his hair, NBA activists of issuing death threats to him, and the gathering of being drunken! One can disagree with the NBA’s viewpoint on either the S.S.P. or on big dams, but these allegations are overtly unbelievable. Incidentally, Prashar is not associated with this case, and his own FIR states that senior police officers were present while the ‘incident’ occurred. While the police has not bothered to proceed with this obviously shoddy and baseless FIR, the Supreme Court has made it the basis of a contempt petition. (It may be noted that the opinion of the NBA on the earlier order is anyway clear from its filing of a review petition.) When all three filed separate replies before the Court, they pointed out that the actual ground for the contempt case seems to be their public criticism of the Court’s decision, especially its advocacy of big dams. They have also defended their right to so criticize the decision, while upbraiding the flimsy basis of the case. On this the Court commented that the replies were themselves enough basis for contempt. It will be interesting to see if the Court tackles the argument raised by the replies, i.e., that when the Courts resort to political activism to cover up for an increasingly infructuous executive in order to defend vested interests, can they continue to refuse to be answerable?

In fact that is the question. Movements all over the country are slowing waking up to. Big working class demonstrations in Delhi almost five years back asked these very questions during the attack on the industries of Delhi by the Supreme Court which forced closures bypassing the industrial laws. How is it appropriate for the Judiciary – which is not answerable to public opinion – to decide whether big dams are appropriate or small dams? Or whether draining money on CNG buses is to be the priority for public expenditure in Delhi or education and civic amenities? Whether jhuggies or excessive private vehicles are sources of pollution? These are issues of policy. In a bourgeois democracy, they are for govts. to decide, for people to debate, and if necessary to force their rulers to follow certain policies. In the case of court mandates, such debatable issues as ‘public good’ suddenly take the shape of undebatable truths. Who is answerable for the results? The results are apparent in the moneyed culprits who get away; the city whose livelihood is being snatched, where life and productive activity come to standstill by court decrees; where people’s homes are washed away without adequate rehabilitation; where today Enron can threaten to withdraw after bleeding Maharashtra; and so on. When Court decrees begin to ‘decide’ policy and ideology issues – like privatization – it only means that the system is so unstable that it is forced to dump the last façade. In the case of Balco, is the Supreme Court justified in counting the number of industries violating the law against private companies owing tribal land rather than upholding the law as it stands? Can the people not ask if the Supreme Court is justified in thrusting an unevaluated fuel like CNG on the Capital City? Why does the Court not take suo motto note of custodial deaths in the Capital? Why is the take over of executive functioning partial? And whose interests are thus being upheld?

No discussion on the role of the Court can be complete without referring to the mowing down of the Babri Masjid or the Hawala Scam. In both the cases, the Highest Court of the land has dry-cleaned those guilty in the public eye. The last contribution by the Lucknow Bench of Allahabad High Court is blatant. The Court had earlier rejected on technical grounds, the process by which a special court was set up to try the guilty in the Babri Masjid demolition. It also stated that the Govt. could refile a petition for the same if it wants. Known public figures, apprehending that the BJP lead UP Govt. would not do so, filed a petition seeking direction for refiling of such petition to the State Govt. The Court has thrown out their petition, saying that they have no “locus standee”. Democratic individuals have no “standee” if they seek to defend the secular fabric by ensuring punishment of communal goons. But H. D. Shourie has a “standee” to clean up the Yamuna, even if it means uprooting a city and its people and facilitating vested interests!

The truth is that as the strain on the system is growing, as the Courts come forward in its naked policy defense, so also will grow the disillusionment with the judicial system. This underhand attack on the growing movements against globalization policies of the ruling classes of India will undoubtedly be met by people’s struggles, brushing aside Court judgements in the same way as they combat the repressive arm of the State.