Fifth Estate forces reforms in judiciary, not the media

One complaint from Tamilnadu Advocates against assets of Justice Dinakaran kicked off a significant controversy stalling his elevation. One RTI appeal for information about assets of judges filed before the Central Information Commission plunged Supreme Court into litigation before Supreme Court.  It is civil society that brought reforms agenda to center stage revolving around assets of, access to judges of apex judiciary. Is the Fifth Society (consisting of empowered citizens, vibrant associations and public spirited bodies) going to overtake Fourth Estate, the media? 

The very fact that the CPIO of Supreme Court is fighting through a petition in Supreme Court against the Central Information Commissioner, presents a peculiar complexity. One state body (SC) is fighting another state body (CIC) before its own body (Supreme Court). An average Indian cannot understand why Supreme Court is fighting before its own body and wonders to know that all this is happening to deny that average man the 'information'[i].  The apex court wanted the Right to Information Act amended to exclude the Supreme Court[ii], as it felt that its supreme independence was under challenge from an access-right enforcement body.

The irony is that when Supreme Court was struggling tooth and nail to keep the information of assets of judges under cover, an elevation to Supreme Court was under an attack on grounds of irregular amassing of assets[iii]. Each bit of information about allegations, Dharnas, surveys, inspections, threats to survey officials, collector's report to CJI, CJI summoning the tainted judge; each and every minute aspect of the judge's assets case was meticulously discussed and debated, not because media wanted it, but because advocates' associations had dug that scandal out[iv]. The Union Government tried to save the face with a legislative bill more to cover than to disclose the assets of judges, which, of course failed. The Union Law Minister was in headlines as he was frequently talking about bringing accountability of judges and reforming the process of judges' appointment. All those reforms are yet to occur. But the result is achieved. An appointment is stalled, (perhaps, for the first time in India[v]), after every thing was transparently discussed.

 All this happened without a change of single word in Constitution. The sublime impact of the Dinakaran's lands issue could be seen as the reason behind sudden change of mind of apex judiciary directing web-disclosure of assets of all the judges. First, the society achieved transparency and that stalled a higher judicial appointment. What could not be achieved all these years was achieved by this 'transparency' which was initiated by civil society[vi] and followed up by the media, not vice versa. The Dinakaran episode brought two matters to center stage, one, that the  judges' appointment process should be transparent, and two, assets of judges should be thoroughly discussed in public by advocates and seekers of justice. The Advocates of Tamil Nadu came forward with a detailed memorandum against amassing of wealth of lands and money by Dinakaran[vii]. This is the best example to say that a dynamic civil society alone could build strong public opinion which surely has significant effect on reforming the situation than amending letter of law. Civil society need to understand its own power as manifested in this episode.

Is it contempt?

Besides bringing transparency and accountability the Dinakaran episode also proved another significant dimension. Under our general legal regime every complaint, media report and article with critical remark could face troubles as 'scandalous' or to be within the contours of definition of contempt. Holding some comment as scandalous is another uncanalised discretionary power again left in the hands of judiciary. Strangely our contempt law says comments which 'tend' to be scandalous also could be punished for contempt of court. While expression 'scandalous' itself is highly opinionated, 'tendency' is more problematic as it would go against commentator. Fortunately none of the allegations and comments against Dinakaran attracted the Contempt Law actions from any court, so far.

For media the most dreaded problem is contempt action from judiciary, because this power could straight away land the media person in jail. In fact, discussing the performance of judges, quality of justice and problems of administration of justice is required for democratic purposes. If that is considered over centuries as live-need against Executive and Legislature, why not against the other Estate? Such a need for discussion is rooted in the foundation of freedom of expression guaranteed by any democratic constitution. Though the Contempt of Court Act 1971 says the comments or allegations could be punished only when they interfere with administration of justice, jailing of journalists for remarks totally depend on the sensitivity of judges. Whether contempt is emotional or not, the penal action in its name is surely emotional.

Appointment of judges to higher judiciary is never discussed in public till recently. Though there was no significant change in law of contempt and responses to media criticism, we find criticism, discussion and analysis in the media columns and news channels about the problems, allegations, consequences and issues of honesty of judiciary in public. It is a great achievement of civil society that forced the media to toe the line and just to follow up what is happening on a very significant constitutional position at apex level. If the bar associations and advocate unions had not brought out the issue of allegations of irregularities against judicial elevation, fear of contempt consequences might have prevented media from making any comments, which they are making now.  The civil society should thank Dinakaran for bringing these three important changes in analyzing performance of judiciary and discussing the appointments to higher courts in India for the first time. Of course, the Constitution of India as on today, has no answer to the question of common man: How one could continue as Chief Justice of a state when he could not be elevated to apex court? If media does not raise this question, civil society should.