Indian democracy appears to have developed far too many innovative features which, while enhancing freedom, have compromised decorum, responsibility and common sense. Predictably, in a made-in-media society it is the fourth estate that has taken a lead in breaking the mould.
Throughout the past fortnight, the voters of India were mute spectators to various unabashed attempts to hijack the verdict of the general election. The cacophony of pollsters and pundits did undeniably add to the freedom enjoyed by those who have no accountability but it did raise the spectre of unfair political practices. Freedom was enhanced but democracy, in my view, did receive a severe battering.
Coinciding with the onrush of speculative recklessness was another first for Indian democracy, this time involving not merely the media but also the judiciary. The retirement of Chief Justice of India V N Khare on May 1 turned out to be a very perplexing event. By convention, an outgoing CJI utters a few homilies on judicial integrity, perhaps even suggests a few improvements in the administration of justice and moves on to either a quiet retired life or to head a quango.
Khare chose a more spectacular exit route. In a series of interviews that, predictably, grabbed the headlines, he did something that Indian democracy has not witnessed before. He spoke out his mind on litigation that, far from being settled, is still before the Supreme Court.
More dramatically, Khare happened to be on the bench hearing the Best Bakery case even a few days before his retirement. In addition, he gave his own version of the judges collegium's proceedings -- a version that many would undoubtedly contest.
The former CJI's comments were blunt and unequivocal. He did not mince any words over his antipathy towards the Gujarat government and its chief minister. 'Had I been an ordinary citizen, I would have filed an FIR against Gujarat Chief Minister Narendra Modi,' he told veteran journalist Kuldip Nayar.
'When ghastly killings take place in the land of Mahatma Gandhi,' he added, 'it raises very pertinent questions as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him.'
To PTI, Justice Khare admitted that 'I gave a new dimension to criminal jurisprudence.' And to The Telegraph, he gave his version of politics: 'The riots continued unabated. The prime minister did not take the chief minister to task. The home minister did not initiate any action. So I sternly told them to do your raj dharma or quit on your own.'
Justice Khare's right to express fiercely partisan views, as befitting someone who represented Indira Gandhi in her legal battle against Raj Narain -- the case that terminated Indian democracy for 19 months -- is not in doubt. The question that arises is: do these outbursts constitute a subversion of justice?
Horror of horrors, can the former CJI be said to be guilty of contempt of the judicial system?
The issue is not an academic one. The Supreme Court may have ordered a retrial in the Best Bakery case but it has not pronounced the accused as guilty. Second, the apex court's order shifting the venue of the retrial to Maharashtra was challenged by the Gujarat government on the ground that this was not asked for by any of the parties in the dispute.
Justice Khare was hearing this case till the almost the day he retired and -- in a move that many jurists consider unorthodox -- he named the bench that was going to hear subsequent Gujarat cases. Normally, this is a prerogative of the new CJI.
Justice Khare, in short, was not going public about events located in judicial history; he was giving his opinion on pending cases. Since he was the CJI, it can legitimately be asked whether his loaded statements constitute what legal authorities refer to as 'improper pressure.'
In the past, the accusing finger of 'improper pressure' has usually been pointed at the media. The fear of a trial by media has often prompted courts to impose curbs on traditional freedoms. The most celebrated case involved the gag imposed by the British attorney general in 1974 on the Sunday Times in a case involving compensation for victims of the thalidomide drug. In a landmark judgment, the House of Lords held it was 'most objectionable that a newspaper or a television programme should now seek to persuade the public, by discussing the issues and evidence in a case before the court, that one side is right and the other wrong.'
One of the judges, Lord Simon, went to the extent of describing the well-researched but one-sided article of the Sunday Times as 'execration.'
In assessing what constitutes contempt, the House of Lords also deemed there should be 'no usurpation by any other person of the court to decide it according to law.'
The point is that everyone is entitled to a free and fair trial, including those the dominant sections of the media consider loathsome. The courts in Britain have been particularly sensitive in ensuring that the environment of a trial is conducive to justice.
In 1991, the satirical weekly Private Eye was censured by the courts for 'improper media pressure on a litigant.' The litigant happened to be Sonia Sutcliffe, wife of the Yorkshire Ripper, one of the most notorious serial killers in recent times. The courts ruled that the wife of such a man was entitled to untainted justice.
I would be most interested in knowing how our jurists read these precedents in the light of Khare's public obloquy. On the face of it, I don't think that former CJI Khare has enhanced the reputation of the institution he headed till last month. He may even have damaged it.