Criticising the courts

To ensure that the judiciary, the institution of last resort for the citizen, remains vibrant and effective, it must be open to criticism.

The Supreme Court observed recently that one cannot malign judicial officers by using social media, while dismissing a plea challenging a Madhya Pradesh High Court order that sentenced a man to 10 days in jail for making corruption allegations against a district judge. “Just because you don’t get a favourable order, doesn’t mean that you can malign the judicial officer. Independence of (the) judiciary doesn’t just mean independence from (the) executive but also from outside forces. This has to be a lesson for others also”. Interestingly, it was former Chief Justice of India (CJI) Ranjan Gogoi who, in a televised interview a few years ago, upon being asked whether there is corruption in the Supreme Court of India, said: “Corruption is as old as society. Corruption has become an acceptable way of life, and judges don’t fall from heaven.”

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Recently, in collaboration with Sheyril Agarwal and Joyojeet Pal from the University of Michigan, Newslaundry analysed data from January 1 to April 20 this year to understand the nature of trolling against CJI D Y Chandrachud. A search for tweets containing one of these hashtags – #NotMyCJI, #CJIDYChandrachud, #CJI or #Chandrachud – along with tweets that contained the word “Chandrachud” – was mounted, which provided a dataset comprising 753,848 tweets, of which 116,669 were original posts. The hashtag #notmycji was used 1,747 times within the time period, #nosamesex marriage 433 times, #undemocraticsupremecourt 366 times, #genderbiasedlaws 349 times, and #judiciarymustaplogise 256 times. It is well understood that this grouse comes from the conservative right-wing, but still it must be taken into account.

Back in 1979, Professor Upendra Baxi, in his book The Indian Supreme Court and Politics reminded us that judging the judges is a very serious business, more so since judges cannot reply while in office and no one hears them when they answer back from their retirement. He pointed out how judges are easy targets at all times for “the informed as well as ignorant, for politicians as well as lawmen” and how quick politicians of all shades are to denounce judges or judgements “when it is expedient for them to do so”.

But there is a rider. Democracy demands that one gets to criticise any view, any person, any institution without let or hindrance. One might argue that this is reckless freedom that is liable to lapse into anarchy. But no institution, however sacrosanct it might be prompted to think itself to be, can be above criticism, even if it is the courts. The general talk of the dissipation of the courts, the inordinate delay in passing judgements, and how judges are also subject to biases and predilections, their possible corruptibility, and the interplay of money and power with jurisprudence will perhaps never stop. The ultimate test for a democracy is whether its judicial institutions can stand criticism, or are too prompt in sniffing contempt, and whether, by dint of their authority, they can impinge on the personal liberty of a person critical of the courts and court verdicts by issuing summons or court appearances or incarceration.

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Courts can, and do, go wrong sometimes. A wrong verdict can irreparably damage a party or a collective entity. Even the venerable members of the higher judiciary are but human. But somehow, to touch them is considered a matter of great affront. Only anyone from their own tribe, conversant with the nuances of the law of contempt, can dare to criticise them. One such person was V R Krishna Iyer, the man who transformed the Supreme Court of India into the Supreme Court for Indians, whose book Access to Justice (1993), a collection of memorial lectures delivered by him, came down heavily on “the impact of communalism, political interference, regionalism, market-friendly approaches, mafia collusion between the executive and the chief justices in the selection process of the judges”. Besides blaming the judges for lobbying, bending for the sake of “post-retiral expectations”, graft, foreign trips, he criticised “hearings on holidays, nocturnal hearing of bail proceedings of odious business heavyweights, and early postings of tycoons with clout” without mincing words about “banana” chief justices who are “rude and ruffian”.

Over the last few years, there is a perception that the judiciary has suffered huge damage, particularly as it was seen lagging in the constitutional duty to protect the fundamental rights of citizens.There have been a few CJIs who are seen to have fought shy of situations calling for a check on an agenda-driven Executive on the rampage. The Supreme Court’s role in deliberating, or not, upon the constitutional validity of the CAA, and suppression and criminalisation of protests against it, misuse of draconian laws like sedition and the Unlawful Activities Prevention Act (UAPA), electoral bonds, or the more piquant topic of the Kashmir trifurcation, have been criticised by none other than eminent members of the judicial community, including former Supreme Court judges.

The Supreme Court has often described itself rightly as “final but not infallible”. If democracy demands a right to criticise our legal institutions, one might assume two things. First, our democratic assumptions have gone up, or people’s distrust with the judiciary has gone up at a perceptual level. When judicial backlog and infrastructure have been the subject of debate and discussions in different for a, including parliamentary standing committees and Law Commission of India reports, there is no reason why judiciary will continue to be above public criticism.

To criticise something that is held sacrosanct is heretic. One cannot criticise the scriptural injunctions and the gods on being taught by rote that they are too holy to be criticised. If that blind faith defies logic, why must our courts that swear by logic and inspection be above all criticism? Article 50 of the Constitution of India obliges the State to take steps to separate the Judiciary from the Executive in the public services of the State. While ensuring independence, it is equally important that this wing of governance, which remains the institution of last resort when all others are unable to redress the citizen’s grievance, is vibrant and effective.

(The writer is a Kolkata-based commentator on geopolitics, development and culture)