Even before tensions between India and China threatened to ratchet, a quiet but bitter battle had been going on in the pages of newspapers and the urls of online platforms. This time though, it has the look and feel of a civil war, but as the old saying goes, it has been anything but ‘civil’. Judges, sitting and retired, and senior advocates, have been trading charges over the Supreme Court of India’s ‘inaction’ on the migrant workers’ woes brought on by the lockdown.
The latest salvoes have been fired by Justice SK Kaul in a speech to the Madras Bar Association, former Chief Justice of India, RC Lahoti in an op-ed for the Indian Express newspaper, and Harish Salve, in a lecture. All of this is ostensibly in response to a slew of op-eds by their former brethren on the bench roundly criticising the court. Retired Supreme Court judges Markandey Katju, Madan Lokur and Gopala Gowda were harsh in their assessment of the court, echoing the views of eminent senior advocates such as Fali S Nariman, Dushyant Dave and Chandra Uday Singh.
Judges Aren’t Supposed to be Swayed by Public Criticism Or Praise
That the public criticism – both by the public and in public – has gotten to the Supreme Court, is very clear. The manner in which the court took up the migrant workers’ case in a suo motu writ petition in a belated and half-hearted manner, surely suggests that the court was responding to its critics rather than showing genuine concern for migrant workers. Even so the court, with the encouragement and support of the Solicitor General of India, Tushar Mehta, could not but help take snipes at its critics during the hearing.
In theory, judges are not supposed to be swayed by public criticism or praise, and speak only through their judgments in accordance with the law and good conscience. The reality is of course far from the expectation.
Judges are human and moved by the same needs and desires as anyone else, and I imagine, if one were to prick them, they would also bleed.
The present situation, however, is not about an individual or a group of judge’s feelings. It’s the outcome of a deep divide in the judiciary – a divide that was visible on 12 January 2018, when four judges held an extraordinary press conference in Delhi. It can safely be said that nothing has been done to heal that divide, and it has, if anything, gotten much worse. On the one hand are judges (and one section of the Bar) who believe that the court has gotten too close to the Union in failing to do its job in exercising the power of judicial review, and on the other, those who believe everything’s fine with the way things are.
SC’s Current Divide Reflects Its Functioning In the Decades Since the ‘90s
This is not the first time that the court has been so divided. If in the ‘70s it was over ideological differences, in the ‘80s it was more personal. The present divide though, is a reflection of how the court has functioned in the decades since the ‘90s, in the face of successive weak union governments.
The Supreme Court, since the ‘90s, greatly expanded the use of public interest litigation to intervene in matters all and sundry.
It laid down guidelines governing sexual harassment at the workplace, oversaw the sealing of unauthorised buildings in Delhi, tried to clean up air pollution in Delhi, mandated the creation of night shelters, struck down licenses for 2G and coal blocks, and supervised the criminal prosecution of the accused in the corruption cases. In each of these cases, the court was not concerned merely with the legal or constitutional aspects of a matter. It waded into the territory of policy and implementation, seeing legislative vacuum or executive inefficiency as an excuse to enter. It fared better in some areas than others, but what it did was set the expectation of the institution’s behaviour.
Why Have Judges Chosen to Lash Out At Their Critics?
Faced with the first single party majority in a generation though since 2014, the Supreme Court has shrunk back the scale of its intervention with one notable exception – the National Register of Citizens project in Assam. While PILs continue to be heard and orders passed, the court’s recent record indicates a definite reluctance to challenge the Union Government on any major policy matter – whether it is demonetisation, the Rafale acquisition, the abrogation of Article 370, among other things. On the other hand, there is a much more obvious closeness in the relationship between the Union Government and the courts – whether on CJI Gogoi’s sexual harassment case and his subsequent appointment to the Rajya Sabha, or in the court hearing and rejecting the bail pleas of those accused by the government in the Bhima Koregaon case.
Having no institutional response to the criticism of being considered too close to the Union Government and being seen as apathetic to large-scale rights violations, individual judges have chosen to lash out at their critics.
They would ideally like criticism to come from within the institution or in the pages of arcane journals, and not be the subject matter of daily discussions.
To ‘Whine’ Constantly Is Beneath the Office of the Judge
But in this day and age, when proceedings from court are live-streamed, arguments tweeted line by line, and observations of judges form blaring headlines on the front page, one thinks the judges complain too much. If a holder of public office cannot take the criticism that comes with the office along with praise, it reflects poorly on their suitability for such public office in the first place.
To whine constantly about the ‘ pressure’ from commentators or the public on social media, is beneath the office of the judge.
If judges really want the harsh criticism to be less harsh, they should reflect more seriously on why they have given cause for such criticism instead of looking for scapegoats elsewhere.
(Alok Prasanna Kumar is an advocate based in Bengaluru. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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