Pandit Jawaharlal Nehru once remarked, ‘Events crowd in upon us in such quick succession that we are apt to miss their true significance.’ This is particularly true of the most unhealthy drift of events in the Supreme Court of India in recent times. The customary reverence formerly paid to judges of the Supreme Court is being systematically deflated. Pernicious attacks on the judiciary have become commonplace. Many are made by political parties and politicians. In fact, some politicians who are distinguished members of the Supreme Court Bar, see enormous mileage in pursuing that course. But even beyond politicians, the attacks have been made with impunity by the media, academicians and limbs of the law. Significantly, one such political leader and senior member of the Bar went to the extent of saying on 8th August, 2022 that he had no hopes from the Supreme Court and further that, ‘The reality is such that any sensitive matter which we know has a problem is placed before certain judges and we know the outcome.’ This immediately drew a sharp critical response from the Union Law Minister Kiran Rijiju who bewailed that that this was ‘very very sad for the entire country’ and asserted that, ‘Our government is absolutely clear in its mind that the country must be governed by the constitutional proprieties as well as the rule of law. Any kind of attack on the constitutional authorities and the courts is very unfortunate and condemnable.’ And yet another well known politician lawyer on 11th August, 2022 accused the Supreme Court of abdicating its responsibility to protect fundamental rights and contended that the independence of the Supreme Court was seriously under question. It is indeed lamentable that such personal and political attacks, led by politicians, politician lawyers and lawyers, have gone too far, nay crossed the ‘Lakshman Rekha’. They have sometimes been devised to undermine the fundamental independence of judges of the highest judiciary, even to attempt to daunt judges or to sway the outcome of cases and to depreciate their irrepressible impartiality and integrity. The unconquerable power of democracy and the Rule of Law are being sought to be subverted and subjugated in a most sinister and malicious manner. Behind the façade of the attacks on the judiciary, I see the evil hand of certain political parties to dislodge the smooth functioning of the highest court of the land by means foul rather than fair.
In the United States, the most disconcerting feature has been the intensely political character of such attacks. Of particular concern has been the appearance of national political leaders, furtively looking around for themes for their electoral campaigns and selecting easy targets of the judiciary as a means of promoting themselves as uncompromising on law and order. In this context, the eminent Birmingham lawyer and the 1996-1997 President of the American Bar Association, N. Lee Cooper once observed that the biggest challenge to the justice system of the United States was ‘the continuing attack upon our federal judiciary’.
In the United Kingdom, from whose judiciary common law countries like India ultimately derive their model, the esteem paid to Her Majesty’s judges has lately begun to wane. Even The Times, once the bastion of the Establishment in Britain, not so long ago, demanded that a new Chief Justice be appointed who could ‘steer his profession away from the sound of gunfire’.
The attacks on the highest judiciary in the United States and the United Kingdom seem positively mild by comparison to those which have impaired the Australian judiciary in the recent past, particularly after the High Court of Australia, the nation’s federal supreme court, decided that the native title to land of the indigenous peoples of Australia was not, as a matter of law, necessarily extinguished by the pastoral leases granted by the Crown under the statute over vast areas of the Australian continent starting with the 19th century. Consequently, politicians in both Federal and State Parliaments fiercely competed with each other to attack the Court and especially the majority judges. The derogatory comments of politicians soon became the launching pad for academic and media chastisement. The courts and the judges were labelled ‘bogus’, ‘pusillanimous and evasive’, guilty of ‘plunging Australia into the abyss’, purveyors of ‘intellectual dishonesty’ and bodies ‘packed with feral judges’. These insidious attacks eventually induced defences of the High Court of Australia by judges and retired judges, organised legal professionals, leading members of the Bar, members of parliament and others. Sir Francis Gerard Brennan, the erudite Chief Justice of Australia, was perforce constrained to write a private letter to the former Deputy Prime Minister Tim Fischer to correct the erroneous assertion, made publicly, that the Court had deliberately dragged its feet in the pastoral leases case. This letter was promptly seized upon by journalists and was given widespread publicity. Later, at a series of legal conferences, the celebrated Chief Justice of Australia Sir Anthony Frank Mason spoke of the dangers of such sustained attacks on the judiciary. There was also the concern that such an unrelenting barrage of criticism and deprecation would, if unabated, dilute the community’s confidence in the courts and acceptance of court decisions.
For anyone wishing to view the index of American equivalents to the Australian catalogue of verbal fusillade hurled at the judiciary, a worthy starting point is an alarming article by Justice Joseph W Bellacosa of the New York State Court of Appeals. ‘Screwballs’ is the kindest of the epithets! Justice Bellacosa concludes, ‘Judges can take criticism, I am very confident, but whether the public interest can stand and absorb mal-informed, drum-beaten and heated attacks on the judicial process is worth pause and reflection.’
The internationally renowned jurist Reuven ‘Ruvi’ Rivlin, who served as the tenth president of Israel between 2014 and 2021, once aptly asserted, ‘There is no, and cannot be, any situation in which we don’t respect the law and the judiciary. It is unacceptable to attack the courts; criticism is allowed, but attacks are not. It shakes the basis of our democracy.’ In a democratic society, some criticism of the judiciary is inevitable. This is especially so at a time when there is a growing understanding of the inescapable choices which are open to judges. Just as decisions of the other branches of the government attract criticism, important and controversial decisions of the courts will inescapably do the same. Into this ambience has been impregnated the technology of the modern media of communications. Unless there is a measure of restraint, the judicial institutions will be damaged and judicial integrity debilitated. The following features of the recent attacks on the judiciary have been distinctly intemperate. The personal targeting of identified judges. The attempt to intimidate them or to deflect them from fidelity to their oath of office to decide each case strictly on its merits. The unrelenting character and partisan political aspect of the attacks. A censurable feature of the barrage which cannot pass unnoticed is the manner in which a woman judge, who was the first lady judge to have been honoured with a well-deserved elevation straight from the Bar to the Bench, was singled out for a studied attack by a senior lady member of the Bar in April, 2018 before her swearing in. Targeting judges, identifiable because of their sex, race or other minority considerations, attacking them by over-simplified and inaccurate generalisations, caters to public prejudice. Such conduct is unworthy of our country that indefatigably claims to uphold fundamental rights and the rule of law. In the face of the onslaught, and under fire, there are a few strategies available to the judiciary. It would be a reprehensible judicial response to cave in to the pressure and to do exactly what the politicians, editorialists or other powerful interests desire. This would be a complete abdication of the judicial system. It, therefore, rests increasingly on the organised legal professionals to defend the judiciary, to correct blatant misinformation and to remind politicians, the media and others of the precious heritage of judicial neutrality and independence which we have enjoyed so proudly. In India, independence and conscientiousness are cherished features of the judiciary. It is important that institutional protection for those features should be sustained. Political attempts to undermine them should be spurned. Leaders of the legal profession, irrespective of their personal political leanings, should speak up where judges are unjustly assailed by politicians and others for carrying out their independent role. The increasingly adversarial and belligerent nature of our public should not become contagious to the erosion of the balanced relationship of the judiciary with other branches of the government. Legislators, members of the Executive Government and the judiciary should realise that each branch has its own distinct part to play, without which constitutional government would falter and fail. It was out of recognition of that danger that the people of England banished King James II from the shores of their ‘blessed plot’ in 1688, and prevailed upon his successors, William and Mary, to accept the Crown upon certain conditions. One of the conditions was judicial tenure and independence. When this condition was not extended equally to the British colonies, the colonists and settlers complained and, in America, rose up in revolt in 1775. They instituted, at least in the federal judiciary of the United States, a firm guarantee of tenure and independence of the judiciary. We in India are the fortuitous beneficiaries of these two revolutions of 1688 and 1775. It will be extremely difficult to redress the mischief that concerted attacks on the apex court and individual judges can cause. Such attacks often portray a fundamental lack of understanding of what judges do, what they do not do and why they exist in our form of democratic society. The remedy should start in the schools and through the media. It should not be confined to law faculties and educational institutes alone. A renewed emphasis on the teaching of civics is the urgent need of the hour. It must be an objective of the coming millennial that we disseminate the gravamen of our constitutions and engender an informed appreciation of the judiciary and its paramount importance for the sustenance of a peaceful and stable government. Not unrealistic or blind faith. Not confidence wrenched by the threat of legal enforcement. Not admiration won by deft public relations and media hype. But a genuine desire to protect and preserve the rule of law and the dignity and majesty of the highest court of the world’s largest working democracy. In this context, it would not be out of place to mention that our first President Dr. Rajendra Prasad, himself an outstanding lawyer, described this ‘noble edifice’ as the ‘Temple of Justice’ on the occasion of the inauguration of the new Supreme Court building on 4th August,1958 in the august presence of Prime Minister Pandit Jawaharlal Nehru, Vice President Dr.Sarvepalli Radhakrishnan, Chief Justice Sudhi Ranjan Das, his son-in-law Asoke Kumar Sen, the Union Law Minister and my senior and guru, Lok Sabha Speaker Ananthasayanam Ayyangar, and Attorney General Motilal Chimanlal Setalvad.
In conclusion, I am highly emboldened to commend to readers the stern message delivered by Justice Jamshed Burjor Pardiwala of the Supreme Court at the 2nd Justice HR Khanna Memorial Symposium on 3rd July, 2022, ‘Personal attack on judges for their judgements lead to a dangerous scenario where the judges have to think about what the media thinks, rather than what the law actually says. This puts the rule of law on the burner..Social and digital media is primarily resorted to expressing personalised opinions more against the judges, rather than a constructive critical appraisal of their judgments. This is what is harming the judicial institution and lowering its dignity…This is where digital and social media needs to be regulated throughout the country to preserve the rule of law under our Constitution…in India which cannot be defined as a completely mature or defined democracy, social media is employed frequently to politicise purely legal and constitutional issues.’
BRIEF NOTE ON THE AUTHOR
The author is an internationally reputed senior lawyer practising in the Supreme Court of India and various High Courts and Tribunals in India. He has been closely associated with some of the topmost Indian corporates like Tata Sons Ltd., Tata Consultancy Services Lt., Tata Steel Ltd., Reliance Industries Ltd., ITC Ltd., ICI India Ltd. and Hindustan Unilever Ltd. as a lawyer and advisor. He addressed a select gathering of MPs and other eminent persons in the House of Lords in February,2009 and was awarded the prestigious “Ambassador of Peace Award”. In April,2009, he was also invited to the House of Commons. He was also invited by Chatham House and by the Universal Peace Federation in London several times. He is an avid debater, public speaker, writer, broadcaster, telecaster, artist, painter, sculptor, music critic and filmmaker. He is also an indefatigable lover of western classical music and has one of the largest private collections of western classical music in India.
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