There are less questions of law in the Supreme Court now, and more opinions. There are more quips than substantial queries.
It is as if the remarks are being curated to fit into a 280-character summation.
Last month, Nupur Sharma, a suspended BJP leader, approached the Supreme Court seeking clubbing of all the FIRs against her, registered in various parts of the country for her statement which was purportedly hurtful to Muslims. It was a seemingly harmless petition, squarely covered by laid down by the apex court itself.
However, the Court went on an unprecedented tangent, disparaging and highly prejudicial remarks against her. The remarks were against every shred of judicial propriety and incontrovertible legal principle of ‘’.
The remarks, while not finding place in the order that was eventually passed but reported extensively by the media, proclaimed her to be the single reason for all that is going wrong in the country.
There was no trial, just a sentencing. The Court declared Nupur guilty. Had the petition not been withdrawn, the Court may have gone ahead and carried out the sentencing as well.
This was a disappointing example of binary thinking of the bench, which was contrary to rule of law, and . The hearing and the off-the-cuff remarks, despite being defended by the apologists as being the judges’ freedom of speech and having no legal effect, were severely damaging to Nupur’s right to a fair trial.
The bench had already pronounced Nupur guilty based on a media trial. It was a verdict which was pronounced through countless Twitter threads of 280-character tweets, one that she could not even challenge.
The problem with judicial ‘freedom of speech’
Take a hypothetical scenario. In a case involving the offense of adultery by a person, the Supreme Court, at a pre-trial stage, passes certain oral observations calling the accused as a person with questionable character or worse, a threat to the moral fabric of society. Or during a bail hearing, the Court calls the accused a ‘monster who deserves to rot in hell’.
These observations, while widely reported by overzealous media, do not form part of the actual order. Now, while these oral observations may have no ‘legal effect’, as is being argued, it would be preposterous to defend these remarks as judges’ freedom of speech. The judges, while discharging judicial functions, cannot possibly have absolute freedom of speech. The position and seat of justice cannot be treated at the same threshold as that of a common man.
In other words, judges must act at a higher threshold of propriety, restraint, and discipline. Not a single word should be spoken by the judges while discharging judicial functions that can prejudice the case of the accused. Senior Counsel Anil Khare that a judge should only speak through his or her judgments and seldom otherwise. There should not be any quarrel with that proposition.
Even the argument that these observations have ‘no legal effect’ and are thus harmless is nothing but a bad defence. It is premised on an unreal assumption that the subordinate courts have no access to newspapers, mobile phones or are mechanically programmed to ignore all such news about a case they are hearing.
Importantly, the remarks were not the view of a random panelist appearing in a news debate. These were words spoken by the judges of the highest court in the country, both of whom will be chief justices of India in future. To say that these observations are harmless on account of having no legal effect is nothing but an attempt to engage in dreadful flattery to appear more loyal than the king.
The larger problem
The problem is that such statements and conduct by judges are a regular affair in courts. But with live tweeting and reporting, they have become much more dramatic and curated.
The Covid-19 crisis saw a judiciary that interfered in the dosage of medicines, manufacture of vaccines, allocation of oxygen quotas, etc, through a series of hearings where bureaucrats were pulled out of their duties and made to give answers to courts. There seemed to be an attempt to be popular by commenting on every thing and taking credit for things that went right.
One of the Supreme Court judges went on to take credit for the vaccination drive as well that the Centre had changed its vaccine policy due to judicial intervention. Recently, the same SC judge called the registration of multiple FIRs against Mohammed Zubair, a controversial Islamic activist, as a vicious cycle, without reference to the actual contents of all the FIRs before him.
The FIRs may indeed have been motivated and redundant. However, the court was not equipped to make such oral observations when neither the FIRs were produced, nor the state concerned h. The court's mind appeared to have been already made, and order drafted. The hearing that happened later was full of theatrics.
What remains ironical is that the same Supreme Court has itself batted for judicial propriety in the language of written judgments, let alone oral observations. The Supreme Court has recently that 'Language both on the bench and in judgements, must comport with judicial propriety. Judicial language is a window to a conscience sensitive to the constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity'. Easier said than done.
The Hero Syndrome
There is a growing inclination among judges to appear to be doing justice rather than actually doing it. There is a trend to make statements which will grab media attention and project the judiciary as the last hope in a dying democracy. Their Lordships, knowing that they cannot be touched, have taken upon themselves the task of disciplining and reforming the unwashed masses hailing from across the country.
For them, the politicians are corrupt and the executive untamed. Therefore, the burden of governing the country is on their able shoulders. They want to be heroes and champions, not merely the tools of justice.
Adding to the misery, the recent (and increasing) trend of live tweeting and reporting of the hearings have made judges conscious of their public image. There is a marked shift in the kind of language used by judges inside the courtroom as well. Legal terminology has been replaced by colloquial phrases as if the judges are talking to the public at large.
There are less questions of law, and more opinions. There are more quips than substantial queries. It is as if the remarks are being curated to fit into a 280-character summation.
The courts are turning into a theatre where the judges want to have a ‘gotcha’ movement. The famous quote from Jerome, that Justice is what the judge ate for breakfast, is ripe for a slight modification. It should now read justice is what gets the maximum number of likes and retweets.
Another marked shift is the direct engagement with the media. When the present CJI had assumed office, he had that judges should stay away from media glare and news. Sadly, this did not play out in reality.
After this promise, the CJI has been more in the media than expected. His fellow judges have been in the media more for their statements than their judgments. Sitting judges are speaking on sub-judice cases outside the court and even (twisting) on the statements of the National Security Advisor on matters of national security. A sitting Supreme Court judge has repeatedly Prime Minister Narendra Modi.
There are more speeches and sermons about how the judiciary is being targeted by media, politicians, and the government. Every day or the other, a judge is the social media for being critical of the judiciary. Is it justifiable that the judges of the highest court routinely India to be an immature and ill-informed democracy to counter the judicial apathy and inconsistency that characterises the court now?
The CJI sometimes appears to be more worried about what people are tweeting rather than what is happening inside his courts. Instead of putting his house in order, which sometimes seems to resemble a debating-cum-drama society, his focus is on regulating (read censoring) the social media when it comes to criticism of the judiciary.
Is the judiciary so weak that a few tweets will bring it down? Since 2009, there have been repeated calls for censoring the social media by sitting judges but the noise coming out of the present Supreme Court is unusual. It appears that the CJI and his fellow judges have forgotten the advice he graciously to a litigant who had approached the Supreme Court seeking ban on PK movie: “Don't be sensitive to such things. What will you hide in the age of the Internet?”
The Defensive Bar and Bench
There is a peculiar attribute that we, as legal practitioners, develop as we grow into the practice. We become defensive of our field and inherently refuse to entertain its criticism.
Challenged with pendency of cases, we blame it on lack of judicial infrastructure. Confronted with nepotism and corruption, we start pointing our fingers at politicians and actors. Pointing out the irregularity in registry/hearing, we are told that it is transparent enough. Asked about judicial overreach, we defend it as judicial activism.
And this is where the problem lies: the failure of the bar to look within and call out the infirmities which exist within. And we all know, there are many.
No system can reform itself unless the change comes from within. A compliant bar and a defensive judiciary will only hamper the administration of justice in the country. Defending every action of judges in the name of protecting the splendour of the court will be counterproductive. The only common ground that the bar and bench can possibly share is the cause of justice and nothing more.
And for that we must remember that we are officers of the court, not judges. There is no justification in showing loyalty to judges rather than substantive and procedural safeguards that the law provides. Judges are merely humans and treating them as gods will only destroy the court that Justice H R Khanna sacrificed immensely to save. Supreme but not infallible.
As Justice Cardozo said, membership in the bar is a privilege burdened with conditions. A vocal bar which knows the flaws of the system it seeks to protect is a must to thwart any attempt by politicians and the executive to challenge the independence of the judiciary. We must address our shortcomings so that we can compel the other branches to get their act together.
The bar must stand up because a nation with unjust courts is bound to fail. The bar must tell the courts that justice cannot be sweet and short to fit into 280 character or Instagram reels of influencers. It cannot be swayed by media narratives. It has to be unmindful of what happens outside the court.
Most importantly, the judges should speak through their judgments and no more. Judicial propriety demands a restraint of language. If they cannot exercise such restraint and want their freedom of speech, they must leave the bench and join the bar.
(No judicial ego was harmed in writing of this article. The author wishes to remain anonymous due to personal reasons).
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