American jurist Jerome Frank warned long ago, “It is a mistake … to try to establish and maintain, through ignorance, public esteem for our courts.” The court is a democratic institution and access to it is a social necessity. People’s lives depend upon judicial institutions in varied ways. Ultimately, a fair judiciary is the citizen’s last resort. Justice is an imperative. Criticism of the court is a serious matter. It needs to be done in good faith, with a sense of objectivity and without accusing the judges personally, unless there are compelling circumstances to do so and if such an accusation has a legal justification. Individual aberrations as well as political affiliations can damage the institution. In a working democracy, like other branches of the state, the court too cannot escape public scrutiny.
The recent controversies in India over criticism of the top court can take us to a better level of deliberation. A few retired judges along with some leaders of the Bar, including the President of the Supreme Court Bar Association, Dushyant Dave, think that on many occasions, the top court has failed to protect the people’s fundamental rights. On the other hand, a few others in the legal fraternity have come down heavily against the “growing trend of attacks against the judiciary”. Where do we draw the line?
Public memories of the Emergency (1975-1977) must help us to solve this dilemma. Several brave lawyers and judges fought for the citizens during the testing times. Eminent lawyers were arrested and detained. Many judges of the High Courts were transferred indiscriminately. At a later point of time, Nani Palkivala, who was Mrs Indira Gandhi’s counsel, opposed her after the declaration of the Emergency. Fali S Nariman resigned from the post of Additional Solicitor General as a mark of protest against Mrs Gandhi’s authoritarianism. Lawyers ranging from Ram Jethmalani to Shanti Bhushan led a movement of radicals. It needed enormous sacrifice to restore democracy and the rule of law in the country. Once it was restored, the Supreme Court was back on its constitutional track.
The post-Emergency judicial activism in India was complementary to the national and international reaction against a committed judiciary. The nation could, however, correct the judiciary by exposing the grave follies during the dark days. After the withdrawal of the Emergency, the court came to the rescue of the poor and the marginalised in the areas of human rights, labour laws and environmental protection. Of late, social action litigations have suffered a setback due to a variety of reasons. A few lawyers think that dilution of legal parameters and liberal approach in matters of locus and procedure had an adverse impact on the praxis of Public Interest Litigation (PIL) in India. The point, however, is the correlation between an assertive judiciary and an effective PIL ambience. The judiciary celebrated its independence with a sense of introspection.
It revisited the spirit of the Constitution that was trivialised by Mrs Gandhi and company. Two illustrative instances where the top court protected the labour’s interest were the cases of People’s Union for Democratic Rights (1982) and Bandhua Mukti Morcha (1983). In the former, the top court rescued the labourers engaged in the Asiad Projects and in the latter, child labourers in stone quarries were benefited. The court in the Asiad case held that inhuman exploitation of labour without adequate wages would amount to forced labour prohibited under Article 23 of the Constitution. In both cases, the court treated the letters addressed to it as writ petitions.
On 17 June 2020, two PILs challenging the dilution of labour laws in several states came up before the Supreme Court. Constitutional grounds of prohibition of forced labour, right to dignity, etc., were raised. They were met with an abrupt dismissal by a Bench led by Justice Ashok Bhushan on the ground that the petitioners did not have locus. That is to say, according to the court, one petitioner was a journalist and the other was a law student and as such they could not have spoken for the labourers. This approach negates the very idea of the PIL that the Supreme Court evolved, which allowed a public-spirited person to move the court for the benefit of the helpless and hapless multitudes. There was no substantial criticism in the country about this judicial apathy.
J A G Griffith in his classic yet controversial work, The politics of the judiciary (1977), demonstrated the ways by which institutional judgments get swayed by the interest of the political regime. There are visible and invisible factors that create a court that succumbs to a mighty political executive. Griffith, perhaps, told an old story. We have a post-truth judiciary. The situation across the globe has changed for the worse in modern times. It is embarrassing to see the court as an extension of the executive.
In the Covid-19 days, one finds illiberal regimes hand in hand with equally illiberal or sometimes subservient judiciaries. This situation calls for a consolidated attempt from the lawyers and media to fight the excessiveness of the state. A lawyer, like a journalist, positions herself between the state and the citizen, performing an educative and liberative function. The emergency gives us the hardest, yet, cardinal constitutional lessons. It teaches us about the offence of silence.
KALEESWARAM RAJ
Lawyer, Supreme Court of India
(kaleeswaramraj@gmail.com)