In December 2018, the Kerala High Court passed an order condemning the “[h]ighly derogatory, contumacious and unwarranted comments [that] were made not only against the judicial system, but [also] against the Honourable Judges who constituted the Bench.” In December 2021, during an interview soon after the release of his rather self-defensive memoir, former CJI Ranjan Gogoi said that if you criticise a judge, “you are not only harming the judge, you are also harming the institution and the judicial system.”
“If you criticize the judgement, it is good for the system,” he said, “but if you criticize the judge, it is not good for the system.”
In May 2022, just across the border in Islamabad, the Senate Standing Committee on Law and Justice said, tetchily, that “criticising the judge on the basis of disagreement with the judgement must be stopped.”
Judges in the subcontinent have forever been battling what they construe as excessive criticism of the judge (often, but not always, alongside criticism of the judgement). And it gave rise to the decidedly subjective and often dichotomous take on what separates unfair disapproval from “fair criticism”.
In March 2002, a court held that “fair criticism of the conduct of a Judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and in public interest.”
Just three years later, in 2005, a court took a step back, warning that “attributing improper motives, or tending to bring Judges or Courts into hatred and contempt or obstructing directly or indirectly with the functioning of Courts is serious contempt of which notice must and will be taken.”
“Respect,” it added, “is expected not only from those to whom the judgement of the Court is acceptable but also from those to whom it is repugnant.”
Woven into this debate is a sort of us vs them classism. In the 2002 judgement referred to above, the court said: “All citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism which, if not checked, would destroy the institution itself.”
Therefore, only a subset of polite, deferential citizens—faugh to the sloganeering, boisterous sorts—are palatable as critici iuris, critics of the law. And this brings us speedily to the situation that obtains today: a slew of judgments, disputed, because unexpected (and even counterintuitive), by the Everyperson, the politically-informed and vocally-entitled aam janata.
If the honourable judges must ask for relief from deconstruction—mostly of their political affiliations—from the people (or the commentariat), they must give, in exchange, a commodity that seems increasingly at a premium these days: de iudicio, or juridical, dependability.
Judgements that seem to be just must be inseparable, by any mechanism whatsoever, whether political or personal, from judgements that are just. And vice-versa.
But the citizenry is faced today with a three-tier juridical system of erraticity (although not eccentricity, for the inconstancy seems a result of deliberate misinterpretation or misapplication of laws). By accepting the most frivolous or motivated of complaints, the lower courts validate them and make preposterous arrests possible. The ability of the high courts to fine-comb these cases, separating the workable from those doomed to fail, is coming into question. And the uppermost court of all, where fears of whimsicality or motivatedness are supposed to be put to rest, has for some years now been seen as a collective of individuals bound loosely by fealty to the tenets of law and tightly by loyalty to political affiliations.
When you have a blackrain of unpredictable and often surreal judgements that end in harmless people dying or being locked up for years in the course of pretrial incarceration, or people being arrested and clapped in irons for months for unarguably bailable offences, the first casualty is trust in the judicial system. And since the citizenry’s interface with the vast superstructure are the judges, who also decide and declare the penalties, it’s the judges who are coming in for flak even as their judgements are being scrutinised and, often, excoriated.
This is inescapable. For decades now, in the US, for instance, the extrajudicial preferences of judges have been openly debated. Their judgements are almost invariably put through the media mill, and what contributed to the judgements lit up in neon. The world knows about the political composition of the US Supreme Court. Its orders—and the personalities, the legalities, and their motivations—are minutely dissected in every single forum of free speech in the land, whether offline or online.
In the UK, judicial accountability is a media free for-all—admittedly, mostly, but not solely, in the contumacious tabloids—unfettered by protestations, such as in India, from judges (because it is sweepingly accepted that there exists substantial political interference at the trials stage).
Judges must not only be seen to be both independent and impartial, but must also actually be so. And so must their judgements. The pathway to this is not just structural realignment, or a circling of the judicial wagons: it is also in the exogenous criticism that aids in self-reflection. This is the only way that their deconstruction might come to be considered, at some point, besides the point. Until trust is re-established through transparently dependable judgements, there is no point in shutting out or even criminalising criticism (personal-political though it may be)—criticism that, as in the best democracies, can only aid in the improvement of judgements and judges alike.
Kajal Basu
Veteran journalist
(kajalrbasu@gmail.com)