"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny."
--James Madison, the third President of the United States of America
Activism aggravates, activism ameliorates. Almost four centuries have passed, but Madison’s concern is reflected in the tempestuous tides of our democracy. All three above mentioned institutions are wrestling over power at the cost of the other. The judiciary is the current whipping boy of the establishment and the public. As poisonous polarisation spreads across large swathes of India, judges are facing the backlash. Under the Constitutional separation of powers, the court is expected to be an effective check on the misuse of power by its two sister institutions. Over the years, the executive and the legislature have become existential threats to judicial independence. Every verdict is seen and analysed through coloured glasses. While over 40 million cases languish in the massive maze of court bureaucracy, a few have become measuring tools to assess judicial integrity and impartiality. For the past few weeks, the nation is ventilating and hyperventilating over remarks made by a Supreme Court bench while dismissing a petition filed by the emotionally blasphemous Nupur Sharma. She is facing umpteen complaints in various states for her offensive remarks against Prophet Mohammed. Justices Surya Kant and JB Pardiwala blasted her, “the petition smacks of her arrogance that the magistrates of the country are too small for her”. Justice Kant lambasted the news channel, “What was the TV debate for? Only [to] fan an agenda? Why did they choose a sub judice topic (the Gyanvapi mosque case) … This lady is single-handedly responsible for what is happening in the country... She should apologise to the whole country." Within moments, the judges were viciously trolled by Nupur’s cheerleaders.
This is not the first time Indian judges have harshly chastised a petitioner’s conduct. However, the current retaliatory assault on the two judges was iniquitous. Within a few hours, a statement supposedly signed by 115 prominent retired public figures like former judges, bureaucrats and armed forces officials surfaced in the form of a letter to Chief Justice N.V. Ramana. It read, “By no stretch, these observations, which are not part of the judicial order, can be sanctified on the plank of judicial propriety and fairness...Such outrageous transgressions are without parallel in the annals of Judiciary.” Twitter and Facebook were flooded by abrasive adjectives questioning the judges' conduct. Though nobody in the ruling establishment criticised the judges, the colour of the outrage was definitely saffron. Ironically, the critics conveniently forgot that the same Supreme Court had earlier facilitated the installation of the Eknath Shinde-Devendra Fadnavis government in Maharashtra by refusing to stay the vote of confidence. Justice Pardiwala didn't take it lying down. Castigating trials by media, he lamented that judges have to think “…about what the media thinks instead of what the law thinks”. The crux of his observation was that social and digital media have become political pastures to water personal opinions against judges, rather than field constructive critical appraisals of their judgments. “This is what is harming the judicial institution and lowering its dignity.” Pardiwala echoed Chief Justice Ramana’s views during his US visit earlier this month—"As we celebrate 75th year of Independence this year and as our Republic turned 72, with some sense of regret I must add here that we still haven't learnt to appreciate wholly the roles and responsibilities assigned by the Constitution to each of the Institutions…the party in power believes that every governmental action is entitled to judicial endorsement. The parties in Opposition expect the judiciary to advance their political positions and causes. This flawed thinking of all hues flourishes in the absence of proper understanding among people about the Constitution and the functioning of the democratic institutions... Let me make it clear. We are answerable to the Constitution and Constitution alone." Unfortunately, the tendency to redefine the colour, tone and spirit of the Constitution is culminating in tarring the verdicts in red, green or saffron. It seems as if India has two Constitutions. One for those who get favourable judicial munificence and another for those who are denied the same privileges.
The conflicting interpretation of the Constitution and laws by various courts including the Supreme Court has caused immense harm to the judiciary’s reputation. Judicial conduct has not always been blameless. Some justices play to the gallery or vent using words, not wisdom. Their ideologically driven judicial activism is seen as excessive loyalty to the party in power. For example, AltNews co-founder Mohammed Zubair was jailed for his 2018 tweet but Nupur and her fellow travellers remain free. The national narrative revolves around the conduct of only these two individuals. India’s institutional resilience is under scrutiny. The international media is attacking our democracy for curbing freedom of expression and silencing establishment critics.
The political glossing of judicial verdicts started after the Gujarat riots. From Gujarat to SC, judges were passing orders against Narendra Modi who was then the Chief Minister. The Supreme Court started the practice of appointing SITs, and transferred criminal cases against Amit Shah from Gujarat to Maharashtra, thereby signalling distrust in the local police and the lower judiciary. The Indian judiciary controls the appointment of judges. It selects heads of semi judicial bodies. But it is the government that gives approval. Until February 2021, 70 of 100 retired SC judges had accepted government jobs after retirement. A few got governorships or Rajya Sabha nominations as rewards for their services. The late lawyer and politician Arun Jaitley had castigated the judges’ power lust—"There are two kinds of judges - those who know the law and those who know the Law Minister…We are the only country in the world where judges appoint judges…even though there is retirement age, judges are not willing to retire…Pre-retirement judgements are influenced by post-retirement jobs." It is another matter that a maximum number of post retirement crumbs have been given to the retired judges under the NDA regimes.
The current assertiveness of the Indian judiciary is being met with equally strong reactions from the executive by invoking its mandate. Another US president Thomas Jefferson had noted, "A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government." This unwritten code of the Indira Gandhi regime is the algorithm of Modi Sarkar today. As the saying goes, 'judge a man by his questions, not answers'. Today, the answers to questions about judicial independence are not always forthcoming.
prabhuchawla@newindianexpress.com. Follow him on Twitter @PrabhuChawla