Arshad Shaikh looks at the state of the judiciary, which is under immense pressure from the opinions and beliefs of the majority (vox populi). This unusual situation arising from what some call a resurgent or an assertive India is symptomatic of India’s slide into a majoritarian and illiberal democracy. The role of the electronic media and especially social media in targeting judges rather than their judgments is particularly disconcerting. In some cases, this pressure has also led to a situation wherein the aggrieved party did not get relief simply because the judges swayed from their core principles and could not muster the courage to go against the ‘collective conscience of the nation’. The state of affairs needs to be repaired immediately else the ‘law of the land’ may soon be replaced with the ‘law of the jungle’.
The United States Courts have framed the following code of conduct for their judges: “Canon 3 (1) says: “A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamour, or fear of criticism.”
Some professions have to blow according to the wind. Their survival in the market depends upon how quickly they can adapt themselves to the changing market conditions. In contrast, there are some noble professions, whose practitioners have to ‘stick to their guns’ and be immune to public pressure or the ‘vox populi’. If they succumb to public clamour or fear of criticism then they would not be discharging their duty fairly, impartially, and diligently. The post of a judge is one such position and adhering to these pristine canons alone can guarantee a fair and independent judiciary.
The other issue that must be understood is the evolution of any ideology and the manifestation of its growth and establishment in society. Any ‘power-seeking’ ideology would not only like to seek and gain political power (through the ballot in a democracy) but also try to penetrate and influence the various pillars of the state be it the media, the bureaucracy, the judiciary, the military, and the different power structures that govern the polity and the economy. Such efforts have been on the ascent in the recent past and hence the role of the judiciary in India has suddenly gained extraordinary importance.
A systematic campaign by the right-wing to browbeat the minorities under the guise of being the visible signs of a resurgent and assertive India are in fact in the words of a prominent political commentator nothing but – “the widespread acceptance of vile prejudice, alignment of state with majoritarian power, contempt for rights and glorification of violence”.
The media (and now social media) plays a big role in setting the agenda before a nation and exercises disproportionate influence in framing ideas and aspirations before the public. The media can also hold media trials and deeply change the perception of a crime, its motive, and alleged culprits. The law enforcement agencies and the system of justice dispensation cannot remain aloof from the narrative set by the media and have to walk a tightrope to be in sync with the aspirations of the majority. This is not a healthy sign for any real democracy and we need to be alert to the fast deteriorating situation.
THE BACKLASH
Recently, a bench of Justices Surya Kant and JB Pardiwala of the Supreme Court of India, while hearing a plea filed by ex-BJP spokesperson Nupur Sharma (accused of making derogatory remarks against the Prophet Muhammad ﷺ in a TV debate) seeking transfer of FIRs, said: “She (Nupur) actually has a loose tongue and has made all kinds of irresponsible statements on TV and set the entire country on fire. Yet, she claims to be a lawyer of 10 years standing. She should have immediately apologised for her comments to the whole country. She has a threat or she has become a security threat? The way she has ignited emotions across the country, this lady is single-handedly responsible for what is happening in the country.”
Obviously, these comments from the apex court did not go down well with those manufacturing the ‘mood of the nation’. Immediately, there started a barrage of tweets and articles condemning the judges. A group of retired judges, bureaucrats and military officers wrote a letter to the CJI, stating “the unfortunate comments have no parallel in the annals of the judiciary and are an indelible scar on the judicial system in India”. Someone tweeted that SC is playing to the gallery, and should focus on doing its job, not give moral lectures.
FROM THE HORSE’S MOUTH
Justice JB Pardiwala spoke on the topic ‘Vox Populi vs Rule of Law: Supreme Court of India’ at a symposium jointly organised by some prominent law universities. He did not hold his horses and spoke his heart out at the state of the judiciary. Some of the key points he made were: “Constitutional courts have always graciously accepted informed dissents and constructive criticisms, but their thresholds have always debarred the personalised, agenda-driven attacks on the judges. This is what is harming the judicial institution and lowering its dignity. A trial is essentially a process to be carried out by the courts, however, in the modern day context; trials by digital media are an undue interference in the process of justice dispensation, crossing that Lakshman Rekha many a time. In India, which still cannot be classified as a completely mature and informed democracy, social and digital media is employed frequently to politicise purely legal and constitutional issues.”
Talking about the Ayodhya dispute, the SC judge said: “It was essentially a land and a title dispute, bordering upon the title of a deity. However, by the time the final verdict came to be delivered, the issue attained political overtones…This is where the heart of any judicial proceedings before the constitutional court may disappear and the judges deciding the dispute may get a bit shaken which is antithetical to the rule of law. This is not healthy for the rule of law. Balancing the intent of the majority populace on one hand and meeting the demands of affirming the rule of law on the other is an arduous exercise. It requires extreme judicial craftsmanship to walk the tightrope between the two”.
INDEPENDENT JUDICIARY
It is extremely important for the nation to ponder on the speech made by the Hon’ble Apex Court Judge. It is the job of the state to protect its judges from unfair criticism. Media trials should not be allowed. Legal and constitutional issues should not be permitted to be politicised. No judge must ever face the dilemma of walking a tightrope between vox populi and the demand of affirming the rule of law. One way is to find a middle path between a ‘laissez faire’ social media and one that is gagged to restrict reasonable criticism.
The government’s initiative to launch self-regulating bodies to oversee media high-handedness is a step in the right direction. However, like all legislation, the challenge is in effective implementation and ensuring fairness and not abusing the law by turning a Nelson’s eye when judges say something or give verdicts that are politically inconvenient or hurt the agenda of the right-wing.
Martin Luther King rightly said: “The arc of the moral universe is long but it bends towards justice.” Let us resolve to ensure it does so all the time.
