By Anoop Bose
Pandit Jawaharlal Nehru once remarked, ‘Events crowd in upon us in such quick succession that we are apt to miss their true significance.’ This is particularly true of the unhealthy drift of events in the Supreme Court of India in recent times. The general reverence formerly paid to judges of the Supreme Court, is being systematically deflated. Pernicious attacks on the judiciary have become commonplace. Many are made by political parties and politicians. In fact, some politicians who are distinguished members of the Supreme Court Bar, see enormous mileage in that course. But even beyond politicians, the attacks have been made with impunity by the media, public commentators, academicians and members of the legal profession.
It is indeed lamentable that such personal and political attacks, led by politicians, politician lawyers and lawyers, have gone too far, nay crossed the ‘Lakshman Rekha’. They have sometimes been devised to undermine the fundamental independence of judges of the highest judiciary, even to attempt to daunt judges or to sway the outcome of cases and to depreciate their irrepressible impartiality and integrity. The unholy attempt to impeach our most respected Chief Justice of India has shocked the conscience of all right thinking people. The unconquerable power of democracy and the Rule of Law is being sought to be subverted and subjugated in a most sinister and malicious manner. Behind the façade of the impeachment drama, I see the evil hand of certain political parties and would venture to say that what some lawyers and lawyer politicians profess are a clever masquerade of the ideology and political stratagems of such political parties. There is a clearly perceptible link in the tides and currents of the wicked and deleterious attempts to dislodge the smooth functioning of the highest court of the land by means foul rather than fair.
In the United States, the most serious feature of the phenomenon has been the intensely political character of such attacks. Of particular concern has been the appearance of national political leaders, furtively looking around for themes for their electoral campaigns and selecting easy targets of the judiciary as a means of promoting themselves as uncompromising on law and order. The gravest attacks have been made by State politicians seeking to attack judges for decisions in criminal, including capital punishment cases, which tend to fawn strong public flames.
In this context, the eminent Birmingham lawyer and the 1996-1997 President of the American Bar Association, N. Lee Cooper once observed that the biggest challenge to the legal profession and justice system of the United States was ‘the continuing attack upon our federal judiciary’.
In the United Kingdom, from whose judiciary common law countries like India ultimately derive their model, the esteem paid to Her Majesty’s judges has lately begun to wane. Even The Times, once the bastion of the Establishment in Britain, not so long ago, demanded that a new Chief Justice be appointed who could ‘steer his profession away from the sound of gunfire’.
The attacks on the highest judiciary in the United States and the United Kingdom seem positively mild by comparison to those which have impaired the Australian judiciary in the recent past, particularly after the High Court of Australia, the nation’s federal supreme court, decided that the native title to land of the indigenous peoples of Australia was not, as a matter of law, necessarily extinguished by the pastoral leases granted by the Crown under the statute over vast areas of the Australian continent starting with the 19th century. Consequently, politicians in both Federal and State Parliaments fiercely competed with each other to attack the Court and especially the majority judges. The derogatory comments of politicians soon became the launching pad for academic and media castigation. The courts and the judges were labelled ‘bogus’, ‘pusillanimous and evasive’, guilty of ‘plunging Australia into the abyss’, purveyors of ‘intellectual dishonesty’, and a body ‘packed with feral judges’. These attacks eventually induced defences of the High Court of Australia by judges and retired judges, organised legal professionals, leading members of the Bar, members of parliament and others. One eminent professor warned of the consequences of such a prolonged confrontation between the Executive Government and the judiciary in Australia. Sir Francis Gerard Brennan, the monumental Chief Justice of Australia, was constrained to write a private letter to a former Deputy Prime Minister Tim Fischer to correct the erroneous assertion, made publicly, that the Court had deliberately dragged its feet in the pastoral leases case. This letter was promptly seized upon by journalists and was given widespread publicity. Later, at a series of legal conferences, the celebrated Chief Justice of Australia Sir Anthony Frank Mason spoke of the dangers of such sustained attacks on the judiciary. There was also the concern that such an unrelenting barrage of criticism and deprecation would, if unabated, dilute the community’s confidence in the courts and acceptance of court decisions.
For anyone wishing to view the index of American equivalents to the Australian catalogue of verbal fusillade hurled at the judiciary, a good starting point is an alarming article by Justice Joseph W Bellacosa of the New York State Court of Appeals. ‘Screwballs’ is the kindest of the epithets! Justice Bellacosa concludes – ‘Judges can take criticism, I am very confident, but whether the public interest can stand and absorb mal-informed, drum-beaten and heated attacks on the judicial process is worth pause and reflection.’
The internationally renowned jurist and the present President of Israel Reuven ‘Ruvi’ Rivlin once aptly asserted, ‘There is no, and cannot be, any situation in which we don’t respect the law and the judiciary. It is unacceptable to attack the courts; criticism is allowed, but attacks are not. It shakes the basis of our democracy.’ In a democratic society, some criticism of the judiciary is inevitable. This is especially so at a time when there is a growing understanding of the inescapable choices which are open to judges. It is credulous to expect that expounders will be silent about such choices. Just as decisions of the other branches of the government attract criticism, important and controversial decisions of the courts will inescapably do the same. Into this ambience has been impregnated the technology of the modern media of communications.
Unless there is a measure of restraint, the judicial institutions will be damaged and judicial integrity debilitated. The following features of the recent attacks on the judiciary have been distinctly intemperate. The attempt to intimidate them or to deflect them from fidelity to their oath of office to decide each case strictly on its merits. The unrelenting character and partisan political aspect of the attacks. Another feature of the barrage which should not pass unnoticed is the manner in which a particular woman judge was singled out for special attack before she was sworn in as the first lady judge of the Supreme Court who had been honoured with a well-deserved elevation straight from the Bar to the Bench. Targeting judges, identifiable because of their sex, race or other minority considerations, attacking them by over-simplified and inaccurate generalisations, caters to public prejudice.
Such conduct is unworthy of our country that indefatigably claims to uphold fundamental rights and the rule of law. In the face of the onslaught, and under fire, there are a few strategies available to the judiciary. It would be a reprehensible judicial response to cave in to the pressure and to do exactly what the politicians, editorialists or other powerful interests want. This would be a complete renunciation of the judicial function.
It therefore rests increasingly on the organised legal professionals to defend the judiciary, to correct blatant misinformation and to remind politicians, the media and others of the precious heritage of judicial neutrality and independence which we have enjoyed so proudly. In India, independence and conscientiousness are not ordinary features of the judiciary. Political attempts to undermine them should be spurned. Leaders of the legal profession, irrespective of their personal political leanings, should speak up where judges are unjustly assailed by politicians and others for performing their independent role. The increasingly adversative and belligerent nature of our public should not become contagious to the erosion of the balanced relationship of the judiciary with other branches of the government.
Legislators, members of the Executive Government and the judiciary should realise that each branch has its own distinct part to play, without which constitutional government would falter and fail. It was out of recognition of that danger that the people of England banished King James II from the shores of their ‘blessed plot’ in 1688, and prevailed upon his successors, William and Mary, to accept the Crown upon certain conditions. One of the conditions was judicial tenure and independence. When this condition was not extended equally to the British colonies, the colonists and settlers complained and, in America, rose in revolt. They instituted, at least in the federal judiciary of the United States, a firm guarantee of tenure and independence of the judiciary. We in India are the fortuitous beneficiaries of these two revolutions of 1688 and 1776.
It will be extremely difficult to redress the mischief that concerted attacks on the apex court and individual judges can cause. Such attacks often portray a fundamental lack of understanding of what judges do, what they do not do and why they exist in our form of democratic society. It should not be confined to law faculties and educational institutes. A renewed emphasis on the teaching of civics is the need of the hour. It must be an objective of the coming millennial that we disseminate the gravamen of our constitutions and engender an informed appreciation of the judiciary and its paramount importance for the sustenance of a peaceful and stable government.
Not unrealistic or blind faith. Not confidence wrenched by the threat of legal enforcement. Not admiration won by deft public relations and media hype. But a genuine desire to protect and preserve the rule of law and the dignity and majesty of the highest court of the world’s largest working democracy. In this context, it would not be out of place to mention that our first President Dr. Rajendra Prasad, himself an outstanding lawyer, described this ‘noble edifice’ as the ‘Temple of Justice’ on the occasion of the inauguration of the new Supreme Court building on 4th August,1958 in the august presence of Prime Minister Pandit Nehru, Vice President Dr.Sarvepalli Radhakrishnan, Chief Justice Sudhi Ranjan Das, his son-in-law Asoke Kumar Sen, the Union Law Minister and my senior and guru, Lok Sabha Speaker Ananthasayanam Ayyangar, and Attorney General Motilal Chimanlal Setalvad.
Here, I am irresistibly drawn to the words of the legendary American-Irish lawyer William Bourke Cockran – ‘In a society where there is democratic tolerance and freedom under the law, many kinds of evils will crop up, but give them a little time and they usually breed their own cure.’
Last but not the least, I am highly emboldened to commend to readers a stern Churchillian message for all those members of our legal fraternity and others who are hell bent upon derailing the wheels of the robust, hallowed institution of the Supreme Court with ulterior motive – ‘We will have no truce or parley with you, or the grisly gang who work your wicked will. You do your worst and we will do our best.’