Monday, December 5, 2022

Fallible Judges: What Nehru and Ambedkar had once said

Illustration: Courtesy Bar and Bench

No Supreme Court and no judiciary can stand in judgment over the sovereign will of Parliament. If we go wrong here and there, it can point it out, but in the ultimate analysis where, the future of the community is concerned, no judiciary can come in the way. And if it comes in the way, ultimately, the whole Constitution is a creature of Parliament.” – Pt. Jawahar Lal Nehru, First Prime Minister of India, in Constituent Assembly Debate, 18th May 1951

When times are bad and all the pillars on which human morality rests, are collapsing and crumbling, we, as common citizens want to have something to believe in. Essentially that is what an independent Judiciary is supposed to be: An immovable, unalterable reference point. However, there comes a time to understand that the Judiciary is not a monolith. It is an institution comprising of men, and when we speak of men, they are not uniform, not in their morality, not in their immorality.  Judiciary is not the only function that suffers this problem, but the executive can be sacked as it works under the supervision of the Legislature while the legislature itself can be voted out and replaced.

The judiciary often presumes itself to be neither accountable to any institution nor answerable to any institution under the democratic system. It has been claimed that this has been assured under the constitution.

Independence of the Judiciary is important for a healthy democracy. But then this independence of the judiciary is not only limited to the independence of the Judiciary as an institution, this extends to the independence of the judges. When we mention the independence of the Judges, it extends to the independence of the judges as persons not only from the pressures of the powerful, rather also the independence from human vices which may well extend to the desire to rule and to earn fame and glory in the minds and hearts of individual judges. This no law or legislation can guarantee. These are human failings and with all the embellishments, Judges too are human beings as Dr. Ambedkar had said in the Constituent Assembly.

This is the reason independence cannot be unmindful of the People’s will and mass emotions under the garb of independence, as Thomas Jefferson wrote –“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.”

In 1973, the Full Bench of the Supreme Court decided that under Article 368 while the Parliament had the right and full authority to amend the Constitution, it did not have the right to alter the basic nature of the Constitution. The decision came on April 24th, 1973 and on April 25th, the Parliament hit back when for the first time the convention was broken and Justice A. N. Ray was appointed as CJI superseding three senior Judges. The superseded judges resigned. These conflicts have brought forth the fallibility of both the Judiciary as well as of the Legislature. It also shows that the objective of having these institutions of nearly equal stature (although as Nehru contended in the Constituent Assembly, it is the Parliament as the instrument of the Will of People, which shall prevail) maintain a healthy system of checks and balances.

On the part of Parliament, when it fails, as during the Emergency, the people have a way of changing the regime. But, the same period of Emergency also points out that when the Judiciary fails, there is precious little which can be done, unless this false notion of an unhindered authority without any accountability is evaluated and challenged.

The key aspects of a healthy democracy with a well-designed legal system are that the law must be accessible to everyone, and secondly, that the law must not be arbitrary. It requires a serious amount of sagacity and fortitude on the part of judges to ensure that.

In the recent case of Nupur Sharma, the erstwhile BJP MP, against whom fanatics have not only filed cases across the country, rather they have also threatened violence against the lady whose fault is quoting Islamic scripture in the face of vile provocation of Muslim panelist in a TV debate, we found this fortitude and balance of mind missing.

On the back of this feigned affront to faith, fanatics trained in Pakistan organised the beheading of people merely for supporting Nupur seriously under an attack as a woman and as a human being. Amid the fear of her security, with elected Parliamentarians from Hyderabad vowing to hang her like Hypatia at the Town Square, she approached the SC bench of Honorable Justice J B Pardiwala and Justice Surya Kant seeking that all such identical cases be brought in a single Court in Delhi. This was the summary prayer, which, based on precedence and enormous risk Nupur faces should have been summarily accepted, or as the Judges wanted to bring home a point, been summarily rejected.

To be fair, the order denying her prayer was as summary. Unfortunately, the Judges felt as if they were attending some TV debate show, and decided to attack the very person, who under distress had approached the courts.

The Judges, went beyond the prayer made to them and decided to make an oral observation on the case about which the petitioner was not given an opportunity to present her case. The judges, in the oral observations, lashed out at Nupur, claiming that her loose tongue has caused riots all across the country. The judges were silent on the tongue of Dr. Rahmani who sparred with Nupur in the same debate where he denigrated Hindu Gods or a well-known AIMIM name who insisted that Muslims had the right to wash their feet in the water pool in which Hindus believe Shivling exists.

Instead of paving way for a healthy evaluation of the facts in a civilised court in the spirit of Free Speech in a democracy, the bench admonished Nupur, brutally crushing her right to not only have an opinion, rather to even have one and defend one. The oral observations did not make it to Judicial order, while exonerating the judges from any responsibility for making these reckless comments, it also allows the people to consider them without being concerned about contempt since these are not judicial remarks, but rather personal remarks. 

Way back in the early 20th Century, Judge John C Knox of the United States had warned about such tendency to vent a personal opinion while sitting in a responsible chair which would do better with rectitude than frivolous eloquence. He said: “If each judge is to be governed by his own convictions of what is right and otherwise, I fear that restraint upon judicial, rather than upon legislative action, will be demanded by the people, ever jealous of accumulation of power in the hands of a few”.

If honourable Judges have strong personal views and opinions, there are enough public functions the Judges get to attend almost every weekend where they tend to proclaim that amid a scene of total desperation in a nation that has gone to dogs, it is the judiciary that is only institution upholding democracy in India. A day after outraging huge emotions from the masses for the unhindered comments which in a way justified brutal beheadings of Hindus in Amravati and Udaipur with a cause-and-effect theory, one of the two Judges, Justice Pardiwala spoke at Justice HR Khanna Memorial National Symposium and in a way, dragged himself into the mud of mob opinion. The Supreme Court has always claimed to be the soul guardian of fundamental principles of the Constitution of India and the Honourable Justice picked this occasion to attack the very foundation of this democracy- the right to Free Speech when he said- “This is where digital and social media needs to be mandatorily regulated in the country to preserve the rule of law under our Constitution. ..especially worrisome when that section of people starts scrutinising the judicial process”.

In any democracy, the judiciary derives its power from those very people that the judge looks down on. Even in the Nupur Sharma case, the Judges attacked the media for debating a Sub-Judice case. What should the media in an independent, democratic nation debate on? A case from Emergency where Justice HR Khanna spoke as dissenting Judge? That would have been even more detrimental to the fragile ego and reputation of the respected judge who spoke at an event to honour Justice HR Khanna.

The irony would have been as pronounced as Rahul Gandhi’s intellect if people knew about what Justice Khanna stood for and what Justice Pardiwala is deduced with by many citizens.

Justice Khanna stood for the democratic rights and freedom of expression of common citizens during the Emergency. During the Emergency imposed by Indira Gandhi, when Citizens were being picked up without any recourse under the Constitutional guarantee, a plea was filed to consider all the Habeas Corpus pleas filed on behalf of all the citizens arrested under the jurisdiction of different courts as a single case in the Supreme Court (much like the Prayer made by Nupur Sharma). All judges except Justice Khanna contended that under Emergency Laws the arrests ignoring basic Constitutional rights stood suspended.

To this, Justice Khanna had famously responded that – “In purely formal sense, even organised mass murders under Nazi regime would be qualified as law.” This one would see is a democratic morality that stands head and shoulder above the Judge now speaking on the occasion of the Memorial of the tall figure of Justice HR Khanna. The case fell and the New York Times reported – “The submission of an independent judiciary to absolutist Government is virtually the last step in the destruction of a democratic society, and Indian Supreme Court’s decision appears close to surrender”.

It is only the people who still stood against the draconian fascist forces, together with the opposition during those darkest days of democracy, not even the judiciary could take a stand, except for the lone Judge. The same editorial in NYT dated 30th April, 1976 stated- “If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H. R. Khanna of the Supreme Court.”

Unfortunately, instead of erecting monuments to the memory of defenders of democracy like Justice Khanna, we are organising memorials where lectures are given by Judges in the tradition of Justice MH Beg, making a case for the curtailment of free speech to avoid fair criticism, who superseded Justice Khanna, leading to latter’s resignation. When someone like Justice H R Khanna could not move the Judges to acknowledge the significance of free speech in a democratic framework, who are we common citizens and lesser mortals. We can only hope that the glib-tongued Judge will be forgiving enough to overlook the blabbering of a common tax-payer, as I, in all the humility seek his indulgence and forgiveness with these lines from Dr Suess,

“I know, up on top you are seeing great sights,

But down here, at the bottom, we too should have Rights.”

(Saket Suryesh, an author and columnist, is a popular presence on social media for his penetrating views, often disarming. A few of his books include “गंजहों की गोष्ठी”, “The Revolutionary Bismil” and “हिंदी कथा संग्रह – “एक स्वर, सहस्त्र प्रतिध्वनियाँ”)

(Disclaimer: The opinions expressed within this article are the personal opinions of the author. Newsbred is not responsible for the accuracy, completeness, suitability, or validity of any information on this article. All information is provided on an as-is basis. The information, facts or opinions appearing in the article do not reflect the views of Newsbred and it does not assume any responsibility or liability for the same.)

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