Challenge before courts

Vivek Katju
Ex-Secretary, Ministry of External Affairs

The Indian Supreme Court has stood for the rights of the citizens since the establishment of the republic. Its progressive judgments have, through the decades, enlarged the ambit of freedom, reduced discrimination in different aspects of national life and upheld constitutional values. The people have considered the court as a sentinel, ever vigilant to protect them against illegal actions, and as a guardian that has promoted their welfare. They have, therefore, reposed abundant trust and confidence in its conduct and work. But trust and confidence are depletable stocks; they require perpetual renewal. The court cannot be unaware of this simple truth.

The Supreme Court has to introspect on its own functioning and create audit mechanisms so that the popular respect it enjoys remains as firm as ever.

Some sections of the people have been disappointed with the court, in current times, for delays in hearing some matters and hearing some others expeditiously. The court cannot dismiss these people and their views as of no consequence even if it feels that they constitute a small minority and are ill-informed. This is especially so when those who have publicly voiced their opinions are not limited to one section alone. They include a well-regarded public intellectual, a 31-year-old stand-up comic, a retired member of the superior courts, and the family of one who has approached the court but has not found redress.

The court should not brush aside critical views even if some have been expressed intemperately and crudely. The people should, no doubt, articulate their opinions rationally, logically, respectfully and constructively and the court would be within its rights to deplore those who do not do so. Of course, the court also has the power to punish contempt and must not hesitate to use it if it concludes that unfair doubts are being raised deliberately and mischievously about its work to denigrate and sully its reputation; intentional distortion of the court's work would adversely impact the national good. However, before reaching that conclusion, it must always introspect if some of its own actions or inactions have led to the rise of perceptions in sections of public opinion.

Popular perceptions are rarely based on technicalities or fine legal points. Misperceptions arise if a well-placed person succeeds in getting a matter urgently heard and another not so fortunate does not. This has happened very recently. It is a fact that the well-placed person had come before the court after going to lower courts, while the other came directly to it. The court may wish that the other also goes to lower courts before coming before it, if required; but in doing so, especially in matters of public liberty, prudence requires that it instructs the lower courts to dispose of the matter urgently.

It would be wrong of the court to feel that as it is dispensing justice fairly and impartially, it does not have to concern itself if misperceptions arise in some sections of the public. It has to proactively clear misconceptions about the way it functions. One way is through its judgments and judicial orders, but other and innovative mechanisms have to be found to clear the air. This is especially because while the lawyers who appear before it and its officers know its processes, including why it hears some matters urgently and others which appear similar, it does not, the general public is ignorant about them. Ultimately, the court, like all institutions of the republic, exists for the people.

This point has acquired salience because of media reports that some cases relating to the personal liberty of detainees of and in J&K have not been heard. Nor have legal challenges to constitutional changes in J&K in August last year. The court would do well to clarify these issues. No institution can take the view that its conduct does not require clarification even if it is raising concerns in sections of the public. And at least one action of the court did require an explanation but none has ever been given. This relates to a former Chief Justice who decided to head a Bench which considered a matter in which he himself was involved. This was a radical departure from all past norms even if the CJ did not sign the Bench’s order.

The court would be cognisant that while the Constitution provides systems of accountability for the permanent and political executive as well as the legislative branch of the state, it does not do so for the superior judiciary. While individual judges can be removed through an impeachment process, such was their belief in the rectitude of the superior courts that the Constitution makers did not provide any system of audit or formal accountability for them. Has the time come for the superior judiciary to consider some ways to audit itself in some areas of its functions? While this would exclude its judicial work, it could include its administrative work and systems.

These suggestions are not an attempt at straitjacketing the court or the superior judiciary. Indeed, the Constitution specially empowers them to do all that is judicially necessary to do complete justice. In this context, they have to be allowed a vast degree of discretion, but the time has also come for the judges to evolve a periodic consensus at least in matters relating to personal liberty. If certain judgments on some laws impact on freedoms and go against the court's standard norms, then it must act to correct the effect of those judgments. Otherwise, the denial of bail by lower courts will become the norm even in respect of very old and infirm persons. The thinking or expressed views of these persons, howsoever wrong unless they have directly led to violence, cannot normally be a cause to keep them in prison.

All in all, the Supreme Court has to introspect on its own functioning and create audit mechanisms so that the popular respect it enjoys remains as firm as ever.