Opinion Judges cannot be shielded from citizens’ questions
🔴 Rekha Sharma writes: As consumers of justice, consumers have right to answers, accountability from judiciary
Recently, the Chief Justice of India, in his own mild way, protested against the attack on judges. (Representational) 
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Since the Supreme Court’s highly controversial judgment in the ADM Jabalpur case in 1976, whereby it was held that during the Emergency the right to life and personal liberty of a citizen under Article 21 of the Constitution would remain suspended, the judiciary has not only come under critical scrutiny but also under attack. The judgment has since been overruled, but its reversal goes to prove the fact that judges are not infallible, and that “to err is human”. Recently, the Chief Justice of India, in his own mild way, protested against the attack on judges. One can understand his pain and agony, but he too knows that judges do not, and should not live in ivory towers. They sit in open court, speak out under the public gaze and deliver judgments that come into the public domain. As the judiciary is one of the pillars of democracy, and the Constitution entrusts judges with the task of protecting the constitutional rights of the people, especially the right to life and liberty, the consumer of justice has every right, and would be fully justified in critically examining, and commenting upon each and every word of the judges spoken or written, howsoever unpalatable it may be. Of course, none has the right to make personal attacks on judges.
It appears that it is in the above spirit that the other day, Congress MP Shashi Tharoor, speaking in Parliament on the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill said that the judiciary had failed to stem the tide of militant majoritarianism. He alleged that the “judiciary’s inaction almost always favours those in power”. He further alleged that “by its continued inaction, the court has not only allowed the government’s sins against citizens to go unpunished, but led some critics to ask whether the Supreme Court should also be considered an accomplice to the violation of rights granted by the Constitution.” In the same debate, a Trinamool MP criticised the transfer of former Madras High Court Chief Justice Sanjib Banerjee as the Chief Justice of Meghalaya High Court.
One may or may not agree with the bluntness with which Tharoor spoke about the judiciary. However, what cannot be denied is that he has raised pertinent questions, and has brought out the glaring failings of the judiciary in matters concerning the protection of the constitutional rights of citizens. Otherwise, why is it that matters pertaining to the abrogation of Article 370 of the Constitution, the Citizenship Amendment Act, electoral bonds, and many petitions under the preventive detention laws are lying in cold storage? These are cases that are of grave national importance, and concern the life and liberty of citizens. And also, why are some bail applications taken up in a day or two, while others remain pending for months? In the words of Lord Mansfield, “let justice be done though heavens fall”.
And, as regards the functioning of the collegium system, is it not a fact that judges are transferred without any seeming justification, and in some cases re-transferred, justifying neither their initial transfer nor the re-transfer? Is it also not a fact that some elevations raise eyebrows, while some are ignored, seemingly under some political diktat? It not only causes pain to the victim, but it also brings into disrepute the functioning of the entire system. Should the collegium not be more transparent than it has been in the past in the matter of the elevation and transfers of judges? After all, as a consumer of justice, the citizen has a right to know.
The present Chief Justice has behind him the sad legacy of his four predecessors. Days before he was sworn in, on April 24, he sent a clear message in a public address that the legal community was obliged to protect vulnerable sections of society from the human rights atrocities perpetrated by the State or any anti-social element. By so speaking, he raised the bar of people’s expectations from the Supreme Court. One must appreciate his brave effort to treat the blemishes he has inherited. Challenges still face him. But given the will, none is insurmountable. He still has the time, but it is passing quickly, and he has miles to go before he demits office.
This column first appeared in the print edition on December 13, 2021 under the title ‘Just expectations.’ The writer is a former judge of the Delhi High Court
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