Of late, concerns have been expressed about the Supreme Court failing to perform its dharma. Take, for instance, the anguish expressed by Justices Madan Lokur and Deepak Gupta, who have distinguished themselves as judges. They have virtually indicted the Supreme Court.
In an interview to this newspaper (IE, May 8), Justice Gupta, who recently retired from the SC, lamented the manner in which former CJI Ranjan Gogoi conducted himself after allegations of sexual harassment were levelled against him — by presiding over the bench, and then, not signing the order purported to have been passed by the bench. According to Justice Gupta, the Supreme Court has not come out better after the incident.
The learned judge also spoke of the priority — or the lack of it — being accorded to certain cases in the matter of listing. He said that he has seen cases involving big money and fancy law firms being listed in four weeks, while those involving junior lawyers are not listed even after six months. The learned judge’s arguments have been strengthened by the fact that undue haste was shown in listing TV anchor Arnab Goswami’s case, while more important cases involving fundamental rights — habeas corpus petitions for example — are crying out for early hearing.
Recently, the Supreme Court refused to hear social activist Harsh Mander’s plea seeking registration of FIRs against certain political leaders who made hate speeches which allegedly led to communal violence in Delhi, early this year. The court refused to hear Mander or his counsel after the solicitor general, who was representing the Delhi Police, pointed to a video recording in which the social activist had remarked that justice could only be got on the streets, and not from the apex court or Parliament. It reportedly remarked: “If this is what you feel about the Supreme Court, then, we have to decide what to do with you.”
Significantly, Mander has denied having instigated anyone, but the Court, on the mere assertion of the solicitor general, refused to hear him — thus trampling the right of a citizen to be heard before he is condemned. In any case, the court forgot that matters cannot, and should never, be decided on the basis of just one version.
In a more recent case, concerning migrant labour, the court reportedly slammed senior advocate Prashant Bhushan for maligning and insulting the judiciary. It asked Bhushan why should he be heard when he does not have any faith in the court. The plight of the migrant labour needed urgent attention — not who said what.
In both the cases, petitioners were exercising their constitutional right to seek redressal of their grievances against the State in public interest. But even if we assume that they were appearing as professionals, Mander and Bhushan were entitled to a hearing — no matter what they said in the past about the court or the judges. It is their fundamental right, and no one can deprive them of that right — not even the court.
However, litigants and lawyers — who are officers of the court — should not attribute motives to judges in case of an unfavourable judgment. They should not act in a manner which brings the courts into disrepute or undermines the confidence of the public in the judiciary. Let us not forget that the courts are the only shield and hope of citizens against the tyranny of the state, so it is the duty of the lawyers to see that the courts are not undermined.
Judges should be large-hearted and not get unduly perturbed by criticism, even though, at times, criticism may be over the top. Not very long ago, in a ruling on Brexit, the British Supreme Court held that parliament, and not the prime minister, had the prerogative to trigger Article 50 to start the process of the country’s exit from the EU. British newspapers reacted to the ruling by calling the judges, “the enemies of the people”. The judges remained unruffled.
Let me end with Lord Atkin’s famous quote: “Justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and the respectful, even though outspoken, comments of the ordinary man.”
This article appeared in the print edition of May 14, 2020, under the title ‘The right to be heard’. The writer is a former judge of the Delhi High Court.
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