It was unprecedented but voices also were herd against the Supreme Court loaded with chastising tone. ‘THE WIRE’ has been at the forefront allowing its columns to be profusely used to castigate and chastise the judiciary. Prashant Bhushan dilated on the working of the SCI in an attempt to show that justice delivery is dogged by hiccups in his article captioned, ‘The Supreme Court Is Locked Down and Justice Are in ‘Emergency’ Care’. Two young lawyers fresh from the Law School, Harshitha Kasarla and Pradyuman Kaistha from NALSAR University of Law, Hyderabad and presently litigating in Delhi, published, ‘The Supreme Court Has Become an Unlikely Detractor of the Free Press’.

Jagdeep S. Chhokar a former professor, dean, and director in-charge of IIM, Ahmadabad in his article titled, ’Migrant Worker Crisis: The Supreme Court Has Abdicated All Responsibility’, laboriously takes pains to indict the Court. “How can we stop migrants from walking”, the Supreme Court is reported to have asked on May 15, 2020. The questions seemed quite incongruous on the face of it but bordered on being bizarre when seen in the light of a statement made by the solicitor general (SG) of India in the Supreme Court on March 31, 2020, that there is no person walking on the roads in an attempt to reach his/her home towns/villages. This was reportedly said while filing an affidavit on behalf of, none other than, the Union of India!”

Some other reportage of the same event also had SG Tushar Mehta saying, I have instructions to state that no one is now on the road. Anyone who was outside has been taken to the available shelters”. The same report also quoted him as having said, Home Secretary makes an official statement on record to say as of 11 AM on March 31, nobody is in the road. They have all been taken to the nearest shelter available”. This happened in the context of a petitioner seeking to mitigate the misery of thousands of migrants who were walking long distances on highways to go to their villages because there were no jobs, no place to stay, and no money to buy food, and no reliable means of transport. The three-judge bench said it was not possible for the court to monitor who is walking and who is not walking. The response of the SG was, of course, self-assuring. He said, “States are providing interstate transport. But if people get angry and start on foot instead of waiting for the transport to be provided nothing can be done. We can only request that people should not walk. Using force to stop them would be counterproductive.” While the SG argued that using force “would be counterproductive”, the chief minister of the most populous state of the country directed district administrations to form special police teams to stop migrant workers from travelling on their own. The bench also indulged in what, under normal circumstances, would be considered frivolous talk, usually not expected in such a setting when one of the judges asked the petitioner whether he was willing to go and implement government directives if the Court grants him special passes.

When the issue of 16 migrants being run over by a goods train while they were sleeping on the railway tracks, on May 8, was raised, the bench said, “How can anybody stop this when they sleep on railway tracks?” Markandey Katju, a former judge, Supreme Court of India wrote about the direction of the Court, 25/May/2020 ‘The Supreme Court Must Resume its Role of Protector of the Rights of the People’. In his article, he wrote, “I recently spoke on the telephone to a senior sitting judge of the Supreme Court and told him that the public perception of the vast majority of Indian citizens is that the Supreme Court, of late, has largely abdicated its solemn duty of upholding the constitution in its true spirit and protecting the liberties of the people.

Though while a sitting judge I was much senior to the judge I spoke to, I said that since I have retired I am no longer a judge, but a member of the public against political and executive high handedness, arbitrariness, and illegalities. Instead, it seems to have largely surrendered before the Government, whose bidding it is often doing. I told him that after the present lockdown is over, he should arrange for a meeting between me and some sitting judges of the Supreme Court (at his residence or elsewhere) in which I would like to present my views. He agreed to this.”

In a weekly column, ‘From the Readers’, Editor of THE HINDU, A S PANEERSELVAM, holding that “Empathy is the cornerstone of journalism” made some observations on the subject, which unfortunately have gone on a tangent and gave focus to the philosophy of journalism. Titled as

‘A week in which a reporter and the Solicitor General failed.’ the editor advances the case for successful journalism at the cost of the credibility of the Supreme Court proceedings and the relevance of the submissions of the Solicitor General.

“Bearing witness Meanwhile, the Solicitor General of India added three more terms to the growing list of derogatory epithets to describe professionals committed to informing the citizenry. On May 28, during the Supreme Court hearing of the Suo Motu case regarding the plight of migrant labourers, Solicitor General Tushar Mehta referred to journalists as “vultures”, “prophets of doom”, and“armchair intellectuals”. Apart from making the stunning observations, he also gave a terribly skewed picture of the celebrated photojournalist, Kevin Carter. Carter documented Apartheid excesses in South Africa and the famine in different parts of the continent, among other things. Instead of looking at credible sources of information to understand Carter’s contributions to journalism, his moral and ethical dilemmas, and his trauma of covering tragedy after tragedy in Africa, Mr Mehta chose to borrow from a WhatsApp forward about the photojournalist. My column, “Lens of truth, the lens of empathy” (April 4, 2016), dealt with the tragic life of the South African photographer. Fact-checking organizations such as AltNews exposed how the Solicitor General cited a false WhatsApp forward as a fact in the apex court. 

Mr Mehta should know that journalism has three inalienable components: bearing witness, empathy or humanity, and holding power to account. Photojournalism is one of the finest tools to bear witness because it brings home the cruel nature of our reality, shakes a society out of its deep slumber, and forces those in power to act and redeem themselves. In fact, the Suo Motu case regarding the plight of India’s migrant workers would not have happened if photojournalists were not witnessed in their long and painful journey.”

Now a lawyer, again through, The Wire, comes to discipline the Supreme Court with a write-up, ‘The Supreme Court and the Need for Judicial Discipline’, by Sarim Naved. He takes three cases filed under Article 32 of the Constitution and laments that the Court had different responses; all were regarding multiple FIRs lodged on similar transactions against the petitioners in their respective cases; facts and places are different. But the Judges are‘indisciplined’ enough to deal with the cases differently. I cannot call it silly, or unreasonable because the writer prescribes some ‘simple’ solutions to the lack of discipline of the judges. But one small point is that in Public Law jurisprudence where the doctrine of judicial precedent rules the ground, it is to be understood that there are no formula or something like Euclid’s theorem to decide cases. Judicial discretion is not to be structured or confined. No two judges would be of the same view on all issues. As BN Cardozo, the author of ‘The Nature of the Judicial Process’ and a former judge of the US Supreme Court, observed, ultimately it is the personality of the judge that matters. No straight jacket formula. The writer takes us to the US Supreme Court and waxes eloquent on the heavenly things there!

Possible solutions

“The solutions here are not easy to implement. What is a structural problem that cannot be addressed without changing the structure? There has long been a debate about converting the Supreme Court of India into a US-style, exclusive constitutional court with a fixed complement of judges hearing every case. There would be a lesser number of judges in such a Supreme Court, but all would hear each case. According to this idea, there would be a separate Court of Appeals to hear appeals, taking away the appellate jurisdiction of the Supreme Court. The advantage of this idea is that it would result in a lot more stability in terms of legal interpretation and the application of the law. It would also go a long way in settling debates about the ‘master of the roster’ system and interminable debates about the composition of benches. Another possible answer would be a strict Restatement of Laws issued by the Supreme Court which binds its own judges.

It is clear that the Supreme Court, as envisaged in the Constitution, was not designed to deal with the volume of work that it is currently asked to handle. From the slim law reports of the 1950s which include all the reported judgments of the Supreme Court for a year, we now receive bulky volumes running into an increasing number of pages every year. The organization and structure of the court require a rethink. This is an initiative that, perhaps, ought to be initiated by the Supreme Court itself. Let the Supreme Court by the court that lays down binding interpretations of the law. Let other Courts then implement this interpretation.”

There is no limit for the casual and cavalier manner in which qualified and knowledgeable people in the profession, in the media and taking a cue from them, a section of the general public( they are also highly qualified people like Professors, Retired Civil Servants, Social workers, Top Defence Personnel(rtd.), men of letters, artists, film people and perhaps a lot of other groups except the ordinary citizens who have total faith in the Judiciary) have taken upon themselves the role of law reformers and judicial reformers on a self-appointed basis and the result is there for all to see. They do not want to cleanse the Executive; they do not want to sanitize the Legislature- they are focussed on ‘taming’ the judges and trimming the Courts. I do not know whether they are aware of the fact that they can do these things because the Supreme Court has driven rule of law prevalent here. But the harangue goes on; and will go on; till on an exemplary basis, they are given appropriate counselling and gentle “judicial” pat on the shoulder to call quits. Otherwise, the common man, “ the man on the “Clapham Omnibus” will be confused greatly and that would not be good for the rule of law. These seniors who are out to sermon, preach, and teach the judges as to how to do the latter’ job would be eating into the vitals of Constitutional institutions. 

One note by way of a postscript

 The very body language of some of the lawyers and the manner of delivery of the submissions and the choice of words to underline their views and in the course of which, perchance, to taunt and tarnish national leaders, judges, and others who do not toe their lines is objectionable. They cry aloud, they ask the court too many questions, they have no doubt about what they say and the opposite side is to be as mild as mildness can and the judges totally credulous to accept their words. The noise they make is aimed at somewhere else, someone else and something else; some of them are practising politicians too. But they will not talk like this in front of the topmost person of their political party whether it is a man or a woman! So it is Judiciary that requires urgent discipline and improvement, they say!

“ Where ignorance is bliss,  It is folly to be wise.”

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