Re­spect the guardians who guard our Con­sti­tu­tion

At­tribut­ing ex­tra­ne­ous mo­ti­va­tion to the de­ci­sions made by judges is an af­front to the Con­sti­tu­tion it­self

Hindustan Times (Ranchi) - - Comment - SID­HARTH LUTHRA

Ev­ery Mem­ber of Par­lia­ment, Mem­ber of Leg­isla­tive Assem­bly or any other func­tionary un­der the Con­sti­tu­tion has to swear an oath to bear “true faith and al­le­giance to the Con­sti­tu­tion”. The same Con­sti­tu­tion makes Supreme Court (SC) de­ci­sions bind­ing on all courts and au­thor­i­ties, and judg­ments of a high court on all courts and au­thor­i­ties within the state.

The Con­sti­tu­tion re­quires gov­ern­ment au­thor­i­ties “to act in aid of the Supreme Court”, which means that the gov­ern­ment must en­sure com­pli­ance of court or­ders and en­sure that so­ci­ety func­tions un­der the rule of law. While courts have the power to pun­ish for con­tempt, they rarely use that power.

Judges and courts speak only through their judg­ments (bar­ring rare in­ter­ac­tions with the press at pub­lic events). They too are re­quired to ad­here to the Con­sti­tu­tion and do their du­ties of de­cid­ing cases with­out fear, favour, af­fec­tion or ill will. But when ques­tions are raised and mo­tives at­trib­uted to their de­ci­sions on ex­tra­ne­ous con­sid­er­a­tions, it is not the in­di­vid­ual judge alone who is tar­geted but the le­gal and moral au­thor­ity of courts is ques­tioned. In fact, it’s an af­front to the Con­sti­tu­tion it­self. While other Con­sti­tu­tional func­tionar­ies can re­spond to such at­tacks in the pub­lic do­main, by the na­ture of their job, judges must main­tain si­lence, ex­cept when and if con­tempt power is used. And in­sti­tut­ing defama­tion pro­ceed­ings — crim­i­nal or civil — is not a rem­edy judges can prac­ti­cally use.

The op­po­si­tion to the SC’s 2018 Sabari­mala de­ci­sion, and re­cent tweets by jour­nal­ist and eco­nomic an­a­lyst S Gu­ru­murthy about the de­ci­sions of the Delhi high court in the Bhima Koregaon case (re­mand of Gau­tam Navlakha) led the high court to ini­ti­ate con­tempt pro­ceed­ings. As the mat­ter is sub ju­dice, I will not dwell on it, but such ex­am­ples raise a larger con­cern. How are those sworn to up­hold the Con­sti­tu­tion ques­tion­ing, at­tack­ing and den­i­grat­ing Con­sti­tu­tional in­sti­tu­tions such as courts? And to what end?

In the 2012 Sa­hara case, a five-judge bench of SC per­mit­ted gag or­ders as a pre­emp­tive mech­a­nism in pend­ing pro­ceed­ings as it was sen­si­tive to re­ports and com­ments lead­ing to a “real and sub­stan­tial risk of prej­u­dice to the proper ad­min­is­tra­tion of jus­tice” and “the fair­ness of trial”. But such or­ders are a rar­ity.

The 3rd Sched­ule of the Con­sti­tu­tion that pro­vides the form of oaths by con­sti­tu­tional func­tionar­ies re­quire can­di­dates to Par­lia­ment and state leg­is­la­tures to “up­hold the sovereignty and in­tegrity of In­dia”. Surely this in­cludes re­spect for the in­sti­tu­tions of gov­er­nance, in­clud­ing the courts.

We live in a time in which con­flict is com­mon be­tween, and within, in­sti­tu­tions. Faced with ad­min­is­tra­tive de­lays, peo­ple of­ten turn to the courts for re­lief. In such sit­u­a­tions, courts have re­sponded of­ten by di­rect­ing gov­ern­ments to per­form their statu­tory and con­sti­tu­tional du­ties. This has led to com­plaints of ju­di­cial over­reach and of cross­ing the ‘Lak­sh­man rekha’ (sa­cred line). Courts on oc­ca­sion give guide­lines in sit­u­a­tions in which ap­pro­pri­ate law doesn’t ex­ist — and till the time such leg­is­la­tion comes into force. Clas­sic ex­am­ples are the Vishaka guide­lines (1996) by the SC that even­tu­ally led to a law be­ing drafted in 2013 to curb sex­ual ha­rass­ment of women at the work place, and the PUCL case (1997), which made guide­lines for reg­u­lat­ing phone tap­ping, lead­ing to the amend­ment of Tele­graph rules. The grow­ing num­ber of PILs have seen judges ex­tend­ing their ju­ris­dic­tion into ar­eas of gov­er­nance.

Within the ranks of our elected rep­re­sen­ta­tives there is a push back, which is not al­ways through Con­sti­tu­tional meth­ods but in the con­ve­nient do­main of tele­vi­sion, so­cial or print me­dia — the spa­ces where judges can’t ven­ture. The re­cent in­ci­dent in­volv­ing Delhi MP, Manoj Ti­wari, is a case in point, where the Supreme Court did dep­re­cate his con­duct but stopped short of in­dict­ing him for con­tempt.

For the los­ing party, ad­verse court or­ders are never ac­cept­able. But be­fore cas­ti­gat­ing the ju­di­cial sys­tem or cast­ing un­due as­per­sions on judges, it must not be for­got­ten that the very same courts are the guardians of our rights and that come to the res­cue of the un­der­priv­i­leged, the dis­en­fran­chised and those ques­tion­ing gov­ern­ments’ ac­tions.

We can­not en­gen­der ei­ther opin­ions or val­ues which hit at the very heart of what we stand for. The Con­sti­tu­tion is not just a book; it is In­dia’s heart­beat and, more than that, our moral com­pass. Its guardians must there­fore be shown due re­spect be­cause in dis­re­spect­ing them, we are dis­re­spect­ing who ‘we the peo­ple’ are. It is time that the hold­ers of pub­lic of­fice who swear to up­hold the Con­sti­tu­tion re­visit their com­mit­ment and re­mem­ber their oath is on the Con­sti­tu­tion — and not to swear oaths at con­sti­tu­tional in­sti­tu­tions such as courts. Ac­count­abil­ity and pub­lic of­fice can­not be bereft of a re­spon­si­ble be­hav­iour. Sid­harth Luthra is se­nior ad­vo­cate, Supreme Court

The views ex­pressed are per­sonal

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