Respect the guardians who guard our Constitution
Attributing extraneous motivation to the decisions made by judges is an affront to the Constitution itself
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