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 ST (Jaipur) - - 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


The Con­sti­tu­tion is not just a book; it is the coun­try’s heart­beat and, more than that, our moral com­pass

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