It made everyone watch the court more closely, not just in appreciation but to scrutinise its actions.
The year 2018 has been remarkable for the Indian judiciary. Amidst the landmark rulings, retirements and controversies, one significant shift in the institution’s ways has been overlooked: how it handled criticism.
2018 saw the courts and judges being criticised the most in recent times and yet, surprisingly, the judiciary did not resort to its usual defence mechanism of issuing gag orders and initiating contempt of court cases.
To understand this shift, one needs to look at how the Supreme Court reacted to a similar challenge just a year ago. In an unprecedented move, seven senior-most judges of the SC held a sitting judge of a high court—justice CS Karnan guilty of contempt of court and sent him to jail.
However, this year, the same court reversed a high court verdict that held a Haryana advocate guilty of contempt of court. The top court even let off Bharatiya Janata Party (BJP) MP Manoj Tiwari, who had openly defied its orders.
The year of controversy
The year began with the historic press conference held by justices J Chelameswar, Ranjan Gogoi, Kurian Joseph and Madan Lokur on 12 January. While the four judges were themselves criticised heavily for breaking unwritten rules and speaking in public, their attempt to ‘save democracy’ was great fodder for open attacks on then chief justice Dipak Misra. The events eventually escalated into an attempt to impeach him.
Incidentally, all the four judges and then CJI Misra were on the bench that sent Karnan to jail for publicly defaming the judiciary.
Despite stray PILs asking for gag orders against reporting on the press conference and the subsequent impeachment proceedings, the SC did not take the bait.
While the former CJI did not openly talk about the internal rebellion, he allowed others to speak and sat patiently when the subject was brought up during his farewell.
However, days after he retired, justice Kurian Joseph gave many interviews and spoke candidly about Misra.
He told NDTV that there was a ‘perception’ that then CJI was being ‘remote-controlled’. When journalists later asked him how this perception came about, the judge denied having any evidence and simply said they all (the judges) ‘felt’ so.
That is basically saying that the accusation that the CJI was not acting independently was perhaps made without any concrete facts and could have been untrue. This statement, were it made by an ordinary citizen, would have landed him/her in serious trouble.
When judges themselves have questioned the motives and intent of their colleagues, they perhaps have no ground to stand to intervene when others question them.
Senior lawyer Indira Jaising tweeted a remark on the caste of judges who delivered the controversial SC/ST verdict this year.
Manoj Tiwari, as mentioned earlier, defied the court orders and refused to apologise.
Even for media houses that went a step further in accusing the four judges of acting at the behest of opposition parties, there have been no consequences. The media’s critical coverage of the Judge Loya case, the Rafale deal, the CJI’s impeachment and the medical college scam, could have been dealt with very differently, if the court went by precedent.
What prompted the change?
This shift in attitude this year is perhaps because the criticism first came from within—and was marked by numerical strength. An ordinary citizen, journalist or lawyer could simply tell the judge, “You started it first.”
Another explanation lies in the greater scrutiny the media put them under after the press conference. Senior judges turned to the media to ‘save the democracy’ and four months later, justice Gogoi delivered the 3rd annual Ramnath Goenka lecture where he called ‘noisy judges and independent journalists’ democracy’s first line of defence.
Till last year, the court was annoyed with journalists reporting their observations instantly. But when lawyers too took up that role this year—during the medical college hearing and at the Aadhaar hearings—the court saw the futility in attempting to restrict the media and instead allowed everyone to take their mobile phones inside the court.
Despite the constant brickbats in the newspapers this year, for the judiciary, the journalist has not been its adversary.
Where do you go from here?
Has the judiciary become more open to criticism? It seems so, but it could just as easily choose to act otherwise. Also, if it shrugs off criticism and continues on its path nonetheless, the tolerance is of no use.
The court is also looking to build on public engagement in an attempt to steer its image after this year’s events turned it into a den of scandal, gossip, and insidious whispers.
With grand plans of translating judgments into vernacular languages and putting up summaries of important rulings, the judiciary is looking at ways of connecting with the citizens. This signals that the court is taking at least some of the criticism seriously.
2018 has made everyone watch the court more closely, not just in appreciation for celebrated judgments but to scrutinise its actions. The change in 2018 also means that it will be difficult for the judiciary to go back to its old ways when it comes to honest criticism.
The only way forward is to be open, tolerant, inclusive and transparent.