It is good that the CJI has reminded a foreign audience abroad that the judiciary is committed to the constitution and its values,and not to any government creating havoc by flaunting its banner.In another recent function here a Supreme Court Judge has expressed his unhappiness at the media criticism of the different verdicts of the courts in different cases. He is reported to have asked pointedly:Are the judiciary to attend to the laws or to the media?Any personal criticism of the judges is unwelcome and must be condemned.But individual verdicts are of course a different matter.This comes into the scope of permissible freedom of expression and it happens these verdicts are results of study of particular cases in the light of the laws concerned and the opposite pleas of parties in dispute over them.
If and when the cases involve the cherished fundamental freedoms,and the verdicts may impact future applications of such laws,the public have reasons to be concerned and interested in them.Therefore debates on them are not only unavoidable but also in some cases could be of interest to the judges themselves.After all life is a long process of education and we are all students in this school.
The CJI’s opinion again reflects a sane and wholesome doctrine,but we humbly submit that it is vulnerable to ambiguity.A literal interpretation of the constitution may leave the field free for a rampaging government to pursue policies and pass laws that ultimately pose a threat to the constitution.It may adopt policies in order to pass laws under their umbrella,in which case the policies must be scrutinized that result in such dangerous laws.
We submit that we are today living under such a regime,and its policies packaged with sugary high-flown language cause serious harm to the body politic the constitution constitutes.There are also matters that are taking place outside a radar with pre-selected range,such as the rampant lodging of false or baseless charges by investigative agencies of the state keeping totally innocent people behind bars and depriving them of their fundamental rights for years together.Often the cases lead to no definite result,or the charges all prove hollow and cooked up.Often an honest clear look by the agency could clear the fog and the victim released,but when there is the miasma of a concocted conspiracy both the agency and its victims are led on a wild goose chase lasting years.Are these at all instances of Justice,or sheer wilful tyranny and waste of valuable public resources.
It is of course possible that the honorable judge has in mind trolls by admirers of Nupur Sarma secure in their conviction that no harm will come to them.But the general nature of his reaction might give the impression that he is also targeting decent people who are genuinely disturbed by the peril to authentic liberal and democratic values in the present environment.We have already seen how public reaction against hate speech on social media had been used by the Centre to criminalize passionate but just criticism of the wolf packs that inspire hate and violence.Hence it is essential that the truth and the chaff are clearly defined by one of the last organs of state not to have been fully co-opted by an invasive political force out to subvert democracy and found a new order under its guise.
The observations on Nupur Sarma included the explicit hint that Nupur Sarma deserved to be put behind bars,and the Delhi police does not seem to be as eager to take it up as against that on Teesta Setalvad made by a different bench.Which incidentally makes a mockery of the constitutional commitment to equal treatment of all expecting justice.
There are other concerns gnawing on our minds.For example the SC directed enquiry on the government’s use of Pegasus military grade Spyware on the citizens.Some interim orders would have been welcome since it is likely that once the CJI retires in July,the next CJI might not consider it urgent unfinished business and pursue it energetically.The hopes raised by the interim orders on the infamous sedition law may turn into cold embers if the CJI does not pursue it to its logical conclusion during his term in office.The cases regarding the Article 370 hinge of the important constitutional question as to whether the Centre has the power to downgrade a state of the Union to a union territory with the mere consent of the Governor appointed by it while the legislature is kept in sedation.While it does not seem that such grave issues can be addressed fruitfully by the present CJI during the brief time left of his innings,he can reasonably be expected to give things such a turn as might render their settlement possible in near future.God forbid if these vital issues are kept hanging until they recede into oblivion.
Such are some of the vital questions that demand settlement without delay through rigorous and impartial examination of the facts in hand.And all these are deeply intertwined with the current confusion about which some of their retired colleagues themselves are expressing serious anxiety.How can responsible opinion may be so divided and heated unless there is widespread genuine anxiety about crisis in our system of justice,which is itself a sign of the profound existential turmoil within our democracy and our state.
Hiren Gohain is a political commentator