 "Courts have become spectator sports but can't degenerate into public brawls")
In my early days as a lawyer, the corridors and the canteen of the Supreme Court were the only places where judgments and judges got judged. I still remember with delight a senior counsel’s imitation of the Late Mr R K Garg’s ticking off judges, whose response in court he did not find particularly judicious. He would lisp, “…your lordships similarly held so in ADM Jabalpur and thereafter none of your lordships could show your face in public again”. Mr Garg was, of course, referring to the Supreme Court’s terrible 1976 judgement that a citizen’s right to life itself could be suspended during a declared period of emergency.
Not many people could be as fearless in the face of judges as Mr Garg was. Equally, judges and lawyers of those days, even the most media-savvy of them, rarely merited more than a few paragraphs on an inside page of a newspaper. Today, however, the advent of 24x7 news channels, continual live-tweeting and YouTubed webcasting of proceedings have made judges and lawyers participants in a judicial content-creating version of Bigg Boss.
These days, I regularly get videos on WhatsApp of some judge or the other pulling up a lawyer, cracking a witticism or behaving particularly officiously. There is much greater awareness and public participation in the judicial arena, even in matters that do not really concern the public. While lawyers who end up ensnared in video disasters have no option but to grin and bear it, judges sometimes do not have even that latitude. Judging requires certain pomp and circumstance that, when destroyed, leads to a withering away of the willing suspension of disbelief in the oracular wisdom of the judicial deus ex machina.
This kind of thinking is reflected in a recent speech, where Justice JB Pardiwala of the Supreme Court bemoaned, “Social and digital media is primarily resorted to expressing personalised opinions more against the judges, rather than a constructive critical appraisal of their judgments. This is what is harming the judicial institution and lowering its dignity. The remedy of judgments does not lie with social media but with higher courts in the hierarchy. Judges never speak through their tongue, only through their judgments. In India, which cannot be defined as a completely mature or defined democracy, social media is employed frequently to politicise purely legal and constitutional issues”. Here, Justice Pardiwala may have been responding to the tremendous amount of media criticism and social media trolling that he and Justice Suryakant have been subjected to after their comments while hearing Nupur Sharma’s petition to consolidate cases against her. But judges of longer standing seem to think that ignoring ill-informed or agenda-driven criticism is part of the job.
Chief Justice NV Ramana recently addressed a meeting in San Francisco and said, "…we still haven't learnt to appreciate wholly the roles and responsibilities assigned by the Constitution to each institution. The party in power believes that every governmental action is entitled to judicial endorsement. The parties in opposition expect the judiciary to advance their political positions and causes. This flawed thinking of all hues flourishes in the absence of proper understanding among people about the Constitution and the functioning of democratic institutions. It is the vigorously promoted ignorance among the general public which is coming to the aid of such forces whose only aim is to run down the only independent organ, the judiciary. Let me make it clear. We are answerable to the Constitution and Constitution alone.”
Both these extra-judicial utterances reveal a particular sensitivity to public scrutiny and criticism, hitherto unknown in the constitutional courts. The classical position was enunciated by Lord Atkin, who in 1936 ruled that “Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men." The problem today is that ordinary men and women can be outspoken, ill-informed, and just plain wrong. Still, their disrespectful and contemptuous commentary on judicial matters can be algorithmically amplified through social media campaigns and later repeated on television until it is seared into public consciousness.
John Roberts, Chief Justice of the Supreme Court of the United States, memorably described a judge’s job in baseball terms saying, “it's my job to call balls and strikes, and not to pitch or bat.” Taking that analogy further, I submit that a crowd watching a baseball or cricket game is entitled to boo or cheer the players, rejoice, or mourn the result. The crowd cannot be allowed to invade the pitch, interrupt the game, or overrule the umpires. In the media age, courts may also have become spectator sports but cannot be allowed to degenerate into public brawls.
The author is a lawyer who practises in the Supreme Court.