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Today marks the anniversary of the unprecedented press conference, when four Judges of the Supreme Court, constituting the then Collegium, bemoaned that our “democracy may be in danger.” As one reflects on the judicial pronouncements from the country’s highest Constitutional Court in the past year, one can safely say that the judiciary has safeguarded our democracy from the perils it faced and has taken considerable affirmative action to “discharge its debt” and “responsibility to the nation.” The very same burden those senior Judges felt on that nippy winter morning last January.
Several landmark pronouncements from the Supreme Court in 2018 have tempered the naysayers, and much has been done to bolster people’s faith in our Courts and in those who interpret our Constitution. But like with everything, the last twelve months have also witnessed many questions being raised against the institution, the bugle call being to achieve greater transparency in the decision making process and functioning of our Courts. First, let’s take note of some landmark decisions which expanded our liberties and protected our freedom in keeping with our Constitutional scheme.
The Supreme Court declared as unconstitutional the infamous Section 377 and accordingly decriminalized consensual same-sex relationships. By doing so, the Court not only indubitably unshackled the impacted Indian citizens from the tethers of the draconian and colonial Victorian-era law, but also the world at large by highlighting India’s inherent inclusiveness and acceptance, which had long been absent in the growing atmosphere of intolerance which has descended upon the populace in recent times.
Important Decisions by the Supreme Court in 2018
The Sabarimala judgment broke the cultural and societal gender stereotypes and patriarchy as a whole and places women on equal footing with men in matters of religion. While a welcome decision, it has also been critiqued for Courts interfering in essential religious practices. Some sections of society believe that ‘equality’ does not necessarily mean ‘sameness’ and that matters of belief should be left out of the realm of ‘constitutional morality.’ Challenges in implementation of this verdict led to political brickbats being exchanged and also issues of law and order. Till date, only a few women have entered the sanctum sanctorum but it is still a giant leap to further the cause of women’s empowerment in our country.
Another feather in the cap of the judiciary towards gender justice jurisprudence in India was the striking down of the penal provision which criminalized adultery. The Supreme Court opined that the adultery law in India was a patriarchal construct which made a wife the property of her husband and barred the woman from making her own decisions.
And there was Aadhaar, which is one of the most significant decisions from last year and undoubtedly one with countrywide impact. After the second longest hearing in its history, the Supreme Court struck down the provision mandating Aadhaar to avail of private services like mobile numbers and bank accounts, and reasserted itself as the watch dog of the of the privacy of us citizens.
Let’s not forgot, all the above was achieved alongside a clear rift between the then Chief Justice and the members of the Collegium, which is also believed to have led to other divisions between the Supremes. It happened simultaneously when issues had been raised as regards the selection of ‘preferential benches’ to hear ‘sensitive’ matters with far-reaching consequences. 2018 also witnessed misguided efforts to impeach the then Chief Justice and some rather unpleasant incidents during the Justice Loya hearing. It was also the year when the Supreme Court allowed non-accredited journalists to carry their mobile phones into the Courtroom, thereby permitting the reprehensible practice of live-tweeting from Court and when it approved the live-streaming of certain case hearings.
But last year’s press conference also appears to have left in its remnants the unprecedented and largely unwelcome practice of retiring Judges addressing the media. For the record, there is no rule which prevents retired Judges from going to the press. But then almost all functioning of the judiciary and Judges in our Country is based on the principle of self-restraint. And upon inquiry from those who have spent many decades at the Bar, one notes that per established convention, almost no, if only a few, Judges have addressed the media upon their retirement. That didn’t prevent a senior Judge from last year’s press conference, immediately upon retiring, from giving an exclusive interview to a leading news channel which proclaimed him as one of the “newsmakers of the year.”
While it was his prerogative to give that interview, one wonders whether, by going on air, his remarks helped alleviate people’s concerns in the functioning of our judicial institutions or whether it only further added to the speculation? Then a few weeks ago, after the Rafale judgment, while not wanting to comment on sub-judice matters, the same Judge nevertheless stated that “if I [he] was there, I [he] wouldn’t have resorted to the seal cover procedure” in the matter.
While the practice of sealed covers does need to be banished, do not such speculative and personal opinions militate against the standards of judicial propriety? Do such remarks not undermine the majesty of the Court, as also inflict a blow on the public perception of our Judiciary?
Following suit, another Judge who was also part of last year’s press conference, upon his retirement addressed a large gathering of the media and also went to a TV studio to say that he believed that during the tenure of the former Chief Justice, “things were being controlled from the outside.” It is anyone’s guess on where and who was this controlling force on the outside, but there appears consensus among senior members of the Bar that this new trends of retired Judges addressing the press needs to be nipped in the bud as it has the potential of causing greater harm to the independent and fair functioning of the judiciary than the oblique good it seeks to achieve.
The public is entitled to know about the functioning of our judiciary and its leading decisions, as it helps in shaping people’s rights and consequently shaping our democracy. But it’s discomforting when the judiciary, and not the cases becomes the news! In recent times, on any given day, most newspapers will have more than a couple of front-page stories about the judiciary, where individual Judges are named for the pronouncements they make. Upon inquiry, one has learnt that past practice never named individual judges as a judgment is of the Court and not so much of its author unless of course a dissent. It may be wise to revert to past practices.
In conclusion, a lot has transpired and much good has come about in the Supreme Court and the overall functioning of our judiciary from the momentous day of last year’s press conference. However, given the cultural crucible that India is, from the embers of that fire other concerns have arisen, which have the potential to become blazing infernos. Bigger strides need to be taken to achieve greater transparency in the administration of justice and the appointment of Judges. A concerted effort is also required to prevent the judiciary from the threats within. Every effort needs to be made to insulate the judiciary from the pulls and pressures of politics and the urge for publicity.
This is more so as we enter an election year, where the Supreme Court is bound to see a spurt in many political cases being filed. As a senior jurist said some decades ago “the Court has built around itself (step by step and case by case) an almost impregnable fortress of judicial inviolability.” The Court must regain any space it may have subconsciously conceded!
Satvik Varma is a counsel based in New Delhi. He can be reached at his Twitter handle @satvikvarma