Grading the Court: Where to draw the line?

A recent article in The Wire (28th May), by retired Supreme Court judge, Justice Madan B. Lokur, appears to have elicited strong, negative reactions from two eminent legal voices - a sitting Supreme Court judge, Justice Sanjay Kishan Kaul and Harish Salve, Senior Advocate and Queen's Counsel. Both have indirectly referred to Justice Lokur's article, as crossing a line in its criticism of the Supreme Court. I found aspects of their respective remarks on the permissible contours of criticism of the court disquieting, not least because of the importance that will rightfully be attached to the opinions of such well-regarded jurists.

Justice Lokur begins his article by making reference to the Supreme Court taking suo motu cognizance on 26th May, of the problems and miseries of migrant labourers stranded in different parts of the country. He poses the following questions:

"Will some good come out of this? Better late than never? Is it a face-saving attempt to atone for past follies? Is it an indictment of the state that has dealt (or not dealt) with the tragedy? You be the judge."

He proceeds to catalogue various petitions filed in the Supreme Court in March and April, in public interest, highlighting the plight of migrant labourers and seeking relief for them. The article critically examines the status report filed by the central government on 31st March, in the first of such petitions by a practicing lawyer, Alakh Alok Srivastava. Justice Lokur then objects to the Supreme Court's ready acceptance of what it was told on behalf of the government in the following terms:

"True, there was nothing on March 31 to doubt the correctness of the statement that no person was walking on the roads at 11.00 am but is the court so naïve as to seriously believe such a statement?..... Subsequent hearings in the case on April 3 and 7 confirm that as on March 31, the Supreme Court did not even bother to question the statement made or hold the Central government to account, despite more than enough evidence available everywhere. Newspaper and media reports were ignored."

What appears to have caused the most consternation, inviting a firm rebuke from both Justice Kaul and Mr. Salve, is the negative grading of the Supreme Court by Justice Lokur. Here is the context within the article where this aspect finds mention:

"It is not that the court was expected to disbelieve or distrust the establishment represented by no less than the solicitor general, the court was only required to ensure through the principle of continuing mandamus that the solemn assurances given to it are faithfully carried out. Sorry, the court completely failed in this – forgot what public interest litigation is all about. If a grading is to be given, it deserves an F." (emphasis added)

The tone and tenor continues largely as reflected in the above extracts. There is no gainsaying that the article is at no point remotely abusive or personal in criticising any particular judge. Justice Lokur laments the lack of interest and compassion shown by the court and its failure "to be more proactive and assertive keeping the interest and constitutional rights of the hapless people in mind." He argues that the court could not have been oblivious to the scale of the unfolding migrant crisis in April, not merely on account of what was readily available in the public domain, but also through further petitions moved before the court, including by Harsh Mander and Anjali Bhardwaj, two social activists, and on account of a further status report filed by the government.

He points out that the court was still not propelled to intervene meaningfully. Justice Lokur questions whether the Supreme Court's orders constitute an "Executivization of constitutional justice?". The gravamen of the article is summed up by the following indictment: "Over the past few months, constitutional rights and remedies were overlooked and socio-economic justice, a cornerstone in the preamble of our constitution, was disregarded."

Now for the reactions. In an engaging discussion hosted by CAN Foundation on 29th May, on "Insulation Of The Judiciary From Social Media Diatribes", Mr. Salve spoke with his usual felicity about the dividing line between permissible criticism of a judgment and an impermissible attack on the institution. He accepted that you can criticise a judgment and even criticise a judge, but cautioned that "anything which undermines the institution rather than criticizes the institution, that has to be where we stop. That is where the freedom of speech ends, and that is where you cross the bounds of legitimacy".

In principle, this sounds right. And in obvious cases, the yardstick is easily applied. But let us not forget, it will be the court itself which decides whether particular speech undermines the institution, or merely criticises it. In a way, judges are acting in their own cause in any such evaluation. And that is where my discomfiture begins, especially when Mr. Salve strongly advocates that "not only you can but you should bring the might of the law down on such criticism."

So how do we distinguish between the two categories? Mr. Salve explains that "if the criticism is of the kind that, at the end of it, the institution will emerge stronger, that criticism is justified." But if the court believes the criticism to be unfair, is it likely then that it will, at the same time, decide that the institution would emerge stronger from it? Is it not dangerous to rest the protection of critical speech on a test that depends on whether the court considers the criticism to be justified? Unwarranted criticism is not necessarily impermissible speech. Mr. Salve elaborates that when you ascribe "motive" to judges, you cross a line and undermine the institution. And when "significant people" do so, "you have to deal with them." If you say that "those judges were being subservient to the government" or that "they were scared of the government", then "you are attacking their honesty and integrity, you are not attacking their judgment."

So is the "motive" test a safer standard? A judgement should reflect the honest opinion of the judge, uninfluenced by fear, favour or any other consideration extraneous to the merits of the case. To impute motive, would be to suggest an extraneous consideration having weighed with the judge in her decision. Some imputations of motive, if they are baseless, are plainly contumacious, such as alleging financial motive behind a judgment. But is attribution of motive always so? For instance, in the course of the interaction, while discussing media reporting on matters pending in court, Mr. Salve laments that "somewhere along the way we have completely lost the soul of bail." He contends that "bail not jail should be the rule even in economic offences". Quite right. So why have courts seemingly deviated from this well-settled principle? Mr. Salve opines that improper media interference with the legal process is part of the problem:

"But why do we refuse bail because if a judge grants bail there's a oh my god this big criminal has been brought and he's been granted bail...... The kind of hydraulic pressure this brings upon the system is one, and the second is the perceived hydraulic pressure. Should a person denied bail go back into jail feeling this judge got scared of the media. See then you are losing faith in the system."

In Mr. Salve's critique, there is a clear suggestion that media interference is in fact affecting the legal process and influencing decisions on bail. He also feels it is creating an unfortunate perception in the mind of the accused that the judge is "scared" of the media, which in turn undermines his faith in the system. Surely, even though Mr. Salve is imputing "motive" to judges, by implying that they are being influenced by media pressure, a consideration extraneous to the merits of any bail application, his critique is not an attack on the institution, such that it should be stifled. Plainly, his opinion and concerns about how decisions on bail have been improperly influenced are permissible criticism.

Judges are human, so they are fallible. To express a concern that extraneous considerations are affecting their judgment, when they should not, is not inevitably to scandalize the institution. It can be to voice concern over a disturbing trend that is ultimately destructive of justice. It could entail a plea for course correction. Mr. Salve objects to anyone saying that "the court is no longer being robust or that the court is no longer being courageous" because that "is accusing judges of being timid". To my mind, there could be a context in which even such accusations are permissible, regardless of whether they are justified. To answer them with the heavy hand of contempt, as suggested by Mr. Salve, would be a mistake.

Now to apply this discussion to the article in The Wire. As explained above, Justice Lokur faults the Supreme Court on three counts - first, naivety in accepting the statements and assurances of the government without verification, despite plenty of material in the public domain and in petitions before the court suggesting otherwise; two, failing to follow up on compliance of its own orders; and three, abdicating its constitutional obligation to migrant labourers faced with sudden destitution. Having carefully read the article, I find it limits itself to criticizing the judicial decisions of the Court, in PILs filed before it seeking relief for migrants. No doubt, it does so in strong terms, even suggesting an "F" grade. But as Mr. Salve himself elegantly says of legitimate criticism, "that it is addressed in words which may be in questionable taste is never a ground to circumscribe the content of that criticism. You may criticise the language but you must preserve the right to make that criticism." Nor do I find any imputation of "motive" or any personal remark against any judge in the article.

Which is why I was perplexed and somewhat troubled by Mr. Salve's following indirect censure of Justice Lokur's article:

"As a retired judge you can always criticise a judgment, saying this is too narrow this is too broad, I don't agree with this, I agree with this. Judgements of the court are fair game for anybody. But not in this way. And attacking the institution in a particular way saying that because they have not done this I give them a grade F. Write about the judgment and say what's wrong with it."

Notably, Mr. Salve did not address himself to the content of Justice Lokur's criticism. If the objection is that it is uncharitable, improper, unbecoming of a retired judge to voice such a scathing indictment of the court, that too is permissible criticism of the article, again, whether or not it is justified. If, on the other hand, by describing Justice Lokur's article as "attacking the institution", the implication is that it is not protected by the guarantee of free speech, I cannot agree.

Justice Sanjay Kishan Kaul, on 30th May, participated in an equally engaging interaction on "Freedom of Speech in times of COVID-19 - Fake News and Misinformation" organised by the Madras Bar Association. Having authored seminal judgments on free speech, Justice Kaul spoke powerfully and knowledgably about the topic, and the peculiar challenges that face us, particularly at this time, with the advent and rapid reach of social media and messaging. I was reminded of the moving epilogue in his judgment in M.F. Husain's case, words from more than a decade ago that continue to resonate:

"A liberal tolerance of a different point of view causes no damage. It means only a greater self restraint. Diversity in expression of views whether in writings, paintings or visual media encourages debate. A debate should never be shut out. 'I am right' does not necessarily imply 'You are wrong'. Our culture breeds tolerance- both in thought and in actions. I have penned down this judgment with this fervent hope that it is a prologue to a broader thinking and greater tolerance for the creative field. A painter at 90 deserves to be in his home - painting his canvass."

While acknowledging that "the very bedrock of any democratic system is freedom of speech, more than possibly any other aspect", Justice Kaul expressed concern over growing intolerance, including against institutions such as the judiciary. He highlighted that the judiciary "doesn't have an opportunity to respond". He described the judgment of a court as an opinion, which could undergo change, and accepted that criticism of a judgment poses no problem. He cautioned however that "when imputations and grading starts being made, I think we damage the very institutions." One can only infer that the reference to "grading" was directed at Justice Lokur's article that had been published and widely circulated just two days prior to this discussion. Justice Kaul further expressed the following viewpoint:

"The tendency to be critical in a manner which crosses certain lines is a problem..... While criticism is always information that must come to us, I think some boundaries need to be maintained, because otherwise it becomes a part of disinformation which causes doubts on institutions and I don't think that's good for any system. If you have to prevent anarchy, faith in institutions is important."

While these generalities are undoubtedly based on sound principle, what perturbs me is the indirect reference to Justice Lokur's article in this context, implying that it is an instance of "crossing certain lines". No doubt, some boundaries must always be maintained, as Justice Kaul suggests, but where the line is drawn is the issue of consequence.

If you knowingly or recklessly make a false statement of fact against a judge, implying she has acted with a corrupt motive, that certainly amounts to "disinformation" which must receive no refuge in the protection extended to legitimate criticism. But all imputations and grading cannot be said to damage the institution such that they must be censored. Certainly, Justice Lokur's article, and his grading, commits no such infraction so as to lose the cover of free speech protection. Faith in institutions is indeed important, but one cannot foster that faith by silencing criticism, whoever the critic might be, and however strongly worded her criticism. Judges are indeed handicapped in responding to unfair criticism levelled against the court. But that is an occupational hazard which comes with the constitutional privilege the court enjoys. I am reminded of the abiding words of Lord Denning on contempt, in R v. Metropolitan Police Commissioner, ex p. Blackburn (No. 2) (1968):

"Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself."

On 26th May, in a curious departure from its previous orders across various petitions seeking relief for migrants, the Supreme Court, on its own, without any petition, decided to intervene and extend immediate relief, considering the "problems and miseries" of migrant labourers. The order itself refers to newspaper and media reports, as well as letters and representations from various sections of society. But as Justice Lokur points out, the court could not have been ignorant of the unfolding migrant crisis through April and most of May. We cannot know for sure what prompted the change in course. It is possible that widespread, sustained criticism both from within the legal community and well beyond it, had some role to play. To be responsive and to course correct is to restore faith and quell criticism on a public, humanitarian issue. The judiciary cannot be a slave to perception, but justice must also be seen to de done.

Justice Kaul says "these are challenging times for everybody, including all institutions, governments, courts, challenging times for people. You can't grade institutions and people during this period of time."

I am sure the dignity, majesty and authority of the Court can well withstand a negative grade. I hope the Court will continue to be tolerant of criticism, even at this time.

Akhil Sibal is a Senior Advocate based in Delhi.

Disclaimer: The views and opinions expressed in this article are of the author's and do not necessarily reflect those of Bar & Bench.