Tryst with the Constitution: Chief Justice Kant should reprimand those politicising the judiciary instead

The remarks made by Chief Justice of India Surya Kant during a hearing last week evoked strong reactions. While hearing a petition seeking initiation of contempt proceedings over the delay in implementing the guidelines on designation of Senior Advocates, Justice Kant reprimanded the petitioner.

He observed that the petitioner was joining parasites in society who take to activism and social media. He further remarked that “there are youngsters like cockroaches who are not getting employment in the profession. Some are on social media, some become RTI activists.”

It was the usage of the term “cockroaches” that drew particularly strong criticism. Subsequently, the CJI clarified that his remarks had been misquoted and that he was instead criticising individuals who had entered the legal profession through “fake and bogus degrees".

Unemployment among the youth, the functioning of the legal profession and the reasons why many young lawyers are increasingly disillusioned from it, are complicated issues involving deeper hard realities within the profession that require serious institutional solutions. Instead of addressing those underlying causes, making generalised observations and using such strong language is unbecoming of the office. Hence, irrespective of the intent, the remarks were unwarranted and should be condemned. Further, as I have argued before, the Court, while adjudicating cases, should restrict itself to observations directly relevant to the dispute and avoid strong polemical statements, an unfortunate trend that appears to be steadily growing.

However, if one were to move beyond the language and focus instead on the underlying concern regarding the abuse of judicial process, the Chief Justice is perhaps directing attention towards a genuine institutional problem, albeit at the wrong target. Instead of reprimanding young lawyers, the Court should focus on the broader trends where the judiciary is increasingly being used for political gains and the advancement of individual or ideological agendas - acts contrary to both settled law and the essential features of adjudication. More importantly, the Court should curb such practices through stricter adherence to its own jurisprudence and procedural discipline.

The Court has, since the early days of Public Interest Litigation (PIL), cautioned against the abuse of judicial proceedings for personal, ideological, or political gains. In SP Gupta v. Union of India (1981), one of the earliest judgments that established PIL in India, the Court expressly held that where a petitioner acts for personal gain, private motive, or political consideration, such petitions ought to be rejected at the threshold. Over time, the Court also laid down detailed rules governing standing, pleadings and maintainability to ensure that petitions filed before it are genuine and not instruments for abuse of process.

In practice, however, these threshold rules have been seldom and selectively applied. The Court frequently characterises certain petitions as “Publicity Interest Litigation” or “Political Interest Litigation” - labels used even during the recent Sabarimala proceedings - yet fails to introspect and acknowledge that the persistence of such frivolous litigation is partly its own doing. The Court has often entertained frivolous or poorly drafted petitions, conducted extensive hearings and enabled significant public attention around them, even if ultimately dismissing them. In many such cases, the Court’s failure to dismiss petitions outright or impose exemplary costs - an approach repeatedly endorsed in its own judgments - has allowed such litigants to continue taking a chance.

A particularly troubling feature of this trend is the Court’s indulgence towards particular individuals with a history of filing petitions that are poorly drafted, lack adequate research, or clearly raise questions that are political or policy-oriented, thereby falling outside the proper scope of adjudication. I have written about this phenomenon previously (here and here). This is precisely the kind of misuse that the Supreme Court had originally cautioned against and which can only be addressed if courts begin enforcing their own jurisprudence on maintainability, standing and abuse of process with far greater consistency and rigour.

Justice Kant’s approach in this area since assuming office as the Chief Justice has indeed been welcome, as he has shown reluctance in entertaining such petitions and, in several cases, dismissed them outright. However, this approach must be applied with far greater consistency across the courts.

A related concern, especially in petitions raising policy issues, is that of litigants attempting to engage in forum shopping to ensure that their petitions are listed before judges who may be more sympathetic to their causes. Broadly, the principle of res judicata applies where a matter has been finally adjudicated on merits. In practice, this has enabled a pattern where petitioners, upon sensing that a particular bench is reluctant to entertain their prayer, withdraw their petitions only to refile them before another court or bench in the hope of securing a more favourable hearing.

A prominent example is the litigation seeking guidelines on religious conversions. Earlier petitions on the issue filed by the same litigant were withdrawn from both the Delhi High Court and the Supreme Court after they appeared reluctant to intervene. Subsequently, however, the issue was entertained more substantively, with another bench of the Court observing that forced religious conversions constituted a “very serious issue” affecting the security of the country and the freedom of conscience of citizens.

This once again contributes to the misuse of the judicial process. Courts have repeatedly described the polyvocality of the judiciary - the possibility of different judges taking different views - as one of its institutional strengths. However, this should not become a mechanism through which litigants strategically navigate the judicial system in search of a more sympathetic forum. If constitutional courts are to preserve their legitimacy, procedural discipline must apply not only to judges, but equally to litigants who seek to use judicial forums as instruments for advancing political, ideological, or policy preferences.

Although the advent of live-streaming of court proceedings has ushered in greater transparency, promoted accountability and made the Court more accessible, it has also had the unintended consequence of footage from judicial proceedings being misused for purposes beyond its intended use, including by political parties.

The Court, in the 2018 live-streaming judgment, had very clearly held that footage from court proceedings must only be used “for the purpose of news, current affairs and educational purposes” and not for “commercial, promotional, light entertainment, satirical programmes or advertising.”

I have previously written about how court proceedings are routinely used for commercial and sensational purposes, despite the Court having framed guidelines prohibiting such use, which it has largely failed to enforce. More recently, however, court proceedings are increasingly being used by political actors for scoring political points.

For instance, snippets from recent proceedings involving the Enforcement Directorate and the then TMC government in West Bengal, where Senior Advocate Menaka Guruswamy was appearing for the State, were circulated by office bearers associated with the BJP to politically target the TMC. Similarly, during the ongoing proceedings involving Arvind Kejriwal in the liquor policy case before the Delhi High Court, the AAP extensively shared courtroom exchanges and arguments advanced on behalf of Kejriwal, arguably using the proceedings to further political messaging.

This trend fundamentally alters the character of adjudication and gives it a political colour. Resultantly, courts increasingly become sites of political signalling and partisan contestation. Oral observations, in particular, are selectively clipped, circulated and interpreted in ways that often carry greater public and political impact than the final judgment itself. While public access to court proceedings is unquestionably valuable, the increasing use of judicial proceedings for partisan mobilisation raises serious questions regarding how constitutional courts are perceived and consumed in the public sphere.

What ultimately distinguishes the judiciary from other institutions is not merely the power it exercises, but the manner in which that power is justified. Unlike the executive or the legislature, courts are required to give reasoned decisions, publicly explaining the legal basis for their orders. It is this discipline of reason-giving that lends legitimacy to judicial power. For that reason, judges must ultimately speak through their judgments and not through sweeping judicial remarks.

This is not to suggest that judges should remain silent during hearings. Courtroom exchanges are often necessary to test arguments, seek clarification and understand the consequences of competing legal positions. However, such observations must remain tethered to the dispute before the Court and confined to what is necessary for adjudication. Once judicial remarks travel beyond the case, particularly into broad social or political commentary, they risk potential misuse of judicial process and importantly, casting aspersions on the institutional neutrality of the Court.

This concern becomes even more significant in the age of social media, where oral observations are instantly clipped, circulated, sensationalised and often deployed by different actors to advance their own political or ideological objectives. The Court, therefore, cannot remain oblivious to how its words are consumed in the public sphere. The answer probably lies both in enforcing its existing guidelines to meaningfully curb such misuse of proceedings and, at the same time, exercising greater restraint itself.

Swapnil Tripathi leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy.

Views are personal.