Criticise judiciary on basis of concept and principle, not on basis of opinion or ideology: ASG Aman Lekhi

Criticise judiciary on basis of concept and principle, not on basis of opinion or ideology: ASG Aman Lekhi

ASG Lekhi was speaking during a webinar on the theme of Independence of the Judiciary, hosted by the CAN Foundation, which featured former CJI Ranjan Gogoi as the keynote speaker.

Meera Emmanuel

Additional Solicitor General of India Aman Lekhi on Wednesday commented that,

"Independence of the judiciary is part of what I call Constitutional patriotism."

Lekhi was a co-speaker for a webinar conducted by the CAN Foundation on the theme 'Ensuring an Independent Judiciary under our Constitution: Confronting the Contemporary Challenges', which featured former Chief Justice of India Ranjan Gogoi as the keynote speaker.

Aman Lekhi (L) and former CJI Ranjan Gogoi (R)
Aman Lekhi (L) and former CJI Ranjan Gogoi (R)

During his talk, Lekhi opined that certain things were absolutely necessary to ensure the independence of the judiciary. In this regard, he emphasised firstly that adjudication should be open, on the whole.

Secondly, he noted that there should be certain minimum standards of fairness in adjudication. Notably, he said that the element of the independence of the judges is critical.

"The system cannot work itself. The system has to work through a judge. Therefore, the independence of the judge is the most critical feature. It has to be intelligent independence."
ASG Aman Lekhi

Lekhi went on to comment that another important element was institutional coherence. Since the judiciary is a coordinate arm of the government, "the judiciary should usually speak in one voice" so that "what the judiciary says will have greater meaning."

Also important, Lekhi said, "is that the fiduciary nature of power... must not ever be forgotten."

He further emphasised on the pivotal significance of the head of the judicial institution.

Another issue he addressed was the criticism that the courts may not have done enough on certain issues. Lekhi said that these criticisms sometimes miss the point that there are restraints that govern the court in terms of its functions. In some cases, the judges do "assume more than what is actually permitted." In this backdrop, Lekhi said,

"While executising the judiciary is a problem, judicialising the executive is an equal problem. We have to balance the two... The judiciary cannot virtually take over the executive."
ASG Aman Lekhi

Judicial system should not be run down under the guise of criticism, Lekhi

During the course of his talk, Lekhi also opined on the the general principles for criticism of the judicial institution. He noted,

"You (should) critique something on the basis of concept and principle. You don’t critique something on the basis of opinions or ideology."
ASG Aman Lekhi

He added that personal opinion should not be masked as principled criticism.

He went on to observe that the criticism of the judiciary is sometimes prompted because its working appears biased.

When you’re dealing with the justice delivery system, semblance is very important…It is not the existence of bias, but the semblance of bias (that assumes significance)…Unwittingly, unknowingly, for reasons not having to do with the persons itself, an appearance comes up of something that is wrong."

On disagreement with choices, he said,

"Can we have a system which is perfect, a law which is not open to interpretation, a method in which there is no discretion, a system in which there is no choice? You cannot... The existence of a choice is implicit in the system. The problem is not in the working of the system. The problem is disagreement with the choice that has been exercised."

When such disagreements occur, Lekhi opined that the criticism must be a matter of principle.

You may criticise as a matter of principle. But what happens in these cases (is that) criticism extends to the past and then criticism has uncanny linkages…There are leaps of imagination that...can be avoided."

He emphasised that the system should be robust enough to face the criticism.

It is necessary to criticise. Diversity of opinion is absolutely warranted and necessary, but don’t stretch it... Maintain limits."

In the course of his talk, he went on to add,

"Personally, I think criticism should be open, criticism should be uncompromising … there should be no holding back.

However, he emphasised that apart from conventions and social ethics considerations, critics must also have respect for the judicial system and look to sustain the same.

" …the system may be critiqued, but it cannot... under the guise of critique, be undone. You cannot undermine the system … “
ASG Aman Lekhi
ASG Aman Lekhi
ASG Aman Lekhi

In a later part of his talk, Lekhi also commented on the need to repose trust in judges and the judicial system, observing that,

“We have to trust the judges…They are subject to criticism. They will make mistakes. We are entitled to say that they are wrong. But that doesn’t necessarily mean that our trust must necessarily go down. They have the element of trust…”

ASG Aman Lekhi

In this regard, Lekhi also commented on the controversy over the absence of an identified author of the Ayodhya Judgment passed last year.

"You cannot just run down an institution by saying, 'who is the author?'", Lekhi remarked.

He said that such per curiam judgments are not unheard of, adding that such judgments signify multiple judges of the judicial institution talking as a single body, and taking responsibility for a precedent.

Lekhi also went on to emphasise that it is important to contextualise criticism. He observed that,

"Many times the criticism is without the context. This normally happens. When you criticise, you miss the context.

Responding to this tendency, Lekhi opined that,

"When you talk about criticism, you have to have a contextualised understanding of criticism.

Further, he also commented on the language adopted in criticising the institution. He observed that when the criticism degenerates into abuse, the whole purpose of criticism goes. He added,

"Criticism is supposed to be constructive... Criticism which is abusive is only destructive."
ASG Aman Lekhi

Lekhi went on to emphasise that the country has to confront disagreements in a rational manner.

"... that is what a pluralistic society is and that is what constitutionalism mandates. And that is what judicial independence is premised upon", he added.

As he concluded his talk, he spoke of how credibility and character are crucial to sustain an independent judiciary.

He said that Constitutionalism has to be embedded to act as a guide for the institution in making choices as well as for those criticising the choice. Both the people holding the office and the critics need to have credibility, he remarked.

Lekhi also reiterated that the judicial institution has to be treated with sancity and respect. "It is for that reason we call our courts temples too", he added.

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