Treatment of Supreme Court as "national dartboard" must stop: Sr Adv Harish Salve on the permissible bounds of criticising the Judiciary

Treatment of Supreme Court as "national dartboard" must stop: Sr Adv Harish Salve on the permissible bounds of criticising the Judiciary

Meera Emmanuel

A webinar hosted by the CAN Foundation on the theme Insulating our Judiciary from Social Media diatribes, saw Senior Counsel Harish Salve taking strong objection to the manner in which the Judiciary, particularly the Supreme Court, is being criticised of late.

"There are people who go out and say the Supreme Court is hopeless, the judges are useless and the Court will not give you justice. The very next day, they are back in court. Should the Supreme Court be supporting them?"
Harish Salve

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Salve emphasised that the criticism of a judgment on principle or levelling criticism that would make the institution stronger, in the long run, is justified.

He observed that "the judicial institution in India today has come to acquire in the common man’s mind space, a unique position. In certain respects, a lot of frustration the citizenry feels by poor governance is addressed by a feeling that you can go to a Court and get relief."

In this backdrop, he added that, "This institution has become as important as the parliament. I have always said ‘the Court is no higher than parliament, but not lesser than parliament.’”

He went on to remark, "If we keep this in mind, then we go to the next step - what is it that we are trying to protect? Criticism of an institution may be hurtful for those, who for the moment occupy the office. But if the criticism is of the kind that at the end of it, the institution will emerge stronger, that criticism is justified."

However, he registered strong objection over criticism that is meant to undermine the authority of the system, whereby judges are ascribed a motive, especially when such criticism comes from those who hold sway over public opinion.

I can criticise a judgment by saying that it is too conservative. Shivkant Shukla’s (ADM Jabalpur) judgment was criticised by saying it was horrible law. You can say that. You can say, I am sorry, but the judges have taken such a conservative view that they have made rule of law subservient to tyranny. That is a valid criticism", he said.

He went on to point out that he himself has publicly criticised judgments by a (retired) judge "who is now giving grades to the Supreme Court post-retirement."

Salve added that he has made known his opinion that some of this judge's verdicts were disastrous for India. He said,

"If our GDP has dropped 1%, Supreme Court must get part of the credit for closing down, mines, industries, collieries. Some of the judgments are deeply, legally flawed. Very clearly, they show that the Court took a view that is very difficult to sustain."

Senior Advocate Harish Salve (L) speaking during the Webinar and Avishkar Singhvi (R) who moderated the session.
Senior Advocate Harish Salve (L) speaking during the Webinar and Avishkar Singhvi (R) who moderated the session.

"You can say that the judgment is horribly wrong. This is legitimate criticism, he said as "they are directed against ultimately the judgment."

"But to say that the judge acted ‘like this’ because the motive was that they were scared of the government - that is particularly dangerous ground. This is particularly relevant today", Salve emphasised.

Viewed from this perspective, he opined that the recent contempt case initiated by the Andhra Pradesh High Court against several, including political leaders, was justified, given that the comments by the contemnors were abusive, in defiance of the Court, and against the majesty of the Court.

He went on to raise concern over whether we have reached a stage where "certain people" have gotten used to "using the court for pushing their own agenda."

Criticising the tendency of such people to undermine the Judiciary when the Court does not agree with them, Salve remarked,

"Everybody who has a point of view today thinks the Supreme Court is a national dartboard, on which everybody who has a point of view has the right to throw a dart. This must stop."
Harish Salve

In a later part of the webinar, he went on to remark that if this growing menace is not curtailed "20 years from now, you will have no courts to practice in."

Solicitor General's comments in Migrants case calls for sober introspection

Solicitor General Tushar Mehta's recent comments made before the Supreme Court over the migrant crisis, wherein he had termed those seeking to intervene in the suo motu case as "armchair activists", "vultures" and "prophets of doom", also found mention in the webinar.

"If a handful of people want to control the situation, then it will become an ADM Jabalpur moment", SG Mehta had argued
"If a handful of people want to control the situation, then it will become an ADM Jabalpur moment", SG Mehta had argued

Commenting on this, Salve said,

"While it may be very popular to call him names and to condemn what he said, I think what he has said calls for some serious thinking."

While he did not mention any names, alluding to a recent article by Justice (retd.) Madan Lokur, Salve remarked, "To say that the judges 'are not doing this' because they have 'lost their soul' or because they have become an 'F grade institution' - this crosses the line."

During the course of his webinar, Salve also recalled a contempt case that he had pushed for against Advocate Prashant Bhushan for levelling allegations against former Chief Justice of India SH Kapadia "about whom even gossip mongers would not gossip", after an adverse ruling in an environmental case.

Whether such comments should warrant action is another matter, he said, adding that it always best to ignore such comments. In any case, however, he opined,

"Most of these comments should be treated with the contempt it deserves.

Reporting judge's comments in court can have chilling effect

While mooting various suggestions to ensure responsible reporting of legal proceedings, Salve opined that the media should compile a code of conduct for court reporters.

Notably, he opined that while compiling these guidelines, the reporting of a judge's comments in open Court must be disallowed.

“One thing that should definitely not be reported are comments made by judges. It has a chilling effect."
Harish Salve

Salve had explained earlier,

"If I fight a case and I lose, I should have the confidence to accept that I tried my case but it went wrong, I should not go home thinking that the judge was worried of what the newspapers would say and that is why he decided against me. The day I get that feeling, you have eroded my faith in the judiciary."

Judges have to be team players (even post-retirement)

Speaking on the issue of criticism registered by former judges against the working of the judicial institution after their retirement, Salve opined that such judges should be team players.

"If you have been a member and been privy to the internal working of the institution, there is an element of responsibility which you carry", Salve said, while referring to retired judges.

In this regard, it was pointed out that the convention in India was to carry the epithet of "Justice" for even retired judges. Judges must continue to function as one institution, Salve said.

On the controversy surrounding Justice S Muralidhar's transfer to Punjab

As the session drew to a close, Salve was also asked to given his comments on the transfer of Justice S Muralidhar (not named during the webinar) from the Delhi High Court to the Punjab & Haryana High Court amid the Delhi Riots case hearings.

Salve responded that such controversies are likely to arise as long as the Court continues to hold the power to make judicial appointments and transfers.

"The court lacks the equipment to select the right personnel and the court is not an institution that is designed to take this kind of flak ", Salve said.

He pointed out that when it comes to the present system of judicial appointments and transfers (the Collegium system), "the notion of transparency may at times be a remedy worse than the disease."

He opined that the issue could be resolved by setting up a credible National Judicial Commission, which would be insulated from the government and not subject to the Court.

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