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Writer's pictureThe Law Gazette
Oct 18, 20206 min read

Is Judiciary a threat to Democracy?

A constitutional bench in the case of Sub-committee on judicial accountability v Union of India and others stated that rule of law is the basic feature of the constitution and thus, a major part of the basic structure. In turn, independence of the judiciary was also highlighted to be inseparable attribute to rule of law. Thus, a simple deduction leads to the conclusion that the judiciary set out its independence to be a part of the basic structure doctrine itself. On the contraposition, is the right to freedom of speech and expression as guaranteed by Article 19 (1) (a) of the supreme constitution along with its reasonable restrictions, a mechanism to provide a free expression of opinions, doubts and scrutiny by the rightful citizens.


THE PRASHANT BHUSHAN CASE AND THE CONTROVERSY

The Supreme Court’s recent ruling in the case of Amicus Curiae v. Prashant Bhushan and others is a clear indication of the fact that the freedom of speech and expression is highly susceptible to suppression by the judiciary. According to Article 129 of the constitution, the Apex Court is vested with the right to punish for its contempt. In the exercise of such power the Contempt of Courts Act, 1971 has been enacted, the rules of which are made by the court itself. According to the section 15 of this act the court has the power to take Suo motu cognizance of its contempt or a matter can be brought to the notice of the court with the prior consent of the Attorney General.


The first controversy that arose in this case, is regarding the cognizance of the case, where the petition was filed by one Mahek Maheshwari to bring to the notice the tweet by human rights lawyer and activist Prashant Bhushan, stating it to be contemptuous, without any prior approval of the attorney general. But the Supreme Court took the cognizance of such contempt on its own motion. The author is of the opinion that the Hon’ble Court had erred in taking such cognizance.


BACKGROUND

The second scandal involved in the case is the alleged tweets in the question targeting the reputation of the CJI and citing judiciary as a threat to democracy specifically the last four CJI’s of the apex court. The issue that came to sight here was that of a dropping veil between the judges and the Supreme Court as a separate institution. The fair criticism of the actions of judges can’t be held as contempt to court. The administrative powers of the chief justices have always been a matter of concern for other judges and legal professionals, taking in view the when in January 2019, four SC judges launched an unprecedented attack against the CJI, justice Dipak Mishra. Judge J Chelameswar in that press conference said:

"All four of us are convinced that unless this institution [Supreme Court] is preserved and it maintains its equanimity, democracy will not survive in this country, or any country."[i]


A 108-paged judgment was delivered by a three-judge bench of supreme court lead by justice Arjun Mishra with its only highlight being the importance of dealing with such matters strictly to maintain the integrity of the court and to keep public trust in the system intact. Judiciary is an important organ of the democracy but the fact that judicial decisions and actions are always open to scrutiny and ratification in the forms of appeals, judicial reviews and locus standi of the citizens leads to the conclusion that there are errors on the part of those in the supreme bench of the country. When change is the only constant, it is important for the judiciary to be open to criticism especially by a person who has been the face of evolution and change. Thus judicial criticism should not be shut down because it tarnishes the image of the people entrusted as the up keepers of the justice.


Instances where the judiciary has been said to pose a threat to Democracy and losing citizen’s confidence. In the words of Mr. Kapil Sibal “Recent events have demonstrated that the judiciary needs to introspect. The “fault, dear Brutus, lies not in our stars but in ourselves. When courts begin losing the confidence of the public, democracy is under threat. With its integrity unblemished, a court will always enjoy the confidence of its key stakeholders — the litigant public and the legal fraternity”.[ii]


CRITICAL ANALYSIS

It is of a noteworthy nature that the cases of general importance are not even listed in the higher judiciary for a long time thereby creating a backlog of cases and a sense of distrust in the Indian judiciary. Given the current pandemic situations, it shall be frowned upon that even when the courts have suspended physical hearings and the virtual hearings of some specific cases continue, the judiciary took up the contempt hearing and disposed it off in a swift manner whereas the issues of laborers, jamaaties still remain pending.

When there exists a divide amongst the judicial body itself:

The instance of the four senior-most judges launching an attack on the then chief justice Dipak Mishra providing caution to how the CJI was a threat to democracy and the institution that is the Supreme Court can only be preserved with equanimity and accountability to the public. This was another evidence of the incoming scandals from the future. It was when the citizen’s faith in the apex court was shaken. Even the matters of elevation of judges to higher courts have always been a subject of criticism from the bar as well as the bench.

CONCLUSION AND SUGGESTIONS

Judiciary is the backbone of any democracy, the stand strong position of it is not just a concern of every constitution but also a demand of the people in democracy. The problems arise when people start to distrust the institution, its framework and questioning its integrity. Keeping in mind such circumstance, the constitution makers borrowed the concept of independence of judiciary from the Britain. A system of checks and balances has been a watchdog for the arbitrary and ultra vires exercise of powers by the government organs.


A system of checks and balances does not only subside with the inter-organ monitoring of these institutions but also the monitoring mechanisms within the institution itself, for instance that bar keeping an eye on the bench and vice versa, which in case of the judiciary is called fair legal criticism. It shall also be noted that power of deciding the scope of fair criticism is also vested in the court itself and the definition of word fair criticism is also based upon the rules in the contempt of courts act, 1971, the power to amend and nullify which is also in the hands of the judges. The result of providing such power to the court had thereby landed on a shift from free and fair democracy to the subjective approach of judges as to what is free and fair.


It seems that the constitution-makers failed to actually provide a differentiating veil between the judiciary as a highly esteemed institution and the judges of such apex court who may be blinded by their interests and public image. The doctrine of lifting of corporate veil, in company law, in order to differentiate the actions of the company to the acts of its directors should have been imbibed in the constitution itself as to make a difference between the contempt of the court and the criticism of such judges.


With the refusal of Mr.Prashant Bhushan to apologize to the court, subject to no conditions, after he was held guilty of maliciously trying to hamper the image of the judiciary for his tweets was based on the contention that he had criticized the court in good faith. He said that because he believed in the court’s drift from the role of protector of fundamental rights and it was mere constructive criticism. The common opinion in this case, has been in favor of Mr. Bhushan as it is well within the rights of a citizen to criticize a court and its functioning, which can’t be abridged with the sole reason of the citizen being a part of the bar.


This blog has been authored by Meenal Gandhi, who is a Final Year B.B.A., LL.B. student at School of Law, University of Petroleum and Energy Studies, Dehradun.



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