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Defending the Judiciary

In light of judges’ reluctance to speak out in their defence, they are often considered soft targets for negative criticism. Frequently, users of social media exaggerate and aggressively criticise judges, be it positive or negative, without knowing the impact it has.

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By Advocate Saju Jakob

While it is easy to criticize, it is also important to be fair, correct and reasonable. However, the emergence of social media has led to a lot of harsh criticism of the judicial system and judges in recent years. Social media provides all individuals with a platform for expressing their views to the world, and objective truth as a virtue is increasingly losing its value in such a marketplace. Each opportunity is capitalized upon by both individuals and groups to take sides that are in their personal interests, while reason and logic are put on the backburner. The Indian judiciary and judges have not been spared from this consequence, and in many cases, for the worst.

In the light of judges’ reluctance to speak out in their defence, they are often considered a soft target for negative criticism. Frequently, ordinary laymen become heroes in social media by exaggerating and aggressively criticising the job of judging, be it positive or negative, without knowing what it foretells or what it impacts. The Indian judiciary has never been over sensitive to criticism; in fact, genuine criticism was always welcomed for self reflection and introspection.

As Justice DY Chandrachud, a Supreme Court judge, said recently in a programme, let us talk about positives for a change. For over seven decades, the Indian judiciary has carried out the holy task of administering justice to the people. In recent decades, the law of the country has considerably evolved and the judiciary has played a crucial role, whether this is through the application of international law in areas where domestic law is silent or through the creation of new theories, such as the basic structure theory. There is no doubt that the Indian judiciary is overburdened with cases. It is also equally true that the Indian courts have been active and disposed of millions of cases, even during the pandemic period, through virtual courts, as compared to many foreign nations, including developed countries, wherein thousands of cases were decided during the same period.

Nevertheless, judges have recently become the subjects of spicy gossip and slanderous social media attacks. Many criticisms against judges are uncharitable and undeserved, given the workload. Judgments can be criticised, but not necessarily their authors. The judgments are based on objectivity and can be appealed on the merits or questions of law. Sometimes, but not always, judgments are influenced by the philosophies of the judge. Isolated issues should not be generalised. Each judgment is the result of their intellectual exercise, which takes into account precedents, codes, statutes, sub-delegations, and the relevant facts. When applying different theories and case laws to a particular case, judges may tend to fill in the gaps with their own wisdom. The wisdom comes from their professional experience. If it is irrational or unfair, it can be challenged. Many common law judgments have been criticised by civil law jurists for their length. Nevertheless, many authors have appreciated the fact that common law judgments have always had a wider scope of interpretation and flexibility in defining the momentum according to changing times. Although the law can be abstract and unalterable for a period of time, common law judicial principles are flexible enough to accommodate societal changes. In addition, the reasons should be precise and be elaborately stated in the judgment.

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The reasons for a judgment need explanation and reasoning, resulting into a lengthy judgment in some cases, which can be cumbersome for a judge. An Indian judge requires time for studies and verification of documents. The common law culture is quite different from the civil law culture, where judgments are usually short and abstract in nature, explaining the reasons and the findings of the court. The civil law culture searches for the truth directly, while the common law courts search for evidence to find out the truth. It is impossible for a common law judge to decide, as King Solomon did in the parable of “one baby and two mothers” story of the Bible, wherein both mothers claimed to own a baby, and the King decided to cut the baby into two parts for their own shares, that finally led him to discover the truth from their actions. The King ruled in favour of the mother, who allowed her baby to survive and be given to another mother.

Indian judgments are known for their quality and reasoning. It is well accepted and received in most of the common law countries, sometimes even better than in some leading countries. Some judgments are often as detailed as a doctoral thesis or treatise. Kesavananda Bharati was frequently cited as a great work by famous jurists in civil law and common law countries. But it has its own hard work behind it. Many gallons of midnight oil are burned for the creation of such judgments. As Chief Justice of India NV Ramana rightly said, there are misconceptions about a judge’s having an “easy life”. Judges have lots of work—reading pleas, hearing cases, recording evidence, writing opinions and judgments, and keeping abreast of the law.

The CJI stressed that the life of a judge is not one of roses. Finally, a politician who is none other than the law minister of our country, Kiren Rijiju, has acknowledged the truth behind the underlying premise in the following words: “In the court, we know what the judges do and what their responsibilities are. But many people don’t understand the life of a judge. There are some unpalatable remarks being made on social media and various forums, but when you see closely how much the judges have to perform, it’s difficult for people like us to comprehend.” A crushing workload combined with the restrictions imposed by the code of judicial conduct forces them to live like monks. In fact, most judges work through the evenings and weekends, and live with the constant tension of being behind on their caseloads. The demands of the court constantly weigh heavily on the time available for friends, family, recreation and cultural pursuits.

Is a judge’s life an easy ride? The answer lies in the words of an expert from the USA. In his article, Isaiah M Zimmerman, a lecturer on judicial stress management in the USA, has quoted the following statements of various judges in the US: “Before becoming a judge, I had no idea or warning, of how isolating it would be.” “Except with very close, old friends, you cannot relax socially.” “Judging is the most isolating and lonely of callings.” “The isolation is gradual. Most of your friends are lawyers, and you can’t carry on with them as before.” “When you become a judge, you lose your first name!” “It was the isolation that I was not prepared for.” “After all of these years on the bench, the isolation is my major disappointment.” “The Chief Judge warned me: ‘You’re entering a monastery when you join this circuit.’” “I live and work in a space capsule—alone with stacks of paper” “Your circle of friends certainly becomes much smaller.” “Once you get on the appellate bench, you become anonymous.”

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The biggest challenge facing the Indian judiciary is the unprecedented rise in the pendency of cases created by Covid-19. Many people are frustrated by the lengthy process and the poor infrastructure of the justice delivery system, which is well known and accepted. Two drastic measures can be taken to resolve this problem. The first is for the Union and state governments to provide more funding for the improvement of infrastructure, for the creation of more courts and for the creation of new special courts (instead of assigning the job to existing courts) and for the increase of judicial recruitment. Secondly, digitising the system of justice delivery, which was mandated by Covid-19, should be the number one priority. Our judiciary has gone far ahead in this direction. It is essential that the dictum laid down by Lord Hewart, “Justice must not only be done, but it must be seen to be done”, be followed throughout the country if the public is to retain confidence in the judiciary. As a basic right, ordinary people should have access to virtual courts. Recently, Attorney General KK Venugopal suggested establishing Appeal Courts in four metropolitan states as an alternative to reducing the workload of the Supreme Court, which will later serve as a constitutional court. The best justice delivery systems in civil law countries have set up separate appeal courts for their citizens. A lot of civil law countries have relatively easy processes for resolving MACTs, or claims for land acquisition, either through settlement between the parties directly or through software or alternate dispute resolution, without the involvement of courts. Decriminalising offences such as Section 138 of the NI Act, as long as the case can be resolved through alternative methods, can reduce the number of cases.

As in civil law countries, special public prosecutors or state attorneys will be appointed and trained to evaluate or filter the validity of evidence before an FIR is registered, cognisance taken, or charge sheet is filed. Those who hold these positions will be specially trained and appointed for the purpose, so that they perform their duties as if they were quasi-judicial officers. In order to avoid civil cases, a specially qualified notary public should be appointed and trained to attest to and oversee the validity of various legal documents.

A judge’s integrity is a matter of grave concern and should be taken seriously by those who make allegations on social media. Unpalatable remarks such as these, made without accountability, are in fact violations of the Rule of Law, public policy, the moral values of society, and natural justice. A democracy must allow criticism but must ensure the criticism is constructive and must hold social media critics accountable.

—The author, known as Lily Thomas Jr, is an Advocate practising before the Supreme Court. He was assisted by Shreyansh Bohra

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