Why many in India’s legal world are expressing disappointment about the judiciary

“It is unfortunate that I have lost faith in an institution to which I owe my existence.”

On July 1, Bilal Nazki, former chief justice of the Orissa High Court and presently a senior advocate, posted this dispiriting message on Twitter.

Nazki is not alone. While critiques of the judiciary’s role is not new, the intensity of it seems to have increased recently. Moreover, lawyers, legal academics and even former judges are increasingly making public statements that make it clear that they think the courts are not doing enough to protect citizens’ rights and uphold the law.

Constant decline

In recent years, several legal commentators have expressed dismay over the functioning of the courts, even the highest court. “Since Modi’s election in 2014...there has been a general sense of disappointment with the Supreme Court,” writes legal scholar Anuj Bhuwania.

One of the biggest reasons for this disappointment is that the court is seen by some to be failing in its function of keeping a check on the Union government’s actions. Wrote legal commentator Gautam Bhatia in 2020, “There is little doubt in my mind that…the [Supreme Court’s] collapse into the ‘executive court’ [a court favouring the executive’s actions] has intensified.”

On several occasions, the court’s actions have bolstered the Union government’s cause, the critics claim. For instance, in 2018, based on a sealed cover report submitted by the Centre, which was not available to the other side, the court dismissed petitions alleging corruption by the government in procuring Rafale jet fighter planes. On other occasions, it has not listed important cases for years. Among these is the constitutionality of electoral bonds, which allow political parties to receive donations anonymously.

Recent events

Amidst this, many in the legal community have strongly expressed disappointment at how the courts have handled a clutch of high-profile cases in the past few weeks.

Several lawyers and former judges have criticised the Supreme Court for targeting litigants in a case questioning the clean chit given to Prime Minister Narendra Modi and others in the 2002 Gujarat riots. The court’s judgment was heavily relied on to register a first information report and arrest activist Teesta Setalvad and former cop RB Sreekumar for allegedly fabricating evidence about the riots.

Many have also questioned why bail has not been given to Mohammed Zubair, the co-founder of fact-checking website Alt News, who was arrested on June 27 for a four-year tweet of a still from a 1983 film. Additionally, on July 2, about five hours before the order was pronounced by the court, it was communicated to the media by the Delhi Police. That the police knew of an order even before it had been delivered alarmed lawyers and civil rights bodies.

“It appears that the Delhi police and the magistrate had a prior backdoor agreement outside of court as to the nature of the order that was to be pronounced,” a statement by the Campaign for Judicial Accountability and Reforms read.

While most of the criticism of the court stems from its perceived lack of action in cases involving critics of the government, the trend is so strong as to even involve supporters of the BJP. On July 1, for example, many lawyers criticised the Supreme Court for not allowing several first information reports against now-suspended BJP leader Nupur Sharma to be clubbed. At the same time, the court said that Sharma was “single-handedly responsible for what is happening in the country”. Sharma had made derogatory remarks about Prophet Mohammed in May, which led to violent protests across the country.

Some lawyers also claim that the Supreme Court recently made the anti-defection law redundant and dealt a blow to federalism with how it handled the Maharashtra political battle. On June 27, the Supreme Court delayed disqualification notices given to 16 Shiv Sena MLAs. Then, on June 29, it allowed a floor test to proceed. This led to the Maha Vikas Aghadi alliance falling and a coalition government with the BJP being sworn in.

These events have led to many in the legal community arguing that the legal system might have reached its lowest point since Independence. “It’s the worst [time for courts] we have seen,” Bhuwania claimed. “The courts’ functioning can now hardly be called ‘judicial’, as it is devoid of all norms – substantive or procedural.”

Bhuwania continued: “The legitimacy of courts has eroded with court orders being openly flouted at all levels. Earlier when the courts gave leeway to the government, they tried to assert their authority and balance it with other things, but that is not happening now.”

Changing perception

Several lawyers have also commented that the perception of the courts being politically nonpartisan is being lost.

“Courts are the institution people look up to when all else fails,” said senior advocate Sanjoy Ghose. “They have to have a perceived neutrality. However, that perception of neutrality is going away and courts have to take urgent measures to restore the faith of the public.”

Explaining why the perception is important, legal scholar Tarunabh Khaitan said: “Indian courts have never really been especially good on rule of law compliance, largely because of structural reasons: the size of the country, rickety judicial infrastructure, clogged courts. There have also been many reports of corruption.”

He added: “But the perception of the higher judiciary, unlike say the police which is seen as being controlled by the government was that it was non-partisan, except for a brief period during the Emergency. The legally inexplicable manner in which some cases have been dealt with in recent years, however, raise a suspicion that the non-partisan character of the higher judiciary may be under pressure.”

Appointment of judges

Several lawyers and former judges have questioned the increasing trend of the Centre sitting on judicial appointments and elevation of those who have questioned its actions, saying that this hampers judicial independence.

Much of this perception of political partisanship stems from the Centre increasingly playing a role in appointments, promotions and transfers of judges.

“This is where the problem starts,” Sanjay Ghose explained. “You have a high level of interference [of the executive] in the appointment, transfer and further elevation of judges. When you have compromised with the system of appointment, you at some level end up not with the desired quality of independent-minded, competent judges.”

Ghose pointed to the example of Aditya Sondhi, a senior advocate from Karnataka whose appointment to the High Court had been pending for more than a year purportedly as he attended a seminar against the Citizenship Amendment Act. In February, Sondhi withdrew his consent to be elevated.

Different levels of the judiciary

Along with the higher judiciary, lawyers are also dismayed that lower courts have not stepped forward to protect rights in the face of government excesses.

The lower courts, said Supreme Court advocate-on-record Anas Tanwir, are the first line of defence for rights. “However, magistrates are applying the law in a mechanical manner,” he said.

Said Sanjay Hegde, “Wherever there is a controversial case, lower court tends to err on the side of caution and not pass orders in favour of the citizen for fear that it will be perceived to be driven by bad motive.”

For instance, in the case that put actor Shah Rukh Khan’s son Aryan in jail for 25 days on drugs-related changes, many other people accused got bail from the lower court, Hegde pointed out. However, Khan’s bail application was rejected by a special court under the Narcotics Drugs Psychotropic Substances Act and he had to finally appeal to the Bombay High Court for bail.

Unlike the higher judiciary, the lower judiciary’s lack of action might be more easily explained. “Courts below the high courts have no constitutional protection,” Hegde said, “so I do not blame them for being extra cautious.”

At the end of the day, as a result, critics still hold the higher courts responsible for the judiciary’s perceived shortcomings. “Whatever happens in the judicial system, the buck stops with the Supreme Court,” Tanwir said.

New critics

It is not just lawyers and academics but even former judges who have become more critical of the judiciary. “Some judges, depending on their personalities, were speaking out earlier as well,” Khaitan said. “But now it seems that the number of former judges calling into question the very credibility of the judiciary has increased.”

In 2018, four of the senior-most Supreme Court judges held a press conference for the first time where they alleged that Dipak Misra, then the chief justice of India, was violating judicial norms in the way he was allocating cases to benches.

Since then, several former judges have also been speaking out more. For example, Setalvad’s and Zubair’s arrests were “classic examples as to how the judiciary has stooped to such low levels [that] people have started losing faith in them,” former Madras High Court judge K Chandru told The Wire.

Further, on Zubair’s order being leaked to the police before it was pronounced, former Supreme Court judge Madan Lokur told The Wire, “It is difficult for our criminal justice system to sink lower than this.”

Former judges have also criticised the fact that journalist Mohammed Zubair has not been granted bail. Instead, the court had allowed the police access to his electronic devices. In the Nupur Sharma case, 15 retired judges have written to the Chief Justice of India NV Ramana claiming that the court’s oral comments contravened notions of “judicial propriety and fairness”.

Speeches by judges

This critique of the court has been exacerbated by the fact that judges have, ironically, continued to make public statements around judicial propriety at the same time as judicial standards are perceived to have declined.

In the past few weeks, several Supreme Court judges, such as NV Ramana, DY Chandrachud and JB Pardiwala, have given speeches extolling the judiciary’s role in protecting the rights of Indians. “You can trust the Indian judiciary for its absolute independence,” Chief Justice of India, NV Ramana claimed while speaking at the Indo-German Chamber of Commerce on June 22.

These speeches “add salt to the wound,” Ghose told Scroll.in: “Many judges are going to seminars talking about rights. There is some incongruity.”

The speeches are “having a counterproductive impact to institutional integrity and stocking growing public cynicism,” Internet Freedom Foundation executive director Apar Gupta tweeted.

Judge’s defence

Criticism of the courts has reached a point where sitting judges now feel the need to respond in public. “Very often, the media or the social media, does not highlight cases that come before us almost with routine regularity but does not provide fodder to the media,” Chandrachud said on June 20 at a seminar in King’s College in London.

From his “own personal experience”, he said, many cases where courts do justice to members of minority communities are not reported by the media. Therefore, media reports were not a “correct statement” about the functioning of courts in the country, he said. However, Chandrachud clarified that he does not “blame the media” for this.

On July 3, another judge, JB Pardiwala, pointed out that there was an increase in personal attacks against judges on social media “This is where the digital and social media needs to be mandatorily regulated in the country to preserve the rule of law,” he said.

Not disappointed

However, not all lawyers subscribe to the view that judicial conduct has declined precipitously under this government. “I am not disappointed or surprised,” Sanjay Hegde said. “The judiciary, especially the higher judiciary has always been a conformist institution, which gets more conformist when there is a government with a powerful majority.”

Some lawyers argue that criticism may be driven by politics rather than law. “Depending on their political ideology, people may find the Supreme Court to have been the worst at different points,” advocate Nikhil Mehra said. “While there are disappointing judgments and disappointing days, I have seen the system work in cases which may not be covered by the news.”

He added: “When people say they are losing faith, they might mean the big-ticket items are not working in ways which they want. The Supreme Court has always been pro-government. But it is not like my faith is shaking.”

And, finally, some lawyers are also hopeful that things will get better. “I am not disappointed with courts,” former chief justice of the Allahabad High Court Govind Mathur told Scroll.in. “I have hope in the system. Our judicial system is workable, there are some weaknesses which come, but that does not make it unworkable.”