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Populism caution to judges

- Go by law, not majority opinion, says chief justice

Jan. 14: The country’s top judge today advised the judiciary to work as independently of public sentiments as of politics, stressing that courts should deliver rulings according to the law and not the majority opinion.

“Apart from independence from politics, the judiciary also needs independence from popular interest,” PTI quoted Chief Justice of India (CJI) S.H. Kapadia as saying while presiding over the Nani Palkhivala Memorial Trust Lecture in Mumbai.

“If an order is not in favour of a particular group, then the judge faces a backlash. An atmosphere is created whereby pressure is exerted on the judge,” he added, describing the reality of public opinion putting courts under pressure.

Justice Kapadia’s remarks coincided with a perception that the lower courts, while deciding bail, were being influenced by community sentiments, egged on by high-voltage TV coverage. The Supreme Court had recently reminded courts that bail was the rule and denial the exception, following which many of the 2G scam accused were released from jail, pending trial.

The chief justice’s statement today will also draw attention in Calcutta where seven AMRI directors have been repeatedly denied bail following the December 9 fire that killed 91 people and stirred popular anger.

To some, Justice Kapadia’s comments appeared to reflect a sort of soul-searching within a judiciary that has increasingly played an activist role in recent years, emboldened by popular opinion, a governance deficit and a divided legislature.

A simultaneous media explosion, they said, too put abnormal pressure on the government and the judiciary. Pressure groups arose, the PIL culture flourished and judicial overreach appeared to acquire some legitimacy because of the political class’s dwindling credibility.

In his first year in office, Kapadia had himself controversially invoked the “institutional integrity” doctrine to quash P.J. Thomas’s appointment as the chief vigilance commissioner.

But since then, he has shown a keen awareness of the dangers of judicial overreach under popular pressure and has been cautioning the courts against upsetting the balance of power in a democracy.

On November 26, the CJI had publicly acknowledged the executive’s constraints and the courts’ need to exercise restraint.

“The judiciary needs to work in the area demarcated by the Constitution. Awareness about rights has grown while redress from the executive has been reduced. The executive has its own compulsions: huge population, lack of resources, high inflation, global economic reasons,” he had said.

His words today came at a time the courts have been criticised for stepping on the executive’s toes by ordering former judges to take over a black money probe.

Senior counsel Rajeev Dhavan, however, refused to interpret the speech as one heralding an era of judicial restraint. He said Justice Kapadia’s views appeared to be more of a caution against yielding to majoritarianism.

“After all, the courts are the bulwark against majoritarianism the world over,” Dhavan said.

The CJI also asked his colleagues to look inwards.

“The law is not separate from morality. In our (judges’) thinking and behaviour, we need to give importance to intellectual integrity. When people say there are several loopholes in the law, I agree, but the problem arises when there are loopholes in our (judges’) character too.”

Justice Kapadia said judges with “judicial integrity” should not worry about legislation such as the judicial accountability bill, which has been tabled in Parliament and has apparently upset a few judges.

He also advised fellow judges to keep themselves abreast of current affairs. “The courts should realise the consequences of their judgments. In today’s time, the law cannot be separated from economics and finance.”

Justice Kapadia regretted that senior lawyers were not contributing to the field of law.

“Senior lawyers are busy making money from Mondays to Fridays. They don’t contribute to the development of the law, because of which the burden falls on the judges. The judges have to fall back on foreign jurisprudence in the absence of meaningful contributions from India,” he noted.