Turf wars: When experienced legal minds attempt to sway the public

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A concerted attack on the independence of judiciary days before the general elections is not surprising, especially if one has been an observer of the manner in which narrative-based reporting of courts has been in vogue by legal handles.

Many Senior Advocates belonging to echo chambers & specific set of retired judges, have taken it upon themselves to make use of legal portals to endorse the view that the Judiciary is compromised and thus, the public should be worried is the ticker of every headline that is circulated. In other words, the idea that the Government is authoritarian and thus, the facade that it is meddling with decision making, corresponds with days left for the general elections.

The objective of an independent judiciary in India has been widely debated. While one viewpoint endorses the need for zero intervention by the executive in matters of appointment, others claim that the involvement of the executive has very little to do with effective independence. 

Nonetheless, many from the legal fraternity have failed to recognise how the independence of judiciary comes under direct threat when it is claimed that judges are politically partisan and bench-fixing has become the norm. This hypothesis is supported by showcasing judgements and orders in such a way so that they come forth as being “pro-government”, meaning thereby that any order or judgment which is passed by a particular bench or even otherwise, at times, is dictated to them by the ruling party. 

Contrast this with a judgment which deviates more towards a welfare perspective, disses the ruling party, or affects the ruling party in any manner. It is then automatically hailed as being an antidote to majoritarianism. 

Such immensely experienced legal minds have failed to understand that though the Constitution views the Indian republic in an ideal lens, the social realities and history of the democratic polity has proven that our justice system has been standing tall amid mighty powers. Indeed, it has its downsides and criticising them and adopting a solution-oriented approach towards solving them is important but attempting to overturn public opinion against judges & calling them sold out in better words is disgraceful. 

India’s constitution makers were extremely cautious about maintaining an independent judiciary and though, there are proponents of the view which project that this “independence” had little to do with de-linking appointments of judges from the executive, history dictates that it is only in the rarest of rare cases that the Chief Justice’s recommendation has not been accepted by the government.

A Senior Advocate recently pointed out in a speech given to at one of their legal handles, that the roster of judges which decide certain political cases is problematic and is coming in the way of dispensation of justice. Why is it that the same ilk refuses to comment on the overturning of the NJAC judgment? The NJAC Judgment or what came to be known as the “Fourth Judges case” solidified the establishment of judicial independence through judicial primacy. When judicial primacy is the norm, why and on what grounds is it being speculated that the primacy has been compromised? The truth is, the perception which is sought to be created in the minds of the general population is one of fear. In fact, another senior advocate who spoke with Mr Kapil Sibal at one of his talk shows on how the Constitutional supremacy has dissipated because of the ruling party, has repeatedly said that one must not only be wary but also fear what is happening with the Indian Judiciary. 

The world is not an ideal place but the lens of the Indian Constitution guarantees a fine perspective - improvement and coordination. Speculation that India is far from this lens and the judiciary is irresponsibly giving way to political partisanship by experienced legal minds is indeed a harrowing low. 

As a mere observer of Indian Law and Polity, one can only hope that good sense will prevail over these erudite and experienced senior lawyers and retired judicial members, hellbent on proving to the public that a ruling party has the mettle buy out the mighty Indian judiciary. 

As we move forward towards another dance of democracy in the upcoming general elections of 2024, let us not forget that the country needs all pillars working in tandem to survive. For lawyers and legal minds, there lies a larger responsibility - to remain sane and create a fine balance between all pillars so as to ensure none is hailed over the other and none is decried to merely push an agenda. Let us not forget the contributions of every functionary that makes the Indian republic vibrant enough to bear the greys of the black and white. 

As Shri K. Hanumanthaiya said during the constituent assembly debates is a noteworthy

“….it has become the fashion of the day with some people to decry the executive and make the judiciary look as if it is the paragon of all virtues. I would respectfully place this view before Prof. Shah and people of his way of thinking. Where as judges no doubt are impartial and they have no sides to take, we must remember also that the executive governments in India or any where else in the world, have to work under very difficult circumstances….”


Views of the author are personal