Friday, September 14, 2012

The Jurisprudence of Constitutional Structures

Chief Justice of India, Justice S.H.Kapadia gave an interesting lecture on the subject at IIC recently.  The webcast of the lecture is available here.  In his speech, the CJI alluded to the Supreme Court's judgment in In Re Ramlila Maidan Incident, delivered by a Division Bench comprising Justice Dr.B.S.Chauhan and Justice Swatanter Kumar, and asked whether judiciary  could enforce the right to sleep.  The speech has attracted criticism from some who feel that the CJI might have erred on the question of propriety.

Recently, a similar argument was advanced by  Arghya Sengupta, in The Hindu.  He argued that former Judge, Justice Ganguly's post-retirement utterances on the 2G case might suggest that our Court is turning political, and that his interaction with the media on the issue was uncalled for.  I disagree with both Arghya and the critics of the CJI.  Arghya is perhaps wrong in suggesting that our Court was non-political in the past, and that a 'political' Court is an anathema.  He is also unconvincing when he says that Judges are entitled to express their views after considerable passage of time from the delivery of their judgments, but not immediately.  But he is in favour of  release of  official summary of  the court judgments.  Can the Court release an official summary, without consulting the Judge who delivered it? What if the Judge disagrees with it, if prepared without consulting him?

The public display of differences between Justice Chandrachud and Justice Bhagwati has been well documented.  Upendra Baxi's book is a pointer that our Court has been a political institution. Justice Krishna Iyer has once said that it is not a sin that Judges hold political views, and even express them; however, it would have been a sin if they concealed it.

Readers know what happened to Justice Bhakthavatsala recently, when he had to be relieved of family court matters, following his sexist remarks in the Court.  Had his bias been known earlier, he could have been relieved of the family court matter long ago.  Our system does not encourage intense interrogation of Judges by the media on various issues of public importance, without touching the pending matters.  If the Judges volunteer to express their views, conservatives amongst us are outraged.

Judges have to be outspoken  before their appointment as the Judges, on and off the Bench.  Granted their off-the-bench utterances cannot influence the interpretation of their judgments, the public should not be deprived of an opportunity to assess the Judges' judicial philosophies, by this unreasonable self-imposed restraint.  The Judges can always refuse to reveal their minds if their views have any bearing on the pending cases, but why should they restrain themselves from going public on major issues, on the hypothetical prospect that some of them may become subjects of litigation?

1 comment:

Hsotuhsa said...

I am not a Lawyer but it seems to be inappropriate for a sitting CJI to air his views so openly especially from a platform shared with the head of the executive on matters which may eventually land on his table.It appears that the minions of the ruling party wasted no time in advertising his opinions as an endorsement of their own line of thinking with regards to the CAGs methodology.