Should judges step out in burqa to know what people think of them?

If one were to go by its track record in responding to criticism, the Supreme Court's silence regarding Dushyant Dave's withering attack is a bit surprising. Last week, the senior advocate and president of the Supreme Court Bar Association launched into a veritable tirade, daring the judges to conceal themselves in burqas and step out among the people to get a taste of public opinion. Dave also accused the judiciary of discriminatory treatment of bail applicants, cavalier neglect of riot victims' plight, and protecting police officers accused of staging encounters.

Almost five years ago, in September 2010, when lawyer-activist Prashant Bhushan and his father Shanti Bhushan, a former law minister, submitted affidavits to allege that eight chief justices of India had indulged in serious corruption and gross impropriety, the judges were quick to make use of the tool of criminal contempt against the duo. It must be mentioned that the judges themselves didn't initiate contempt proceedings, but were only too happy to oblige Harish Salve who contended that the Bhushans had insulted and scandalised the judiciary.

For all we know, the silence in the present case could well be strategic. The court has come under heavy criticism from a government that is determined to have its way with the National Judicial Appointments Commission; one which is leaving no stone unturned to dig up as many skeletons from the judicial closet as possible. A string of rulings and incidents in the not-so-distant past have also caused a stir among civil society and the public, leaving both displeased and disenchanted, if not livid.

Opinionated, but closed to public opinion

Are judges ignorant of, or immune to, or disregard, or even scorn public opinion? Yes, they are required to remain aloof, but does it allow for the existence in an ivory tower?

Before answering these questions, it's important to consider the relationship between judges and public opinion. Laws are made for society, and judges are to interpret them for the people, in public interest. So they definitely have public opinion in mind while delivering judgements. Sometimes, especially while handing down death sentences, they have paid more than a fair share of attention to what the public wants. Men have been sentenced to the gallows to "satisfy the collective conscience of society" and to do justice to "public abhorrence of the crime". There are many more similar instances in different contexts, but the lack of empirical data means that we can only hint at an association between judgements and public opinion, but cannot make the leap from association to causation.

There is no public survey about what people think of the Supreme Court or the judiciary, and even if there were any, the "opinion" reflected would be more a leap of faith than actual knowledge. The lack of awareness and understanding of not what the court held, but how it arrived at those decisions, coupled with the deficiencies in legal reporting by the media are to blame.

Scorning the public

It's true that critique and criticism of the judiciary's functioning tend to be more populist in nature, partly because of the nature of "discussions and debates" in the public domain - prime time TV, mostly, and also significantly because of the institution's unwillingness to face public scrutiny. But then, should the judiciary, which is supposed to be a counter majoritarian institution, bother? While this is a legitimate question which has no easy or short answers, it is also true that a healthy and optimal distance from public opinion isn't the same as disregard or holding a dim view of the same.

This is where our judiciary slips. On one hand, it claims to be the champion of "public interest" and protector of the democratic rights of the common man - the poor, marginalised and oppressed, and on the other, displays utter condescension towards the same group.

A judgement delivered on January 20 this year is a perfect illustration. MV Jayarajan, a former CPI(M) MLA from Kerala, was addressing a rally of villagers and tribals who were demanding land rights. In his speech, the MLA slammed a Kerala High Court judgement banning roadside meetings and public rallies, saying that some "shumbhan" (fool) in the court was stamping upon the people's fundamental right to freedom of association. The high court, on its own, charged him with contempt and found him guilty. In his appeal to the apex court, Jayarajan, without being apologetic, explained the context of his statement, emphasising that the high court's judgement was so impractical for implementation that it was being openly flouted, with the police at a loss. Instead of reviewing the logistics and attempting a course correction, the court accused Jayarajan of deliberately eroding "rustic and illiterate" people's faith in the judiciary.

For far too long, the judiciary has gotten away with building a halo around itself and crushing any criticism of its actions. Unless it urgently remedies its dealing with public opinion, rebukes like the one delivered by Dave, even if as part of litigation strategy, would make it vulnerable to people's discontent.