What the Supreme Court doesn't talk about when discussing freedom of speech

It’s indeed a tricky task to criticise the Supreme Court - whether it’s the judgments or the judges. The institution which is the supreme guardian of fundamental rights, liberties and the Constitution of India has a troubled relationship with criticism.

The line between contempt and fair criticism is not very clear, at least when it is about the judiciary. The instance of senior advocate Dushyant Dave levelling allegations against the Chief Justice of India is a case in point.

While reporting for more than two years from the Supreme Court, I have often heard whispers and stray comments about judges being "pro"- or "anti"- government. Journalists are very generous to pass such "judgements". But any further discussion on the fairness of these "judgements" might not be a fair exercise of my fundamental right of "freedom of expression".

Today while hearing a case pertaining to comments made by Samajwadi Party leader Azam Khan on the Bulandshahr rape case (in which he called the entire incident a "political conspiracy"), a discussion started on social media. Ace lawyer Harish Salve said he deleted his Twitter account, as the social media space is highly abusive. Constitution expert Fali Nariman said he is in a happy space as he never had a social media account.

Although there has been and will be much discussion on the "menace" of social media, there is another crucial aspect which shouldn’t be missed - the politics behind the appointment of judges through the collegium process, how judges hear the cases in the top court and few rules about how the obvious is never talked about.

During the course of the hearing, justice DY Chandrachud, sitting on a bench with the chief justice of India, Dipak Misra,  categorically retorted upon a comment made by senior lawyer Dushyant Dave on television, where he had alleged that the top judges are close to the government. Dave had made specific allegations against the present chief justice of India, working of the collegium and had openly spoken about the closeness of top judges to the executive.

Justice Chandrachud said, "Some member from the Bar commented that the Supreme Court is dominated by pro-government judges. They should come and sit in the Supreme Court to see how the government is hauled up in favour of citizens’ rights."

While everyone in the corridors of the Supreme Court whether its lawyers, journalists or litigants discuss their own perceptions about the political leanings of judges, there is an unwritten rule that there cannot be any open public discussion on this topic.

I do not intend to imply with certainty that there are political leanings - there might be none, but the problem is with the complete absence of any discussion on the same in the public space.

In far more developed democracies like the United States and the United Kingdom, there is ample academic research on political and ideological leanings of judges. But a country like ours, which has one of the most powerful supreme courts in the world, still awaits a transparent mechanism to appoint judges.

There is no law, data or guidelines on how judges shall take post-retirement jobs. Much has been talked about a "cooling-off period" before judges take post-retirement jobs, but executive attempts to legislate on judiciary fell flat when the Supreme Court declared the National Judicial Appointments Commission unconstitutional.

One would remember the time when former CJI TS Thakur was at the helm of affairs. There was a constant war of words and judicial appointments had become an open court battle through a public interest litigation.

Now, with the PIL disposed of, voices of dissent are heard from within the bar. Earlier an article by senior lawyer Rajeev Dhavan openly criticised former CJI JS Khehar, and now its Dushyant Dave, who has spoken against the present chief justice of India, Dipak Misra.

In the historic NJAC judgment, dissenting judge justice J Chelameswar had spoken about the need to do away with the collegium. His dissenting judgment hails accountability and transparency for the judges to do away with judicial corruption. The much-awaited memorandum of procedure for appointment of judges is stuck between the collegium and the government with no consensus.

I hail the Supreme Court which laid down the Magna Carta of citizens’ rights against the government and large corporations through its privacy judgment, but a question begs to be answered. What about the rights of citizens against its own judiciary? A citizen’s right to know how judges are appointed, why they are appointed, and the right to have a free and open discussion about judicial corruption and accountability?

I do not support any view of any lawyer against any judge, personal attacks always take away the focus from a systemic issue. But I do wish to argue that there should be a constructive, free and fair debate in the public space on bringing more transparency and accountability in the functioning of the judiciary. One should not be scared to talk about the judiciary or the judges.

Is it not ironic that the same court has been a champion of free speech when it comes under attack from the government?

Also read: My sweet lord, don't place yourself above the people