Respect the guardians who guard our Constitution
Every Member of Parliament, Member of Legislative Assembly or any other functionary under the Constitution has to swear an oath to bear “true faith and allegiance to the Constitution”. The same Constitution makes Supreme Court decisions binding on all courts and authorities, and judgments of a high court on all courts and authorities within the state.
The Constitution requires government authorities “to act in aid of the Supreme Court”, which means that the government must ensure compliance of court orders and ensure that society functions under the rule of law. While courts have the power to punish for contempt, they rarely use that power.
Judges and courts speak only through their judgments (barring rare interactions with the press at public events) In their functioning, they too are required to adhere to the Constitution and do their duties of deciding cases without fear, favour, affection or ill will. But when questions are raised and motives attributed to their decisions on extraneous considerations, it is not the individual judge alone who is targeted but the legal and moral authority of courts is questioned. In fact, it’s an affront to the Constitution itself.
While other Constitutional functionaries can respond to such attacks in the public domain, by the nature of the post they hold, judges must maintain a stoic silence, except when and if contempt power is used. And instituting defamation proceedings — criminal or civil — is not a remedy judges can practically use.
The opposition to the Supreme Court’s 2018 Sabarimala decision, and recent tweets by journalist and economic analyst S Gurumurthy about the decisions of the Delhi high court in the Bhima Koregaon violence case (remand of Gautam Navlakha) led the high court to initiate contempt proceedings. As the matter is sub judice, I will not dwell on it, but such examples raise a larger concern. How are those sworn to uphold the Constitution questioning, attacking and denigrating Constitutional institutions such as courts? And to what end?
In the 2012 Sahara case, a five-judge bench of the Supreme Court permitted gag orders as a preemptive mechanism in pending proceedings as it was sensitive to reports and comments leading to a “real and substantial risk of prejudice to the proper administration of justice” and “the fairness of trial”. Experience has shown that such orders are a rarity.
The 3rd Schedule of the Constitution that provides the form of oaths by constitutional functionaries was amended in 1963 to require candidates to Parliament and state legislatures to add the words “uphold the sovereignty and integrity of India”. Surely this includes respect for the institutions of governance, including the courts.
We live in a time in which conflict is common between, and within, institutions. Faced with long administrative delays, people often turn to the courts for relief. In such situations, courts have responded often by directing governments to perform their statutory and constitutional duties. This has led to complaints of judicial overreach and of crossing the ‘Lakshman rekha’ (sacred line). Courts on occasion give guidelines in situations in which appropriate law doesn’t exist — and till the time such legislation comes into force.
Classic examples are the Vishaka guidelines (1996) by the SC that eventually led to a law being drafted in 2013 to curb sexual harassment of women at the work place, and the PUCL case (1997), which made guidelines for regulating phone tapping, leading to the amendment of Telegraph rules. The growing number of PILs have seen judges extending their jurisdiction into areas of governance.
Within the ranks of our elected representatives there is a push back, which is not always through Constitutional methods but in the more convenient domain of prime time television, social or print media — the space where judges can’t venture. The recent incident involving Delhi MP, Manoj Tiwari, is a case in point, where the Supreme Court did deprecate his conduct but stopped short of indicting him for contempt.
For the losing party, adverse court orders are never acceptable. But before castigating the judicial system or casting undue aspersions on judges, it must not be forgotten that the very same courts are the guardians of our fundamental rights and that come to the rescue of the underprivileged, the disenfranchised and those questioning governments’ actions.
We cannot engender either opinions or values which hit at the very heart of what we stand for. The Constitution is not just a book; it is India’s heartbeat and, more than that, our moral compass. Its guardians must therefore be shown due respect because in disrespecting them, we are disrespecting who ‘we the people’ are.
It is time that the holders of public office who swear to uphold the Constitution revisit their commitment and remember their oath is on the Constitution — and not to swear oaths at constitutional institutions such as courts. Accountability and public office cannot be bereft of a responsible behaviour.
Sidharth Luthra is senior advocate, Supreme Court
The views expressed are personal