Chief Justice of India N.V. Ramana on Wednesday asserted that the judiciary needed “complete freedom” from any extraneous influence to be “able to apply checks on governmental power and action” and enforce the rule of law.
“For the judiciary to apply checks on governmental power and action, it has to have complete freedom. The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the rule of law would become illusory,” Justice Ramana said while delivering the 17th Justice P.D. Desai Memorial Lecture in New Delhi on Wednesday evening.
The CJI said: “At the same time, judges should not be swayed by the emotional pitch of public opinion either, which is getting amplified through social media platforms. Judges have to be mindful of the fact that the noise thus amplified is not necessarily reflective of what is right and what majority believes in.”
“The new media tools that have enormous amplifying ability are incapable of distinguishing between right and wrong, good and bad and the real and fake. Therefore, media trials cannot be a guiding factor in deciding cases,” the CJI said.
“It is, therefore, extremely vital to function independently and withstand all external aids and pressures. While there is a lot of discussion about the pressure from the executive, it is also imperative to start a discourse as to how social media trends can affect the institution,” Justice Ramana added.
He made it clear that he was by no means suggesting that judges and the judiciary needed to be completely disassociated from what is happening around them. Judges cannot stay in “ivory castles” and decide questions that pertain to social issues, the CJI said.
Since 2014, there has been frequent friction between the judiciary and the executive. That year, the Narendra Modi government had introduced the National Judicial Appointments Commission for selecting judges instead of the prevalent system of appointments made by the Supreme Court collegium. The NJAC was struck down as unconstitutional by a five-judge Supreme Court bench in October 2015.
The Centre has been accused of sitting on several recommendations of the Supreme Court collegium for elevation of judges to high courts and the apex court although around 40 per cent of judge posts are lying vacant in high courts. The Supreme Court has on multiple occasions queried the government on the status of the recommendations.
Justice Ramana pointed out that in the 17 Lok Sabha elections held so far, the people have changed the ruling party or a combination of parties eight times. In spite of large-scale inequalities, illiteracy, backwardness, poverty and alleged ignorance, the people of independent India have proved themselves to be intelligent and up to the task, the judge said.
“The masses have performed their duties reasonably well. Now, it is the turn of those who are manning the key organs of the State to ponder if they are living up to the constitutional mandate,” Justice Ramana said.
“It has always been well recognised that the mere right to change the ruler once every few years by itself need not be a guarantee against tyranny. The idea that people are the ultimate sovereign is also to be found in notions of human dignity and autonomy.
“A public discourse that is both reasoned and reasonable is to be seen as an inherent aspect of human dignity and hence essential to a properly functioning democracy,” Justice Ramana said.
The CJI quoted Rabindranath Tagore: “Where the mind is without fear and the head is held high. Where knowledge is free…”
He also quoted Telugu poet Gurujada Appa Rao to say: “A nation is not merely a territory. A nation is essentially its people. Only when its people progress, the nation progresses.”
Justice Ramana said a judge’s “ultimate responsibility” was to uphold the Constitution and laws.
“The oath we took, to perform our duties ‘without fear or favour, affection or ill-will’, applies equally to governmental and non-governmental entities. The ultimate responsibility of a judge is, after all, to uphold the Constitution and the laws. Reason, reasonableness and protection of human dignity are the values that will serve us well,” he said.
Observing that law was a double-edged sword, Justice Ramana said: “It can be used not only to render justice, it can also be used to justify oppression.”
The CJI said an “unjust law” might not have the same moral legitimacy as a “just law”, but it might still command the obedience of some sections of the society to the detriment of others.
Justice Ramana noted that during colonial rule the British used the law as a tool of political repression, enforcing it unequally on the British and the Indians.
“It was an enterprise famous for ‘rule by law’, rather than “rule of law” as it aimed at controlling the Indian subjects. Judicial remedies lost their significance as they were administered keeping in view the best interests of the colonial power, rather than what was just or legal,” Justice Ramana said.
