Why is the judiciary under pressure?

Hearing the plea on hate speeches by BJP leaders ahead of the Delhi riots, the Supreme Court said that it is feeling “pressure” of the circumstances and cannot “handle” the pressure.

 |  5-minute read |   05-03-2020
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Weeks after the Delhi assembly elections where the Aam Aadmi Party witnessed a significant victory with 62 seats followed by the Bharatiya Janata Party with just 8 seats, the capital was shaken by violent riots. The riots took place in North East Delhi, and around six areas of the district witnessed the worst violence. The death toll of the riot is increasing every day and now the official figure has reached 47, which is higher than the official death toll of Uttar Pradesh’s Muzaffarnagar riots.

Before and after the Delhi election, BJP leaders have made many inflammatory speeches in Delhi targetting Muslims, and just a day before the riot, BJP leader Kapil Mishra threatened the anti-CAA protestors of Jafrabad in Delhi. People from across the spectrum protested and a group of petitioners moved the Delhi High Court against the leaders who made these hate speeches. The Delhi HC first ordered the immediate arrest of leaders but later provided four weeks to the Delhi police to file the FIRs. Challenging the decisions, petitions were moved in the Supreme Court too.

Bar and Bench reported, “The plea has been moved by victims of the Delhi riots. Appearing for the petitioners, senior counsel Colin Gonsalves urged the Court to intervene so that action is taken as per law, and without undue favour to influential persons.” During the hearing, the Chief Justice of India said that the Supreme Court of India is feeling the “pressure” of the circumstances and they cannot “handle” this pressure.

According to Bar and Bench, the CJI observed, “We are not saying people should die. That kind of pressure we are not equipped to handle. We cannot stop things from happening. We cannot give preventive reliefs. We feel a kind of pressure on us... We can only deal with the situation after it occurs, the kind of pressure on us, we can’t handle that... it’s like Court is responsible. We are reading newspapers, we know the kind of comments is made. Courts come on to the scene after the thing is done and courts have not been able to prevent such a thing."

This leads us to the question: why is the apex court feeling such pressure, considering the judiciary is one of the most important pillars of democracy?

We in the middle of changing times. The change in political narrative is taking place across the world and India is no exception. The notable part of this change in India is the rise of right-wing politics. The manner of polarisation that we have been witnessing since the BJP came to power is very different from the past. While communal violence in India is nothing new, the communal polarisation is something that most of us have not seen in the past and is new for the judiciary as well.

main_supreme-court_r_030420064548.jpgPressure on the judiciary is the last thing that our democracy needs at this point in time. (Photo: Reuters)

The pattern of communication is also changing in India. Over the decades, media has become more opinionated. Primetime shows on news channels are filled with biased narratives with communal overtones. The propaganda spreads very fast and every citizen today has an opinion — either in favour of or against polarisation. The judges are part of the same society. Therefore, it is unlikely that this changing pattern of communication will not affect them.

The other aspect of media today is to grant massive coverage to everything about those in the spotlight. Earlier, statements made by top judges outside the courtroom would have been ignored. However, take the case of Supreme Court judge Arun Mishra, who recently praised PM Modi saying that he is a “genius” and “internationally acclaimed visionary”. The statement garnered widespread coverage and the Bar Association of India and others registered their protest against the statements.

To expect that the judges will not have a personal opinion would be erroneous. However, it is time to ponder if the custodians of the judiciary should be cautious about their expressions in public, because such incidents put enormous pressure on the judicial system in the country. Even as the relationship between politicians and judges raises questions, the changing equations between lawyers and judges are also under the scanner. Government and judiciary are different entities, and this individuality is important for our democracy. Therefore, the necessary distance between them should be maintained. In the last few years, we have witnessed this necessary distance not being paid any regard to. Undoubtedly, this situation affects the public conscience. And thereafter, it can pressurise the judiciary as well.

Recently, Justice Muralidhar of the Delhi HC took a strong stand against the hate speeches made by the BJP leaders in Delhi and ordered FIRs within 24 hours. Almost immediately after he passed the order, he was transferred to the Punjab and Haryana High Court. The government has maintained that they followed the routine protocol of transferring HC judges. However, the blurring lines of demarcation between the government and judiciary puts such incidents in the negative spotlight and brings it under the scanner of suspicion. 

The recent years have also seen a trend of challenging every major decision of the government in the courts — be it Karnataka’s government formation, or abrogation of Article 370, or the Citizenship Amendment Act. Such petitions not only weaken the democracy but also force the judiciary to intervene in parliamentary structure. This is pressurising for the judiciary in the long run. 

Pressure on the judiciary is the last thing our democracy needs at this point in time. It is time we understood that every institution should reaffirm their places in democracy for the sake of the constitution. The more we become dependent on one institution and ignore others, the more pressure will build, and it will end up harming us the most.

Also read: Justice Gogoi case: Why Supreme Court staffer's reinstatement needs more clarity


Sayantan Ghosh Sayantan Ghosh @sayantan_gh

The author is an associate research fellow with the Delhi Assembly Research Center.

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