Updated: Aug 16, 2020

New Delhi: On 22 July, the Supreme Court took suo motu cognizance of two tweets by Prashant Bhushan, and issued a notice of contempt to him. Bhushan is a well-regarded lawyer who has been lauded for his significant contribution to public interest litigation and is widely considered to be fearless in his fight against corruption in high places.

The Supreme Court found, prima facie, that his tweets "have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution of Supreme Court (sic) in general and the office of the Chief Justice of India in particular, in the eyes of public (sic) at large".

The court's action is part of an overall reaction to the relentless public criticism it has faced in recent months, particularly on social media, and the feeling in some quarters that the extent, content and severity of the criticism is undermining the authority of the court, requiring a firm legal response against such reckless critics. I disagree. A bully controls the schoolyard through fear, often mistaking it for respect.

While the legitimacy of the court is engrafted in the Constitution, its credibility and people's faith in the institution is in its own hands. As independent institutions such as the Election Commission and the Reserve Bank of India seemingly submit to political interference, the judiciary enjoys a better reputation. That may not last.

While public discourse still reflects hope in the higher judiciary as a bulwark against majoritarian excesses, the chorus of disappointment and criticism is steadily growing.

Eroding Credibility

When in 2018, four senior sitting judges of the Supreme Court held a press conference and aired their grievances against the administration of the court by the then Chief Justice, hinting at government interference, warning that democracy was in peril, it marked a watershed in the history of the institution. Since then, the Supreme Court has done little to redress the perception of an institution in crisis.

Unexplained transfers of judges such as Justice Akil Kureshi from Madhya Pradesh to Tripura, and the "midnight" transfer of Justice S. Muralidhar from Delhi to Chandigarh have fueled negative speculation. A Chief Justice presiding over a special hearing on a Saturday in connection with sexual harassment allegations against himself sparked outrage, compounded considerably by his quick exoneration by an internal committee of the court, and his post-retirement nomination to the Rajya Sabha. The judiciary must not be governed by public perception, but justice must also be seen to be done.

The increasing incidence of sealed-cover jurisprudence, where the government engages privately with the court, in a public hearing, without sharing information with the opposite party, has occasioned considerable protest. The almost naive acceptance of assurances from the government without even the most basic scrutiny - for example, the Solicitor General assuring the court on 31 March that no migrant was on the road - has triggered comment about excessive judicial deference to the executive.

After unsparing public criticism, including from senior members of the legal community, the Supreme Court eventually intervened belatedly with directions to address the migrant crisis. Eminent jurist Fali Nariman, in an interview to Bar and Bench on 22 July), remarked that the Supreme Court handled the migrant crisis "appallingly".

Matters involving personal liberty, such as habeas corpus petitions, traditionally treated with dispatch, have been uncharacteristically deferred. Important constitutional law challenges, such as to the abrogation of Article 370, have been put on the backburner. There is a perceived failure to check the blatant misuse by law enforcement agencies of "anti-terror" laws like the Unlawful Activities (Prevention) Act, 1967 and the Jammu and Kashmir Public Safety Act, 1978. The cumulative effect is public criticism rising to fever pitch in the past few months. The perception is of a court deviating from its constitutional role as a guardian of cherished individual rights when confronted with a muscular, majoritarian dispensation.

Open Criticism Led By Social Media

Criticism of the judiciary is not new, in India or in other parts of the world. Something has changed though. The advent of social media has transformed the scale and pitch of the criticism. The earlier reticence towards public expression of a privately held perception has eased.

There are many more voices, a number of them behind cloaks of anonymity, that now openly proclaim, often in extreme terms, their deep disappointment with the courts. Finding comfort in numbers, others, such as lawyers and retired judges, who might earlier have been circumspect, feel encouraged to be more openly critical. Censorious voices on social media find increasing resonance in mainstream print and online media.

In the past, acute awareness of the misconduct and malpractices within both the bench and the bar was principally confined to insiders. But the failings of the system, now being stridently broadcast on social media, has a far wider audience. The glare of public scrutiny has heightened exponentially.

"Public" hearings of cases have for long been restricted to those present in court, with the judiciary stoutly resisting their recording or live transmission. However, live reporting of proceedings by online legal platforms now carry court action beyond the courtroom. Each observation, each misstep is the subject of widespread comment.

I imagine that the pressure this creates on judges is considerable. Their inability to respond directly to unjust criticism must be painfully inhibiting. But that is an occupational hazard, and judges should continue to steel themselves against ill-informed commentary. As they say, “the dogs bark, but the caravan goes on.” After all, they are certainly made of sterner stuff to discharge their constitutional duties, and enjoy the privilege that comes with the office.

An institutional response was perhaps inevitable. Regrettably, instead of addressing legitimate criticism with meaningful change, countervailing voices of judges and lawyers have emerged, cautioning the more extreme critics against crossing the lakshman rekha of permissible criticism. While decrying the criticism as being exaggerated and unfair may reflect a valid counterpoint, what is disquieting are the calls for a swift, legal put down.

Harish Salve, a renowned legal luminary, in a 29 May 2020 webinar hosted by CAN Foundation cautioned that “anything which undermines the institution rather than criticizes the institution, that has to be where we stop. That is where the freedom of speech ends, and that is where you cross the bounds of legitimacy”. He further advocated that “not only you can but you should bring the might of the law down on such criticism.”

Former Chief Justice Ranjan Gogoi on 13 May, in a discussion on the “Independence of the Judiciary - contemporary challenges” warned against an "ideological group of people" who he believes occupy a disproportionate amount of public space and “who expect judges to exercise their constitutional duties in a particular manner and if you don't conform you will become the target of attack.” In his view, “the danger again lies in the system not being able to meet this threat to the independence of the judiciary, which can spell disaster.”

The Solicitor General also pitched in on 28 May with an impassioned outburst in the course of a hearing in Supreme Court of a PIL relating to the migrant crisis:

"There are Prophets of Doom in our country which only spread negativity, negativity and negativity. These people are always sceptical about everything. These arm chair intellectuals do not recognize the nation's effort in dealing with the crisis. All these people squabbling on social media, giving interviews, writing articles against every other institution, cannot even acknowledge what is being done by the government."

My experience of almost two decades of legal practice has been an overwhelmingly positive one, and I continue to repose faith in the judiciary. That said, I believe the institution is facing its greatest crisis of credibility since the dark chapter of the Emergency.

Its biggest challenge is from within, and that is also from where it must find the strength to preserve the good name it has deservedly earned. To remain unresponsive to the root causes of the enlarging din of criticism, and instead to wield the blunt instrument of contempt against critical voices, howsoever unpleasant, is unlikely to enhance a faltering reputation. The court's energies are better spent in course correction. An institutional response is surely needed. But not this.

(Akhil Sibal is a senior advocate based in Delhi.)