The Supreme Court is not final because it is infallible but it appears infallible only because it is final. This witty adage attributed to the U.S. Supreme Court judge Robert Jackson (1892-1954), who never graduated from law school but was one of the finest minds to adorn the U.S. Supreme Court, comes to mind after two recent verdicts delivered by our apex court.
A bench consisting of Justice Dipak Misra and Justice D.Y. Chandrachud of the Supreme Court recently dismissed a Public Interest Litigation (PIL) filed by V.K. Naswah from Bhopal in Madhya Pradesh. He had alleged that cricketing legend Sachin Tendulkar was misusing the Bharat Ratna to endorse commercial products an earning crores of rupees. While dismissing the PIL, the bench observed there was no statutory award to govern the conduct of awardees and the apex court should not go into this issue.
But when there is no statutory law on an issue raised before the superior judiciary, the courts fill in the gaps and lay down what is known as judge-made law. These judge-made laws sometimes trigger statutory laws enacted even after 45 years for the benefit of the people such as the Right to Information Act, 2005, whose seeds were sown as far back as 1960 in Hamdard Dawakhana versus Union of India, when the Supreme Court laid down that the right to information was part and parcel of the right to freedom of speech and expression which is contained in article 19 (1) (a) of the Constitution.
Hence by dismissing a well-thought PIL against the State and Tendulkar, the Supreme Court has indirectly conveyed to the people that although all are equal before the law, some are more equal than others. And if Sachin Tendulkar earns crores of rupees by endorsing products such as cola drinks (which are injurious to health), cameras, watches, tyres, insurance, biscuits and other things, well, that is his affair.
And if the advertiser exploits Tendulkar’s Bharat Ratna award to subliminally convey to the gullible masses that by buying products not remotely connected to cricket, they will emulate their brand ambassador, Tendulkar, well, then, that too cannot consume precious court time because justice is a subjective concept and those who are trained to deliver it are conservative.
In another case, the Supreme Court has rebuked Congress vice-president Rahul Gandhi for stating the Rashtriya Swayamsevak Sangh (RSS) was responsible for Mahatma Gandhi’s assassination. “You cannot make collective denunciations,” the apex court warned Rahul. The bench directed him to apologise or face a trial.
However, there is no doubt that Nathuram Godse assassinated Mahatma Gandhi because he felt the latter was favouring the Muslims. There is also no doubt that Godse was a Hindu nationalist and his brother Gopal Godse had declared that all four brothers were RSS members and of the Hindu Mahasabha which treated the Godses like a family, according to Wikipedia. That is why the RSS was banned in 1948 but after no evidence was found against it, the ban was lifted the next year.
The judges of the Supreme Court and the 24 high courts are intelligent, apolitical, and honest but they cannot be experts in all areas of human knowledge like history, sociology and mathematics. By warning Rahul to apologise or face a trial, they are in effect suppressing freedom of speech and the right to information of the people.
In ADM Jabalpur versus Shiv Kant Shukla, in 1975, the then chief justice of India, A.N.Ray, who superceded three seniors to lead the judicial family in India, laid down that “liberty itself is a gift of the law and may by the law be forfeited or abridged.” Nine high courts had held that detenus could challenge their illegal detentions. But this decision meant that if the police picked you up from your house at midnight, you were left to rot in jail.
The lone dissenting voice was that of Justice H.R. Khanna who knew he would be superceded by Justice M.H. Beg for giving a decision against the Indira Gandhi government. In his dissent, Khanna said, “What is at stake is the rule of law… the question is whether the law speaking through the authority of the Court shall be absolutely silenced and rendered mute…”
As Mahatma Gandhi said, justice that love gives is better than what the law gives. Because the latter is a punishment.