Sitting on a high moral pedestal, and assuming they alone have the good of the country uppermost in their minds, members of the higher judiciary have increasingly taken to delivering themselves of commonplace homilies. High Court and Supreme Court judges seem to believe that they alone possess the high moral power to sit in judgment even in matters which do not strictly entail an interpretation either of law or the Constitution. Often playing to the gallery, they lace their oral remarks with moral strictures against all and sundry. One case that comes to mind is the ill-tempered and wholly uncalled-for vituperative remarks by an honourable judge in the Nupur Sharma case. For a day, the good judge stole headlines, endearing himself to the so-called secularist-liberal crowd, but only a or two later the court had to grant the relief to Nupur Sharma as provided in law, and given by the same court in similar cases.
To come to the point, notwithstanding the general endorsement of its order last week concerning the appointment of the Chief Election Commissioners and Election Commissioners by a collegium of the Prime Minister, Leader of the Opposition and the Chief Justice of India, the gratuitous remarks questioning the integrity of the Election Commission were highly avoidable. Judges of the Supreme Court they may be, but they are neither above caprice nor beyond other base considerations. For evidence, the court has nowhere to look but at its own case-laws. The father and son team of lawyers, Shanti Bhushan and Prashant Bhushan, not long ago had the courage to hold the mirror to the apex court, asserting in an affidavit that a good dozen of former CJIs were corrupt.
It will help the cause of harmony between various branches of our governance system if the judges eschewed the temptation to hold forth as Popes Incarnate, berating everyone high and low in a position of authority in the political and bureaucratic spheres. Indeed, the judges have no reason to tick off the media if sections of it choose to be partisan. That too is fully in the ambit of the fundamental right of freedom of expression. Last week’s order noted that since respective governments had failed to frame a law under Article 324 (2) of the Constitution as to how to appoint the CEC and ECs, the court will itself fill in the lag, providing the process for their appointments henceforth. Were the executive to turn around and say that since the courts cumulatively had failed to dispose of tens of millions of cases at different levels of the judiciary it is empowering the respective police stations under whom these fall to adjudicate them? Of course, this is a ridiculous counter, but nonetheless reflects a justified sense of discomfiture at the courts assuming to be the repository of all wisdom, proffering answers to all the ills afflicting the relatively young Republic.
A moment’s reflection, untouched by the holier-than-thou spirit that normally permeates the hallowed confines of the higher judiciary, would make the judges realise that in the Constitutional scheme of things they are neither superior nor junior to the other branches of the governing system envisaged by the Founding Fathers. Like all democracies we too are going through a learning process. We make mistakes, but learn from them. The truth is that the Election Commission of 2023 is a huge improvement on the Election Commission of, say, 1963 or 1973 when it was virtually an extension of the Law Ministry. Post-T N Seshan, we have seen huge improvements, there is a lot more transparency in EC’s functioning than at any time before. We know the judges mean well. We do not for a split second question their integrity. But Their Lordships will do themselves, and the court they are blessed to preside over, a great favour by using restraint both in word and speech. Their judicial pronouncements should be judicial, not smack of an ingrained sense of superiority over all things governmental, nay, Constitutional. A little bit of humility will do Their Lordships a lot of good.
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