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Key Takeaways

  • Justice Oka was recently elevated to the Supreme Court. In a speech at a felicitation event in Thane District Courts Bar Association, he stated that the judiciary is currently facing a crisis of credibility and the legal profession should strive to restore the faith of the citizens in the judiciary.
  • The Supreme Court taking sou motu cognizance of Prashant Bhushan, for tweets critiquing the judiciary got flak from online society. This action of the judiciary was criticized for being an unnecessary exercise at a time when the top court was functioning in a limited manner due to the COVID-19 pandemic.
  • The UAPA arrests have seen the judiciary taking a backseat when free speech and the right to equality are under threat. Citizens were indiscriminately arrested under the act, and the judiciary was in no haste to grant bail.
  • The Judicial Standards and Accountability Bill, 2010 required judges to declare their assets, lays down judicial standards and establishes processes for removal of judges of the Supreme Court and High Courts. The purpose of the bill was to look into the issue of institutional integrity.

Introduction

Justice Abhay S. Oka took his oath as a Supreme Court Judge on 31st August 2021. He had served as the Chief Justice of the Karnataka High Court before his elevation. At a recent event in Maharashtra’s Thane District Courts Bar Association, Justice Oka addressed the “crisis of credibility” that the judiciary is currently facing and stated that legal professionals must ensure the backlog of cases caused by the COVID 19 pandemic is cleared. He further conveyed that if the third wave of the virus was to strike, judicial officers must ensure that the legal work continues uninterrupted and people are not kept from getting justice. The lawyers and the members of the legal profession should strive to restore the faith of the citizens in the judiciary. Giving an example of the Karnataka High Court, Justice Oka recalls how the judges in the court decided to work for 11 Saturdays during the pandemic to clear the backlog of cases that had accumulated. He advised such initiatives should be taken by other courts as well. He also acknowledged that there is an insufficiency of judges in the country, with the judge to population ratio being stood at 17 or 18 judges per million people. This issue must be addressed and an improvement in the ratio is called for.

Justice Oka is not the first to call out this issue. Supreme Court judges and other legal professionals have shed light on this issue before. In the past few years, some events have highlighted this issue especially.

Prashant Bhushan Case

Unfortunately, the crisis spoken about by Justice Oka has become apparent in the last few years. The Courts have notably given controversial judgments which have caused doubts in the minds of the public. When the huge backlog of cases due to COVID is added to the mix, it results in a discussion about the public faith in the judiciary.

In August of 2020, the Supreme Court took suomotu cognizance of two tweets accredited to Prashant Bhushan, a Civil rights lawyer. Mr. Bhushan was held in contempt of court, due to his tweets which addressed the Chief Justice at the time and his predecessors. The tweets were said to “scandalize the court” and “brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution of Supreme Court”. The court’s actions were seen as a response to the relentless public criticism faced by the judiciary on social media. The netizens came out in support of Mr. Bhushan, and this action was criticized for being an unnecessary exercise at a time when the top court was functioning in a limited manner due to the COVID-19 pandemic. His punishment was a token 1Rs fine.

Further, the issue was raised that the Supreme Court, by registering a sue motu case based on a private individual's petition, seems to have opened a can of worms by giving an easy shortcut to fame to anyone looking to institute baseless contempt proceedings. The use of contempt powers in such a manner affects the right to free speech under Article 19, and the right to equality under Article 14 of the Indian Constitution.

Unfettered use of UAPA

The UAPA Unlawful Activities (Prevention) Act is an anti-terror law that is supposed to be used only in rare instances. The UAPA was enacted in 1967 to promote and ensure national integration. But over the years, it has been used laxly and indiscriminately by the government. Statistics show that even though the arrest rate with UAPA is high, the conviction is very low, indicating that it is misused to harass and intimidate. A prominent example of the misuse of the law is the Bhima-Koregaon arrests. After spending two years in jail, the arrested were still awaiting bail. The Bombay High Court was reluctant to grant such bail. Among those who were awaiting bail was civil rights activist Stan Swamy, who passed away while still in custody.

The Judiciary is quick to protect the rights of citizens, and ensure speedy justice is given, but in the UAPA debate, it has taken a controversial position. It has been pointed out that there is no urgency to grant bail to those arrested under the Act, even when there is evidence against the accused. In the 2011 case of Sri Indra Das v. State of Assam, the Supreme Court delivered a headlining judgment, by providing relief to people baselessly arrested and termed as terrorists. In this case, the court specified that Section 3(5) of TADA and Section 10 of UAPA, which incriminate any members of a banned organization, cannot be interpreted literally and must be read along with Article 21 of the Constitution. Essentially, it stated that mere membership of a banned organization will not automatically incriminate a person unless they also resorted to violence or incited violence.

However, in 2019 the case of National Investigation Agency v.Zahoor Ahmad Shah Watali, the Supreme Court was recorded stating that “the elaborate examination or dissection of the evidence is not required to be done at this stage [of a grant of bail].” The court created a doctrine that would allow the police to keep an accused in custody throughout the trial period. The position of compassion it had taken in 2011 was changed. Justices Khanwilkar and Rastogideclared that the court has to assume that allegations made in the FIR are correct, and bail will only be granted if the accused can bring material evidence to prove their innocence. The court overlooked the question of admissibility at the bail stage.

Many retired judges of the Supreme Court voiced their shock at the indifference of the courts to the violations of civil liberties, facilitated by the use of the UAPA. Eminent Supreme Court Judge Justice Madan B. Lokur said the state was using the sedition law to stifle free speech.

Judicial Standards and Accountability Bill, 2010

With questions being raised about judicial standards, it is important to bring back the conversation around the Judicial Standards and Accountability Bill, 2010. The bill required judges to declare their assets lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts. The purpose of the bill was to look into the issue of institutional integrity and prescribe a transparent mechanism, which would provide for a check on judicial misconduct.

Its provisions included a stop on judges contesting elections, check on nepotistic appointments through family members in the Bar, preference for lawyers in the family, and guidelines on how a political discourse must be entertained only in a personal capacity. It also restricted judges from giving interviews about judgments given by them. It discourages judges from accepting gifts or hospitality and from adjudicating matters of company or society in which they have shares or interest. The Bill provides for compulsory declaration of assets by all judges every year, as well as the assets of their spouses, relatives, and children.

The institutional mechanism is carried out through National Judicial Oversight Committee, comprising the CJI, a Supreme Court judge, Attorney General, and an eminent person nominated by the President. Any person could submit complaints regarding the misbehavior of judges to the committee, and frivolous complaints are to be punished.

Conclusion

The Indian Judiciary is an important institution trusted with the responsibility of protecting the Fundamental Rights of the citizens. When the judiciary itself shows disregard for these rights, questions are naturally raised about its credibility. Global reports show India’s democracy is lagging. The executive may try to strong-arm the citizens to show its dominance, but the judiciary cannot support this. The indiscriminate use of anti-terror law is an example of the executive trying to shut dissenting opinion. Delaying bail for the accused goes against the ideals of equality and free speech. The court is straying from its perceived image of the guardian of cherished individual rights when confronted with a muscular, majoritarian dispensation.

The recognition of these mistakes is an important characteristic in mending the faults. In this regard, Justice Oka’s elevation is seen as an enriching addition to the Supreme Court.He has been responsible for pronouncing notable verdicts in favor of the environment, human rights, police excessed, and criminal justice reforms. The verdicts show his strong commitment to nourishing the rule of law.

While the judiciary has certainly taken some contentious positions, there is much to be said about the role of social media in highlighting these missteps. The scale and reach of criticism have changed due to the coming of social media, the judiciary is under more pressure than ever before. Each step taken by it is scrutinized by the online society. However, the incorrect response to this probing is labelling any piece of criticism as ‘fake news’ or sedition. The law commission in its 14th report had warned that “If the public is to give profound respect to the judges, the judges should by their conduct try and observe it; not by word or deed should they give cause for the people that they do not deserve the pedestal on which we expect the public to place them.”

The Judicial Standards and Accountability Bill, 2010, brings up the important aspect of having grievance redressal for judges who misbehave. In the wake of the judicial credibility debate, this bill or similar Bills must be considered. Time is running out for the judiciary to restore its hard-earned credibility. With the sea of pending cases before it, the judiciary must learn from its past mistakes, and try to ensure rapid justice.The priorities of the court should be transparency and credibility.

Questions

  • Which High Court was Justice Oka the Chief Justice of before being elevated to the Supreme Court?
  • Why does Justice Oka say there is a ‘crisis of credibility’?

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