Justice Gogoi: India Needs ‘Independent Journalists and, Sometimes, Noisy Judges’

Pyblished 14 Jul 2018

[The] way [the] grand Vision of Justice is attained in the confines of the courts through judicial pronouncements and the way they are built on the ground are two very disparate realities. Agreed, the aspirational aspect of the constitution and the operational aspect of the constitution will always be two different notions. The aspirational aspect is high idealism of a kind that is almost moralistic and preachy. The operational aspect has to do with the very strange realities of the ground, almost defeating. But then even if we may be slow to move to bridge the gap between the two, which itself is not an acceptable compromise either, we must, at the least, not become retrograde.

Take for example the 2015 ruling in Shreya Singhal v. Union of India. It is a celebrated judgment, where the Supreme Court held that the public’s right to know was directly affected by Section 66A [of the Information Technology Act]. Interestingly, while doing so, the court was certainly inspired by, amongst other rulings, Romesh Thapar v. State of Madras (1950); Brij Bhushan v. State of Delhi  (1950); Bennett Coleman & Co. v. Union of India  (1973).

If you would recall, these were perhaps some of the earliest pronouncements protecting an independent Indian’s speech and expression and were delivered in the light of the rights of the press, which verdicts themselves had endorsed that a democracy was a marketplace of ideas where the people had a right to know; that prior restraints were anathema to a democracy and that the freedom of speech and of the press is the Ark of the Covenant of Democracy.

Shreya Singhal took this legacy ahead as it improved upon the jurisprudence on the independence of the press to attain and promote the constitutional precept of plurality of thought, diversity of opinion and the ethos of democracy in the tech-age and in the context of online speech. The Vision of Justice was indeed attained in the courtroom. Not once, but multiple times. But has it translated into reality? Has the success of these sterling verdicts reached the ground? I will let the facts speak for themselves.

On the ground, it is a descent into chaos. And it is worrisome on all counts when you sue the messenger or when you shoot the messenger, or when the messenger itself declines to deliver the message because of the fear psychosis. On the June 19, the Indian Express had published a very insightful article (selected from The Economist) titled as ‘How Democracy Dies‘.

It said, at one place, that, “… independent judges and noisy journalists are democracy’s first line of defence… Reports of the death of democracy are greatly exaggerated. But, the least bad system of government ever devised is in trouble. It needs defenders.”

I agree, but will only suggest a slight modification in today’s context – not only independent judges and noisy journalists, but even independent journalists and sometimes noisy judges.

While Shreya Singhal was significant in its own right, NALSA v. Union of India  breathed new life into the Equality principle. The court understood that our Founding Fathers’ vision about fundamental right against sex discrimination was to prevent differential treatment as a result of one’s not conforming to generalisations. The judgment made a momentous foray into the fountain-head of dynamism. And, I will get back to it but before I do that, I must touch upon a very fascinating judgment of 1986 vintage called Bijoe Emmanuel v. State of Kerala.

This was a case where three Jehovah’s Witnesses had refused to sing the National Anthem (as their tenets dictated so) when it was being sung in their school. They did stand up though. Nevertheless, they were expelled from the school. When the case found its way to the Supreme Court, while holding that the expulsion would be in violation of their fundamental right to ‘freedom of conscience’, the court observed that “the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s constitution.”…

At the macro level, the judiciary as an institution is being seen as a course corrector, a leveller, a democratiser of sorts. And, since it is too well known that this country is on the cusp of an evolution, naturally it will have implications for this institution just as much. … While contemplating the U.S. constitution, [Hamilton] had said that the judiciary is the weakest of three branches because it neither has force of the executive nor the will of the legislature, but only judgment.

This, and which I agree with absolutely, he said, was the “simple view of the matter”. The complex view is this. And which he was wise enough to warn about over two centuries ago. He had said that while civil liberties will have nothing to fear from the judiciary alone, they will have everything to fear from the union of the judiciary with either of the other two branches.

I would like to believe, this is why, Ramnath [Goenka] had also said that “fierce independence” is indeed the bedrock of justice. But I would like to add that “independence” must always be responsible with due regard to established constitutional values. This institution is the last bastion of hope and the one that the citizenry believes firmly, will give justice to them, come what may. And it has.

The judiciary, with whatever little it has had at its hand, has been a proud guardian of the great constitutional vision. It fills me with immense pride to see that as an institution, the judiciary has been endowed with great societal trust. This very fact gives it its credibility and this very credibility gives it its legitimacy. It is a very enviable spot for an institution. I will only say that if it wishes to preserve its moral and institutional leverage, it must remain uncontaminated. And, independent. And, fierce. And, at all times. A chain is only as strong as its weakest link. So is an institution. And if introspection is where we have to begin, we might as well begin there. ( The Wire )