By Ashutosh K Sharma
Judicial independence is guaranteed under the Constitution and reaffirmed by the Kesavananda Bharati (1973) judgment. The judiciary keeps the executive and legislature in check in accordance with Article 13 of the Constitution. “Independence of the judiciary is not just a principle but a moral imperative. The relevance of an independent judiciary cannot be overstated especially in a country like India which is not just a ‘Democratic Republic’ but has been described in the Constitution, as a ‘Sovereign, Socialist and Secular, Democratic Republic’,” Supreme Court judge Justice Hima Kohli said.
She was addressing a symposium on “Independent Judiciary: Critical for a Vibrant Democracy”, organised by FICCI in collaboration with Bharat Chamber of Commerce and the Indian Council on Arbitration on March 4, 2023.
However, this independence seems to be a high risk task as judges have increasingly come under threat. Recently, a judge from Rajasthan allegedly filed a police complaint after she received letters threatening to leak morphed, “obscene” pictures of hers and “spoil” her reputation if she did not cough up Rs 20 lakh.
Then, a couple of days back, Rachna Tiwari Lakhanpal, a lady judge, was robbed by two persons while she was out for a walk with her son outside her residence in Delhi’s Gulabi Bagh. The culprits pushed the judge to the ground and stole her bag, causing a minor head injury to her. Her son, Yuvraj, filed a complaint the next day, alleging that his mother was robbed by two motorcycle-borne miscreants around 10 pm on March 6. They stole her handbag, which allegedly contained Rs 8,000-Rs 10,000, a few documents and an ATM card. These incidents have led to undue pressure on judges and adversely affect the independence of the judiciary.
In 2019, Justice AK Sikri, while talking on “Freedom of press in the digital age” at the first Law Association for Asia and the Pacific conference in Delhi, had said that freedom of the press changed the paradigm of civil and human rights and the current pattern of media trials was an example of it. “Media trials were there earlier also. But today what is happening is that when an issue is raised, a petition is filed, (and) even before it is taken up by the court, people start discussing what should be the outcome. Not what ‘is’ the outcome, (but) what ‘should be’ the outcome. And let me tell you from my experience here that it has an influence on how a judge decides a case.
“It is not so much in the Supreme Court because by the time they come to the apex court they are quite matured and they know how the case is to be decided on the basis of law irrespective of what is happening in the media. Today judging is under stress,” Justice Sikri said.
Social media has made a great impact across the globe and transformed society. However, there are risks and challenges inherent in the use of social media by the judiciary which highlight issues of integrity and ethics. Ravi Shankar Prasad, former law minister, once said: “I am a great supporter of social media and freedom. I know it is empowering, but (there) is a dangerous trend. Judges must be left completely independent to give judgment as what they think is the correct mode in accordance of the rule of law.”
Judges who decide to enter a public discussion on social media must be conscious that they open themselves up to harassment. Former Chief Justice of India (CJI) Sharad Arvind Bobde had spoken openly in 2020 about judicial harassment online, astutely noting that “criticising the judge and not the judgment is defamation”. Judges’ reputations are getting torn apart under the guise of “freedom of speech”. This kind of judicial condemnation is a new feature of social media and Justice Bobde himself has admitted the difficulty in addressing this problem.
In 2021, speaking on “Rule of Law” for the Justice PD Desai Memorial Lecture, the then CJI had said that media trials cannot be a guiding factor in deciding cases. He spoke on the independence of the judiciary and warned judges against opinion building taking place on social media. He said: “The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the rule of law will become illusory. At the same time, judges should not be swayed by the emotional pitch of public opinion which is getting amplified through social media.”
Further, a bench of then Chief Justice NV Ramana and Justice Surya Kant had in the past said: “In criminal cases, involving gangsters and high profile persons, when the accused do not get expected orders from the Courts, they start maligning the judiciary. Unfortunately, this is a new trend developing in this country. A situation is created where the Judges do not feel free to make a complaint. Even if the judges complain to the District Judge, Chief Justice of the HC or the CJI, and a complaint is forwarded to the police or the CBI, they do not respond. They do not think it is a priority issue.”
“The IB, CBI and police are not helping the judiciary at all (in providing an atmosphere for doing justice without fear or favour). I am making this statement with some sense of responsibility. It is a serious issue,” the then Chief Justice Ramana said.
In 2022, Justice JB Pardiwala, while speaking at a symposium, said that non-judicial factors are shaping public opinion in the matter relating to law and the Constitution because of agenda-driven social and digital media. He stressed how some people had tried to politicise the Ayodhya verdict by imputing motives to the judges. He said that politicisation of sub judice matters has to be stopped.
Digital and social media need to be mandatorily regulated in the country to preserve rule of law and the Constitution. Parliament should ponder over framing a law for regulating social and digital media and amendments in the Information Technology Act and Contempt of Courts Act to tackle the interference.
The United Nations Office on Drugs and Crime Guidelines on the Use of Social Media by Judges 2019 is a good place to start tackling these attacks on the dignity and reputation of judges. These guidelines illustrate the pros and cons of the use of social media and provide guidance and training frameworks which are consistent with international and regional standards of judicial conduct and ethics. A broad range of topics are covered—risks and opportunities in judges’ awareness of social media, judges’ identification on social media, content and behaviour on social media, friendships and online relationships, privacy and security policies and training.
The Supreme Court has also felt that the time has come to create a force that would dedicatedly provide security to judicial officers across the country on the lines of specialised police forces like the Railway Protection Force, CRPF or CISF. Further, the BCI and all lawyers across the country should make efforts to protect the independence of the judiciary and the government should enable proper protection and security to judicial officers.
—The writer is a legal consultant based in Chandigarh