Terming Indian courts as “institutions of governance” that have “evolved” over the years and permit criticism of not only judgments passed by a court but also the decision-making process behind it, senior advocate Harish Salve said what needs to be tested now is where does one draw the line with the criticism.
Salve was speaking on ‘Criticism of Judiciary, Contempt Jurisdiction and its use in the Age of Social Media,’ at the 16th PD Desai Memorial Lecture on Saturday.
“We have always accepted that the decisions of the courts can be criticised, including in language which may be impolite… Can we criticise the decision-making process? Why not? … In a law that has far reaching consequences… these are not criticisms of the law but of the decision-making process. Then why not the decision-making processes of co-equal constitutional institutions — the courts? How far can we go? Can’t we ask why certain cases were heard in a certain way? Of course, we can… Because justice is administered under public gaze. That makes the decision-making process subject to scrutiny.”
Salve, however, proposed that it is important to draw the lines of such criticism. “We have to consider it in two or three contexts. One context is ‘who’ is rendering that criticism? If there is a tweet by a layperson, should we take cognizance of such comments? No, we should not. But a criticism by politicians, that raises different issues… there is one area where judges need to be protected — that area is casting aspersions on an institution inconsistent with its character as an independent institution… In India, I don’t think we have reached that stage of maturity where people can understand what is a ridiculous allegation… The court will see ‘who’ is making the allegations…” said the Queen’s counsel. He was speaking from London via video conference.
“What we need to note is in cases involving matters of public moment, (is that) people in public life would criticise you. If that criticism pertains to a principle, cannot be considered as ‘scandalising the courts’… Constitutional law is not static. Criticism of judges, of judicial overreach is not ‘scandalising the courts’…” he added.