'The primary duty of the Judiciary is to uphold the Constitution and the Laws without fear or favour, without being biased by political ideology or economic theory'
– Supreme Court in PUCL v. Union of India[i].
In a recent case of Suo motu v. State of Gujarat[ii], on 29-5-2020, the High Court in its detailed order of 76 pages, lastly expressed its anguish over "unnecessary debates and comments" that are going on as on date on the social media and other platforms. To some extent, it might be justified from judges' point of view, however, then, the High Court has turned around and made an observation that 'We have gathered an impression that our orders passed time to time in the larger interest of the public are being misused for some oblique motive.' – This looks almost vague and completely unwarranted, as the people do have right to criticize the State Government for not taking proper care of the patients affected by Covid-19 including its own resident doctors.
On the contrary, the strictures passed by the High Court against the machinery of the State Government while dealing with the crisis due to Corona Virus in the city of Ahmedabad, as well as earlier orders passed by the High Court has been hailed, appreciated and wholeheartedly welcome by the public at large.
In fact, only due to anguish expressed by the High Court of Gujarat against the State Government's functionaries, it had to pay immediate special attention to the treatment provided at the Asia's Largest Civil Hospital at Ahmedabad and patients who were suffering a lot had been immensely benefited by the orders of the High Court, more particularly of 22nd May, 2020. All the same, due to some unforeseen circumstances, the High Court, afterwards, has tried to caution the society in this order in the following words '… We request one and all to be very careful from now onwards before commenting or entering into any debate with regard to Court orders that are being passed from time to time in Public Interest. Our message is loud and clear.' – The aforesaid words are again vague and unclear that what High Court wants to convey and to whom? It is a matter of opinion whether the State Government had provided efficient medical facility to the patients or not. Besides, it is a trite law and also a clear provision even under the Contempt of Courts Act, 1971 that fair criticism of judicial act is not contempt. Judgements and judicial orders are open to criticism.[iii]
The Supreme Court has observed long back in P.N.Duda v. P. Shiv Shankar: 'Administration of justice and judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is, to defend and uphold the Constitution and the laws without fear and favour. This the judges must do in the light given to them to determine what is right.' And also: 'In the free market place of ideas, criticisms about the judicial system or the Judges should be welcomed, so long as criticisms do not impair or hamper the administration of justice.'[iv]
By passing the earlier orders in respect of situation at the Civil Hospital, Ahmedabad, the High Court of Gujarat has performed its constitutional duty and those who do not have any resources to ventilate their grievances before the mighty State Government, the High Court had heard the voices of 'have not's and compelled the executive to feel it the same. It has made clear that they are accountable and they have to behave themselves in a responsible manner. It is to be noted that only after the scathing remarks passed by the High Court on 22-5-2020, the State Government actually woke up and tried to make its machinery more transparent.
Nevertheless, then, High Court has made curious observation in this last order in the last but one para-57 as under: 'All those who cannot extend their helping hand in this difficult times and do anything good for the people at large have no right to criticize the functioning of the State Government. If the State Government would not have been doing anything, as alleged, then probably, by now, we all would have been dead.' – Is it not the public duty of the State Government to take care of its people? In fact, one of the purpose of lockdown and its repetitive extensions is to prepare public heath care services attuned to the coming requirements and equip the medical facilities ready for the upcoming crisis. State Government has not obliged the people of the State by providing medical care, when the State itself is a social-welfare State.
Hence, it appears that after the criticism from the High Court of Gujarat, the fumbling State Government has suddenly produced documents and affidavits to show before the High Court that whatever the State had done so far is required to be appreciated by the High Court in toto. Our Constitution set up a federal policy and the State is free to exercise its rights, powers and authorities for the well being of the people of the State, however, when it fails in its legal as well as constitutional duty, the High Court in such case is not so powerless to bring to notice of the State about the lapses and gaps in performing in its duty.
The High Court of Gujarat had rightly exercised its 'dialogic judicial review' and without passing any order in nature of judicial legislation, asked the State to fulfill its obligations towards the State. But at last, it seems that the High Court has tried to nullify its own strictest observations against the State Government with a hope and expectations that the State Government will perform its duty to the utmost satisfaction towards we, the people.
However, the society at large feel that the above observations of the High Court to pacify the situation has made an indirect impact, as the mighty State Government takes it that its stand is vindicated in respect of the situation as All is Well. It is a well established principle that the High Court under article-226 can issue writs … to any person, authority, including in appropriate cases, any Government, … , for the enforcement of any of the rights conferred by Part III and for any other purpose. The jurisdiction of the High Court under article-226 is wider than the jurisdiction of the Supreme Court under article-32 of the Constitution. Hence, it is submitted that the High Court ought not to have felt or considered that its orders have been misused and unnecessary debates and comments are going on as on date on the social media and other platforms. In fact, debates, discussions and comments are the lifeline of the democracy. Be it adverse or otherwise. While delivering the lecture in Gujarat on 15-2-2020 on the topic of 'The hues that make India: From Plurality to Pluralism' on 15th Justice P D Desai Memorial Lecture, Dr. D Y Chandrachud had called 'dissent' a safety valve of democracy and said: 'blanket labeling' of dissent as anti-national or anti-democratic strikes at the heart of country's commitment to protect constitutional values and promote deliberative democracy. Thus, the debate, discussions and comments after the Order of 22-5-2020 were justifiable and the judiciary should not be perturbed by it. The court should not be concerned with opposing political ideologies. When there is an erosion of people's faith towards its own government, people look at the judiciary as a last hope to do something and in the present case, the High Court of Gujarat has rightly done the best to preserve the faith of the people in the judiciary. Otherwise, what the Solicitor General of India had submitted before the Supreme Court that 'some High Courts are running the parallel governments' – is nothing but an attack on the High Courts itself. What can we do about it as a people of India?
[i] (2003) 4 SCC 399
[ii] WPPIL No.42 of 2020
[iii] Section-5 of The Contempt of Courts Act, 1971
[iv] AIR 1988 SC 1212, 1214