"If judges start sending bouquets or congratulatory letters to a political leader on his political victory, eulogising him on assumption of high office in adulatory terms, the people's confidence in the judiciary will be shaken",commented Justice V D Tulzapurkar once. The comment was understood as a veiled criticism of the action of Justice P N Bhagwati(later a CJI) in sending a congratulatory letter to Indira Gandhi on her winning the Lok Sabha elections.
If a letter from a sitting judge to a politician aroused such indignation in Justice Tulzapurkar, he would have been shocked beyond imagination to see unabashed adulation for a political leader getting recorded in a judgment. Justice S R Sen of Meghalaya High Court did the unthinkable yesterday, by showering praise on PM Narendra Modi in a judgment. He said that only the Government under PM Narendra Modi can stop India becoming an Islamic nation! (The PM was termed 'Modiji' and 'beloved Prime Minister' in the judgment)
"I make it clear that nobody should try to make India as another Islamic country, otherwise it will be a dooms day for India and the world. I am confident that only this Government under Shri. Narendra Modiji will understand the gravity, and will do the needful as requested above and our Chief Minister Mamataji will support the national interest in all respect.”, expressed Justice Sen in the judgment.
The judgment is detestable for its harsh communal overtones. A judgment ought to be a statement of reasons leading to adjudication of an issue. But, Justice Sen has used his judgment as a medium to articulate his personal prejudices, half-baked notions on history, and to express his personal fondness for a political leader. Never in the judicial history of our country has a judgment with such deep polarising observations been passed. This is a fit case for the Supreme Court to take suo moto cognizance and expunge those remarks as a course of Constitutional correction.
Although this could be the first instance where a judge has formally praised a politician in a judgment, there are few other instances, where judges have expressed their admiration through their public utterances. Yet, no one, except Justice Sen, has dared to ink it in a judgment!
Justice P N Bhagwati's Praise For Indira Gandhi
"May I offer you my heartiest congratulations on your resounding victory in the elections and your triumphant return as prime minister of India? It is a most remarkable achievement of which you, your friends and well-wishers can be justly proud. It is a great honour to be the prime minister of a country like India",Justice P. N. Bhagwati wrote in a letter to Mrs Indira Gandhi on January 15, 1980.
This action invited wide condemnation. Several prominent members of the bar, like eminent jurist H M Seervai, openly criticised the action, as noted by Abhinav Chandrachud in his book 'Supreme Whispers'. According to George Gadbois, a chronicler of Indian judicial history, this was ‘the most scandalous incident involving a [Supreme Court] judge’. The above mentioned criticism from Justice Tulzapurkar was made in this context.
Justice Bhagwati's letter sang paeans with many superlatives to Mrs Gandhi and also made suggestions for legal reforms. He said in the letter "You have become the symbol of the hopes and aspirations of the poor, hungry millions of India who had so far nothing to hope for and nothing to live for". He further stated "I am sure with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak you will be able to steer the ship of the nation".
Justice Bhagwati's letter was seen with trepidation by the Bar because of Mrs Gandhi's past appointments of Supreme Court chief justices by superseding senior judges.
Justice M R Shah- "Modi my hero"
Supreme Court judge Justice MR Shah once called Prime Minister Narendra Modi a “model and a hero”, on being enquired by Amar Ujala about him being linked to PM Modi and BJP President Amit Shah.
According to a Financial Express report, Justice Shah replied that it was “because Modi is a model. He is a hero. As far as Modi is concerned, it is there for the past one month. There are thousands of clippings on social media. The papers are also publishing the same, daily.” (Kyonki Narendra Modi ek model hain. Vah ek hero hain. Jaha tak Modi ki baat hai to pichle ek mahine se yahi chal raha hai. Social Media par ese saikdo clippings hain. Roz paper mein bhi yahi chalata hai).
The comments were made last August, when he took charge as the Chief Justice of Patna High Court. He was elevated to the Supreme Court after two months.
Ex-CJI Dattu- "Modi A Good Human Being"
During January 2015, the then CJI H L Dattu described P M Modi as "I rate him as a good leader, good human being and a man with foresight and one who wants good governance". Understandably, the comments of CJI drew flak from the opposition. Many in the Opposition were taken aback since it is rare for a CJI to speak this way about the PM, especially since the government is a major litigant in the apex court. Justice Dattu was appointed the Chairman of National Human Rights Commission in February 2016, two months after his retirement as CJI.
Some feel that there is nothing problematic in judges airing their personal views on political leaders. Judges are entitled to personal views, and praising politicians is by itself not an indicator of judicial bias- they argue.
But that is a superficial argument, as it omits to take into account the fact that credibility of judiciary is largely perception-based. Of course, judges could have personal likes, and that by itself may not indicate judicial bias. However, the public expression of personal admiration, that too for political leaders in high posts like PM, deeply disturbs public perception, giving reasonable foundations for suspicions about bias. 'Will the judge pass an order against the government headed by his personal favourite?'- this will be a natural doubt in the mind of any litigant who approaches the Court.
The unwritten code of judicial propriety envisions an invisible wall between judiciary and politics. When the US Supreme Court judge Justice R B Ginsburg made critical comments about Donald Trump during the run-up to 2016 presidential elections, she was widely criticised. Ginsburg had called Trump a "faker" and said "I can't imagine what this place would be -- I can't imagine what the country would be -- with Donald Trump as our president". Admitting that she crossed the line, Justice Ginsberg apologized for her remarks. "On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect", Ginsburg later said.
Some things are just not meant to be said, be it praise or condemnation. Because, the privileges of judgeship comes with a lot of inherent restrictions.
Former Chief Justice of India S H Kapadia once said that judges should be like ascetics and avoid hobnobbing with politicians. There are obviously not many takers for his advice.