17 Sep 2023 4:00 AM GMT
During a panel discussion held to mark the launch of the book, authored by Gautam Bhatia, ‘Unsealed Covers: A Decade of the Constitution, the Courts, and the State’., Bhatia spoke about certain important issues in the Indian Judiciary including about the acknowledgment of judicial ideology. The panel also included Former Orissa High Court Chief Justice S Muralidhar, renowned criminal...
During a panel discussion held to mark the launch of the book, authored by Gautam Bhatia, ‘Unsealed Covers: A Decade of the Constitution, the Courts, and the State’., Bhatia spoke about certain important issues in the Indian Judiciary including about the acknowledgment of judicial ideology.
The panel also included Former Orissa High Court Chief Justice S Muralidhar, renowned criminal law practitioner Senior Advocate Rebecca John, and senior journalist Seema Chisti.
At the outset, talking about the Indian legal system,Bhatia said that many significant developments occur in the courtrooms, which are not reflected in the order. However, these go beyond the contours of just Courtroom exchanges about which we get a comprehensive picture from live streaming.
“A lot of significant stuff happens in courts that are not reflected in a final judgment, and this is not just the oral observations and oral exchanges…. beyond that, a lot of stuff happens through one-line interim order which will create a significant alteration in legal landscape….and if you are not in the Court and you haven’t been following the proceedings from inside then it will be harder to decode it.”
He went on to say that it should not be the case that one needs to be in the corridors of Court to understand these developments. “It shouldn’t be that way, but it is the way. That's why there is something in the critique of the Court that requires physical presence.”
Further, talking more about the need for criticism especially when the line of political space is blurring and shifting in judiciary, and the role of critics in mitigating that balance of power, he said:
“The key thing to understand is that the line of political space is always blurring and shifting, and I think that one reason why a certain kind of criticism that might appear harsh is necessary is that while the executive and the state have the tangible power to get things done and to apply pressure, all that the critic has is the pen. Sometimes, you need to speak in certain ways to even slightly balance out that imbalance in power and try and shift that line. In that sense, if criticism at times feels strong or harsh, it is not because it is meant to be harsh. Sometimes, if that is the only weapon you have, you have to use it as strongly as you can to try and mitigate that balance.”
Judicial ideology is a reality, and we need to acknowledge the same.
Regarding judicial ideology, Bhatia clarified that he does not mean ideology in the cruder sense of political ideology but the question of how the judge approaches the state power. He cited an example of U.S., where the system has been formalised and where the winning President nominates the judge. Such judges most often reflect the ideology of that President and the party. He said that while he does not recommend the U.S. model, he emphasised that, at least in U.S., there is an acknowledgment that judging is a political act.
However, contrary to that, we dismiss the possibility of this existing in India. At this, he discussed how the collegium system gives the impression of a completely depoliticised process, thereby leading to the conclusion that judging is also depoliticised. However, he stated that this is not the case.
“We need to find a way to acknowledge it. You don’t need to have the American system to do that”
“The conversation about judicial ideology about how it impacts the judgment, needs to be a public conversation and not an underground conversation in whatsapp group between lawyers. So, we need to start by saying look, these are various strains of ideology in the Court with respect to criminal law, tax law or labour law or constitutional law, these judges are exponents of that ideology and that’s how it reflects in their judgments and therefore, when Chief Justice assigns a case, there is public conversation of what that means and not private conversation…the reason why we can’t speak about this publicly is this overarching idea that judging is depoliticised. The moment you start acknowledging that then that choice becomes one thing that you can scrutinised and have a conversation about.”
Also Read - Judges Do Make Political Choices; Politics & Judicial Functioning Not As Separate As We Want: Justice (Retd) S Muralidhar