Judge is known in future
Justice Arun Mishra retired from the Supreme Court of India on Sept 2, 2020. Judges retire but the judgements whether right or wrong live with them. The judgements are criticised or appreciated. They are followed or overruled in future. This is a part of the judicial process. Judges are also targeted sometime. In the 1970s, Justice VR K Iyer, when joined the bench, was criticised because of his expressed affiliation with the left party and the way he was selected by the regime. Many noted lawyers wrote against his appointemnt. He proved to be one of the best judge in history. AN Ray, CJ was criticised for his proximity with Indira Gandhi regime and for his elevation as CJ. He did not earn honour in the legal fraternity. In 1976 the four judges of the SC who constituted majority in ADM Jabalpur case were condemned in judicial history, though all four became CJ of India. HR Khanna, with lone dissent was criticised by the Congress regime but history not only in India but in the world treats him as a hero of the voice of democracy. Therefore, a judge and his judgement is best known in future.
Criticism of judgement is essential but attack on judge is injurious
Criticism of a judgement or some time criticism of the approach of a judge is welcome. Indeed it is an essential tool of check and balance in democracy. But the words and sentences used for such criticism ought to be decent and must not lose the minimum sense of dignity, at least in the intellectual discourse. The desperations of criticism does not mean to avoid the principles of criticism. While a judgemental statement is easy to make, to write something relevant based on evidence, arguments, and precedents is always a tough task. The attack on the Judges of the SC, especially on Justice Arun Mishra needs to be appreciated in this light.
Hate campaign against the SC judges and Justice Arun Mishra
The life of judges is very difficult. After retirement also they are haunted. This is natural because of the post they hold. But attack ought to be on the judgements delivered. One can write why the judgement is wrong on the touchstone of P5(principles of law, Provisions of law, Precedents of law, Policy of law and Professional opinion on law). However, attack based on hypothetical assumptions on the attitude and approach of a judge is irrational. Justice Arun Mishra has been in the eye of storm since the last couple of years. He is hated by a group of intellectuals. The hate reached its nadir during Prashant Bhushan contempt judgement, (Aug 14, 2020). Even after the retirement of Arun Mishra, J. a group of disgruntled intellectuals have not stopped spitting in foul language.
Attack on Judges-Abuse of free speech
A very odd piece is published about his personality as a judge which sounds very bad in taste. You would recall that Justice Arun Mishra also delivered a judgement which led to the demolition of high rise towers in Maradu, Kochi because they were a serious threat to the environment. (https://www.thehindu.com/news/national/kerala/maradu-flats-demolition-decision-a-painful-duty-says-sc/article30561533.ece)
One journalist has written a comment on Sept 15, 2020 (https://www.theleaflet.in/letter-to-justice-mishra-constitution-not-conscience/#) which is prima facie contemptuous. (you would recall that when the tweets of Prashant Bhushan came, my immediate reaction was that it is contemptuous). Such writings are clear abuse of free speech.
Contemptuous intention
While every writing must be evaluated by the test of the intention in toto, and a few sentences cannot be basis for inferring violation of law. Pl see the words used by the commentator which is centred against the Maradu demolition judgement (2018)--
1. You satisfy your ego
2. your arrogance
3. your provident fund etc should be attached to meet a part of the cost
4. your abhorrent act
5. you gave your like Tughluq like order! … who had a greater common sense for he changed his decision
6. Arrogance has been defined as knowledge without wisdom.
7. You caused a social turmoil in Kerala by dispensing justice totally in favour of the Orthodox faction
8. they allowed a character like you to decide the case
9. I have noticed that the most arrogant persons are the most subservient to their masters. You were no exception….
10. You may become a governor or a minister or a chairman of some authority which will fetch you a lot of power and pelf (--Money, especially when gained in a dishonest or dishonourable way.)
Concluding remarks :
Such attacks in this manner is a disservice to intellectual discourse. While courageous and constructive criticism of judiciary is a virtue, we do need to maintain the minimum ethics in our expressions. Many best brain in the Courts do not wish to join the judiciary. Some join with great hope and deep sense of service to the nation. Judges are and have to be open to all sort of harsh criticism. But they are also human being. Use of abusive language, motivated satire, inappropriate comparison, targeting for judgement which went against petitioners, use of social media against them, publishing something on online media to exert frustration is misuse of free speech. Just because the Courts do not punish the high profile abusers of free speech, the judiciary ought not to be taken for granted. Such expressions have chances to intimidate judges and have potential to cause chilling effect not on judgement writings but also on others. This discourages those lawyers who are willing to join the bench. Once a judge delivers a judgement, it generally disappoints one party and make other party happy. The party disappointed will always allege unfairness, injustice, arrogance, ego problem, abhorrence, ideological inclination, and label the judicial order as tughlaqi farman. In this way you are killing the morale of the generation of lawyers and judges also who wish to join judiciary. Such approach is destructive and against the independence of judiciary.
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