Not just Kunal Kamra, retired Supreme Court judges too want the judiciary to look at the mirror

Kunal Kamra refused to apologise to SC for his alleged contempt of court, saying that any suggestion that his tweets can shake the foundation of the court is an overestimation of his abilities

Not just Kunal Kamra, retired Supreme Court judges too want the judiciary to look at the mirror

K Raveendran

Comedian Kunal Kamra has refused to apologise to the Supreme Court for alleged contempt of court, saying that any suggestion that his tweets can shake the foundation of the most powerful court in the world is an overestimation of his abilities. He then went to add that public faith in the judiciary is founded on its own actions and not on any criticism or commentary.

The profoundness of his statement is deeper than what all the jokes that he has cracked so far put together may have achieved.

There is no need for anyone to have 'Dutch courage' to say that the judiciary’s biggest credibility problem has been caused by some of its own decisions as well as the conduct of some of its own functionaries. Some of the recent decisions of even the Supreme Court, including the ones on the controversial new farm laws, and earlier the most sensitive Ayodhya dispute, have drawn suggestions of judicial overreach and populism. The issues raised by these decisions continue to be relevant and deserve a threadbare debate. There is need for healthy and open discussion about judicial decisions as well as the affairs of the judiciary. Any decision to put this off for a future date can be taken only at the risk of judiciary’s own peril as well as danger to democracy, which we go to any length to pay lip service to.

It took a pandemic like Covid for us to realise the need to sanitise our hands and maintain personal hygiene. It is time that our judiciary also opts for a sanitisation drive to prevent a similar affliction to our judicial process.

It may be just a coincidence, but a most timely occurrence that retired Supreme Court judge and ‘call of national duty’ press conference fame Justice Chelameswar recently called for an institutional mechanism for periodic audit of the performance of individual judges and the judiciary to maintain judicial standards. Delivering a lecture on Law, Justice and Human Rights, he called for "a serious introspection of our achievements in terms of the noble ideals proclaimed in the Constitution and to see where we have failed."

“These are the matters which require constant ongoing debate not only in civil society, but in all elements of the Republic – the law makers the civil society, the judiciary. Only then can we expect a more efficient, transparent judicial system. So long as we believe that judiciary is something the working of which can't be looked into, the process can't be examined or analysed, the situation isn't going to improve. We will continue to have the same system and it may ultimately not be very conducive for the health of the judicial system and in turn, the health of democracy in this country.

He raised serious doubts about the quality of judicial appointments. Some of the pronouncements by our ‘learned’ judges have shown how he could not be more right. For instance, the verdict by the judge at the Bombay High Court’ Nagpur judge in a case under Protection of Children from Sexual Offences (POCSO) Act, has shocked public conscience. The lady judge, most surprisingly, acquitted a man of sexual assault on the grounds that pressing the breasts of a child over her clothes without direct “skin to skin” physical contact does not constitute “sexual assault” under the law, which was specifically made to protect children from predators.

Thankfully, the Supreme Court has stayed the verdict. A bench headed by Chief Justice of India S A Bobde stayed the acquittal after Attorney General K KVenugopal brought the matter to the court’s notice and said it is ‘unprecedented’ and is likely to ‘set a dangerous precedent’.

It is obvious that there is some system in this particular judge’s consideration of such cases when it emerges that she has issued another bizarre verdict within days of the first one, this time ruling that the act of holding hands of a minor or the zip of the pants of the accused being open at the relevant time, does not amount to sexual assault as defined under the POSCO Act.

Cases such as these only dramatise what Chelameswar has said.

Quoting Justice J. S. Vermain the Supreme Court Advocates Association case, he said it's not in the spirit of the winner takes all. It is an exercise of trying to identify the best for working a great institution like the judiciary, which is meant eventually for the welfare of the people. That should be the spirit in which examination or debate or discussion should take place.

“If we believe genuinely that this process is meant for identifying the best people to be judges of the constitutional courts of this country, then these questions – who is superior, who is inferior, who has the last word – do not arise. It is a participatory process of identifying the right people,” he said.

Views expressed are personal

(IPA Service)

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