The Supreme Court continues to be in contempt of itself as it inhibits reforming and changing

*Paromita Das

Intriguingly, the Supreme Court of India, which is the nation’s leading court for legal matters, is conceivably the ONLY institution with a separate Blasphemy law known as Contempt of Court. Which it uses to judge people of mere mortals who have the audacity to criticize the Justices’ reasoning, language, and actions.

It is critical to shed light on our nation’s top court at a time when the Honourable Justices of the Supreme Court of India appear to prefer blaming the beheaded rather than the beheaders. Nupur Sharma was verbally attacked in court by the Supreme Court, who “victim blamed” her for her actions. This dangerous precedent for the nation’s justification of violence.
The Supreme Court has its own standards, but does it pass them? The Supreme Court of India is a powerful institution, but does it uphold its own edicts with respect or does it operate in defiance of them? Four grounds should be considered:

Adaptability in following Natural Justice principles

Natural justice is based on two basic tenets: the right to a fair trial and the prohibition of bias.

The Supreme Court established the Collegium system of “Judges Appointing Judges” in 1993 through the Second Judges Case in an effort to preserve the independence of the judiciary. a system that is not mentioned in the Indian Constitution.

And those have had their effects. 12 of the 32 (38%) currently serving Supreme Court justices, all of whom were chosen by a group of SC judges, have close ties to the government and the judiciary (refer to list in the appendix). In fact, two of India’s upcoming Chief Justices are the children of former Chief Justices. The evidence suggests that nepotism is at work; the collegium system is nurturing and advancing not only those who have demonstrated merit, but also perhaps those who have familial ties.

The National Judicial Appointments Commission (NJAC), which would have replaced the collegium system, was approved by parliament in August 2014 after a concerted effort across party lines. The NJAC was declared unconstitutional in 2016 after being heard by a Supreme Court constitution bench. In this instance, the Supreme Court ruled that the current collegium system, in which the sitting Supreme Court Judges have the authority to name new judges, is the ONLY fair procedure after hearing a case involving a new Parliamentary approved procedure to appoint judges to the Supreme Court.

This violates both the prohibition against bias and the right to a fair trial. Surely, the judges’ hearing and ruling on a matter that affects their own discretionary power to name new judges constitutes a conflict of interest.

In fact, Kurian Joseph, one of the Justices who rendered the original verdict against NJAC, publicly expressed his regret for the choice in 2019, following his retirement.

While exempting oneself, demanding transparency from others

When the opportunity arises, the Supreme Court of India seems especially eager to demand transparency on others. The Supreme Court mandated that candidates and their spouses disclose their assets and income in order to be eligible to run for office in 2018, ushering in electoral reforms. In fact, it stated, “Their assets and sources of income are required to be continuously monitored to maintain the integrity of the democratic structure of this country and the fairness of the electoral process.” Furthermore, how transparent are Supreme Court judges themselves? Only 7 of the 27 currently serving Supreme Court judges had disclosed their assets as of 2019. According to the declarations posted on the Supreme Court’s website as of July 4, 2022, only 4 of the 32 active judges have disclosed their financial status.

Why is transparency a requirement for political officeholders but not for Supreme Court Justices?

Setting strict standards for others’ deadlines

The Supreme Court frequently criticizes various branches of the government, according to mainstream media in India. The SC criticized the central government in 2021 during the Corona crisis and “expressed displeasure over delay in framing guidelines for issuance of death certificates to the families of those who died of COVID-19.” The Supreme Court (SC) reviewed the construction of a road next to the Taj Mahal in 2015, in an amusing case, after Justice Joseph Kurien’s personal visit to the monument. According to this report: “The apex court also expressed displeasure over the quality of road being built near the monument and said there needs to be “finesse” in doing things as people from all over the world came to see the Taj Mahal.

The Supreme Court’s own statistics page provides the best summary of how skilfully it operates. The Supreme Court is currently hearing 70,852 cases. Just the Supreme Court, there. Over 4.7 crore cases were still pending as of March 2022 in the Indian judicial system, which is under the Supreme Court’s control. You might assume that the courts are working extra hard to reduce the backlog given the Supreme Court’s proclivity for “finesse.” In 2022, the Supreme Court of India will take an astounding 83 vacation days, excluding roughly 50 Sundays, which may be a record for the entire world. The US Supreme Court, in contrast, has 10 days set aside for vacation.

Even though there are 2.44 lakh unresolved rape and child abuse cases pending before Indian courts, the judges who complain about excessive delays on the part of others refuse to take a straightforward decision to limit their own vacation days until at least the serious criminal case backlog is cleared.

Fostering disagreement with others

In a case involving the Bhima Koregaon violence in 2018, the Supreme Court acted as a champion for dissent in the nation, urging “dissent as a safety valve of democracy.” The Supreme Court ruled in 2021 that merely criticizing the government does not constitute sedition. It is a welcome decision, as neither a person nor an organization should be immune to criticism. The Supreme Court tried and convicted Prashant Bhushan for contempt of court in 2021 for, among other things, a tweet about “the current CJI riding an expensive motorcycle while the court was in “lockdown,” which was in direct opposition to the judgments that are reflected above. Regardless of Bhushan’s credibility, or lack thereof, the Supreme Court wasting its valuable time on a trial and decision on such petty criticism makes it impossible to believe that the SC still adheres to its earlier rulings on tolerating criticism when others were the target. There have been numerous other instances where contempt has been used to stifle criticism, with journalist Ajeet Bharti’s case being one of them.

Consequently, it should come as no surprise that Pardiwala has called for regulating social media criticism of judges following the barrage of criticism that Justices Kant and Pardiwala received after the tirade of personal opinions that they indulged in while hearing a technical matter of clubbing Nupur Sharma’s FIRs.

The law and the constitution are not above the Judiciary. The Supreme Court of India must raise its game in order to uphold the standards that it so forcefully demands in its oral observations and written judgments from both public servants and ordinary citizens. The Supreme Court continues to be in contempt of itself every day that it resists reforming and changing.