Dr. Ram Manohar Lohiya National Law University, Lucknow, National Law University Odisha, Cuttack in collaboration with CAN Foundation hosted the ‘2nd Justice HR Khanna Memorial National Symposium’ to commemorate the august persona of Late Justice HR Khanna, on the fortuitous date of 3rd July 2022, marking the 110th birth anniversary of the legal luminary. The Symposium featured an enthralling discussion on two of the most important contemporary legal issues and the pertinent questions of justice embedded within these. The 2nd session was on “Vox Populi vs. Rule of Law: Supreme Court of India”.
The 2nd (Post-Lunch) Session of the Symposium was graced by the presence of Justice J.B. Pardiwala (Judge, Supreme Court), who was the Presiding Guest at the Symposium and Mr. Nidhesh Gupta (Senior Advocate, Supreme Court) and Mr. Siddharth Bhatnagar (Senior Advocate, Supreme Court) as the other panelists.
The session was moderated by Mr. Siddharth R. Gupta, CEO CAN Foundation; Mr. Abhikalp Pratap Singh, Advocate-on-Record, Supreme Court; Mr. Tariq Khan, Registrar, IAMC and the Vote of Thanks was delivered by Mr. Sriram Parakkat, Advocate-on-Record, Supreme Court.
Justice Pardiwala commenced the address by establishing the importance of the topic up for deliberation. He noted that vox populi was particularly relevant for judges because they must be as concerned about social needs and ambitions as they are about maintaining the Rule of Law. He noted that this topic becomes all the more apposite when it is to be spoken at a symposium scheduled to reminisce Late Justice HR Khanna and his contributions to the jurisprudence of our country. Remembering Justice Khanna, Justice Pardiwala highlighted:
“Justice Khanna was a Judge, who while upholding the law paid great heed to the needs of the society. His sole dissent in the ADM Jabalpur judgment showcases his great foresight. The topic today is as relevant as it was when the verdict of ADM Jabalpur was delivered. When we look at Judgements on the issues of Sabrimala, LGBT Rights or those on Death Penalty, the friction between the aspirations of the society and the necessity of upholding the rule of law comes to the forefront.”
Justice Pardiwala went on to draw a prudent and essential line of difference between the view of the majority of the population and the constitutional interpretation of the concept of ‘view of the public’, which implies a segment of society, a section of people that has some common, shared interest sitting at the same table. According to Justice Pardiwala ‘view of the public’ should be subordinate to rule of law and noted that:
“Balancing the intent of the majority populace on one hand and meeting the demands of affirming the Rule of Law on the other is an arduous exercise. It requires extreme judicial craftsmanship to walk the tightrope between the two. What would people say – ‘Log kya kahenge, kya sochenge’ is an enigma which haunts each and every Judge, every moment whenever he is to pen down a judgment having social ramifications. It is where the conviction, awareness of the Constitutional values, and conceptual understanding of rule of law of the concerned Judge comes to the fore.”
He substantiated his stance that the judicial verdicts cannot be the reflection of the influence of public opinion by quoting Rose Bird, the former Chief Justice of the California Supreme Court who worded that:
“The judiciary must not take on the coloration of whatever may be popular at the moment. We are the guardians of rights, and we have to tell people things they often do not like to hear.”
However, he also acknowledged what Professor K.T. Shah opined back in the Constituent Assembly Debate of 1948 as to how the inclusion of Vox populi in our Constitution was a necessity as it signified that at the end of the day the will of the people was supreme and how the voice of the people is the voice of God. Based upon this he observed that Prof. Shah was of the views that the sentiments of the people must be given respect when it comes to judicial decision making. But noted that
“ there is also a school of thought that goes against this belief. I belong to this school of thought. It emphasizes the need to dissociate oneself from the belief of the majority and go by the rule of law.”
While delving upon his school of thought he quoted great thinkers like John Stuart Mill and H.L.A. Hart who expounded their warnings about the imposition of majoritarian morals through codified laws and judicial opinions. He however, also noted that:
“It is true that while a judge’s role is to uphold the law, the judge in an exceptional case may have to be cognizant of the sentiments of the society and the perennial effects of the judgment that he may author.”
Justice Pardiwala then delved into the opposite force in the dynamic system of justice at play. He moved on to discuss the pertinent issue of Media trials in sub-judice proceedings and noted:
“A trial is essentially a process to be carried out by the Courts. However, in the modern day context, trials by digital media are an undue interference in the process of justice dispensation, crossing the Laxman Rekha many-a-times.”
He noted how these acts of media become all the more worrisome, when those section of people, the ones ‘who possess only the half truth’ and for whom the concepts of judicial discipline, binding precedents, and inherent limitations of judicial discretion are elusive, start scrutinizing the judicial process. He said these “half truth knowledgeables” become the real hurdle to dispensation of justice through the rule of law.
He then expressed his worry with regards to the usage of social and digital media to express personalized opinions more against the Judges per se, rather than a constructive critical appraisal, informed dissents and constructive criticisms of their judgments. He expressed that all of this harm the judicial institution and lower its dignity. He gave a loud and clear message that judges of Constitutional Courts shall have a remedy against false reporting and motivated attacks of their views through social media on them and opined that:
“This is where the digital and social media needs to be mandatorily regulated in the country to preserve the rule of law under our Constitution. Attacks attempted at Judges for their judgments lead to a dangerous scenario, wherein Judges would have to pay greater attention to what the media thinks rather than what the law actually mandates. This puts the rule of law on the burner, ignoring the sanctity of respect for the Courts.”
He then discussed how Indian Courts follow “doctrine of postponement of publication” which is a precautionary measure where the media is not allowed to publish opinions about the sub judice matter till the hearings conclude. He categorically clarified that this shall not be viewed as ‘censorship or a prior restraint but rather a safeguard against possible abuse.’ He opined this to be one of the viable solutions against the non-judicial factors shaping the public opinion.
Then whilst discussing how social digital media is employed frequently to politicize purely legal and Constitutional issues in India, he cited the example of the Ayodhya case, and how by the time, the final verdict came to be delivered, the issue attained political overtones. He noted that:
“This is where the heart of any judicial proceedings before the Constitutional Court may disappear and the Judges deciding the dispute may get a bit shaken which is antithetic to the rule of law. This is not healthy for the rule of law”
Furthermore, he discussed the need for regulation of digital and social media especially in the context of sensitive trials which are sub judice. He suggested that this need must be dwelled upon by the Parliament by introducing appropriate legislative and regulatory provisions in this regard. He also shed some light on the Madrid Principles of 1994, focussing on the interrelationship between digital social media and judicial independence. Taking these principles into consideration he noted that:
“it is the function and right of the digital media to collect and share the information with the public on the administration of justice, however with appropriate checks and balances.”
Justice Pardiwala concluded his speech by acknowledging that Judges should not succumb to the pressure of Social Media and summarized his views by opining that:
“Judiciary cannot exist independent of society and the interaction is inevitable. But the rule of law is insurmountable.”
In the end he extended his appreciation towards the CAN Foundation and its students and applauded their determination and commitment towards the cause.