Protecting the SC

Politically sensitive matters require care

The Supreme Court of India has found itself repeatedly in the news in the past weeks, and not necessarily for the best of reasons. First, in its dismissal of a case related to the 2002 violence in the state of Gujarat, the court expressed itself with some strength regarding some of those involved in it — particularly the activist Teesta Setalvad, who was subsequently arrested by the anti-terrorist squad. Whether or not the court intended to use its judgment as an instruction for Ms Setalvad’s arrest, that was apparently the consequence of its remarks on the subject. Then, in the course of firmly denying a request from the former Bharatiya Janata Party national spokesperson Nupur Sharma that several different first information reports filed against her be clubbed together, a two-member vacation Bench of the court delivered itself of a severe reproof of Ms Sharma, holding her passing remarks on television responsible for a national violent response. Naturally, these remarks were widely scrutinised. Finally, one of the judges on that Bench, while delivering a lecture on public opinion and the judicial process, called for more stringent regulation of digital media to prevent “personalised” attacks on judges.

It is right that the court engage closely with matters of high principle, or with issues in which the political process appears to be failing. It should do so in a timely manner, and with fearlessness. After all, it is worse for the court’s reputation when it delays such matters, as was the case, for example, with the Article 370 reference or some high-profile, politically exposed Habeas Corpus questions. But it is equally true that when engaging with these matters, the broader understanding of the effects of its remarks and its judgments must be taken into account without in any way impairing its legal reasoning. The remarks about Ms Setalvad or Ms Sharma, which caused successive uproars, may not have been essential to the reasoning behind the respective judgments. Judges’ right to have such opinions and to express them cannot and should not be curtailed. But statements from the Bench on politically sensitive matters should perhaps be more careful of the context and possible consequences.

The fallout of recent events for Ms Setalvad and for general activism on behalf of riot victims will be dire, for example. So will the effects on speech about religion following the Bench’s denunciation of Ms Sharma. The court has considerable power to impact these and other open social questions, but that power is best used only in respect to and in response to the specific constitutional and procedural questions that arise before it. The court’s duty is to set legal precedent and address injustice, not to correct the ills in political discourse. Not only will this preserve the court’s authority that is now increasingly being assailed, but it will also ensure that “personalised” criticism of the sort referred to earlier will be minimised. As it stands, the court is in danger of being seen as inconsistent, while also calling for restrictions on speech and reporting to protect its own sentiments and reputation. This does not do the august institution any good, and is in danger of undermining its own position.