Amid criticism on social media of the Supreme Court’s oral remarks in the case of suspended BJP spokesperson Nupur Sharma this week, one of the judges who was part of the judiciary expressed concern over the use of digital and social media to “express personalized opinions” against judges, and called for mandatory regulation of such media to “preserve the rule of law” in the country.
“These days, social and digital media mainly resort to the expression of personalized opinions more against judges as such rather than a constructive critical evaluation of their judgements.
This is what harms the judicial institution and lowers its dignity,” Judge JB Pardiwala said on Saturday.
“Constitutional courts have always graciously accepted informed dissent and constructive criticism,” Justice Pardiwala said, “but their thresholds have always prohibited personalized and agenda-driven attacks on judges.”
“This is where digital and social media must be mandatorily regulated in the country to preserve the rule of law under our Constitution,” he said.
The holiday benches of Judge Surya Kant and Judge Pardiwala had went wild against Sharma on Friday for her remarks about the Prophet, saying that she had a “loose tongue”, and that she was “Only responsible for what is happening in the country”including in Udaipur.
Justice Pardiwala was speaking on the topic “Vox Populi vs. Rule of Law: The Supreme Court of India” at the Second National Justice HR Khanna Memorial Symposium organized by Dr. Ram Manohar Lohia National Law University, Lucknow, and National Law University, Odisha, with the Confederation of Alumni of National Law Universities (CAN Foundation).
“A trial is essentially a process to be conducted by the courts,” Judge Pardiwala said. “However, in the modern context, trials by digital media are an undue interference in the process of dispensing justice, crossing this Lakshman Rekha repeatedly.”
It was “particularly disturbing when this part of the population starts scrutinizing the judicial process, it only presents a half-truth,” he said. “Those for whom the concepts of judicial discipline, binding precedents and inherent limits of judicial discretion are elusive, this part of the population, knowing the half-truth, poses a real challenge to the dispensation of justice within the framework of Right wing state”.
The “attempted attacks on judges for their judgments lead to a dangerous scenario in which judges will have to pay more attention to what the media thinks rather than what the law actually prescribes,” Judge Pardiwala said. “It puts the rule of law on fire ignoring the sanctity of respecting the courts.”
He said that “a judicial verdict, good or bad, is always rendered by a court vested with powers under the Constitution of India as a court of record…”, and “the remedy of any judicial order or judgment is clearly not available on digital or social media, but in the higher court of the judicial hierarchy”.
The judge said that “in India, which still cannot be called a fully mature and informed democracy, social and digital media are frequently used to politicize purely legal and constitutional issues.”
The Ayodhya dispute is a good example, Judge Pardiwala said. It was “essentially a dispute over land and title, bordering on the title of a deity. However, by the time the final verdict was delivered, the issue took on political overtones,” he said.
“All those who imputed intentions and motives to the Supreme Court for the Ayodhya verdict conveniently forgot that one day or another a judge had to decide the contentious civil dispute which was indisputably one of the oldest disputes pending in the court of the country being executed.more than 38,000 pages.This is where the heart of any legal proceedings in the constitutional court can disappear and the judges who decide the dispute can be a little shaken, this which is contrary to the rule of law. It is not healthy for the rule of law,” he said.
Another issue that “has always been a hot cake for social and digital media is that of penalties for serious breaches”, Judge Pardiwala said.
“The immense power of these platforms is constantly used to precipitate a perception of guilt or innocence of the accused before the trial has even ended. It also sacrifices the rule, especially in high-profile cases where the incident is is publicized, or the accused is a great man.Even before the end of the trial, society begins to believe that the outcome of the legal process should be nothing but a conviction with extreme punishment for the accused.
Justice Pardiwala called on parliament to consider legislating to regulate social and digital media.
“… The regulation of digital and social media, especially in the context of sensitive lawsuits, which are pending, needs to be addressed by Parliament by introducing appropriate legislative and regulatory provisions in this regard,” he said. declared.
He pointed out that “a number of pieces of legislation, namely amendments to the Information Technology Act 2000, the Contempt of Courts Act 1971, are in place to address the interference in judicial processes, especially in sensitive sub-judicial cases”.
There are also studies, reports, recommendations, both at national and international level, “suggesting ways and measures to manage the perpetual problem of the media lawsuit, in particular through social and digital media”, he said. -he declares.
Regarding the rule of law, the judge said that “the judiciary cannot exist independently of society and the interaction is inevitable, but the rule of law is insurmountable”.
“Balancing the intent of the majority population on the one hand and meeting the demands of asserting the rule of law on the other is a difficult exercise.” It “requires extreme forensic skill to walk a tightrope between the two,” he said.
“What would people say, ‘log kya kahenge, kya sochenge’ (What will people say, what will people think) is an enigma that haunts every judge, every moment, every time he has to write a judgment with social ramifications ” .
However, “this is where the judge’s conviction, awareness of constitutional values and conceptual understanding of the rule of law come to the fore,” he said.
“Judicial verdicts,” Judge Pardiwala said, “cannot reflect the influence of public opinion.” He recalled that during the Constituent Assembly debates, Prof. KT Shah “was of the view that the feelings of the people should be respected when it comes to judicial decision-making”.
However, there is another school of thought, he said. “I belong to this school of thought”, and “it stresses the need to dissociate oneself from the belief of the majority and to respect the rule of law”.
Among the examples “where SC upheld the rule of law against majority perceptions”, Judge Pardiwala mentioned “landmark” decisions in the Sabarimala case, LGBT cases and some death penalty cases. “When we look at… (these verdicts), the friction between societal aspirations and the need to uphold the rule of law comes to the fore,” he said.