The verbal comments by judges, especially in the higher judiciary have become a news point on their own. Today’s comments on the leader of the opposition are bizarre even by their own standards. Hearing an SLP moved by Shri Rahul Gandhi against a defamation suit against him, filed in Lucknow, the court commented on his patriotism and on the infallibility of the armed forces. Both are, staple political discourse, but deeply problematic when in the courts. In a diverse, traditional and unequal society like ours with overwhelming multiplicity of identities, it has been a measured effort to shield the judiciary from pop opinion. We have done away with jury trials, the courts have denied the executive and legislative of any real say in its appointments, and we never provided for election of judges, even at the lowest levels. All this was to protect the objectivity of the judiciary, in a complex society. So when the judiciary asks questions like, how did Mr Gandhi ascertain the area held by the Chinese, it is transgressing juridical logic. Asking why did not he ask such questions in the parliament, betrays the court’s understanding of parliamentary politics. The opposition is the government in waiting, and therefore entitled to all such information, it may need, in case it takes over. The opposition has the task of educating the public on issues and ensuring both public and parliamentary accountability. The court’s comment on “no true Indian “ would speak against armed forces is also poor in law. The constitution places limits on the rights of the armed forces even fundamental, not on civilians. So this restriction on criticism is not on the military but by the military. This elevation of the military is against the principle of civilian supremacy and can prove dangerous for the democratic foundations of the country. The courts should remember that India is the only legatee of the British Indian Army, which has not faced a military coup. The constitutional court is responsible for advocating constitutional morality, as against traditional , religious and ideological morality. It has failed in its duty. Liberal values are at the core of our constitutional values, and the comments by justice Dutta and justice Masih are totally antithetical to liberal values. The court instead, ought to, seek accountability from the government. The brazenness with which, the government uses national security as a shield , even evading judicial scrutiny and handing closed envelopes in courts, refusing answers in parliament and press. The court must reclaim its legitimacy built upon objectivity, independence and constitutional values.
