Siddharth Varadarajan 
India’s legal fraternity continues to remain perturbed by the unusual open letter written by 600 lawyers – including Harish Salve and other establishmentarian figures – accusing unnamed lawyers of pressuring the Supreme Court to go easy on senior opposition leaders battling corruption allegations.
The letter, which originated from a group of lawyers in Rajasthan, is evidently part of what Vice President Jagdeep Dhankhar has called a ‘proactive’ strategy against ‘anti-national’ elements. A couple of days after the letter surfaced, PTI quoted him as saying last Friday:
“We have to be extremely careful, sensitive and proactive in neutralising [the] anti-national narrative with respect to our robust judicial system, our democratic fabric and what we have attained.”
Before he entered active politics with the BJP, Dhankhar was a Rajasthan-based lawyer and was also president of the state bar association. This connection may explain the ‘Rajasthani’ provenance of the letter and its speedy public endorsement by Narendra Modi.
Asked for a comment on the letter by 600 lawyers expressing concern over the fate of the judiciary, Justice J. Chelameswar, a former Supreme Court judge, told The Wire he was reminded of a quote from Harold Macmillan that he had read a few years ago in William Manchester’s three-volume biography of Churchill: “I have never attended the funeral of a murdered man but I presume that on such an occasion a distinction is made between the mourners and assassins.”
“An intellectual, socio-political and cultural environment in which the judiciary can remain substantively free from extraneous, illegal and/or motivated pressures is sine qua non for the functioning of a constitutional democracy,” said Justice B. Sudershan Reddy, who retired from the Supreme Court in 2011, when asked for his reaction to the Letter of 600. “And that is the normative framework of Article 121 of the Constitution of India whereby restrictions are placed, even on legislators, with regard to the content and context of discussions about judges.” But, he added, “Having said that, informed, reasoned and reasonable debate about orders and judgements of the courts is also necessary in order for the judges to be able to make continuing assessments of how well they are bearing the burden of rendering justice.”
He said that protection of independence and yet engaging in a healthy critique are two necessary parts of a moral compact. “That moral compact needs to be protected against the temptation to engage in discussions that are motivated by political and economic opportunism. Nor can this be a platform to drive fear into the heart of justice. Consequently, the larger burden falls upon the ruling regimes to instruct, particularly the top leaders, to refrain from making comments that derogate from the moral authority of the judges. This would set an example for the opposition and the media.”
Justice Reddy said the “role of judges is to intensify the benefits of democracy to the people — particularly in respect of fundamental rights and social justice” and that “enables the people … to assess whether the goals of constitutional democracy are being consistently treated as paramount in all aspects of governance.”
The former judge said that both the political executive and the judiciary itself had a duty in this regard:
“The institution should not be destroyed on the anvil of political opportunism, its constitutional imperatives subjugated to the whim and caprice of the executive, and its moral authority dissolved in the corrosive acid of divisive passions. It is also necessary to point out the obverse: How the judges comport themselves, both inside and outside their courtrooms, in terms of their behaviour, intellectual and moral essentials of constitutionalism, and the personal integrity that they bring to their duties. The judiciary as a whole, and the individual members constituting it, need to be constantly aware of the burden they carry.”
“Our judiciary has broad shoulders and I am confident that such letters are more like water off the duck’s back,” said Meenaksi Arora, senior advocate. “It’s not only petty but a perverse way to deflect current issues seriously impacting our democracy.” She added that it was a “shame that lawyers are allowing themselves to be used for obvious political purposes.”
“There is no issue about the harm done by pressurising the judiciary, influencing the judicial process, frivolous logic and the like,” said senior advocate Sriram Panchu in Chennai. “The question is who is doing all this. Perhaps the accusers should do some introspection. The shoe might quite well fit the other foot.”
Panchu also said that although this is election time, “there was no need for the PM to politicise this.” Standing up for the constitution is far different from supporting any political party, he added.
This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been updated and republished here. To subscribe to The India Cable, click here.