India’s Supreme Court would be on a
self-trial – that is, it would let itself be observed and judged by everyone – when
it decides any appeal against the recent Karnataka High Court judgement that
acquitted Tamil Nadu Chief Minister Jayalalithaa in the disproportionate assets
case. The High Court too had been on a
self-trial when it sat on an appeal against the judgement of a Bengaluru special
court which pronounced her guilty. And
yes, the special court was likewise on a self-trial when it conducted the case against
her in the first instance. All these are not to say that in this criminal
case any court may be perceived as doing credit to itself only by holding the accused guilty. Then what?
Law prescribes many things
– such as who checks and decides if you are fit to get a driving licence, what
income tax you have to pay and who will first assess you, the largest area of
construction you can raise on a plot of land and about thousands of other
issues. You and I may not be the officials who test
applicants for a driving licence, keep tabs on income tax dues and payments or oversee compliances with building construction rules.
But looking around, all of us take a view whether driving licences are
indeed given on a real test of driving skills, whether generally all incomes
are taxed as they should be and if unchecked over-construction goes on. Your views on these examples could be vastly differing
if you live in India or in the UK. But
wherever you are, you will be a judge of things happening around you,
especially if they are not in order as you feel. Likewise, the functioning of the judiciary
does not escape public perception.
In the case of politicians running governments
in a democracy, you could openly discuss their actions or inactions and sternly
say whether they are right or wrong and talk about their motives too, of course
without breaking the defamation law. They
are also free to reply and defend themselves in public. But about judges and their judgements you can
form any critical view, even a little offensive if you like, but you cannot say
it out in public beyond a measure – and doing so is rightly prohibited by
law. Sitting in court, or even after
retirement, a judge cannot be replying to criticisms about his or her
judgements, whether mild or not. For
that reason also a good judge, while writing a judgement, thinks about all
reasonable doubts and criticisms his or her conclusions may attract and moulds the
judgement in a way it may not face serious objections to its justness. Often the justice of a case would instinctively strike a good judge when he or she finishes up the hearing, and the seasoned
among them explain themselves fully in the judgement itself so it persuades an unprejudiced
reader that it is just and fair. (Judgements interpreting complicated laws,
which the public would generally not read or may not follow, are of a different
class)
So law does not block human nature,
by which anyone finds for himself or herself whether the judgement in a widely
followed court case seems well constructed and convincing or not. Such human nature works especially in a case that
involves much of arithmetic and related basic facts rather than interpretation
of intricate laws. If you agree with the
judgement you can say it aloud in the open.
If you have criticisms on the judgement, especially those you cannot say
out, you might naturally whisper them to friends who would not carry them to
the public sphere. This is not peculiar to the Indian public, and
will happen all over the free world in a like case. That is why you can say the Supreme Court would
be on a self-trial when it delivers its judgement on any possible appeal against
the Karnataka High Court’s findings.
A little more about any court on a self-trial. Recent times have seen restrictions on free
entry for the public into court halls, especially in the High Courts and in the
Supreme Court because of threats to security.
But, for ages earlier the public were free to enter courtrooms everywhere
and watch proceedings from a separate enclosure though they could not, in a
similar fashion, get into the room of any government official and watch how that
official transacted business with a visitor on work. Such free access to a court room marked the openness
and transparency expected in the working of the judiciary, which also go with a
rule that a judgement should give reasons. Those reasons would help any appeal court, if
the case goes there, to assess if the lower court was right or wrong. At the same time, the reasons in a judgement would
also shape an opinion in the minds of the parties and the interested public about
the judgement. Generally, in most cases,
the reasons for a court’s verdict – whichever party wins the case – would come
from a plain common-sense analysis of facts and events and a picture they naturally make,
and it is here that courts are more on a self-trial and are judged closely by countless
others. In some way, that is also a beauty of a free
society wherein courts and judges are protected from severe criticisms from
anyone but at the same time are open to assessment by all.
There is another thing. Courts may be cautious in dealing with
corruption cases against a high government functionary, like any minister or
the chief minister of a State or anyone in the cabinet of the Central
Government. Not that a lower-ranked official
of the government can be judged less carefully in a court proceeding, but the general
effect of convicting a minister in a government would be grave in public
affairs and so courts tend to be more circumspect. The converse of this is also important – such
a high functionary should be seen to be clean and straight and not give, by his
or her dealings, an easy room for corruption charges to be brought against him
or her. In a way it is like your respecting someone
who respects you. If you don’t return
the respect you are in danger of losing respect for you.
Next, the high status of the court
which writes a judgement either way in a corruption case – especially relating
to a top government functionary - will also send out right signals to all about the soundness of the justice system in the country. So the Supreme Court, being the nation's highest court, will be watched even more keenly by everyone when it gives its judgement and its underlying reasons in any appeal in the
Jayalalithaa case. What that court says will come to stay and is going to matter for all politicians, for all the public and for all courts in India.
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Copyright
© R. Veera Raghavan 2015
