One of the judges who served on the Bench expressed concern over the use of digital and social media for “expressing personalised opinions” against judges and called for mandatory regulation of such media to “preserve the rule of law” in the nation amid criticism on social media of the Supreme Court’s oral comments in the case of suspended BJP spokesperson Nupur Sharma this week.
Nowadays, social and digital media are mostly used to convey individualised viewpoints that are more critical of judges as a whole than a constructive evaluation of their decisions.
This is what is undermining the dignity of the judiciary, according to Justice J. B. Pardiwala, who made the statement on Saturday.
Constitutional courts have, according to Justice Pardiwala, “always warmly accepted informed dissents and helpful observations, but their thresholds have always precluded the individualised, agenda-driven attacks on the judges.”
In order to uphold the rule of law as set down in our Constitution, he continued, social media and digital platforms must be subject to mandatory regulation in the nation.
For her comments about the Prophet, Sharma received harsh criticism from the vacation bench of Justices Surya Kant and Pardiwala on Friday. They claimed that Sharma had a “loose tongue” and was “single-handedly responsible for what is occurring in the country,” particularly in Udaipur.
Speaking at the second Justice H R Khanna Memorial National Symposium, which was put on by Dr. Ram Manohar Lohia National Law University, Lucknow, National Law University, Odisha, and the Confederation of Alumni for National Law Universities, Justice Pardiwala discussed “Vox Populi vs Rule of Law: Supreme Court of India” (CAN Foundation).
According to Justice Pardiwala, “a trial is fundamentally a procedure to be carried out by the courts.” But in the context of today, “trials by digital media are an excessive intervention in the administration of justice, repeatedly violating that Lakshman Rekha.”
He noted that this was “particularly concerning when that group of people starts scrutinising the legal system because it just offers the half truth.” “Those who find it difficult to understand the ideas of judicial restraint, binding precedents, and the inherent limits of judicial authority, this group of people, the half-truth knowledgeable, are a serious challenge to the administration of justice through the rule of law,” the author writes.
Judges will be forced to pay more heed to what the media thinks than what the law truly requires as a result of the “attacks attempted on judges for their judgements,” Justice Pardiwala warned. “This ignores the sanctity of the respect for the courts and puts the rule of law on the back burner.”
The remedy for any judicial order or judgement is unquestionably not available on digital or social media but rather before the superior court of law in the judicial hierarchy, according to what he said. “A judicial verdict, right or wrong, is always by a court vested with powers under the Constitution of India as a court of record,” he said.
The judge observed that “social and digital media are frequently used in India, which still cannot be regarded as a fully mature and informed democracy, to politicise purely legal and constitutional issues.”
A case in point, according to Justice Pardiwala, is the Ayodhya controversy. It was essentially a land and title issue that was close to a deity’s title. But by the time the judgement was finally handed down, the matter had acquired political connotations,” he remarked.
“All those attributing the Supreme Court’s intentions and motives for the Ayodhya verdict conveniently forgot that some judge had to render a decision on the contentious civil dispute, which was unquestionably one of the oldest litigations pending in the country’s courts and ran into more than 38,000-plus pages. The heart of any legal procedures before the constitutional court may vanish in this situation, and the judges who are adjudicating the case may feel a little unsteady, which is contrary to the rule of law. The rule of law is not healthy in this situation, he declared.
The Justice Pardiwala noted that another topic that has “always been a hot subject for the social and digital media is the sentencing in situations of significant offences.”
“These platforms have a tremendous amount of power, and they are frequently utilised to have the accused appear guilty or innocent even before the trial is over. This also violates the law, particularly in high-profile cases where the accusation is serious or the occurrence is overblown. Even before the trial is over, society begins to hold the view that the only appropriate result of a legal action should be a conviction and a severe sentence for the accused.
Justice Pardiwala urged Parliament to take into account passing legislation to control social and digital media.
“…The Parliament must reflect on the regulation of digital and social media, especially in the context of sensitive cases, which are sub judice, by implementing suitable legislative and regulatory regulations in this regard,” he said.
He noted that “a number of laws, including revisions to the Information Technology Act 2000 and the Contempt of Courts Act, 1971, are in place to confront the problems of interference with the judicial processes, particularly in sensitive sub-judice matters.”
Nationally and internationally, there are also studies, reports, and recommendations “suggesting approaches and measures for tackling the perpetual problem of media trial, especially through the social and digital media,” he stated.
The judge stated regarding the rule of law that “the judiciary cannot exist independently of the society and the interaction is necessary, but the rule of law is insurmountable.”
It is a difficult exercise to strike a balance between upholding the rule of law with the majority population’s intentions. To balance between the two “takes extraordinary judicial expertise,” he remarked.
“What will people say, “log kya kahenge, kya sochenge” (What will people say, what will people think) is an enigma that plagues every judge, at all times, anytime he is to write down a decision that could have social repercussions.”
He added that this is “when the concerned judge’s conviction, awareness of the constitutional ideals, and conceptual understanding of the rule of law comes to the fore.”
Justice Pardiwala stated that “judicial verdicts cannot be the reflection of influence of public opinion.” He recalled that Professor K T Shah “was of the view that the sentiments of the people must be given consideration when it comes to judicial decision making” during the deliberations in the Constituent Assembly.
He added that there is another school of thought. I follow this school of thought, and it emphasises the importance of separating oneself from the majority’s viewpoint and abiding by the law.
Justice Pardiwala cited the “landmark” rulings in the Sabarimala case, LGBT cases, and some death penalty cases as instances of “where SC backed rule of law versus majoritarian perceptions.” The conflict between societal goals and the need to respect the rule of law, he said, “comes to the forefront when we look at… (these verdicts).”