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