Judiciary needs to dig its heels in on the slippery slope of ultra-nationalism to ensure accountability survives

When the words of a sitting Supreme Court judge begin to resemble those of lawyers and retired judges of a certain idealogy, who conflate accountability with anti-nationalism, it is a dangerous sign, writes Rohin Bhatt.

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THE recent Supreme Court opinion authored by Justice Dipankar Dutta in a case where the petitioners sought 100 percent Voter Verified Paper Audit Trails (VVPATs) verification cames as a surprise, to say the least.

First, if one goes to the opinion authored by Justice Sanjiv Khanna, at the end one can see that it is signed by both judges. Yet, Justice Dutta chose to write a separate opinion as well.

Be that as it may, he notes in the third paragraph of his opinion, "Senior counsel or counsel for the three petitioners suspect, without, however, attributing any malice to the Election Commission of India." Yet, two paragraphs later, he goes on an ad hominem attack on the Association for Democratic Reforms.

Subsequently, in paragraph 5, he writes, "It is of immediate relevance to note that in recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce.

"There seems to be a concerted effort to discredit, diminish and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud.

"No constitutional court, far less this court, would allow such an attempt to succeed as long as it (the court) has a say in the matter. I have serious doubts as regards the bona fides of the petitioning association when it seeks a reversion to the old order.

"Irrespective of the fact that in the past efforts of the petitioning association in bringing about electoral reforms have borne fruit, the suggestion put forth appeared inexplicable. The question of reverting to the 'paper ballot system', on facts and in the circumstances, does not and cannot arise.

Also read: Calling for bridging the gap between public perception and ECI information on EVMs and VVPATs, SC reserves judgment

"It is only improvements in the EVMs or even a better system that people would look forward to in the ensuing years."

At the outset, I wish to clarify that I do not hold a brief for the Association for Democratic Reforms, nor do I say that the judge was wrong in rejecting the argument of the petitioner. It is well within his power to make a decision in accordance with the Constitution and the law, as per his oath.

However, I am worried, as a lawyer, about judges attacking the Association for Democratic Reforms and parroting the language of the fringe of the legal profession in their judicial Orders.

There are two issues here that I wish to address. First, the attack on the petitioners and activists who have for long taken issues to court, and, second, the language that the judge uses in paragraph 5 of his opinion, parroting the recent letters to the Chief Justice of India by 600 lawyers and retired judges.

Let me first deal with the attack on the public interest litigation petitioners. This trend was started by Justice Khanwilkar when he was a judge of the Supreme Court.

In the Zakia Ehsan Jafri judgment, where the petitioner challenged the special investigation team (SIT) report and the decision of the magistrate in the 2002 riots cases, Justice Khanwilkar wrote that Teesta Setalvad, a co-petitioner, had adopted a devious stratagem to keep the pot boiling with an "ulterior motive".

The Order, running into over 450 pages, spoke of a "coalesced effort of the disgruntled officials" so as to "create a sensation". Setalvad was arrested within a day of the judgment by the Gujarat police.

On the other hand, after his retirement, Justice Khanwilkar was made the Lokpal. Back to the present case: those who know of elections, know that the Association for Democratic Reforms (ADR) has a long history of taking issues to court in order to ensure transparency in the electoral process.

This has ranged from bringing political parties under the Right to Information (RTI) Act, 2005 to challenging the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023.

Also read: An ominous couple of weeks for advocates and advocacy in India

Indeed, the biggest success of the ADR has been bringing the quid pro quo in the electoral bonds to light and ensuring that political funding is transparent.

The organisation has an enviable track record of public service by bringing petitions and such remarks by the judge were unwarranted. Remarks like this serve no purpose other than to discourage litigants and public-spirited persons from bringing matters to the court, leaving our democracy poorer and our justice system weaker.

With the clampdown on civil society and threats to free speech, courts have become the last sites for democratic struggle. In such situations, judges may decide for or against the petitioner, as is their right, and one may say even their duty.

But to make remarks accusing petitioners of 'vested interest' without any proof diminishes the constitutional office that the judges hold.

Let me come to the second issue. In the recent past, two letters have caught the eye of the media: first the letter by 600 lawyers, including the president of the Supreme Court Bar Association, which accused a "vested interest group" of trying to "damage our courts and threaten our democratic fabric".

Notably, within a few hours of it being released, the letter was shared by the Prime Minister, raising doubts that it might have been politically motivated.

The second letter was written by retired judges, including Justice M.R. Shah, who had called the Prime Minister his hero when he was the Chief Justice of Patna, and Justice S.N. Dhingra, who is a serial letter writer and has also written letters opposing marriage equality and in favour of Bharatiya Janata Party leader Nupur Sharma when she was caught in a row for insulting Prophet Muhammed.

The letter sought intervention from the Chief Justice of India against the "escalating attempts by certain factions to undermine the judiciary through calculated pressure, misinformation and public disparagement".

The letter noted, "It has come to our notice that these elements, motivated by narrow political interests and personal gains, are striving to erode the public's confidence in our judicial system."

Also read: A ghost in the machine? On EVMs, democracy deficit and its constitutionality

The language of Justice Dutta's opinion in the VVPAT matter is strangely similar. It would bode well for us if we remember that eternal vigilance is the price we pay for liberty.

Indeed, to question and develop a scientific temper is a fundamental duty if we want to preserve the democratic traditions that we are so proud of.

We go to court as a last resort, to seek the coercive power of a judicial Order: at a time when the Election Commission of India is reticent to act, or even name the Prime Minister after hate speech, where does the citizenry go?

Rights-based advocacy in courts has been extremely powerful, and the court has been, until recently, willing to engage with civil society organisations and non-governmental organisations.

Civil society is a site of nation-building, a check on the power and the voice of citizens but, most importantly, it is a vital partner in the relationship between the State and its people.

It serves as a tool of accountability and keeps the State responsive. If the State does not respond, as was the case here, it is the right and duty of the civil society to approach courts.

The executive has become hostile to civil society, and I pray that the courts do not too.