| @ | October 29,2018

Justice Benjamin Cardozo of the U. S. Supreme Court once said, “[t]he great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by”. He was among the early proponents of Legal Realism, in which it is believed that often judges make up their minds about the outcome even before they turn to the law and the legal rule book. Some realists assert that the judge’s personality has more impact than legal rules or certain factors like public opinion mould judges’ behavior.

The hearing of much awaited and controversial case on the Ayodhya title suit formally starts on October 29. The Supreme Court, in its earlier decision in September, refused to refer the matter to a Constitutional Bench and further held that the Ismail Faruqui judgment of 1994 remains irrelevant for the matter in hand. Though the court has paved the way for a simple land acquisition proceeding but in public domain the matter remains more than just a land dispute. The ruling BJP party cannot stop itself from shouting it as its political agenda and the media houses are still sensationalising it “in the name of Ram”.

Though the court has paved the way for a simple land acquisition proceeding but in public domain the matter remains more than just a land dispute. The ruling BJP party cannot stop itself from shouting it as its political agenda and the media houses are still sensationalising it “in the name of Ram”

Such being the circumstances, the public opinion and the subsequent pressure in the case remains constant. How does public opinion mould judges’ behaviour? Are there any hints of such relation before? What can be done to minimise the impact? The article tends to explore the unchartered side of non-judicial dimensions in judicial decisions.

 

Public opinion versus judicial decisions

Many political scientists assert with confidence that “we the people” influence the decisions of the Supreme Court. But the term “public” exactly does not mean people in general. The term “public” means a section of society sharing common interests. The reason public opinion could affect judicial decision is that the public has a direct influence on the court because the judges are concerned about their legitimacy and relevance in the short and long terms. In the case of Furman v. Georgia, the U.S. Supreme court struck down all state laws permitting the death penalty. Justice Thurgood Marshall wrote that “the average citizen would, in my opinion, find the death penalty shocking to his conscience and sense of justice. For this reason alone, capital punishment cannot stand.”

There are two ways in which the judicial decision is shaped by public opinion:

  1. Strategic behaviour
  2. Attitudinal change

The former contends that Judiciary is that organ of government, which neither has the purse nor the sword. Its authority ultimately rests on “sustained public confidence in its moral sanction.” The latter is best expressed in the terms that judges are merely ‘‘black-robed homo sapiens’’. It suggests that observed direct linkage between public opinion and the behaviour of judges arise from the force of mutually experienced events and ideas in shaping and reshaping the preferences of both the public and the judges.

 

Previous instances

 

In 1976, a habeas corpus petition was filed in the much infamous ADM Jabalpur case where the apex court held that “locus to file petition for enforcement of fundamental right is taken away as soon as emergency is imposed in the state”. The case is considered as the lowest point of Indian judiciary. At that time, people did not take the judgment positively and later this provision (Article 359) was amended by the Parliament where it was specifically laid down that proclamation of Emergency does not take away rights provided under Article 20 and 21 of the Constitution. In other cases like Sunil Batra v. Delhi Administration, M.H. Hoskot v. State of Maharashtra or Hussainara Khatoon v. State of Bihar, public sentiments were attached and the interpretation was done in such a way that evolved law into giving more rights to the citizens.

In 1976, a habeas corpus petition was filed in the much infamous ADM Jabalpur case where the apex court held that “locus to file petition for enforcement of fundamental right is taken away as soon as emergency is imposed in the state”. The case is considered as the lowest point of Indian judiciary

In the case concerning bail of Kanhaiya Kumar, the Delhi High Court gave an extraordinary judgment which one does not generally expect in bail orders. The judgment cited songs from Bollywood, reminded people of sacrifices by soldiers on borders and many other things. The impact of much heated public debates was clear. In the Nirbhaya case, public furore after the incident ensured that the court has to award death sentence. In Navtej Sandhu case (Afzal Guru case), the Supreme Court specifically stressed that “conscience of the society” will only be satisfied when the convict is sentenced to death. The National Anthem case of 2016 which initially gave mandatory direction of national anthem being played before movies at cinema halls, received mixed reactions. The misuse and compulsive nature of the judgment saw violence against people and at one specific instance on a differently-abled person. After much public debates, the judgment was diluted to non-mandatory direction.

Recently, the Kashinath Mahajan judgment (SC/ST Atrocities Act) was overturned by the Parliament because of large-scale agitation and strikes by the community. After the Sabarimala judgment, the kind of furore and reaction that has been received consolidates the argument of restlessness among the masses and its indirect impact on the law making process.

Thus, the interaction of judiciary and public opinion is not anything new. Matters of religious disputes attract public eyes and the courts venture on the path which goes beyond rule of law. Though some strong judgments in the very recent past have paved the way for a determined judiciary, much is yet to be seen on the Ayodhya case.

 

The way forward

 

Though instances can be found which goes contrary to the argument of public opinion molding judicial decisions, the possibility of such interference cannot be forthrightly rejected. The Supreme Court has not remained non-oblivious to public opinion. In Sahara Pvt. Ltd. v. SEBI, the apex court devised the “doctrine of postponement of publication”. It is a precautionary measure where the media is not allowed to publish opinions about the sub judice matter till the hearings conclude. This doctrine of postponement is not to be read as a censorship or as prior restraint but rather a safeguard against possible abuse. This can be one of the viable options considering how the non-judicial factors are shaping public opinion in this matter.

Judiciary cannot exist independent of the society and the interaction is inevitable. But the rule of law is insurmountable. There are certain things that judiciary cannot change and certain things which need it to show courage for any change

As a moral duty, the political parties and media houses are required not to argue or shape up opinion on non-legal prospects. Any wrong information can brew up emotions and serve the political agendas. The information and opinion shall be made in the easiest of language so that a layman can get best of the understanding about the proceedings. These are small measures that can have strong impact on creating an impediment upon public pressure effecting judicial decision, pre or post verdict.

Judiciary cannot exist independent of the society and the interaction is inevitable. But the rule of law is insurmountable. There are certain things that judiciary cannot change and certain things which need it to show courage for any change. The wisdom required is to understand the difference between the two.

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