Written by Mohit Singhvi
Founder & Head, Singhvi & Co., Advocates, and Legal Consultants, Jodhpur, Rajasthan.
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
With the dawn of technology and modernization, the fear of exposure of justice to the rich and powerful diminished to a great extent. The author has tried to reduce the generic feeling of litigants into writing as also expressed by the judges retiring in the recent past. The general ideology and behind the curtain relation between the justice, power-centric, and the opulent revolving around us since ages has become the actual reality as also fortified from the fact of the acceptance of the same by the judges of the highest court. As we are still trying to win the fight against the pendency and delay, this is yet another hurdle in the expansion of faith in the justice delivery system.
Keywords: Judges, Politics, Power, Rich, Poor, Equality, Fairness
"The law, in its majestic equality, forbids rich and poor alike sleeping under bridges, to beg on the streets, and to steal their bread.”
The idea of Rule of Law has become almost unanimously embraced in our lives. For human rights advocates, Rule of Law is perceived as a quintessential tool to evade favoritism, and capricious use of vigor. But the moot question which needs to be deliberated upon without any delay is to what extent the social and economic disparity impacts the applicability of the Rule of Law. It has served as an extremely powerful idyllic for those agitating against the theories of authoritarianism and totalitarianism in the recent past and is without a doubt one of the chief pillars of a democratic system.
The legislature and the courts are relentlessly working towards the betterment and upliftment of the poor and the needy but inequality continues to prevail. This is in the form of access to courts, economic disparity, equal treatment, etc. and continues to be an alarming issue for the government and echelons of the judiciary to address. It is pertinent to mention rather correct to assume that the justice system is completely conscious to eradicate the inequality mentioned above. It is the duty of the court as well as the state to ensure that justice is being delivered to the poor and also that the provision of Article 39-A of the Constitution of India, 1950 which was added to the Constitution of India by the 42nd amendment in the year 1976. Article 39-A states that “It is the duty of the State to see that the legal system promotes justice on the basis of equal opportunity for all its citizens”. Not only this, Article 14 and 22(1) of the Constitution also makes it obligatory for the State to ensure equality before the law and a legal system which promotes justice on the basis of equal opportunity to all. As a step towards the amelioration of the judicial system, the government of India introduced the National Legal Services Authority Act, 1987, and Lok Adalat as one of the methods of Alternative Disputes Resolution mechanisms. Few years after the insertion of Article 39A into the Constitution, in the well-known case of Hussainara Khatoon in 1979, the Supreme Court had an opportunity to deal with the issue of legal aid and Article 39A. Justice P. N. Bhagwati held that:
“Article 39A emphasizes that free legal service is an inalienable element of 'reasonable, fair and just' procedure; for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice. The right to free legal services is, therefore, clearly an essential ingredient of 'reasonable, fair and just’ procedure for a person accused of an offense and it must be held implicit in the guarantee of Article 21.”
Also, in Khatri II vs. State of Bihar and in Madhav Hayavadanrao Hoskot vs. State of Maharashtra the Hon’ble Supreme court upheld the importance of delivery of justice for the pauper irrespective of the power and financial capabilities of the litigant which depicts the respect extended to the general public as well as an image of being known as a “chariot of justice’. To cut the long story short, it is to be understood that earlier, justice was never dependent upon any external factors and today it is all about either the exertion of power and money or a gimmick to settle their post-retirement placements. Well, we need to understand the impact in light of the abhorrent statements made in the recent past by the retiring judges.
Arguendo for a layman, the judiciary serves as a chariot to serve justice which acts within the parameters of the Constitution of India, 1950 and over the past so many years, the courts consisting of judges have left no stone unturned to uphold the majesty of law and to ensure that the trust of the general public is reposed in law and the court of law But the debatable question is whether the same is being carried forward in today’s time, or how the times have has changed in the way general public look at the purity of institutions and judges. The recent remark by Hon’ble Justice (Retd.) Deepak Gupta, namely, “that the country’s laws and legal systems favor the rich and the powerful” made during the virtual farewell hosted by the Supreme Court Bar Association has left everyone in a fright. The impact of such a statement on a common man could be imagined as tainted and is in a state of helplessness. The question which arises is what had stopped them to agitate the cause and be a revolutionary during the subsistence of their tenure, the fear of impeachment, or pensionary benefits? This is not the first occasion when a retired judge of the Hon’ble Supreme Court had made derogatory remarks and led the institution down. Justice (Retd.) Madan Lokur has been in the headlines as a matter of practice for his unbridled remarks every now and then.
Does this point towards the use of approach and money in imparting justice, or can we say that the judiciary is no more independent, or it has become subservient to the underlying intent of the political power?
In the words of the Chairman of the Bar Council of India, these remarks are “sustained and synchronized attack” in a “conspiracy to weaken and browbeat the institution” and that it imputes “derogatory, defamatory allegations against the Supreme Court of India”, which aims to “disgrace, defame and lower the reputation of the Supreme Court.
That such statements although are baseless and made with unjustified intent, have not only given a chance to the mass to stare at the judicial institutions but have also put them in a hitch. Not only this, but the appreciation of the political leaders by the sitting judges of the Hon’ble courts also raises the eyebrow and takes us back to the early times and of course to a well-renowned principle of the independent judiciary which is a sine qua non for the vibrant democratic system. The Hon’ble Supreme Court in Supreme Court Advocate on Record Association vs. Union of India held that “so long as the judiciary remains truly distinct from both the Legislature and the Executive, the general power of the people can never be endangered from any quarters”.
Also, in S.P. Gupta Vs Union of India  the Constitution Bench of the Supreme Court held that “the Judges should be of stern stuff and tough fiber, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says Be you ever so high, the law is above you.”
Apropos to the above, over the epoch, the judges have exercised jurisdiction over catena of aspects including social, political, and religious life of the citizens of India. These developments have at times resulted in inviting strong criticism and other times the highest applause from its observers. According to the few, the Supreme Court has on occasions, while taking an activist stand ignored the line of dissimilarity between legislation and adjudication. There have been critics who have perceived this new role of the Supreme Court as a threat to a public policy of separation of power and a transgression of the court into the domain of the executive and the legislature.
That yet another issue which is juxtaposed to the above is the recent fashion of the uncalled appreciation extended to the ones in power, preferably for a post-retirement sinecure and as the most glaring example apart from Hon’ble Justice Arun Mishra’s comment appreciating Mr. Narendra Modi, Prime Minister of India, is the judgment delivered by Hon’ble Justice SR Sen, Meghalaya High Court, wherein the Hon’ble judge went ahead to hold that, “I make it clear that nobody should try to make India as another Islamic country, otherwise it will be a doomsday for India and the world. I am confident that only this Government under Shri. Narendra Modiji will understand the gravity and will do the needful as requested above and our Chief Minister Mamataji will support the national interest in all respect.” The question which arises for argument is as to the need for such statements and the motive behind the same. Though there cannot be any justification for the same, irrespective of anything, the motive seems to be per se evident. The recent example of Justice (Retd.) Ranjan Gogoi being nominated as a member of the Rajya Sabha has received humongous criticism and rightly so as it has in view of the general public a reward for his favoritism shown is delivering various judgments as per the tunes of the present government. Justice Lokur wrote that he has been rewarded by the government, the biggest litigant, for doing their bidding when it mattered”. Though the fact remains that the judgments were prima facie the result of analysis of facts, application of law supported by the wittiness and application of judicious and astute mind. In this political crossfire, it is unfortunate that a judge of the highest esteem, i.e. the Hon’ble Supreme Court is being criticized to suit opinionated goals.
Nevertheless, looking at it from a different perspective and in the humble view of the author, it is high time when the judges should also refrain from indulging themselves in such war of words which is shameful for the bar and the bench, apart from the public at large. That the Hon’ble Courts have been sovereign, independent, and superior wing of the government since its inception and shall continue to be independent much away from the power of money and politics. We all shall hail the hallowed seat of justice and of course, that promise has to be given from the judges that they will not give us an occasion to question their mark of independence, impartiality, and transparency.
After all, it is to be understood that the common man perceives the judiciary as the last resort which can recoup the rights of the citizens, protect the milieu and uphold the interest of the mass which ex-facie forces them to believe that justice is only for the rich and powerful. Last but not the least, it is to be understood that the unloading of the grudge and pain shall not be post-retirement, and if that is so it calls for judicial accountability and all those judgments rendered during the tenure as such are under the grey clouds and be doomsday for all of us.
“Tragedy begins at that point where the illusion of impartiality, as well as the illusions of the adversaries, collapses.”
René Girard, Violence and the Sacred
 (1979) AIR 1369
 (1981) 1 SCC 1981
 (1978) 3 SCC 544  (1993) 4 SCC 441  1982 (2) SCC 831  Sharma M.C. Justice PN Bhagwati ‘Constitution and Human Rights’.  Judgment dated 10.12.2018 in WP 448/2018, Shri Amon Rana vs. State of Meghalaya & Ors. Bibliography
Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, (1979) AIR 1369
Khatri II vs. State of Bihar (1981) 1 SCC 1981
Madav Hayavadanrao Hoskot vs. State of Maharashtra (1978) 3 SCC 544
Supreme Court Advocate on Record Association vs. Union of India (1993) 4 SCC 441
S.P. Gupta Vs Union of India (1982) 2 SCC 831
Shri Amon Rana vs. State of Meghalaya & Ors WP 448/2018
Sharma M.C. Justice PN Bhagwati ‘Constitution and Human Rights’.