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Justice Sanjay Kishan Kaul was right to call out rising intolerance

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

Reports emanated that Supreme Court judge Justice Sanjay Kishan Kaul on 31st May, 2020, said there was growing intolerance in the society against the judiciary, especially being fueled through social media. Kaul said that judges were being accused for their decisions and the judicial institution was being damaged when the tendency to criticize crossed certain boundaries.

“Criticism of a viewpoint or a judgement is not a problem, but when imputations and grading start being made, I think we damage the very institution”, Justice Kaul said. “The unfortunate part is that in some of us, those who have been part of the institution itself, there is a problem of ‘after me the deluge’. Which is that since we [retired judges] are gone, everything is going wrong. I will say that itself is a danger.” 

Kaul made these remarks while addressing an online lecture – Freedom of Speech in times of Covid-19 – Fake News and Misinformation – organised by the MBA Academy, The Madras Bar Association.’

It was not a veiled remark but literally a direct one, which came after former Supreme Court judge Justice Madan B Lokur, in a recent article on The Wire, said that the apex court deserved an ‘F’ grade for the manner in which it handled the migrant crisis during the coronavirus pandemic. Kaul was part of the Supreme Court bench that on May 28 took suo motu cognisance of certain faults in government measures to help migrant workers.

Kaul added that “there is a tendency to be critical in a manner which crosses certain lines”. He said that members of the public, bar and judiciary should appreciate challenges of any system. “While criticism is always information that must come to us, I think some boundaries need to be maintained,” he said.

In a reference to social media, Kaul said that it was difficult to regulate the platform and doing so would harm freedom of speech. He said that while it was possible to hold the media accountable for their writings, this could not be said for social media.

The judge said that unnecessary and unverified WhatsApp forwards were contributing to the spread of fake news. “Fake news is more dangerous than coronavirus itself,” Kaul said. “Its ramifications are manifold.”

He added that intolerance had exceeded limits as people rush to courts if the opinion is contrary to theirs. “We are becoming increasingly intolerant of opinions that do not match ours and this is prevalent in all sections unfortunately,” Kaul said. “So people who hold opposing views may be called by each other as a ‘Modi Bhakt’ or an ‘Urban Naxal’ or other labels. What is perceived as the middle ground becomes the casualty.” Such a stinging response was long overdue.

We have also had the spectacle of 20 advocates  supposedly penning a missive to the highest judiciary, which it was ‘suggested’ was the trigger for the Supreme Court to take ‘suo motu’ proceedings. These gentlemen appropriated praise to themselves by themselves.

Of late, it is true that the attacks on the Judiciary have gotten direct and daunting. They are of the hit and run or shout and scoot variants. Particularly, on social media , it can be made anonymously, under cover of not darkness but broad daylight, as identities are suppressed.  The  brazenness on social media can be easily retweeted for convenience and letting it go viral. The sufferer is the institution, as we chip away at the edifice that took long, long years of blood, toil, tears and sweat to construct.

We had already seen a few select senior advocates’ open confrontation in public, in the wake of the Judge Loya case hearings. Direct not barbed innuendoes were launched . And then we had four Justices of the Supreme Court coming out to the lawns and accusing  the then Chief Justice Dipak Misra in being opaque and unfair in the allotment of portfolios as Master of the Roster. Matters got escalated to the level of an impeachment move which got quickly nixed in double quick time,  by the Vice-President and Chairman of Rajya Sabha M.Venkaih Naidu, thankfully.

And the extraordinary irony of it, is that these ‘libertarians’ formerly on the Bench and  the robed brethren in practice, have needled not any Judge. They have infuriated and anguished a Judge, whom they not so long ago called a darling and a leader of free speech. These ‘liberals’ praised Justice Sanjay Kishan Kaul sky high, for his  twin verdicts- on the nongenarian painter M F Hussain and author Perumal Murgan, eight years apart, in time vintage.

It was on 8th May,2008, to be exact, that Justice Sanjay Kishan Kaul, sitting as Judge of the Delhi High wrote the ‘free speech classic’ as these libertarians christened it, upholding the artistic licence of the painter M F Hussain, affording him the peace of mind  to travel to india, amidst a litany of protests against alleged abuse of Hindu goddesses.

It was on 5th July,2016, that the self same Justice Sanjay Kishan Kaul, as then Chief Justice of Madras High Court, authored the judgment to free Perumal Murgan and his Madharogan novel, from the charge of being provocative, defamatory, prurient and not meant for public consumption and as being impacting law and order, by inciting community feelings et al. The learned Chief Justice came in for encomiums, reserved only for ‘liberal log’, as a protagonist for free speech  ‘who dealt a body blow to intolerance of the conservatives’. This from the very same libertarians, who are now facing the heat from  Justice Kaul’s comments.

Justice Kaul was being honest when he said what he said in the wake of rising ‘intolerance against judiciary’. Judiciary is far too important an institution. The Judges come and Judges go. But the institution goes on forever. Upon retirement, the Judges cannot assume a wisdom as if they were the repository of all knowledge, now out of office, and can grade the Judiciary, as  their whim commnded them. It is singularly unfortunate that a retired Justice was seen to be indulging in such a  gimmick which did not behove the status he occupied and the status he continues to occupy in Fiji Islands, mind you.

It is eminently understandable that there is a group of usual suspects in practice, who  take on the judiciary, as is their wont, as if they were the custodians or champions of free speech, wherever their fancy takes them to. They love the adoration of the liberal media and they themselves indulge in social media hectoring, to pat themselves on the back.

Justice Kaul’s comments were most timely, to call out their intolerance. Constructive criticism is most welcome. Questioning the opinions of the judges on the legal plane and calling the decisions out, on the intellectual matrix, is perfectly fine. But questioning the Judges  themselves or their motives and philosophies  on unjustified pretexts is not on. That is intolerance as Justice Kaul correctly labels them. The champions of free speech cannot challenge this premise, as it has come from a protagonist of free speech from the pulpit, by their own preferential and precedential standards.

The libertarians need to know free speech is not licence for hate speech. Our fundamental rights are not akin to First Amendment Rights, as in the US. There are reasonable restrictions and they have a purpose. Protecting the fair name of Judiciary as a branch of democracy is not the job of  Judges or Justices in office alone. It is the job of Judiciary, which comprises the Bar and Bench. And the Bench even after superannuation. Some members of the Bar and their hangers on, may not care, for all the commercial axes they have to grind, but We do, as citizens of a proud and iconic institution. The men and women who have held office, owe it to the nation and the institution, for the larger purpose, as the Constitution was given to us by We The People.

(Narasimhan Vijayaraghavan- Author is practising advocate in the Madras High Court)

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court
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