Congress General Secretary Digvijay Singh has been getting a raw deal from the media. He has been the victim of its sarcastic barbs as if he is some sort of a buffoon who shoots his mouth off, causing embarrassment to himself and his party colleagues with his politically incorrect outpourings.
Whereas, my understanding, arrived at from such tidbits that come my way from those in the eyrie of the nation’s capital, is that he is being deliberately aggressive at the instance of the party itself, which does not want to come out into the open with any stand on any issue that would plunge it into a controversy or draw public ire. The proof of this is in the fact that so far he has been getting away with the most provocative statements without coming to any harm.
Of course, some party leaders or spokespersons will occasionally say “tut, tut” but it is all part of the game designed and executed at the party’s strategy sessions. This kind of a ploy is not uncommon in politics. The CPI(M), during the days of Jyoti Basu as the Chief Minister of West Bengal, used to adopt a similar technique by deploying the Finance Minister, Ashok Mitra.
With the party keeping itself behind the scenes, and Jyoti Basu projecting a suave and genteel public persona, Ashok Mitra will, at frequent intervals, launch scathing attacks on the Centre and everybody in sight of the ruling party on their nefarious conspiracies to do West Bengal down. This was exactly as per the script put together at the daily strategy meetings of the CPI(M) at its headquarters in Alimuddin Street.
When the powers-that-be at Delhi protested, Jyoti Basu would pacify them by saying something like “You know, boys will be boys, and Ashok Mitra will be Ashok Mitra”! But then, thanks to Mitra putting himself out on a limb, Delhi had got the message about CPI(M)’s true feelings. The party’s purpose has been served.
PERTINENT QUESTION
All that said, I really feel that Digvijay Singh’s recent comments on the series of public castigations by the Supreme Court Bench of parties to the cases on the various scams are justified. It is certainly true, as he said, that “off-the-cuff observations (from the Bench) unfortunately create headlines and at the same time the person against whom the remarks are made doesn't have the opportunity to appeal against these observations…. The Supreme Court called the CBI a parrot in a cage. A Central Administrative Bench in Bangalore called the IB a chicken. Now I have a question to the people in general: are we not belittling our institutions?”
This is a pertinent question that cries for a categorical answer in the long-term interests of the nation.
A member of the Congress Working Committee, after affirming the highest respect in which the party holds the judiciary, has rightly pointed out that “We also need to boost the morale of our institutions which are routinely being savaged by the courts.”
BJP leader Ravi Shankar Prasad has been extremely short-sighted in diverting attention from the need for judicial restraint to asking Digvijay Singh “to learn and understand as to why there are a series of scams one after another in this government. Can we know that there will be no scam again in the coming months?” He is thereby casting stones from his party’s own glass house. I ask him: Can he give that assurance on behalf of his party?
This paper has carried two articles written by me on this very problem of judicial over-reach: “Supreme Court’s Obiter Dicta – Moderation adds to the majesty of law” (October 23, 2000) and “An earnest appeal to the higher judiciary” (May 11, 2011). The pith of the articles was in the following quotations: “Judicial reticence has much to commend it; it preserves the neutrality of the judge, it shields him or her from controversy, and it deters the more loquacious members of the judiciary from exposing their colleagues to controversy.” (Sir Anthony Frank Mason, ninth Chief Justice of Australia from 1972 to 1995)
“An obiter dictum…is a gratuitous opinion, an individual impertinence....the passing opinion of a Judge expressed when it is not called for.” (Dictionary of Legal Quotations)
“Judges who covet publicity, or convey the appearance that they do, lead any objective observer to wonder whether their judgments are being influenced by the prospect of favourable coverage in the media.” (US Court of Appeals in the Microsoft case).
CROWN AND GLORY
India’s Supreme Court itself has explicitly condemned ‘sweeping remarks’ being passed by Judges and asked them to conduct themselves “within bounds of propriety and sobriety”, since “judicial decorum requires that judgments and orders should confine themselves to facts and legal points.”
This was the view I expressed in 2000 and this is my view now: If there is one quality that can be singled out as the ultimate crown and glory of life on the Bench, it is being known for exercise of judicial reticence. This calls for firmly resisting the temptation to jump to conclusions before all the arguments on all sides are fully heard. Restraint is all the more imperative because it is not possible for those against whom the Justices direct their pungent remarks to reply to them in the same language and at the same level.
Any opinion on matters of dispute must wait until the judgment is written and delivered, based on a meticulous weighing of evidence adduced. If some aspects of the counsel's arguments are not clear or complete, the judges can no doubt ask for clarifications. If, instead, they give free rein to their feelings in the manner of laymen in ongoing proceedings, especially in words which detract from the sanctity of the pedestal they occupy, they unwittingly give the impression of playing to the galleries and lowering the stature of the institution itself.
The old Biblical precept, “do unto others as you would have others do unto you”, is simply another way of saying that if one wants respect from others, one should oneself show respect to others and earn it by one’s own behaviour and conduct.