"You Are Criticising Yourself": Harish Salve Asks Judges To Stop Attacking Supreme Court Judgments In Public

Senior Advocate Harish Salve has said that judges, and sitting judges of the Supreme Court in particular, must speak only through their judgments. He warned that public criticism of the Court's verdicts by members of the judiciary would undermine people's faith in the institution.

Salve made the remarks in an interview with ANI, at a time when sitting and retired judges have been commenting in public forums on matters that are not pending before them.

"See, I have always maintained that Supreme Court judges, any judge, must speak only through his judgments, and particularly sitting judges, because we are forgetting one thing. For convenience, the court sits in benches, but the judgment, the judgment of the Supreme Court, each judge of the Supreme Court is a member of the Supreme Court. So you can't say this is a judgment of bench in court number one. This is a judgment of the Supreme Court," Salve said.

"So when you criticize the judgment of the Supreme Court, you are criticizing yourself. This institution has to command public faith. If members of the judiciary themselves go out and lambast judgments, especially in areas where there is such sensitivity, political sensitivity, I think it would undermine the faith of the people in the judiciary, and that would be a permanent damage to the institution," he added.

Salve did not think such remarks would sway a bench, but said the real harm lay in how the public would read any eventual verdict.

"I don't think this will influence the decision. Again, judges are not. But in public perception, the very fact that you are asking me this question shows that in public perception, any judgment of the Supreme Court today, if, for example, the judgment of the Supreme Court goes the other way, would there not be a concern saying, has it gone this way because one judge of the Supreme Court publicly criticized this?" he said in the interview with ANI.

He also criticised the warning, made from the Bar, that the country would burn if interim relief was refused.

"See, even the threat from the bar that if you don't pass an interim order, the country will burn means what? Yes, I can't convince you that as a matter of law you should grant a stay, but I am telling you because of the street politics of India you must grant a stay. See, all this erodes the faith of the people in the court," Salve said.

"Tomorrow, I mean, if the Supreme Court had, perish the thought, if the Supreme Court had passed any order that day after an argument saying country will burn, would not the common man have felt that, oh, the court got scared of the street politics and granted a stay? Is that good for the reputation of the Supreme Court? So, you know, we have to be very careful. Let's not just destroy our constitutional institution because some group of people feel politically frustrated or feel they can get political brownie points," he said.

Notably, Justice Ujjal Bhuyan had recently made an observations while delivering the valedictory address at the 19th Justice Bodh Raj Sawhney Memorial Moot Court Competition at NALSAR University of Law on Sunday. Speaking about the ongoing electoral roll revision exercise, Justice Bhuyan said that any process resulting in the disenfranchisement of millions of citizens would be "intrinsically arbitrary" and amount to a "negation" of the constitutional order.

He further said that the Constitution does not contemplate a distinction between citizens who possess voting rights and those who do not, and asserted that no amount of "whataboutery" could justify such a process.

Former CJI BR Gavai and Retired Judges react

Former Chief Justice of India BR Gavai and two retired Delhi High Court judges have criticised Supreme Court Justice Ujjal Bhuyan's recent public remarks on the Special Intensive Revision (SIR) of electoral rolls, stressing that the issue is currently pending adjudication before the Supreme Court.

Reacting to the remarks, former CJI BR Gavai said that judicial propriety required a judge to maintain restraint when the issue was before the court. "Judicial propriety would not permit him to make any comment on the matter which is sub judice before the court" former CJI Gavai said.

Gavai said that a sitting Supreme Court judge ought not to publicly express views on an issue that is awaiting adjudication before the same court.

Retired Delhi High Court judge Justice S N Dhingra also questioned Justice Bhuyan's decision to comment on the SIR issue at a public event. Describing the remarks as inappropriate for a sitting judge of the Supreme Court, Dhingra said: "He should have thought a thousand times before making such a statement."

Dhingra said Justice Bhuyan did not have the complete facts of the matter before him when making the observations. He also rejected the need for judges to comment on reports of differences within the Election Commission concerning decisions related to the SIR exercise. "They are all top bureaucrats of the country sitting at very important positions. They can speak for themselves. There is no need for anyone to speak on their behalf" he said.

Dhingra termed Justice Bhuyan's statement "way beyond the limits of a sitting top court judge" and said that such observations should not have been made when the matter was pending before the Supreme Court.

Retired Delhi High Court judge Justice R S Sodhi took issue with Justice Bhuyan's characterisation of the electoral roll revision as disenfranchisement. According to Sodhi, the right to vote is governed by the statutory framework, and eligibility has to be determined in accordance with the law.

"Whether you have a vote or you don't have a vote depends upon the statute. If you fall within the parameters of the statute, you have a vote. If you don't fall within the parameters of the statute, you don't have a vote" Justice Sodhi said.

He said that electoral rolls can contain names that do not satisfy the statutory requirements, while persons who are otherwise eligible may also find their names excluded. In either situation, the statutory mechanism provides a route for correction, including deletion or inclusion of names as the case may be. Sodhi also questioned the suggestion that the exercise effectively creates "second class" citizens.

"I mean, these hardline thinking and these hardline statements, to my mind, are not a very mature way of looking at a thing, especially when you are supposed to be in a field which is supposed to be excellent in its rationalising" he said.

He said the more appropriate inquiry was whether a person was legally entitled to be included in the electoral roll and whether the Election Commission had followed the procedure prescribed by law.

The Supreme Court is seized of multiple petitions concerning the Special Intensive Revision of electoral rolls. The challenge forms part of a wider set of proceedings concerning the functioning and composition of the Election Commission.

Justice Bhuyan's comments came against this backdrop, which has prompted the former CJI and retired High Court judges to raise questions about the propriety of a sitting Supreme Court judge making public observations on an issue pending before the court. Justice Bhuyan made the remarks at NALSAR, where he had earlier served as Chancellor. Addressing the students during the event, he also praised the institution and its students, saying: "You have shown to the country and the world what a university student, that too, a student of law, should be like. You are brilliant. You are bold and you are brave" he said.

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