Three recent judicial decisions have led to attacks on the Supreme Court’s legitimacy. On February 15, the Court declared electoral bonds unconstitutional, stating that the “right to know supersedes anonymity.” On May 10, the Court granted interim bail to Delhi Chief Minister Arvind Kejriwal saying, “We... reject the argument that the reasoning… results in grant of privilege or special status to politicians.” On May 15, the Court granted bail to Prabir Purkayastha, founder and Editor-in-Chief of NewsClick, holding that “communication of the grounds of arrest in writing was not provided… which vitiates the arrest.” These judgments, based on legal merit, challenge state excesses and also harm the ruling party’s interests. The BJP undeniably benefited from electoral bonds, Mr. Kejriwal’s arrest, and the suppression of a critical media platform.
These decisions are healthy outcomes for any constitutional democracy where institutions have autonomy and there is a working system of checks and balances. However, they have been perceived by many as breaking a pattern. Legal scholars and even practitioners have been criticising the Court over the last few years for judicial abdication, acquiescence, avoidance, and, in some instances, for working hand-in-glove with the executive. Hence, the recent decisions, especially during an election year, have been seen as an unexpected but welcome display of courage.
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A sustained campaign
In our digital media ecology, each hearing on subjects of public importance, especially those with political implications, receives immediate online commentary. The Supreme Court and High Courts have facilitated this by enabling live tweeting and streaming of proceedings. Legal reporting platforms have further brought the court into our social media streams. However, a disturbing trend has surfaced: abuse of the judiciary. Many believe that institutions are colonial impositions or are rooted in western liberalism and are therefore in conflict with the social norms of “new India”. When this authoritarian world view is challenged, its proponents seek to subvert the legitimacy of the court. Digital campaigns against the court exploit public frustration over the decades it takes for citizens to obtain justice, anger regarding judicial nepotism, and the lack of diversity in the higher judiciary, and even conjure up fantasies of a secret society of senior lawyers influencing the court. Such attacks masquerade as suggestions for reform. But the proposed “solutions” are not based on evidence. The masked objective seems to be to achieve absolute executive control.
This clever subterfuge has been brought forth by Joyojeet Pal and Sheyril Agarwal, who gathered data from X over four months and highlighted spikes in comments on five days when the Chief Justice of India took positions antithetical to the BJP-led government or its supporters. They concluded in their study that the “Chief Justice’s liberal leanings in several judgments rankle many who lean right. But the more significant issue is that purging the Supreme Court of similarly liberal-leaning justices represents an existential thorn in institutional capture by the political establishment.” They also noted that “attacks are more strongly tied to digital influencers who are highly polarised in favour of the BJP.” While the study did not capture this clearly, many online influencers with large followings enjoy official patronage. Nowadays, high-ranking advisers and cabinet ministers devote significant time to participating in podcasts and YouTube interviews and often comment on the need for judicial reforms and even a repeal of the Constitution. Critics may dismiss this study as biased and point to instances where “liberal” and “left leaning” users have engaged in similar practices. However, the study notes distinctions in how the Opposition and wider civil society organise and conduct campaigns online — by appealing to the Court to follow its constitutional role.
Today, each judgment and slip-up is put up, ridiculed, and delegitimised through coordinated campaigns. For example, the Juvenile Justice Board recently granted bail to the minor son of a builder who was allegedly driving the car that crashed into two people killing them. Juxtaposed against news reports of the grant of bail are captions such as “the Indian judiciary is a joke”. This ignores the role of the police and politicians in the initial procedure. These drip campaigns are part of the long game of organised partisans calling for direct control by the Prime Minister.
The way forward
Television and social media play a crucial role in shaping norms. So, we must publicly acknowledge the threats facing the independence of the judiciary, carefully scrutinise proposals disguised as judicial reforms, and take urgent but careful remedial action on issues such as the collegium system. Public trust is the judiciary’s greatest ally, and it must be restored by improving service delivery, increasing diversity in appointments, and improving the Court’s counter-majoritarian spine. The judiciary and the wider legal fraternity must counter online threats by dispelling misinformation and exposing bad faith propaganda. This requires reasoned, consistent, and honest public communication about the judicial process. Finally, we the people must recognise the Court as an imperfect ally, sometimes even a negligent guardian, but nonetheless a protector of our constitutional rights. Our civic vision has to be broader than the narrow framing of a powerful Prime Minister or a dominant political party, regardless of the election results.
Apar Gupta is an Advocate based in New Delhi
