by Durga Velayudham
Hours of power failure in a courtroom cannot be an accident in any landmark case, especially when the court is trying to hear the case of a former head of state. This power failure, due to which the accused was compelled to suffer a series of health issues, can be interpreted as a deliberate attempt to cause harm to the accused party. This is nothing but an extremely serious infringement of any person’s fundamental rights, including the right to health. Alternatively, this could be a deliberate subterfuge to delay court proceedings and satisfy someone’s vengeance. Or perhaps there exists a mysterious individual nursing years-long animosity against the accused for perceived slights during their tenure in a powerful political position. These entire scenarios might simply be the product of a single man’s wounded ego and pride.
However, the question here is: shall the citizen have a right to criticise judicial decisions, what legal theories and cases illuminate this right, and why do some beleaguered political authorities and their sycophants attempt to portray the contrary? Why, without any moral authority or dignity in their profession, do they rise and warn the general public not to criticise judicial decisions? Are we living in a 1984-style surveillance society, where power seeks to stifle discourse?
The public’s prerogative to critique judicial determinations is inseparable from the democratic principle of freedom of expression. Article 19(1)(a) of the Indian Constitution and the First Amendment in the United States safeguard the right to discuss and debate governmental institutions, including the judiciary. Justice P.N. Bhagwati, in the landmark case of S.P. Gupta v. Union of India (1981), elucidated that “public discussion on the functioning of judges and the judiciary is permissible, provided it does not scandalize the court or obstruct the administration of justice.” This statement stresses the delicate equilibrium between preserving judicial authority and permitting the citizenry to engage in reasoned critique.
Judicial luminaries have long underscored that criticism serves as a cornerstone of accountability. Justice V.R. Krishna Iyer asserted that open debate regarding judicial pronouncements fortifies the rule of law and ensures justice remains responsive to society. Similarly, Justice H.R. Khanna, in his impassioned dissent during the Emergency era, warned that “there can be no greater indication of the decay in the rule of law than a docile Bar, a subservient judiciary and a society with a choked or coarsened conscience.” The imperative is clear: the judiciary, while independent, cannot operate in a vacuum insulated from reasoned scrutiny.
A.V. Dicey, the eminent British constitutional theorist, highlighted that the rule of law necessitates that even the judiciary be accountable to the citizenry. Critique, when conducted responsibly, is not merely permissible but desirable, as it functions as a corrective mechanism against judicial fallibility and potential institutional capture. Lord Denning echoed this sentiment, advocating that criticism should target the reasoning within judgments rather than the judges personally, thereby preserving dignity while promoting transparency.
In In Re: Arundhati Roy (2002), the Indian Supreme Court clarified that “constructive criticism of judicial decisions is a part of democratic discourse. Criticism intended to vilify or scandalize the court is impermissible.” This demarcation illustrates that the right to critique is circumscribed not by fear of offending the judiciary, but by the necessity of preserving the integrity of the legal process.
In Pennekamp v. Florida (1946), the U.S. Supreme Court held that newspapers are constitutionally permitted to critique judges’ decisions, provided such commentary does not pose a direct threat to the administration of justice. Justice William Brennan further articulated that “the right to criticize government, including the judiciary, is the very essence of the First Amendment,” reinforcing that public discourse is indispensable in a functioning democracy.
Despite these safeguards, political actors frequently seek to constrict the space for critique. By invoking contempt of court or disseminating injunctions against public discussion, they attempt to monopolise the narrative and insulate judicial decisions from scrutiny. Such attempts are often driven less by legal propriety and more by expedience, ego, or partisan advantage. It is in this context that the citizenry must assert its prerogative, understanding that reasoned, factual, and constructive criticism of judicial decisions is not subversive but foundational to the rule of law.
Criticism of judicial decisions need not be antagonistic; rather, it should illuminate flaws, highlight interpretative errors, and encourage transparency. As Justice P.N. Bhagwati and Justice V.R. Krishna Iyer have emphasised, the objective is not to scandalize but to ensure that judicial reasoning withstands the scrutiny of an informed populace. Constructive engagement with judgments, whether through academic critique, media commentary, or public discourse, enhances public confidence and legitimises judicial authority.
The citizen’s right to critique judicial decisions is both a legal entitlement and a moral imperative. Landmark cases, theoretical jurisprudence, and judicial pronouncements collectively affirm that while the judiciary enjoys independence, it is not sacrosanct. Citizens, equipped with reason, responsibility, and commitment to justice, must exercise this right to ensure that the judiciary remains accountable, transparent, and aligned with the democratic ethos. The alternative—a society silenced by fear, deference, or intimidation—represents a regression into authoritarianism, inimical to the principles that underpin a free and just polity.
