An Injudicious Judicial Opinion

In a constitutional democracy, there is a certain baseline expectation that citizens have from their courts. This expectation is that a judge hearing a challenge to the actions of a State organ shall confine themselves to analysing the substance of the claim, and provide transparent and public reasoning to back up their decision, or any other observations that they have to make about the case.

Paragraph 5 of Justice Dipankar Datta’s concurring opinion in the Supreme Court’s 26th April judgment on the question of electronic voting machines [EVMs] and VVPAT verification (Association for Democratic Reforms vs Election Commission of India) proceeds as follows:

It is of immediate relevance to note that in recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce. There seems to be a concerted effort to discredit, diminish, and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud. No Constitutional court, far less this Court, would allow such attempt to succeed as long as it (the court) has a say in the matter. I have serious doubt as regards the bona fides of the petitioning association when it seeks a reversion to the old order.

There are two things to note about this paragraph.

First, the judge levels a range of allegations in the first two sentences, but provides no evidence or particulars. He does not identify who these “vested interest groups” are. He does not specify what “the achievements and accomplishments of the nation” are, which are being “undermined” by these unnamed “vested interest groups.” He does not clarify what the “concerted effort” is that is being made by (presumably) the same unnamed “vested interest groups.” He does not explain what “progress of this great nation” is being weakened, and how, and by whom.

There is a term for such language, and it is called a “dog-whistle.” We are all familiar with dog-whistles: especially dog-whistles that allege that a nation’s progress is being held back by unnamed fifth-columnists. We are familiar with dog-whistles that set these unnamed fifth-columnists against the “true and pure” citizenry, the honest labourers and the “sincere work-force.” We are also familiar with what such dog-whistles lead to. Throughout history, these dog-whistles have been the preserve of demagogues and soap-box orators, seeking to whip up public resentment against the chosen targets of their outrage.

The demagogue does not need to spell out whom he is criticising, what he is criticising, or to provide reasons for his criticism. In fact, were he to do so, his demagoguery would lose its force, because his appeal is not to his audience’s reasoning faculties, but to the worst of their prejudices. His success is measured on no metric other than how much passion he can whip up, and what destructive effects he can direct it towards.

But there is a problem when a court engages in judicial demagoguery. The entire purpose of a constitutional court is to resolve disputes through the exercise of public reason, which is open and honest about its priors, and transparent about its assumptions. When a court begins to engage in these nudge-nudge-wink-wink games before a national audience, it abandons its role and functions as a court.

This is not to say that judicial demagoguery has no precedent in history. Perhaps its most famous exponent was Andrey Vyshinsky, the Soviet prosecutor-judge who presided over Stalin’s show-trials, and publicly berated the accused for being fifth-columnists who were intent on undermining the historical progress being made by the great Soviet nation. Is this an example the Supreme Court thinks worthy of emulation? One hopes not.

The second issue in this paragraph is the judge’s gratuitous personal attack upon the petitioner, the Association for Democratic Reforms. I will not here write a screed defending the ADR: their two-and-a-half-decades’ worth of work is in the public domain, it speaks for itself, and they do not need anyone to speak on their behalf. Notice, however, how – much like the first part of the paragraph – the judge provides no evidence for doubting ADR’s bona fides; in fact, the only reason for that, that comes out of the judgment, seems to be the judge’s outrage at the suggestion of replacing EVMs with paper ballots. But it is the opposite of judicial temperament to let one’s distaste for an argument spill over into a distaste for the petitioner.

Moreover, there is something particularly problematic about a personal attack by a judge upon a petitioner that appears in a judicial opinion, especially when these allegations are not put to the petitioner, and the petitioner is given no chance of defending themselves. This is, of course, not the first time that this has happened in recent years; for other examples of what I have referred to as the Court’s “Idi Amin jurisprudence,” see here. If a judge is intent upon castigating petitioners for the temerity of bringing a case to Court, and the basic principles of fairness demand that personal allegations be put to them, and their response to those allegations be recorded in the judgment. Without doing that, such attacks on petitioners are essentially the judicial versions of “shoot-and-scoot.”

There is a deeper irony here. The law of contempt exists – and rightly so – to protect judges from personal accusations (of bias, or dishonesty, or deciding cases for extraneous reasons). This is why losing parties to a case, or those who disagree with the outcome of a case, are not supposed to attribute the outcome to judicial malice. If judicial criticism became a free-for-all, judging would become a much more difficult and forbidding enterprise than it already is. But the law of contempt – which demands a certain temperance from the critics of the court – is not a one-way street. If judges treat petitioners as fair game for personal attacks, then the only effect of this will be to fray the threads that hold together the existing bargain. One wishes, of course, that this never comes to pass.

The Supreme Court’s EVM-VVPAT judgment will have its critics and its supporters. That is not the point here. Regardless of the Court’s findings, it is respectfully submitted that paragraph 5 of the concurring opinion delivered by Justice Dipankar Datta is both gratuitous and unnecessary. A healthy constitutional culture depends on individuals being able to challenge State action without fear of reprisal. If the Supreme Court itself becomes an organ of reprisal, then soon we will have no constitutional culture, but – to invoke another memorable judicial turn of phrase – “the unanimity of the graveyard.”