Chief Justice of India (CJI) NV Ramana on Wednesday said the right of people to change those in office through elections was no “guarantee against the tyranny of the elected” and argued that democracy and its benefits could only be ensured by giving space to both “reasoned and unreasonable” public discourse. “The tyranny of the unelected” happens to be a phrase that the late Arun Jaitley had used when a constitution bench of the Supreme Court had turned down the National Judicial Appointments Commission Act passed by the parliament, insisting that the collegium system of appointments of judges would continue.
The CJI spoke also on the impact of social media and the need to be wary of the “noise” it amplifies, as it was not necessarily what was right or what the majority believed in. This, however, should not be understood as meaning that “judges and the judiciary need to completely disassociate from what is going on”.
“Judges cannot stay in ivory castles and decide questions which pertain to social issues,” he said.
Delivering the 17th PD Desai memorial lecture, CJI Ramana said, “Mere right to change the ruler, once every few years by itself need not be a guarantee against tyranny. The idea that people are the ultimate sovereign is also to be found in notions of human dignity and autonomy. A public discourse, that is both reasoned and reasonable, is to be seen as an inherent aspect of human dignity and, hence, essential to a properly functioning democracy… day to day political discourses, criticisms and voicing of protests is integral to the democratic process.
“We live in a democracy. The very essence of a democracy is that its citizenry has a role to play, whether directly or indirectly, in the laws that govern them. In India, it is done through elections, where the people get to exercise their universal adult franchise to elect the people who form part of the parliament which enacts laws. Incidentally, we, the Indian people, gave ourselves the universal adult franchise from day one of the coming into existence of our republic, unlike some of the advanced democracies.”
The CJI further said, “In the 17 national general elections held so far, the people have changed the ruling party or combination of parties eight times. In spite of largescale inequalities, illiteracy, backwardness, poverty and alleged ignorance, the people of independent India have proved themselves to be intelligent and up to the task.”
Speaking on the civilisation-related importance of the rule of law in a democracy, the CJI linked it to a “strong and independent judiciary”. “The judiciary is the primary organ which is tasked with ensuring that the laws which are enacted are in line with the Constitution. This is one of the main functions of the judiciary, that of judicial review of laws, which is part of the basic structure and cannot be curtailed by the parliament,” he said, adding that the task of upholding constitutional values must be shared equally by the judiciary, the legislature and the executive.
“For the judiciary to apply checks on governmental power and action, it has to have complete freedom. The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else rule of law would become illusory. At the same time, judges should not be swayed by the emotional pitch of public opinion either, which is getting amplified through social media platforms,” the CJI said.
“Judges have to be mindful of the fact that the noise thus amplified is not necessarily reflective of what is right and what the majority believes in. The new media tools that have enormous amplifying ability are incapable of distinguishing between right and wrong, good and bad and the real and fake. Therefore, media trials cannot be a guiding factor in deciding cases. It is, therefore, extremely vital to function independently and withstand all external aids and pressures. While there is a lot of discussion about pressure from the executive, it is also imperative to start a discourse as to how social media trends can affect the institutions,” he added.
The CJI said the Covid-19 pandemic had accentuated the importance of rule of law and cast an obligation on courts to use this concept liberally to ensure protection to and welfare of people from all sections of society. “I began to feel that this pandemic might yet be a mere curtain-raiser to much larger crises in the decades to come. Surely, we must at least begin the process of analysing what we did right and where we went wrong,” he added.
Touching on the importance of gender justice in a democracy, Justice Ramana said, “The legal empowerment of women not only enables them to advocate for their rights and needs in society, but it also increases their visibility in the legal reform process and allows their participation in it.
“Bias and prejudice necessarily lead to injustice, particularly when it relates to the minorities. Consequently, application of the principles of rule of law in respect of vulnerable sections has to necessarily be more inclusive of their social conditions that hinder their progress.”