Written by  //  January 4, 2011  //  Law & The Judiciary  //  2 Comments

The islands of the backwaters of Kerala sink by inches each year.  To slow the sinking, mud from the riverbed is piled up on shore.  Men, hanging off the side of a canoe, take turns to dive down and scoop up great lumps of the stuff – an extraordinary sight from the shore.

One, if prone like me to over-intellectualise, might ponder the mystery of mud: that a thing which defiles if flung with malice can, if used purposefully, protect what might be lost.  And so it is with criticism of public institutions (indulge me for a moment). Criticism motivated by personal animosity does little but soil both target and perpetrator.  But almost all criticism, however ill-conceived, however intemperately expressed, plays a part in keeping a liberal democracy above water, if only by serving as a reminder that every public institution is accountable to those it serves.  There are of course special considerations when it comes to the judiciary – juries must not be prejudiced, for one thing – but the general point holds: what looks like the flinging of mud might, in fact, keep us all from drowning.

It is with this thought in mind that I revisit my vexation with comments by Justice Jain in the course of a hearing on the Godhra riots.  Justice Jain complained about letters sent by  Teesta Setalvad’s NGO to the U. N. High Commissioner for Human Rights.  We don’t know what the letters say, except that they have to do with witness protection.  His Honour said that the letters were a “reflection on us” and that “outside agency” cannot be allowed.

Now, if the content of the letters were ever to come to light I might be forced to swallow my words, but my problem with his Honour’s outburst is it betrays an intolerance of criticism – a misunderstanding of mud, if you like.  In a post-colonial polity there are, naturally, sensitivities about criticism from outsiders.  But, most of us would accept, international human rights bodies can play a valuable rights-protective role in monitoring and commenting on domestic legal proceedings.  (Think, for instance, of Amnesty International’s criticisms of the conviction and sentence of Binayak Sen).  Given the ongoing struggle to hold accountable those responsible for the violence in Gujarat, almost a decade after the fact, it is perfectly reasonable for domestic NGOs to be in communication with the U. N. system.  It is simply no business of the Supreme Court’s.  It undermines the dignity of the Bench to suggest otherwise.  There is no place for carping about “outside agency”.

And on that note, my own carping on the subject should draw to a close.  Best wishes to all for a very happy new year.

2 Comments on "Mud"

  1. Alok January 4, 2011 at 9:56 am ·

    As Arghya and me pointed out in our comments earlier, Justice Jain’s understandable (if not justified) reaction was not just about criticism of the particular Bench hearing the matter but about undermining the Supreme Court as an institution by approaching another body when the Court was seized of the matter and the same was pending with the Court.

    Amnesty International’s criticism of the Binayak Sen judgement stands on a different footing because the verdict is already out, and there is no bar on anyone commenting on the merits and demerits of the judgment of a Court. Naturally, an appeal will lie in accordance with law and that Court will decide the matter accordingly, but the criticizing the judgment of a Court stands on a complete different footing from approaching other authorities when the Court is seized of the matter.

    Apart from the fact that indicates little faith in India’s highest judicial body (which has actually ensured some action against the culprits) it’s also a great way of undermining one’s own case.

  2. Dimple May 19, 2012 at 8:16 pm ·

    Excellent post, Eesvan. Why do you not write here any more?

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