Justice MR Shah was not the first, judges tend to eulogise a strong executive

Earlier this week, Justice MR Shah retired from the Supreme Court after a tenure of almost five years. There have been several articles which have analysed his tenure and judicial philosophy and a number of them have termed him an admirer of Prime Minister Narendra Modi, and hence, a pro-executive judge.

One article claimed that judges expressing their admiration for the Prime Minister has become a norm. I believe such a remark is an incorrect generalisation. In fact, history shows us that judges tend to eulogise a strong executive.

A discussion about judges praising the executive is incomplete without recapping the infamous adulatory letter written by Justice PN Bhagwati to Indira Gandhi. However, before Mrs Gandhi, several Judges had spoken admirably in favour of Jawaharlal Nehru, the first Prime Minister of India.

Justice M Anantanarayanan of the Madras High Court in a defamation case had described Nehru as a "greatly esteemed national leader". A Bench of Chief Justice M Hidayatullah and Justice G Bhutt of the Madhya Pradesh High Court had termed Nehru as the “the most beloved leader of the people”. Like his daughter, Nehru received an adulatory letter as well. On July 3, 1953, Chief Justice of the Bombay High Court MC Chagla in a letter to Nehru, wrote that he was proud of the Prime Minister as he had given the country international status. The letter read,

“May I in the end say how very proud we all are of our Prime Minister who has given to our country international status, which even countries more seasoned in diplomacy may well envy?"

Hence, contrary to popular belief, the trend of praising the executive started with Nehru and not Indira Gandhi.

Arguably, the most controversial incident of a judge praising the executive is of Justice Bhagwati congratulating Prime Minister Indira Gandhi on her electoral victory in the year 1980. The letter complemented her iron will, firm determination and dynamic vision and termed her victory as a promise of a bright sunshine. The letter read,

“May I offer you my heartiest congratulations on your resounding victory in the elections and your triumphant return as prime minister of India? It is a most remarkable achievement of which you, your friends and well-wishers can be justly proud. It is a great honour to be the prime minister of a country like India… You have become the symbol of the hopes and aspirations of the poor, hungry millions of Indians who had so far nothing to hope for and nothing to live for… I am sure with your iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience, overwhelming love and affection of the people and above all, a heart which is identified with the misery of the poor and the weak you will be able to steer the ship of the nation.”

He concluded the letter saying,

“Today the reddish glow of the rising sun is holding out the promise of a bright sunshine. May that sunshine fill our hearts with joy and bring comfort and cheer to the poor, half-naked, hungry millions of our countrymen.”

This letter drew the ire of both the Bar and the Bench, for its alleged violation of judicial propriety. Some called it the most scandalous incident involving a Supreme Court Judge. Speaking at a function, Justice VD Tulzapurkar termed this letter as a disturbing trend which may damage the image of the judiciary. He observed,

“If judges start sending bouquets or congratulatory letters to a political leader on his political victory, eulogising him on assumption of high office in adulatory terms, the people’s confidence in the judiciary will be shaken."

Interestingly, people forget that this was not Justice Bhagwati’s first incident wherein he openly praised the executive. Sometime around 1970, as a judge of the Gujarat High Court, Justice Bhagwati at a public function had remarked that all judges should be committed to the Congress. This remark embarrassed Law Minister HR Gokhale, who was present in the audience and had to clarify that this was not what the government wanted. During the Emergency, several judges praised the imposition of the emergency in their judgments. As per KG Kannibiran, when Justice TLN Reddy was a district judge, he eulogised the Emergency. Another judge wrote that the government was looking after the detenus like a mother looks after her children.

After Mrs Gandhi, the trend of executive praise has returned with the incumbent Prime Minister Narendra Modi. In the year 2018, Justice Sudip Ranjan Sen of the Meghalaya High Court shared his confidence and faith in the Prime Minister to ensure that India does not become an Islamic country. He observed,

“I make it clear that nobody should try to make India as another Islamic country, otherwise it will be a doomsday for India and the world. I am confident that only this government under Shri Narendra Modiji will understand the gravity, and will do the needful as requested above and our chief minister Mamataji will support the national interest in all respect.”

That same year, Justice MR Shah, when he was Chief Justice of the Patna High Court, while responding to a journalist, hailed Prime Minister Modi as a hero. He reportedly remarked, “…Modi is a model. He is a hero.” He praised the Prime Minister again during the Gujarat High Court’s Golden Jubilee Celebrations and called him “the most popular, loved, vibrant and visionary leader.”  Another judge of the Supreme Court, Justice Arun Mishra had on a prior occasion called PM Modi a versatile genius who thinks globally and acts locally. Similar remarks have been made by other judges as well.

There is a commonality between Nehru, Gandhi and Modi. These three have arguably been the strongest Prime Ministers of the country and presided over the strongest executives. Hence, it cannot be argued that judges praising the executive is a recent phenomenon. On the contrary, it seems to be a norm whenever a strong executive is in power.

Judicial remarks made in favour of the executive are often criticised for bringing the independence and impartiality expected from judges into question. In fact, the constitutional oath taken by judges requires them to perform their functions without fear or favour. Judges should be careful that their words do not dent the perceived independence of the institution. Praising the genuine efforts of a government is a good thing so long as the praise is not a eulogy or endorsement for the leader.

However, critics must also not read too much into extra judicial observations and obiter dicta, unless they highlight patent bias. For instance, mere courtesy extended to the executive or praising genuine efforts should not be interpreted for bias.

Swapnil Tripathi is an Advocate and a DPhil (in Law) Student, University of Oxford. He tweets at S_Tripathi07.